1

Filed 5/3/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Estate of SCOTT ESKRA, Deceased.

BRANDY L. ESKRA,

Petitioner and Appellant,

v.

CATHERINE GRACE et al.,

Objectors and Respondents.

 A162671

 (Humboldt County

 Super. Ct. No. PR180086)

Brandy L. Eskra (Brandy) filed a probate petition seeking to be

appointed the personal representative of her late husband’s estate. The

trial court denied her petition based on a premarital agreement (Agreement) 

that waived Brandy’s interests in her husband’s separate property, and the

court appointed his parents (respondents) co-administrators of the estate. In 

a prior appeal this court held Brandy was entitled to introduce extrinsic 

evidence in support of her argument that she and her late husband 

mistakenly believed the Agreement would apply only in the event of divorce, 

rather than upon death. On remand, the trial court found that the mistake 

was a unilateral mistake on Brandy’s part and that she was not entitled to 

rescission. Brandy again appealed.

We affirm. Because Brandy failed to read the Agreement and to meet 

with her attorney to discuss it before signing it, she bore the risk of her 

mistake and is not entitled to rescission. (See Donovan v. RRL Corp. (2001) 
2

26 Cal.4th 261, 283 (Donovan); Casey v. Proctor (1963) 59 Cal.2d 97 (Casey); 

Civ. Code, § 1577.)1 In addition, any error by the trial court in failing to 

make findings regarding voluntariness required by Family Code section 1615, 

subdivision (c), was not prejudicial.

BACKGROUND2

On May 2, 2015, Brandy married Scott Eskra (Scott).3 Previously, 

Scott had been married to Stephanie Simera. Scott had one daughter, who 

was nine years old when Scott married Brandy. Scott died intestate in an 

accident in March 2018.

The day before Brandy and Scott married, they executed the

Agreement. The trial court concluded, and the parties do not dispute, that

the language of the Agreement “effectively terminated any rights Brandy had 

in Scott’s estate, should he predecease her. If the agreement is valid and 

enforceable, Scott’s minor daughter will inherit Scott’s estate by way of 

intestate succession. If the agreement is not valid or enforceable, then 

Brandy and Scott’s minor daughter would share in Scott’s estate.”

The Agreement

In April 2015, shortly before their wedding date, Brandy learned that 

Scott wanted a premarital agreement. Brandy engaged the services of 

attorney Tracy Rain and met with her on April 24. On May 1, Brandy and 

Scott signed the Agreement at the office of Scott’s attorney, Laurence Ross. 

1 All undesignated statutory references are to the Civil Code.

2 Portions of this background summary are taken from this court’s 

decision in Eskra v. Eskra, et al. (July 27, 2020, A158136) [nonpub. opn.] 

(Eskra I).

3 We refer to Brandy and Scott by their first names for the sake of 

clarity. No disrespect is intended.
3

Mr. Ross was present at the signing, along with a notary, but Ms. Rain was 

not present.

In the 11-page Agreement, Brandy and Scott “acknowledge to each 

other that each does not now claim any right or interest in the present or 

future income, property, or assets of the other.” The Agreement provides that 

“[t]he parties desire that all property owned by either of them be preserved as 

the separate property of each party. All property acquired by either party by 

gift or inheritance during their marriage, or by earnings, will be entirely his 

or her separate property.” The Agreement specifies that the parties intend to 

occupy Scott’s home, that any payments made by Brandy toward that 

property would become Scott’s separate property, and that Brandy would not 

be reimbursed for any such payments “in the event of the parties’ separation 

or divorce, or upon the death of either party.”

In addition, in paragraph 5.01, the Agreement expressly waives on 

behalf of each party, “all right, claim, or interest, ... that he or she may 

acquire in the separate property of the other by reason of the marriage, 

including, without limitation: [¶] 1) Community property rights; [¶] 2) The 

right to a family allowance; [¶] 3) The right to a probate homestead (a 

homestead set apart by the court for the use of a surviving husband or wife 

and the minor children out of the common property or out of the real estate

belonging to the deceased); [¶] 4) Right to have exempt property set aside[.]” 

The Agreement states that both parties were represented by independent 

counsel. It includes a standard integration clause stating that it “contains 

the entire understanding and agreement of the parties.”

Brandy’s Petition and the Eskra I Appeal

After Scott died in 2018, Brandy petitioned to be appointed personal 

representative to administer his estate. Scott’s ex-wife, Ms. Simera, filed an 
4

objection in her capacity as guardian ad litem for her and Scott’s minor 

daughter. Scott’s parents, respondents Steve Eskra and Catherine Grace, 

filed a competing petition for appointment as personal representatives.

Ms. Simera and respondents filed a motion in limine to exclude 

extrinsic evidence concerning the Agreement. The trial court granted the 

motion in limine, reasoning that Brandy was not permitted to introduce 

extrinsic evidence to contradict the terms of the Agreement. The court also 

found the Agreement was voluntary and enforceable. The court denied

Brandy’s petition and granted the competing petition, appointing 

respondents as co-administrators of the estate.

In the July 2020 Eskra I decision, this court rejected Brandy’s 

contention that extrinsic evidence was admissible to show a latent ambiguity

in the Agreement, concluding the “[A]greement is not reasonably susceptible 

to an interpretation that it is inapplicable in the event of death.” (Eskra I, 

supra, A158136.) On the other hand, this court concluded the trial court 

erred in barring extrinsic evidence for the purpose of proving “the parties 

intended the [A]greement only to apply in the event of divorce or dissolution 

of marriage, but the [A]greement does not reflect this intent due to drafting 

errors.” (Ibid.) This court remanded with directions to accept evidence “to 

determine whether the parties had a mistaken belief concerning the meaning 

of the” Agreement. (Ibid.) This court also stated, “If Brandy’s evidence 

establishes a unilateral mistake, it would be up to the trial court in the first 

instance to determine its import.” (Ibid.) This court found it unnecessary to 

address Brandy’s claim the Agreement was involuntary under Family Code 

section 1615.
5

Evidence on Remand

On remand, the trial court set the matter for trial and the parties filed 

pretrial briefs. On the first day of trial, the court ruled the scope was limited 

to considering Brandy’s theory of unilateral or mutual mistake; the court 

declined to consider whether the Agreement was entered voluntarily within 

the meaning of Family Code section 1615. The court received testimony over 

two court days.

Scott’s attorney, Mr. Ross, testified Scott said he wanted a premarital 

agreement that would provide that his property would remain his property, 

in the event of either divorce or his death. Brandy testified that, on April 22, 

2015, Scott told Brandy she needed to see an attorney about the proposed 

premarital agreement. Scott gave her a card with three names, and she 

picked Ms. Rain. Mr. Ross then prepared a draft agreement and emailed it to 

Ms. Rain.

