Filed 4/21/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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., D080174
Plaintiff and Respondent,
v.
(Super. Ct. No. DN188889)
M.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
James A. Mangione, Cynthia Freeland, Margo Lewis Hoy, and Victor M.
Torres, Judges. Affirmed.
M.S., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff 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 embroiled in litigation that has
now spanned over six years, leading to four separate appeals currently
pending before this court.1
In this particular appeal, M.S., who is appearing in propria persona as
he did throughout the trial court proceedings, seeks reversal of the
August 11, 2021 order denying his petition for a domestic violence restraining
order (DVRO) against T.W. (Petition) under the Domestic Violence
Prevention Act (DVPA) (Fam. Code, § 6200 et seq.).2 M.S. claims the trial
court applied the wrong legal standard and acted unreasonably when it
refused to grant the Petition. He also claims a violation of his due process
rights.3
As we explain, we disagree with M.S.’s claims of error and affirm the
August 11 order.4
1 See also D079500 (M.S.’s appeal from the June 4, 2021 judgment
(Judgment) providing among other relief that (1) T.W. may relocate to New
York with C., and (2) T.W. shall have sole legal custody of C., with the trial
court reserving jurisdiction to reconsider custody); D079984 (T.W.’s appeal
from the June 30, 2021 order denying her request to permanently renew the
DVRO against M.S.); and D080542 (T.W.’s appeal from the February 28, 2022
order reducing M.S.’s child support obligation).
2 Further statutory references are to the Family Code.
3 Based on his opening brief, M.S. also appears to be appealing issues
decided in D079500. We therefore decline to address here any claims of error
by M.S. that arise in connection with that separate appeal.
4 We note T.W. did not file a respondent’s brief in the instant appeal.
“However, we do not treat the failure to file a respondent’s brief as a ‘default’
(i.e., an admission of error) but independently examine the record and reverse
only if prejudicial error is found.” (Kennedy v. Eldridge (2011) 201
Cal.App.4th 1197, 1203; see In re Bryce C. (1995) 12 Cal.4th 226, 232–233
[same].)
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I. RULES GOVERNING APPELLATE REVIEW
As a preliminary matter, we address the rules of procedure that govern
this appeal.
Although M.S. is representing himself, self-representation does not
excuse a party’s obligation to furnish a satisfactory record. An appellant who
chooses to self-represent must follow the same rules that apply to lawyers.
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247 (Nwosu).)
It is axiomatic that a trial court’s judgment or order is presumed to be
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Accordingly, an
appellant has the burden of showing error. To do so, the appellant must
present this court with an adequate record for review (Ballard v. Uribe (1986)
41 Cal.3d 564, 574–575), regardless of whether that record is prepared by
counsel or, as in the instant case, by a party (id. at p. 575; Nwosu, supra,
122 Cal.App.4th at p. 1246).
California Rules of Court, rule 8.122(b)5 sets out the required contents
of a clerk’s transcript, M.S.’s choice of record. In addition to other
requirements, a clerk’s transcript “must” include “[a]ny . . . document filed or
lodged in the case in superior court” pertaining to the issue(s) on appeal (rule
8.122(b)(3)(A)) and “[a]ny exhibit admitted in evidence, refused, or lodged”
(id., (b)(3)(B)).
In the instant appeal, noticeably absent from the clerk’s transcript is
M.S.’s Petition, including any supporting paperwork such as declaration(s)
5 All further rule references are to the Rules of Court.
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and/or the exhibits he lodged in support thereof.6 (See Christie v. Kimball
(2012) 202 Cal.App.4th 1407, 1412 [“To the extent the [trial] court relied on
documents not before us, our review is hampered. We cannot presume error
from an incomplete record.”].) Without these documents, it is nearly
impossible for us to assess whether the court erred in denying the Petition.
M.S.’s failure to comply with the rules pertaining to preparation of the
clerk’s transcript has also led to rule violations relating to his appellate brief.
Rule 8.204(a)(1)(C) requires a party filing a brief to “[s]upport any reference
to a matter in the record by a citation to the volume and page number of the
record where the matter appears.” Here, M.S.’s brief includes myriad facts
without citation to the record; and, to the extent such citations do exist, many
of them refer to portions of the 36 “exhibits” M.S. lodged in support of the
instant appeal and the appeals in the related cases.
