Marriage of Gurvitz CA2/7

Filed 7/21/21 Marriage of Gurvitz CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of JENNIFER B300198
and JOSEPH GURVITZ.

JENNIFER GURVITZ, (Los Angeles County
Super. Ct. No. BD617345)
Respondent,
v.
JOSEPH GURVITZ,
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Lynn Healey Scaduto, Judge. Reversed and
remanded with directions.
Holstrom, Block & Parke, Ronald B. Funk for Appellant.
Ribet & Silver, Claudia Ribet for Respondent.

_______________________
 INTRODUCTION
Joseph Gurvitz appeals a family court order denying his
motion to set aside a settlement agreement and a stipulated
judgment entered in his marriage dissolution case. Joseph1
contends the family court prejudicially erred by declining to hold
an evidentiary hearing on his motion. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Jennifer and Joseph married in February 2003 and
separated in March 2015. They have three children together: 16-
year-old Aliza, 15-year-old Charles, and 11-year-old David.
A. The Dissolution Petition, Jennifer’s Request for Support
Orders, and the Civil Cases
Joseph was arrested on March 13, 2015 for domestic
violence against Jennifer earlier that day. Jennifer petitioned for
dissolution of the marriage on March 16, 2015. On October 16,
2015, Joseph pleaded no contest to one count of misdemeanor
spousal battery in violation of Penal Code section 243,
subdivision (e)(1), and one count of misdemeanor contempt of
court for violating a protective order in violation of Penal Code
section 166, subdivision (c)(1). At the plea hearing the court
issued a criminal domestic violence restraining order with an
August 20, 2018 expiration date.
On March 1, 2016 the family court issued a civil domestic
violence restraining order that also had an August 20, 2018
expiration date. The family court’s order stated that the criminal
domestic violence restraining order remained in effect.

1 For clarity we refer to the parties and other case
participants by their first names.

2
 On April 1, 2016 Jennifer filed a request for orders
requiring Joseph to pay child and spousal support. Jennifer
alleged Joseph held considerable assets in foreign bank accounts,
and that he had transferred and hidden these assets when
Jennifer filed for dissolution. Jennifer also alleged she had
learned through discovery that Joseph had borrowed $2 million
from East West Bank in August 2011 secured by the family’s Los
Angeles home (the June Street residence).
A forensic accountant retained by Jennifer submitted a
declaration stating that between August 30, 2013 and February
28, 2015 a total of $590,599 had been deposited into one of the
couple’s bank accounts via wire transfers from Joseph’s father,
Meir Gurvitz, and that the couple had used those funds to pay
household expenses. The couple’s other bank accounts had
significant balances in 2011, 2013 and 2015, but the accountant
could not trace the source or use of the funds. The accountant
identified several foreign accounts he could not assess because
Joseph had not provided the requisite authorizations. One of
Joseph’s accounts with First International Bank of Israel had a
balance of more than $1 million in March 2015, but held only
$168 three months later. Joseph did not provide the accountant
with his tax returns.
Joseph asserted the couple had a “negative estate,” and
that Joseph had been borrowing money from Meir to pay his
living expenses. Joseph alleged his family had lived beyond its
means during the marriage due to Meir’s generosity, but that
Meir had informed Joseph his generosity had “permanently
ended.” Joseph stated he had been unemployed since 2014, and
had been unable to secure a job or permanent housing.

