Miller v. Novotney CA2/1 ( 2022 )


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  • 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
    been certified for publication or ordered published for purposes of rule 8.1115.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,                                                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
    2
    (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.
    3
    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.”
    4
    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.)
    5
    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.
    6
    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.
    7
    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.)
    8
    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).)
    9
    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.
    10
    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.
    13
    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.,
    15
    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].)
    18
    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
    19
    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.
    22
    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.
    23