Filed 4/20/23 T.W. v. M.S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

T.W.,

Plaintiff and Appellant,

v.

M.S.,

Defendant and Respondent.

D080542

(Super. Ct. No. DN188889)

APPEAL from an order of the Superior Court of San Diego County, 

Victor M. Torres, Judge. Reversed. 

Family Violence Appellate Project, Cory Hernandez, Arati Vasan, 

Jennafer D. Wagner, Erin C. Smith; Fenwick & West, Jonathan G. Tamimi 

and Catherine Kevane, for Plaintiff and Appellant. 

M.S., in pro. per., for Defendant and Respondent. 

In 2016, plaintiff/mother T.W. and defendant/father M.S. had a son, C. 

Shortly after C.’s birth, the parties became involved in litigation over custody 
2

and visitation of C. that has led to four separate appeals that are currently 

pending in this court.1 

In this appeal, T.W. seeks reversal of the trial court’s February 28, 

2022 order decreasing M.S.’s monthly child support obligation from $485 to 

$1. The court issued its February 28 order after receipt of M.S.’s motion for 

reconsideration (Motion) of its February 10, 2022 order denying such relief. 

On appeal, T.W. claims the trial court erred in reducing M.S.’s child 

support obligation because (1) M.S., as a vexatious litigant, failed to obtain 

permission before filing his Motion (see Code Civ. Proc., § 391.7, subd. (a)); 

(2) M.S.’s Motion in any event was untimely, not “based upon new or different 

facts, circumstances, or law” (see id., § 1008, subd. (a)), and he failed to 

provide a satisfactory explanation for not providing such earlier, in his 

original motion; and (3) the evidence on which the court relied was “not 

credible,” as it itself noted in the February 10 and February 28 orders.2 

1 See also D079500 (M.S.’s appeal from the June 4, 2021 judgment 

(Judgment); D079984 (T.W.’s appeal from the June 30, 2021 order denying 

her request to permanently renew the domestic violence restraining order 

against M.S. issued on June 20, 2018); and D080174 (M.S.’s appeal from the 

order denying his own request for a domestic violence restraining order 

against T.W.). 

2 T.W. also argued she was denied an opportunity to be heard because 

the trial court modified the February 10 order without notice. Because we 

reverse on other grounds, we deem it unnecessary to reach this claim of error. 
3

As we explain, we agree with T.W. that the trial court erred in reducing 

M.S.’s child support obligation after initially denying this relief in its 

February 10 order. We therefore reverse the February 28 order.3 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Overview

T.W. and M.S. met in 2015. They briefly dated but never married. 

C. was born in August 2016. T.W. initiated proceedings in this case in 

September 2016 by filing a petition to establish parental relationship, after 

M.S. had signed a declaration confirming paternity on the day C. was born. 

Since C.’s birth, a “long history” of litigation has ensued between the parties. 

In June 2018, the court issued a domestic violence restraining order 

against M.S. protecting T.W. and C. for a three-year term. In February 2019,

the court found M.S. a vexatious litigant based on his continuous and 

duplicative filings. And on March 30, 2021, following a four-day bench trial, 

the court issued a 24-page final statement of decision and ruling (SOD) that

was subsequently incorporated into the Judgment. The SOD and resulting 

Judgment are included in the record in the instant appeal and among other 

relief allowed visitation to resume between M.S. and C. after a long nocontact period.

B. Child Support

Pursuant to a request for order filed by T.W. in June 2018, the trial 

court in October 2018 held a hearing covering various subject matters 

3 In reversing, we note that the trial court has continuing jurisdiction to 

modify a child support order upon a showing of changed circumstances. (See

In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234 (Williams); see 

also Cal. Rules of Court, rule 5.260(c) [the party requesting modification of a 

prior child support order “must include specific facts demonstrating a change 

of circumstances”].) 
4

including the parties’ child support obligation. At this hearing, as confirmed 

by the court in a minute order on December 10, it ordered M.S. to pay child 

support in varying amounts dating back to August 2017; set $4,278 as the 

amount M.S. owed T.W. in child support arrears from August 1, 2017 to 

September 30, 2018; and commencing October 1, 2018, set M.S.’s monthly 

child support payment at $485, and ordered him to pay an additional $100 

per month toward the amount in arrears until repaid in full. M.S.’s monthly 

child support payment of $485 was based on a mandatory, statewide uniform 

guideline (discussed post), with him then reporting monthly income of $2,125. 