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 Joseph claimed that a residence in Savyon, Israel (the
Savyon residence) was in his name pursuant to an irrevocable
gift from Meir, but that Joseph held only a 20 percent interest in
the property. Joseph asserted that a mortgage on the Savyon
residence exceeded the value of his interest in the property.
Joseph stated the June Street residence was purchased in
2010 as an investment property in Joseph’s name with Meir’s
financial assistance through Meir’s company Freshbrook Ltd.2
According to Joseph, Jennifer quitclaimed any interest in the
property upon its purchase. A deed of trust reflecting a $2.6
million loan was placed on the property in Freshbrook’s name. In
2012 Joseph refinanced the property through a new loan from
Freshbrook. Joseph claimed the mortgage and deed of trust on
the June Street residence rendered the property without equity.
During the dissolution proceedings, Freshbrook filed a civil
lawsuit against Jennifer and Joseph seeking to enforce its alleged
loan agreement with Joseph and the deed of trust on the June
Street residence. Jennifer filed a cross-complaint seeking
cancellation of Freshbrook’s deed of trust and cancellation of an
abstract of judgment and confession of judgment Joseph executed
during the dissolution proceedings in a second lawsuit regarding
the property.
On March 24, 2016 the superior court deemed the civil
lawsuits related to the dissolution action. On April 29, 2016
Jennifer moved to join Meir and Freshbrook as parties to the
dissolution action. On July 5, 2016 the family court granted

2 Freshbrook is a British Virgin Islands limited liability
company formed in 2001.

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Jennifer’s motion and ordered Meir and Freshbrook joined as
indispensable parties to the dissolution action.
B. The Family Court’s Temporary Support Orders
On July 11, 2016, following a three-day evidentiary
hearing, the family court3 ordered Joseph to pay Jennifer $1,602
per month in temporary child support and $827 per month in
temporary spousal support.4 The court calculated the sums to be
paid based primarily on $2,500 in monthly income Joseph
received from Meir for Joseph’s living expenses. The court
rejected Jennifer’s contention that Joseph earned $47,000 to
$50,000 per month, finding that “[t]he evidence showed more
persuasively that it was in fact Meir who was acting behind the
scenes to move the money in and out of the accounts in Joseph’s
name—for whatever reason—but not Joseph himself earning the
money.” The court further observed that, although Joseph stated
that funds he received from Freshbrook during the marriage were
loans Meir intended Joseph to repay, Joseph did not provide
documents evidencing any loans.
C. The Settlement
On or about September 12, 2017 Jennifer, Joseph, Meir and
Freshbrook executed a settlement agreement resolving the
dissolution and civil actions. Each party had counsel in the
settlement negotiations. The agreement provided that its terms

3 Judge Michael Convey.
4 The court also ordered Joseph to pay additional child
support of one-half the amount of the children’s unreimbursed
health care costs.

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would be memorialized in a stipulated judgment to be entered in
the dissolution case.
The settlement awarded Jennifer the June Street residence
as her sole and separate property, free and clear of all
encumbrances on title due to Freshbrook’s liens, but subject to
East West Bank’s $2 million mortgage. The parties agreed to
dismiss their civil actions and cross-actions regarding the June
Street residence. The settlement required Jennifer to sell the
residence as soon as practicable after March 31, 2018, with
Jennifer bearing all sales costs, property maintenance costs,
mortgage payments, and taxes and insurance costs before the
sale. Jennifer would receive the net proceeds from the sale as her
sole and separate property, except $675,000 as an “equalizing
payment” to Joseph. Of that amount, $75,000 would be paid
directly from escrow to Jennifer as payment for Joseph’s support
arrears from the July 11, 2016 support orders through August 1,
2017. The remaining $600,000 would be deposited into an
account to pay Joseph’s future child support obligations. Joseph
was awarded all right, title and interest in the Savyon residence.
Joseph agreed to grant Jennifer an unconditional “Get”—a
Jewish dissolution document—and sole legal and physical
custody of the children. Jennifer agreed to request that the court
dismiss the civil domestic violence restraining order against
Joseph, and to cooperate with Joseph as necessary to seek
dissolution of the order.
The settlement also included mutual waivers of spousal
support, terms related to the children’s medical and school
expenses, and an agreement that each party would bear his or
her attorneys’ fees and costs. Jennifer and Joseph would
mutually select an independent child custody expert to assist in

