Filed 2/16/24

Reposted with complete counsel listing

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of TARA and 

ROBERT D.

TARA D.,

Respondent,

v.

ROBERT D.,

Appellant.

 

 D080977

 (Super. Ct. No. DN180142)

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

Sharon L. Kalemkiarian, Judge. Motions to augment granted. Affirmed.

Bickford Blado & Botros and Andrew J. Botros for Appellant.

No appearance for Respondent.

Cage & Miles, Shannon B. Miles and John T. Sylvester for Minors.
2

Robert D., the father in these dissolution proceedings, appeals a final 

custody order issued after a multiday evidentiary hearing. He claims the 

court abused its discretion by refusing to grant a continuance after his 

attorney withdrew from the case on the day before trial was set to begin, 

effectively depriving him of the ability to retain new trial counsel. We agree 

that when it permits the withdrawal of counsel on the eve of trial, the court 

has a special obligation to assess the length of a continuance that would be 

required for the affected party to obtain a new lawyer and balance that 

against other pertinent circumstances that would be adversely affected by a 

delay in the proceedings. Where the court makes this assessment and 

engages in the appropriate weighing of competing interests, its decision will 

not be reversed absent an abuse of discretion.

Here, the trial court never inquired about the length of the continuance 

that was being sought or might be required, making it impossible to perform 

the required balancing analysis. Instead, it simply declared there would be 

no continuance and then (commendably) attempted to explain what it could 

do to accommodate the now-self-represented family law litigant. It is thus 

the failure to inquire and assess that constitutes an abuse of discretion in 

this case. Even so, however, Robert has not shown that the court’s error 

resulted in a “miscarriage of justice” for purposes of article VI, section 13 of 

the California Constitution. Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Robert and Tara divorced in 2016 after having four children together. 

In November 2019, Robert filed a request for order (RFO) seeking sole legal 

and physical custody of the children. A hearing, initially set for February 
3

2020 just prior to the COVID-19 shutdown, was continued to June 2020.1 

After several more continuances, the causes of which are not entirely clear

from the record, the court set the matter for a five day trial beginning 

November 16, 2021. Accordingly, the court set a number of pretrial deadlines 

and an October 14, 2021 trial readiness conference. At the trial readiness 

conference, the court pushed back the start of trial by one day, to November 

17, 2021, and reserved an extra day for trial in December. 

On October 29, 2021, Robert’s counsel filed an application to continue 

the trial on the grounds that Tara had “not formally responded to [Robert’s] 

RFO; a [Child Welfare Services] investigation [was] now open; [and] [one of 

the children’s] therapist[s] has referred her to [MINORS’] COUNSEL due to a 

serious issue that has arisen that must be properly addressed.” The court 

denied the application, making a request that Child Welfare Services attempt 

to conclude its investigation before the trial. 

On November 10, 2021, one week before trial was set to begin, Robert’s 

counsel filed a motion to be relieved, claiming there had been a “[b]reakdown 

in the attorney-client relationship.” The court granted counsel’s request to 

shorten time for a hearing on the motion, advancing it to November 16, 2021. 

But the judge added a handwritten note to the order: “Trial of 11/17/21 will 

not be continued.” 

1 It appears that Robert’s responsive declaration was rejected by the 

clerk because counsel had not properly filed his motion to withdraw. 

However, the reporter’s transcript clearly reflects that the court received, 

read, and considered Robert’s declaration. We therefore find that even if was 

not “filed,” this document was “lodged in the case in superior court,” and we 

grant Robert’s motion to augment the record on appeal with the file-stamped 

copy attached to his July 23, 2023, Request to Reply re: Objection to Motion 

to Augment Record on Appeal. (Cal. Rules of Court, rule 8.155(a)(1)(a)

(subsequent rule references are to the California Rules of Court).) 
4

On the morning of November 16, Robert filed a declaration in response 

to the motion, stating, “I must affirm that the attorney-client relationship has 

broken down,” and requesting a continuance of the trial so he could obtain 

new counsel. Robert’s declaration also stated that he “retained” or 

“attempted to retain” another lawyer “in an act of desperation” after receiving

the motion to withdraw a week before trial. 

At the hearing on counsel’s motion to withdraw, the court said its 

tentative decision was to deny the motion “at this late stage” because counsel 

is “not allowed to prejudice [his] client.” The judge added, “I’m not going to 

continue this, and it’s been clear to everyone that I wasn’t going to continue 

it, because I know continuances were requested recently.” 

The court heard argument from Robert’s attorney, who testified that 

the parties had recently gotten close to settlement and that he had realized in 

the process “there was a distinct conflict between” Robert and himself. 

