Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County No. RIC 407418. Gloria Connor Trask, Judge.
William M. Bryan, in pro. per., for Plaintiff and Appellant.
Schaffer, Lax, McNaughton & Chen, Clifford L. Schaffer, and Carol D. Toy, for Defendant and Respondent.
OPINION
RAMIREZ, P. J.
Plaintiff William M. Bryan, appearing in propria persona, appeals an order granting summary judgment in favor of defendant American Medical Systems, Inc. (AMS). He also challenges the rulings on several demurrers, the continuation of a summary judgment hearing, and an alleged failure by the trial court to take action on certain discovery subpoenas. We affirm the judgment in favor of AMS.
FACTUAL AND PROCEDURAL HISTORY
Our review of plaintiff’s appeal begins with the second amended complaint. The causes of action in the second amended complaint are labeled as follows: (1) products liability fraud against American Medical Systems (AMS); (2) class action against AMS for fraud; (3) medical malpractice negligence against Winston Richards, M.D. (Dr. Richards); (4) medical malpractice negligence against Alex Batta, M.D. (Dr. Batta); and (5) RICO violation (i.e., violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), (18 U.S.C., § 1961 et. seq.)) and fraud against all three defendants.
Although respondent’s appendix includes copies of earlier portions of the record going back to the original complaint filed February 9, 2004, these documents are not necessary to our analysis.
In the second amended complaint, plaintiff alleges he was a patient of Dr. Richards, a urologist, beginning in 1998. Dr. Richards performed a biopsy and a “prostatectomy operation” on plaintiff’s prostate due to prostate cancer. According to the second amended complaint, the surgery was successful “and the patient’s PSA level remained at >.1 for three years.”
On February 4, 2002, Dr. Richards attempted to solve plaintiff’s incontinence by surgically implanting a sphincter device, identified as an “800 GU Sphincter,” which was allegedly manufactured by AMS. Although AMS was aware of the risk of erosion of the cuff of the device into the urethra prior to the surgery, plaintiff alleges he was not warned by AMS or Dr. Richards about this risk. The device subsequently failed and was therefore removed on February 18, 2002, “because of the erosion of the cuff into the urethra.”
After the device was removed, plaintiff alleges his “PSA level” began rising and “reached .4 a year later” on March 31, 2003. “Dr. Richards was absolutely certain that the rising PSA was the result of a recurrence of the prostate cancer in the prostate fossa.”
In many places throughout the record, “prostate” is misspelled “prostrate.” For clarity and consistency, we will correctly refer to “prostate,” even when quoting from the record.
On or about January 13, 2004, plaintiff discovered swelling and redness in the area where the sphincter device had been removed. As a result, he went to see Dr. Richards on January 21, 2004, but Dr. Richards “displayed a complete lack of interest in pursuing the cause of the inflammation” and refused plaintiff’s request for a biopsy. Plaintiff claimed the rising PSA was the result of the implantation and removal of the sphincter device. Dr. Richards recommended radiation or hormone treatments. According to plaintiff, Dr. Richards breached his duty of care because he simply recommended radiation treatment without following “normal diagnostic procedures,” which “would have revealed the true nature of the disease.”
When plaintiff declined both radiation and hormone treatments, Dr. Richards suggested a second opinion by Dr. Batta. Defendant had a consultation with Dr. Batta, but Dr. Batta was in complete agreement with Dr. Richards. Thereafter, plaintiff sought alternate diagnostic care. A “CT scan” on June 8, 2004, allegedly revealed there was no spread of prostate cancer in the prostate fossa. Plaintiff contends Dr. Batta also breached his duty of care because “he failed to exercise his skill and knowledge to recommend common diagnostic procedures” and misdiagnosed the cause of swelling and redness in the area where the sphincter device had been removed.
Against AMS, plaintiff alleges he agreed to the implantation of the sphincter device based on his review of a promotional brochure published and distributed by AMS, which did not include any warning of “potential failures” of the device, including the possibility of erosion of the cuff into the urethra. According to plaintiff, the brochure did not warn of hazardous side effects or the potential for failure of the device even though this information was known to and had been collected by AMS since 1972. He claims AMS suppressed information about hazardous side effects until March 2002, after his device was implanted and removed. All of the causes of action against AMS essentially include these same allegations. Each of the causes of action against AMS also include the word “fraud” and generally refer to the alleged failure of AMS to warn plaintiff and any other potential users of the device as “fraud.” In other words, plaintiff’s fraud allegations are entwined with several causes of action, but there is no separate cause of action for fraud.
