Filed 5/5/21 Marriage of Linett CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of BARBARA

and DANA LINETT.

BARBARA LINETT,

Respondent,

v.

DANA LINETT,

Appellant.

D075178

(Super. Ct. No. D545205)

APPEAL from a judgment of the Superior Court of San Diego County, 

Gerald C. Jessop, Judge. Affirmed.

Dana Linett, in pro. per., for Appellant.

Law Offices of Beatrice L. Snider and John L. Romaker for Respondent.

Dana Linett (Husband) and his former wife Barbara (Wife) entered into 

a Marital Settlement Agreement (MSA) awarding most of the community 

property to Husband, and requiring him to pay $2.8 million in an 

equalization payment. About 10 months after the MSA was incorporated into 
2

a final judgment, Husband moved to set aside the judgment, claiming he 

made a unilateral mistake in believing he could pay the $2.8 million in 

property, rather than in cash. (Fam. Code, § 2122, subd. (e).)1 

After a nine-day trial, during which Husband testified for about six 

days, the court found Husband did not meet his burden of proof on the issue 

and denied the motion. Husband appeals. We affirm. The court’s ruling was 

supported by the factual record and governing law. 

FACTUAL AND PROCEDURAL SUMMARY

Background

Husband and Wife were married in 1991. During their marriage, the 

couple operated two businesses out of their home. The businesses involved 

buying and selling historical (early American) collectibles. 

One of the businesses (referred to as EAN) owned collectibles and the 

other business (referred to as EAHA) operated as an auction-consignment 

entity selling collectibles. The couple also owned many collectible items in 

their personal collection (the parties disputed whether some of these items 

were Husband’s separate property). Husband is a well-regarded national 

expert in historical collectibles with a detailed knowledge of the items held by 

the couple. Wife mainly performed administrative work for the businesses. 

The couple’s Rancho Santa Fe home was valued at between $3.5 and $4 

million, with about $1.5 million in equity after subtracting the various 

encumbrances. The home contained many custom features allowing the 

couple to operate the collectibles businesses out of their home (such as a 

specially-built vault). 

The couple separated in September 2013 when Wife filed for 

dissolution. 

1 All unspecified statutory references are to the Family Code.
3

After acrimonious disputes over a proper property division and spousal 

support, the parties participated in a mediation on December 3, 2014. At the 

time, the parties had not determined the value of the community estate for 

various reasons, including the inherent difficulty of valuing the collectibles 

held by the parties and businesses. 

During the mediation, Husband was assisted by his family law 

attorneys, his business attorney, and a long-time EAN employee. Wife was 

assisted by her family law attorneys. At the end of the day, they agreed on 

settlement terms, and during the next several weeks exchanged several 

drafts and then reached a more formal agreement (the MSA). 

The MSA gave Husband title to almost all the property, including the 

EAN and EAHA businesses (and two other businesses), the Rancho Santa Fe 

home, and the business and personal collectibles. In exchange, Husband 

agreed to pay Wife an “equalization payment” of $2.8 million in installments 

over six years. Under the MSA, all of the collectibles would be immediately 

released to Husband except for items referred to as the “John Ford 

collection,” which would be placed in a safe deposit box to be used as security 

if Husband did not satisfy his payment obligations. 

Section 14 of the MSA contained the equalization payment obligations 

and security provisions, and stated in part: 

“A. . . . Husband shall pay Wife the sum of $2,800,000. 

This equalization payment is intended to be a tax free 

interspousal transfer [for federal and state tax purposes]. 

The equalization payment shall be paid as follows: 

“(1) $100,000 shall be due and payable to Wife within 90 

days of the date Wife executes this Agreement. 

“(2) $600,000 shall be due and payable to Wife by 

September 1, 2015, [and] shall be made payable by 

Husband to [Wife’s attorney’s office]. 
4

“(3) $200,000 shall be due and payable to Wife by 

September 1, 2016, [and] shall be made payable by 

Husband to [Wife’s attorney’s office]. 

“(4) Beginning March 1, 2017, and ending September 1, 

2020, $200,000 shall be due and directly payable to Wife 

every six (6) months (i.e., on March 1st and September 1st 

of every year), for a total of eight (8) installment payments. 

“(5) A final installment payment of $300,000 shall be due 

and payable to Wife on March 1, 2021.” (Italics added.)

The MSA imposed a 10 percent penalty if Husband “is ever late on any 

one” payment. Additionally, if Husband defaulted on any equalization 

payment, Wife had the right to trigger a sale of the Rancho Santa Fe 

residence. The equalization payment was also secured by “Husband’s 

complete John Ford collection.” Regarding this security, the MSA provided 

that Husband had the right to sell “any or all of the John Ford Collection 

items” subject to certain conditions, including the following: “No assets from 

the John Ford collection items shall be sold by Husband if Husband is not 

current on the equalization payments, until such time as Husband has made 

the sixth equalization payment to Wife . . . . After payment of the sixth 

equalization payment to Wife, Husband may sell . . . the John Ford collection 

items even if he is not current on the equalization payments . . . .” (Italics 

added.) 