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creating a visitation plan for the children. The parties also
agreed to waive and release all claims against one another,
known and unknown, including “all claims and counterclaims in
the pending civil matters and all claims for breach of fiduciary
duty, violation of ATROS [Automatic Temporary Restraining
Orders], and spousal support arrearages in the family law
matter.”
The parties represented that they were executing the
agreement “freely and voluntarily and have had sufficient time to
consider all terms and conditions and to confer with their
attorneys throughout the negotiation process.” Each party
further “represent[ed] and warrant[ed] that at the time of signing
this Deal Memo, she or he is not suffering from any mental or
emotional condition which is severe enough to interfere with her
or his ability to read, understand, and freely agree to the terms of
this Deal Memo.”
D. The Hearing on and Entry of the Stipulated Judgment
The parties submitted the proposed stipulated judgment
contemplated by the settlement agreement to the family court on
January 10, 2018.5
The family court6 scheduled a hearing for March 12, 2018
to discuss the parties’ request that the court prematurely dissolve
the civil domestic violence restraining order, which otherwise

5 Jennifer, Joseph, Meir, Freshbrook and their respective
counsel each signed the proposed stipulated judgment.
6 Judge Lynn Healey Scaduto.

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would remain in effect until August 20, 2018.7 After hearing
Jennifer’s and Joseph’s testimony about their contacts with one
another over the previous year , the court denied the request to
dissolve the civil restraining order prematurely, noting that
Jennifer continued “to seem afraid” of Joseph, and Joseph
continued “to be resentful” of Jennifer.
Jennifer’s mother, Sheryl Mandelbaum, an attorney,
argued that the court’s refusal to dissolve the restraining order
did not affect the court’s ability to enter the stipulated judgment
because the settlement required only that Jennifer request
dissolution of the restraining order and cooperate with Joseph to
seek dissolution of the order, both of which Jennifer had done.8
At the request of Joseph’s counsel, the court agreed to hold the
stipulated judgment for 10 days to enable Joseph to discuss with
his counsel whether to proceed with the stipulated judgment in
light of the court’s refusal to dissolve the civil domestic violence
restraining order prematurely. The court ruled that if Joseph did
not notify the court within 10 days of any objections to entry of
the stipulated judgment, the court would sign and file the
stipulated judgment at that time.
Joseph did not file any objections. Accordingly, on March
23, 2018 the family court signed and entered the stipulated
judgment of dissolution memorializing the terms of the parties’
September 2017 settlement. The stipulated judgment states:

7 Neither the court nor the parties addressed the criminal
domestic violence restraining order issued at Joseph’s October 16,
2015 plea hearing, which also had an August 20, 2018 expiration
date.
8 Sheryl appeared at the March 12, 2018 hearing as
Jennifer’s counsel.

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“The court finds that each Party and Party Claimant
acknowledges that he or she respectively (i) is fully informed as
to the facts relating to the subject matter of this Judgment, and
as to the rights and liabilities of both Parties; (ii) enters into this
Judgment voluntarily, free from fraud, undue influence, coercion,
or duress of any kind; and (iii) has read, considered, and
understands each provision of this Judgment.”
E. Joseph’s Motion To Set Aside the Settlement Agreement and
the Stipulated Judgment
On March 22, 2019 Joseph moved to set aside “portions, or
in the alternative, the entirety” of the settlement agreement and
the stipulated judgment. Joseph asked the court to award him
all or half of the sale proceeds Jennifer received from the July
2018 sale of the June Street residence for $6,010,000. Joseph
also sought sanctions against Jennifer for her “threats, coercion
and undue duress and for frustrating settlement leading to the
filing” of Joseph’s motion.
Joseph claimed he agreed to the settlement and stipulated
judgment “after years of intimidation and fear tactics and
extreme duress and undue influence,” primarily directed at Meir.
Joseph alleged Jennifer and Sheryl had threatened to ruin Meir’s
personal and professional lives, and to make any visitation
between Joseph and the children difficult, if not impossible, if
Joseph did not agree to Jennifer’s settlement terms. Joseph also
alleged Jennifer had tricked him into signing a grant deed
transferring title to the June Street residence from Joseph’s
separate property to joint tenancy with Jennifer, and had turned
“the Jewish community” against Joseph by falsely accusing him
of refusing to give Jennifer a Get. Joseph claimed he had been
assaulted by a man at a restaurant at Jennifer’s behest in

