Miller v. Novotney CA2/1

Filed 1/3/22 Miller v. Novotney CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CURTIS E. MILLER, B305609

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18STCV04412)

v.

RALPH JOSEPH NOVOTNEY, JR.,
et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, William F. Fahey, Judge. Affirmed.
Curtis E. Miller, in pro. per., for Plaintiff and Appellant.
Charlston, Revich, Harris & Hoffman and Tim Harris, for
Defendants and Respondents.
 Curtis E. Miller appeals from a judgment dismissing
his lawsuit against his former criminal counsel, Ralph Joseph
Novotney, Jr., and Christina Hohman (collectively, respondents),
following respondents’ successful demurrer without leave to
amend. Miller’s complaint sought to recover for emotional distress
he alleges he suffered as a result of statements respondents made
during a hearing, although he concedes the statements did not
affect the outcome of the underlying criminal proceedings. We
conclude that Miller’s complaint fails to allege facts sufficient to
support the damages element of his breach of fiduciary duty claim,
and thus that the trial court properly sustained the demurrer. Nor
has Miller identified how he might amend the complaint to address
this deficiency, so we find no error in the court’s denial of leave to
amend.
Miller also challenges the trial court’s denial of his motion
for telephonic appearance at the demurrer hearing. Miller
is incarcerated and argues this ruling improperly denied him
meaningful access to the court. Even assuming (without deciding)
that the trial court erred in denying the motion, such error could
not have prejudiced Miller, because the operative complaint
fails to state a claim on which relief can be granted, and Miller’s
participation in the hearing would not have changed that.
Accordingly, we affirm.

FACTS AND PROCEEDINGS BELOW
In reviewing a judgment of dismissal after a demurrer
“ ‘we must assume the truth of all facts properly pleaded by the
plaintiffs, as well as those that are judicially noticeable.’ ” (Small v.
Fritz Companies, Inc. (2003) 30 Cal.4th 167, 171.) We may consider
such facts, as well as those that may be reasonably implied or
inferred therefrom. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318

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(Blank); Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (Young);
Code Civ. Proc., § 430.30.) We may not consider contentions,
deductions or conclusions of fact or law. (Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) Accordingly,
the following factual background summary is based solely on the
operative complaint and those documents of which judicial notice
has been taken, accepting as true all properly pleaded factual
allegations and facts reasonably inferred therefrom.

A. Alleged Factual Basis for Miller’s Lawsuit
In 1997, Miller was convicted of being a felon in possession
of a firearm. The jury also found true allegations that Miller had
suffered convictions for kidnapping and robbery in 1980, rendering
his 1997 conviction a third strike for the purposes of sentencing
under the “ Three Strikes” law (Pen. Code, §§ 667, subds. (b)−(i),
1170.12, subds. (a)−(d)).1 Miller was sentenced to 25 years to life,
and this court affirmed the judgment in an unpublished opinion.
In 2012, following the passage of Proposition 36,
the Three Strikes law was amended to provide that, absent
specified exceptions, an offender with two or more prior strikes
is to be sentenced as a two-strike offender unless the new
offense is a serious or violent felony. (People v. Yearwood
(2013) 213 Cal.App.4th 161, 169−170.) Further amendments
created post-conviction resentencing proceedings, set forth in
section 1170.126, through which certain inmates sentenced under
the pre-2012 version of the Three Strikes law could petition for
recall of their sentence and resentencing (Yearwood, supra, 213

1Unless otherwise indicated, all undesignated statutory
references are to the Penal Code.