Counsel stated, “I told [Robert] . . . that I would probably be filing this should 

he pursue certain positions.” According to counsel, settlement talks 

progressed, and a draft agreement was prepared. Several days later, Robert 

had not responded to the draft, but had made comments to counsel’s staff 

indicating “he wanted to pursue positions at trial that [counsel was] not in 

agreement with.” Thereafter, counsel filed his motion to withdraw. The 

court asked the attorney, “Do you have concerns that certain positions would 

expose you to an ethical problem regarding your representation of him?” 

Counsel responded, “I think so. I think there are a number of concerns I 

have, which is that, you know, I am barred from taking positions that are 

known to be frivolous.”

Robert also testified and said that he did not agree with counsel’s 

summary of their relationship, denying that counsel had told him the 
5

positions were “frivolous.” However, he also said, “I don’t disagree with 

[counsel’s] position. That’s why I did say there that I can affirm the attorneyclient relationship has broken down.” He further testified that he had 

concerns with his lawyer’s performance, saying “there’s a problem with the 

communication,” and claiming that counsel “really hasn’t had time to bone up 

on the relevant history, but, you know, . . . for him to say that he believes my 

position is frivolous is -- you know, is flabbergasting to me.” Referencing the 

declaration he submitted, Robert said he had “reach[ed] out to alternate 

counsel” as an “act of desperation.” But he did not confirm that he had 

retained new counsel and indicated that if counsel withdrew, he would be left 

to proceed unrepresented. 

The court ultimately permitted counsel to withdraw, stating, “[Counsel] 

can’t conduct a trial when fundamentally there is a difference between you 

and him -- or from his perspective and his client about how to proceed and 

what the end goal is. [¶] And so having heard more, I am going to grant his 

request to withdraw.” The court recognized that it put Robert “in a difficult 

position,” but said, “I also recognize that I have made it clear again and again 

that this trial was not going to be continued. [¶] I have -- it’s not good for 

your kids or for mom or for you, for that matter, to have this go on any 

longer.”

Robert’s now-former lawyer explained that he had not filed a trial brief 

or exhibit list because there was “a fundamental difference of opinion of what

should be filed.” The court did not ask Robert to clarify whether he had 

actually retained the attorney mentioned in his declaration, or how long it 

might take for that new lawyer to prepare for trial. Indeed, there were no 

questions about possible substitute counsel. Apparently assuming that 
6

Robert would be representing himself, the court decided to postpone trial one 

day to permit Robert “to get his ducks in a row.” 

Robert told the court that he did not want to proceed without counsel 

and did not think he could successfully try the case on his own. The court 

nonetheless declined to continue the trial further: 

“Mr. Delgado, here’s the thing: I know it’s difficult. I will 

give you procedural road maps as we go. You know your 

case. You have been involved in a lot of court proceedings, 

and, you know, I’ll make sure [Tara’s counsel] doesn’t take 

advantage of you. [¶] [Tara’s counsel], you’re on notice. 

And he knows that that is the case. We have got counsel 

for the children. We’re going to do the best we can, but this 

cannot be delayed any more, and we need to get -- move 

forward. If you wish to consider further -- [¶] . . . [¶] --

further settlement conversations, you certainly -- it’s never 

too late for that. I’m confident having read through the file, 

that with the witnesses that are anticipated and the 

information the Court will have, that we’ll get through it.”

Robert’s former lawyer was directed to prepare an order, and counsel 

confirmed that he would.2 In the findings and order, the court “recognized 

that [Robert] was concerned about proceeding without counsel,” but 

“indicated it had previously told all parties that there would be no 

continuance of the trial.” 

2 It appears that counsel never prepared an order. Instead, Robert’s 

appellate counsel prepared the order, which was signed and entered by the 

court on July 13, 2023. Although we ordinarily do not consider orders 

entered after the notice of appeal is filed, the order here formally 

memorializes the ruling that is the subject of the appeal and allows the 

appeal to proceed. We therefore grant the unopposed motion to augment the 

record with the July 13, 2023, Findings and Order After Hearing, 

Attachment to Findings and Order After Hearing of November 16, 2021, and 

Clerk’s Certificate of Service by Mail. 
7

Trial began two days later, and hearings were held on six

nonconsecutive days from mid-November 2021 to mid-January 2022. 

Several days into the trial, Tara moved for a mistrial on the grounds that 

Robert’s self-representation combined with his failure to appear in person 

were creating too many irregularities in the proceedings. The court appeared 

at points to offer the parties a continuance until August or September 2022

to “give [Robert] a chance to retain an attorney,” but ultimately denied the 

mistrial motion and ordered Robert to start attending the proceedings in 

person. Robert continued to represent himself, including filing written 

closing arguments in March 2022.