Ms. Rain testified she met with Brandy to go over the draft premarital 

agreement in the morning on April 24, 2015. At the meeting, Ms. Rain 

explained the draft agreement to Brandy over the course of an hour and a 

half. Ms. Rain testified Brandy had understood Scott wanted an agreement 

addressing what would happen if they divorced, but the inclusion of 

provisions relating to death “was news to her.” Brandy testified she became 

“really upset,” telling Ms. Rain that the agreement “wasn’t supposed to be 

about death” but was “only in the event of a divorce.” Ms. Rain testified she 

told Brandy at the end of the meeting, “I’ll seek to have the death applicable 

clauses redacted, and you’ll talk to your husband or your fianc[é] to confirm 

that that’s what both of you want.” Brandy testified that Ms. Rain told her to 

go home and talk to Scott and that she did not have a specific understanding 

about which section or sections Ms. Rain believed should be removed. 
6

Brandy testified she talked to Scott about 45 minutes later and he said 

he “didn’t know anything about death” in the draft agreement. She further 

testified that he immediately telephoned his attorney, Mr. Ross, in her

presence and that she heard Scott say, “This isn’t about death. It’s about 

divorce only. Take it out.” Brandy understood that he was talking to Mr. 

Ross. Later, in the evening, Scott told her, “I didn’t know that that was in 

there. It wasn’t supposed to be in there.” Brandy testified her teenage son 

was present during the evening conversation, and the son testified he 

remembered an instance before the wedding when Scott and Brandy were 

both upset there was “a death clause” in the draft agreement because “they 

only wanted it in case of divorce.”

Also on April 24, 2015, Ms. Rain sent an email to Mr. Ross stating, 

“[Brandy] believes that it is the intent of both [Scott] and herself to protect 

the separate property nature of their acquisitions — both before and during 

marriage — in the event that the marriage ends in divorce, but not in the 

event that the marriage ends in death.” She continued, “I believe [Brandy] 

intends to discuss/confirm this [with Scott] today. To that extent she is 

hopeful that [Scott] will agree to redact from the [draft agreement], prior to 

its execution,” several subsections of paragraph 5.01 waiving specified 

spousal property interests following death.

4

4 Paragraph 5.01, “Waiver of Rights” contained broad waiver language 

and then listed 8 specific rights as examples. Ms. Rain requested removal of 

references to “The right of election to take against the Will of the other or the 

right to take omitted spouse’s statutory share (California Probate Code,

§ 21610)”; “The right to a distributive share in the estate of the other should 

he or she die intestate”; “The right to be appointed personal representative of 

decedent’s estate”; and “The rights of dower, curtsey, or any statutory 

substitute now [or] hereinafter provided under the laws of any state in which 

the parties may die domiciled.”
7

Mr. Ross testified that he discussed Ms. Rain’s email with Scott and 

that Scott confirmed he wanted the premarital agreement to apply in case of 

death as well as divorce. Mr. Ross advised Scott that the deletions requested 

by Ms. Rain would be “inconsequential because those subsections were only 

examples, and the opening paragraph of 5.01 was broad and said ‘including, 

but not limited to.’ ” If Scott had said he did not want the premarital 

agreement to apply in the event of death, Mr. Ross would have done a “major 

rewrite.” Mr. Ross testified that Scott instructed him not “to spend time with 

back and forth” about “why Ms. Rain requested only those changes” and that 

Scott “did not want [Mr. Ross] to inquire or explore the suggested changes 

any further.” He also testified, “it wasn’t my place to question [Ms. Rain] 

about her reasoning for why just those changes.”

Mr. Ross responded to Ms. Rain later on April 24, 2015, with a revised 

agreement that deleted “the last four items of Section V, subsection 5.01,”

regarding spousal property interests following death. Mr. Ross did not reveal 

to Ms. Rain that Scott did not share Brandy’s intent or that Mr. Ross believed 

the changes would not alter the effect of the premarital agreement in case of 

death.

Ms. Rain testified she “intended to redact every clause that changed 

the nature of the marital property in the event of death.” She could not 

explain her failure to request changes to the “without limitation” wording in 

paragraph 5.01 and to certain other “death-related provisions.” Brandy 

testified she did not see Ms. Rain’s e-mails until after Scott died, and she did 

not know at the time of signing what Ms. Rain had said to Mr. Ross.

Brandy did not receive a copy of the Agreement as revised or contact

Ms. Rain before signing the Agreement. Ms. Rain testified that, at the end of 

the meeting on April 24, 2015, they left the issue of the death-related clauses 
8

“open ended. [Brandy] was going to discuss with her fianc[é] and confirm 

what she believed. I was going to talk to his lawyer and confirm what she 

believed, which I did. And I expected to see her again on” May 1. Ms. Rain 

expected that she and Brandy would review the Agreement as revised at a 

“follow-up” meeting on May 1. She had “advised [Brandy] that [she] didn’t 

have court appearances . . . and that [she] would be in her office the entire 

day.” But Brandy never contacted her. Brandy testified that she did not 

understand she should meet again with Ms. Rain and that she believed the 

provisions making the Agreement inapplicable in the event of death had been 

removed because she heard Scott tell Mr. Ross to remove them.

On May 1, 2015, Brandy and Scott went to Mr. Ross’s office to sign the 

Agreement. Neither Brandy nor Scott reviewed the Agreement before they

signed it. Brandy testified that was the first time she saw the Agreement as 

revised. She testified she did not review the Agreement at that time because 

she “had heard [Scott] tell [Mr.] Ross to remove death, and I was fine with 

that. And that’s what I thought had been done.” They were there for “[l]ess 

than five minutes”; Brandy did not testify regarding any statements Scott or 

Mr. Ross made to her during the May 1 signing, although she did testify Scott 

did not tell her he had a different intent regarding the applicability of the 

Agreement in the event of death. Brandy and Scott were married the next 

day.

The trial court heard testimony that Scott intended his property to go 

to his daughter in the event of his death. Scott’s daughter testified that, on 

more than one occasion both before and after Scott married Brandy, Scott 

told her she would inherit Scott’s house after he died. Respondent Cathy 

Grace, Scott’s mother, testified Scott told her he wanted a premarital 

agreement to ensure his property would go to his daughter “in case 
9

something happened to him.” Scott’s stepfather, Craig Hansen, testified he 

was present when Scott and Brandy discussed a premarital agreement before 

they married. He heard them discuss that, if either of them died, “Brandy 

would [] take her belongings and give them to ... her two children, and 

[Scott’s daughter] would receive Scott’s belongings and assets.”

Subsequently, after the marriage and after Scott was burned in an accident, 

Scott said “he was really glad that he had a premarital agreement so he knew 

[his daughter] would receive his assets if something more serious happened 

to him.”

Brandy disputed Mr. Hansen’s testimony. She testified she never had 

any conversations with Scott about a premarital agreement, or about what 

they wanted to have happen to their property, while Mr. Hansen was 

present. She testified Scott never told her he intended the premarital

agreement to apply in case of death. Brandy’s mother testified that, following 

the wedding, Scott told her and her husband that “Brandy didn’t have 

anything to worry about if anything happened to him because he had the 

death taken out of the” Agreement and it “only pertained to divorce.”