About a month after the October 2018 hearing, M.S. filed a request for 

order to reduce his child support obligation. In December 2018, the trial 

court denied this request, noting M.S. presented no evidence to “ ‘warrant a 

reconsideration of the Court’s recent order regarding child support’ ”; and 

that his request, in any event, was untimely under Code of Civil Procedure 

section 1008. 

In January 2020, M.S. sought a prefiling order to modify his child 

support obligation. In February 2020 the trial court denied M.S.’s request, 

noting it already had ruled on this “identical issue”; that M.S.’s renewed 

request showed why he had been deemed a vexatious litigant; and that his 

request constituted “harassment.” 

In the March 30, 2021 SOD, the trial court reserved jurisdiction “over 

the issue of child support” and directed that the “issues of child support and 

travel costs” for visitation between C. and M.S. were “to be addressed by the 

assigned independent calendar department, Department 18.” The SOD 

directed T.W.’s counsel to prepare a proposed judgment incorporating the 

SOD. In the proposed judgment submitted by counsel, under the heading 

“Child Support” the court struck paragraph 21 providing: “Child Support 
5

remains as previously ordered on October 15, 2018”; but let stand in the 

Judgment paragraph 22, providing: “The Court reserves jurisdiction 

regarding child support.” 

C. M.S. Renews His Request to Modify Child Support

In October 2021, M.S. again sought a modification of his child support 

obligation. In support, M.S. submitted an income and expense declaration

providing he was a “principal” in a company that, due to the pandemic, was 

unable to pay him a salary; that he was earning $75 per month by leasing his 

vehicle to a “corporate entity”; that he then was receiving $100 per month in 

stimulus payments and had $1,500 in “[c]ash and checking accounts”; that he 

paid no rent or utilities to the property owner where he and his daughter 

resided in return for his work and “manual labor” on the property; that he 

was solely responsible for support of L., with their monthly expenses totaling 

$75; and that he owed $220,000 in student loans. 

Regarding child support and visitation, M.S. noted C. spent about 10 

percent of his time with M.S. and the balance with T.W.; that because C. had 

been allowed to move with T.W. to New York, as provided in the SOD, the 

court should order her to pay the expenses of bringing C. to San Diego for 

court-ordered visitation with M.S.; and that because she earned about $9,500 

a month, the court also should order her to pay him “no less than $500 per 

month” per the uniform support guideline. 

T.W. responded by submitting a declaration attached to “Item 10” of 

form “FL-320.” However, the declaration she included in the record is 

unsigned and undated. In addition, form “FL-320” is not part of the record. 

In any event, T.W. alleges in her declaration that M.S. has never paid 

her any child support for C.; that she earns about $9,500 per month in “gross 

income”; that because M.S.’s business was unsuccessful and he has an 
6

obligation to support C., M.S. needed “to find a new source of income”; that 

M.S.’s statement he was supporting himself and L. on $75 per month, or 

“$1.97 per day,” was “ludicrous” and “absurd”; that M.S. was hiding his “true 

income” and income should be imputed to him; and that he should pay for all 

travel costs for visits with C., inasmuch as he was not paying, and had never 

paid, child support, in contravention of the trial court’s orders. 