9
January 2016. The man allegedly grabbed Joseph by the neck,
choked him, threatened to kill him, and insisted that Joseph give
Jennifer a Get. Joseph stated, “But for Jennifer’s undue duress,
extreme pressure and fear tactics, I would never have agreed to
such an unequal division of assets.”
Joseph filed with his motion declarations from himself,
Meir, and Joseph’s settlement counsel. Joseph’s settlement
counsel stated that on two occasions in 2016 Jennifer’s then-
counsel threatened that if the parties did not settle, Meir “could
face jail time for tax evasion” and other negative consequences
such as “serious tax liabilities to authorities in Israel and other
countries.” Joseph’s settlement counsel communicated the
threats to Meir “but took no other action at that time since [Meir]
was not [his] client.” Joseph also filed a list of witnesses from
whom he sought to present live testimony at an evidentiary
hearing on the motion, including himself, Jennifer, Meir, Sheryl,
and the parties’ respective settlement counsel.
Jennifer opposed Joseph’s motion and likewise requested
sanctions. Jennifer argued the parties had negotiated the
settlement through counsel after many revisions and extensive
discovery in the family court, and that Joseph “had signed the
Deal Memo freely, voluntarily, and without duress or coercion.”
Jennifer contended Joseph only sought to set aside the stipulated
judgment to “punish” Jennifer for not acquiescing to Joseph’s
recent visitation demands.
Jennifer attached to her declaration exhibits she argued
showed Joseph had not been “bullied” or “harassed” into signing
the settlement, but instead demonstrated Joseph believed he had
obtained a more favorable outcome in the settlement than
Jennifer had. Sheryl submitted a declaration stating that

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Joseph’s and Meir’s accusations about her threats to Meir were
“complete fabrications and I dispute each and every statement
contained therein. . . . [¶] At no time did I ever threaten [Joseph]
or Meir Gurvitz, either directly or indirectly, that I would report
them to the authorities unless they settled with [Jennifer].”
Joseph’s reply argued that Jennifer’s opposition “does not
refute the threats made towards [Joseph] and the bad faith
tactics used to improperly secure a patently unfair and
inequitable settlement,” and “ignore[s] the fact that the pressure
of [Jennifer’s] undue duress on [Joseph] had never ceased.”
Joseph submitted a second declaration from himself and a second
declaration from his settlement counsel. Joseph’s settlement
counsel acknowledged being “aware of what [he] could
characterize as threats in 2016, during my participation in the
matter,” but stated he “was not privy” to all of the claimed
instances of alleged duress.
F. The Hearing on and Order Denying Joseph’s Motion
On May 30, 2019 the parties appeared at a hearing on
Joseph’s motion. Joseph’s counsel stated that Jennifer’s
responsive papers did not “refut[e] any of the actual threats”
described in Joseph’s papers. Jennifer’s counsel responded, “We
disagree with and say completely opposite of what [Joseph says]
what happened.” Joseph’s counsel asserted that Joseph had
requested a live evidentiary hearing “so that the court can
understand the extreme distress that went on” during settlement
negotiations.
The court stated it would consider further the parties’
papers, and either “rule on the papers and find good cause that
there’s no need to hear from the witnesses” Joseph had identified,
or schedule a long cause hearing to take live testimony. Neither

