Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIC407418, Gloria Connor Trask, Judge.
William M. Bryan, in pro. per., for Plaintiff and Appellant
Davis, Grass, Goldstein & Housouer and Troy A. Schell, 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 Alex Batta, M.D. He also challenges the rulings on several demurrers by defendants, 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 Dr. Batta.
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 the same allegations of failure to warn, and each includes conclusory allegations of “fraud.” However, there is no separate cause of action for fraud. In other words, plaintiff’s fraud allegations are entwined with several causes of action. There are no specific allegations of fraud or failure to warn against Dr. Batta. Dr. Batta’s alleged involvement in plaintiff’s care did not take place until January 21, 2004, when he gave a second opinion to that of Dr. Richards about the cause and treatment of the swelling and redness, which occurred long after the implantation and removal of the sphincter device. Dr. Batta is, however, listed as a defendant in the RICO cause of action, which alleges he participated in an “attempted cover up” about the source of the swelling and redness.
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.”
Plaintiff’s appendix filed in support of the appeal only includes a demurrer to the second amended complaint, which appears to have been filed on behalf of Dr. Richards, not Dr. Batta. However, the trial court specifically mentioned Dr. Batta in its ruling and the parties do not dispute this point. We therefore assume a similar demurrer 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 raised by Dr. Richards 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 “product 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 Dr. Batta was for medical negligence, and the only cause of action against AMS was for product liability based on negligent failure to warn.
The allegations in plaintiff’s third amended complaint are essentially the same as in his second amended complaint, except he changed the title of the first cause of action against AMS from “products liability fraud” to “products 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 also 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 products liability based on 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.
Although plaintiff appealed the judgments as to both Dr. Richards and Dr. Batta, we dismissed the appeal as to Dr. Richards on January 29, 2007, because plaintiff failed to timely file a copy of the judgment against him with his civil case information statement. Plaintiff filed a second notice of appeal as to defendant AMS on October 17, 2006, and that appeal is proceeding separately under case No. E041578. Dr. Richards and AMS are discussed in the current appeal only to the extent the allegations against them provide factual context for the claims against Dr. Batta. Accordingly, we address the arguments raised in the appeal only as they pertain to the allegations against Dr. Batta, despite any assertion by plaintiff that the instant appeal also applies to Dr. Richards and/or to AMS. Because Dr. Richards was dismissed, we express no opinion as to whether the trial court properly sustained his demurrer to all causes of action except medical negligence, or whether the trial court appropriately granted summary judgment in favor of Dr. Richards.
Arguments not addressed include, but are not limited to, plaintiff’s contention that the trial court erroneously sustained a demurrer to the second cause of action against AMS labeled “class action” and “fraud.” Although this argument was made in plaintiff’s opening brief in this case, there is nothing to suggest any of the allegations therein could involve or were made against Dr. Batta.
DISCUSSION
I. Violations of RICO
Plaintiff argues the trial court erroneously sustained a demurrer to his RICO cause of action by inappropriately relying 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 against Dr. Batta because plaintiff alleged a personal injury rather than damage to business or property.
“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.)
In Stansfield v. Starkey, supra, 220 Cal.App.3d at page 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, 398-399.) 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 Dr. Batta do not in any way suggest an injury to a business or property. Although he cites no supporting authority, plaintiff argues RICO has been expanded to include allegations similar to those alleged in his complaint. Without more, we have no reason to disagree with the trial court’s interpretation or application of the law to the facts alleged against Dr. Batta in the complaint. 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 against Dr. Batta. As a result, we agree with the trial court’s decision to sustain Dr. Batta’s demurrer 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. Plaintiff’s argument confuses pleading requirements at the demurrer stage of a proceeding with the standard of proof required to prevail on a summary judgment motion or at trial. At the demurrer stage, plaintiff was not required to prove Dr. Batta 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.