On May 16, 2022, the trial court issued a proposed statement of 

decision and interim orders awarding Tara sole legal custody and both 

parents equal physical custody. Robert hired new counsel by July 20, 2022. 

On September 7, 2022, the court filed its statement of decision and 

entered final custody orders pursuant to Montenegro v. Diaz (2001) 26 

Cal.4th 249. The court stated it “largely agree[d] with the findings of [the 

court-appointed custody evaluator] and the observations of [minors’] counsel 

in her written closing argument.” The judge concluded, “Based upon the 

testimony received and the behavior of both parents,” that the parents could 

not “make decisions together.” “[Robert’s] behavior indicates that he will not 

respect [Tara’s] opinion about anything. He has exercised medical judgment 

without a doctor’s direction or consent. His actions and conduct concern the 

Court and [Tara]. The Court therefore finds it is in the best interest of the 

children for [Tara] to have sole legal custody, as sole legal custody to [Tara] 

will provide consistency in medical and educational decisions for the 

children.” 
8

The court also mentioned “concerns about [Robert’s] failure to pay child 

support, the significant arrears balance, and the suspension of [his] driver’s 

license (which [he] expressed he did not even know about, a position which 

was not credible[ ])[.]” It further noted Robert’s negative interactions with 

school personnel and minors’ counsel’s staff, and stated that it “came close to 

limiting [Robert’s] time to alternate weekends based upon the testimony and 

ho w [Robert] behaved in the courtroom,” finding that “the father is poisoning 

the well and influencing the children in a negative manner and that [Robert] 

has a very negative opinion of [Tara].” Despite these concerns, however, the 

court ultimately credited arguments by minors’ counsel and testimony of the 

custody evaluator “who indicated the children have a good relationship with 

both parents and that they love both parents,” and found it in the best 

interests of the children to continue “[t]he equal timeshare” that had “been 

going on for many years.” 

Now represented by counsel, Robert filed this appeal. Tara has not 

filed a brief on appeal, but the children (through minors’ counsel) oppose 

Robert’s arguments.

DISCUSSION

Robert asserts the trial court abused its discretion by refusing to grant 

a continuance after permitting his attorney to withdraw on the eve of trial. 

He further contends that this error requires reversal and remand for a new 

trial. Although we agree with his first argument, we find that the error was 

not prejudicial under People v. Watson (1956) 46 Cal.2d 818 (Watson) because 

on the facts of this case it is not reasonably probable that an appropriate 

continuance, if granted, would have changed the result. 
9

A. Robert’s Claim of Error Is Procedurally Preserved

We first address two procedural arguments that minors’ counsel 

claim requires affirmance. Counsel first assert that Robert has failed 

to provide an adequate record of the challenged proceedings because 

the first day of trial on November 18, 2021 was not reported, but was 

instead memorialized in a settled statement. They maintain we cannot 

decide the appeal in Robert’s favor because the settled statement does 

not give any reasons for the court’s denial of the continuance. 

Notwithstanding the parties’ contentions, however, it does not 

appear that Robert requested a continuance on the first day of trial at 

all. The settled statement summarizes prior proceedings as follows: 

“The Court notes that, Robert’s prior . . . attorney . . . was released by 

the Court on November 16, 2021 . . . . The Court denied Robert’s 

request for a continuance to obtain counsel, and that Robert is now pro 

per. The Court noted the pleadings received from Robert were late, but 

the Court still accepted his documents under the circumstances.” The 

minutes of the first day of trial similarly do not reflect any renewed 

request for continuance. We cannot conclude that the court denied a 

renewed request on the first day of trial.

In any case, the record is sufficient with respect to the request 

Robert clearly did make. Robert asked for a continuance in writing in 

his response to counsel’s request to withdraw. The court considered 

and denied the request on November 16, giving reasons at the hearing 

and in its order.

Separately, minors’ counsel claims that we should affirm because

Robert failed to file a “noticed motion or formal ex parte application” as 

required by Rule 3.1332(b). This is not an appropriate basis for 
10

affirmance. Robert requested a continuance in his written declaration 

submitted to the court. The court addressed that request on the merits 

and said it would not grant any continuances. Repackaging the same 

request as a noticed motion would have been pointless in light of the 

court’s clear statements. “The law does not require a futile act.” 

(Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 

1274.) 