Moreover, M.S. also has failed to comply with rule 8.204(a)(2)(C), which
requires an appellant to “[p]rovide a summary of the significant facts limited
to matters in the record.” Here, M.S. essentially concedes his summary of
6 Instead of including the exhibits in support of the Petition, as required
by rule 8.122(b)(3)(B), M.S. lodged more than 500 pages of “exhibits” covering
a wide-range of topics/issues that, per his caption in the notice of lodgment,
apply not only to the instant appeal but also to the other appeals pending in
this case. We have reviewed each of these 36 “exhibits” and are unable to
determine which, if any of them, were actually considered by the trial court
in ruling on the Petition. As such, and because our review—with certain
exceptions not applicable here—is limited to the record that was before the
court when it denied the Petition, we decline to consider any of the 36 lodged
“exhibits” in resolving this appeal. (See Center for Biological Diversity v.
Department of Conservation (2018) 26 Cal.App.5th 161, 170 [“ ‘It has long
been the general rule and understanding that “an appeal reviews the
correctness of a judgment [or order] as of the time of its rendition, upon a
record of matters which were before the trial court for its consideration.” ’ ”].)
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“significant facts” is one-sided and in violation of this rule, as he recounts
what he considers to be the “tru[e]” facts, as opposed to setting forth all
material facts, both favorable and unfavorable to his position. (See Nwosu,
supra, 122 Cal.App.4th at p. 1246 [appellants who challenge the decision of a
trial court based upon the evidence “ ‘ “are required to set forth in their brief
all the material evidence on the point and not merely their own evidence” ’ ”].)
Despite the insufficiency of the record, M.S.’s failure in his brief to
summarize all material facts with proper citations to the record, and his
confusing brief that at times lacks coherent legal argument, in the interest of
justice we will do our best to address his claims of error in this appeal,
relying on the clerk’s transcript he provided in this particular appeal7 and
the reporter’s 14-page transcript from the August 11, 2021 hearing, in which
the trial court denied the Petition for a permanent DVRO.8
II. FACTUAL AND PROCEDURAL OVERVIEW
During their short relationship, M.S. and T.W. had a child, C., born in
August 2016. Litigation between the parties began shortly after C.’s birth.
In June 2018, T.W., on behalf of herself and C., obtained a DVRO against
7 We note that many of the documents included in the clerk’s transcript
appear to have little or no relevance to the issues in this appeal. By way of
example only, included in the clerk’s transcript is M.S.’s supplemental
declaration filed on January 3, 2022 in support of his motion for child support
and travel costs; an ex parte application he also filed on January 3 in support
of his “OST re: Birth Certificate” involving his ongoing effort to be added to
C.’s birth certificate; and a January 24, 2021 minute order in which the trial
court took under submission M.S.’s request for modification of child support.
8 Confusingly, as part of the reporter’s transcript in the instant appeal,
M.S. included the trial court’s March 28, 2022 minute order containing its
settled statement, which does not appear to involve the denial of M.S.’s
Petition that is the subject of the instant appeal.
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M.S. for a three-year term, which included no visitation between M.S. and C.
After a four-day bench trial in February 2021, the trial court on March 30
issued a final statement of decision and ruling (SOD), which was
subsequently incorporated into the Judgment.
M.S. filed his petition on July 20, 2021. The trial court denied M.S.’s
request for a temporary restraining order, and set a hearing for August 11 on
his request for a more permanent restraining order.
At the outset of the August 11 hearing, M.S. moved to admit four
unidentified exhibits and a transcript from the June 20, 2018 hearing in
which the trial court had issued the DVRO in favor of T.W. and C. When the
trial court inquired of the relevancy of the June 20 transcript, M.S.
responded, “[I]t’s all part and parcel of a long history of parental alienation of
lies, deceit, [and] perjury” by T.W. The court admitted the four exhibits into
evidence but sustained T.W.’s objection to admission of the June 20
transcript.
M.S. then reviewed the history of the parties’ litigation, including
findings made by the trial court in connection with the June 2018 DVRO in
favor of T.W. and C., and those allegedly 9 made in the SOD and resulting
Judgment.
With regard to the latter, M.S. argued the trial court had found T.W.
showed a “lack of judgment” by involving M.S.’s older child L. in the parties’
custody dispute over C.; that T.W. had hired a private investigator who in
9 We say “allegedly” because the SOD and Judgment were not included
in the clerk’s transcript in the instant appeal. Although M.S. included them
as “exhibits” in his general notice of lodgment, because on this record it
appears neither was “admitted in evidence, refused, or lodged” during the
proceedings leading to the August 11, 2021 order denying his Petition, we do
not consider either document. (See rule 8.122(b)(3)(B).)
