Filed 10/25/23 Scarlett v. Goldman CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

SIDNEY THEODORE SCARLETT,

Plaintiff and Appellant,

v.

GREGORY HOWARD GOLDMAN,

Defendant and Respondent.

 H049622

 (Santa Clara County

 Super. Ct. No. 19CV360335)

THE COURT*

Appellant Sidney Theodore Scarlett appeals from a judgment following the trial 

court’s order sustaining with leave to amend the demurrer of respondent Gregory Howard 

Goldman. Scarlett argues that the trial court erred by striking his motion to disqualify the 

trial judge, denying his motion to continue the demurrer hearing, and (contrary to the 

settled statement of the hearing on the demurrer) denying him the opportunity for oral 

argument in opposition to the demurrer. We conclude that Scarlett has shown no error or 

abuse of discretion by the trial court, and we affirm. 

* Before Grover, A.P.J., Lie, J., and Bromberg, J.
2

I. BACKGROUND

A. Demurrer and Disqualification Motions

Scarlett in 2019 sued Goldman, a deputy public defender, and Public Defender 

Molly O’Neal1for (1) defamation of character; (2) trespass; (3) malpractice; and 

(4) ethics violations arising out of their representation of him as appointed counsel. 

In January 2020, Goldman demurred to the entire complaint.2 Scarlett filed no

response to the demurrer. The initial hearing on the demurrer was continued as a 

consequence of Scarlett’s peremptory challenge to the then-assigned judge. 

On July 1, 2020, the eve of the new hearing date, Scarlett filed a motion to 

disqualify for cause the newly assigned judge, who accordingly continued the demurrer 

hearing to July 30, 2020. The trial court thereafter issued an order striking Scarlett’s 

statement of disqualification on the ground that it was neither verified nor supported by a 

declaration under penalty of perjury and that it failed to state facts constituting grounds 

for disqualification. The court reminded the parties that its “determination of the 

question of disqualification is not an appealable order and may be reviewed only by a 

writ of mandate from the Court of Appeal sought within 10 days of notice to the parties 

of the decision.” 

On the eve of the continued hearing and again on the July 30 hearing date, Scarlett 

filed a second and third challenge for cause, respectively, to the same judge, and the 

hearing was accordingly continued again. The trial court continued the demurrer hearing 

1 Scarlett did not designate the operative complaint for inclusion in the record on 

appeal but did not oppose Goldman’s motion to augment the record with this and other 

documents, which motion we granted. 

2 Goldman stated in a footnote to his memorandum of points and authorities in 

support of his demurrer that “O’Neal has not been properly served and has not appeared 

in this case . . . .” He also stated, however, that his arguments applied “with the same 

force to the claims against Defendant O’Neal.” We note that the record does not reflect 

that Scarlett ever sought an entry of default as to O’Neal. 
3

to September 3, 2020, and on August 7 struck both the second and third statements of 

disqualification. 

On the eve of the continued demurrer hearing, Scarlett filed a motion to continue 

the hearing. He cited the COVID-19 pandemic, asserting pre-existing health conditions 

and a letter from his doctor that he had delivered a few days earlier to the court’s 

Americans with Disabilities Act (ADA) coordinator for the purpose of continuing the 

September 3 hearing date. Scarlett also contended that the judge had “stat[ed] on the 

record in open court” on an unspecified date that the case had been continued to 

December 8, 2020. 

The court on September 3, 2020 heard Scarlett’s motion for a continuance and

issued a written order the same day. The court denied Scarlett’s motion for a 

continuance, noting that the hearing was previously set for July 2 and that the 

continuance motion had not been served until September 2. The court also sustained 

Goldman’s unopposed demurrer with 45 days’ leave to amend. 

Scarlett did not amend his complaint within the time extended and instead 

prematurely filed a notice of appeal from the order sustaining the demurrer. After we 

dismissed the premature appeal, the trial court entered a judgment of dismissal in 

September 2021. Scarlett timely appealed. 

