2012-00117772-CU-WT

Daniel Deluca vs. CVS Pharmacy a Rhode Island Corporation

Nature of Proceeding: Motion to Compel – Other – Civil Law and Motion

Filed By:

Defendants CVS Pharmacy, Inc.’s and Longs Drug Store California, LLC’s motion to
compel the deposition testimony of Charlene DeLuca is granted. Plaintiff’s motion for
protective order is denied.

Defendants took the deposition of Charlene DeLuca, Plaintiff’s wife on October 18,
2013. At the deposition, Plaintiff’s counsel, who also represents Mrs. DeLuca,
instructed her not to answer a number of questions based on the marital privileges in
Evidence Code §§ 970 and 971 and terminated the deposition.

Defendants now seek an order compelling Mrs. DeLuca to appear and answer
questions regarding communications she had with third parties from regarding marital
problems from January 2010 through present; communications she had with third
parties regarding Plaintiff’s February 2010 workers’ compensation injury, attempts to
return to work and reasons he could not work; communications with third parties
regarding facts in Plaintiff’s complaint; communications with third parties regarding
Plaintiff’s alleged emotional distress; communications with third parties regarding the
couple’s financial condition from 2009 to present; communications with third parties
regarding Defendants’ attempts to contact Plaintiff regarding his leave of absence;
communications with third parties regarding the reasons Plaintiff chased out his 401
(k); and communication with third parties regarding Plaintiff’s job search efforts.

Plaintiff has also filed a motion for protective order to preclude Defendants from
inquiring into matters protected by the marital privileges in Evidence Code §§ 970, 971
which was advanced from 11/15 to be heard in connection with Defendants’ motion.
The Court discusses both motions in the instant ruling as one disposes of the other. If
Defendants’ motion is granted, Plaintiff’s motion must necessarily be denied, and vice
versa.

Evidence Code § 970 provides a privilege not to testify against one’s spouse and §
971 provides a privilege not to be called as a witness by an adverse party in a
proceeding in which one’s spouse is a party. Evidence Code § 973(a) provides that
“[u]nless erroneously compelled to do so, a married person who testifies against his
[or her] spouse in any proceeding does not have a privilege under this article in the
proceeding in which such testimony is given.” Defendant argues that Mrs. DeLuca
voluntarily appeared for her deposition and waived the marital privileges. Plaintiff
counters that she was compelled to attend the deposition as a result of Defendants’
deposition notice and CCP § 2025.280(a) which provides that such notice is “effective
to require any deponent who is a party to the action or an officer, director, managing
agent, or employee of a party to attend and testify…” Mrs. DeLuca is an employee of
Defendant, and a party to the instant action. Here, the Court agrees that the marital
privileges in Evidence Code §§ 970 and 971 have been waived.

While Plaintiff is correct that given Mrs. DeLuca’s status as Defendant’s employee, the
deposition notice was effective to require her attendance at a deposition pursuant to
CCP § 2025.280(a), neither Plaintiff nor Mrs. DeLuca objected to the deposition notice,
for example, by filing a motion to quash the notice on the basis that the marital
privileges under Evidence Code §§ 970 or 971 were being invoked. Instead, Mrs.
DeLuca appeared for the deposition and began answering questions. Nothing about
these circumstances indicates that Mrs. DeLuca was “erroneously compelled” to
testify. As a result, the Court concludes that Mrs. Deluca waived both the privilege not
to be called as a witness and not to testify against Plaintiff. (Evid. Code § 973(a).)

However, even if the Court were incorrect regarding waiver under Evidence Code §
973(a), Evidence Code § 973(b) is dispositive. “There is no privilege under this article
in a civil proceeding brought or defended by a married person for the immediate
benefit of his [or her] spouse or of himself [or herself] and his [or her] spouse.” (Evid.
Code § 973(b).) As seen from case law from the Third District Court of Appeal,
damages from personal injury causes of action arising during marriage are community
property and “[i]f, as here, at the time 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
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‘immediate benefit.’” (Hand v. Superior Court (1982) 134 Cal.App.4 436, 442.) The
noninjured spouse “may not interpose the spousal privilege.” (Id.)