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Cal.App.4th at pp. 169−170), subject to certain eligibility criteria.
(§ 1170.126, subd. (c).)
On March 1, 2013, the Post Conviction Assistance Center
(PCAC) filed such a section 1170.126 petition on Miller’s behalf,
seeking recall of his 1997 sentence and resentencing under the
Three Strikes law. The trial court issued an order to show cause
why the petition should not be granted, and appointed respondents,
attorneys with PCAC, to represent Miller in connection with
his petition. The Los Angeles County District Attorney (District
Attorney) opposed Miller’s petition, and Novotney was granted
several extensions of time for filing a reply. Shortly after Novotney
requested the ninth such extension, on May 27, 2015, Miller
“mail[ed] . . . a[ ] request for substitution of counsel” to “(1) the
court, (2) [the District Attorney], [and] (3) PCAC.” On June 16,
2015, Novotney nevertheless filed a reply in support of Miller’s
section 1170.126 petition.
On June 29, 2015, Novotney wrote Miller a letter “inform[ing]
[Miller] that despite [Miller’s] request for substitution of counsel,
the court had not relieved PCAC as counsel” and that “[t]herefore,
PCAC control[led] the litigation and decide[d] what and when to
file within the litigation.”
On July 2, 2015, Miller filed with the court an “objection
to PCAC filing [a] reply . . . [in support of Miller’s section 1170.126
petition]” that “also request[ed] . . . he be granted pro[.] per[.]
status (self-representation).” On July 9, 2015, Novotney wrote
Miller a letter in which Novotney “argued that [Miller] had no right
to self-representation, and that PCAC control[ed] the litigation.”

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 On July 31, 2015, Miller submitted to the court an
“ ‘advisement and waiver of right to counsel’ (Faretta[2] waiver),”
which was received and placed in the court file. (Capitalization
omitted and italics added.) On August 12, 2015, Miller filed
a “request to proceed pro se.”
The hearing on Miller’s resentencing petition took place
on August 17, 2015.3 Novotney appeared on Miller’s behalf. At
the outset of the hearing, the court indicated it had received a
Faretta waiver from Miller. The court asked Novotney whether he
was aware that Miller had filed a Faretta waiver and that Miller
“wishe[d] to represent himself.” Novotney responded that Novotney
was “the one that signed the Faretta waiver” but that he was not
“aware that [Miller] had actually filed it.” Novotney further
indicated that Miller had “been doing a lot of writing and filing
petitions, and those types of things.” The court noted that Miller
had also filed two motions to reassign the case to a different judge
under Code of Civil Procedure section 170.6, both of which the court

2 Faretta v. California (1975) 422 U.S. 806.
3 On our own motion, we take judicial notice of the reporter’s
transcript from the August 17, 2015 hearing, contained in the
appellate record for People v. Miller (Dec. 20, 2016, B266611)
[nonpub. opn.], Miller’s appeal from the denial of his resentencing
petition. The transcript is a “[r]ecord[ ] of . . . [a] court of this state,”
of which we may properly take judicial notice. (Evid. Code, § 452,
subd. (d).) As a matter properly judicially noticed, we may consider
it in deciding Miller’s appeal. (See Code Civ. Proc., § 430.30; see
also, e.g., Byrne v. Harvey (1962) 211 Cal.App.2d 92, 108, fn. 10
[augmenting record on appeal with record from related appeal].)
We may also consider it on the basis that it is a material document
referenced in the allegations of the complaint. (See Blank, supra,
39 Cal.3d at p. 318; Young, supra, 97 Cal.App.4th at p. 220.)

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denied as untimely. Novotney responded by indicating that
Miller had “also filed a request for new counsel” and “a motion to
withdraw his reply.” Novotney then offered: “My position, Your
Honor, is that I’m not sure [Miller’s] unequivocally requested to
represent himself since his previous request for a new lawyer . . . I
did not feel compelled to get this issue to the court’s attention. It
did not appear to me that there was an unequivocal request for
self-representation. I guess the other question is whether that is
timely since [we are] ready to proceed.”
The court denied Miller’s request to represent himself, noting:
“The Faretta form was received July 29th. I think its untimely and
not an unequivocal request.”
The court then considered Miller’s section 1170.126 petition
and ultimately denied it on the grounds that Miller was ineligible
for resentencing under an exclusion that applies if “[d]uring the
commission of the current offense [that is, the offense which the
resentencing petition targets], the defendant . . . was armed with
a firearm or deadly weapon.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2); see People v. Bradford
(2014) 227 Cal.App.4th 1322, 1327.)
Novotney filed a notice of appeal from the court’s denial
of his section 1170.126 petition, and this court affirmed. (See
People v. Miller, supra, B266611.)
In connection with that unsuccessful appeal, on
approximately March 17, 2017, Miller received “the trial court
record lodged with the Court of Appeal,” which contained a
transcript of the section 1170.126 petition hearing. In reading the
transcript, Miller first “discovered the acts and/or omissions of . . .
Novotney” during that hearing: namely, Novotney’s representations
and arguments to the court regarding Miller’s request to represent
himself and the Faretta waiver.