The MSA also required Husband to pay Wife $5,000 in monthly spousal 

support, with payments terminating “upon Husband’s full satisfaction of the 

equalizing total payment set forth in Section 14 . . . .” 

The MSA contained several provisions in which the parties 

acknowledged they were reaching agreement without determining the extent 

of the community estate or the value of community property assets, and they 

understood the property division may not be equal. 
5

On December 21, 2014, the parties signed the MSA. The next week, on 

December 29, the court entered a judgment of dissolution incorporating the 

MSA (Judgment). 

Performance of the Agreement

Shortly after, the collectible items were released to Husband, except for 

the John Ford collection (valued by Husband at about $1 million) which was 

placed in a new safe deposit box to be used for security under the MSA terms. 

Husband continued to live in and hold title to the Rancho Santa Fe home, 

and continued to own and operate the businesses.

Husband paid the first installment by check ($100,000). 

On September 1, 2015, $600,000 was due under the MSA. On that 

date, Husband delivered to Wife’s attorney a $60,000 check and a box of 

collectible items. Wife immediately rejected this tender as not complying 

with the agreement. 

Shortly after, Wife moved for a court order clarifying that the MSA 

required the equalization installment payments in cash, not property. 

Husband opposed the motion, and alternatively moved to set aside the 

Judgment and the MSA based on mistake. 

Hearing On Wife’s Motion for Clarification

The parties stipulated that a privately compensated temporary judge, 

retired San Diego County Superior Court Commissioner Alan Clements, 

would resolve Wife’s motion. (See Cal. Rules of Court, rule 2.831.) After a 

three-day evidentiary hearing, Commissioner Clements issued a written 

“final” order, determining the MSA’s plain language required payment in 

cash, and rejecting Husband’s argument the agreement entitled him to 

satisfy his $2.8 million equalization obligation by tendering tangible 

property. Commissioner Clements found: “[T]he parties never had an 
6

agreement nor understanding between themselves for [Wife] to accept assets 

as opposed to cash.” 

Commissioner Clements stated, however, he recognized Husband 

“present[ed] genuine concerns about his understanding as to how the 

payments could be made, and genuine concerns regarding the viability of the 

business if the Court requires cash payments and does not allow asset 

payments. His concerns are those regarding his mistakes in signing the MSA 

without clarification as to how the payment could be made, and are clearly 

the subject of his pending motion to set aside the judgment on the MSA based 

upon unilateral mistake.” (Italics added.) 

Husband appealed Commissioner Clements’s order but the appeal was 

dismissed when he did not file an opening brief. 

Trial on Husband’s Claimed Unilateral Mistake

Husband’s motion to set aside the Judgment was then heard in 

superior court, with Superior Court Judge Gerald Jessop presiding. Although 

the parties initially estimated a three-day trial, the trial took nine days and 

primarily concerned Husband’s claim that he made a “mistake” in signing the 

MSA because he subjectively believed he could satisfy the equalization 

payment with “in-kind” property.

At the outset of the hearing, the parties’ counsel discussed the scope of 

the issues presented for the court’s resolution. Both counsel agreed 

Commissioner Clements had found the equalization payment must be paid in 

cash (rather than an in-kind property transfer) and Commissioner Clements’s 

order was a “final order” on this issue. Husband’s counsel acknowledged this 

determination was binding on Judge Jessop: “There’s no question about that. 

[Commissioner Clements] already made [this] finding. [¶] . . . This hearing 

before him was clarification of [the MSA’s] language. [Commissioner 
7

Clements] interpreted a dollar sign before a numeral to mean that it was 

cash payment because there wasn’t any other language to be clarified. [¶] 

And there’s no question that that’s a final order, and that order cannot be relitigated.” (Italics added) Husband’s counsel later repeated: “We’re not 

seeking to re-litigate” Commissioner Clements’s order, which Commissioner 

Clements “has ruled . . . is final.” 

But Husband’s counsel said Commissioner Clements’s order had left 

open the issue whether the court should set aside the Judgment based on 

Husband’s claimed unilateral mistake because the prior order did not 

“address[ ] the issue of mistake.” 

The court agreed with these observations, and confirmed its 

understanding that the hearing concerned Husband’s claim of unilateral 

mistake in believing he could satisfy his obligations with “in-kind” property. 

