Opinion
At issue in this mandamus proceeding is whether the spouse of the plaintiff in a personal injury action may be deposed as a person for whose “immediate benefit” the action is brought by virtue of *438her community property interest in any damages to be recovered. We will issue the writ.
I
Gerry L. Boles sued Harold E. Hand, Jr., M.D., an ophthalmologist, for malpractice. Hand sought to depose Boles’ wife and gave notice of the deposition to her husband’s attorney. He responded that he “[did] not intend to have Mrs. Boles testify” because of the spousal privilege of Evidence Code section 970.1 Hand sought a court order compelling the wife’s attendance at the deposition. The court found the spousal privilege applicable and denied the motion.
II
Boles treats this case as tendering the spousal privilege not to testify against a spouse in any proceeding. (Evid. Code, §§ 970,2 971.3) Hand asserts the exception to the privilege contained in Evidence Code section 973, subdivision (b), for “a civil proceeding brought ... by a married person for the immediate benefit of his spouse or of himself and his spouse.” (Italics added.) (Evid. Code, § 973, subd. (b).4) We are, however, a procedural step removed from the spousal privilege. The question of spousal privilege is not tendered until the spouse having the privilege is properly noticed for a deposition and interposes the privilege. It then must be determined as a preliminary fact. (Evid. Code, § 405.) Here, the wife, whose privilege would be at issue, has not asserted it and her husband may not assert the privilege on her behalf. (Evid. Code, § 971; see also Abar v. Rogers (1981) 124 Cal.App.3d 862 [177 *439Cal.Rptr. 655].) Rather, this is a case arising under Code of Civil Procedure section 2019, subdivision (a)(4), which permits service of a notice of deposition of “a person for whose immediate benefit an action or proceeding is prosecuted” upon the attorney for the plaintiff. (Italics added.) (See Southern California Edison Co. v. Superior Court (1972) 7 Cal.3d 832 [103 Cal.Rptr. 709, 500 P.2d 621].) Here, the husband’s attorney refused to produce the wife and may do so if she is not an immediate beneficiary of the action. The procedural misstep occurred no doubt because the exception to the spousal privilege is measured by the same “immediate benefit” test as the notice provision of Code of Civil Procedure section 2019, subdivision (a)(4).
Ill
We turn to the question whether the husband’s personal injury action is a proceeding for the “immediate benefit” of the wife. We conclude that it is.
The leading case of Waters v. Superior Court (1962) 58 Cal.2d 885, 897 [27 Cal.Rptr. 153, 377 P.2d 265], interpreting Code of Civil Procedure section 2019, subdivision (a)(4), says that ‘“immediate benefit’” means “an immediate right to the amount recovered or some portion of it as soon as it was recovered by the nominal plaintiff.” (Italics added.) (Accord, Southern California Edison Co. v. Superior Court, supra, 7 Cal.3d at p. 839 [“There is probably no better way to construe ‘immediate benefit’ than as an immediate share in the recovery.”]; see also Freeman v. Jergins (1954) 125 Cal.App.2d 536 [271 P.2d 210] [interpreting the phrase in then Code Civ. Proc., § 2055 (now Evid. Code, § 776, subd. (d)(1))].)