Defendants filed demurrers to the second amended complaint. The trial court overruled the doctors’ demurrers as to the third and fourth causes of action for medical negligence, but sustained the demurrers without leave to amend as to the inclusion of the doctors in the fifth cause of action labeled “RICO violation” and “fraud” and as to “all the fraud causes of action.”
The record includes a demurrer to the second amended complaint which appears to have only been filed on behalf of Dr. Richards. However, the trial court specifically mentioned Dr. Batta in its ruling and the parties do not dispute this point. We therefore assume demurrer on similar grounds was also filed on behalf of Dr. Batta. Although there are no specific allegations against him in the second cause of action entitled “class action” and “fraud,” the demurrer filed on behalf of Dr. Richards assumes he is included in this cause of action and argues the facts alleged are not sufficient to constitute fraud. Other grounds for the demurrer include failure to state facts sufficient to constitute a cause of action for negligence (medical malpractice) or for a violation of RICO and to state a claim for punitive damages.
The court overruled the demurrer by AMS as to the first cause of action labeled “product liability fraud,” because it found the allegations were sufficient to state a claim against AMS for “products liability, for failure to warn.” However, the court sustained the demurrer “without leave to amend” as to this cause of action and any other cause of action to the extent plaintiff used the word “fraud” or claimed punitive damages. Although a copy could not be located in the record, AMS also filed and the court granted a motion by AMS to strike all references to “fraud” in the first and any other causes of action, and granted a motion to strike plaintiff’s demand for punitive damages. As a result of the ruling, the only cause of action remaining against AMS was for product liability based on a negligent failure to warn.
The court also told plaintiff he had “thirty days leave to amend.” Although the record is ambiguous, it appears the trial court granted leave to amend so that plaintiff could delete all references to fraud in his first cause of action against AMS for products liability, eliminate his second cause of action entitled “class action” and “fraud” and his fifth cause of action for violations of RICO, as well as to remove his demand for punitive damages.
The allegations in plaintiff’s third amended complaint are essentially the same as those in his second amended complaint, except he changed the title of the first cause of action against AMS from “product liability fraud” to “product liability negligence.” Although the trial court previously sustained a demurrer by AMS and granted a motion to strike the word “fraud” from the allegations in the causes of action against AMS, plaintiff did not delete these references. In his third amended complaint, plaintiff also reasserted his second cause of action entitled “class action” and “fraud.” However, plaintiff did not reassert his cause of action previously entitled “RICO violation” and “fraud” against all defendants.
AMS filed a demurrer to the third amended complaint. In addition, AMS filed a motion to strike portions of the third amended complaint alleging fraud. The trial court once again overruled the demurrer as to the first cause of action against AMS for product liability based on a negligent failure to warn. Because plaintiff did not delete the word “fraud” from the complaint and reasserted the second cause of action labeled “class action” against AMS for “fraud,” the trial court once again sustained the demurrer as to these allegations without leave to amend. The trial court also granted the motion to strike the fraud allegations and explained to plaintiff that “[a]ll the fraud allegations are stricken without leave to amend” because he did not plead them with specificity.
During a hearing on June 19, 2006, the court considered and granted motions for summary judgment by Dr. Richards and Dr. Batta. The trial court reasoned expert declarations by Mark Kirk, M.D., were sufficient to shift the burden of proving negligence by the doctors to plaintiff, but plaintiff failed to create a triable issue of fact by submitting the opinion of a qualified medical expert to rebut Dr. Kirk’s declarations. Judgment was entered against plaintiff and in favor of Dr. Richards and Dr. Batta on July 10, 2006.
The trial court also granted summary judgment in favor of AMS and against plaintiff on August 22, 2006, on the failure to warn cause of action. Essentially, the trial court concluded AMS was entitled to summary judgment because it met its burden of showing plaintiff is unable to establish AMS had a direct duty to warn him of the risks associated with the sphincter device. Rather, under the learned intermediary doctrine, the duty to warn of risks associated with an implantable medical device is owed to the physician, not the patient. Judgment was entered in favor of AMS and against plaintiff on September 12, 2006.