The court said: “The Court will find that [Husband is] collaterally estopped 

from claiming or presenting evidence as to what . . . [Commissioner 

Clements] has interpreted the language to mean; specifically, that payments 

were to be made in cash. However, . . . the issue of [Husband’s claimed] 

unilateral mistake has not been litigated; and consequently, [Husband] may 

put on evidence regarding his belief of what he was signing at the time.” 

The court also made clear that it understood Husband brought his 

petition under section 2122, subdivision (e), which permits a family court to 

set aside a judgment for a “mutual or unilateral” mistake if the mistake was 

“material.” (Italics added.)

During the lengthy trial, Husband testified that when he signed the 

MSA he believed he could make the equalization payments by transferring 

collectibles to Wife. He said he interpreted the MSA in this way because he 

believed the $2.8 million figure in Section 14 represented an “estimated retail 
8

value” or “estimated value range” as that was consistent with how the couple 

valued collectible items in his businesses. He said his mistake was that he 

thought the MSA was dividing the “estimated retail value” range of the 

collectibles. 

But Husband had considerable difficulty explaining the meaning of the 

“estimated” value figures or how they were determined or why he would have 

mistakenly reached this conclusion. For example, when asked to describe 

how the estimated-retail-value “figure came into existence,” Husband 

testified: “That’s a ballpark figure. Roughly what—the estimate range that 

we established for the items that we had on a retail basis, between the low 

estimate and the high estimate, is approximately, you know, for this type of a 

purpose—ballpark amount . . . .” Another time he responded to the question 

“what is estimated value range?,” by stating: “It’s my estimate of what I 

would hold out should be what somebody might bid on an item with a low 

estimate and a high estimate range.” And when asked what he thought the 

dollar sign meant in Section 14, he responded that it referred to “value,” 

which he said meant: “The estimate ranges or accumulation thereof, of the 

items that the community owned.” When asked another time for his 

definition of “value” or “estimate range,” he responded: “It’s what I’d love to 

get for the item, price-wise.” On another occasion when asked “what does the 

estimated retail value mean to you?,” Husband replied: “That is a . . . value 

that we would hope to receive on a retail basis, holding out the items to the 

world, basically.” 

Husband testified he believed his mistake was reasonable and should 

require the court to set aside the MSA and Judgment because it would be 

“impossible” for him to meet the equalization payment if he was required to 

pay in cash. He said, “There simply doesn’t exist enough [collectibles] to turn 
9

it into $2.8 million of cash.” He claimed he would not have signed the MSA if 

he thought he had to pay in cash. However, when asked if he was permitted 

to pay with collectible items, “why would [he] need a 6-year installment 

plan,” Husband responded, “I did not.” 

Husband additionally said at one point he believed the business 

collection was worth approximately $6 million as a “ballpark” amount, but 

later testified this was a “fantasy number” of the amount the couple “hoped 

the items might be worth.” Husband believed the John Ford collection was 

valued at about $1 million, but claimed this was his “personal” collection. 

During trial, Wife strenuously challenged the validity of Husband’s 

claim that he subjectively believed the couple had agreed he could satisfy the 

$2.8 million payment by transferring property reflecting an “estimated retail 

value.” She testified she did not recall this term was ever used in the parties’ 

presettlement correspondence, and said the phase “estimated retail value” 

was used in the business to place a value on a consignor’s property “so that 

we could insure it.” 

Wife said it was clear to her during the mediation that the $2.8 million 

equalization payment would be paid in cash. She said that although she 

preferred a three-year deadline for the equalization payments, she agreed to 

the six-year installment plan “to give [Husband] time to raise the cash.” Wife 

testified that she would never have agreed to permit Husband to satisfy his 

equalization obligation in assets because (1) “nothing had been valued by an 

outside party . . . [and] [w]e had no listings [or] outside evaluation of what 

the market value of our collectibles were”; and (2) there were no MSA 

provisions ensuring that any transferred property had the value attributed to 

it by Husband. Wife further testified she insisted on security in the MSA “in 

the event that [Husband] was unable or unwilling to raise the [necessary] 
10

cash.” She said the security consisted of the home (which the evidence 

showed had about $1.5 in equity) and the John Ford collection which she 

believed was worth about $900,000. 

Wife also testified that at the time of the mediation, she believed the 

community estate was worth approximately $11 million (including the 

couple’s business and community personal collectible items). When asked 

why she was willing to accept far less than one-half that number as the 

equalization, she said “I didn’t want a long, drawn-out divorce. I wanted it to 

be over.” 

Each of the parties also called various witnesses, including accountants 

and an expert on historical collectibles. The parties were precluded from 

introducing any evidence of their specific communications during the 

mediation. (See Evid. Code, § 1119, subds. (a), (c).)

At the conclusion of the evidence, the court stated it had 35 pages of 

typewritten notes and it “intend[ed] to go through all of those notes before I 

make [a] decision.” The court then heard counsels’ arguments, and took the 

matter under submission. 

