Hand v. Superior Court

Citations: 134 Cal. App. 3d 436; 184 Cal. Rptr. 588; 1982 Cal. App. LEXIS 1784Docket: Civ. 21224

Court: California Court of Appeal; July 29, 1982; California; State Appellate Court

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In the case of Harold E. Hand, Jr. v. The Superior Court of San Joaquin County, the Court of Appeals of California addressed whether a spouse of a plaintiff in a personal injury lawsuit can be deposed based on her community property interest in potential damages. The petitioner, Dr. Hand, sought to depose Gerry L. Boles' wife, but Boles' attorney invoked the spousal privilege under Evidence Code sections 970 and 971, arguing she should not be compelled to testify. The court denied Hand's motion to compel the deposition, upholding the spousal privilege.

Hand countered that an exception to this privilege exists under Evidence Code section 973, subdivision (b), which states that a civil proceeding brought for the immediate benefit of a spouse allows for the deposition. However, the court clarified that the spousal privilege does not come into play until the spouse is properly noticed for deposition and asserts the privilege herself; the husband cannot claim it for her. The court referenced Code of Civil Procedure section 2019, subdivision (a)(4), which allows notice of deposition for someone who benefits immediately from the action.

The court concluded that Boles' personal injury action does indeed serve the immediate benefit of his wife, as established in previous case law, specifically citing Waters v. Superior Court, which defined "immediate benefit" as having an immediate right to the recovery amount. Thus, the wife has a community property interest in any damages awarded, making her subject to deposition under the relevant legal provisions.

In Rothschild v. Superior Court, the court determined that a wife is considered a beneficiary in her husband's personal injury case because any recovery for injuries sustained during marriage is classified as community property. The court upheld that the wife could exercise a privilege under former Code of Civil Procedure 1881, with no exceptions for community interest cases. Changes in the law in 1965 established that personal injury damages would become separate property, a status that was reversed in 1968 following a California Law Revision Commission recommendation, which stipulated that personal injury damages obtained during marriage (excluding interspousal actions) would generally be community property, while damages received after separation or dissolution would be separate property. Upon separation, community property personal injury damages must be assigned to the injured spouse unless otherwise determined by the court, while interspousal recoveries remain the separate property of the injured spouse. The law clarifies that damages from causes of action arising during marriage are community property, and any unliquidated claims are also included. The noninjured spouse retains an interest in these damages until a dissolution or separation occurs, at which point the determination of benefit to the noninjured spouse relates to the marriage's status.

When spousal testimony is requested while the marriage remains intact, unliquidated claims for community property personal injury damages are considered community property, granting the noninjured spouse a present interest and entitlement to a share of any recovered proceeds. This claim serves the "immediate benefit" of the noninjured spouse, as referenced in Rothschild v. Superior Court. As a result, the noninjured spouse may be deposed upon notice by the plaintiff spouse and cannot invoke spousal privilege under Evidence Code section 973, subdivision (b). A peremptory writ of mandate will compel the trial court to reverse its denial of the petitioner's request for a subpoena to ensure the attendance of the noninjured spouse at deposition. The order to show cause is discharged. 

Additional notes clarify the applicability of spousal privilege under Evidence Code sections 970 and 971, which generally protect spouses from being compelled to testify against each other. However, section 973(b) clarifies that no privilege exists in civil actions brought for the immediate benefit of a spouse. The commentary on section 973(b) emphasizes that married individuals cannot exploit their marital status to avoid testifying, and highlights that damages awarded for personal injuries are considered separate property under Civil Code section 163.5.

The provision outlined by the commission clarifies that while earnings from personal services are typically considered community property, personal injury damages for lost earnings are classified as separate property under Civil Code Section 163.5. This classification prevents such damages from being divided during divorce or separate maintenance proceedings, which can result in perceived unfairness, especially when a significant portion of the damages compensates for lost earnings during the marriage. The commission acknowledges that reclassifying these damages as community property could lead to complications, allowing courts to divide awards that include future lost earnings, thus creating potential injustice. 

To address these concerns, the commission proposes a special provision for the treatment of personal injury damages in divorce cases, recommending that the injured spouse retain all such damages unless a court determines that a division is warranted based on the specifics of the case. This decision should be made independently of which spouse initiates the divorce or separation. The proposed statute would not prescribe rigid rules for division but would require courts to consider various factors, including the parties' economic circumstances, the time since the damages were awarded, and other relevant details.