The Trial Court’s Decision

Following the close of evidence and argument, the trial court issued a 

written decision. The court found the doctrine of mutual mistake did not 

apply because “Scott was not mistaken when he signed the” Agreement. The 

court relied on Mr. Ross’s testimony that the Agreement reflected Scott’s 

intentions and the testimony of other witnesses that Scott wanted his estate 

to go solely to his daughter.

As to unilateral mistake, the trial court found that Brandy and Ms. 

Rain’s testimony “established that Brandy did not want the [Agreement] to 

apply in the event of Scott’s death.” The court also acknowledged “there was 
10

evidence that Scott knew that Brandy did not want the [Agreement] to apply 

in the event of his death, and that she thought that the revised [Agreement] 

applied only in the event of divorce.” The court found, based on Mr. Ross’s

testimony, that “Scott knew that the [A]greement did apply in the event of 

divorce or death.” But the court held Brandy’s unilateral mistake did not 

justify rescission of the Agreement because “there was insufficient evidence 

that Scott encouraged or fostered Brandy’s mistaken belief.” Further, the 

court determined Brandy “bears the risk of her mistake” because she did not 

act “with reasonable care” when she failed to read the Agreement or consult 

with her attorney after it was revised.

The trial court concluded Brandy “did not sustain her burden to 

establish mutual mistake or unilateral mistake sufficient to void or reform 

the provisions regarding separate property upon death” and referenced 

previous findings that the Agreement was not unconscionable or entered into 

involuntarily. The court denied Brandy’s petition for appointment as 

personal representative of Scott’s estate and granted respondents’ petition for 

appointment.

The present appeal followed.

DISCUSSION

I. The Trial Court Did Not Err in Denying Rescission of the Agreement

A. Brandy’s Mistake Was a Mistake of Fact

“A party may rescind a contract if [the party’s] consent was given by 

mistake.” (Donovan, supra, 26 Cal.4th at p. 278.) “The grounds for rescission 

are stated in [] section 1689. One such ground exists when consent to a 

contract is given by ‘mistake.’ The term ‘mistake’ in [] section 1689, however, 

is a legal term with a legal meaning. [¶] The type of ‘mistake’ that will 

support rescission is defined in [] section 1577 (‘mistake of fact’) and [] section 
11

1578 (‘mistake of law’).” (Hedging Concepts, Inc. v. First All. Mortg. Co.

(1996) 41 Cal.App.4th 1410, 1421 (Hedging Concepts); see also Donovan, at 

p. 278.)

Section 1577 provides, “Mistake of fact is a mistake, not caused by the 

neglect of a legal duty on the part of the person making the mistake, and 

consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or 

present, material to the contract; or, 2. Belief in the present existence of a 

thing material to the contract, which does not exist, or in the past existence of 

such a thing, which has not existed.”

Section 1578 provides, “Mistake of law constitutes a mistake, within 

the meaning of this Article, only when it arises from: 1. A misapprehension of 

the law by all parties, all supposing that they knew and understood it, and all 

making substantially the same mistake as to the law; or, 2. A 

misapprehension of the law by one party, of which the others are aware at 

the time of contracting, but which they do not rectify.” As explained in

Hedging Concepts, “A mistake of law is when a person knows the facts as 

they really are, but has a mistaken belief as to the legal consequences of 

those facts.” (Hedging Concepts, supra, 41 Cal.App.4th at p. 1421, fn. 9.) 

Misinterpretation of a contract is a mistake of law. (Id. at p. 1421.)

In the present case, Brandy claims she was mistaken as to the content

of the Agreement, because she believed it had been amended to remove all 

provisions making it applicable in the event of death. Thus, Brandy testified 

she did not read the Agreement before signing it because she “had heard 

[Scott] tell [Mr.] Ross to remove death, and I was fine with that. And that’s 

what I thought had been done.” As her counsel argued below, “Brandy 

trusted Scott. She trusted that the attorneys had done what she and Scott 
12

told them to do. She had told her attorney what they wanted to agree to. She 

heard Scott tell his attorney the same thing. She trusted that it was done.”

Brandy’s mistake claim is that she did not “know[] the facts as they 

really [we]re,” not that she had a “mistaken belief as to the legal 

consequences of” the real facts. (Hedging Concepts, supra, 41 Cal.App.4th at 

p. 1421, fn. 9.) Brandy did not testify she was aware of but misinterpreted 

the legal effect of specific language in the Agreement. Even if Ms. Rain made 

a mistake of law in thinking that deletion of certain subsections in paragraph 

5.01 of the Agreement would be sufficient to render it inapplicable in the 

event of death, Brandy did not testify she relied on that legal interpretation.

5 

She testified that she did not know which sections needed to be removed and 

that she did not see the e-mail Ms. Rain sent Mr. Ross. Instead, Brandy 

relied on her general instruction to Ms. Rain to remove any language making 

the Agreement applicable in the event of death, and Scott’s purported 

instruction to Mr. Ross to do the same. Brandy’s beliefs that Ms. Rain 

requested appropriate changes, that Scott shared her intent and asked Mr. 

Ross to amend the Agreement accordingly, and that the Agreement had been 

amended to make it inapplicable in the event of death were all interconnected

5 Brandy’s counsel argued for the first time at oral argument that any 

mistake of law on the part of Ms. Rain should be attributed to Brandy for 

purposes of rescission under section 1578. That contention has been 

forfeited. (Bayramoglu v. Nationstar Mortg. LLC (2020) 51 Cal.App.5th 726, 

738, fn. 4.) In any event, Brandy cannot show her execution of the revised 

Agreement was due to any mistake of law by Ms. Rain because Brandy and 

Ms. Rain never discussed the revised Agreement. Further, we cannot 

presume Ms. Rain would have failed to recognize her mistake in requesting 

elimination of only a few exemplary subsections, had Brandy actually taken 

advantage of the opportunity to review the revised Agreement with Ms. Rain.
13

mistakes of fact.6 (See Donovan, supra, 26 Cal.4th at p. 279 [“Defendant’s 

mistake in the present case, in contrast, did not consist of a subjective 

misinterpretation of a contract term, but rather resulted from an unconscious 

ignorance that the Daily Pilot advertisement set forth an incorrect price for 

the automobile.”].)

Therefore, although misinterpretation of a contract is a mistake of law, 

the trial court properly analyzed the rescission claim as being based on a 

unilateral mistake of fact as to whether the Agreement had been amended in 

accordance with Brandy’s wishes.7

B. The California Supreme Court’s Decision in Donovan

Donovan, supra, 26 Cal.4th 261, controls our analysis, and we describe 

it in detail. In that case, an automobile dealer placed an advertisement in a 

newspaper. The newspaper made typographical and proofreading errors that 

resulted in a listed price significantly below the intended sales price. A buyer 

offered the advertised price, but the dealer refused to sell. The buyer sued for 

breach of contract. (Id. at pp. 266–267.)

6 The record reflects that Brandy sued Ms. Rain for malpractice, but it

does not reveal the result of the lawsuit.