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 B. Miller’s Lawsuit Against Respondents
On November 16, 2018, Miller filed a complaint against
respondents alleging “[i]ntentional [t]ort” and “personal injury”
causes of action, as a result of which Miller alleged he suffered
“severe[ / ]chronic mental anguish” and “physical injury.” Miller
sought compensatory, punitive, and nominal damages.
Thereafter, Miller filed the first amended complaint (FAC),
which appears to be substantively identical to Miller’s initial
complaint. The FAC alleges the Novotney’s actions as outlined
above “were undertaken without the ordinary care due [Miller],”
constituted “willful and conscious disregard of [his] rights,” and
“were outrageous, undertaken with wanton and reckless disregard
of the consequences to [Miller], causing [Miller] severe, chronic
mental anguish, loss of enjoyment of life, insomnia, nausea, and
loss of ap[p]etite.” Miller characterizes the FAC as alleging a claim
for intentional breach of fiduciary duty.

C. Respondents’ Demurrer to the FAC
Respondents demurred to the FAC, arguing that Miller’s
claims were untimely, were legal malpractice claims that could not
proceed absent allegations that Miller was actually innocent, and
that Miller had not suffered any actual damages, given that his
section 1170.126 petition would have been denied in any event.
Miller filed an opposition to the demurrer, as well as a request
to appear telephonically at the demurrer hearing. The record
contains a single proof of service attesting to Miller’s service of
these filings. It appears this proof of service was attached only
to Miller’s opposition to the demurrer, not to the request for
a telephonic appearance, and that the proof was not filed as a
freestanding document.

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 At the March 4, 2020 hearing on the demurrer, the court
denied Miller’s request to appear telephonically on the ground that
Miller failed to attach a proof of service thereto, which rendered the
request an improper ex parte communication that did not comply
with applicable court rules.4 The court then sustained respondents’
demurrer to the FAC without leave to amend, noting that Miller
had not requested leave to amend in his opposition, and dismissed
the case with prejudice. The record does not contain a reporter’s
transcript from the hearing, and the minute order does not indicate
the basis for the court’s ruling on the demurrer.

D. The Instant Appeal
Miller timely appealed (1) the judgment dismissing the case
with prejudice after sustaining respondents’ demurrer, and (2) the
“[o]rder denying telephonic appearance ([a]ccess to the court[s]).”

4 On June 2, 2021, this court provisionally granted Miller’s
request that we take judicial notice of two documents, one of which
was a document captioned “California correctional institution
confidential / legal mail log outgoing history.” (Capitalization
omitted.) The document indicates that Miller had mailed certain
unspecified documents to the respondents and the Los Angeles
County Superior Court on February 19, 2020. Based on his
briefing, it appears Miller seeks to rely on this to establish service
of the motion to appear telephonically. We hereby deny the request
that we take judicial notice of this document, but note that it
would not have affected our analysis on appeal in any event. For
reasons discussed below, even if this document were to help Miller
establish the trial court erred in denying his request for telephonic
appearance, such error would not be a basis for appellate relief,
as Miller has not established any prejudice from the denial. (See
Discussion, part B, post.)

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 In his notice designating the record on appeal, Miller checked
boxes indicating that he “choose[s] to proceed” “without a record
of the oral proceedings . . . in the superior court” (capitalization
omitted) and that he “understand[s] that without a record of the
oral proceedings in the superior court, the Court of Appeal will
not be able to consider what was said during those proceedings
in deciding whether an error was made in the superior court
proceedings.” (Capitalization omitted.) Miller did not check the
box indicating that he elected to proceed with “[a] settled statement
under [California Rules of Court,] rule 8.137.”
Several months after appealing the judgment, Miller
filed a writ petition based on the denial of his request to appear
telephonically and the lack of a reporter’s transcript from the
demurrer hearing.5 On these bases, the petition asked this court
to (1) stay the instant appeal; (2) vacate the superior court’s order
sustaining the demurrer to the FAC and resulting judgment, and
(3) order the trial court to conduct a new hearing on the demurrer.
This court denied the writ petition.