D. The February 10 Order and M.S.’s Motion

On February 10, 2022, the trial court issued its order after an 

unreported January 24, 2022 hearing. As relevant to this appeal, the court 

denied M.S.’s request to modify his child support obligation, finding he “failed 

to show a material change of circumstances” that would justify a reduction in 

the October 15, 2018 child support order. The court also found M.S.’s 

representation that he earns $75 a month “not credible,” as he claimed no 

expenses for rent, transportation and similar expenses which he stated were 

supplied to him at no cost; and that M.S. also failed to submit a “Profit and 

Loss Statement for self-employment income or tax returns” as required by

law. On February 14, the clerk of the court served the February 10 order on 

the parties.

On February 24, M.S. filed his Motion. He argued the trial court 

already had modified the October 15, 2018 child support order in the SOD 

when it struck paragraph 21 from the Judgment, leaving only paragraph 22 

in which it “reserve[d] jurisdiction regarding child support.” M.S. stated he 

gave T.W. notice of the Motion on February 24 at 5:00 p.m. 

E. February 28 Order Modifying M.S.’s Child Support Obligation

In the February 28 order, the trial court noted M.S. had neither 

requested nor received permission to file his Motion, which he claimed was

for “ ‘clarification’ and for ‘reconsideration.’ ” The court continued, 
7

“Nevertheless, the court finds sua sponte that it made its February 10, 2022 

[order] by considering [M.S.’s] Request for Order under the standard of 

whether he showed a material change of circumstances to change the 2018 

order. Instead, the court will modify its 2/10/2022 order to set Child Support 

as follows.” 

The trial court reiterated that M.S.’s representation he was earning 

and spending only $75 per month was “not credible”; that he “claim[ed] no 

expenses for rent, transportation, etc., and claim[ed] that these needs are 

supplied at no cost to him, or in exchange for bartered physical labor”; and 

that he failed to comply with the law requiring him to submit a “profit and 

Loss Statement for self-employment income or tax returns.” 

However, based on the evidence from the January 24 unreported 

hearing that M.S. had an “actual timeshare of 1 percent” with C., the trial 

court revised M.S.’s monthly child support payment obligation to $1 based on 

calculations in a DissoMaster report it attached to the February 28 order, 

with this new amount commencing on October 21, 2021, the date M.S. filed 

his original motion. Although it found M.S. “not credible” in claiming his 

monthly earning and expenses were only $75, the court nonetheless used this 

figure in creating the DissoMaster report. The court also refused to impute 

$2,125 of monthly income to M.S., as previously requested by T.W.

The trial court ruled that M.S. was in arrears $4 for the period between 

November 1, 2021 and February 1, 2022. It ordered M.S. to pay T.W. this 

amount, plus $1 more, by March 10, 2022. The court concluded any orders 

not in conflict with the February 28 order remained in full force and effect, 

and “reminded” M.S. that as a vexatious litigant, in the future he must 

receive permission to file any new matters as required by Code of Civil 
8

Procedure section 391.7, subdivision (a), including “a motion to reconsider 

this modification.” 

II. DISCUSSION

A. Vexatious Litigants and the Prefiling Requirement

T.W. contends the trial court erred by accepting in the first place M.S.’s 

Motion and by reconsidering his child support obligation because as a 

vexatious litigant subject to a prefiling order, he was required to obtain 

permission before filing the Motion. We agree. 

“The vexatious litigant statutes . . . are designed to curb misuse of the

court system by those persistent and obsessive litigants who, repeatedly 

litigating the same issues through groundless actions, waste the time and 

resources of the court system and other litigants.” (Shalant v. Girardi (2011) 

51 Cal.4th 1164, 1169 (Shalant).) Code of Civil Procedure section 391, 

subdivision (b) defines “[v]exatious litigant” “as a person who has, while 

acting in propria persona, initiated or prosecuted numerous meritless 

litigations, relitigated or attempted to relitigate matters previously 

determined against him or her, repeatedly pursued unmeritorious or 

frivolous tactics in litigation, or who has previously been declared a vexatious 

litigant in a related action.” (Shalant, at pp. 1169–1170, citing Code Civ. 

