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Taylor v. Mr. T.12/22/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Vanessa Taylor (petitioner) appeals an order of dismissal of her petition to establish a parental relationship with a child. (Fam. Code, ยงยง 7550 et seq., 7630.) This petition was filed against respondent Mr. T (respondent), as the alleged father of 14-year-old Alex T. The trial court granted respondent's application to dismiss the petition and to quash a subpoena for medical records, finding that there had been a 1990 paternity test taken in Illinois proceedings that ruled out Mr. T as the father of Alex, and that the two voluntary dismissals of the Illinois proceedings were binding on petitioner, as was a 1998 voluntary dismissal by the San Diego County District Attorney's office of a related child support action.
Petitioner, in pro. per., appeals, contending the trial court erred in dismissing the petition, as there was no binding Illinois or California adjudication of paternity, and the voluntary dismissals of prior petitions were insufficient to preclude this action. She also challenges the accuracy and validity of the blood test taken in 1990.
On the first issue, the record shows that respondent has not carried his burden of pleading and proving a prior binding final judgment on the merits as a defense to this petition. We reverse the order of dismissal in part on the res judicata arguments with directions to conduct further appropriate proceedings on paternity testing. However, we affirm the order in part insofar as it quashes the subpoena duces tecum for lack of an existing conclusive determination of paternity.
FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 1988, Alex was born in Chicago , Illinois . Petitioner was a single mother.
In 1989, petitioner filed a paternity action against Mr. T in Illinois . (No. 89 D 79409.)
In 1990, the Illinois court where the paternity action was pending ordered petitioner, respondent, and Alex to submit to DNA blood testing to determine whether respondent is his father. This testing was carried out on August 1, 1990, with the laboratory concluding that it was not possible for respondent to be the biological father of Alex.
In October 1990, respondent filed a memorandum in opposition to petitioner's motion to retest the parties for paternity. The record does not include a ruling on this motion.
On March 16, 1992, petitioner and respondent entered into an agreed order in the 1989 Illinois paternity case dismissing the paternity action without prejudice. The agreed order was approved by the court. It recited that it was entered into against the advice of petitioner's attorney.
On May 18, 1992, the state's attorney of Cook County, Illinois filed a complaint to determine the existence of the father and child relationship as to respondent and Alex. (No. 92 D 56936.)
On June 29, 1992, the state's attorney made a motion to voluntarily dismiss the case. The motion was granted by the Illinois court, without specifying whether it was with or without prejudice, but the order stated that the venue of this cause was transferred to another branch and a hearing date was continued until September 18, 1992. Apparently there was another hearing pending concerning petitioner's other son, Nathaniel (born in 1990).
On January 21, 1993, the Illinois court dismissed a pending complaint to determin
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