Before 1957, both the spouse’s cause of action and any damages recovered were community property. (7 Witkin, Summary of Cal. Law (8th ed. 1974) Community Property, § 13, pp. 5104-5106; Rothschild v. Superior Court (1930) 109 Cal.App. 345, 347 [293 P. 106].) In Rothschild the court said that in a husband’s personal injury action, a wife was a “‘person for whose immediate benefit’” the matter was prosecuted because “any recovery for personal injuries to either spouse sustained during coverture as well as the chose in action to enforce recovery is community property.” (Id., at p. 347.)5 It ruled, however, that *440the wife could exercise the privilege (former Code Civ. Proc., § 1881, subd. (1), the predecessor to Evid. Code, § 970) because the law provided no exception to the privilege for an action involving community interests. The exception was provided in 1965, with the enactment of Evidence Code section 973, subdivision (b). (Ante, fn. 4.) But by then a personal injury cause of action and any resulting damages had become separate property. (Former Civ. Code, § 163.5 [added by Stats. 1957, ch. 2334, § 1, p. 4066]; 7 Witkin, Summary of Cal. Law, supra, Community Property, § 14, pp. 5106-5107. )6
The law changed again in 1968 following a study and recommendations by the California Law Revision Commission. (See Law Revision Commission’s Recommendation Relating to Damages for Personal Injuries to a Married Person as Separate or Community Property, 8 Cal. Law Revision Com. Rep. (1967) p. 1389 et seq. [hereafter Law Revision Report]; see also Reppy, The Effect of the Adoption of Comparative Negligence on California Community Property Law: Has Imputed Negligence Been Revived? (1977) 28 Hastings L.J. 1359, 1362-1375, 1382-1396.) The separate property status of personal injury damages was repealed and replaced by a complex treatment. (Stats. 1969, ch. 1608; compare p. 3312 with p. 3333.) In general, personal injury damages, save from interspousal actions, received during marriage were made community property, but amounts received after separation or dissolution became separate property. (See In re Marriage of Jones (1975) 13 Cal.3d 457, 463 [119 Cal.Rptr. 108, 531 P.2d 420]; see also Stats. 1969, ch. 1608, § 4800, pp. 3333-3334; § 5109, pp. 3338-3339; § 5112, pp. 3339-3340; and § 5117, p. 3340; Law Revision Report, at p. 1401.) Upon separation or dissolution of the marriage, however, the community property personal injury damages were required to be “assigned” to the spouse “who suffered the injuries” unless “the court determine[d] that the interest of justice requires other disposition” or the proceeds were commingled with other community property.7
*441These provisions are retained in the Civil Code. Interspousal personal injury recoveries are the separate property of the injured spouse. (§ 5126.) In general, all other property acquired during the marriage by a spouse domiciled in the state is community property. (§ 5110.) Personal injury damages received or to be received from a cause of action arising after dissolution or separation are the separate property of the injured spouse. (§ 5126.) By implication, damages received or to be received from a cause of action arising during marriage are community property. Upon dissolution or separation such damages, entitled “community property personal injury damages,” are required to be “assigned” to the injured spouse unless “commingled with other community property” or divided by the court. (Italics added.) (§ 4800, subd. (c).) The amendments to the latter two sections (Stats. 1979, ch. 638, § 1, p. 1970; § 3, p. 1971), presumably made in response to In re Marriage of Pinto (1972) 28 Cal.App.3d 86 [104 P.2d 371], make clear that damages “to be received” from a “cause of action” arising during marriage, i.e., unliquidated claims, are community property. (See also ante, fn. 7.) Although such claims and recoveries are subject to assign*442ment to the injured spouse upon dissolution or separation, in the absence of that contingency the noninjured spouse retains a present interest.
Accordingly, the determination whether community property personal injury damages are for the “immediate benefit” of the noninjured spouse turns upon the status of the marriage. If, as here, at the time that spousal testimony is sought, the marriage is intact, unliquidated claims for community property personal injury damages are community property in which the noninjured spouse has a present interest and entitlement to a share of the proceeds when recovered. They are for his or her “immediate benefit.” (See Rothschild v. Superior Court, supra, 109 Cal.App. at p. 347.) Consequently, the noninjured spouse is subject to deposition by notice upon the plaintiff spouse (Code Civ. Proc., § 2019, subd. (a)(4)) and may not interpose the spousal privilege. (Evid. Code, § 973, subd. (b).)
Let a peremptory writ of mandate issue compelling the trial court to vacate its order denying petitioner’s motion for issuance of a subpoena compelling attendance of real party in interest at the deposition and to enter a contrary order directing issuance of the subpoena. The order to show cause is discharged.
Evans, Acting P. J., and Carr, J., concurred.