Plummer v. Superior Court

FILES, J.

Petitioner is the plaintiff in a divorce action who seeks a writ to compel the trial court to grant leave to file an amended and supplemental complaint. The facts alleged in the petition are not controverted.

The complaint, filed October 24, 1961, sought a divorce from the defendant wife (real party in interest here) upon the ground of desertion. The wife answered and cross-complained for a divorce on the ground of extreme cruelty. Pretrial was set for August 1, 1962, but was continued to September 24, 1962. On August 13, 1962, plaintiff brought on for hearing his motion for leave to file an amended and supplemental complaint. The motion was accompanied by a copy of the proposed pleading. The notice stated that the motion would be based upon a declaration of plaintiff, but no such declaration was made a part of the petition here.

The proposed pleading was in three counts. The first repeated the original allegations of desertion. The second count alleged on information and belief that defendant had been living in adultery with a named individual at a specified street address in Los Angeles both before and after the date on which action was begun. The third count alleged that defendant had treated plaintiff with extreme cruelty in that she had been living with another man as husband and wife.

No counteraffidavit or other written opposition was filed by defendant. The motion was submitted and on August 15, 1962, was denied. The minute order gives no reason for the decision, but the return of the respondent court states that the judge, in accordance with his practice, had studied the motion in advance and discussed his views from the bench, to permit full argument on them.

On September 4, 1962, a motion for reconsideration was heard. This motion was accompanied by a declaration of the plaintiff stating that at the time of the filing of the complaint he was unaware of his wife’s whereabouts, that he had believed that she was living in Montebello, that he had no reason to assume, nor did he know, that she had committed adultery, and that such information was first obtained “about July of

1962

and the motion for leave to file a

[843]