Rinehart v. First Cupertino Co.

California Court of Appeal Nov 4, 1957 No. Civ. 17399Published

Before: Draper

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Holding. The court held that while the trial court erred in sustaining spousal privilege objections to testimony, the errors were not prejudicial because the appellant was subsequently offered the opportunity to examine the witnesses or otherwise suffered no limitation on cross-examination. Furthermore, the court affirmed the judgment on the basis that the evidence supported the trial court's findings against the appellant's claim of an oral agreement.

Issues

Whether spouses who are defendants in a quiet title action waive the spousal privilege under Code of Civil Procedure section 1881(1) by seeking to establish their own title.
Whether the erroneous exclusion of testimony based on spousal privilege constitutes reversible error when the appellant was later offered the opportunity to examine the witness or was not limited in cross-examination.
Whether the evidence was sufficient to support the trial court's findings regarding the absence of an agreement between the parties.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule is clear that, where affirmative relief is sought by the spouses as joint plaintiffs, the benefit of the code section is waived”

“It follows that, in seeking to establish their own title, even though by way of defense, they sought affirmative relief”

“Having failed to take advantage of this opportunity, appellant cannot now be heard to complain”

DRAPER, J.

Plaintiff sought declaratory relief and decree quieting title, asserting that defendants had agreed to grant to plaintiff a one-fourth interest in real property in return for plaintiff’s services as broker in acquiring the land. Defendants’ answer denied plaintiff’s claims, and asserted title in themselves. Defendants also cross-complained to quiet title. The cross-complaint was dismissed during trial. Defendants had judgment that plaintiff take nothing by his complaint, and that title be quieted in defendants. Plaintiff appeals.

Respondent The First Cupertino Company is a limited partnership consisting of respondent John A. Cussen as general partner and his wife, respondent Barbara Wood Cussen, as limited partner. This partnership acquired the land in question before this action was commenced.

During his rebuttal, appellant called Mrs. Cussen under Code of Civil Procedure, section 2055. After she had given her name and stated that she is the wife of the other individual respondent, counsel for her husband and herself invoked the rule that one spouse cannot be examined for or against the other without the latter’s consent (Code Civ. Proc., §1881, subd. 1), and objected to further testimony by Mrs. Cussen upon that ground. The objection was sustained. Respondents assert that the privilege is waived only when husband and wife join in seeking affirmative relief, and not when they are joined as defendants. They point out that here the cross-complaint had been dismissed before Mrs. Cussen was called. Thus, they say, no affirmative relief was sought, and section 1881, subdivision 1, was properly invoked,

[844]

It is unnecessary to determine, in this case, whether spouses who are joint defendants and who seek no affirmative relief may invoke this privilege. The rule is clear that, where affirmative relief is sought by the spouses as joint plaintiffs, the benefit of the code section is waived

(In re Strand,

123 Cal.App. 170 [11 P.2d 89]). The same rule applies where, as defendants, they claim an interest and seek its determination by judgment

(Hagen

Rinehart v. First Cupertino Co.

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DRAPER, J.

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