Frey v. Superior Court

California Court of Appeal Sep 23, 1965 No. Civ. 555Published

Before: Conley

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Holding. The court held that the marital privilege does not exempt a spouse from answering interrogatories regarding their own personal liability in a civil action, as the questions did not require testimony for or against the other spouse.

Issues

Whether the marital privilege under Code of Civil Procedure section 1881, subdivision 1, permits a spouse to refuse to answer interrogatories regarding their own personal liability in a civil action.

Disposition. denied

Quotations verified verbatim against the opinion

“Neither can refuse to answer questions relating to his or her own personal liability by any claim of the marital privilege.”

“Neither party is asked to answer concerning any action of his or her spouse.”

[202]

CONLEY, P. J.

Caminol Company sued Kenneth D. Frey, Josephine D. Frey (his wife), and Walter G-. Frey (his father), on written guarantees to pay the indebtedness of Kenneth D. Frey to plaintiff, which action in the Superior Court of Bungs County is numbered 17453. The continuing guarantees involved in that suit all run in favor of Caminol Company, and were allegedly executed on the following dates and by the following persons for the amounts specified:

Walter G. Frey, November 16, 1961, $10,000 (exhibit A attached to the present petition).

Walter 6. Frey, Kenneth D. Frey, and Josephine D. Frey, July 12, 1962, $20,000 (exhibit B attached to the petition).

Walter G. Frey, Kenneth D. Frey, and Josephine D. Frey, June 7, 1963, $40,000 (exhibit C attached to the petition).

Kenneth D. Frey and Josephine D. Frey, October 24, 1963, $60,000 (exhibit D attached to the petition).

The prayer in the complaint asks for a judgment of $47,483.72, the balance alleged to be due from Kenneth D. Frey and covered by the continuing guarantees above mentioned.

The petition for prohibition alleges the pendency of the above-mentioned action against members of the Frey family; that Kenneth D. Frey and Josephine Frey at all times have been, and now are, husband and wife; that on or about June 4, 1965, Caminol Company propounded certain interrogatories to the parties litigant, Kenneth D. Frey and Josephine D. Frey, and also to Walter G. Frey; that on or about June 28, 1965, the petitioners filed their written answers to the interrogatories stating their refusal to reply on the ground of the marital relationship between them and the existence of the privilege provided by section 1881, subdivision 1 of the Code of Civil Procedure; that on or about July 1, 1965, Caminol Company filed a motion in the Superior Court of Kings County for an order compelling petitioners to answer the respective interrogatories; that the respondent court “notwithstanding the objections of petitioners herein based on the marital privilege, granted the motion to compel petitioners to answer the interrogatories” with the proviso that the petitioners need not answer as to a certain phrase contained in Interrogatories Nos. 2, 4, 6, 8, 10, 12 and 14, which by stipulation consisted of conclusionary language. Petitioners further allege that on or about July 21, 1965, the respondent court made orders requiring each of the petitioners to answer the interrogatories addressed to him on or before mid-August 1965, except as to the portions of the interrogatories above

Frey v. Superior Court

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CONLEY, P. J.

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