B. Settled Statements and Appeal

In April 2021, in connection with his premature appeal, Scarlett filed a proposed 

settled statement, which Goldman opposed. In response, the trial court in June 2021 

issued an order modifying the statement as follows: 

“[N]o party provided ‘testimony’ or any other evidence at the September 3, 2020 

hearing. The Court invited oral argument on the issues before it. Plaintiff argued he 

wanted a continuance of the hearing and the Court told him his request was not timely as 

his motion was filed the day before the hearing and defense counsel likely had not

received same. [¶] . . . The Court does not recall if plaintiff uttered the actual words set 
4

forth in his ‘Summary of Parties [sic] Testimony and Evidence’ at the hearing on 

September 3, 2020. The Court has no memory that happened. Plaintiff mentions the 

ADA coordinator denied his continuance request before the hearing but the Court, again, 

does not recall that being brought up. The Court recalls that plaintiff did not argue the 

substantive merits of the Demurrer [sic] although he was invited to do so.” 

In February 2022, after initiating the instant appeal from the judgment of 

dismissal, Scarlett filed another proposed settled statement. To the extent Scarlett 

disagreed with the court’s modification of his first settled statement, he did not include 

with his renewed proposed settled statement any explanation of the basis for his 

disagreement. On March 25, 2022, the trial court issued an order that “track[ed] the one 

the Court filed on June 4, 2021, regarding plaintiff’s proposed settled statement,” setting 

forth the same modified settled statement as in the prior order. 

II. DISCUSSION

It is well settled “that a trial court judgment is ordinarily presumed to be correct 

and the burden is on an appellant to demonstrate, on the basis of the record presented to 

the appellate court, that the trial court committed an error that justifies reversal of the 

judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson); see also Benach v.

County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“It is a fundamental rule of 

appellate review that the judgment appealed from is presumed correct.”].) Where the 

appellant fails to do so, a reviewing court is required to resolve the matter against the 

appellant. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) “Stated another 

way, all presumptions are indulged to support the trial court order or judgment ‘on 

matters as to which the record is silent, and error must be affirmatively shown.’ ” (Smith 

v. Ogbuehi (2019) 38 Cal.App.5th 453, 473.) Accordingly, we are not permitted to 

speculate as to the contents of missing portions of the record or issues appellant may have 

raised below. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 

1040, 1051-1052.) Instead, our review is limited to the record before this court. (People 
5

v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) Scarlett raises several issues on appeal, 

which relate to (1) the disqualification motions; (2) the denial of his request for a 

continuance; and (3) the denial of his right to make oral argument at the demurrer 

hearing. The record does not support his claims of error, and even if we were to assume 

the merits of these claims, Scarlett does not establish prejudice from any purported error 

(i.e., the requisite reasonable probability of a more favorable result, absent the asserted 

errors).

A. Disqualification

Code of Civil Procedure section 170.3 provides, in relevant part: “The 

determination of the question of the disqualification of a judge is not an appealable order

and may be reviewed only by a writ of mandate from the appropriate court of appeal 

sought only by the parties to the proceeding. The petition for the writ shall be filed and 

served within 10 days after service of written notice of entry of the court’s order 

determining the question of disqualification.” (Code Civ. Proc., § 170.3, subd. (d); see 

also People v. Hull (1991) 1 Cal.4th 266, 276 (Hull).) One of the main reasons why 

review is available only by petition for writ and not by appeal is that “fundamental 

fairness is promoted by ensuring that the parties, through a petition for a writ of mandate, 

receive ‘ “as speedy an appellate determination as possible.” ’ ” (Hull, supra, 1 Cal.4th at 

p. 273.) 

Each of the three times the trial court struck Scarlett’s statements of 

disqualification, it expressly informed him that a petition for writ of mandate was his 

only avenue for review of the decision. Because Scarlett did not petition for a writ of 

mandate, we have no authority to review the disqualification issue. 