Court’s Ruling

About 11 days later, the court held a hearing during which it ruled that 

Husband did not meet his burden to show the Judgment should be set aside 

based on his claimed unilateral mistake. The court orally explained its 

reasoning in detail. The substance of this explanation was later incorporated 

in a comprehensive statement of decision and a lengthy final order after 

hearing. 

We summarize the relevant findings here. 

First, the court had “serious reservations” about the “credibility” of 

Husband’s claim that he did not understand he would be required to pay in 
11

cash. The court found Husband never adequately explained the “disconnect” 

between the MSA’s unambiguous language requiring a cash payment and his 

assertion that the $2.8 million referenced the parties’ intent to divide the 

“estimated retail value” of the parties’ collectibles and thus the equalization 

payment could be paid in property. The court noted that despite Husband’s 

vast business experience, he provided only “disjointed testimony and 

evidence” to support his “claim of mistake.” The court also discussed at 

length Husband’s testimony about the “estimated value range,” and the 

various figures within this range (“low,” “high” and “mid-range”), and 

found this evidence to be of questionable relevance as it relates to 

“equalization dollars.” 

The court also noted that Husband had identified $6 million as the 

value of the business collectibles in the parties’ negotiations and in loan 

applications, but that Husband later said this figure was a “fantasy.” The 

court observed: “[Husband] did not explain why he would have applied an 

apparent fantasy number to the EAN’s inventory or his personal collection 

[p]articularly if he used that number in applications for credit. [Husband] 

was represented by two attorneys during the mediation [his family law 

attorney and his business attorney]. . . . EAN’s long­time employee . . . [was] 

also present. After the mediation, [Husband] had 18 days between the time 

he entered into the terms of the mediated stipulation settling the matter 

until he signed the final MSA incorporating the agreement . . . . It stretches 

credibility to believe that these professionals were using fantasy numbers in 

considering the terms of the MSA.” 

After discussing its factual conclusions as to Husband’s mistake 

claim, the court described the applicable law. The court said that 

Husband’s “reliance upon evidence of subjective intent alone is 
12

insufficient,” and cited to several decisions discussing legal principles 

requiring an objective (rather than subjective) interpretation of contracts, 

including Winet v. Price (1992) 4 Cal.App.4th 1159 and Brant 

v. California Dairies, Inc. (1935) 4 Cal.2d 128. The court also said that a 

party’s unilateral mistake is generally insufficient to obtain equitable 

relief from the contract terms if the other party did not know of or cause 

the mistake. The court additionally said a party bears the risk of mistake 

if “he has only limited knowledge with respect to the fact to which the 

mistake relates but treats his limited knowledge as sufficient.” 

On the separate issue of materiality, the court found Husband “did 

not satisfy his burden to prove that he would materially benefit if the 

Court were to set aside the MSA’s property division provisions,” noting 

that Husband “never provided to the Court with even an estimated 

opinion of value of the community property collectibles [when the] Parties 

entered into the MSA. [¶] . . . [¶] The Court does not know whether 

[Husband] is complaining that he ‘paid too much’ or ‘didn’t give himself 

enough time to perform’ under the terms of the agreement. To this date, 

no one knows the value of the community property estate or the time it 

would take to otherwise liquidate the inventory. The court does not know 

the relative value of the other issues settled by the MSA and ‘equalized’ 

by the $2.8 million payable by [Husband] to [Wife].” 

Finally, the court rejected Husband’s claim that performance was 

impossible, noting that Husband never made any attempt to perform. 

The court observed that Husband admitted he could have attempted to 

sell two of his “high value” coins for a combined $375,000, but did not do 

so because he did not “believe” he could locate a buyer. The court said 

that Husband “was very knowledgeable regarding his business and the
13

difficulties regarding sale of collectible assets. The MSA provided for a 

pay-out over 6 years apparently in recognition of these difficulties.” 

On the impossibility argument, the court also found Husband “could 

have sold the John Ford collection assets which were being held as 

security for the equalization payment in the [safe deposit box]. [Husband] 

indicated that he could have raised approximately $1 million towards the 

equalization payment through the sale of those items. [Husband] then 

relied upon circular rationale when he testified that the John Ford 

collection items became unavailable for sale under the terms of the MSA 

when they became security. They became security when he failed to 

make the second payment. [Husband’s] excuse for not selling the John 

Ford collection in order to pay the equalization installment was his 

allegation that the equalization payment was not secured by all items of 

the John Ford collection. This does not make sense.” 

Representing himself on appeal, Husband challenges the court’s 

order denying his section 2122, subdivision (e) set-aside motion.

