MEMORANDUM DECISION AND ORDER FOR JUDGMENT

As indicated by separate Memorandum Decision filed herein, D.C., 514 F.Supp. 991 , the defendant is not entitled to a de novo determination of the issues raised by the objections to the magistrate’s recommendations which were not timely filed. However, in view of the importance of the questions raised in this case, and the potential for the same type of issues recurring in this district, the court has taken special pains to determine whether or not the magistrate’s recommendations comport with the applicable law.

At the outset, it should be noted that the defendant’s contentions regarding the applicability of 42 U.S.C. § 416 (h)(2XA) is determinative in this action are correct. That section reads as follows:

Clearly, then, the only choice of law applicable to the determination of plaintiff’s entitlement to benefits available to the court is the law of the State of California. There is no evidence in this case which the court could find which points to the father’s domicile in a state other than California at the time of his death; indeed, even the plaintiff’s recitation of fact leads unerringly to that conclusion.

However, having determined that the law of California, as interpreted by its courts, is the applicable law in this case does not require the result that defendant originally urged upon the magistrate and later upon this court. In fact, quite the contrary is true.

California Civil Code § 230, in effect at the time of the death of the plaintiff’s father, provides as follows:

A succession of California cases in the California courts taken together, clearly establish that under California law Corinna was legitimated under this section, and hence is entitled to summary judgment in the matter.

The first case of importance is Estate of Lund, 26 Cal.2d 472 , 159 P.2d 643 . Lund held that the acts necessary to effect legitimation under the aforesaid § 230, may be performed in states outside of California. The court in Lund based its decision squarely on the fact that once the status of parent and legitimated child had been established by the extra-territorial activities of the illegitimate father and upon his establishing domicile in California, that status “became subject to the jurisdiction of this state for all purposes connected with the administration of its laws”. (Estate of Lund, supra, at p. 493, 159 P.2d 643 .)

Still unresolved by the Lund case was the additional question as to whether or not all the various acts required by § 230 to effect a legitimation must be performed, or is it necessary only that those which the illegitimate father can perform, are required? That question was conclusively answered in Darwin v. Ganger, (1950) 174 Cal.App.2d 63 , 344 P.2d 353 . In that case, the court noted, at page 72, 344 P.2d 353 , that:

Darwin seems to suggest, however, that if the illegitimate father later married, regardless of what other indicia of legitimation he bestows upon the child, they will not be sufficient unless he brings the child into his home with the consent of his subsequently acquired wife. If that were still the law of California, of course, the court’s decision in this case would have to be for the defendant. It is not.

In Lavell v. Adoption Institute, 185 Cal. App.2d 557 , 8 Cal.Rptr. 367 (1960), the court squarely held the cohabitation between the natural father and the natural mother during the pregnancy of the unborn child would satisfy the requirements of § 230 for purposes of subsequent legitimation, although the father and mother did not live together after birth. Commenting upon this state of affairs, the Lavell court noted, at page 561, 8 Cal.Rptr. 367 :

The court is not unmindful of the fact that apparently Jesse did marry after his return to California which terminated the cohabitation with Corinna’s mother. However, under the holding in Lavell, supra, to require Jesse to have performed the additional act of taking Corinna into his home which presumably was established in California with his new wife, is contrary to logic and reason. Such a requirement would, in effect, hold, under the reasoning of Lavell , that for some indeterminate period of time before Jesse’s marriage in California, Corinna was legitimate. By the act of marrying, or alternately, by the act of marrying and not bringing Corinna into his home, Corinna somehow again became illegitimate.

In addition to such a proposition defying logic, such a result would fly squarely in the face of the strong California policy in favor of legitimation as contrasted with the common law rule which placed formidable and substantial obstacles in the path of an illegitimate child to achieve legitimation.

. The parties concede that the record is unclear whether Jesse had actually left Arizona before Corinna’s birth, however, this fact is immaterial to the court’s holding.