Filed 7/21/21 Marriage of Gurvitz CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of JENNIFER

and JOSEPH GURVITZ.

B300198

JENNIFER GURVITZ,

 Respondent,

v.

JOSEPH GURVITZ,

 Appellant.

(Los Angeles County

Super. Ct. No. BD617345)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lynn Healey Scaduto, Judge. Reversed and 

remanded with directions.

Holstrom, Block & Parke, Ronald B. Funk for Appellant. 

Ribet & Silver, Claudia Ribet for Respondent.

_______________________
2

INTRODUCTION

Joseph Gurvitz appeals a family court order denying his 

motion to set aside a settlement agreement and a stipulated 

judgment entered in his marriage dissolution case. Joseph1

contends the family court prejudicially erred by declining to hold 

an evidentiary hearing on his motion. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Jennifer and Joseph married in February 2003 and 

separated in March 2015. They have three children together: 16-

year-old Aliza, 15-year-old Charles, and 11-year-old David. 

A. The Dissolution Petition, Jennifer’s Request for Support 

Orders, and the Civil Cases

Joseph was arrested on March 13, 2015 for domestic 

violence against Jennifer earlier that day. Jennifer petitioned for 

dissolution of the marriage on March 16, 2015. On October 16, 

2015, Joseph pleaded no contest to one count of misdemeanor 

spousal battery in violation of Penal Code section 243, 

subdivision (e)(1), and one count of misdemeanor contempt of 

court for violating a protective order in violation of Penal Code

section 166, subdivision (c)(1). At the plea hearing the court 

issued a criminal domestic violence restraining order with an 

August 20, 2018 expiration date. 

On March 1, 2016 the family court issued a civil domestic 

violence restraining order that also had an August 20, 2018 

expiration date. The family court’s order stated that the criminal 

domestic violence restraining order remained in effect. 

1 For clarity we refer to the parties and other case 

participants by their first names.
3

On April 1, 2016 Jennifer filed a request for orders 

requiring Joseph to pay child and spousal support. Jennifer 

alleged Joseph held considerable assets in foreign bank accounts, 

and that he had transferred and hidden these assets when

Jennifer filed for dissolution. Jennifer also alleged she had 

learned through discovery that Joseph had borrowed $2 million 

from East West Bank in August 2011 secured by the family’s Los 

Angeles home (the June Street residence). 

A forensic accountant retained by Jennifer submitted a 

declaration stating that between August 30, 2013 and February 

28, 2015 a total of $590,599 had been deposited into one of the 

couple’s bank accounts via wire transfers from Joseph’s father,

Meir Gurvitz, and that the couple had used those funds to pay

household expenses. The couple’s other bank accounts had

significant balances in 2011, 2013 and 2015, but the accountant

could not trace the source or use of the funds. The accountant

identified several foreign accounts he could not assess because 

Joseph had not provided the requisite authorizations. One of 

Joseph’s accounts with First International Bank of Israel had a 

balance of more than $1 million in March 2015, but held only 

$168 three months later. Joseph did not provide the accountant

with his tax returns. 

Joseph asserted the couple had a “negative estate,” and 

that Joseph had been borrowing money from Meir to pay his 

living expenses. Joseph alleged his family had lived beyond its 

means during the marriage due to Meir’s generosity, but that 

Meir had informed Joseph his generosity had “permanently 

ended.” Joseph stated he had been unemployed since 2014, and 

had been unable to secure a job or permanent housing. 
4

Joseph claimed that a residence in Savyon, Israel (the 

Savyon residence) was in his name pursuant to an irrevocable 

gift from Meir, but that Joseph held only a 20 percent interest in 

the property. Joseph asserted that a mortgage on the Savyon 

residence exceeded the value of his interest in the property. 

Joseph stated the June Street residence was purchased in 

2010 as an investment property in Joseph’s name with Meir’s 

financial assistance through Meir’s company Freshbrook Ltd.2 

According to Joseph, Jennifer quitclaimed any interest in the 

property upon its purchase. A deed of trust reflecting a $2.6 

million loan was placed on the property in Freshbrook’s name. In 

2012 Joseph refinanced the property through a new loan from 

Freshbrook. Joseph claimed the mortgage and deed of trust on 

the June Street residence rendered the property without equity. 