7 Although the California statutory scheme maintains a distinction 

between mistakes of fact and law, that distinction can be somewhat elusive.

For example, some prior California decisions have treated a party’s 

misunderstanding of a contract provision as a mistake of fact. (Casey, supra, 

59 Cal.2d at p. 104 [treating the plaintiff’s misunderstanding of a release as a 

mistake of fact claim]; Lawrence v. Shutt (1969) 269 Cal.App.2d 749, 764–766

[same].) Notably, the Restatement Second of Contracts (Restatement) rejects

the distinction between mistakes of fact and law. (Rest.2d Contracts, § 151, 

com. b [“The rules stated in this Chapter do not draw the distinction that is 

sometimes made between ‘fact’ and ‘law.’ They treat the law in existence at 

the time of the making of the contract as part of the total state of facts at that 

time.”].) In any event, Brandy’s mistake was clearly a mistake of fact for the 

reasons explained in the text.
14

The Donovan court held rescission of the contract was warranted and

concluded the court of appeal erred “to the extent it suggested that a 

unilateral mistake of fact affords a ground for rescission only where the other 

party is aware of the mistake.” (Donovan, supra, 26 Cal.4th at p. 279.) The 

California Supreme Court “adopt[ed]” “as California law” “the rule in section 

153, subdivision (a), of the Restatement [], authorizing rescission for 

unilateral mistake of fact where enforcement would be unconscionable.” (Id.

at p. 281.) Section 153 of the Restatement states, “Where a mistake of one 

party at the time a contract was made as to a basic assumption on which [the

party] made the contract has a material effect on the agreed exchange of 

performances that is adverse to [the party], the contract is voidable by [the

party] if [it] does not bear the risk of the mistake under the rule stated in § 

154, and [¶] (a) the effect of the mistake is such that enforcement of the 

contract would be unconscionable, or [¶] (b) the other party had reason to 

know of the mistake or [the other party’s] fault caused the mistake.” (Rest.2d

Contracts, § 153.)

Donovan summarized the rule as follows: “Where the plaintiff has no 

reason to know of and does not cause the defendant’s unilateral mistake of 

fact, the defendant must establish the following facts to obtain rescission of 

the contract: (1) the defendant made a mistake regarding a basic assumption 

upon which the defendant made the contract; (2) the mistake has a material 

effect upon the agreed exchange of performances that is adverse to the 

defendant; (3) the defendant 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.” (Donovan, supra, 26 Cal.4th at p. 282.)

In Donovan the parties “vigorously dispute[d]” whether the defendant 

car dealer “should bear the risk of its mistake.” (Donovan, supra, 26 Cal.4th 
15

at p. 283.) The Supreme Court quoted section 154 of the Restatement, which

states: “A party bears the risk of a mistake when [¶] (a) the risk is allocated 

to [the party] by agreement of the parties, or [¶] (b) [the party] is aware, at 

the time the contract is made, that [it] has only limited knowledge with 

respect to the facts to which the mistake relates but treats [the] limited 

knowledge as sufficient, or [¶] (c) the risk is allocated to [the party] by the 

court on the ground that it is reasonable in the circumstances to do so.” 

(Rest.2d Contracts, § 154.) The court stated that neither of the first two 

factors applied and considered whether it was reasonable to allocate the risk 

of the mistake in the advertisement to the defendant. (Donovan, at p. 283.)

In analyzing this factor, the Supreme Court looked at both section 1577 

and the Restatement. Section 1577, the court observed, “instructs that the 

risk of a mistake must be allocated to a party where the mistake results from 

that party’s neglect of a legal duty.” (Donovan, supra, 26 Cal.4th at p. 283.) 

The court continued, “It is well established, however, that ordinary 

negligence does not constitute neglect of a legal duty within the meaning of []

section 1577. [Citation.] For example, we have described a careless but 

significant mistake in the computation of the contract price as the type of 

error that sometimes will occur in the conduct of reasonable and cautious 

businesspersons, and such an error does not necessarily amount to neglect of 

legal duty that would bar equitable relief.” (Donovan, at p. 283.) The court 

then observed that “[a] concept similar to neglect of a legal duty is described 

in section 157” of the Restatement, under which rescission is unavailable 

“[o]nly where [a party’s] mistake results from ‘a failure to act in good faith 
16

and in accordance with reasonable standards of fair dealing’ . . . .” (Donovan, 

at p. 283.)8

Considering those provisions, Donovan reasoned that, “[t]he mere fact 

that a mistaken party could have avoided the mistake by the exercise of 

reasonable care does not preclude . . . avoidance . . . [on the ground of 

mistake]. Indeed, since a party can often avoid a mistake by the exercise of 

such care, the availability of relief would be severely circumscribed if [the

party] were to be barred by [its] negligence. Nevertheless, in extreme cases

the mistaken party’s fault is a proper ground for denying [it] relief for a 

mistake that [it] otherwise could have avoided. . . .” (Donovan, supra, 26 

Cal.4th at pp. 283–284.)

Turning to the case at hand, Donovan concluded the seller’s failure to 

discover the errors in the advertisement may have been negligent, but it was 

not “a breach of defendant’s duty of good faith and fair dealing that should 

preclude equitable relief for mistake.” (Donovan, supra, 26 Cal.4th at p. 290.) 

Because enforcement of the contract with the erroneous price would have 

been unconscionable, the defendant dealer was entitled to rescission of the 

contract on the ground of unilateral mistake of fact. (Id. at pp. 293–294.)

Donovan, and the Civil Code provisions it interprets, apply to a 

rescission claim based on an alleged mistake relating to a premarital 

agreement. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter 

Group 2020) ¶¶ 9.55, 9.75.5, pp. 9-24, 9-36 (Hogoboom & King).)

8 Section 157 of the Restatement provides, “A mistaken party’s fault in 

failing to know or discover the facts before making the contract does not bar 

[the party] from avoidance or reformation under the rules stated in this 

Chapter, unless [the party’s] fault amounts to a failure to act in good faith 

and in accordance with reasonable standards of fair dealing.” (Rest.2d 

Contracts, § 157.)
17

C. The Trial Court Did Not Err in Concluding That Brandy Bore the

Risk of Her Mistake

At the outset, we address Brandy’s argument the evidence shows Scott 

was aware of her mistake at the time the Agreement was signed. Contrary to 

Brandy’s assertions, the trial court did not so find. No such finding is present 

in the trial court’s “finding of facts” (capitalization and bolding omitted), and 

the court’s legal analysis merely acknowledges the evidence without 

accepting or rejecting it. Thus, the trial court stated, “there was evidence that

Scott knew that Brandy did not want the [Agreement] to apply in the event of 

death, and that she thought that the revised [Agreement] applied only in the 

event of divorce.” (Italics added.) The court apparently found it unnecessary 

to make a finding regarding Scott’s knowledge because the court mistakenly 

concluded it was dispositive that “there was insufficient evidence that Scott 

encouraged or fostered Brandy’s mistaken belief.” As explained in footnote 9, 

post, such a showing is not required to obtain rescission.

