Case Number: BC534881 Hearing Date: April 15, 2014 Dept: 34

(1) Plaintiff Toni O’Neal’s motion to schedule depositions and require the attendance of defendant Robert Brown, and for a protective order against the taking of the deposition of plaintiff’s spouse;

(2) Defendant University of West Los Angeles’s motion to compel further deposition of plaintiff’s husband, Eric O’Neal

Plaintiff’s request for scheduling of the depositions is DENIED.

Defendant’s motion to compel Eric O’Neal’s deposition is DENIED, and plaintiff’s motion for a protective order against the taking of Eric O’Neal’s deposition is GRANTED. The Court declines to impose sanctions.

BACKGROUND:

Plaintiff commenced this action on 1/30/14 against defendants for: (1) retaliation under Labor Code section 1102.5; (2) wrongful termination in violation of public policy; and (3) IIED. Plaintiff alleges she was demoted and ultimately terminated for opposing a plan to promote and operate a program that had been denied approval.

ANALYSIS:

Motion to Schedule Depositions

Plaintiff requests that this Court set a deposition schedule. On 2/24/14, plaintiff noticed Brown’s deposition for 4/7/14. (Pl. Exh. 3.) On 2/27/14, defendant noticed plaintiff’s deposition for 4/4/14 and issued a subpoena to take the deposition of plaintiff’s husband on 3/10/14. (See Pl. Exhs. 19, 32.) On 3/4/14, plaintiff served an amended notice of deposition, setting Brown’s deposition for 3/14/14. (See Pl. Exh. 5.)

“Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020(a).) A court may, on a motion showing good cause, establish the sequence of discovery “for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020(b).)

Plaintiff argues there is good cause because this Court’s local rule establishes deposition priority. Local Rule 3.26 provides: “The guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” (Super. Ct. L.A. County, Local Rules, rule 3.26.) Appendix 3.A provides: “When a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.” (Id., Appendix 3.A, § (e)(3) [emphasis added].) The language of this rule shows that it is advisory, not mandatory. Therefore, the rule does not provide an exception to Code of Civil Procedure section 2019.020(a), which provides that the fact that one party is conducting discovery shall not delay another party’s discovery. Plaintiff fails to otherwise show that there is good cause for the Court to establish the sequence and/or timing of the depositions.

Plaintiff’s request for scheduling of depositions is DENIED.

Motions Regarding the Deposition of Eric O’Neal

The two motions before the Court are flip sides of each other: Plaintiff moves for a protective order against the taking of Eric O’Neal’s (“Eric”) deposition; Defendant moves to compel Eric to attend and answer questions at his deposition.

Preliminary Skirmishes – Procedurally, Defendant could take Eric’s Deposition

The subpoena to Eric was properly served by personal service. (See Def. Exh. C.) There is no showing that Eric was represented by plaintiff’s counsel at that time. (See Stormer Decl., ¶ 3.) Plaintiff was served with notice of this subpoena. (See Def. Exh. D.)

There appears to be no requirement for a moving party to establish good cause for seeking the deposition in a motion to compel a nonparty to comply with a deposition subpoena. (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 8:609.3.)

The Court rejects plaintiff’s argument that defendant cannot compel Eric’s deposition pursuant to Code of Civil Procedure section 2025.610(a), which prohibits the taking of subsequent depositions. The evidence shows that no substantive deposition of Eric has been taken because plaintiff’s counsel immediately objected based on the privilege and Eric and plaintiff’s counsel left the deposition before any question was answered. (See Def. Exh. F.)

The Real Issue – Substantively, Eric is Protected by the Spousal Privilege

The real issue underlying this dispute is whether the spousal privilege applies to Eric. “Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.” (Evid. Code, § 971.) However, “[t]here is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse.” (Evid. Code, § 973(b).)

