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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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

SECOND APPELLATE DISTRICT

DIVISION ONE

CURTIS E. MILLER,

Plaintiff and Appellant,

v.

RALPH JOSEPH NOVOTNEY, JR., 

et al.,

Defendants and Respondents.

 B305609

 (Los Angeles County

 Super. Ct. No. 18STCV04412)

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.
2

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
3

(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 

1 Unless otherwise indicated, all undesignated statutory 

references are to the Penal Code. 
4

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.”
5

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.)
6

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.
7

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.
8

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.) 
9

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).)
10

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.
11

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 
12

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 
13

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.
14

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 
15

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.,
16

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 
17

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.) 
18

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].)
19

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 selfrepresentation, 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 
20

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 
21

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 
22

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.
23

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.