Proc., § 391, subd. (b).) 

Code of Civil Procedure sections 391 to 391.6 were enacted in 1963, 

while Code of Civil Procedure section 391.7, the section at issue in the instant 

appeal, was added in 1990. (Shalant, supra, 51 Cal.4th at p. 1169.) “ ‘[T]he 

Legislature enacted [Code of Civil Procedure] section 391.7 to provide the 

courts with an additional means to counter misuse of the system by vexatious 

litigants. [Code of Civil Procedure] [s]ection 391.7 “operates beyond the 

pending case” and authorizes a court to enter a “prefiling order” that 
9

prohibits a vexatious litigant from filing any new litigation in propria 

persona without first obtaining permission from the presiding judge. 

[Citation.] The presiding judge may also condition the filing of the litigation 

upon furnishing security as provided in [Code of Civil Procedure] section 

391.3.” (Shalant, at p. 1170, citing Code Civ. Proc., § 391.7, subd. (b).) Code 

of Civil Procedure section 391.7 is “a powerful new tool designed ‘to preclude 

the initiation of meritless lawsuits and their attendant expenditures of time 

and costs.’ ” (Shalant, at p. 1170.) 

Code of Civil Procedure section 391.7, subdivision (c) provides in part 

that a vexatious litigant subject to a prefiling order “may not file any 

litigation . . . unless the vexatious litigant first obtains an order from 

the . . . presiding judge permitting the filing.” Subdivision (d) of this statute 

provides that, for purposes of the vexatious litigant statute, the term 

“ litigation’ includes any petition, application, or motion other than a 

discovery motion, in a proceeding under the Family Code or Probate Code, for 

any order.” (Italics added.) 

Turning to the instant case, M.S. filed his Motion without first 

obtaining leave from the presiding judge, or even the trial court that issued 

the February 10 order, in contravention of Code of Civil Procedure section 

391.7, subdivisions (c) and (d). Indeed, the court itself in its February 28 

order acknowledged that M.S. needed a prefiling order to proceed with the 

Motion and had not sought permission to file it. 

In addition, the record shows the trial court received the Motion on 

February 28 and “sua sponte” modified the February 10 order that same day. 

As a result, and because the “clerk mistakenly file[d] the litigation without 

the [prefiling] order” (see Code Civ. Proc., § 391.7, subd. (c)), T.W. was 

deprived of her statutory right to file and serve a notice “stating that the 
10

plaintiff is a vexatious litigant subject to a prefiling order,” which notice 

would have “automatically stay[ed]” the Motion and led to its “automatic[ ] 

dismiss[al]” “unless the plaintiff within 10 days of the filing of that notice 

obtains an order from the presiding . . . judge permitting the filing of the 

litigation as set forth in subdivision (b)” (ibid., italics added).4 

Even assuming the trial court had discretion to permit the filing of the 

Motion without M.S. first obtaining a prefiling order, we nonetheless 

conclude the court erred for the separate reason that the Motion failed to 

comply with Code of Civil Procedure section 1008. We turn to that issue

next. 

B. Reconsideration

T.W. first contends the Motion was untimely. We disagree. 

Code of Civil Procedure section 1008, subdivision (a) provides in part 

that a party may file a motion for reconsideration “within 10 days after 

service upon the party of written notice of entry of the order.” (Code Civ. 

Proc., § 1008, subd. (a).) Under Code of Civil Procedure section 1013, 

4 Subdivision (b) of Code of Civil Procedure section 391.7 provides: “The 

presiding . . . judge shall permit the filing of that litigation only if it appears 

that the litigation has merit and has not been filed for the purposes of 

harassment or delay. The . . . presiding judge may condition the filing of the 

litigation upon the furnishing of security for the benefit of the defendants as 

provided in Section 391.3.” (Code Civ. Proc., § 391.7, subd. (b).) 
11

subdivision (a), service of an order by mail extends the 10-day period by five 

calendar days.5 

In the instant case, the clerk of the trial court served the February 10 

order on the parties on February 14. M.S. filed his Motion on February 24, 

within 15 days from the date of service. Thus, his Motion was timely. 

