Rubenstein v. Rubenstein

• Decision Date: 29 June 2000
• Citation: 97 Cal.Rptr.2d 707,81 Cal.App.4th 1131
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) ARTEENA RUBENSTEIN, Plaintiff and Appellant, v. ALAN DOUGLAS RUBENSTEIN, Defendant and Respondent. B123085 Filed

97 Cal.Rptr.2d 707 (Cal.App. 2 Dist. 2000)

ARTEENA RUBENSTEIN, Plaintiff and Appellant, v. ALAN DOUGLAS RUBENSTEIN, Defendant and Respondent.

B123085

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE

Filed 6/29/00

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

(Super. Ct. No. BC170391)

Haley J. Fromholz, Judge. Reversed and remanded.

Alexander Lebecki for Plaintiff and Appellant.

Rosenfeld, Meyer & Susman, Ovvie Miller and John Carmichael for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

KLEIN, P.J.

Plaintiff and appellant Arteena Rubenstein (Arteena) appeals a judgment following a grant of summary judgment in favor of defendant and respondent Alan Douglas Rubenstein (Alan). ¹

This is a civil action by Arteena to set aside on the grounds of fraud and perjury a 1994 judgment in a marital dissolution proceeding obtained in the family court, and to recover damages. The essential issues presented are the applicable statute of limitations, the scope of the available remedy, and thereafter, whether this action is time-barred. The trial court granted Alan's motion for summary judgment on statute of limitations grounds.

We conclude this action is controlled by Family Code section 2122, ² which prescribes a one-year statute of limitations for an action to vacate a dissolution judgment on the grounds of fraud or perjury. The remedy under the statute is a setting aside of the judgment, not a tort action for concealment of community assets. The one-year period begins to run from the date on which the plaintiff either discovered, or should have discovered, the facts constituting the fraud or perjury. ( 2122; see Code Civ. Proc., 338, subd. (d).)

The record discloses that Alan failed to meet his burden, as a defendant moving for summary judgment, of establishing Arteena either discovered or should have discovered his alleged fraud or perjury more than one year before she commenced this action. Therefore, the judgment must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

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, furnishing, 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. Specifically, a declaration filed September 4, 1986 by Arteena's attorney, Robert J. Schupler, asserted: "I am informed and believe and thereon allege that [Arteena] has a community property interest in musical works owned by [Alan] including but not limited to works by Jimi Hendrix and George Clinton."

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 which 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 Are You Experienced? 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 court 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 the hearing, on October 19, 1992, the court signed and filed a further judgment on reserved issues, which included a finding that "[t]there are no community assets."

Arteena appealed, contending, inter alia, the court erred in disregarding her evidence that there was community property. In an opinion filed June 13, 1994, Division Seven rejected Arteena's contentions and affirmed.

2. The instant action filed in civil court to vacate the judgment and to recover damages.

Arteena's instant action, seeking equitable relief from the judgment as well as tort damages, was a hybrid. It was litigated in the civil court, although it involved Family Code provisions and an underlying judgment of dissolution from the family court. ³ As explained below, section 2120 et seq. were enacted to resolve this confusion by clarifying the nature of the relief available from a dissolution judgment, as well as the time frame for seeking such relief.

a. Pleadings included tort causes of action.

On May 1, 1997, Arteena filed this action to set aside the further judgment on reserved issues in the marital dissolution proceeding, alleging Alan procured that judgment through perjury and fraud.

Arteena subsequently filed a first amended complaint, the operative pleading, seeking to vacate the dissolution judgment and to recover damages. Arteena alleged the following theories: "1. To Set Aside Judgment; 2. Injunctive Relief; 3. Breach of Fiduciary Duty; 4. Constructive Fraud; 5. Intentional Non-Disclosure -- Concealment; 6. Negligent Non-Disclosure -- Concealment; 7. Accounting; 8. Conspiracy;

9. Conversion; 10. Imposition of Constructive Trust."

Arteena's complaint requested judicial notice of an answer and counterclaim filed by Alan on January 6, 1994 in James A. Hendrix v. Leo Branton, Jr. et al., an action in the federal district court in Seattle (hereafter, the federal action). A copy of said pleading in the federal action was appended to Arteena's complaint as an exhibit. Alan's answer and counterclaim in the federal action contained, inter alia, the following allegations: "[Alan's] monumental efforts over a period of 20 years have been the lifeblood of the continued success and popularity of Jimi Hendrix music[;]" "[Alan's] proprietary rights in Jimi's recordings have contributed to perpetuate the music; [Alan] has produced new recordings, enhanced the technical quality of the entire catalogue, acquired audio/visual and other materials for the production of music videos and the creation of original artwork, promoted Jimi's image and provided new and unique marketing tools to keep Jimi's music alive[;]" "Alan Douglas is the owner of common law and statutory copyrights and other property rights in and to all sound recordings of Jimi Hendrix, known or unknown, in which Alan Douglas served as the producer/engineer[;]" "Alan Douglas is the owner of common law and statutory copyrights and other property rights in and to the compilations of sound recordings of Jimi Hendrix, known or unknown, in which Alan Douglas served as the producer/engineer[;]" "Alan Douglas is the owner of common law and statutory copyrights and other property rights in and to packaging and promotional materials for album covers, merchandising and other items for which Alan Douglas served as the producer/engineer[.]" (Italics added.)

Arteena alleged she had "only recently learned of the facts surrounding [Alan's] claim of ownership of such intellectual property rights, including but not limited to rights in the recordings and related products of Jimi Hendrix recordings, in that the District Court Litigation was reduced to a final disposition in and about January 1996," and that she brought this action with reasonable diligence. (Italics added.)

Arteena further pled that "[a]t all times . . . [she] had, and continues to have, a meritorious claim for her community share of community property in the prior Dissolution action, in that the property rights of [Alan] at issue in the Dissolution (and for which he has received to date far in excess of $15,000,000.00) were created and/or acquired during [the] . . . marriage . . . . [Alan] deliberately gave false testimony and perpetrated a fraud upon [Arteena] and upon this honorable Court . . . so as to retain sole control and ownership of such property and products for himself, . . . and to keep [Arteena] from her rightful community share therein. [] . . . [Arteena] has no adequate remedy at law other than this proceeding in equity in that, through no fault of her own, she did not discover the extrinsic fraud and perjury herein alleged until after the time had expired for appeal, seeking a new trial, or seeking relief under Code of Civil Procedure, Section 473."

Arteena also appended to her pleading a copy of Alan's property declaration in the dissolution proceeding, made under penalty of perjury, wherein Alan asserted his business interests consisted of the Alan Douglas Corporation with a gross fair market value of $1,000.

Arteena also appended to her complaint a copy of the following interrogatory from the federal action and Alan's response thereto: "Please identify the respective share of proceeds (in percentages) for each person who was to receive any of the proceeds under the terms of any proposed or actual sale of all or any part of the Hendrix Legacy to MCA. [] Answer: . . . Mr. Douglas responds that he will receive 25% of any net income from the sale to MCA."

Alan...