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March 16, 2026 Get Citation Alerts Download PDF Add Note

M.S. v. A.L. CA1/5

California Court of Appeal

• Citations: None known
• Docket Number: A173953

• Precedential Status: Non-Precedential

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.4K)

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Combined Opinion

Filed 3/16/26 M.S. v. A.L. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

M.S.,
Plaintiff and Appellant, A173953

v. (Alameda County
Super. Ct. No. HF23135779)
A.L. et al.,
Defendants and Respondents.

MEMORANDUM OPINION1
In this domestic violence restraining order (DVRO) proceeding, plaintiff
M.S. appeals from the trial court’s denial of his motion for a new trial, which
was filed two years after the court issued a DVRO in favor of defendants and
respondents A.L. and her then minor son, D.L. (M.S.’s stepson). M.S. also
appeals from the court’s order declaring him a vexatious litigant. We
conclude that neither order is appealable and dismiss this appeal.
In March 2023, the trial court granted a five-year DVRO in favor of
A.L. and D.L. M.S. appealed and we affirmed the DVRO in M.S. v. A.L. (May
3, 2024, A168075) [nonpub. opn.].
Two years later on March 14, 2025, M.S. filed a motion for a new trial

1 We resolve this case by memorandum opinion because it raises no

substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.)

1
based on “new police evidence obtained.” In her responsive declaration, A.L.
requested that M.S. be declared a vexatious litigant pursuant to Code of Civil
Procedure section 391, subdivision (b)(5).2 Following oral argument, the trial
court denied M.S.’s motion on substantive grounds and declared M.S. a
vexatious litigant.3 The court specifically noted that it was “not going to
issue a prefiling order” or an order requiring M.S. “to furnish security” but
would consider either order should there be “a subsequent motion.” M.S.
appealed.
We must dismiss this appeal as it presents no appealable judgments or
orders. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“The existence of an
appealable judgment is a jurisdictional prerequisite to an appeal” and “[a]
reviewing court must raise the issue on its own initiative whenever a doubt
exists”].)
First, an order denying a motion for new trial is not directly appealable;
it is only reviewable on appeal from the underlying judgment. (Walker v. Los
Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15,
19–20.) M.S., however, already appealed from the underlying judgment—the
DVRO—several years ago, and we already affirmed that judgment. (M.S. v.
A.L., supra, A168075.) Moreover, his motion for new trial was untimely (to
say the least) and therefore invalid. (§ 659, subd. (a) [party has, at the latest,
180 days after the entry of judgment to file a motion for new trial].) As a
result, the motion could not have extended any deadline to appeal from the
underlying DVRO. (Cal. Rules of Court, rule 8.108(b) [extending time to

2 All further statutory references are to the Code of Civil Procedure.

3 In denying the motion for new trial, the trial court concluded M.S. failed

to show that: (1) the new evidence could not have been discovered with
reasonable diligence earlier; and (2) a different judgment would have resulted
had this evidence been presented at trial.

2
appeal where a party serves a valid motion for new trial].)
Second, “an order declaring a person to be a vexatious litigant is not
itself appealable.” (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618.)
The order, however, “may be reviewed ‘in conjunction with an appeal from
some subsequent otherwise appealable judgment or order.’ ” (Id. at pp. 618–
619.) This includes “an order requiring a person to obtain permission from
the presiding judge . . . before filing ‘new litigation’ ” because that order “is
injunctive in nature and therefore appealable under section 904.1,
subdivision (a)(6).” (Id. at p. 619.) Here, the trial court only declared M.S. a
vexatious litigant under section 391, subdivision (b)(5), and explicitly made
no prefiling orders under section 391.7. Accordingly, it is not an appealable
order.4
DISPOSITION
The appeal is dismissed.

CHOU, J.

We concur.

JACKSON, P. J.
SIMONS, J.

A173953/ M.S. v. A.L. et al.

4 Nothing in this opinion prevents M.S. from appealing the trial court’s

vexatious litigant finding, should the trial court subsequently issue an
appealable order based on that finding, including a prefiling order under
section 391.7.

3