During the dissolution proceedings, Freshbrook filed a civil 

lawsuit against Jennifer and Joseph seeking to enforce its alleged 

loan agreement with Joseph and the deed of trust on the June 

Street residence. Jennifer filed a cross-complaint seeking 

cancellation of Freshbrook’s deed of trust and cancellation of an 

abstract of judgment and confession of judgment Joseph executed 

during the dissolution proceedings in a second lawsuit regarding 

the property. 

On March 24, 2016 the superior court deemed the civil 

lawsuits related to the dissolution action. On April 29, 2016 

Jennifer moved to join Meir and Freshbrook as parties to the 

dissolution action. On July 5, 2016 the family court granted 

2 Freshbrook is a British Virgin Islands limited liability 

company formed in 2001. 
5

Jennifer’s motion and ordered Meir and Freshbrook joined as 

indispensable parties to the dissolution action. 

B. The Family Court’s Temporary Support Orders

On July 11, 2016, following a three-day evidentiary 

hearing, the family court3 ordered Joseph to pay Jennifer $1,602 

per month in temporary child support and $827 per month in 

temporary spousal support.4 The court calculated the sums to be 

paid based primarily on $2,500 in monthly income Joseph 

received from Meir for Joseph’s living expenses. The court 

rejected Jennifer’s contention that Joseph earned $47,000 to 

$50,000 per month, finding that “[t]he evidence showed more 

persuasively that it was in fact Meir who was acting behind the 

scenes to move the money in and out of the accounts in Joseph’s 

name—for whatever reason—but not Joseph himself earning the 

money.” The court further observed that, although Joseph stated 

that funds he received from Freshbrook during the marriage were 

loans Meir intended Joseph to repay, Joseph did not provide 

documents evidencing any loans. 

C. The Settlement 

On or about September 12, 2017 Jennifer, Joseph, Meir and 

Freshbrook executed a settlement agreement resolving the

dissolution and civil actions. Each party had counsel in the 

settlement negotiations. The agreement provided that its terms 

3 Judge Michael Convey. 

4 The court also ordered Joseph to pay additional child 

support of one-half the amount of the children’s unreimbursed 

health care costs. 
6

would be memorialized in a stipulated judgment to be entered in 

the dissolution case. 

The settlement awarded Jennifer the June Street residence 

as her sole and separate property, free and clear of all 

encumbrances on title due to Freshbrook’s liens, but subject to 

East West Bank’s $2 million mortgage. The parties agreed to 

dismiss their civil actions and cross-actions regarding the June 

Street residence. The settlement required Jennifer to sell the 

residence as soon as practicable after March 31, 2018, with 

Jennifer bearing all sales costs, property maintenance costs, 

mortgage payments, and taxes and insurance costs before the 

sale. Jennifer would receive the net proceeds from the sale as her 

sole and separate property, except $675,000 as an “equalizing 

payment” to Joseph. Of that amount, $75,000 would be paid 

directly from escrow to Jennifer as payment for Joseph’s support 

arrears from the July 11, 2016 support orders through August 1, 

2017. The remaining $600,000 would be deposited into an 

account to pay Joseph’s future child support obligations. Joseph 

was awarded all right, title and interest in the Savyon residence. 

Joseph agreed to grant Jennifer an unconditional “Get”—a 

Jewish dissolution document—and sole legal and physical 

custody of the children. Jennifer agreed to request that the court

dismiss the civil domestic violence restraining order against 

Joseph, and to cooperate with Joseph as necessary to seek

dissolution of the order. 

The settlement also included mutual waivers of spousal 

support, terms related to the children’s medical and school

expenses, and an agreement that each party would bear his or 

her attorneys’ fees and costs. Jennifer and Joseph would 

mutually select an independent child custody expert to assist in 
7

creating a visitation plan for the children. The parties also 

agreed to waive and release all claims against one another, 

known and unknown, including “all claims and counterclaims in 

the pending civil matters and all claims for breach of fiduciary 

duty, violation of ATROS [Automatic Temporary Restraining 

Orders], and spousal support arrearages in the family law 

matter.” 

