Smith v. Superior Court

Opinion

GRODIN, J.

Petitioner Charles Edward Smith, is the defendant in a paternity action currently pending in the Superior Court for the County

[424]

of Monterey. The action was originally commenced in the State of Louisiana, and is being pursued by the District Attorney of Monterey County (real party in interest here) pursuant to the Revised Uniform Reciprocal Enforcement of Support Act of 1968 (Code Civ. Proc., § 1650 et seq.). Petitioner was served in that action with requests for admissions seeking to establish petitioner’s relationship with the mother of the child whose paternity was contested. Petitioner refused to respond to the requests, stating as the basis for his refusal the privilege against self-incrimination contained in the Fifth Amendment of the United States Constitution; article I, section 15 of the California Constitution; and Evidence Code section 940. Respondent court rejected his arguments based on privilege, and ordered him to answer. In this proceeding, petitioner seeks a writ of mandate to compel that court to vacate its order.

Evaluation of the parties’ competing contentions calls for consideration of the requested admissions in the context of the statutory scheme. Petitioner in the underlying proceeding admitted paternity of three of the four children as to whom a determination was sought, but denied paternity of the fourth, and youngest, child. The admissions sought are (1) that the child was born while petitioner and his ex-wife were married and living together; (2) that they were married to one another prior to and at the time the child was born; (3) that petitioner received the child into his home and openly held her out as his natural child; and (4) that at the time the child was conceived, petitioner was not impotent or sterile and was married to his ex-wife and cohabiting with her.

These admissions, if made, would give rise to a “conclusive presumption” (Evid. Code, § 620) that the wife’s issue was a “child of the marriage” (Evid. Code, § 621),

1

and thus would form the basis for a determination of legal paternity and obligation to support

(Kusior