5 Another document of which Miller requested we take
judicial notice is respondents’ November 20, 2020 “opposition to
[Miller’s] request for stay and writ of mandate.” (Capitalization
omitted.) We hereby grant the request as to that document. (See
Evid. Code, § 452, subd. (d).) On our own motion, we also take
judicial notice of this court’s order denying Miller’s writ petition.
(See id., subd. (c).)

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 DISCUSSION
A. The Trial Court Did Not Err in Sustaining the
Demurrer to the FAC
We review the trial court’s decision sustaining respondents’
demurrer de novo (Walgreen Co. v. City and County of
San Francisco (2010) 185 Cal.App.4th 424, 433), and must affirm
the judgment “if there is any ground on which the demurrer could
have been properly sustained.” (Intengan v. BAC Home Loans
Servicing LP (2013) 214 Cal.App.4th 1047, 1052 (Intengan).)

1. Parties’ respective characterizations of
the alleged harm on which Miller bases
his claim
The parties’ arguments reflect two very different
characterizations of the harm for which Miller seeks compensation
via the FAC. According to respondents, the FAC seeks damages
based on the outcome of Miller’s request to represent himself
and section 1170.126 petition. Respondents describe Miller’s claim
as relying on the following logic: had Novotney acted differently
at the hearing, Miller would have been permitted to represent
himself and this would have in turn led to the court granting the
resentencing petition. Miller insists, by contrast, that his claim
seeks compensation for the emotional distress he suffered as a
result of his counsel incorrectly advising him that he had no right
to represent himself in connection with his reclassification and
resentencing petition, as well as the further emotional distress
he suffered when he learned that Novotney had made certain
statements at the hearing on the petition. According to Miller,
these damages have nothing to do with the court’s rulings at the
hearing.

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 The allegations in the FAC support Miller’s characterization
of his claim, not respondents’. Specifically, the FAC neither alleges
nor implies that, but for respondents’ actions, Miller would have
been allowed to represent himself or would have been granted
resentencing. Nor does the FAC seek damages that depend on such
a but-for chain of causation.
With the correct characterization in mind, we turn to the
issues raised on appeal.

2. Statute of limitations
Respondents contend that Miller’s claim is time-barred,
and that we may affirm the trial court’s decision on this basis.
Miller disagrees, arguing that the applicable limitations period
did not begin to run until he discovered the basis for his claims
in March 2017, when he received the transcript of the August 2015
proceedings. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 807 [limitations period begins when cause of action
accrues, and “ ‘discovery rule’ . . . postpones accrual of a cause
of action until the plaintiff discovers, or has reason to discover,
the cause of action”].) Only upon receiving the transcript, Miller
argues, did he have reason to know that Novotney’s advice
regarding self-representation was incorrect, and only then did he
learn what Novotney had said during the hearing regarding his
Faretta waiver. Respondents counter that, long before Miller
received the hearing transcript, Miller had a reasonable basis for
suspecting that the court had denied his section 1170.126 petition
and self-representation request. (See Fox v. Ethicon Endo-Surgery,
Inc., supra, at p. 807.) As explained above, however, the FAC
alleges a cause of action based not on the outcome of the hearing,
but rather on statements Novotney made during the hearing and
advice Miller only realized was incorrect based on statements

11
during the hearing. The denial of Miller’s self-representation
request was completely in line with the advice he had received
from his attorney, and did not give Miller cause to suspect
Novotney had said anything at the hearing adverse to Miller’s
self-representation request or that Novotney’s advice had been
wrong. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110
[“[u]nder the discovery rule, the statute of limitations begins to run
when the plaintiff suspects or should suspect that her injury was
caused by wrongdoing, that someone has done something wrong to
her”].) Nor have respondents identified any other basis on which
Miller should have known about Novotney’s conduct at the hearing
before he reviewed the transcript, or any way in which Miller failed
to exercise reasonable diligence by not reviewing the transcript
sooner. (See Samuels v. Mix (1999) 22 Cal.4th 1, 8 [“the burden
of proving plaintiff ’s actual or constructive discovery of defendant’s
wrongdoing in connection with that defense falls statutorily to
defendant”].)
Because the applicable one-year limitations period was
tolled until Miller’s review of the transcript in March 2017, and
then tolled again for two years based on his incarceration, he
effectively had three years after that March 2017 discovery in
which to file his complaint. (See Code Civ. Proc., § 352.1, subd. (a)
[“[i]f a person entitled to bring an action . . . is, at the time the
cause of action accrued, imprisoned on a criminal charge . . .
time of that [incarceration] is not a part of the time limited for the
commencement of the action, not to exceed two years”]; id., § 340.6,
subd. (a) [“[a]n action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance
of professional services shall be commenced within one year after
the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful

12
act or omission”].) Miller’s initial November 2018 complaint, filed
approximately 20 months after that discovery, was thus timely
filed.

