Rubenstein v. Rubenstein

Filed 8/22/06 Rubenstein v. Rubenstein CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Marjorie S. Steinberg, Judge. Reversed and remanded.

Alexander Lebecki for Plaintiff and Appellant.

Lawrence Segal for Defendant and Respondent.

_________________________

Plaintiff and appellant Arteena Rubenstein (Arteena) appeals a judgment in favor of defendant and respondent Alan Douglas Rubenstein (Alan) following the grant of a motion for judgment at the close of plaintiff's case. (Code Civ. Proc., § 631.8.)^{[1] [2]}

The trial court granted judgment in favor of Alan, ruling Arteena's inability to prove the damages she sustained as a consequence of Alan's concealment of community assets precluded recovery. We reverse and remand for a new trial. We conclude that based on the circumstances of this case, the burden of proof should be shifted to Alan to show the nonexistence of any community interest in the concealed assets, namely, the Hendrix Properties, as of the date of the 1992 dissolution judgment.FACTUAL AND PROCEDURAL BACKGROUND^[3]

The parties began living together in 1970, had a daughter in 1972, were married in 1976 and separated in 1984.

1. The dissolution proceeding.

Alan filed a petition for dissolution in 1986. His petition alleged there were no community assets. Alan's property declaration in the dissolution proceeding, made under penalty of perjury, listed the following assets: $15,000 in household furniture, furnishings, and appliances; $3,000 in jewelry, antiques, art, and coins; a 1975 Jaguar automobile with a value of $10,000; and business interests consisting of the Alan Douglas Corporation with a gross fair market value of $1,000.

In opposition papers filed on September 4, 1986, Arteena raised a claim, based on information and belief, that Alan possessed the ownership rights to the music of Jimi Hendrix and George Clinton, rights in which she had a community interest.

Arteena subsequently filed trial briefs in which she accused Alan of perjury on the basis that he had hidden assets from the court in that he had received income from the estate of Jimi Hendrix and from Are You Experienced? Ltd., the company that marketed Jimi Hendrix's works.

Six years after the filing of the petition for dissolution, the matter finally came to trial. On February 6, 1992, a 45-minute trial was held. Alan testified he never had any ownership interest either in the entity known as Are You Experienced? Ltd., or in the Hendrix estate and that he had never acquired any royalty or other interest in the record catalogs involving Hendrix, except for three records he produced prior to the marriage.

The trial court in the dissolution action found there were no community assets subject to the court's disposition and ordered Alan to pay spousal support of $3,000 per month, until September 1, 1992, at which time support would be reduced to $1,500 per month until June 1, 1993.

On March 5, 1992, Arteena filed motions to vacate the judgment and for new trial on the ground Alan gave false testimony at trial and that she had newly discovered evidence regarding community property. The matter ultimately was continued to October 19, 1992, to allow Arteena time to conduct discovery concerning her claims.

Following a hearing on October 19, 1992, the trial court signed and filed a further judgment on reserved issues, which included a finding â€