Bringing Tort Cases in the Divorce Arena

Booth & Koskoff attorney Drew Pruitt just concluded a case in which he asserted a claim for the relatively new tort of domestic violence.

Civil Code section 1708.6, which went into effect in 2003, provides that the elements of this tort are that the plaintiff suffered injury as a result of abuse (as defined in Penal Code section 13700) that was inflicted by the plaintiff’s spouse, former spouse, cohabitant, former cohabitant, person with whom the plaintiff has had a child or person with whom the plaintiff is having or has had a dating or engagement relationship. Section 13700 defines “abuse” as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

The defendant in a domestic violence case can be held liable for both compensatory and punitive damages and for reasonable attorney’s fees. A special statute of limitations for these cases is set forth in Code of Civil Procedure section 340.15 and is three years from the last act of domestic violence, rather than the typical two years for personal injury cases. Where there is ongoing abuse, and the most recent act occurred within three years of the lawsuit being filed, the plaintiff may recover for all past acts of abuse by the same defendant. Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1451.

The most important aspect of the domestic violence cause of action is Family Code section 2603.5, which provides:

“The court may, if there is a judgment for civil damages for an act of domestic violence perpetrated by one spouse against the other spouse, enforce that judgment against the abusive spouse’s share of community property, if a proceeding for dissolution of marriage or legal separation of the parties is pending prior to the entry of final judgment.”

This allows the plaintiff to avoid the typical and often insurmountable difficulty in collecting a judgment against an individual defendant, who can hide or dissipate assets while the case is pending. In the context of a 1708.6 claim involving a married couple, those assets will often be under the control of the family court.

Where a divorce proceeding is pending or imminent and the couple’s assets are significant enough to make use of this relatively new tort worthwhile, section 1708.6 provides victims of domestic violence with an extremely valuable tool for obtaining justice. Some plaintiffs will need to pursue their claims all the way to trial and judgment before using the enforcement mechanism set forth in Family Code section 2603.5, but it is likely that in a significant number of cases, the pendency of such a claim (if it has merit) would motivate an abusive spouse to agree to a division of the community assets, or a settlement of the tort claim, that would compensate the abused spouse for the effects of the abuse.

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