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Interspousal Torts: What family law attorneys should know

Los Angeles Lawyer Magazine
May 1992

By Ira M. Friedman and Abby B. Friedman

The family law practitioner is often called upon to have some knowledge or expertise in other areas which only relate tangentially to the handling of the dissolution of marriage. The more common areas include real estate, tax, working with mental health professionals, accounting and balance sheets, and business appraisals, including how to assess the goodwill of a professional, executive or entertainer. In addition, there are other less common areas with which the family law practitioner comes into contact, such as interspousal torts.

By eliminating interspousal tort immunity and allowing one spouse to sue the other spouse in a civil action, the legislature and the courts have forced family law attorney to be sufficiently knowledgeable in the area of interspousal torts to at least recognize when civil liability may exist.

As with any matter an attorney undertakes, the attorney must first decide whether to handle the tangential matter or refer it to a practitioner in another field.

The Rules of Professional Conduct of the State Bar of California1 state:

A member of the State Bar shall not accept employment in a legal matter when the member knows that the member does not have, or will not acquire before performance is required, sufficient time, resources, and ability to, perform the matter with competence.

This duty to act competently is fully elaborated not only in the California rules, but also in the American Bar Association Model Code of Professional Responsibility2 and the American Bar Association Model Rules of Professional Conduct.3

Because family law is fraught with emotion, many times the first contact an attorney has with a prospective client is the result of an incident of physical violence. As a result, family law attorneys become very adept at obtaining ex parte restraining orders against physical violence as well as property restraints and/or dwelling exclusions - sometimes even without the customary notice.

However, for matters that involve physical violence, in addition to protecting the client from further violence, the family law attorney must also consider filing a separate civil action for assault and battery and/or intentional or negligent infliction of emotional distress on behalf of the aggrieved spouse.

Even if the family law attorney decides not to pursue the separate action on his own, either because the matter is of negligible value or is just being used as a negotiating wedge, that final decision really should not be made by the family law attorney. Instead the decision should be made by the client after being fully informed of the prospects of pursuing that action.

The family law attorney must also decide who will handle the matter if the client decides to proceed with it. Should the family law attorney handle it or refer it out to a lawyer who routinely handles tort matters?


Against the background of a physical tort, such as assault or battery, is the issue of interspousal tort immunity.

The common law rule of interspousal immunity for torts between spouses is of ancient origin. It was predicated fundamentally on the doctrine of a single legal identity of husband and wife.4 With this doctrine in existence, the rule prohibiting a tort action between spouses was logically sound. The concept upon which this immunity was predicated no longer exists because all American jurisdictions have married women emancipation acts, which confer upon a wife a separate legal identity.

The emancipation of American women was not automatically extended to the field of personal torts. Many courts held that personal tort actions between husband and wife, if permitted, would destroy the peace and harmony of the home; thus such actions were held to be against public policy.

In Self v. Self,5 California moved away from this community. The California Supreme Court held that the interspousal immunity for intentional torts, which was first announced in California in 1909 in Peters v. Peters,6 should be abandoned. The court arrived at the decision by rationalizing that when the legislative changes occurred in California, there remained no necessity for that holding. In Self, the court held that one spouse may sue the other in tort, at least where that tort is an intentional one,7 thereby abandoning the rule of interspousal immunity from intentional torts.

In the law of torts, it is fundamental that any person proximately injury by the act of another, whether that act is willful or negligent, should, in the absence of stature or compelling public policy, be compensated. With this fundamental tort principle as the cornerstone, the court in Klein v. Klein8 held that insofar as interspousal liability for tort is concerned there is no logical or legal reason for drawing a distinction between a negligent tort or an intentional one. The rule of interspousal immunity for personal torts involving negligence was thus abandoned, making one spouse liable for a negligent tort causing injury to the other spouse.


Another interspousal tort not generally considered by attorneys and clients - one that is probably as ancient as assault and batter - is eavesdropping, or its more modern form, illegal wiretapping.

Strangely enough, while there are bother criminal and civil remedies for illegal wiretapping, the civil remedy is found in California Penal Code Section 637.2. This section lays out both eh civil requisites to establish the tort and a statutory scheme of recovery. Under Penal Code Section 632, it is unlawful for a person to record a confidential communication without the consent of the parties. Any person injured by a violation of Section 632 may bring an action against the person who committed the violation.