In any event, any finding that Scott knew of Brandy’s mistake would 

not change our analysis. Even if Scott was aware of Brandy’s mistake, she is 

not entitled to relief if she bore the risk of the mistake due to neglect of a 

legal duty. (§ 1577; Rest.2d Contracts, § 153; see also Amin v. Superior Ct. 

(2015) 237 Cal.App.4th 1392, 1407 (Amin) [stating that Donovan stands for 

the proposition that “a necessary [prerequisite] for obtaining rescission of a 

contract based on unilateral mistake of fact is that the party seeking 

rescission did not bear the risk of the mistake”].)

Brandy focuses on a portion of the Donovan decision in which the court 

stated, that, “[w]here the plaintiff has no reason to know of and does not 

cause the defendant’s unilateral mistake of fact, the defendant must establish 

the following facts to obtain rescission of the contract: ... (3) the defendant 
18

does not bear the risk of the mistake ....” (Donovan, supra, 26 Cal.4th at 

p. 282.) Brandy argues the introductory clause means no showing regarding 

the “risk of mistake” is required if the other party has reason to know of the 

mistake. We disagree. The introductory language simply describes the 

circumstances in Donovan; it would be unreasonable to conclude the Supreme 

Court intended with that passing phrase to eliminate the mistaken party’s 

obligation to show it did not bear the risk of the mistake in order to obtain 

rescission, as required by section 1577 and the Restatement.

9

9 We need not and do not consider if the result would be different in the 

event of fraud by Scott because the trial court found there was insufficient 

evidence that Scott “furthered or encouraged” Brandy’s mistake. (See, e.g.,

Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 563 [“[A]

release is invalid when it is procured by misrepresentation, overreaching, 

deception, or fraud.”].) Brandy argues the court erred in that finding, but her 

argument depends on the trial court believing her testimony and that of her 

son regarding conversations with Scott about the premarital agreement. We 

have no basis to presume the court believed that testimony, and Brandy has 

not shown the other evidence compelled the court to conclude Scott’s conduct 

was fraudulent. (See Johnson v. Pratt & Whitney Canada, Ltd. (1994) 

28 Cal.App.4th 613, 622–623 (Johnson).)

We also observe that the Hogoboom treatise cites Brookwood v. Bank of 

America (1996) 45 Cal.App.4th 1667, 1673-1674, for the proposition, “A 

unilateral mistake of fact renders an agreement voidable where the mistake 

was known to and encouraged or fostered by the other party.” (Hogoboom & 

King, supra, at ¶ 9.75.7, p. 9-36 [italics omitted].) We disagree with that 

assertion because, under section 1577 as interpreted in light of the 

Restatement, a mistaken party who does not bear the risk of the mistake 

does not need to show either knowledge or that the other party “encouraged 

or fostered” the mistake to obtain rescission: it is sufficient if they show that 

the other party knew of the mistake, that the other party caused the mistake, 

or that enforcement of the contract would be unconscionable. (Rest.2d 

Contracts, § 153; Donovan, supra, 26 Cal.4th at p. 281; see also Greif v. Sanin

(2022) 74 Cal.App.5th 412, 439.) Of course, where a party trying to avoid a 

contract is able to show the other party “fostered or encouraged” the mistake, 

the party may be able to prevail on the ground of fraud.
19

The critical question in the present case is whether Brandy’s failure to 

read the Agreement and meet with Ms. Rain regarding the changes to the 

Agreement constituted neglect of a legal duty within the meaning of section 

1577. The California Supreme Court has previously addressed whether the 

failure to read a contract constitutes such neglect. In Casey, supra, 59 Cal.2d 

97, a plaintiff sued for personal injuries allegedly sustained in a car accident. 

The defendant argued the action was barred because the plaintiff had signed 

a release (negotiated by the plaintiff’s insurer) discharging the defendant 

from all liability. (Id. at pp. 99–100.) The plaintiff claimed that he 

“mistakenly believed that the release related only to property damage claims” 

and that the release should be reformed or rescinded. (Id. at p. 102.) The 

Supreme Court stated the “question” before it was “whether plaintiff’s failure 

to read the release, or, if he did read it, his failure to understand that it 

extended also to claims for personal injuries was, as a matter of law, the 

neglect of a legal duty (see [] § 1577).” (Casey, at p. 104.) The court observed 

“there is nothing in the record to indicate that at the time he signed the 

release [the plaintiff] was suffering from any disability which would prevent 

him from giving it his full attention or which would prevent him from 

exercising his independent judgment.” (Id. at p. 104.) The court concluded, 

“Under these circumstances, the failure of plaintiff to recognize that the 

release included a discharge of liability for personal injuries has been held to 

be attributable to his own neglect, both under California authority [citations] 

and in the vast majority of other jurisdictions. [Citations.] It must be 

concluded, therefore, that plaintiff’s mistaken belief that the release related 
20

only to claims for property damage does not entitle him to rescind the release 

under the circumstances of this case.” (Casey, at pp. 104–105.)10

The Casey decision is not cited in Donovan, and it has not been 

questioned or limited by the California Supreme Court, or by any published 

California case on any relevant point.

11 Indeed, the court in Stewart v. 

Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565 (Stewart), followed both 

Donovan and Casey in resolving a unilateral mistake claim. There, the 

plaintiff in a personal injury suit signed a settlement at the end of a 

mediation but then subsequently refused to accept the settlement check. 

(Stewart, at pp. 1568–1569.) The trial court entered summary judgment in 

favor of the defendant and the plaintiff appealed, arguing among other things 

that he was entitled to rescind the settlement on the ground of unilateral 

mistake. (Id. at p. 1587.) Stewart quoted Donovan’s recitation of the 

requirements for rescission, observing that “both the Restatement [] and [] 

section 1577 note that the mistaken party’s ‘neglect of legal duty’ will bar 

relief; however, ordinary negligence does not constitute such ‘neglect of legal 

duty’ that will preclude rescission.” (Id. at p. 1588.)

Stewart concluded that requirement defeated the plaintiff’s rescission 

claim, stating “ ‘It is well established, in the absence of fraud, overreaching or 

excusable neglect, that one who signs an instrument may not avoid the 

10 Casey nevertheless reversed a directed verdict in favor of the 

defendant, concluding whether the plaintiff intended to discharge claims for 

unknown injuries was a question of fact under section 1542. (Casey, supra, 

59 Cal.2d at pp. 113–114.)

11 The court of appeal in Winet v. Price (1992) 4 Cal.App.4th 1159, 

questioned the validity of Casey on a different issue, noting that Casey

predated Supreme Court cases holding that the construction of a written 

instrument is a question of law for the court where there is no competent 

parol evidence or such evidence is undisputed. (Winet, at p. 1171, fn. 7.)
21

impact of its terms on the ground that he failed to read the instrument before 

signing it.’ ” (Stewart, supra, 134 Cal.App.4th at p. 1588; accord Roldan v. 

