Judge Kerry Bensinger, Case Number: 20STCV20814, Date: 2023-10-17 Tentative Ruling

MOTION TO QUASH DEPOSITION SUBPOENA AND FOR PROTECTIVE ORDER PERTAINING TO DEPOSITION OF JOSHUA BROOKSHIRE

On June 2, 2020, Plaintiff, Maria Rosas, filed a complaint against Defendants, Lyft, Inc., and Hamdi Sameer Abu-Mayyaleh (“Abu-Mayyaleh”), arising from a motor vehicle collision between Plaintiff and Lyft driver Abu-Mayyaleh. As a result of the incident, Plaintiff asserts a claim for loss of earnings. Plaintiff further alleges her injuries from the accident caused her to rely on others to care for her young daughter.

On May 2, 2023, Plaintiff testified at her deposition that the incident caused a rupture in her relationship with her husband, Joshua Brookshire, and their separation. Based on that testimony, on June 29, 2023, Abu Mayyaleh served a deposition notice and deposition subpoena for Joshua Brookshire. Plaintiff took issue with the deposition notice and subpoena. Thereafter, the parties met and conferred but could not resolve the issues.

On July 13, 2023, Plaintiff filed this motion to quash the deposition notice and deposition subpoena based on spousal privilege. Alternatively, Plaintiff seeks a protective order and appointment of a discovery referee. Plaintiff does not seek sanctions.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

The principal issue to be decided is whether spousal privilege may broadly prevent the deposition of Plaintiff’s spouse, Joshua Brookshire.

“There are three separate spousal privileges. If one assumes A and B are spouses, the privileges may be described as follows. First, each has a right not to be a witness against the other. This privilege belongs only to the witness. Second, if A is a party to a litigation, B has a right not to be called as a witness by the adverse party in the litigation. Third, A and B each have a right to prevent the disclosure of any confidential communication between them during their marriage.” (§ 5:37. Three spousal privileges, Simons California Evidence Manual § 5:37.)

With respect to the first two types of spousal privilege, the witness spouse has a privilege not to testify against the other spouse. (Evidence Code § 970.) “This privilege is set forth is Evidence Code § 971 and is designed to avoid the prejudice that would result if, for example, an adverse party could call a spouse to the stand and force the spouse to exercise the privilege in front of the jury. (Evidence Code § 971, Comment.) Both the privilege not to testify and the privilege not to be called as a witness belong only to the witness spouse. (Hand v. Superior Court, 134 Cal. App. 3d 436, 438, 184 Cal. Rptr. 588 (3d Dist. 1982).)” (§ 5:39. First two spousal privileges—Privilege of married person whose spouse is a party not to be called as witness by adverse party, Simons California Evidence Manual § 5:39.) Pursuant to Evidence Code section 971, the witness has the privilege not to be called by the adverse party “without the prior express consent of the spouse having the privilege under this section…”

Certain exceptions apply. As relevant here, “Where a married person brings or defends a lawsuit for the immediate benefit of his or her spouse, the spouse may not claim either of the first two spousal privileges. (Evidence Code § 973(b).) Since unliquidated claims for personal injury damages are community property (Family Code § 2603; In re Marriage of Devlin, 138 Cal. App. 3d 804, 807, 189 Cal. Rptr. 1 (3d Dist. 1982)), in effect, the first two spousal privileges cannot be relied on by a witness whose spouse has filed a personal injury claim. If the marriage is intact when spousal testimony is sought, it has been held that the unliquidated damages are for the “immediate benefit” of the non-injured spouse and the exception contained in § 973(b) applies. (Hand v. Superior Court, 134 Cal. App. 3d 436, 442, 184 Cal. Rptr. 588 (3d Dist. 1982); but see Duggan v. Superior Court, 127 Cal. App. 3d 267, 270-272, 179 Cal. Rptr. 410 (1st Dist. 1981).)” (§ 5:40. First two spousal privileges—Waiver of spousal privileges, Simons California Evidence Manual § 5:40.)

The third type of spousal privilege involves communications. “A spouse, whether or not a party, has a privilege during the marital or domestic partnership and afterwards to refuse to disclose and to prevent another from disclosing a communication made in confidence with the other spouse while they were spouses. (Evidence Code § 980.) Communications in the course of the marital are presumed confidential. (Evidence Code § 917.) If the facts show, however, that the communication was not intended to be confidential, the communication was not made in confidence.”[1] (§ 5:42. Third spousal privilege—Confidential marital communications, Simons California Evidence Manual § 5:42.) In the case of the privilege for confidential marital communications, a waiver of the right of one spouse to claim the privilege does not affect the right of the other spouse to claim the privilege. (Evid. Code, § 912, subd. (b).) In other words, either spouse may claim the privilege.

Plaintiff and Mr. Brookshire are still married.[2] Plaintiff asserts claims for past and future loss of wages, financial assistance to care for her young daughter, and damages for the rupture of her marriage. Because of the nature of the claims brought, Evidence Code section 973, subdivision (b) applies, and Mr. Brookshire cannot assert the spousal privileges afforded by sections 970 (privilege not to testify against a spouse) or section 971 (privilege not to be called as a witness).

Whether the questions asked by Abu-Mayyaleh will invade the spousal communication privilege (§ 980) is yet to be seen. Given the uncertainty of the questions to be asked and the importance of the privilege, the Court finds this particular issue presents exceptional circumstances requiring a discovery referee. (Code Civ. Proc., § 639, subd. (d)(2).) Accordingly, the Court grants the request for the appointment of a discovery referee.

Plaintiff’s request for a discovery referee is granted. The Court orders the parties to meet and confer on the appointment of a discovery referee. If the parties cannot agree on a referee, Plaintiff is to submit a list prepared by both parties containing five individuals from which the Court will appoint a referee. The referee shall have the power to rule on any and all objections, including those involving the communications privilege and foundation.

The parties are to share equally in the costs of the discovery referee in conducting the deposition of nonparty Joshua Brookshire.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Evidence Code section 980 sets forth the confidential communications privilege. “[A] spouse ..., whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses. (Evid. Code, § 980.)

[2] Although reference was made to the fact Plaintiff and Mr. Brooks separated, the evidence before the court is that they are still married and have not filed for divorce.