Penal Code Sections 630 through 637.5, inclusive, are known as the Invasion of Privacy Act. This at forbids wiretapping and electronic eavesdropping. The statutory scheme in Penal Code Section 637.2 provides for recovery in the amount of $3,000 or three times the amount of actual damages sustained by the plaintiff. The statutory scheme does not specify whether the $3,000 is for each violation or all violations.

Section 637.2 further states that any person may bring an action to enjoin and restrain any violation and seek damages as provided in Title 7 of Part 2 of the Code of Civil Procedure. Pursuant to Section 637.2, actual damages suffered are not a necessary prerequisite to an action.


While the Penal Code sets out the statutory scheme of recovery, another more intriguing area is punitive damages. When attorneys enter into the family law field, they are likely to erase that term from their vocabulary; however, after seeing the results in some family law cases, it can be said that punitive damages are alive and well in family law.

Exemplary damages as enumerate din Civil Code Section 3294 are intended to act as a deterrent for certain conduct. When the defendant has been guilty of oppression, fraud or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. Punitive damages may be recovered in those torts where actual damages is not an essential element. The malice sufficient to support an award of punitive damages may be shown by evidence that the defendant's wrongful conduct was willful or intentional.

There may be se practitioners who believe that because there is a scheme of compensatory damages laid out in Penal Code Section 637.2, they cannot also obtain punitive damages. In fact, that is not the case.

Although Troensgaard v. Silvercrest Industries, Inc.,9 would, at first glance, appear to preclude the awarded of punitive damages, that case is not necessarily determinative. Troensgaard involved claims for the breach of express warranty, product liability and fraudulent concealment in a action brought by a mobilehome buyer who sustained personal injuries. The court found that the buyer was seeking a civil penalty - attorney's fees - plus all reasonable expense allowed by Civil Code Section 1794 and, by so doing, had elected to waive punitive damages.10 However, statutory and punitive damages arising out of the same cause of action are not mutually exclusive. The fat that a statutory penalty is imposed for a particular wrongful act does not preclude recovery of punitive damages in a tort action where the necessary malice oppression is shown.11

Troensgaard can be distinguished in that the plaintiff was seeking a civil penalty, compensatory damages, feels and costs under Civil Code Section 1794. Unlike actions brought under Civil Code Section 1794, an action under Penal Code Section 637.2 is designed to compensate the victim and not to punish the defendant. Recovery does not require that the defendant's be willful but only that the defendant engaged in the unlawful conduct defined in Penal Code Section 632. To the contrary, under Civil Code Section 1794 the defendant's acts must be willful and in Troensgaard the statute itself imposed the penalty. Because there is not statutory penalty in Penal Code Section 637.2, punitive damages could attach if the defendant is proven guilty of malice, fraud or oppression under Civil Code Section 3294.

The issue of whether punitive damages are available under statute was addressed in Merlo v. Standard Life and Accident Insurance Company,12 where the court stated:

Compensatory damages and punitive damages are two different things with two different purposes. Compensatory damages are awarded to compensate an injury party for its injury; punitive damages are awarded to punish a wrongdoer and make an example of him. When both compensatory and punitive damages are awarded, there is no double punishment.13

By eliminating interspousal tort immunity and allowing one spouse to sue the other spouse in a vicil action, the legislature and the courts have forced family law attorneys to be sufficiently knowledgeable in the area of interspousal torts to at least recognize when civil liability may exist.

To effectively represent a client in this type of litigation, the family law practitioner must either have sufficient expertise to handle all issues that rise or must bring in another attorney who has that knowledge and training. Recognizing all the possible issues, including these beyond the family law realm, should be the ultimate goal of every family law attorney.

1 Rules of Professional Conduct of the State Bar, Rule 6-101(B) (1) (1983)
2 American Bar Association Model Code of Professional Responsibility DR 6-101 (1981)
3 American Bar Association Model Rules of Professional Conduct, Rule 1.1 (1983)
4 1 W. Blackstone, Commentaries 442; 2 W. Blackstone, Commentaries 443.
5 58 Cal. 2d. 683 (1962)
6 156 Cal. 32 (1909).
7 58 Cal 2d. at 683.
8 58 Cal. 2d. 692 (1962).
9 175 Cal. App. 3d 218 (1985).
10 Id.
11 4 B. Witkin, Summary of California Law, Torts Sec. 1334 (9th ed. 1988).
12 59 Cal. App. 3d 5 (1976).
13 Id. at 20.

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