DISCUSSION

I. Legal Principles and Appellate Review Standards

A party may move to set aside a family court stipulated judgment 

on the grounds of “mistake, either mutual or unilateral, whether mistake 

of law or mistake of fact” if the motion is “brought within one year” after 

judgment is entered. (§ 2122, subd. (e).) “[B]efore granting relief, the 

court shall find that the facts alleged as the grounds for relief materially 

affected the original outcome and that the moving party would materially 

benefit from the granting of the relief.” (§ 2121, subd. (b).) But a 

“judgment may not be set aside simply because the court finds that it was 

inequitable when made, nor simply because subsequent circumstances 
14

caused the division of assets or liabilities to become inequitable . . . .” 

(§ 2123.) 

Under these provisions, a party moving to set aside a judgment 

under section 2122, subdivision (e) based on a mistake has the burden to 

show (1) the mistake; and (2) the mistake was material. (See In re 

Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 82 (Kieturakis); In re 

Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684-685 (Rosevear).) We 

review the court’s ruling for abuse of discretion. (In re Marriage of 

Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346 (Brewer & Federici).) 

In so doing, we consider the court’s factual findings under the substantial 

evidence review standard, and the court’s legal conclusions under the de 

novo review standard. (See Haraguchi v. Superior Court (2008) 43 

Cal.4th 706, 711-712; In re Marriage of Walker (2012) 203 Cal.App.4th 

137, 146.)2 

In reviewing the court’s factual findings, we “ ‘examine the evidence 

in the light most favorable to the prevailing party and give that party the 

benefit of every reasonable inference. [Citation.] We accept all evidence 

favorable to the prevailing party as true and disregard contrary evidence. 

[Citation.]’ [Citation.] ‘We do not reweigh the evidence or reconsider 

credibility determinations. [Citation.]’ ” (In re Marriage of Calcaterra & 

Badakhsh (2005) 132 Cal.App.4th 28, 34.) 

It is a fundamental rule of appellate law that the lower court’s 

judgment is presumed to be correct. (Jameson v. Desta (2018) 5 Cal.5th 

594, 608-609.) An appellate court “ ‘ “must presume that the record 

contains evidence to support every finding of fact . . . .” ’ [Citations.] It is 

2 We reject Wife’s argument the substantial evidence standard “does not 

apply” if a trier of fact concludes a party has not met his burden of proof. 
15

the appellant’s burden . . . to identify and establish deficiencies in the 

evidence. [Citation.] This burden is a ‘daunting’ one.” (Huong Que, Inc. 

v. Luu (2007) 150 Cal.App.4th 400, 409.) 

II. Unilateral Mistake

Under section 2122, subdivision (e), a mutual or unilateral mistake 

is sufficient to support a set-aside order, and the mistake can be one of 

fact or law. (See Brewer & Federici, supra, 93 Cal.App.4th at pp. 1346-

1348.) The code section does not define a “unilateral” mistake, and the 

courts have not specifically determined the precise scope of this term. 

(See In re Marriage of Varner (1997) 55 Cal.App.4th 128, 142 [“Less clear 

is the meaning and the nature of the ‘mistake’ which permits the setting 

aside of a judgment.”].) But we agree with both parties that it is 

appropriate to look to contract law standards for guidance on the meaning 

of a unilateral mistake under this code section. (See In re Marriage of 

Simundza (2004) 121 Cal.App.4th 1513, 1518.)

Under California contract law, to establish a basis for relief on a 

unilateral mistake-of-fact theory, a party may be entitled to relief even if 

the other party was unaware of the mistake and did not contribute to it. 

(Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 280-282 (Donovan).) But to 

prevail under these circumstances, the moving party must establish: “(1) 

[he] made a mistake regarding a basic assumption upon which [he] made the 

contract; (2) the mistake has a material effect upon the agreed exchange of 

performances that is adverse to the [mistaken party]; (3) the [mistaken party] 
16

does not bear the risk of the mistake; and (4) the effect of the mistake is such 

that enforcement of the contract would be unconscionable.”3 (Id. at p. 282.) 

Husband argues the court erred because it never identified or 

specifically applied these factors, and instead discussed the law applicable 

to interpreting a contract (requiring a focus on objective rather than 

subjective intent), and stated that “as a general rule” relief for a mistake 

generally cannot be granted if the mistake was not “known to nor caused 

by the other party.” 

There is no showing in the appellate record that Husband’s 

attorneys objected to the court’s rulings on this basis. Thus, the 

contention is forfeited. (In re Marriage of Arceneaux (1990) 51 Cal.3d 

1130, 1132; Avalos v. Perez (2011) 196 Cal.App.4th 773, 776.) But even if 

Husband had properly preserved the issue, there was no prejudicial error. 

