Hand

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 her 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. 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, 971. ) 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). ) We are, however, a…