3. Failure to allege legally cognizable damages
Although timely filed, the FAC does not allege facts to
support that Miller suffered legally recoverable damages as a
result of respondents’ conduct.6 It thus fails to allege a necessary
element of Miller’s intentional breach of fiduciary duty claim.7
(See International Engine Parts, Inc. v. Feddersen & Co. (1995) 9
Cal.4th 606, 614 [“ ‘until the client suffers appreciable harm as a
consequence of his attorney’s negligence, the client cannot establish
a cause of action for malpractice’ ”]; Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820 [“[t]he elements of a cause of

6 On appeal, respondents raise various other arguments
as to why the trial court properly sustained their demurrer to
the FAC. Because we conclude the FAC fails to state a claim by
not alleging legally cognizable damages, we need not and do not
consider whether the other issues the parties have briefed are
additional bases on which the demurrer might also have been
properly sustained.
7 The FAC does not identify the cause of action it attempts
to state, except to the extent that the civil case cover sheet
indicates it is an “intentional tort” and “personal injury” action.
On September 13, 2021, this court requested the parties provide
supplemental briefing on whether “the first amended complaint
sufficiently state[s] a cause of action if the damages it seeks stem
neither from the denial of Mr. Miller’s petition for resentencing,
nor the denial of his request to represent himself ” and “if so, which
cause(s) of action.” In response, as he did in his initial briefing,
Miller characterized the FAC as stating a claim for intentional
breach of fiduciary duty, and we analyze it as such.

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action for breach of fiduciary duty are the existence of a fiduciary
relationship, breach of fiduciary duty, and damages”].)
As discussed above, the damages Miller alleges to have
suffered consist of (1) Miller’s emotional distress when he believed,
per Novotney’s advice, that he had no right to represent himself
in connection with his section 1170.126 petition, and (2) Miller’s
emotional distress when he learned of Novotney’s statements to
the court regarding his Faretta waiver. “Damages for emotional
distress have been permitted only where there is some means for
assuring the validity of the claim.” (Merenda v. Superior Court
(1992) 3 Cal.App.4th 1, 8 (Merenda), disapproved of by Ferguson
v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037;
see Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916,
926−927 (Molien).) Courts have employed various analytical
approaches to determining the likely validity of an emotional
distress damages claim. Regardless of which of these approaches
we employ, the FAC contains no such indicator of likely validity,
and the emotional damages it seeks are thus not legally cognizable.

a. Miller has not alleged the extreme and
outrageous conduct necessary to permit
emotional distress to alone satisfy the
damages element of his claim
When the tortious conduct at issue causes some damage in
addition to emotional distress, this may, depending on the nature
of such additional damage, assist in establishing the validity of the
emotional distress claim. For example, emotional distress damages
are generally recoverable when they are alleged to result from
physical injury caused by defendant’s conduct. (See Merenda,
supra, 3 Cal.App.4th at pp. 7−8.) Conversely, assuring the validity
of emotional distress damages when—as here—they are the only
damages a plaintiff claims to have suffered poses a particular