Read in context, the court’s statements were consistent with the elements 

identified in Donovan and the required analysis under section 2122, 

subdivision (e). Most important, the court found that Husband did not 

meet his burden to prove the very first element of the Donovan unilateralmistake test, i.e., that he “made a mistake regarding a basic assumption 

upon which [he] made the contract.” (Donovan, supra, 26 Cal.4th at p. 282.) 

At trial, Husband argued he made a mistake because he believed the 

parties had agreed in the MSA he could satisfy his equalization obligation 

by transferring property to Wife, rather than paying her cash. The court 

3 In identifying different elements of a unilateral-mistake claim, Wife 

relies on Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 

Cal.App.4th 1410. This reliance is misplaced. In Donovan, the California 

Supreme Court limited Hedging Concepts to a mistake-of-law claim. 

(Donovan, supra, 26 Cal.4th at pp. 279-282.) In Donovan, as here, the issue 

involved a claimed mistake of fact. Thus, Donovan is controlling, and not 

Hedging Concepts.
17

found Husband was not believable on this issue. The court stated it had 

“serious reservations” about Husband’s credibility regarding the “in-kind” 

payments. The court detailed the weaknesses in Husband’s evidence and 

found Husband’s testimony as to his mistake to be disjointed and 

confusing. Based on these findings, the court found Husband had not 

proved a “unilateral mistake” that could legally support setting aside the 

parties’ MSA and the Judgment. Under Donovan and section 2122, 

subdivision (e), this finding required the court to deny Husband’s setaside motion.

In his appellate briefs, Husband expresses disagreement with the 

court’s factual findings. But we are bound by these findings if supported 

by substantial evidence (In re Marriage of Ciprari (2019) 32 Cal.App.5th 

83, 93-94), and Husband’s challenges to the sufficiency of the evidence are 

without merit.

First, Husband cannot prevail because he did not fairly and 

accurately summarize all of the evidence presented at the nine-day trial 

on the mistake issue. (See Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 

1408 (Rayii).) He discussed only the evidence favoring his claims, and 

failed to explain why the contrary evidence and inferences from this 

evidence did not support the court’s conclusions. 

“ ‘ “An appellant challenging the sufficiency of the evidence to 

support the judgment must [describe] the evidence in the record 

supporting the judgment and explain why such evidence is insufficient as 

a matter of law. [Citations.] An appellant who fails to cite and discuss 

the evidence supporting the judgment cannot demonstrate that such 

evidence is insufficient. . . . Accordingly, a party challenging the 

judgment for lack of substantial evidence must ‘ “set forth, discuss, and 
18

analyze all the evidence on that point, both favorable and unfavorable.” ’ 

[Citation.] Unless this is done the error is deemed to be waived.” ’ ” 

(Vendor Surveillance Corp. v. Henning (2021) 62 Cal.App.5th 59, 76-77;

see Verrazono v. Gehl Company (2020) 50 Cal.App.5th 636, 652-653.) 

Moreover, even if we were to reach the issue on its merits, there is 

ample evidence in the record supporting the court’s finding that Husband 

did not meet his burden to show he subjectively believed the parties had 

agreed he could satisfy his $2.8 million payment obligation with 

collectibles in lieu of cash payments. 

First, Husband’s claim was inconsistent with the circumstances 

leading to the settlement. After the parties were unable to agree on a 

proper valuation of their community property (including the value of each 

of their hundreds of collectible items), the parties engaged in lengthy 

settlement negotiations with an experienced family law mediator. 

Husband (an experienced businessperson) was assisted by his business 

and family law attorneys and his long-time employee. The parties’ 

agreement gave Husband most of the community property, and contained 

unambiguous language requiring Husband to pay an equalization 

payment in dollars. Husband then had 18 days to review the agreement 

until he signed the final MSA. As reflected in the trial court’s findings, if 

Husband actually believed Wife had agreed he could meet the payment 

obligation by transferring property to her, it is reasonable to conclude he 

would have insisted on such language in the agreement. 

Additionally, the fact the parties agreed Husband would have six 

years to satisfy the $2.8 million payment obligation supports that 

Husband understood the parties were agreeing to pay in cash. As 

Husband acknowledged at trial, such extended payment plan would have 
19

been unnecessary if he could satisfy the obligation by transferring 

property. 

Further, the court had a reasonable basis to consider that the MSA 

contained no provisions to value property transferred by Husband to meet 

his equalization obligations. The parties expressly agreed in the MSA 

that they had not valued their community property, and there was 

extended testimony at trial about the difficulty in determining the value 

of any particular collectible. Under these circumstances, the court had a 

reasonable basis to decline to credit Husband’s claim he actually thought 

Wife had agreed or would have agreed to accept whatever items he 

unilaterally selected to compensate her for the $2.8 million payment 

obligation.