Moreover, although “mere self-representation is not a ground for 

exceptionally lenient treatment” (Rappleyea v. Campbell (1994) 8 

Cal.4th 975, 984), “[t]rial judges must acknowledge that propria

persona litigants often do not have an attorney’s level of knowledge 

about the legal system and are more prone to misunderstanding the 

courts requirements” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 

1284). Robert, proceeding without counsel against his wishes, would 

have reasonably understood that his motion for a continuance had been 

denied on the merits. It would be perverse to penalize him for failing to 

formally renew a request that he knew had already been rejected.

B. The Trial Court Abused Its Discretion in Denying a Continuance 

Without Any Inquiry into the Particulars of the Request 

Rule 3.1332(c) specifically addresses requests for the continuance 

of a trial based on the unavailability of counsel: 

“Although continuances of trials are disfavored, each 

request for a continuance must be considered on its own 

merits. The court may grant a continuance only on an 

affirmative showing of good cause requiring the 

continuance. Circumstances that may indicate good cause 

include: . . . [¶] . . . [¶]

(3) The unavailability of trial counsel because of death, 

illness, or other excusable circumstances; [and]
11

(4) The substitution of trial counsel, but only where there 

is an affirmative showing that the substitution is required 

in the interests of justice[.]” 

“In ruling on a motion or application for continuance, the court must consider 

all the facts and circumstances that are relevant to the determination.” (Rule 

3.1332(d).) The factors that are typically significant are listed in the rule and

include:

“(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension 

of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the 

problem that gave rise to the motion or application for a 

continuance;

(5) The prejudice that parties or witnesses will suffer as a 

result of the continuance;

(6) If the case is entitled to a preferential trial setting, the 

reasons for that status and whether the need for a 

continuance outweighs the need to avoid delay;

(7) The court’s calendar and the impact of granting a 

continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a 

continuance, by the trial of the matter, or by imposing 

conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair 

determination of the motion or application.” (Ibid.)
12

We review a trial court’s denial of a continuance for abuse of discretion. 

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

1395 (Oliveros).) 

Losing counsel shortly before trial often constitutes good cause 

for a continuance. (See, e.g., Oliveros, supra, 120 Cal.App.4th at 1395 

[trial court erred in denying request for a trial continuance in medical 

malpractice case where lead trial counsel was unavailable due to 

another trial]; Hernandez v. Superior Court (2004) 115 Cal.App.4th 

1242, 1244 (Hernandez) [“If plaintiff’s counsel’s serious physical illness 

and its debilitating effects culminating in death during the final stages 

of litigation are not good cause for continuing a trial and reopening of 

discovery, there is no such thing as good cause.”]; Vann v. Shilleh

(1975) 54 Cal.App.3d 192, 196 (Vann) [“[A] necessary substitution of 

counsel just prior to trial may justify the granting of a continuance, 

in some cases.”]; see also Rule 3.1332(c)(3)–(c)(4).) Here, the court 

appeared to recognize as much, noting that counsel’s withdrawal “at 

this late stage” was likely to “prejudice” Robert. The court permitted 

counsel to withdraw because of “fundamental differences . . . on how to 

proceed and what the goals are at trial.” The court did not assess fault 

for the breakdown, nor was such a finding required to conclude that 

withdrawal was appropriate. (See Estate of Falco (1987) 188 

Cal.App.3d 1004, 1014 [“It was not relevant who caused the breakdown 

for the purposes of determining whether appellants should be allowed 

to withdraw, but rather, the trial court’s concern focused on the effects 

the rift would have on [clients’] legal representation.”].) These are, 

therefore, circumstances that on their face would seem to justify a 

continuance of some duration. (See Rule 3.1332(c).) 
13

Nonetheless, after deciding to permit counsel to withdraw, the 

court explained that it would not grant a continuance primarily 

because it had previously told the parties the trial would not be 

continued. The court’s order simply noted that it had “indicated it had 

previously told all parties that there would be no continuance of the 

trial.” Consistency may be a virtue, but as Ralph Waldo Emerson 

reminds us, “A foolish consistency is the hobgoblin of little minds.” 

The appropriate exercise of judicial discretion requires the judge to 

reexamine tentative conclusions in light of changed circumstances. 

Here, the decision to permit the withdrawal of counsel on the eve of 

trial is nothing if not a changed circumstance. The court could not 

merely rely on its prior statements, but was instead required to revisit 

the reasons those statements to determine whether they still applied in 

light of the changed circumstance.