14
challenge. (See id. at p. 7.) Nevertheless, “intentional torts [can]
support an award of damages for emotional distress alone . . . in
cases involving ‘extreme and outrageous intentional invasions of
one’s mental and emotional tranquility.’ ” (Molien, supra, 27 Cal.3d
at p. 927; see Commercial Cotton Co. v. United California Bank
(1985) 163 Cal.App.3d 511, 517 [“while damages for emotional
distress unaccompanied by physical injury may be awarded in a tort
action arising out of a breach of a . . . [duty], the injuries suffered
must be severe, i.e., substantial or enduring as distinguished from
trivial or transitory”], disapproved of on other grounds by Roy
Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051;
accord, Young v. Bank of America (1983) 141 Cal.App.3d 108,
114−115; id. at p. 111 [applying same rule to statutory cause of
action based on bank’s “refus[al] to remove [unauthorized] charges
from [plaintiff ’s] account” and “knowing[ ] communica[ion] [of] . . .
erroneous credit information to a credit reporting service”]; see also
Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040 (Smith)
[“where a plaintiff sufficiently alleges intentional or affirmative
misconduct by an attorney . . . recovery of emotional distress
damages is permitted”].) Under such circumstances, “the
outrageous conduct affords the necessary assurance of the validity
of the [emotional distress] claim.” (Merenda, supra, 3 Cal.App.4th
at p. 9.)
Consistent with these general principles, cases permitting
recovery for intentional attorney conduct that caused the plaintiff
emotional distress but no other damages involve extreme or
outrageous behavior and a heightened showing of such distress.
(See, e.g., McDaniel v. Gile (1991) 230 Cal.App.3d 363, 370,
373 (McDaniel).) Courts have similarly recognized a negligent
malpractice cause of action seeking only emotional distress
damages where the conduct at issue was “egregious.” (See, e.g.,

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Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 688, 715, 718
(Betts).) In McDaniel, for example, the Court of Appeal reversed a
summary adjudication in favor of an attorney on a former client’s
intentional infliction of emotional distress claim against him. After
the client “refused to have sexual relations with [the attorney],”
the attorney “abandoned her” by “fail[ing] to ‘. . . appear in court
to represent [her] interests [in a marital dissolution proceeding],
negotiate a complete and fair property settlement . . . , properly
advise [her] of [her] rights,’ return her phone calls, or take any
action at all except after numerous requests.” (McDaniel, supra,
230 Cal.App.3d at p. 370.) In concluding that a triable issue of
fact existed, the Court of Appeal relied on the outrageous nature
of the conduct at issue, explaining that the attorney “had a special
relationship with [the client] in that . . . [he] was her attorney
representing her in a dissolution of marriage proceeding,” that
she “was peculiarly susceptible to emotional distress because of
her pending marital dissolution,” and that “[t]he withholding by
a retained attorney of legal services when sexual favors are not
granted by a client and engaging in sexual harassment of the client
constitute[s] acts of outrageous conduct under these circumstances.”
(Id. at p. 373.)
In Betts, after a conflict of interest between the attorney and
the plaintiff ’ s insurer had become “unmistakable, [the attorney]
actively work[ed] to protect [the insurer] and persist[ed] in
manipulating [plaintiff] against her own best interests; . . .
assist[ed] in manufacturing a false record against the time when
a bad faith lawsuit might be instituted; . . . rather than advising
consultation of independent counsel as possible or desirable,
resist[ed] the efforts of such counsel to become informed when
finally retained; . . . [and] discourage[ed] [plaintiff ’ s] assignment of
rights in exchange for personal release and influencing her instead

16
in the direction of bankruptcy.” (Betts, supra, 154 Cal.App.3d at
p. 717.) The Court of Appeal upheld a jury verdict for the plaintiff
based on special findings that this conduct had caused the plaintiff
emotional distress, even though she had not been damaged in any
other way, because the “conduct was so egregious.” (Id. at p. 715.)
The FAC alleges no conduct that is “ ‘so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’ ” (Cochran v. Cochran
(1998) 65 Cal.App.4th 488, 496.) Novotney informing Miller
that he had no right to self-representation in connection with his
section 1170.126 petition was at most arguably erroneous legal
advice, although the state Supreme Court has not yet spoken
on this issue.8 Incorrect legal advice, without some allegation of
ulterior motive or like conduct, is not “ ‘beyond all possible bounds
of decency’ ” or “ ‘to be regarded as atrocious, and utterly intolerable

8 No case directly addresses self-representation in the context
of section 1170.126 petitions, but our state Supreme Court has
rejected a right to self-representation in other proceedings related
to criminal prosecution. (In re Barnett (2003) 31 Cal.4th 466,
473−474 & 475−476 (Barnett).) Namely, “[i]nmates . . . have no
state [or federal] constitutional right to self-representation in
habeas corpus proceedings.” (Id. at pp. 475–476; see id. at
pp. 473−474.) The same is true as to criminal appeals. (Id. at
p. 473.) As our high court explained in Barnett, on appeal “the
balance between a criminal defendant’s interest in acting as his
or her own lawyer and a state’s interest in ensuring the fair and
efficient administration of justice ‘surely tips in favor of the [s]tate’
once the defendant is no longer presumed innocent but found guilty
beyond a reasonable doubt” (ibid.), and “ ‘[p]ostconviction relief is
even further removed from the criminal trial than is discretionary
direct review [on appeal].’ ” (Id. at p. 474.)