Plaintiff then filed two separate notices of appeal. Plaintiff’s first appeal was filed as to Dr. Richards and Dr. Batta, which is proceeding separately under case No. E041221. In that appeal, we dismissed Dr. Richards on January 29, 2007, because plaintiff failed to timely file a copy of the judgment against him. Plaintiff filed his notice of appeal in this case as to defendant AMS on October 17, 2006. Dr. Richards and Dr. Batta are only involved in the current appeal to the extent the allegations against them provide factual context for the claims against AMS. Accordingly, we address the arguments raised in the appeal only as they pertain to AMS and disregard arguments which are only relevant to the other defendants.
DISCUSSION
I. Summary Judgment—Products Liability
Plaintiff argues the trial court’s summary judgment ruling in favor of AMS is erroneous because the trial court improperly allowed AMS to submit “new evidence” to support its summary judgment motion when the court had already ruled he could proceed against AMS on his failure to warn claim. He believes the trial court’s summary judgment ruling is also erroneous because in opposition he submitted documentary evidence establishing AMS did not adequately warn doctors and patients of the risks associated with the sphincter device prior to the time his device was implanted. He further contends the learned intermediary doctrine, which the trial court relied on to grant summary judgment in favor of AMS, should not apply to implanted penile devices under the facts of his case.
Preliminarily, we must reject plaintiff’s contention the trial court erroneously changed its prior decision and allowed AMS to submit “new evidence” to support its summary judgment motion. Plaintiff believes AMS was required to produce all evidence in support of its learned intermediary defense at the demurrer stage of the proceedings.
Plaintiff misreads the trial court’s earlier rulings overruling demurrers filed by AMS as to the first cause of action for products liability. A demurrer by a defendant is only for the purpose of challenging defects shown on the face of the complaint or in matters judicially noticeable, such as the court’s records in the pending action. (Code Civ. Proc., § 430.30, subd. (a); Evid. Code, § 452, subd. (d).) In other words, a demurrer is used by a defendant to raise issues of law, not issues of fact. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Code Civ. Proc., § 422.10.)
Here, citing the learned intermediary doctrine as set forth in Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 17 (Hufft), AMS demurred to the complaint arguing plaintiff could not state a cause of action for failure to warn him of the risks of the sphincter device because AMS only had a duty to advise the doctor about any such risks. In other words, AMS raised an issue of law which assumed the truth of the allegations pled on the face of plaintiff’s complaint. Therefore, at the demurrer stage of the proceedings, it would have been inappropriate for the court to consider extraneous evidence, such as the declarations later submitted by AMS in support of its summary judgment motion.
The trial court’s rulings on the demurrers did not in any way preclude AMS from raising the issue of duty once again in a later motion for summary judgment. Summary judgment procedures, which are set forth in Code of Civil Procedure section 437c, allow any party to a lawsuit to attempt to show a trial is unnecessary because opposing parties cannot succeed on the merits of the case. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) “[P]ropria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) Issues appropriately raised by a defendant and determined by the court on a motion for summary judgment include whether the defendant “either owed or did not owe a duty to the plaintiff or plaintiffs,” and whether a cause of action has no merit because the plaintiff cannot establish a necessary element. (Code Civ. Proc., § 437c, subd. (f)(1).) Therefore, contrary to plaintiff’s arguments, it was appropriate for AMS to submit and for the court to consider the summary judgment motion filed by AMS on the issue of duty after the court had already ruled on defendants’ demurrers.
Relying once again on Hufft, supra, 4 Cal.App.4th at p. 17, the trial court granted summary judgment in favor of AMS during a hearing on August 22, 2006. In reaching this decision, the trial court found AMS had no duty to warn plaintiff because any such duty is owed to the physician and not the patient. The court made no findings on the record as to whether the parties met their respective burdens of proof. However, “The trial court’s stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) We review de novo a trial court’s order granting summary judgment in favor of a defendant. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 507.)
A defendant who files a summary judgment motion must “present evidence which, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established.” (Kids’ Universe v. In2Labs, supra, 95 Cal.App.4th at p. 879.) Such a motion must be supported by evidence in the form of “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) If the defendant meets this burden, the burden then shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
The parties’ respective burdens of persuasion and proof under summary judgment procedures are determined by the burdens of proof imposed at trial. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 845.) Under California law, “[A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.]” (CA BAJI 9.00.7.) However, when the product is a drug or implantable device which can only be obtained through a qualified physician, the duty to warn of the risks of the device is owed to the doctor rather than to the patient. (Hufft, supra, 4 Cal.App.4th at p. 17.) “[A] manufacturer fulfills its duty to warn if it provides adequate warning to the physician.” (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1062, fn. 9.)