B. Denial of Continuance

It is “well established” that a trial court exercises “broad discretion in ruling on a 

motion for continuance.” (In re Marriage of Johnson (1982) 134 Cal.App.3d 148, 154; 

see also Rankin v. Curtis (1986) 183 Cal.App.3d 939, 947 (Curtis).) We review
6

deferentially a trial court’s decision to grant or deny a continuance, for abuse of that 

broad discretion. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 

1399; Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 418.) Although a 

trial court abuses its discretion “where the lack of a continuance results in the denial of a 

fair hearing” (Curtis, supra, 183 Cal.App.3d at p. 947), the record here does not suggest 

such a result. 

We note that Scarlett delayed his motion for a continuance until the day before a 

hearing that had been already continued three times to accommodate his successive 

statements of disqualification. Whatever Scarlett believed the outcome of those 

disqualification attempts would be, the filing and service of those statements did not

relieve him of the obligation to diligently prosecute his case, including by timely 

opposing a challenge to the pleadings.3

To the extent Scarlett asserts on appeal that “getting a doctor’s [note,] he was 

told[,] would trigger getting a continuance,” nothing in the record supports this assertion. 

In his motion for a continuance, he states that the ADA coordinator advised him to “get 

an updated doctor[’s] note and submit it by August 28, 2020” and that this “gave [him] 

the reasonable expectation . . . that . . . the upcoming hearing of September 3, 2020 would 

in fact be continued.” We have no reason to question Scarlett’s subjective interpretation 

of his communication with the ADA coordinator, but his belief that his request for an 

ADA accommodation entitled him to a continuance is incorrect as a matter of law. 

Before a party’s request for an accommodation in the form of a continuance can be ruled 

on, the opposing party has a right to notice and an opportunity to be heard. (Vesco v. 

Superior Court (2013) 221 Cal.App.4th 275, 280.) By making the continuance request 

the day before the hearing, Scarlett left the court no option but to hear the continuance 

3

In his motion for continuance, Scarlett asserted (without citation to the record) 

that the trial court had previously told him the case was continued to December 8. We 

find nothing in the record that would support this assertion. 
7

motion on the same day set for the demurrer. As a matter of record, we note as well that 

the doctor’s letter on which Scarlett would have us rely is absent from the record. 

Accordingly, we have no basis to fault the trial court for proceeding with the hearing on 

the demurrer as scheduled, in effect determining that Scarlett was not entitled to a 

continuance under the ADA. 

To the extent Scarlett relied on his communication with the ADA coordinator as 

good cause to continue the demurrer hearing “due to surprise and excusable neglect”—

independent of his medical issues—the record does not compel the inference that it was 

reasonable for him to have interpreted those communications as an assurance that the 

requested continuance would be granted. Scarlett himself notes in his motion that his 

prior requests for accommodation had been denied. Nothing about the ADA 

coordinator’s instruction to supply medical documentation by a date certain compels the 

conclusion that she provided express or implied assurance of a continuance upon a 

doctor’s note. 

Moreover, it is not apparent on this record how Scarlett’s reservations about the 

risks of attending the hearing in person could not have been allayed by appearing 

remotely. We observe that Goldman, in fact, appeared by CourtCall. Scarlett provides 

no basis to conclude that he could not likewise have appeared by telephonic or video 

conference call.

4

C. Oral Argument at Demurrer Hearing

Scarlett asserts that the trial judge “did not allow [him] to make oral argument at

the demurrer hearing blocking [his] attempts to do so, thus denying [him] a fair hearing,

full and fair access to the court and denial of [d]ue [p]rocess.” The record of the oral

4 Even prior to the COVID-19 pandemic, Santa Clara County Court Civil Rules, 

rule 12(A), in effect since July 1, 2005, permitted parties to appear by telephone for 

various hearings without leave of court, including law and motion and discovery matters, 

unless otherwise ordered. 
8

proceedings, however, reflects that Scarlett “did not argue the substantive merits of the

[d]emurrer although he was invited to do so.”