11
counsel objected to the court’s plan. Joseph’s counsel stated, “All
we want is an order and a judgment after a fair trial. We want
equity and justice. That’s it. Just wants justice. Thank you.”
Later the same day, the court issued a minute order
denying Joseph’s request for an evidentiary hearing and denying
the motion. With respect to the hearing request, the court ruled,
“After further review of the three rounds of papers the parties[ ]
filed in connection with the instant request for order and the
record in the case, the court declines to conduct an evidentiary
hearing, finding that there is good cause not to hear live
testimony because the material facts are not in controversy.”
With respect to the motion, the court ruled, “[Joseph’s]
contention that he should not be held to the terms he agreed to in
the deal memorandum and the stipulated judgment that followed
six months later cannot be reconciled with the terms of the
agreed-upon judgment itself, the record before the court and the
case law regarding duress.” The court continued: “Here, it is
beyond dispute that respondent was represented by the same
experienced family law lawyer throughout the settlement
negotiations, up to and including the entry of the stipulated
judgment. It is also undisputed that more than six months
passed between when the parties agreed to the deal
memorandum terms and when the stipulated judgment was
entered by the court. It is also undisputed that, before entering
the judgment on March 23, 2018, the court conducted a March 12,
2018, hearing on the parties’ joint request . . . to terminate early
an existing domestic violence restraining order that then had a
few months remaining before it expired. . . . [¶] The court
declined to terminate the restraining order early and gave both
parties 10 days to tell the court if there was ‘some reason why the

12
judgment should not be signed’ by the court as proposed by the
parties. Neither party asserted any such reason.”
The court credited Joseph’s, Meir’s, and Joseph’s counsel’s
declarations, and found that Jennifer did not dispute Joseph’s
threat allegations: “[Joseph’s] declaration, along with that of his
father and his former counsel . . . all support the conclusion that
[Jennifer] and/or her family members and counsel communicated
to [Joseph] and/or his family members and counsel that certain of
[Meir’s] financial dealings might, if publicly exposed, be
embarrassing for him or even expose him to criminal liability. . . .
[Jennifer] seems not to deny any of this.”
The court concluded, however, that “the cat was out of the
bag” about Meir’s alleged financial shenanigans by June 2016
“when [Meir’s] financial dealings were at issue” in the three-day
evidentiary hearing on Jennifer’s request for support orders. The
court further observed that Joseph’s counsel’s declaration “makes
clear that [counsel] had first-hand knowledge for more than a
year before the court entered the stipulated judgment of the same
types of threats [Joseph] now asks the court to find deprived him
of the ability to do anything but give in to [Jennifer’s] demands.
If [Joseph] felt his lawyer was an instrument of the coercion or
was just not being a zealous enough advocate, he was free to hire
another lawyer in the six months that passed after the Deal
Memorandum was negotiated.”
The court ruled that the plain language of the stipulated
judgment refuted Joseph’s arguments that he did not know
Jennifer would sell the June Street residence for several million
dollars, that he did not receive any sale proceeds, and that he did
not receive any assets in the settlement. The court “conclude[d]
that the record before it cannot support a reasonable conclusion

13
that [Joseph] had no alternative but to succumb to [Jennifer’s]
demands.”
The court denied Joseph’s motion in its entirety, and denied
Jennifer’s request for sanctions. Joseph filed a timely appeal
from the order.9
DISCUSSION
Joseph’s sole argument on appeal is that the family court
abused its discretion by declining to hold an evidentiary hearing
on Joseph’s motion to set aside the settlement agreement and the
stipulated judgment. We agree that the family court
prejudicially erred by denying Joseph’s request for an evidentiary
hearing.
A. Applicable Law and Standard of Review
“At a hearing on any . . . notice of motion brought pursuant
to [the Family Code], absent a stipulation of the parties or a
finding of good cause . . . , the court shall receive any live,
competent testimony that is relevant and within the scope of the
hearing . . . .” (Fam. Code,10 § 217, subd. (a); see also Cal. Rules
of Court, rule 5.92(a)(1)(A) [in family law proceedings, “request
for order” has same meaning as “notice of motion”].) California
Rules of Court, rule 5.113(b) sets forth the factors “in addition to
the rules of evidence” a court must consider in making a finding
of good cause to refuse to receive live testimony under section
217: “(1) Whether a substantive matter is at issue—such as . . .