Additionally, the court found Husband’s explanation at trial for his 

claimed mistake—that he thought the parties had agreed to divide 

“estimated retail value”—undermined the credibility of his mistake claim. 

As the court noted, Husband’s testimony on the “estimated retail value” 

concept was highly problematic for numerous reasons, including that 

Husband could not explain the concept with any clarity; there was no 

specific identified value for each item (at most, there was a low, high, and 

mid-range “estimated” value); Husband acknowledged the concept 

referred only to an amount the parties “hoped” to obtain from selling the 

item; Husband admitted the estimated retail value was not equivalent to 

fair market value; the parties expressly agreed in the MSA they had not 

placed a value on the community property items or determined the extent 

of the community estate; and Husband was aware the equalization 

payment was not only to compensate for the collectibles but also to 
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compensate for the other community property received by him, such as 

the Rancho Santa Fe residence. 

In challenging the court’s factual conclusions, Husband discusses 

his own evidence supporting his unilateral-mistake claim, including that 

the MSA did not use the word “cash”; it was undisputed that the couple 

owned primarily property rather than cash; the MSA does not specifically 

state that Husband will have to sell property to meet his equalization 

obligation; the fact that Section 14 stated Husband’s equalization 

payments were “ ‘tax-free’ ” under the Internal Revenue Code; and 

Husband’s testimony he believes it would have been “impossible” to 

transform his collectibles into cash during the six-year period. 

In asserting these arguments, Husband is asking us to place greater 

weight on his evidence than did the trial court, something we cannot do. 

(Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1043-1044.) We cannot 

reverse a court’s order merely because there was evidence that could 

support a contrary finding. (Ibid.; Norasingh v. Lightbourne (2014) 229 

Cal.App.4th 740, 753.) When reviewing an appellate challenge to a 

court’s factual finding, we do not determine whether substantial evidence 

could have supported a different finding, but only whether substantial 

evidence supports the finding the trial court actually made. (Norasingh, 

at p. 753; see Rayii, supra, 218 Cal.App.4th at p. 1408.)

Husband alternatively argues the court made a legal error in 

denying his motion because the court did not understand a unilateral 

mistake alone could support relief under section 2122, subdivision (e). 

The record does not support this argument. Judge Jessop, a highly 

experienced family law court judge, expressed an understanding 

throughout the trial that Husband’s motion was brought under section 
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2122, subdivision (e) and that a “unilateral mistake” could serve as a 

basis to set aside the judgment if Husband in fact proved the unilateral 

mistake. Likewise, we find unavailing Husband’s focus on the court’s 

statement that a party’s subjective belief alone is insufficient to show 

unilateral mistake. We agree with the court that under the 

circumstances here Husband was not entitled to relief if he established 

only that he subjectively believed he could satisfy his payment obligations 

by transferring property. Rather, the issue was whether Husband 

subjectively (but mistakenly) believed that he and Wife had agreed to this 

payment plan. We are fully satisfied the court understood these concepts, 

and as discussed, had substantial evidence to reject this claim.

Husband additionally argues the court failed to “address” tax issues 

and/or allow the admission of evidence on the relevant tax laws. 

However, Husband’s record citations do not support this assertion. At 

most, he cites to the court’s ruling that he was barred from relitigating 

the objective meaning of the MSA. However, this ruling was proper and 

was agreed to by Husband’s counsel. (See part IV, post.) Further, this 

ruling did not preclude Husband from presenting evidence as to his 

claimed unilateral mistake. To the extent Husband believed tax-related 

evidence was relevant to the issue of his mistake, he was permitted to 

present this evidence at the hearing, and there is no showing he was 

precluded from doing so. 

Moreover, the court had a reasonable basis to reject Husband’s taxrelated arguments. Husband argues that requiring him to sell the 

collectibles and pay Wife in cash was unfair and inconsistent with the 

parties’ agreement because this would require him to solely bear any 

taxes upon the sale of a collectible (presumably some form of capital gains 
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taxes). Husband maintains that the MSA’s provision that his 

equalization payments were to be a “tax free interspousal transfer” means 

he did not agree to pay the taxes from selling a collectible, and thus he 

should have been permitted to transfer in-kind property to satisfy his 

equalization obligations. 

The court was not required to accept this argument. The MSA’s 

tax-free interspousal provision was based on the “applicable provision of 

the Internal Revenue Code,” which provides that transfers between 

spouses incident to a divorce do not constitute an income tax event, and 

therefore there are no income tax consequences to the receiving party for 

such transfers. (26 U.S.C. § 1041; see In re Marriage of Bergman (1985) 

168 Cal.App.3d 742, 762.) This principle is not necessarily the same as 

the issue whether a spouse selling property to fund an equalizationpayment obligation must pay any taxes upon the sale of the property. As 

Wife points out, Husband presented no legal authority or evidence, nor 

made any attempt to present authority or evidence, as to whether he 

would be required to pay taxes and the amount of such taxes (if any) if he 

sold his collectibles to pay the required equalization payments to Wife. 