17
in a civilized community.’ ” (Cochran, supra, 65 Cal.App.4th at
p. 496.)
Nor does it constitute outrageous conduct sufficient to permit
emotional distress damages that Novotney told the court he was not
certain Miller’s request was unequivocal, or that Novotney noted
the court should consider the timeliness of the request—an issue
of which the court was already aware, having noted at the outset
of the hearing that Miller filed his Faretta waiver “just a few
days . . . prior to [the] hearing.”9 Reading the complaint in the
light most favorable to Miller, these statements may have been
inconsistent with Novotney knowing that Miller had been
attempting to substitute out PCAC as his counsel (although not
necessarily to represent himself) for several months. But they
are not so clearly improper or adverse to Miller as to be inherently
outrageous and extreme—particularly given that the FAC does not
allege facts supporting that the statements affected the outcome of
the proceedings in any way.
Thus, the FAC does not allege extreme and outrageous
conduct sufficient to state a claim relying solely on emotional
distress to satisfy the damages element of Miller’s claim.

9 Novotney’s comment to this effect was not tantamount
to Novotney “argu[ing]” that Miller’s request was untimely. The
FAC’s characterization of the comment in this way is a contention,
not a factual allegation, and we thus need not accept it. (See Zelig,
supra, 27 Cal.4th at p. 1126 [deductions, argument, and contentions
in a pleading need not be accepted as true in reviewing demurrer
ruling].)

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 b. The FAC allegations do not support
recovery of emotional distress damages
based on foreseeability
As an alternative ground for our opinion, cases have analyzed
whether a plaintiff may seek emotional distress damages—whether
or not accompanied by other claimed damages—based on policy
factors and the foreseeability of emotional distress resulting from
the allegedly tortious conduct at issue. Under this framework,
an “attorney’s conduct—while not necessarily intentional or in bad
faith—[may be] so reckless and the resulting [emotional distress]
damage is so foreseeable that imposition of liability is proper.”
(Pleasant v. Celli (1993) 18 Cal.App.4th 841, 854, disapproved
of on other grounds by Adams v. Paul (1995) 11 Cal.4th 583;
Smith, supra, 10 Cal.App.4th at p. 1039 [allegations in complaint
“reflect[ed] no basis for concluding it was reasonably foreseeable
[attorney] handling of the [plaintiff ’s marital] dissolution would
result in emotional injury to plaintiff, separate and apart from
that which every family law litigant suffers”].) Under such
circumstances, the foreseeability of emotional distress resulting
from the conduct at issue serves as the requisite means of assuring
the validity of the emotional distress claimed. (Merenda, supra,
3 Cal.App.4th at pp. 6, 8.)
The FAC fails to allege legally cognizable emotional distress
damages when analyzed in terms of foreseeability. Namely,
the FAC does not allege actions by respondents, a foreseeable
consequence of which is that Miller would suffer serious emotional
distress. Neither Novotney’s advice regarding Miller’s right to self-
representation, nor his commentary at the hearing, is inherently
so upsetting that “emotional distress naturally ensues [there]from.”
(Merenda, supra, 3 Cal.App.4th at pp. 6, 8, italics added; id. at
pp. 10−11 [plaintiff not permitted to seek emotional distress

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damages based on losing lawsuit against man who sexually
assaulted her because losing the lawsuit was not something
inherently likely to upset her emotional calm beyond the baseline
level of distress associated with litigation].) Of course, criminal
cases generally have the potential to affect a defendant’s liberty
interest, and it is certainly foreseeable that actions affecting such
interest will result in emotional distress. (See Holliday v. Jones
(1989) 215 Cal.App.3d 102, 119 [wrongful incarceration of innocent
man resulting from attorney malpractice basis for emotional
distress damages based on conduct affecting liberty interest].)
Because Miller does not allege that respondents’ actions affected
the ultimate outcome of the resentencing petition, however, effects
on Miller’s liberty are not at issue.
Thus, the FAC does not sufficiently allege legally cognizable
emotional distress damages under this alternative analytical
framework either.

