In Re Marriage of Pinto

Opinion

THE COURT.

Husband appeals from that portion of an interlocutory judgment of dissolution awarding wife one-half of the proceeds of a claim

[88]

for damages for personal injuries suffered by him after the parties had separated and granting wife a hen upon one-half of the proceeds of any recovery made by him in his action for damages pending in the superior court.

This appeal involves a single issue—whether a “cause of action” for damages for personal injuries suffered by a spouse constitutes “community property personal injury damages” within the meaning of subdivision (c) of section 4800 of the Civil Code of the Family Law Act, when the spouse has received no money or other property either in satisfaction of a judgment for damages or pursuant to an, agreement for the settlement or compromise of his claim for damages at the time the interlocutory judgment of dissolution is entered.

Husband contends that the provisions of sections 4800 and 5126 of the Civil Code, construed together, preclude the division of a claim or cause of action for personal injury damages unless money or other property has actually been received.

Prior to the enactment of the Family Law Act, there was a division of opinion on the question of whether a “cause of action” for personal injury damages was subject to division as community property. (See

Washington

v.

Washington

(1956) 47 Cal.2d 249 [302 P.2d 569];

Zaragosa

v.

Craven

(1949) 33 Cal.2d 315 [202 P.2d 73, 6 A.L.R.2d 461];

Franklin v. Franklin

(1945) 67 Cal.App.2d 717 [155 P.2d 637].) Legal writers anticipated that questions would arise under the new act. (See California Marital Termination Settlements (Cont.Ed.Bar 1971) p. 61, §4.9; Attorney’s Guide to Family Law Act Practice (Cont.Ed.Bar (2d ed.) 1972) p. 248, § 5.3.)