His claim in his appellate brief that his tax burden would be $1.7 million 

if he was required to “sell pre-existing items to raise cash” is 

unsupported, as is his claim that the court would not permit him to 

present this evidence. 

Although the court could have found that Husband’s understanding 

of the MSA’s interspousal-transfer income tax provision reflected his 

unilateral mistake that an in-kind transfer was permissible, it was not 

required to do so. Based on the MSA terms and the evidence at the 

hearing, the court could reasonably conclude that when the parties signed 
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the MSA, they understood and intended that Husband, and not Wife, 

would bear the costs of selling any asset, including any related taxes 

arising from the sale. 

III. Materiality

To establish grounds to set aside a judgment under section 2122, 

subdivision (e), the party must also show the mistake was material. 

(§ 2121, subd. (b); Rosevear, supra, 65 Cal.App.4th at pp. 684-685, & 

fn.11.) The party must prove the mistake resulted in a “material 

disadvantage” to him. (Rosevear, at p. 685, fn. 11; Kieturakis, supra, 138 

Cal.App.4th at p. 89.) 

The court found Husband did not meet his burden on this element 

because he did not present credible evidence as to the community estate’s 

total value. The court said without such evidence, it did not have a 

reasonable basis to conclude that if the court set aside the MSA and 

Judgment that Husband would receive a greater share of the parties’ 

community property. 

In challenging this finding, Husband argues the record showed that 

allowing him to pay “in-kind” would clearly be more advantageous to him 

than requiring a cash payment. However, this is not the applicable 

standard. It was undisputed at trial that Wife had never in fact agreed to 

accept “in-kind” payments. So in determining whether Husband met his 

burden on materiality, the court was not required to compare “in-kind” 

transfers with “cash” payments. Rather, the court was required to 

consider whether Husband would achieve a better result if the MSA was 

vacated and the couple was required to start anew to value and then 

equally divide all of their community property. The court had a 
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reasonable basis to conclude Husband did not meet this burden to 

establish he would be in a better position if this were to occur.

IV. Collateral Estoppel

Husband contends the court erred in concluding Commissioner 

Clements’s ruling was final for purposes of applying the collateral 

estoppel and/or res judicata doctrines. Husband argues that 

Commissioner Clements’s order did not have the “the language or finality 

of a judgment” to serve as res judicata or collateral estoppel. 

This argument is forfeited because Husband’s counsel conceded at 

trial that this prior order was a final order and that the parties could not, 

and would not, relitigate the issue of the meaning of the MSA.

Husband argues the court erred “by not allowing [him] to develop 

the Mistake issues based on the ‘cash’ vs ‘in-kind’ confusion, by simply 

brushing it away as res judicata.” The argument is unavailing because 

the court did allow Husband to fully develop his unilateral mistake claim 

(including by allowing him to testify for six days on this issue) and did not 

“brush[ ] it away as res judicata.” Husband cites to the court’s statement 

at the end of trial in which the court rejected Husband’s counsel’s request 

that it reinterpret the MSA “to allow the $2.8 million equalization 

payment owed by [Husband] . . . to be satisfied either in cash and/or inkind.” This statement does not reflect the court improperly believed it 

could not rule on the mistake issue. Rather, the court was merely 

reiterating its earlier ruling (agreed to by both counsel) that it would not 

reconsider the issue already resolved by Commissioner Clements 

(concerning the objective meaning of the MSA). 
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V. Exhibits and Augmentation Request

Husband requests we augment the record with an August 8, 2016 

letter to Wife’s counsel from Husband’s trial attorney, and a document 

purporting to be a September 7, 2016 email from Commissioner Clements 

to the parties’ counsel. We deny this request because there is no 

indication these documents were before Judge Jessop in the set-aside 

proceedings. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 

Cal.4th 434, 444, fn. 3.) In any event, these documents are not material. 

They concern views expressed by Husband’s trial counsel and 

Commissioner Clements regarding his prior ruling (after the ruling was 

issued). These views have no relevance to the issues before us. 

After the appeal was fully briefed, this court noted the parties had 

not filed the exhibits cited in their appellate briefs, and gave counsel 

additional time to lodge those exhibits. In response, both parties 

promptly filed those exhibits. Wife then objected to four of the Husband’s 

submitted exhibits, arguing they were never presented to the court below 

and/or they are irrelevant. We agree with both grounds, and strike those 

exhibits. 
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DISPOSITION

Order affirmed. Appellant to bear respondent’s costs on appeal. 

HALLER, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.