Here, the Court sees no meaningful distinction between a personal injury action and
the FEHA related causes of action asserted in the instant complaint. Indeed, Plaintiff
seeks lost wages, alleges that he suffered humiliation, anxiety, distress, etc., and
seeks special and general damages. Wages are community property. (In re Marriage
of Wilson (1974) 10 Cal.3d 851, 864.) Further, emotional distress damages could be
recovered in connection with a personal injury lawsuit and the Court sees no basis for
any conclusion other than a finding that such damages are community property in
which Mrs. Deluca has a present interest. Thus, the Court concludes that the instant
lawsuit is for the “immediate benefit” of Mrs., DeLuca such that the marital privileges in
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Evidence Code §§ 970 and 971 do not apply. (Hand, supra, 134 Cal.App.4 at 442.)

Plaintiff’s citation to Sabado v. Moraga (1987) 189 Cal.App.3d 1, to argue that there is
a split within the Third District regarding the application of Hand v. Superior Court is
unpersuasive. Indeed, that case did not, as Plaintiff contends, hold that the marital
privileges in Evidence Code §§ 970 and 971 could be asserted by one spouse in
another spouse’s Civil Rights/defamation action. Indeed, the Sabado Court explicitly
stated that “[w]e do not here rule on the validity or the invalidity of the claimed privilege
because that problem is not before us.” (Id. at 12.) Rather the Sabado Court dealt
with a motion for sanctions and whether the invocation of the privileges in a Civil
Rights/defamation action was totally without merit. In resolving that question, the
Sabado Court cited Hand to discuss how, given Hand did not involve a Civil Rights
action, Hand did not involve the “precise” question of whether the marital privileges
could be successfully invoked in a Civil Rights action and there was no definitive
answer in the cases at that time. (Id. 13-15.) In light of those circumstances, the
Sabado Court found that “[r]egardless of what an appellate tribunal may eventually
hold in that respect, we find that [the sanctioned attorney’s] urging that the privilege did
apply to the spouse of his client cannot be said to have been totally without merit.” (Id.
at 14.) Thus, Sabado does not help Plaintiff because at most it simply said that it was
not totally without merit to argue that the spousal privileges might apply in a Civil
Rights Action. In no way did Sabado hold that the privilege clearly applied in a Civil
Rights Action, much less a FEHA action in which the spouse seeks lost wages.

Further, the case of Duggan v. Superior Court (1981) 127 Cal.App.3d 267 does not
help Plaintiff as that case involved an action by to dissolve a partnership. There the
spouse of the party seeking to dissolve the partnership was able to invoke the marital
privileges because the spouse had no present, immediate, or direct interest in any
partnership assets which the party might recover in the action and thus the lawsuit was
not brought for the “immediate benefit” of the spouse under Evidence Code § 973(b).
This is distinguishable from the personal injury situation in Hand in which the Third
District found the spouse had a direct and immediate interest in any recovery. As a result, the Court concludes that whether Mrs. DeLuca waived the marital
privileges pursuant to Evidence Code § 973(a) by appearing for her deposition, there
is no privilege under either Evidence Code § 970 or 971 given that this action is
brought for the “immediate benefit” of Mrs. DeLuca. (Evid. Code § 973(b).)

However, the above does not foreclose Mrs. DeLuca from invoking the privilege to
refuse to disclose confidential marital communications under Evidence Code § 980
where appropriate at a further deposition. Here, the Court notes that this privilege
does not apply to questions regarding actions or communications not intended to
remain confidential, e.g., those with third parties. Thus, Plaintiff’s counsel should not
interpose any objections based upon § 980 regarding actions or communications with
third parties.

In sum, Defendant’s motion to compel is granted and Plaintiff’s motion for protective
order is denied, as articulated in this ruling. In addition, Plaintiff’s request for sanctions
is denied as his motion was denied. Defendants’ request for sanction in their
opposition to the motion for protective order is denied. The Court finds Plaintiff’s
motion was substantially justified.

Given the approaching trial date of December 2, Mrs. DeLuca’s continued deposition
shall take place no later than November 21, 2013, or as otherwise agreed by and
between counsel. Counsel shall meet and confer on the time and location.

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.