Rubin v. Barasch

ROTH, P. J.

In July 1967, Maxwell L. Rubin (Rubin) sued Buddy R. Barasch (Buddy) in one cause of action for $50,000, plus attorney’s fees and interest on Buddy’s promis

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sory note and in a. second cause of action, Shirley Lee Barasch (Shirley) and other defendants. Shirley and the defendants other than Buddy were joined on the theory of conspiracy to conceal Buddy’s assets. Rubin levied a writ of attachment on five bank accounts aggregating $33,694.33, in the names of Buddy and Shirley. Rubin dismissed against Shirley and all defendants other than Buddy and moved for summary judgment against Buddy. The motion was granted. Judgment was entered against Buddy for $56,702.54 and costs.

One month prior to the Rubin action, in June 1967, Buddy instituted an action for divorce against Shirley in which she cross-complained for divorce.

Shirley had, prior to the entry of the summary judgment in the Rubin action, filed a third party claim in the Rubin action to one half of the funds in the five attached accounts. Service of the third party claim was made on the levying officer and upon Rubin’s attorney. Respective counsel for Shirley and Rubin stipulated that her claim could be 11 granted as prayed.” The court then in the Rubin action entered a “Judgment Determining Title To Personal Property Subject To Third Party Claim” which, among other things, declared that one half of the attached funds was Shirley’s separate property “free and clear of any claims of Plaintiff, Maxwell L. Rubin and defendant Buddy R. Barasch, or either of them ...” The third party judgment directed distribution of one half of the attached funds to Shirley and declared that Rubin’s attachment or any wrrit of execution thereafter obtained by him would be valid only as to the remaining one half.

Buddy received no formal written notice of his wife’s third party claim or of the hearing thereon and did not appear in the proceeding under Code of Civil Procedure section 689. After the entry of judgment in the 689 proceeding, Buddy moved for a new trial on his wife’s claim or for reconsideration or modification of the third party judgment on the ground of lack of notice and on the further ground that the attached funds were community property and, as such, had been placed in issue; in the divorce action. Buddy’s motion was denied. This appeal is from the third party judgment and from the minute order denying Buddy’s motion for a new trial. Shirley alone opposes the appeal.