9 Jennifer moved to dismiss Joseph’s appeal as untimely
filed. We denied Jennifer’s motion on October 29, 2019.
10 All undesignated statutory references are to the Family
Code.

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the characterization, division, or temporary use and control of the
property or debt of the parties; [¶] (2) Whether material facts are
in controversy; [¶] (3) Whether live testimony is necessary for the
court to assess the credibility of the parties or other witnesses; [¶]
(4) The right of the parties to question anyone submitting reports
or other information to the court; [¶] (5) Whether a party offering
testimony from a non-party has complied with Family Code
section 217(c)[11]; and [¶] (6) Any other factor that is just and
equitable.” If the court makes a finding of good cause to exclude
live testimony, “it must state its reasons on the record or in
writing. The court is required to state only those factors on
which the finding of good cause is based.” (Cal. Rules of Court,
rule 5.113(c).)
“Generally, where a trial court has discretionary power to
decide an issue, an appellate court is not authorized to substitute
its judgment of the proper decision for that of the trial judge. . . .
‘“The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.”’ [Citations.] The burden is on the
complaining party to establish abuse of discretion.” (In re
Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

11 Section 217, subdivision (c), requires a party seeking to
present live testimony from witnesses other than the parties to
file and serve before the hearing a witness list with a brief
description of the anticipated testimony.

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B. The Family Court Abused Its Discretion by Denying
Joseph’s Request for an Evidentiary Hearing
The family court abused its discretion by finding good cause
to refuse to receive live testimony based on its conclusion that the
facts material to Joseph’s motion were not in controversy. Four
of the six factors rule 5.113(b) requires the court to consider in
making a finding of good cause to decline to receive live
testimony weighed against a finding of good cause.
First, a substantive matter was at issue in Joseph’s
motion—the division of the parties’ property. (See Cal. Rules of
Court, rule 5.113 (b)(1) [court must consider “[w]hether a
substantive matter is at issue—such as . . . the characterization,
division, or temporary use and control of the property or debt of
the parties”].) Joseph’s motion sought redistribution of the
proceeds of the sale of the June Street residence. Joseph argued
the court should award him either all or half of any sums
Jennifer had received from the sale of the property.
Second, the parties’ declarations conflicted on facts
material to the motion. (See Cal. Rules of Court, rule 5.113(b)(2)
[court must consider “whether material facts are in
controversy”].) Joseph asserted Jennifer’s orchestrated assault
and Jennifer’s and Sheryl’s threats forced Joseph to capitulate to
Jennifer’s settlement demands. Meir alleged Sheryl had
threatened him directly. Jennifer denied threatening Joseph and
denied Joseph experienced duress during the settlement
negotiations; she also “dispute[d] each and every statement
contained” in Joseph’s motion and declarations. Sheryl described
Joseph’s and Meir’s declarations as “complete fabrications,” and
denied threatening either of them.