As a threshold matter, Scarlett contends that the settled statement is not an

accurate record of the oral proceedings, asserting that the trial judge “did not allow

[Scarlett] a hearing for the ‘settled statement’ of this [a]ppeal . . . .” We observe that an

“order settling the statement of the oral proceedings” is nonappealable and is beyond the

scope of Scarlett’s appeal. (Cross v. Tustin (1951) 37 Cal.2d 821, 827.) Post-judgment 

orders are generally appealable only if they “affect the judgment in some manner or bear 

some relation to it either by way of enforcing it or staying its execution.” (Harmon v. 

Harmon (1960) 184 Cal.App.2d 248, 249; People v. Gross (1955) 44 Cal.2d 859, 860-

861.) 

Even if the implicit denial of a hearing on settlement of a statement were 

cognizable in this appeal, nothing in the record indicates that Scarlett informed the trial

judge, either informally or through the established process set forth in the Code of Civil

Procedure, that he wanted a hearing on the settled statement to address any dispute as to

its contents. Goldman filed a response to Scarlett’s February 2022 proposed settled

statement on March 25, 2022. Scarlett then had 10 days to “request a hearing to review 

and correct the proposed statement.” (Cal. Rules of Court, rule 8.137(f)(1).) There is no 

indication that he did so, even though his 2021 effort to settle the statement afforded him 

notice of the trial court’s recollection of the oral proceedings. Absent a request by 

Scarlett under the California Rules of Court, the trial judge had no reason to order a 

hearing, let alone any obligation to do so. Even where requested, “[n]o hearing will be 

held unless ordered by the trial court judge, and the judge will not ordinarily order a 

hearing unless there is a factual dispute about a material aspect of the trial court 

proceedings.” (Cal. Rules of Court, rule 8.137(f)(1).) 

Even if Scarlett had timely sought review by petition for writ of mandate, a

reviewing court is not authorized “to take the place of the trial court and determine 
9

whether a proposed statement accurately and fairly reflects the proceedings in that court.” 

(Burns v. Brown (1946) 27 Cal.2d 631, 636.) “[W]hen [an appellant] fails to convince 

the trial judge that his [or her] statement accurately reflects the proceedings in question, 

the action of the trial judge, who heard and tried the case, must be regarded as final. [The 

judge’s] familiarity with the trial and knowledge of what took place there make him [or 

her] uniquely qualified to determine what the evidence was and whether it has been 

correctly stated.” (Ibid.) Accordingly, even on a petition for writ of mandate, we would 

have no basis for deviating from that rule where, as here, Scarlett’s objection to the 

court’s modified settled statement on appeal is his unsupported claim that it reflects 

“misrepresentations, false statements, and convenient laps[es] of memory.” 

Moreover, Scarlett omitted from his designation of the appellate record the minute 

order for the hearing on the demurrer. It is an elementary principle of appellate review 

that the appellant has the burden of procuring an adequate record. (Jameson, supra, 5

Cal.5th at p. 609.) Given this omission and our obligation to indulge all presumptions to 

support the trial court order on matters as to which the record is silent, we must conclude 

that the minute order would not have contravened the settled statement’s indication that

the trial court gave Scarlett a chance to make argument at the hearing. 

D. Prejudice

Even if Scarlett were able to substantiate his claims of error as to the timing or 

substance of his opportunity to be heard on the demurrer, Scarlett has not shown any 

prejudice. He has not identified any defect in the trial court’s order sustaining the 

demurrer. Despite the trial court’s allowance of 45 days to amend his complaint (double 

the time specified in the court’s tentative decision), Scarlett did not use the opportunity to 

amend his complaint. “No judgment shall be set aside . . . for any error as to any matter 

of procedure, unless, after an examination of the entire cause, including the evidence, the 

court shall be of the opinion that the error complained of has resulted in a miscarriage of 

justice.” (Cal. Const., art. VI, § 13.) “[O]ur duty to examine the entire cause arises when 
10

and only when the appellant has fulfilled his duty to tender a proper prejudice 

argument . . . [and] the appellant bears the duty of spelling out in his brief exactly how 

the error caused a miscarriage of justice.” (Paterno v. State of California (1999) 74 

Cal.App.4th 68, 106.) 

III. DISPOSITION

The judgment is affirmed. Each party to bear their own costs in the interest of 

justice.