“Cases construing § 973(b) cite to identical authority in concluding ‘immediate benefit’ means (i) ‘an immediate right to the amount recovered or some portion of it as soon as it was recovered by the nominal plaintiff’; or (ii) in an action defended for the immediate benefit of a person, ‘the liability must be immediate and direct. . . .” (Weil & Brown, ¶ 8:2342 [quoting Waters v. Sup.Ct. (Hughes Tool Co.) (1962) 58 Cal.2d 885, 897].) There is a split of authority as to how the “immediate benefit” test should be applied. (Weil & Brown, ¶ 8:2342.) At least one court has taken the view that an “immediate benefit” is present “where the proceeds of a lawsuit brought by a married person would be community property; or, conversely, where the spouses’ community property is at risk in a lawsuit brought against a married person. . . .” (Id., ¶¶ 8:2343-8:2344 [citing Hand v. Superior Court (1982) 134 Cal.App.3d 436].) Other authority is more strict, finding that the “immediate benefit” waiver occurs “only if the married person would obtain a benefit from his or her spouse’s litigation because of a right which the married person holds directly and not simply because of a potential community property interest in any recovery the spouse might obtain.” (Id., ¶ 8:2345 [citing Duggan v. Superior Court (1981) 127 Cal.App.3d 267] [italics in original].)

Plaintiff relies on Duggan v. Superior Court (1981) 127 Cal.App.3d 267 in support of her motion. In Duggan, the plaintiff in an action for dissolution and accounting of partnership assets and for fraud sought to prevent an order from the trial court compelling the deposition of the plaintiff’s wife, arguing that the order violated the marital privilege. (Id. at p. 269.) The issue was whether the plaintiff’s action to establish an ownership interest in parcels of real property acquired on behalf of the partnership and held by the defendants was prosecuted for the “immediate benefit” of the plaintiff’s spouse. (Ibid.) In compelling the deposition, the trial court had found that section 973(b) applied. (Id. at p. 970.)

On appeal, the court in Duggan addressed the issue by looking to the potential community property interest in any recovery that could be obtained by the plaintiff. (Duggan, 127 Cal.App.3d at p. 270.) The court noted that the plaintiff’s wife “would benefit from any recovery [plaintiff] might obtain, not because of any right which she has against real parties directly but because of community property rights in relation to [plaintiff].” (Id. at p. 271.) The court quoted Waters, which found that “ ‘in an action defended for the immediate benefit of a person, the liability must be immediate and direct.’ ” (Ibid.) The court held that the plaintiff’s wife did not have a “present, immediate, or direct interest in the property constituting the partnership assets.” (Id. at p. 272.) “Any claim to a community property interest in the partnership would be against petitioner rather than real parties, and under the showing made here, the action is not being prosecuted for the immediate benefit of the person whose deposition is sought.” (Ibid.)

Defendant relies on Hand in support of its argument that Eric cannot assert the privilege. In Hand, the plaintiff sued the defendant for malpractice. (Hand, 134 Cal.App.3d at p. 438.) The court addressed the issue of whether the “immediate benefit” waiver applied to a spouse of a plaintiff in an action for personal injury. (Id. at p. 437.) The court first noted that it was “a procedural step removed from the spousal privilege” because the spouse at issue had not asserted it and, therefore, the question had not yet been tendered. (Id. at p. 438.) Instead, the case concerned former Code of Civil Procedure section 2019(a)(4), which permitted the service of a notice of deposition upon the plaintiff’s attorney for a deposition of a person for whose immediate benefit the action is prosecuted. (Id. at p. 439.) The plaintiff’s attorney refused to produce the plaintiff’s wife, and could do so only if she was not an immediate beneficiary of the action. (Ibid.) However, the court still issued a ruling on whether the wife could assert the spousal privilege. (See id. at p. 442.)

The court in Hand looked to previous case law that found that, in a personal injury action, a spouse was a person for whose immediate benefit the action was prosecuted because “ ‘any recovery for personal injuries to either spouse sustained during coverture as well as the chose in action to enforce recovery is community property.’ [Citation.]” (Hand, 134 Cal.App.3d at p. 439.) At the time of this prior case, there was no exception to the privilege for an action involving community interests, and by the time section 973(b) was enacted a personal injury claim and resulting damages had become separate property. (Id. at p. 440.) Thereafter, the separate property status of personal injury damages was repealed. (Ibid.) The court then discussed the Civil Code sections at the time, noting:

“Interspousal personal injury recoveries are the separate property of the injured spouse. [Citation.] In general, all other property acquired during the marriage by a spouse domiciled in the state is community property. [Citation]. Personal injury damages received or to be received from a cause of action arising after dissolution or separation are the separate property of the injured spouse. [Citation.] By implication, damages received or to be received from a cause of action arising during marriage are community property. Upon dissolution or separation such damages, entitled “community property personal injury damages,” are required to be “assigned” to the injured spouse unless “commingled with other community property” or divided by the court. (Italics added.) [Citation.] The amendments to the latter two sections (Stats. 1979, ch. 638, § 1, p. 1970; § 3, p. 1971), presumably made in response to In re Marriage of Pinto (1972) 28 Cal.App.3d 86 [104 P.2d 371], make clear that damages “to be received” from a “cause of action” arising during marriage, i.e., unliquidated claims, are community property. [Citation.] Although such claims and recoveries are subject to assignment to the injured spouse upon dissolution or separation, in the absence of that contingency the noninjured spouse retains a present interest.

“Accordingly, the determination whether community property personal injury damages are for the “immediate benefit” of the noninjured spouse turns upon the status of the marriage. If, as here, at the time that spousal testimony is sought, the marriage is intact, unliquidated claims for community property personal injury damages are community property in which the noninjured spouse has a present interest and entitlement to a share of the proceeds when recovered. They are for his or her “immediate benefit.” [Citaiton.] Consequently, the noninjured spouse is subject to deposition by notice upon the plaintiff spouse [citation] and may not interpose the spousal privilege. [Citation.]” (Hand, 134 Cal.App.3d at pp. 441-442.)

Interestingly, although the Hand court indicates that the issue of the spousal privilege is not actually before it (Id., at p. 438), the court nonetheless proceeded to issue a ruling on this issue. The Court notes, however, that Hand does not discuss, distinguish, or even mention Duggan, although Duggan had been decided some seven months previously.

Plaintiff also cites to Diepenbrock v. Brown (2012) 208 Cal.App.4th 743. In Diepenbrock, the plaintiff brought a negligence action against the defendant for personal injuries sustained by the plaintiff when the defendant’s car struck her bicycle. (Id. at p. 745.) The plaintiff noticed the deposition of the defendant’s husband pursuant to a subpoena and the husband asserted the marital privilege and refused to answer certain questions. (Id. at pp. 745-746.) The plaintiff filed a motion to compel the husband to answer the questions, and the husband sought a protective order. (Id. at p. 746.) Following a hearing, the trial court granted the husband’s request for a protective order and issued sanctions against the plaintiff and her attorney. (Ibid.)

On appeal, the court agreed that the imposition of sanctions was improper because the law regarding the privilege is unsettled and his argument that the privilege did not apply because the plaintiff was seeking to preserve community property and therefore was acting for the benefit of both spouses was supported by available authority. (Diepenbrock, 208 Cal.App.4th at pp. 747-748.) The court cited Hand and Duggan, and recognized the conflict in authority as to the application of the privilege. (Id. at pp. 748-749.)

The Court finds Duggan to be persuasive. The mere fact that plaintiff’s recovery may constitute community property is not sufficient, by itself, to establish that Eric has a present, immediate, or direct interest in the action. Eric has no claim against defendant, and any claim to such community property would be against plaintiff. Though Hand recognized that this community property interest in recovery for a personal injury action may be sufficient to invoke section 973(b), this decision does not appear to have been widely accepted and, indeed, a conflict of authority has been recognized. (See Weil & Brown, ¶¶ 8:2342-8:2345; Diepenbrock, 208 Cal.App.4th at pp. 747-749.) Further, as Diepenbrock notes, “Even assuming a potential community property interest may trigger an ‘immediate benefit’ waiver [citation to Hand], the matter is further complicated by the fact community property interests are often difficult to ascertain (indeed, the marital property statutes are so frequently amended that it is often difficult to predict the outcome with accuracy).” (Diepenbrock, at pp. 748-749.)

Perhaps more importantly, if the Hand holding were accepted, it would eviscerate the protections of the spousal privilege, at least as regards to civil litigation. Virtually every time a married person is suing or being sued, the outcome of the litigation will affect that person’s community property. If this were enough to eliminate the spousal privilege, the statute would be meaningless.

Plaintiff’s motion for a protective order against the taking of Eric’s deposition is GRANTED; Defendant’s motion to compel Eric’s deposition is DENIED.