In Vann, supra, 54 Cal.App.3d 192, 197, as in this case, the court 

granted an attorney’s request to withdraw on the eve of trial.3 

Personally appearing in court the following day, the defendant asked 

for a continuance to obtain new counsel. (Vann, at p. 195.) The judge 

denied the request, pointing to the court’s heavy calendar and “no 

continuance” policy. (Id. at pp. 195–196.) The Court of Appeal 

reversed, concluding that the judge abused his discretion by “ma[king] 

no effort to analyze the situation in which [the defendant] found 

himself.” (Id. at p. 198.) It noted that the judge’s decision “was 

peremptory and based solely on a policy against continuances, without 

3 The appellate court ultimately concluded that the attorney’s 

withdrawal was improper and amounted to abandonment of the client. 

(Vann, supra, 54 Cal.App.3d at p. 197.)
14

considering whether the case before it justified a departure from that 

salutary policy.” (Id. at p. 199.)

The trial court’s decision in this case was not based on a blanket 

department policy against continuances in every case, as was the 

situation in Vann. But it was based on a blanket policy of denying any 

continuance of the trial in this case, despite a significant change of 

circumstance. In that sense, it suffers from a similar defect—the 

failure to consider whether new facts and a developing situation 

necessitate reevaluation of a prior decision and rebalancing the 

competing interests. (See Hernandez, supra, 115 Cal.App.4h at 

p. 1247.) Thus, we do not hold that the trial court was obligated to 

grant a continuance, or that a continuance of some particular length 

was required. The problem here is that the court failed to conduct the 

necessary inquiry. 

Minors’ counsel points out that the court did not merely rely on 

its prior ruling that there would be no continuances. The court 

specifically explained to Robert, “[I]t’s not good for your kids or for mom 

or for you, for that matter, to have this go on any longer.” Minors’

counsel thus suggests that “the paramount need to determine the 

proper care and custody of the children, on balance, outweighed 

grounds for a continuance.” 

There is no question that the goal of promptly resolving custody 

disputes deserves significant weight. (Cf. In re Jerry R. (2023) 95 

Cal.App.5th 388, 431 [“Children have a critical interest in stability and 

permanency, which is undermined by unnecessary delay”].) Here, 

however, there is no indication that the court balanced the general 
15

interest in efficiency and finality4 against the new “facts and 

circumstances . . . relevant to the determination.” (Rule 3.1332(d).) 

Importantly, although Robert suggested that he had already made 

efforts to retain new counsel, the court did not ask whether that 

attorney had agreed to take the case or how long it would take the new 

attorney to prepare for trial. Without making this fundamental 

inquiry, the court lacked the information necessary to balance the 

competing interests at stake. It thus failed to properly exercise its 

broad discretion. (See Oliveros, supra, 120 Cal.App.4th at p. 1399

[“The court’s failure to carefully balance all of the competing interests 

at stake, guided by the strong public policy in favor of deciding cases on 

the merits, constituted an abuse of discretion.”].)

Minors’ counsel urges us to find that factors in the record could 

have supported a decision to deny a continuance. But that is precisely 

the problem, and the argument misapprehends our role on review. 

The trial court is surely endowed with broad discretion to grant or deny 

continuances. (J.M. v. W.T. (2020) 46 Cal.App.5th 1136, 1139.) 

“ ‘[W]hen the record clearly demonstrates what the trial court did, we 

will not presume it did something different.’ ” (Border Business Park, 

Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) The court 

having made its determination and a record of its reasons, our role is to 

review the court’s decision making. And we cannot know whether 

4 We note that neither the court nor minors’ counsel identified any 

specific circumstances in this case that would warrant the denial of any

continuance longer than a day. (Cf. Hernandez, supra, 115 Cal.App.4th at 

1247 [“prejudice petitioner suffered due to the terminal illness and death of 

his attorney” was not outweighed by opposing party’s “claim that he would be 

prejudiced” by a continuance, which was “conclusional” and not “supported 

with any evidence”].)
16

denial of the continuance in this case was proper because the record 

does not include the necessary and critical inquiries. In these 

circumstances, we must conclude that the court abused its discretion.

C. Robert Has Failed to Establish Reversible Error

Having concluded that the trial court’s denial of Robert’s request for a 

continuance is not supported by the record, we turn to the question whether 

this error requires reversal. The California Constitution states: 

“No judgment shall be set aside, or new trial granted, in 

any cause . . . 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.)

This provision usually prohibits reversal where the challenged error did not 

affect the outcome of the proceedings and thus did not prejudice the 

appellant. (See In re Christopher L. (2022) 12 Cal.5th 1063, 1073

(Christopher L.).) However, “certain errors, by their nature, result in a 

‘miscarriage of justice’ within the meaning of the California [Constitution,] 

requiring reversal without regard to the strength of the evidence received at 

trial.” (People v. Cahill (1993) 5 Cal.4th 478, 493.) We call such errors 

“structural.” (See Christopher L., at p. 1074.) 

