Opinion
A102910.
7-17-2003
RUSSELL D. MCNABB, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; CAROL GORDON-MCNABB, Real Party in Interest.
By petition for writ of mandate, Russell McNabb challenges an order of the San Mateo County Superior Court, entered in a family law proceeding, requiring him to submit to a random drug test. We previously stayed the order, and will now issue our peremptory writ.
The parties are familiar with the background of this case, and we need not reiterate it. As relevant here, the underlying proceeding involves a child custody dispute. The superior courts order was entered after its review of the recommendation of a family court services mediator.
We have previously held that there is no authority for court-compelled drug testing in child custody proceedings, and specifically that Family Code section 3011, subdivision (d) does not authorize such testing. (Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 269.)
We notified all parties that we might act by issuing our peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180, 203 Cal. Rptr. 626, 681 P.2d 893.) The petition is unopposed, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241, 970 P.2d 872.)
Therefore, let a peremptory writ of mandate issue, commanding respondent, San Mateo County 3 Superior Court, in McNabb v. McNabb (2003, No. 074518), to vacate its June 10, 2003, order compelling Ronald McNabb to submit to drug testing. The stay previously imposed shall remain in effect until the remittitur issues. Petitioner McNabb shall recover his costs. This opinion is final as to this court immediately. (Cal. Rules of Court, rule 24(d)(2).)
As in Wainwright, supra, this case does not concern "random drug testing of a parent ordered as a condition of a family reunification plan in a dependency proceeding under Welfare and Institutions Code section 300 and following." (Wainwright v. Superior Court, supra, 84 Cal.App.4th at p. 269, fn. 4.)