Callahan & Blaine (2013) 219 Cal.App.4th 87, 93.) The Stewart court then 

cited Casey for the proposition that “a contracting party is not entitled to 

relief from [the party’s] alleged unilateral mistake” where the party failed to 

read the contract before signing it. (Stewart, at p. 1589; accord Amin, supra, 

237 Cal.App.4th at p. 1406.)12

Other court of appeal decisions interpreting section 1577 articulate 

rules similar to the rule in Casey without citing the decision. In Lawrence v. 

Shutt, supra, 269 Cal.App.2d 749, which preceded Casey, the court stated it 

was “clear that in the interest of preserving some reasonable stability in 

commercial transactions the courts will not set aside contractual obligations, 

particularly where they are embodied in written contracts, merely because 

one of the parties claims to have been ignorant of or misunderstood the 

provisions of the contract. [Citations.] This is especially true where the 

contractual obligation sought to be set aside has been executed by the 

complainant without the exercise of reasonable care.” (Id. at p. 765.) In WalNoon Corp. v. Hill (1975) 45 Cal.App.3d 605, at page 615, the court followed 

Lawrence and expressly framed the issue in section 1577’s terms, stating 

“Failure to make reasonable inquiry to ascertain or effort to understand the 

12 Stewart’s language suggests the result might be different if the other 

party was aware of the mistake, because the decision states, “Plaintiff has 

cited no California cases ... that stand for the extreme proposition that a 

party who fails to read a contract but nonetheless objectively manifests [the

party’s] assent by signing it—absent fraud or knowledge by the other 

contracting party of the alleged mistake—may later rescind the agreement on 

the basis that [the party] did not agree to its terms.” (Stewart, supra, 134 

Cal.App.4th at p. 1589 [italics added].) However, Stewart did not explain 

how the other party’s knowledge would change the result under section 1577 

if failure to read a contract is neglect of a legal duty under Casey.
22

meaning and content of the contract upon which one relies constitutes neglect 

of a legal duty such as will preclude recovery for unilateral mistake of fact.” 

The court of appeal in In re Marriage of Hill & Dittmer (2011)

202 Cal.App.4th 1046, at page 1054 (Hill & Dittmer), cited that language 

from Wal-Noon in rejecting a claim that a premarital agreement was entered 

into involuntarily.

13 (See also Hogoboom & King, supra, at ¶ 9.55, pp. 9-24

[“absent some credible evidence showing consent was obtained through fraud 

or compulsion, a party who has signed an agreement with the capacity of 

reading and understanding its contents will be bound by its contents”].)

Finally, and importantly, Donovan stated section 157 of the 

Restatement reflects “[a] concept similar to neglect of a legal duty” (Donovan, 

supra, 26 Cal.4th at p. 283), and a comment to section 157 explains that the

failure to read a contract constitutes “failure to act in good faith and in 

accordance with reasonable standards of fair dealing” within the meaning of 

that section. (Rest.2d Contracts, § 157.) Thus, comment “b” states, 

“Generally, [a party] who assents to a writing is presumed to know its 

contents and cannot escape being bound by its terms merely by contending 

that [the party] did not read them; [the party’s] assent is deemed to cover 

unknown as well as known terms.” (See Rest.2d Contracts, § 157, com. b, p. 

417.) Stewart stated this comment indicated that, under the Restatement, “a 

party ordinarily may not obtain relief based upon unilateral mistake where 

13 Other decisions state the same or a similar rule without citing Casey

or section 1577. (See, e.g., Madden v. Kaiser Found. Hosps. (1976) 17 Cal.3d 

699, 710 [referencing “the general rule that one who assents to a contract is 

bound by its provisions and cannot complain of unfamiliarity with the 

language of the instrument”]; Reynolds v. Lau (2019) 39 Cal.App.5th 953, 967 

[same].)
23

[the party] has failed to read the contract before signing it.” (Stewart, supra, 

134 Cal.App.4th at p. 1589.) 

Brandy argues her failure to read the Agreement and meet with Ms. 

Rain is excused by Donovan’s statement, “[t]he mere fact that a mistaken 

party could have avoided the mistake by the exercise of reasonable care does 

not preclude” relief. (Donovan, supra, 26 Cal.4th at pp. 283–284.) However, 

Donovan and the cases it relied upon are not directly on point, because they 

did not involve failures to read a contract. (Donovan, at pp. 289–290 [car 

dealer’s failure to spot mistake in advertisement]; Sun ‘n Sand, Inc. v. United 

California Bank (1978) 21 Cal.3d 671, 701 (Sun ‘n Sand) [bank customer’s

failure “to examine bank statements and returned checks for alterations or 

forgeries”]; Elsinore Union Elementary Sch. Dist. of Riverside Cty. v. Kastorff

(1960) 54 Cal.2d 380, 388 [“inadvertent clerical error of omitting” cost of 

plumbing from a bid]; M. F. Kemper Const. Co. v. City of Los Angeles (1951)

37 Cal.2d 696, 702 [construction company’s negligence in calculating total in 

preparing bid].) More fundamentally, Donovan did not purport to overrule 

Casey and other cases concluding that the failure to read a contract generally 

constitutes neglect of a legal duty under section 1577. And Donovan

expressly stated section 157 of the Restatement is “consistent with” 

California law, and comment “b” to that section demonstrates it conforms to

Casey.

Under Donovan, Brandy’s request for rescission fails if she bore the 

risk of her mistake, and under the Restatement, Casey, and numerous other 

cases, Brandy’s failure to read the Agreement and consult with Ms. Rain 

means that she did bear the risk of her mistake. Although the language of 

the Restatement and certain cases discussed ante suggest that, generally, the 

bare failure to read an agreement is by itself neglect of a legal duty 
24

precluding rescission, at least in commercial contracts, Casey did not so hold 

and we need not do so in the present case. As the trial court observed, in 

addition to failing to read the Agreement, Brandy “had access to and was 

advised by independent counsel, she (or her attorney) had the revised 

agreement nearly one week before signing it, and there was nothing 

preventing Brandy from reading it at Mr. Ross’s office prior to signing it.” 

Further, Ms. Rain testified she expected that she and Brandy would review 

the Agreement as revised at a “follow-up” meeting on May 1. Brandy’s

failures are made more profound by her awareness that the initial draft 

contained provisions that surprised and deeply disturbed her. That should 

have led her to exercise additional caution to ensure the final version was in 

accordance with her intent. Brandy bore the risk of her mistake; her error

regarding the contents of the Agreement was not due to “ ‘excusable 

neglect.’ ” (Stewart, supra, 134 Cal.App.4th at p. 1588.)14

Brandy suggests Scott had a heightened disclosure obligation due to 

their intimate relationship. But “[p]arties negotiating a premarital 

agreement are not presumed to be in a confidential relationship that would 

give rise to fiduciary duties owed between spouses or to the presumption of 

undue influence when a transaction benefits one of the parties. ‘On the 

contrary, it is evident that the Uniform [Premarital Agreement] Act was 

intended to enhance the enforceability of premarital agreements, a goal that 

14 The determination of whether Brandy’s mistake was due to neglect of 

a legal duty within the meaning of section 1577 is a mixed question of law 

and fact involving “the application of the rule to the facts and the consequent 

determination whether the rule is satisfied.” (Haworth v. Superior Ct. (2010)

50 Cal.4th 372, 384.) We need not decide whether the trial court’s 

determination is reviewed independently or for substantial evidence, because 

the result is the same either way. (See ibid. [explaining criteria for 

determining standard of review to apply to such determinations].)
25

would be undermined by presuming the existence of a confidential or 

fiduciary relationship.’ ” (Hill & Dittmer, supra, 202 Cal.App.4th at p. 1053, 

quoting In re Marriage of Bonds (2000) 24 Cal.4th 1, 29 (Bonds).)