We first consider whether the failure to grant a continuance constituted 

a structural error. Concluding that it does not, we proceed to Robert’s 

alternative argument that there is a reasonable probability that the court’s 

failure to grant a continuance affected the outcome of the custody proceedings 

under the Watson test.5 

5 For the first time on reply, Robert appears to offer a third alternative 

argument, contending that “the showing of prejudice on the denial of a 
17

1. There Is No Structural Error

Robert principally contends that under Vann, supra, 54 Cal.App.3d 

192, the trial court’s abuse of discretion warrants automatic reversal. As we 

have already explained, the appellate court in Vann reversed a trial court’s 

decision denying a continuance after it improperly permitted a lawyer to 

withdraw the Friday before a Monday trial, leaving the clients (defendants in 

the action) unrepresented. (Id. at p. 197.) It concluded that the error was 

reversible without considering whether defendants suffered prejudice. (Id. 

at p. 200 [“[W]e reverse on the grounds that the denial of the continuance 

was an abuse of discretion”].) 

While the decision of a sister appellate court is entitled to our 

thoughtful consideration, it is not binding on us. (See, e.g., People v. Osotonu 

(2019) 35 Cal.App.5th 992, 998.) Because Vann gives no reason for its 

conclusion that the error was reversible without any discussion of prejudice, 

we do not find it particularly persuasive on this point. Moreover, we are 

bound by the California Constitution’s dictate that we may reverse only if 

there has been a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) And 

recent Supreme Court authority provides helpful guidance in determining

whether an improper denial of a continuance that effectively precludes a 

client from retaining trial counsel is inherently a miscarriage of justice.

continuance is a bit different from the typical analysis of prejudice.” His 

reply brief claims he is not required to show a possibility of a “different 

result” to demonstrate “prejudice” because he was deprived a “fair hearing.” 

But Robert made no such argument in his opening brief, clearly contending 

that an error gives rise to reversible prejudice if it “ ‘affected the verdict’ ” 

and that “[a]s a result of his lack of counsel, Tara was awarded sole legal 

custody.” To the extent Robert seeks to belatedly raise a new argument, we 

decline to consider it. (See, e.g., Holguin v. Dish Network LLC (2014) 229 

Cal.App.4th 1310, 1328, fn. 9 [issues not raised in opening brief are 

forfeited].) 
18

In Christopher L., supra, 12 Cal.5th 1063, the question presented was 

“whether it is structural error, and thus reversible per se, for a juvenile court 

to proceed with a hearing to determine its jurisdiction over a child and 

disposition of the dependency petition without an incarcerated parent’s 

presence and without appointing counsel for the parent.” (Id. at p. 1069.) 

The court held “that while the provisions for presence and appointment of 

counsel are important protections for both the parent and the child, the 

juvenile court’s failure to comply does not require reversal per se.” (Ibid.) 

Justice Liu’s opinion looked to three factors enumerated in Weaver v. 

Massachusetts (2017) 582 U.S. 286 (Weaver). (Christopher L., supra, 12 

Cal.5th at p. 1077.) “The first of the three Weaver rationales asks whether 

‘the right at issue is not designed to protect the defendant from erroneous 

conviction but instead protects some other interest.’ ” (Ibid., quoting Weaver, 

at p. 295.) The court found that the interest in counsel and personal presence 

“ensures that the juvenile court has the fullest picture of the relevant facts 

before disposing of a dependency petition,” which is “not easily distinguished 

from the parent’s own interest because it also serves to protect the parent 

from an erroneous determination.” (Christopher L., at p. 1077.)

Second, Christopher L. considered “that the question of whether the 

errors here were harmless does not invariably require ‘a speculative inquiry 

into what might have occurred in an alternate universe.’ ” (Christopher L., 

supra, 12 Cal.5th at p. 1078.) The court recounted the appellate court’s

prejudice analysis to illustrate the “feasibility of harmless error analysis in 

this context.” (Ibid.) The question in the family court was “whether the court 

properly denied reunification services to” the father, and there were two 

indisputably applicable provisions providing that reunification services not 

“be ordered unless the juvenile court f[ound], ‘by clear and convincing 
19

evidence, that reunification is in the best interest of the child.’ ” (Id. at 

pp. 1078–1079.) Father had failed to argue that reunification services were 

in the best interests of the child. (Id. at p. 1079.) 