6
turn contacted L.’s mother in Africa through a social media account, offering
to “help” L.’s mother obtain custody of L.; that in finding these posts
“disturbing,” the court concluded T.W. was “not credible” when she claimed to
have been unaware of the existence of them; and that it found “strong
evidence” T.W. would never support a relationship between M.S. and C.
In further support of his Petition, M.S. argued that T.W. had lied to
medical professionals about C.’s condition after the child had suffered a
seizure, putting C.’s “safety in jeopardy”; and that T.W. had acted improperly
in seeking to suspend M.S.’s visitation with C. over a “dog-bite issue” that the
child allegedly suffered while in M.S.’s care, which injury M.S. instead
claimed had been caused by a “palm frond.” Based on this history, M.S.
argued T.W. was doing everything possible to alienate him from C., thus
supporting issuance of a DVRO against T.W.
Ruling from the bench, the trial court denied M.S.’s Petition. In so
doing, it found that M.S.’s Petition was merely a “continuation of the ongoing
custody dispute” between the parties; that, because there was no “physical
contact” by T.W. against M.S., it was required to consider “whether or not
there’s been a destruction of [M.S.’s] peace of mind”; and that the evidence
proffered by M.S. was insufficient to make this showing. The court
memorialized its decision in an August 11, 2021 minute order.
III. DISCUSSION
A. Trial Court Did Not Abuse Its Discretion in Denying the DVRO
1. Guiding Principles
a. The DVPA
Under this statutory scheme, “a court is authorized to issue a protective
order ‘ “ ‘to restrain any person for the purpose of preventing a recurrence of
domestic violence and ensuring a period of separation of the persons involved’
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upon ‘reasonable proof of a past act or acts of abuse.’ ” ’ [Citations.] Abuse
includes . . . ‘engag[ing] in any behavior that has been or could be enjoined’
under section 6320. (§ 6203, subd. (a).) Behavior that may be enjoined under
section 6320 relevant to this appeal includes ‘disturbing the peace of the
other party’ (§ 6320, subd. (a)), which ‘may be properly understood as conduct
that destroys [another’s] mental or emotional calm.’ [Citation.] ‘Thus,
section 6320 provides that “the requisite abuse need not be actual infliction of
physical injury or assault.” ’ ” (Curcio v. Pels (2020) 47 Cal.App.5th 1,
11 (Curcio).)
In August 2021 when the trial court denied M.S.’s Petition, subdivision
(c) of former section 632010 defined “disturbing the peace of the other party,”
as provided in subdivision (a) of this statute, in part to mean “conduct that,
based on the totality of the circumstances, destroys the mental or emotional
calm of the other party. This conduct may be committed directly or
indirectly, including through the use of a third party, and by any method or
through any means including, but not limited to, telephone, online accounts,
text messages, internet-connected devices, or other electronic technologies.
This conduct includes, but is not limited to, coercive control, which is a
pattern of behavior that in purpose or effect unreasonably interferes with a
person’s free will and personal liberty.” (Former § 6320, subd. (c).)
b. Standards of Review
A trial court has broad discretion under the DVPA in determining
whether to grant a petition for a restraining order. (In re Marriage of Fregoso
10 Section 6320, subdivision (c) was amended effective January 1, 2022 to
include “reproductive coercion” as an additional “[e]xample of coercive
control” for purposes of “disturbing the peace of the other party.” (See Stats.
2021, ch. 135, § 1.)
8
& Hernandez (2016) 5 Cal.App.5th 698, 702.) This broad discretion is
expressly provided by section 6320, which states that trial courts “may” issue
restraining orders when the statutory criteria are met. (§ 6320, subd. (a); see
Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802 [“The normal rule of
statutory construction is that when the Legislature provides that a
court . . . ‘may’ do an act, the statute is permissive, and grants discretion to
the decision maker.”].)
We review an appeal from an order denying a DVRO for abuse of
discretion. (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 560 (Cueto).) “[A]n
abuse of discretion occurs where ‘ “ ‘the trial court exceeded the bounds of
reason.’ ” ’ ” (Ibid.)