Bonds recognizes that traditional contract defenses are applicable to 

premarital agreements, but cautions that the “factual circumstances relating 

to [such] defenses (see [] § 1567) that would not necessarily support the 

rescission of a commercial contract may suffice to render a premarital 

agreement unenforceable.” (Bonds, supra, 24 Cal.4th at p. 26.) Even 

considering the nature of her relationship with Scott, Brandy bore the risk of 

her mistake because she not only failed to read the Agreement, but she also 

failed to attend the meeting with Ms. Rain that was scheduled for the 

purpose of reviewing the revised Agreement before Brandy signed it.

15

II. Brandy Has Not Shown Any Error by the Trial Court in Failing to

Address Voluntariness Was Prejudicial

“Family Code section 1615, subdivision (c) ..., as amended effective 

January 1, 2002, creates a presumption ‘that a premarital agreement was not 

executed voluntarily’ unless the [trial] court makes five designated findings. 

15 We note that in the commercial context “ ‘rescission is intended to 

restore the parties as nearly as possible to their former positions.’ ” (Wong v. 

Stoler (2015) 237 Cal.App.4th 1375, 1386.) Donovan recognized this 

objective, citing a legal treatise for the proposition, “negligence is no bar to 

relief from unilateral mistake if [the] other party can be placed in status 

quo.” (Donovan, supra, 26 Cal.4th at p. 284.) However, Bonds observed that, 

“[a]lthough a party seeking rescission of a commercial contract . . . may be 

required to restore the status quo ante by restoring the consideration 

received . . . the status quo ante for spouses cannot be restored to either 

party” following rescission of a premarital agreement. (See Bonds, supra, 

24 Cal.4th at p. 26.) We understand Bonds’ observation to mean that the 

inability to restore the status quo ante is not a basis to deny rescission of a 

premarital agreement. Given that we do not deny rescission on that ground, 

the observation is immaterial in the present case.
26

[Citations.] These include the finding that the party against whom 

enforcement is sought had at least seven calendar days between the date [the

party] was ‘first presented’ with the agreement and advised to seek 

independent counsel, and the time [the party] signed the agreement. ([Fam. 

Code], § 1615[, subd.] (c)(2).)” (In re Marriage of Cadwell-Faso & Faso (2011)

191 Cal.App.4th 945, 949 (Cadwell-Faso); see also Hill & Dittmer, supra, 

202 Cal.App.4th at p. 1052.) Another required finding, relevant in the 

present case, is that the agreement was “not executed under duress, fraud, or 

undue influence, and the parties did not lack capacity to enter into the 

agreement.” (Fam. Code, § 1615, subd. (c)(4).)

At the start of the trial on remand from Eskra I, supra, the trial court 

stated, “My understanding from the Court of Appeal opinion is that the only 

issue regarding enforcement is whether [the Agreement] was executed by 

mistake.” Over Brandy’s objection, the court declined to make new findings 

regarding the voluntariness of the Agreement following the second trial. 

Instead, the trial court’s decision stated, “the court had previously found that 

the [Agreement] was not unconscionable when executed, it was executed 

voluntarily by Brandy, and that it is enforceable.” On appeal, Brandy 

contends the trial court failed to make the findings required under Family 

Code section 1615 based on the evidence from the trial on remand. Assuming 

the court erred in failing to make findings on voluntariness, any error was 

harmless because Brandy has not shown it is “reasonably probable” she

would have received a more favorable result had the trial court done so.

(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also In re 

D’Anthony D. (2014) 230 Cal.App.4th 292, 303 [applying Watson standard to 

juvenile court error in failing to make statutorily required findings].) 
27

Notably, Brandy admits she “does not contend that she was precluded from 

presenting evidence that bore on the issues of voluntariness.”

At the outset, we reject Brandy’s argument that respondents bore the 

burden of proving the voluntariness of the Agreement within the meaning of 

Family Code section 1615. That contention is directly contrary to the 

statutory language, which provides a premarital agreement is unenforceable 

“if the party against whom enforcement is sought proves ... [t]hat party did 

not execute the agreement voluntarily.” (Fam. Code, § 1615, subd. (a); see 

also Cadwell-Faso, supra, 191 Cal.App.4th at p. 956.) Brandy’s argument is 

based on a misunderstanding of statutory language that lightens but does not 

shift Brandy’s burden. As explained in Caldwell-Faso, “[a]lthough under 

section 1615, subdivision (a), the party challenging enforceability of a 

premarital agreement bears the burden of proving involuntary execution or 

unconscionability, subdivision (c) lightens that burden when the contest 

centers on the issue of voluntary execution. The law now deems that a 

premarital agreement is not voluntarily executed unless the court 

makes all of the five designated findings. With the five findings, the 

presumption of involuntary execution is overcome as a matter of law. As 

explained in a family law treatise, the statute ‘places an evidentiary burden 

upon the party seeking to enforce a premarital agreement: [The party] must 

be prepared to present evidence sufficient for the court to make the ... 

findings; otherwise, the premarital agreement must be held unenforceable as 

having been involuntarily executed.’ ” (Id. at p. 956.) Thus, although the 

statutory scheme deviates from the typical situation where the party who 

bears the burden of proof also bears the initial burden of production, Brandy 

did bear the ultimate burden of proving involuntariness. Respondents bore 

the burden of producing evidence relevant to the findings, but, as explained 
28

below, Brandy has not shown a reasonable probability the trial court would 

have failed to make any of the required findings based on the evidence in the 

record.

Brandy first challenges the absence of any finding that “the party 

against whom enforcement is sought had not less than seven calendar days 

between the time that party was first presented with the agreement and 

advised to seek independent legal counsel and the time the agreement was 

signed.” (Former Fam. Code, § 1615, subd. (c)(2)(A).)16 Brandy argues the 

trial court would not have made that finding because she was not represented 

by counsel on April 22, 2015, when Scott told her she needed to get an 

attorney. She further argues that the evidence showed Ms. Rain did not 

receive the final Agreement until April 24 and that there were not seven days 

between then and the May 1 signing.