Third, the court considered whether these “error[s] ‘always result[ ] 

in fundamental unfairness.’ ” (Christopher L., supra, 12 Cal.5th at p. 1081.) 

“ ‘[I]n a dependency proceeding the issues normally involve 

evaluations of the parents’ present willingness and ability 

to provide appropriate care for the child and the existence 

and suitability of alternative placements.’ [Citation.] The 

presence of counsel generally helps to facilitate this 

assessment by ensuring that a more complete picture of the 

parent’s interests and ability to provide for the child’s care 

are presented to the court. But it does not follow that the 

absence of counsel invariably results in unfairness in light 

of the statutory scheme governing reunification services.

Nor does it follow that absence of counsel from one stage of 

the proceeding necessarily renders the entire proceeding 

fundamentally unfair, especially where, as here, counsel 

was provided after the jurisdiction and disposition hearing, 

and could have utilized a statutory mechanism to seek 

reconsideration of any prior order by the juvenile court. 

(Ibid.)

The opinion observed that, “in the dependency context, automatic reversal for 

errors that do not invariably lead to fundamental unfairness would exact a 

particularly steep cost” to children who have a critical need to stable homes. 

(Ibid.) The Supreme Court thus “decline[d] to adopt a rule of automatic 

reversal in cases involving the errors that occurred here.” (Id. at p. 1082.)

Christopher L. adopts and applies a framework for assessing whether 

an error is structural. That analysis is all the more relevant because of the 

salient ways in which dependency and custody proceedings are similar, 
20

including the unique interests at stake and the primacy of child welfare.6 

Christopher L. thus guides our analysis here. 

The first Weaver factor, whether “ ‘the right at issue is not designed to 

protect the defendant from erroneous conviction but instead protects some 

other interest’ ” (Christopher L., supra, 12 Cal.5th at p. 1077), has a nearly 

identical application to these circumstances. In making a permanent custody 

determination, the court must consider “all of the circumstances bearing on 

the best interests of the minor child” (Keith R. v. Superior Court (2009) 174 

Cal.App.4th 1047, 1053), and thus benefits from the presence of counsel to 

ensure it “has the fullest picture of the relevant facts” (Christopher L., at 

p. 1076). This is “not easily distinguished from the parent’s own interest” 

(id. at p. 1077) because in adversarial proceedings each parent is interested 

in presenting their best case for custody.

 With respect to the second factor, Robert does not suggest that this is 

the kind of case that “invariably require[s] ‘a speculative inquiry into what 

might have occurred in an alternate universe.’ ” (Christopher L., supra, 12 

Cal.5th at p. 1078.) In fact, as explained below, he argues that he can meet 

the harmless error standard of Watson. 

As for the third factor, whether these “error[s] ‘always result[ ] in 

fundamental unfairness’ ” (Christopher L., supra, 12 Cal.5th at p. 1081), we 

cannot conclude they do. As in Christopher L., Robert was only unable to 

retain counsel for trial, not all proceedings. (Ibid.) Although a custody trial 

was a “critical stage,” so too was the proceeding in Christopher L. (Id. at 

6 We also acknowledge important ways in which juvenile court

proceedings are different, including the potential in dependency for 

termination of parental rights and the statutory right to appointed counsel. 

(See, e.g., In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1575

(Campi).) 
21

p. 1076.) Moreover, given that the trial in this case took place on 

nonconsecutive days over the course of several months, we cannot assume 

that the court’s refusal to grant a continuance deprived Robert of counsel for 

the entirety of the trial. Robert does not explain why he failed to obtain 

counsel at any point during the extended trial. 

In addition, Christopher L. found it important that there are grounds to 

request reconsideration of any order in dependency proceedings if the parent 

shows “(1) that a change of circumstances or new evidence requires a changed 

order, and (2) that the requested change would promote the best interests of 

the child.” (Christopher L., supra, 12 Cal.5th at p. 1080.) Although the 

standards are not identical (see, e.g., Ragghanti v. Reyes (2004) 123 

Cal.App.4th 989, 996 [principles of res judicata inform “changed 

circumstances” test in custody cases]), final custody orders can be changed 

if a parent establishes a “ ‘ “significant change in circumstances indicates 

that a different arrangement would be in the child’s best interest.” ’ ” (In re 

Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.) Like the parent in 

Christopher L., Robert is not forever barred from seeking to alter the custody 

order. 

Finally, Robert briefly contends that these circumstances always result 

in a deprivation of due process, pointing to dicta in Vann suggesting that 

there is a constitutional right to “counsel in any adversary proceedings in 

which the adversary party has the benefit of the right to counsel.” (Vann, 

supra, 54 Cal.App.3d at 200.) We are not bound to follow any court’s dicta. 