But that does not end our analysis. T.W. also contends the Motion 

failed to comply with other requirements of Code of Civil Procedure section 

1008. We agree. 

A party effected by an order granted by the court may seek 

reconsideration of the order based only on “new or different facts,

circumstances, or law.” (Code. Civ. Proc., § 1008, subd. (a); Crotty v. Trader 

(1996) 50 Cal.App.4th 765, 771 (Crotty) [“section 1008 gives the court no 

authority when deciding whether to grant a motion to reconsider to 

‘reevaluate’ or ‘reanalyze’ facts and authority already presented in the earlier 

motion” (italics added)].) “The party making the application shall state by 

affidavit what application was made before, when and to what judgment, 

what order or decisions were made, and what new or different facts, 

circumstances, or law are claimed to be shown.” (Code. Civ. Proc., § 1008, 

subd. (a).) 

5 Subdivision (a) of Code of Civil Procedure section 1013 provides in part 

that in “case of service by mail,” “[s]ervice is complete at the time of the 

deposit, but any period of notice and any right or duty to do any act or make 

any response within any period or on a date certain after service of the 

document, which time period or date is prescribed by statute or rule of court, 

shall be extended five calendar days, upon service by mail, if the place of 

address and the place of mailing is within the State of California.” (See Weil 

& Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 

Group 2022), ¶ 9:326.1 [noting the “10-day deadline for seeking 

reconsideration is extended under [Code of Civil Procedure section] 1013 for 

service by mail”].) 
12

Here, based on our independent review of the Motion, we conclude M.S. 

failed to offer “new or different facts” and/or “circumstances” in his request 

for reconsideration of the February 10 order.6 (See Code Civ. Proc., § 1008, 

subd. (a); In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 (Herr) 

[facts of which movant was aware at time of original ruling are not “new or 

different” within meaning of statute].) 

Indeed, in his original filing on October 5, 2021, M.S. referenced 

paragraph 22 of the Judgment, noting the “[r]eason[ ]” he was entitled to 

“relief” for child support was “to be addressed by the assigned independent 

calendar department, department 18 (see pg[.] 24 of [the SOD], filed 

March 30, 2021),” after the trial court struck paragraph 21 of the proposed 

judgment. But as we have noted, M.S. relied on these same facts and 

circumstances in seeking reconsideration of the February 10 order. And he 

admitted as much in his Motion when he stated, “On January 24, 2022

hearing[,] I presented this information to Judge Torres and he refused to look 

at it.” (Italics added.) 

We thus conclude the trial court abused its discretion by considering 

M.S.’s Motion when he presented no “new or different facts” or 

“circumstances” in support. (See Code Civ. Proc., § 1008, subd. (a); Crotty, 

supra, 50 Cal.App.4th at p. 771; Herr, supra, 174 Cal.App.4th at p. 1468; see 

also New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 

[a trial court’s ruling on a reconsideration motion is reviewed under the 

abuse of discretion standard].) 

6 In his Motion, M.S. did not assert any “new law” warranting 

reconsideration of the February 10 order. (See Code Civ. Proc., § 1008, subd. 

(a).) 
13

Finally, when M.S. filed his original motion on October 21 he clearly 

was aware of the facts and circumstances concerning child care and 

paragraphs 21 and 22 of the proposed judgment. Assuming arguendo they 

were “new or different” facts or circumstances (despite our conclusion 

otherwise), M.S. failed to give a “satisfactory explanation” why he did not 

present them earlier in his original motion. (See Glade v. Glade (1995) 

38 Cal.App.4th 1441, 1457 [a party seeking reconsideration “must provide not 

just new evidence or different facts, but a satisfactory explanation for the 

failure to produce it at an earlier time”]; Mink v. Superior Court (1992) 

2 Cal.App.4th 1338, 1342 [same].) His failure to satisfactorily explain why he 

waited to provide these allegedly “new or different” facts or circumstances 

provides a separate basis for reversal of the February 28 order.