16
 Third, the parties’ conflicting declarations demonstrated a
need “for the court to assess the credibility of the parties [and]
other witnesses.” (See Cal. Rules of Court, rule 5.113(b)(3).)
While the court had heard Jennifer and Joseph testify at the
March 12, 2018 hearing on the request to dissolve the civil
domestic violence restraining order, the court did not preside over
the evidentiary hearing on Jennifer’s request for support orders
during which the witnesses addressed Meir’s finances and
financial arrangements with Joseph, including regarding the
June Street residence. The court therefore had not previously
heard the parties’ live testimony on the issues underlying the
alleged threats and duress or assessed the witnesses’ credibility
on those issues.
Fourth, Joseph had complied with section 217,
subdivision (c), by filing and serving with his motion a list of
witnesses from whom he sought to present live testimony with a
brief description of each witness’s anticipated testimony. (See
Cal. Rules of Court, rule 5.113(b)(5) [court must consider
“whether a party offering testimony from a non-party has
complied with Family Code section 217(c)”].)
These four factors weighed against a finding of good cause
to refuse to receive live testimony, and nothing in the record
demonstrates that the other factors justified denying Joseph’s
request for an evidentiary hearing. (See Cal. Rules of Court, rule
5.113(b)(4) [court must consider “right of the parties to question
anyone submitting reports or other information to the court”];
Cal. Rules of Court, rule 5.113(b)(6) [court must consider “any
other factor that is just and equitable”].) We thus conclude the
family court abused its discretion by finding good cause to decline
to receive live testimony.

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C. The Error Was Prejudicial
The family court’s error in refusing to receive live
testimony on Joseph’s motion was prejudicial. The family court
seemingly believed Joseph’s contentions that Jennifer and Sheryl
had threatened Joseph and Meir, but nevertheless concluded the
alleged threats did not and could not demonstrate duress
sufficient to set aside the settlement agreement and the
stipulated judgment. In essence, the court found that nothing
Joseph or any other witness might say at an evidentiary hearing
could warrant granting Joseph’s motion.
A conclusion that live testimony could not under any
circumstances affect the outcome of Joseph’s motion cannot be
reconciled with the strong policy favoring reliance on live
testimony in family law proceedings. (See In re Marriage of
Binette (2018) 24 Cal.App.5th 1119, 1126-1127 [“The purpose of
section 217 is to encourage reliance on live, rather than written,
testimony in family law proceedings”]; In re Marriage of Swain
(2018) 21 Cal.App.5th 830, 838 [“The history of section 217 and
the case law that preceded it reflect a concern for the value of live
testimony rather than deciding substantive motions based upon
competing declarations”]; see also Elkins v. Superior Court (2007)
41 Cal.4th 1337.) Moreover, a claim of duress requires a court to
evaluate the effect of alleged threats “on the state of the
threatened person’s mind.” (In re Marriage of Baltins (1989) 212
Cal.App.3d 66, 84 [“[t]o determine whether a contract . . . was the
product of duress, the courts look not so much to the nature of the
threats, but to their effect on the state of the threatened person’s
mind”]; see also Krantz v. BT Visual Images, L.L.C. (2001) 89
Cal.App.4th 164, 176 [“‘[t]he question of duress . . . is a factual

18
question; the existence of duress always depends upon the
circumstances’”].)
Joseph’s intensely factual duress claims, the effect of the
alleged threats and duress on Joseph’s state of mind, and the
parties’ and witnesses’ contradictory statements could not be
resolved based upon competing declarations. Before concluding
that Joseph had not demonstrated the alleged duress compelled
him to surrender to Jennifer’s demands, and that Joseph would
have acted differently had he truly been under duress, the family
court should have heard and assessed Joseph’s live testimony
about the effect of the alleged threats on his state of mind, as well
as heard and assessed the live testimony of the other witnesses.
After an evidentiary hearing, the court may find Joseph’s
contentions do not justify setting aside the settlement agreement
and the stipulated judgment. Or the court may find that they do.
But before deciding the motion, section 217 requires the court to
evaluate Joseph’s duress claims, and the parties’ and other
witnesses’ credibility, by receiving live testimony.

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 DISPOSITION
The May 30, 2019 order denying Joseph’s motion to set
aside the settlement agreement and the stipulated judgment is
reversed. The case is remanded to the superior court with
directions to vacate the order denying Joseph’s motion to set
aside the settlement agreement and the stipulated judgment, to
hold an evidentiary hearing on the motion, and to enter a new
order(s) as appropriate following the evidentiary hearing. Joseph
shall recover his costs on appeal.

McCORMICK, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.


Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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