The parties represented that they were executing the 

agreement “freely and voluntarily and have had sufficient time to 

consider all terms and conditions and to confer with their 

attorneys throughout the negotiation process.” Each party 

further “represent[ed] and warrant[ed] that at the time of signing 

this Deal Memo, she or he is not suffering from any mental or 

emotional condition which is severe enough to interfere with her 

or his ability to read, understand, and freely agree to the terms of 

this Deal Memo.” 

D. The Hearing on and Entry of the Stipulated Judgment

The parties submitted the proposed stipulated judgment 

contemplated by the settlement agreement to the family court on 

January 10, 2018.5 

The family court6 scheduled a hearing for March 12, 2018 

to discuss the parties’ request that the court prematurely dissolve 

the civil domestic violence restraining order, which otherwise 

5 Jennifer, Joseph, Meir, Freshbrook and their respective 

counsel each signed the proposed stipulated judgment.

6 Judge Lynn Healey Scaduto. 
8

would remain in effect until August 20, 2018.7 After hearing

Jennifer’s and Joseph’s testimony about their contacts with one 

another over the previous year , the court denied the request to 

dissolve the civil restraining order prematurely, noting that 

Jennifer continued “to seem afraid” of Joseph, and Joseph 

continued “to be resentful” of Jennifer. 

Jennifer’s mother, Sheryl Mandelbaum, an attorney, 

argued that the court’s refusal to dissolve the restraining order 

did not affect the court’s ability to enter the stipulated judgment 

because the settlement required only that Jennifer request 

dissolution of the restraining order and cooperate with Joseph to 

seek dissolution of the order, both of which Jennifer had done.8 

At the request of Joseph’s counsel, the court agreed to hold the 

stipulated judgment for 10 days to enable Joseph to discuss with 

his counsel whether to proceed with the stipulated judgment in 

light of the court’s refusal to dissolve the civil domestic violence 

restraining order prematurely. The court ruled that if Joseph did 

not notify the court within 10 days of any objections to entry of 

the stipulated judgment, the court would sign and file the 

stipulated judgment at that time.

Joseph did not file any objections. Accordingly, on March 

23, 2018 the family court signed and entered the stipulated 

judgment of dissolution memorializing the terms of the parties’ 

September 2017 settlement. The stipulated judgment states: 

7 Neither the court nor the parties addressed the criminal 

domestic violence restraining order issued at Joseph’s October 16, 

2015 plea hearing, which also had an August 20, 2018 expiration 

date.

8 Sheryl appeared at the March 12, 2018 hearing as 

Jennifer’s counsel. 
9

“The court finds that each Party and Party Claimant 

acknowledges that he or she respectively (i) is fully informed as 

to the facts relating to the subject matter of this Judgment, and 

as to the rights and liabilities of both Parties; (ii) enters into this 

Judgment voluntarily, free from fraud, undue influence, coercion, 

or duress of any kind; and (iii) has read, considered, and 

understands each provision of this Judgment.” 

E. Joseph’s Motion To Set Aside the Settlement Agreement and 

the Stipulated Judgment

On March 22, 2019 Joseph moved to set aside “portions, or 

in the alternative, the entirety” of the settlement agreement and 

the stipulated judgment. Joseph asked the court to award him 

all or half of the sale proceeds Jennifer received from the July 

2018 sale of the June Street residence for $6,010,000. Joseph 

also sought sanctions against Jennifer for her “threats, coercion 

and undue duress and for frustrating settlement leading to the 

filing” of Joseph’s motion. 

Joseph claimed he agreed to the settlement and stipulated 

judgment “after years of intimidation and fear tactics and 

extreme duress and undue influence,” primarily directed at Meir. 

