Sawdey v. Superior Court

THE COURT. Petition for writ of mandamus.

The petitioner herein seeks a writ of mandamus which would compel the court below to restore to the pretrial calendar and to set for trial an action for divorce in which she is plaintiff and cross-defendant. The petition presents for original determination by this court several issues concerning the application of the conciliation court law.

The matter arose in this way: The petitioner filed an action for divorce in the Superior Court in and for the City and County of San Francisco, which, after answer and cross-[731]complaint, duly came on for pretrial conference. At the pretrial conference, without prior notice, the defendant and cross-complainant husband filed a petition for conciliation. Over petitioner’s objections, the court orally granted the petition and referred the matter to the domestic relations commissioner for proceedings in connection therewith.

To the commissioner’s request that she make an appointment for an interview, the petitioner responded through counsel that she had no intention of effecting a reconciliation with her husband, and that the interview would serve no useful purpose. She was informed by the commissioner through her counsel, that notwithstanding her views, it was necessary for her to “report for a hearing regarding the possibility of reconciliation,” and that this was required before the matter could be transferred from the “Court of Conciliation and back to the Domestic Relations Court. ’ ’

Around this time, 30 days having elapsed since the pretrial proceedings, the petitioner filed a notice of motion to restore her action to the pretrial calendar and to set it for trial. Upon hearing the motion, and the aforementioned facts having been elicited, the court announced that the action would not be restored until petitioner reported for an interview as directed. Petitioner thereafter informed the domestic relations commissioner that she would appear in the company of her counsel. She was advised by the commissioner that conciliation interviews were conducted privately with the parties, and that their attorneys were excluded. Subsequently, and apparently in the absence of further developments, the court entered its order denying the petitioner’s motion to restore the divorce action to the pretrial calendar. Prom this has resulted the petition for a writ of mandamus.

The petitioner contends that the court’s disposition of the petition for conciliation was contrary to the provisions of the conciliation court law. (Code Civ. Proc., §§1730-1772.) In her view sections 1766 and 1771 of the law require that a preliminary hearing be held on the petition for conciliation, in which hearing the court must find from facts adduced that the welfare of a minor child may be adversely affected by the dissolution of the marriage and that there appears some possibility of reconciliation. She contends that without this hearing and consequent finding the court has no jurisdiction to refer the matter for conciliation.