(See Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 

1279, 1301.) In general, although a party has the right to appear through 

counsel if a lawyer has been retained (see Chan v. Curran (2015) 237 

Cal.App.4th 601, 625, fn. 12), there “is no due process right to counsel in 
22

civil cases” (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116). There is no 

statute or court rule mandating counsel in dissolution proceedings. (Campi, 

supra, 212 Cal.App.4th at p. 1575.) Indeed, it is not “fundamentally [un]fair” 

for purposes of the Due Process Clause of the United States Constitution to 

deprive a parent of counsel in a dependency proceeding where parental rights 

are at stake. (Lassiter v. Department of Social Servs. (1981) 452 U.S. 18, 32–

33; see U.S. Const., 14th Amend.) Rather, to establish a violation of due 

process, a parent must show that the presence of counsel could have “made a 

determinative difference.” (Lassiter, at p. 33.) In other words, we must 

engage in a prejudice analysis—assessing whether the lack of representation 

affected the result—to decide whether the party’s due process rights were 

violated. Accordingly, because the lack of representation in such 

circumstances does not inherently offend due process, we cannot conclude

that the error here is a structural one requiring per se reversal.

2. Robert Has Not Shown Prejudice

Both sides contend we should look to the Watson test and reverse if it is 

reasonably probable that Robert would have achieved a more favorable result 

in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836.)7 After 

7 We do not hold that this is the appropriate harmless error analysis in

all cases in which denial of a continuance results in deprivation of trial 

counsel. But by only discussing the Watson standard, Robert has forfeited 

any argument that a different standard applies. (See, e.g., Browne v. County 

of Tehama (2013) 213 Cal.App.4th 704, 726 [arguments not raised on appeal 

are forfeited].) In any case, Robert has not established that the denial of a 

continuance gave rise to a violation of the United States Constitution and 

thus has not demonstrated that the Chapman harmless error standard 

should apply. (Chapman v. California (1967) 386 U.S. 18, 24 [“[B]efore a 

federal constitutional error can be held harmless, the court must be able to 

declare a belief that it was harmless beyond a reasonable doubt.”].)
23

closely reviewing the record, we conclude Robert has failed to establish 

prejudice and reversible error under Watson.

Because it is Robert’s burden to show prejudice, we note at the outset 

that he makes no representation regarding the availability of another lawyer 

had the court granted him a continuance. He merely assumes he could have 

obtained alternate counsel. This is particularly problematic given the 

statements in his declaration to the effect that he had already contacted a 

specific attorney. Moreover, although the proceedings continued over the 

course of several months, Robert never sought to substitute new counsel.

More importantly, even if we assume competent counsel was available 

to try the case had a reasonable continuance been granted, all of Robert’s 

grounds for claiming prejudice suffer from the same deficiency. He fails to 

explain how any of the circumstances he notes had a substantive effect on the 

outcome of the case. For instance, he contends that he had to submit a trial 

brief prepared in one day and that “Tara’s attorney had 7 months to prepare 

for trial.” Although suggestive of disadvantage, Robert does not point to any 

tangible effect of these circumstances. 

Robert also claims he was unable to effectively challenge Tara’s 

contention that he had waived his privilege regarding his mental health. 

The court found only a limited waiver with respect to Robert’s 

representations to a custody investigator. Robert fails to explain what else 

an attorney could have argued or how the court’s ruling affected his case. 

Robert further contends that he “was not allowed to call the children’s 

therapist . . . for additional testimony” or to call the parenting coordinator 

because they were not on his witness list. As he acknowledges, however, both 

witnesses did testify in some capacity. Robert conducted a direct 

examination of the therapist, his first witness, and the parenting coordinator 
24

was permitted to testify as a rebuttal witness. He fails to explain what other 

testimony he anticipated eliciting had he been permitted to question these 

witnesses further. 

Similarly, Robert asserts in his reply brief that he was prejudiced 

because he was not allowed to introduce police body-worn camera footage 

based on his failure to call the officers as witnesses and properly lay a 

foundation. “ ‘We will not ordinarily consider issues raised for the first time 

in a reply brief.’ ” (Magana v. Superior Court (2018) 22 Cal.App.5th 840, 855,

fn. 2.) In any event, Robert again fails to explain what these videos would 

have shown or how they would have affected the outcome of the case.

In sum, Robert has given us no basis to conclude that the denial of a 

continuance affected the outcome of the proceedings. 

DISPOSITION

The order is affirmed. The parties shall bear their own costs on appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.