Joseph alleged Jennifer and Sheryl had threatened to ruin Meir’s

personal and professional lives, and to make any visitation 

between Joseph and the children difficult, if not impossible, if 

Joseph did not agree to Jennifer’s settlement terms. Joseph also 

alleged Jennifer had tricked him into signing a grant deed

transferring title to the June Street residence from Joseph’s 

separate property to joint tenancy with Jennifer, and had turned 

“the Jewish community” against Joseph by falsely accusing him 

of refusing to give Jennifer a Get. Joseph claimed he had been 

assaulted by a man at a restaurant at Jennifer’s behest in 
10

January 2016. The man allegedly grabbed Joseph by the neck, 

choked him, threatened to kill him, and insisted that Joseph give 

Jennifer a Get. Joseph stated, “But for Jennifer’s undue duress, 

extreme pressure and fear tactics, I would never have agreed to 

such an unequal division of assets.” 

Joseph filed with his motion declarations from himself, 

Meir, and Joseph’s settlement counsel. Joseph’s settlement 

counsel stated that on two occasions in 2016 Jennifer’s thencounsel threatened that if the parties did not settle, Meir “could 

face jail time for tax evasion” and other negative consequences 

such as “serious tax liabilities to authorities in Israel and other 

countries.” Joseph’s settlement counsel communicated the 

threats to Meir “but took no other action at that time since [Meir] 

was not [his] client.” Joseph also filed a list of witnesses from 

whom he sought to present live testimony at an evidentiary 

hearing on the motion, including himself, Jennifer, Meir, Sheryl, 

and the parties’ respective settlement counsel. 

Jennifer opposed Joseph’s motion and likewise requested 

sanctions. Jennifer argued the parties had negotiated the

settlement through counsel after many revisions and extensive 

discovery in the family court, and that Joseph “had signed the 

Deal Memo freely, voluntarily, and without duress or coercion.” 

Jennifer contended Joseph only sought to set aside the stipulated 

judgment to “punish” Jennifer for not acquiescing to Joseph’s 

recent visitation demands. 

Jennifer attached to her declaration exhibits she argued

showed Joseph had not been “bullied” or “harassed” into signing 

the settlement, but instead demonstrated Joseph believed he had 

obtained a more favorable outcome in the settlement than 

Jennifer had. Sheryl submitted a declaration stating that 
11

Joseph’s and Meir’s accusations about her threats to Meir were 

“complete fabrications and I dispute each and every statement

contained therein. . . . [¶] At no time did I ever threaten [Joseph] 

or Meir Gurvitz, either directly or indirectly, that I would report 

them to the authorities unless they settled with [Jennifer].” 

Joseph’s reply argued that Jennifer’s opposition “does not 

refute the threats made towards [Joseph] and the bad faith 

tactics used to improperly secure a patently unfair and 

inequitable settlement,” and “ignore[s] the fact that the pressure 

of [Jennifer’s] undue duress on [Joseph] had never ceased.” 

Joseph submitted a second declaration from himself and a second 

declaration from his settlement counsel. Joseph’s settlement 

counsel acknowledged being “aware of what [he] could 

characterize as threats in 2016, during my participation in the 

matter,” but stated he “was not privy” to all of the claimed 

instances of alleged duress.

F. The Hearing on and Order Denying Joseph’s Motion

On May 30, 2019 the parties appeared at a hearing on 

Joseph’s motion. Joseph’s counsel stated that Jennifer’s 

responsive papers did not “refut[e] any of the actual threats” 

described in Joseph’s papers. Jennifer’s counsel responded, “We 

disagree with and say completely opposite of what [Joseph says] 

what happened.” Joseph’s counsel asserted that Joseph had 

requested a live evidentiary hearing “so that the court can 

understand the extreme distress that went on” during settlement 

negotiations. 

The court stated it would consider further the parties’ 

papers, and either “rule on the papers and find good cause that 

there’s no need to hear from the witnesses” Joseph had identified, 

or schedule a long cause hearing to take live testimony. Neither 
12

counsel objected to the court’s plan. Joseph’s counsel stated, “All 

we want is an order and a judgment after a fair trial. We want 

equity and justice. That’s it. Just wants justice. Thank you.” 

