Richard P. v. Superior Court

Petitioner Richard P. seeks a writ of mandate to compel the superior court to set aside its order overruling a demurrer to a complaint for damages filed against him by real parties in interest Gerald B., Ludelle M. and Donald M. We conclude that the trial court erred in overruling the demurrer and consequently issue a peremptory writ of mandate.

Richard P. and Linda B., then the wife of Gerald B., had an affair while Linda and Gerald were married and cohabiting. During the course of this affair, two children were born to Linda: Amanda, bom August 27, 1983, and Adam, bom October 17, 1984. On October 2, 1985, Linda filed a petition for legal separation in which she alleged that the children were the issue of her marriage to Gerald.

Richard filed a complaint to establish his paternity of Amanda and Adam on March 24, 1986. His action was consolidated with Linda and Gerald’s dissolution action in July 1986. Gerald filed an answer to that complaint denying that Richard was the father of the children and alleging that the children were born to his wife while she was cohabiting with him and that he was not impotent or sterile during the period the children were conceived. On…