c. Miller’s request for nominal damages
does not justify reversal
Miller urges that the demurrer was still improperly
sustained, even if he failed to sufficiently allege actual damages,
because the nominal damages he seeks under Civil Code
section 3360 may satisfy the damages element of his claim.
Civil Code section 3360 provides that “[w]hen a breach of duty
has caused no appreciable detriment to the party affected, he
may yet recover nominal damages.” (Civ. Code, § 3360.) Even
assuming, for the sake of argument, that the FAC sufficiently
alleges the other elements of a breach of fiduciary duty claim,
we generally do not reverse a judgment in order for plaintiff to
recover or seek solely nominal damages. (See Sweet v. Johnson
(1959) 169 Cal.App.2d 630, 633 [“the general rule is that the
failure to award nominal damages is not alone ground for reversal

20
of a judgment or for a new trial”]; accord, Elation Systems, Inc. v.
Fenn Bridge LLC (2021) 71 Cal.App.5th 958, 965.) Although
there are exceptions to this rule (see Sweet, supra, 169 Cal.App.2d
at p. 633), Miller does not argue, nor has he identified facts to
support, that any such exception applies.
The FAC thus fails to allege any legally cognizable damages,
which are an element of a breach of fiduciary duty claim, and
the FAC thus fails to state a claim. On this basis alone, we must
affirm the trial court’s judgment following respondents’ successful
demurrer.
We note that, in his opening brief to this court, Miller
did not challenge the trial court’s denial of leave to amend, and
that Miller has not identified any additional factual allegations he
could plead to cure the deficiencies in the FAC. Therefore, the court
also did not reversibly err in denying leave to amend. (See Blank,
supra, 39 Cal.3d at p. 318 [when demurrer “sustained without leave
to amend, we decide whether there is a reasonable possibility that
the defect can be cured by amendment” and “[t]he burden of proving
such reasonable possibility is squarely on the plaintiff ”].)

B. Appeal from Court’s Denial of Request to
Appear Telephonically
Miller also challenges the court’s denial of his motion to
appear telephonically at the hearing on respondents’ demurrer.
“ ‘Erroneous exclusion of the defendant’ ” from participation in
judicial proceedings—even at “a critical stage of the proceedings”—
is not structural error that is reversible per se, but trial error
that is reversible only if the defendant proves prejudice. (People v
Santos (2007) 147 Cal.App.4th 965, 974; accord, People v. Johnson
(2013) 221 Cal.App.4th 943, 949; People v. Perry (2006) 38 Cal.4th
302, 312, citing People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
Miller has not identified any prejudice from his inability to

21
participate in the hearing on the demurrer. He does not explain,
for example, how his participation in the March 4, 2020 demurrer
hearing would have led the court to rule differently on the demurrer
and/or to not dismiss the lawsuit. For the reasons set forth above,
the FAC fails to state a claim on which relief can be granted.
Miller’s presence at the hearing could not have changed that. We
thus need not determine whether the court erred in denying Miller’s
request to participate by phone in the hearing, because any such
error would not be reversible in any event.
As to Miller’s related arguments regarding the lack of a
reporter’s transcript or settled statement, it is unclear whether
these are a separate basis on which Miller seeks relief, or part of his
argument challenging the court’s denial of his motion for telephonic
appearance. Either way, even if the lack of such a record reflected
error under the circumstances in this case, such error would not
warrant appellate relief, as Miller has not identified any prejudice
resulting therefrom. Miller suggests we will base our holding
regarding the demurrer ruling and resulting judgment on an
assumption that the judgment is valid and the lack of a reporter’s
transcript suggesting a contrary conclusion. We do not. Rather,
as set forth above, we independently conclude the FAC fails to
state a claim on which relief can be granted. A written record of
the demurrer hearing would not have allowed Miller to successfully
argue otherwise on appeal.

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 DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

BENDIX, J.

CRANDALL, J.*

*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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