C. Child Custody

As we have noted, in modifying the February 28 order, the trial court 

recognized M.S. was a vexatious litigant and had failed to obtain a prefiling 

order for his Motion; and which Motion we also have determined did not 

comply with Code of Civil Procedure section 1008. The court nonetheless 

“sua sponte” reduced M.S.’s child support obligation. T.W. separately 

contends this was error because in so doing the court relied on evidence it 

found “not credible.” We agree. 

“The duty of a parent to support the parent’s child or children is a 

fundamental parental obligation.” (Moss v. Superior Court (1998) 17 Cal.4th 

396, 405.) California has established a mandatory, statewide uniform 

guideline to determine court-ordered child support. (See Fam. Code, 

§§ 4050–4076.) “[T]he uniform guideline statutes require that, in 

determining the appropriate amount of child support (whether pendente lite, 

permanent, or on a request for modification of an existing order), all 
14

California courts must adhere to the guideline formula.” (In re Marriage of 

Laudeman (2001) 92 Cal.App.4th 1009, 1013.) 

Courts must adhere to certain principles when calculating child 

support, including: “A parent’s first and principal obligation is to support his 

or her minor children according to the parent’s circumstances and station in 

life” (Fam. Code, § 4053, subd. (a)); “Both parents are mutually responsible 

for the support of their children” (id., subd. (b)); “The guideline seeks to place 

the interests of children as the state’s top priority” (id., subd. (e)); and 

“Children should share in the standard of living of both parents. Child 

support may therefore appropriately improve the standard of living of the 

custodial household to improve the lives of the children” (id., subd. (f)).

Family Code section 4055 sets out the mathematical formula to be 

applied to determine each parent’s monthly “net disposable income” for 

purposes of the guideline. (Fam. Code, § 4055, subd. (b)(2).) Because this 

section “involves, literally, an algebraic formula,” trial courts use the 

DissoMaster computer program to calculate the guideline child support. (In 

re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523–524, fn. 2.) This 

calculation is presumptively correct. (Fam. Code, § 4057, subd. (a); In re 

Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359.) 

The statutory scheme also permits a trial court to modify or terminate 

a child support order “at any time as the court determines to be necessary.” 

(Fam. Code, § 3651, subd. (a).) A party seeking modification of a child 

support order has the burden to “ ‘introduce admissible evidence of changed 

circumstances.’ ” (Williams, supra, 150 Cal.App.4th at p. 1234; see Cal. Rules 

of Court, rule 5.260(c) [the party requesting modification of a prior child 

support order “must include specific facts demonstrating a change of 

circumstances”]; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1054
15

[“The party seeking the modification bears the burden of showing that 

circumstances have changed such that modification is warranted.”].) 

Turning to the instant case, the trial court in its February 28 order 

repeated its conclusion from the February 10 order that M.S.’s representation 

he was supporting himself and his daughter on $75 per month was “not 

credible.” The court in both orders noted this amount “happen[ed] to coincide 

with his listed monthly expenses of $75.00 (consisting of $60 for groceries and 

household supplies and $15.00 for telephone, cell phone and email).” The 

court nonetheless relied on the $75 figure when it generated the DissoMaster 

report attached to the February 28 order, and ruled M.S.’s child support 

should be reduced accordingly to $1 starting from the date of his original 

filing of the motion. 

Because the trial court found this evidence “not credible,” we conclude 

there is no substantial evidence to support the DissoMaster input data that 

M.S.’s monthly income was $75, which report in turn was the basis for the 

court to reduce M.S.’s child support obligation. For this separate reason, we 

reverse the February 28 order.
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III. DISPOSITION

The February 28 order is reversed. The parties to bear their own costs 

on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) 

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.