Later the same day, the court issued a minute order 

denying Joseph’s request for an evidentiary hearing and denying 

the motion. With respect to the hearing request, the court ruled, 

“After further review of the three rounds of papers the parties[ ] 

filed in connection with the instant request for order and the 

record in the case, the court declines to conduct an evidentiary 

hearing, finding that there is good cause not to hear live 

testimony because the material facts are not in controversy.” 

With respect to the motion, the court ruled, “[Joseph’s] 

contention that he should not be held to the terms he agreed to in 

the deal memorandum and the stipulated judgment that followed 

six months later cannot be reconciled with the terms of the 

agreed-upon judgment itself, the record before the court and the 

case law regarding duress.” The court continued: “Here, it is 

beyond dispute that respondent was represented by the same 

experienced family law lawyer throughout the settlement 

negotiations, up to and including the entry of the stipulated 

judgment. It is also undisputed that more than six months 

passed between when the parties agreed to the deal 

memorandum terms and when the stipulated judgment was 

entered by the court. It is also undisputed that, before entering 

the judgment on March 23, 2018, the court conducted a March 12, 

2018, hearing on the parties’ joint request . . . to terminate early 

an existing domestic violence restraining order that then had a 

few months remaining before it expired. . . . [¶] The court 

declined to terminate the restraining order early and gave both 

parties 10 days to tell the court if there was ‘some reason why the 
13

judgment should not be signed’ by the court as proposed by the 

parties. Neither party asserted any such reason.”

The court credited Joseph’s, Meir’s, and Joseph’s counsel’s 

declarations, and found that Jennifer did not dispute Joseph’s 

threat allegations: “[Joseph’s] declaration, along with that of his 

father and his former counsel . . . all support the conclusion that 

[Jennifer] and/or her family members and counsel communicated 

to [Joseph] and/or his family members and counsel that certain of 

[Meir’s] financial dealings might, if publicly exposed, be 

embarrassing for him or even expose him to criminal liability. . . . 

[Jennifer] seems not to deny any of this.”

The court concluded, however, that “the cat was out of the 

bag” about Meir’s alleged financial shenanigans by June 2016 

“when [Meir’s] financial dealings were at issue” in the three-day 

evidentiary hearing on Jennifer’s request for support orders. The 

court further observed that Joseph’s counsel’s declaration “makes 

clear that [counsel] had first-hand knowledge for more than a 

year before the court entered the stipulated judgment of the same 

types of threats [Joseph] now asks the court to find deprived him 

of the ability to do anything but give in to [Jennifer’s] demands. 

If [Joseph] felt his lawyer was an instrument of the coercion or 

was just not being a zealous enough advocate, he was free to hire 

another lawyer in the six months that passed after the Deal 

Memorandum was negotiated.” 

The court ruled that the plain language of the stipulated 

judgment refuted Joseph’s arguments that he did not know 

Jennifer would sell the June Street residence for several million 

dollars, that he did not receive any sale proceeds, and that he did 

not receive any assets in the settlement. The court “conclude[d] 

that the record before it cannot support a reasonable conclusion 
14

that [Joseph] had no alternative but to succumb to [Jennifer’s] 

demands.” 

The court denied Joseph’s motion in its entirety, and denied 

Jennifer’s request for sanctions. Joseph filed a timely appeal

from the order.

9

DISCUSSION

Joseph’s sole argument on appeal is that the family court 

abused its discretion by declining to hold an evidentiary hearing 

on Joseph’s motion to set aside the settlement agreement and the 

stipulated judgment. We agree that the family court 

prejudicially erred by denying Joseph’s request for an evidentiary 

hearing. 

A. Applicable Law and Standard of Review

“At a hearing on any . . . notice of motion brought pursuant 

to [the Family Code], absent a stipulation of the parties or a 

finding of good cause . . . , the court shall receive any live, 

competent testimony that is relevant and within the scope of the 

hearing . . . .” (Fam. Code,10 § 217, subd. (a); see also Cal. Rules 

of Court, rule 5.92(a)(1)(A) [in family law proceedings, “request 

for order” has same meaning as “notice of motion”].) California 

Rules of Court, rule 5.113(b) sets forth the factors “in addition to 

the rules of evidence” a court must consider in making a finding 

of good cause to refuse to receive live testimony under section 

217: “(1) Whether a substantive matter is at issue—such as . . . 