In support of its summary judgment motion, AMS submitted a declaration by Dr. Richards stating he reviewed literature about the sphincter device before plaintiff’s implantation surgery on February 4, 2002. Dr. Richards further stated in his declaration that the literature provided to him by AMS prior to February 4, 2002, warned of the possible risks, that he discussed these risks with plaintiff prior to the surgery, and that plaintiff consented to the surgery despite the risks.
In further support of its summary judgment motion, AMS submitted a declaration by its senior principal operations manager, who has knowledge of the product literature made available by AMS to physicians through various means at or prior to the time Dr. Richards implanted the sphincter device. Based on his knowledge, he authenticated product literature distributed by AMS on its “Sphincter 800 Urinary Prosthesis.” According to the senior principal operations manager, the operating manual for the Sphincter 800, submitted as Exhibit D to his declaration, was made available to doctors at or prior to the time of plaintiff’s implantation surgery. Contrary to the allegations in plaintiff’s complaint, this literature warns of possible infection, erosion, and other complications.
The senior principal operations manager further represented that the product literature submitted as Exhibit C to his declaration is a package insert that is included with the components of the AMS Sphincter 800. Although this insert also includes warnings about infection, erosion, and other risks, there is nothing in the declaration establishing whether this package insert was being distributed with the product at or before plaintiff’s implantation surgery on February 4, 2002. As a result, we have not considered Exhibit C in our analysis.
A declaration by a urological expert was also submitted by AMS in support of its summary judgment motion. Based on her education and experience in the urological field, and a review of the literature provided by AMS to doctors at or prior to the implantation of the sphincter device, the expert concluded AMS fulfilled its duty to warn.
Together with citation to prior legal precedents applying the learned intermediary doctrine to implanted medical devices, these three declarations are enough for AMS to meet its burden of showing plaintiff cannot establish one or more elements of his cause of action against AMS for failure to warn. AMS has shown it advised physicians, including plaintiff’s surgeon, Dr. Richards, about the risks of the sphincter device. AMS has also shown these warnings were given prior to the time the sphincter device was surgically implanted by Dr. Richards with plaintiff’s consent. In other words, AMS has shown it is highly unlikely plaintiff will be able to establish the elements of duty and breach of duty. As a result, the burden shifted to plaintiff to submit admissible evidence to show a triable issue of fact on these issues.
Plaintiff argues we should not consider the declarations submitted by AMS in support of its summary judgment motion because he believes they are “fraudulent.” He also opposed the motion for summary judgment of AMS in the trial court by attacking the credibility of AMS. For example, he stated that the urology expert retained by AMS “is merely lying for money.” However, to survive summary judgment as an opposing party, a plaintiff must do more than attack the credibility of the defendant’s evidence. Rather, plaintiff must submit evidence to controvert the facts shown by the defendant’s evidence. (Code Civ. Proc., § 437c, subd. (e).) Plaintiff’s attacks on the credibility of the declarations submitted by AMS are simply unsupported and therefore do nothing to satisfy his burden of proof.
Plaintiff contends AMS was not entitled to summary judgment in its favor because in opposition to the motion he submitted “documentary evidence which proves that no warning was ever given to the doctors or the patient,” and the trial court ignored this evidence. Documentary evidence produced by plaintiff in opposition to the summary judgment motion by AMS and its declarations include: Exhibit A, his medical records from September 26, 2001, to February 18, 2002; Exhibit B, product literature for the “AMS Sphincter 800”; Exhibit C, information guide for the “AMS Sphincter 800”; Exhibit E, product literature for the “AMS Sphincter 800”; and Exhibit F, operating room manual for the “AMS Sphincter 800.” The record does not include a document labeled as plaintiff’s “Exhibit D.”
Citing AMS product literature submitted in support of his opposition (Exhibits B and C), plaintiff claims he could not have been advised of possible erosion of the cuff of the device until after his surgery on February 4, 2002. He believes Exhibits B and C support his allegation that product brochures advising of this risk were not available until after March 2002. Plaintiff did not submit any evidence to authenticate these documents, and the documents themselves do not show when or to whom they were distributed. Nor are they competent evidence to dispute the declaration of the senior principal operations manager of AMS authenticating product literature made available to physicians at the time of plaintiff’s implantation surgery, which warns of possible infection, erosion, and other complications.