“ ‘In a case where the trier of fact has determined that the party with
the burden of proof did not carry its burden and that party appeals, “it is
misleading to characterize the failure-of-proof issue as whether substantial
evidence supports the judgment [or order].” [Citations.] Instead, “where the
issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law.” [Citation.] Specifically, we ask “whether
the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of
such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.’ ” ’ [Citation.] This is ‘an
onerous standard’ [citation] and one that is ‘almost impossible’ for a losing
[party] to meet, because unless the trier of fact made specific factual findings
in favor of the losing [party], we presume the trier of fact concluded that ‘[the
party’s] evidence lacks sufficient weight and credibility to carry the burden of
proof.’ ” (Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 651 (Estes), citing
Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 163–164
9
and Bookout v. State of California ex rel. Dept. of Transportation (2010) 186
Cal.App.4th 1478, 1486.)
Finally, the question of “ ‘whether a trial court applied the correct legal
standard to an issue in exercising its discretion is a question of law [citation]
requiring de novo review.’ ” (Cueto, supra, 241 Cal.App.4th at p. 560.)
2. Analysis
M.S. first contends the trial court used the wrong legal standard in
finding he failed to meet his burden of proof for issuance of a DVRO.
Specifically, he argues the court applied the “unknown legal standard [of]
‘Destruction of [M.S.’s] Peace of Mind.’ ” We find this contention unavailing.
Although section 6320, subdivision (a) refers to “disturbing the peace of
the other party” (§ 6320, subd. (a), italics added) and not “destruction” of the
other party’s “peace,” we note subdivision (c) defines ‘disturbing the peace of
other party’ to include conduct that, “based on the totality of the
circumstances, destroys the mental or emotional calm of the other party” (id.,
subd. (c), italics added). The trial court therefore did not apply an incorrect
legal standard in evaluating whether T.W. was “disturbing” or “destroy[ing]”
M.S.’s “peace” or “mental or emotional calm.” (See Cueto, supra, 241
Cal.App.4th at p. 560.)
M.S. also contends that, even if the trial court applied the correct legal
standard, its decision to deny issuance of a DVRO against T.W. was
“unreasonable.” (Italics omitted.) For M.S. to succeed on this ground, he
must show that the circumstances, when viewed most favorably in support of
the court’s decision, are such that it acted in an “arbitrary, capricious, or
patently absurd manner” and that a miscarriage of justice has resulted. (See
In re Carlos H. (2016) 5 Cal.App.5th 861, 866; Cueto, supra, 241 Cal.App.4th
at p. 560.)
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We conclude the trial court did not abuse its discretion when it found
the Petition was merely a “continuation of the ongoing custody dispute”
between the parties. Although truncated, the record supports this finding. It
clearly demonstrates that M.S. sought protection under the DVPA for himself
and C. to prevent T.W. from further alienating the child from him and his
family members, including daughter L. Moreover, M.S.’s appellate brief
underscores the true nature of the dispute between the parties when he asks
this court not only to reverse the order denying a permanent DVRO against
T.W., but also to order that C. be placed in his physical custody and “returned
to San Diego.”
In addition, because M.S. bore the burden of proof in the trial court to
show “abuse” under the DVPA, to succeed on appeal he now must make this
showing as a matter of law. (See Estes, supra, 51 Cal.App.5th at p. 651.)
Even crediting the limited “evidence” offered by M.S. in support of the instant
appeal, we conclude he has not met this “onerous standard” (see ibid.),
establishing that T.W. was “disturbing” or “destroy[ing]” his “peace” or
“mental or emotional calm.” (See § 6320, subds. (a), (c); Cueto, supra, 241
Cal.App.4th at p. 560.)
Finally, we note that many of the arguments in M.S.’s brief are an
attempt to persuade this court of his need for a DVRO due to T.W.’s alleged
“lies, false allegations, deceit and treachery” against him and family members
he seeks to protect. However, these arguments demonstrate a fundamental
misunderstanding of our role on appeal; we are not at liberty to reweigh the
evidence and make new findings or those contrary to the fact-finder, if those
findings are supported by sufficient record evidence. (See Hasson v. Ford
Motor Co. (1977) 19 Cal.3d 530, 544 (Hasson) [“We do not reweigh the
evidence on appeal, but rather determine whether, after resolving all conflicts
11
favorably to the prevailing party [citations], and according prevailing parties
the benefit of all reasonable inferences [citation], there is substantial
evidence to support the judgment [or order].”]; Harris v. Stampolis (2016) 248
Cal.App.4th 484, 498 (Harris) [an appellate court may neither reweigh the
evidence nor the fact-finder’s determination that a witness is not credible].)