9 Jennifer moved to dismiss Joseph’s appeal as untimely 

filed. We denied Jennifer’s motion on October 29, 2019.

10 All undesignated statutory references are to the Family 

Code.
15

the characterization, division, or temporary use and control of the 

property or debt of the parties; [¶] (2) Whether material facts are 

in controversy; [¶] (3) Whether live testimony is necessary for the 

court to assess the credibility of the parties or other witnesses; [¶] 

(4) The right of the parties to question anyone submitting reports 

or other information to the court; [¶] (5) Whether a party offering 

testimony from a non-party has complied with Family Code 

section 217(c)[11]; and [¶] (6) Any other factor that is just and 

equitable.” If the court makes a finding of good cause to exclude 

live testimony, “it must state its reasons on the record or in 

writing. The court is required to state only those factors on 

which the finding of good cause is based.” (Cal. Rules of Court, 

rule 5.113(c).)

“Generally, where a trial court has discretionary power to 

decide an issue, an appellate court is not authorized to substitute 

its judgment of the proper decision for that of the trial judge. . . . 

‘“The appropriate test for abuse of discretion is whether the trial 

court exceeded the bounds of reason. When two or more 

inferences can reasonably be deduced from the facts, the 

reviewing court has no authority to substitute its decision for 

that of the trial court.”’ [Citations.] The burden is on the 

complaining party to establish abuse of discretion.” (In re 

Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

11 Section 217, subdivision (c), requires a party seeking to 

present live testimony from witnesses other than the parties to 

file and serve before the hearing a witness list with a brief 

description of the anticipated testimony.
16

B. The Family Court Abused Its Discretion by Denying 

Joseph’s Request for an Evidentiary Hearing

The family court abused its discretion by finding good cause 

to refuse to receive live testimony based on its conclusion that the 

facts material to Joseph’s motion were not in controversy. Four 

of the six factors rule 5.113(b) requires the court to consider in 

making a finding of good cause to decline to receive live 

testimony weighed against a finding of good cause. 

First, a substantive matter was at issue in Joseph’s 

motion—the division of the parties’ property. (See Cal. Rules of 

Court, rule 5.113 (b)(1) [court must consider “[w]hether a 

substantive matter is at issue—such as . . . the characterization, 

division, or temporary use and control of the property or debt of 

the parties”].) Joseph’s motion sought redistribution of the 

proceeds of the sale of the June Street residence. Joseph argued 

the court should award him either all or half of any sums 

Jennifer had received from the sale of the property.

Second, the parties’ declarations conflicted on facts 

material to the motion. (See Cal. Rules of Court, rule 5.113(b)(2) 

[court must consider “whether material facts are in 

controversy”].) Joseph asserted Jennifer’s orchestrated assault 

and Jennifer’s and Sheryl’s threats forced Joseph to capitulate to 

Jennifer’s settlement demands. Meir alleged Sheryl had 

threatened him directly. Jennifer denied threatening Joseph and 

denied Joseph experienced duress during the settlement 

negotiations; she also “dispute[d] each and every statement 

contained” in Joseph’s motion and declarations. Sheryl described 

Joseph’s and Meir’s declarations as “complete fabrications,” and 

denied threatening either of them.
17

Third, the parties’ conflicting declarations demonstrated a 

need “for the court to assess the credibility of the parties [and]

other witnesses.” (See Cal. Rules of Court, rule 5.113(b)(3).) 

While the court had heard Jennifer and Joseph testify at the 

March 12, 2018 hearing on the request to dissolve the civil

domestic violence restraining order, the court did not preside over 

the evidentiary hearing on Jennifer’s request for support orders 

during which the witnesses addressed Meir’s finances and 

financial arrangements with Joseph, including regarding the 

June Street residence. The court therefore had not previously 

heard the parties’ live testimony on the issues underlying the 

alleged threats and duress or assessed the witnesses’ credibility

on those issues. 