Plaintiff also contends his medical records (Exhibit A) show he was not warned of the particular risk of erosion prior to implantation of the sphincter device. He claims he consented to the surgery on October 10, 2001, but Dr. Richards made no notation indicating he was advised of any risks at this time. Dr. Richards’ notes from a later “pre-op visit” on January 30, 2002, do state “[p]rocedure and risks have been discussed. The patient understands, accepts the risks and wishes to proceed.” However, plaintiff argues the only risk discussed at this time was that of infection. Standing alone, these documents and plaintiff’s argument do not constitute competent, admissible evidence sufficient to dispute the application of the learned intermediary doctrine to the facts alleged in the complaint against AMS. Nor are these documents, standing alone, sufficient to create a triable issue of fact as to whether AMS fulfilled its duty to warn Dr. Richards about the risks of the sphincter device prior to plaintiff’s implantation surgery.
Based on the foregoing, we agree with the trial court’s decision to grant summary judgment in favor of AMS as to plaintiff’s claim against AMS for failure to warn. We therefore conclude plaintiff is not entitled to reversal of this decision on appeal.
II. Demurrers by AMS
A. Class Allegations
Plaintiff contends the trial court erred in sustaining the demurrer without leave to amend as to the class action “cause of action” of his second amended complaint on March 11, 2005. Plaintiff actually argues that the court erred in sustaining the demurrer as to the class action “cause of action” of his third amended complaint; however, the court granted AMS’s motion to strike the class action “cause of action” to the third amended complaint because the court had previously sustained the demurrer without leave to amend as to the class action “cause of action.”
“Whatever its form, an order that has the effect of denying certification as a class action disposes of that action and is an appealable final judgment.” (Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1322, fn. 2.) Because the order sustaining the demurrer without leave to the amend as to the class action cause of action in effect denied certification of the matter as a class action, it was a final appealable order. Because the proof of service is not attached to the notice of entry included in respondent’s appendix, it is unclear whether it qualified as the notice of entry for purposes of the shortened time for filing a notice of appeal in California Rules of Court, rule 8.104(a)(2). Nonetheless, the notice of appeal was filed in this case on October 11, 2006, more than 180 days after entry of the judgment on the class action on March 11, 2005. (Cal. Rules of Court, rule 8.104(a)(3).) Therefore, the appeal from the class action ruling is untimely and must be dismissed. (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 811.)
B. Fraud
Plaintiff claims his fraud allegations are sufficient to state a cause of action, and, as a result, the trial court’s decision to sustain the demurrers as to any fraud allegations was erroneous. As noted above, all of plaintiff’s causes of action against AMS allege a failure to warn against the risks of the sphincter device, and all include conclusory allegations of “fraud,” either in the title and/or within the allegations. Essentially, plaintiff argues his failure to warn allegations are also sufficient to constitute a cause of action for fraud. The trial court sustained two demurrers and granted two motions to strike by AMS as to all references to “fraud” because plaintiff failed to state sufficient facts.
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando), citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “If the trial court has sustained the demurer [sic], we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.” (Schifando, supra, 31 Cal.4th at p. 1081.) “The plaintiff has the burden of proving that an amendment would cure the defect.” (Ibid.)
“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citations.]’ ” (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 857-858.) “ ‘ “ ‘ “[T]he policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.” ’ [Citation.] [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.)
Although plaintiff’s causes of action against AMS could be read to include an allegation that AMS misrepresented or concealed information, these allegations are insufficient to satisfy the heightened pleading requirements for fraud. The complaint does not include facts showing how, when, or by what means plaintiff obtained access to the brochure. For example, the facts alleged are so ambiguous it is unclear whether plaintiff claims he obtained the brochure from Dr. Richards or directly from AMS by mail. We also note the significance of plaintiff’s contradictory assertion in the third amended complaint that Dr. Richards admitted he knew about the risk of erosion prior to plaintiff’s implantation surgery.
Despite opportunities to amend, plaintiff has not stated how the allegations against AMS could be amended to meet the pleading requirements for fraud. Plaintiff cannot plead around the learned intermediary doctrine by simply using the word “fraud” in his allegations or by labeling his failure to warn cause of action against AMS as “fraud.” We therefore cannot disagree with the trial court’s decision to sustain the demurrer as to any fraud cause of action against AMS without leave to amend.
C. Violations of RICO
Plaintiff argues the trial court erroneously sustained demurrers by AMS to his RICO cause of action because he “failed to prove that the [d]efendants did injure the [p]laintiff’s business or property” and because the trial court inappropriately relied on the dissimilar case of Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 77. The trial court stated on the record it was sustaining the demurrer as to the cause of action for violations of RICO without leave to amend because plaintiff alleged a personal injury rather than damage to business or property.
In Stansfield v. Starkey, supra, 220 Cal.App.3d at p. 77, the general rules pertaining to civil actions alleging violations of RICO, are stated as follows: “To plead a civil RICO cause of action a plaintiff must allege: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) which injured his business or property.” Although the facts of plaintiff’s case are distinguishable from those at issue in Stansfield v. Starkey, the general rules are essentially the same for all civil causes of action alleging violations of RICO. “RICO does not purport to provide redress for any and all injuries that may be attributed to a violation; rather, it is limited to injury to a person’s business or property. (18 U.S.C. § 1964(c).)” (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1233.) “As a matter of law, personal injury, including emotional distress, is not compensable under RICO.” (Globe Internat., Inc. v. Superior Court (1992) 9 Cal.App.4th 393, 398.) Other laws exist to provide for recovery of personal injuries. (Ibid.)
Here, plaintiff alleges a personal injury rather than an injury to a business or property. The allegations against AMS do not in any way suggest an injury to a business or property. Plaintiff argues RICO has been expanded to include allegations similar to those alleged in his complaint. However, he does not cite any competent authority for this argument. Nor could we locate any controlling or persuasive authority supporting plaintiff’s argument. Plaintiff was given several opportunities to amend his complaint and has not at any time stated what facts, if any, could be added to his complaint to satisfy the pleading requirements for a RICO cause of action. As a result, we agree with the trial court’s decision to sustain the demurrer by AMS as to the RICO cause of action without leave to amend.
We also note the trial court did not sustain a demurrer because plaintiff “failed to prove” a RICO cause of action. At the demurrer stage, plaintiff was not required to prove AMS violated RICO. Rather, he was merely required to allege facts in his complaint that were sufficient to constitute a cause of action for a violation of RICO. As noted above, plaintiff was unable to do so despite ample opportunity to amend his complaint.
III. Trial Court’s Continuation of Summary Judgment Hearings
Plaintiff contends the trial court unfairly accommodated AMS by not requiring AMS to file and have its summary judgment motion heard at the same time as the doctors’ summary judgment motions. According to plaintiff, the trial court gave AMS a deadline for filing its motion, but the motion was not filed until three months later, and as a result, plaintiff was procedurally disadvantaged. Plaintiff believes this suggests the court and AMS “conspired prior to this hearing” so that the defendants’ motions would be heard separately, thereby denying plaintiff a fair trial.
On the record before us, there is nothing from which we could conclude the trial court acted improperly with respect to the dates set for the hearing of defendants’ summary judgment motions. Other than the court’s efficiency and the convenience of the parties, we also can discern no advantage or disadvantage to having the motions considered at the same or separate times. Consequently, we conclude there was no bias or abuse of discretion in this regard.
IV. Plaintiff’s Discovery Subpoenas
The record includes three subpoenas filed and served by plaintiff on the defendants in February 2005 seeking access to documents. Plaintiff contends the trial court was required to rule on these subpoenas within 30 days, but instead told him the documents could not be located. He believes the trial court did not rule on the subpoenas because of bias against him.
A trial court does not generally intervene in discovery disputes unless one of the parties files a motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402, quoting Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.) As the challenging party, plaintiff has the burden of demonstrating error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
Here, there is nothing to indicate plaintiff sought the trial court’s assistance in enforcing these subpoenas by filing a formal motion to compel. Therefore, on the record before us, we cannot conclude the trial court acted improperly with respect to the subpoenas. As a result, plaintiff is not entitled to any relief on appeal.
DISPOSITION
The appeal is dismissed as to the class action “cause of action.” Otherwise, the judgment is affirmed.
Each party to bear their own costs.
We concur: GAUT, J., KING, J.