Brandy’s claim fails because Cadwell-Faso, supra, 191 Cal.App.4th at 

pages 959 to 961, held the seven-day requirement is inapplicable to parties,

like Brandy, who were represented by counsel when they were first presented

with the premarital agreements. In reaching that conclusion, Cadwell-Faso

focused on the statutory language measuring the seven-day waiting period 

“from the time the party against whom enforcement is sought ‘was first 

presented with the agreement and advised to seek independent legal counsel,’

.... The conjunctive phrase, requiring both presentment and advice, implies 

that the waiting period is for the benefit of a party not represented by counsel 

at the time the agreement is presented, thereby affording time to obtain 

counsel and enjoy the benefit of counsel’s review of the agreement and advice 

16 Effective January 1, 2020, the Legislature amended Family Code 

section 1615, subdivision (c)(2), as discussed further below.
29

prior to signing it.” (Id. at pp. 959–960; accord Hill & Dittmer, supra, 

202 Cal.App.4th at p. 1057.)17

Brandy contends Cadwell-Faso is distinguishable because in that case 

the parties “already had attorneys in place at the time they began discussing 

a premarital agreement and so did not need to be advised to seek counsel.” 

However, the decision’s statutory interpretation turned on whether the party 

was represented at the time the agreement was presented. (Cadwell-Faso, 

supra, 191 Cal.App.4th at pp. 959–960.) Because Brandy was represented by 

Ms. Rain when the draft premarital agreement was first presented, the 

reasoning of Cadwell-Faso is fully applicable here.

Brandy also argues Cadwell-Faso is not good law in light of a 2019 

amendment of the statute to refer to “the time that party was first presented 

with the final agreement and advised to seek independent legal counsel.” 

(Stats. 2019, ch. 193, § 1, eff. Jan. 1, 2020 [emphasis added].)18 But, in 

17 Cadwell-Faso explained the logic of its interpretation as a matter of 

policy: “[T]he seven-day period makes sense as a necessary condition to 

finding voluntary execution on the part of an unrepresented party because 

the requirement affords a reasonable period of time to obtain and consult 

with independent counsel prior to signing a premarital agreement. On the 

other hand, when a party is already represented by counsel in the 

transaction, obtaining the requisite advice can occur very quickly and no 

purpose is served by imposing a statutory waiting period.” (Cadwell-Faso, 

supra, 191 Cal.App.4th at p. 960.)

18 In 2019, the Legislature amended the statute to include different 

provisions, depending on whether the premarital agreement was signed after 

January 1, 2020. Subdivision (c)(2)(A) provides, “For an agreement executed 

between January 1, 2002, and January 1, 2020, the party against whom 

enforcement is sought had not less than seven calendar days between the 

time that party was first presented with the final agreement and advised to 

seek independent legal counsel and the time the agreement was signed. This 

requirement does not apply to nonsubstantive amendments that do not 

change the terms of the agreement.” (Stats. 2019, ch. 193, § 1, eff. Jan. 1, 

2020.) Subdivision (c)(2)(B) provides, “For an agreement executed on or after 
30

enacting the 2019 amendments, the Legislature expressed its intent to leave 

the Cadwell-Faso holding undisturbed for pre-2020 agreements. Thus, 

Family Code section 1615, subdivision (c)(2)(B), provides that, for agreements 

executed after January 1, 2020, the party against whom enforcement is 

sought must have seven days “between the time that party was first 

presented with the final agreement and the time the agreement was signed, 

regardless of whether the party is represented by legal counsel.” Further, the 

Legislature expressly declared that the addition of that subdivision “is 

intended to supersede, on a prospective basis, the holding in [Cadwell–Faso, 

supra,] 191 Cal.App.4th 945.” (Stats. 2019, ch. 193, § 2(b), eff. Jan. 1, 2020

[emphasis added].)19

Brandy also challenges the absence of a finding that the Agreement 

was “not executed under duress, fraud, or undue influence, and the parties 

January 1, 2020, the party against whom enforcement is sought had not less 

than seven calendar days between the time that party was first presented 

with the final agreement and the time the agreement was signed, regardless 

of whether the party is represented by legal counsel. This requirement does 

not apply to nonsubstantive amendments that do not change the terms of the 

agreement.” (Ibid.)

19 Generally speaking, “[t]he version of the statute in force at the time 

the parties executed [a premarital agreement] governs.” (Knapp v. Ginsberg

(2021) 67 Cal.App.5th 504, 526, fn. 6.) However, it would not affect the result 

were we to conclude the present version of Family Code section 1615, 

subdivision (c)(2)(A) controls due to its express reference to agreements 

“executed between January 1, 2002, and January 1, 2020.” In addition to the 

Legislature’s express declaration of intent to supersede Cadwell-Faso only 

prospectively, the Legislature’s retention of the conjunctive phrase that was 

decisive to Cadwell-Faso’s reasoning is further indication the Legislature did 

not intend to change the decision’s holding through addition of the word 

“final.” (See Busse v. United PanAm Fin. Corp. (2014) 222 Cal.App.4th 1028, 

1038 [“the Legislature is ‘presumed to know about existing case law when it 

enacts or amends a statute’ ”].)
31

did not lack capacity to enter into the agreement.” (Fam. Code, § 1615, 

subd. (c)(4).) Brandy argues the trial court’s findings were “tantamount to a 

finding of fraud.” We disagree. Brandy asserts the trial court found Scott 

knew about Brandy’s mistake. However, as explained previously (part I.C., 

ante), the trial court did not so find. In any event, the court expressly found

“there was insufficient evidence that Scott encouraged or fostered Brandy’s 

mistaken belief.” In so concluding, the court necessarily found unreliable the

contrary testimony of Brandy and her son. Given the trial court’s apparent

credibility determination, to which we must defer (Johnson, supra, 28 

Cal.App.4th at pp. 622–623), Brandy has shown no reasonable probability the 

court would have failed to make the necessary finding regarding fraud.20

DISPOSITION

The trial court’s judgment is affirmed. Costs on appeal are awarded to 

respondents.

20 Brandy also asserts the Agreement was executed under duress, but 

she includes little argument directed to that issue. In light of the evidence on 

remand and the trial court’s findings, Brandy has not shown it is reasonably 

probable the trial court would have failed to make the necessary finding 

regarding duress. Although Brandy was presented with the draft premarital 

agreement close to the date of the wedding, she does not argue the evidence 

shows inequality of bargaining power or inadequate disclosure of assets, and 

the trial court found her failure to understand the Agreement was due to her 

own neglect. (See Hill & Dittmer, supra, 202 Cal.App.4th at p. 1052 [listing 

factors “ ‘uniquely probative of coercion in the premarital context’ ”].)
32

SIMONS, J.

We concur. 

JACKSON, P. J.

NEEDHAM, J. 

(A162671)
33

Eskra v. Grace et al. (A162671)

Trial Court: Humboldt County Superior Court

Trial Judge: Hon. Timothy Canning

Counsel: Perry, Johnson, Anderson, Miller & Moskowitz, LLP, 

Deborah S. Bull, for Petitioner and Appellant

Mathews, Kluck, Walsh & Wykle, LLP, Kelly M. Walsh for 

Objectors and Respondents

Moskovitz Appellate Team, Myron Moskovitz for Objectors 

and Respondents