II. Summary Judgment—Medical Negligence
Based on the foregoing, the only remaining cause of action against Dr. Batta is for medical negligence on or about January 21, 2004, when he was asked to give a second opinion on the cause and appropriate treatment of swelling and redness underneath plaintiff’s penis. Plaintiff argues summary judgment in favor of Dr. Batta is inappropriate because Dr. Batta’s motion is not well supported. Plaintiff also believes he met his burden of disputing all material evidence and facts in opposition to the motion. We must first address plaintiff’s mistaken belief that the trial court should not have accepted or required expert declarations because “[a]ll evidence and testimony are reserved for trial.” As the trial court explained to plaintiff during the hearing on September 7, 2005, summary judgment procedures allow parties to a lawsuit to submit relevant evidence to the court for consideration prior to trial. Evidence in support of a summary judgment motion can include “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).)
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 (2002) 95 Cal.App.4th 870, 879.) The burden of a defendant moving for summary judgment is one of persuasion rather than absolute proof, and it is not necessary for a defendant to negate an element of the plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853.) 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).) 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.)
“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) At trial, a plaintiff claiming medical negligence has the burden of proving defendant’s treatment fell below the applicable standard of care. (Ibid.) As in this case, a defendant charged with medical negligence who is seeking summary judgment prior to trial must present evidence precluding a reasonable trier of fact from finding defendant’s professional treatment of the plaintiff fell below the applicable standard of care. If the defendant is able to do so, the burden then shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Ibid.)
It has long been the rule of law that “the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts.’ ” (Johnson, supra, 143 Cal.App.4th at p. 305, quoting Sinz v. Owens (1949) 33 Cal.2d 749, 753.) As a result, “expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard prevailing of care’ unless the negligence is obvious to a layperson.” (Johnson, supra, 143 Cal.App.4th at p. 305, quoting Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) Thus, a defendant may seek summary judgment in a motion based on a well-supported expert declaration demonstrating treatment of the plaintiff was within the appropriate standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) To be entitled to a trial, a plaintiff must respond to such a motion with a conflicting and properly supported expert declaration. (Ibid.) The trial court forewarned plaintiff about this requirement.
A medical expert’s opinion on malpractice issues is admissible and can establish a defendant’s burden to show an absence of material fact for trial if it includes a reasoned explanation for the expert’s conclusions and is based on matters upon which an expert can reasonably rely. (Kelley v. Trunk, supra, 66 Cal.App.4th at p.524.) An expert’s declaration and opinion can be excluded if it is speculative and only includes an ultimate conclusion unsupported by a reasoned explanation. (Ibid.) A medical expert can reasonably rely on his education, training, and experience in a specialty, together with a review of relevant medical records, to express an opinion as to whether a treating physician met the applicable standard of care. (Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th at p. 509.) In other words, a qualified medical expert’s reason for an opinion expressed in a declaration in support of a summary judgment motion by the defense can be the lack of evidence of medical malpractice in the plaintiff’s medical records. (Ibid.)
In support of his summary judgment motion, Dr. Batta submitted the declaration of Dr. Kirk, a urologist with extensive experience. Plaintiff did not submit an expert declaration to rebut Dr. Kirk’s declaration, and, as a result, the trial court granted summary judgment in Dr. Batta’s favor. In opposing Dr. Batta’s motion, the record indicates plaintiff did not submit any competent evidence but merely referred to his medical records, a medical treatise, and Dr. Kirk’s declaration.
Plaintiff challenges Dr. Kirk’s qualifications to express the opinions in his declaration. Plaintiff believes Dr. Kirk is not qualified to express any opinions about this case because he has no personal, first-hand knowledge about the facts or events of this case and is not an expert on the risks associated with the implantation of a sphincter device to resolve urinary incontinence. We disagree.
Although Dr. Kirk does not specifically state he is a specialist in problems involving sphincter devices used to resolve urinary incontinence, his declaration does state he has “garnered extensive experience [during his practice] in surgery for various urologic problems including the facts at issue in this litigation.” Dr. Kirk’s declaration states he has been board certified in urology since 1975 and practiced urology in this area for nearly 30 years. Dr. Kirk remains active in his specialty and in several medical associations and peer review activities. He is familiar with the applicable standard of care during the relevant time period and under the circumstances at issue in this case. