The opinion
THOMPSON, J.
I concur in the result reached in the majority opinion. I disagree, however, with the reasoning of that portion of the opinion which discusses the issue of the wife’s right to any part of the $110,489.26 not shown to have been expended for community purposes. In my view, the question is one of burden of proof and of producing evidence. In a dispute over disposition of property in a divorce action, the wife has the burden of proof of establishing the existence of community property, and except as *569 she may be aided by presumptions must produce evidence which carries that burden. (Estate of Nelson, 104 Cal.App. 613 [ 286 P. 439 ]; See v. See, 64 Cal.2d 778 [ 51 Cal.Rptr. 888 , 415 P.2d 776 ].)
Where, as here, the wife has concededly established the existence of community assets, has established that certain of those assets are missing, and has presented evidence from which it may be inferred that the husband wrongfully disposed of them, she has, in my opinion, met her burden of proof. The issue then shifts to the validity of dispositions of community property by the husband. On that issue, whether dispositions of community property by the husband are proper on the one hand or fraudulent or illegal on the other, I think the better rule would place the burden of producing evidence of the nature of the dispositions upon the husband. It is appropriate to place the burden of producing evidence upon the party who has access to the facts where those facts are inaccessible to the other party to the litigation. (See Fowler v. Seaton, 61 Cal.2d 681, 687 [ 39 Cal.Rptr. 881 , 394 P.2d 697 ].) In the situation here present for decision, the husband, as manager and controller of the community property, has access to the facts from which it may be determined whether a disposition of community assets by him was proper or improper. Conversely, the wife, as the passive beneficiary of the husband’s management of community property, has little if any access to those facts.
The applicability of the principle of burden based upon superior knowledge of the facts to the situation of the case at bench is strongly indicated by the decision of our Supreme Court in See v. See, supra, 64 Cal.2d 778 . While See involves the problem of commingling of community property with separate property of the husband and not the question of unexplained disappearance of community funds, the court rationalizes its decision denying the husband the ability to rebut commingling by establishing an excess of community expenses over community income by reference to the consequences of the husband’s right of management and control of the community property. ( 64 Cal.2d 778, 784 ; see also Weinberg v. Weinberg, 67 Cal.2d 557, 563 [ 63 Cal.Rptr. 13 , 432 P.2d 709 ]; Vai v. Bank of America, 56 Cal.2d 329, 337 [ 15 Cal.Rptr. 71 , 364 P.2d 247 ]; White v. White, 26 Cal.App.2d 524, 529 [ 79 P.2d 759 ]; Pope v. Pope, 102 Cal.App.2d 353, 359 [ 227 P.2d 867 ].)
I would instruct the court on retrial to proceed in accord with the principles of burden of proof and of producing evidence recited in this concurring opinion.