Fourth, Joseph had complied with section 217, 

subdivision (c), by filing and serving with his motion a list of 

witnesses from whom he sought to present live testimony with a 

brief description of each witness’s anticipated testimony. (See 

Cal. Rules of Court, rule 5.113(b)(5) [court must consider 

“whether a party offering testimony from a non-party has 

complied with Family Code section 217(c)”].)

These four factors weighed against a finding of good cause 

to refuse to receive live testimony, and nothing in the record 

demonstrates that the other factors justified denying Joseph’s 

request for an evidentiary hearing. (See Cal. Rules of Court, rule 

5.113(b)(4) [court must consider “right of the parties to question 

anyone submitting reports or other information to the court”]; 

Cal. Rules of Court, rule 5.113(b)(6) [court must consider “any 

other factor that is just and equitable”].) We thus conclude the 

family court abused its discretion by finding good cause to decline 

to receive live testimony. 
18

C. The Error Was Prejudicial

The family court’s error in refusing to receive live 

testimony on Joseph’s motion was prejudicial. The family court 

seemingly believed Joseph’s contentions that Jennifer and Sheryl 

had threatened Joseph and Meir, but nevertheless concluded the 

alleged threats did not and could not demonstrate duress 

sufficient to set aside the settlement agreement and the 

stipulated judgment. In essence, the court found that nothing 

Joseph or any other witness might say at an evidentiary hearing 

could warrant granting Joseph’s motion. 

A conclusion that live testimony could not under any 

circumstances affect the outcome of Joseph’s motion cannot be 

reconciled with the strong policy favoring reliance on live 

testimony in family law proceedings. (See In re Marriage of 

Binette (2018) 24 Cal.App.5th 1119, 1126-1127 [“The purpose of 

section 217 is to encourage reliance on live, rather than written, 

testimony in family law proceedings”]; In re Marriage of Swain

(2018) 21 Cal.App.5th 830, 838 [“The history of section 217 and 

the case law that preceded it reflect a concern for the value of live 

testimony rather than deciding substantive motions based upon 

competing declarations”]; see also Elkins v. Superior Court (2007) 

41 Cal.4th 1337.) Moreover, a claim of duress requires a court to 

evaluate the effect of alleged threats “on the state of the 

threatened person’s mind.” (In re Marriage of Baltins (1989) 212 

Cal.App.3d 66, 84 [“[t]o determine whether a contract . . . was the 

product of duress, the courts look not so much to the nature of the 

threats, but to their effect on the state of the threatened person’s 

mind”]; see also Krantz v. BT Visual Images, L.L.C. (2001) 89 

Cal.App.4th 164, 176 [“‘[t]he question of duress . . . is a factual 
19

question; the existence of duress always depends upon the 

circumstances’”].)

Joseph’s intensely factual duress claims, the effect of the 

alleged threats and duress on Joseph’s state of mind, and the 

parties’ and witnesses’ contradictory statements could not be 

resolved based upon competing declarations. Before concluding

that Joseph had not demonstrated the alleged duress compelled 

him to surrender to Jennifer’s demands, and that Joseph would 

have acted differently had he truly been under duress, the family 

court should have heard and assessed Joseph’s live testimony

about the effect of the alleged threats on his state of mind, as well 

as heard and assessed the live testimony of the other witnesses. 

After an evidentiary hearing, the court may find Joseph’s 

contentions do not justify setting aside the settlement agreement 

and the stipulated judgment. Or the court may find that they do. 

But before deciding the motion, section 217 requires the court to 

evaluate Joseph’s duress claims, and the parties’ and other 

witnesses’ credibility, by receiving live testimony.
20

DISPOSITION

The May 30, 2019 order denying Joseph’s motion to set 

aside the settlement agreement and the stipulated judgment is 

reversed. The case is remanded to the superior court with 

directions to vacate the order denying Joseph’s motion to set 

aside the settlement agreement and the stipulated judgment, to 

hold an evidentiary hearing on the motion, and to enter a new 

order(s) as appropriate following the evidentiary hearing. Joseph 

shall recover his costs on appeal.

McCORMICK, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.

 Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.