In sum, we conclude the trial court did not exceed the bounds of reason
when it denied M.S.’s Petition and found his request for a permanent DVRO
against T.W. was merely a continuation of the child custody dispute between
the parties. (See Cueto, supra, 241 Cal.App.4th at p. 560 [“ ‘ “ ‘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.’ ” ’ ”]; see also Hasson, supra, 19 Cal.3d at p. 544; Harris, supra,
248 Cal.App.4th at p. 498.)
B. The Trial Court Did Not Violate M.S.’s Due Process Rights
M.S. also contends he was deprived of due process of law. However, he
failed to brief this issue on appeal, and we conclude it is therefore forfeited.
(See Nwosu, supra, 122 Cal.App.4th at p. 1246 [failure to present arguments
with citation to legal authority can result in forfeiture of any contention that
could have been raised on appeal]; Sprague v. Equifax, Inc. (1985)
166 Cal.App.3d 1012, 1050 [a brief should contain legal argument with
citation to the authorities and if none is made, the court may treat the point
as forfeited].) Reaching the merits in the interest of justice, we find this
contention unavailing.
“ ‘The primary purpose of procedural due process is to provide affected
parties with the right to be heard at a meaningful time and in a meaningful
manner.’ ” (Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 532 (Edward
W.); see Anderson Nat’l Bank v. Luckett (1944) 321 U.S. 233, 246 [“The
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fundamental requirement of due process is an opportunity to be heard upon
such notice and proceedings as are adequate to safeguard the right for which
the constitutional protection is invoked.”].)
M.S. initially claims his due process rights were violated when the trial
court, at the August 11 hearing on his request for a permanent DVRO, did
not give him “sufficient time to make his case and prove the actions of [T.W.]
were not individual, isolated incidents but rather a complex litigation tactic
to alienate [M.S. from C.], at any cost possible,” “[e]ven if that included
harming [M.S.’s] daughter, family, animals and/or . . . person.”
After examining the record in this appeal, we conclude M.S. received
the process he was due. The record shows M.S. was afforded a hearing on his
request for a permanent DVRO; that the trial court admitted into evidence
four exhibits proffered by M.S. and heard argument based on this evidence;
and that, although the court ultimately ruled against him on the Petition,
M.S. was not prevented from presenting his case in a “meaningful manner.”
(See Edward W., supra, 99 Cal.App.4th at p. 532.) And merely because the
court ruled against M.S. does not mean he was denied due process of law.
Nothing more was required.
M.S. additionally claims he was denied due process because various
trial judges in this case were biased against him. However, M.S.’s claim of
judicial bias does not appear to include the judge who denied M.S. a DVRO
(Hon. Victor A. Torres). We therefore reject this claim.
In any event, it does not appear that M.S. sought to disqualify Judge
Torres for biasness. A party seeking disqualification of a judge must do so at
the earliest practicable opportunity after discovery of the facts constituting
the grounds for disqualification. (See People v. Scott (1997) 15 Cal.4th 1188,
1205–1207.) And, to the extent M.S., for the first time on appeal, is including
13
Judge Torres in his due process claim, we deem the issue forfeited. (See
People v. Guerra (2006) 37 Cal.4th 1067, 1111 [noting a party who fails to
raise a claim of judicial bias in the trial court has forfeited that argument on
appeal].)
In addition, the mere fact that a trial judge issued rulings and made
factual findings adverse to M.S. does not indicate an appearance of bias, let
alone demonstrate actual bias. (See Blakemore v. Superior Court (2005)
129 Cal.App.4th 36, 59–60 [“While we conclude the court erred in several
respects, the leap from erroneous rulings to the appearance of bias is one we
decline to make.”].)
Lastly, M.S. claims T.W. and her trial counsel also violated his due
process rights. However, this claim fails as a matter of law because to assert
such a violation requires that an individual establish a protected property
interest that is adversely affected by “government action.” (Naidu v.
Superior Court (2018) 20 Cal.App.5th 300, 308.) Clearly, the conduct of T.W.
and her trial counsel did not involve “government action.”
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IV. DISPOSITION
The trial court’s August 11, 2021 order denying M.S.’s Petition is
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
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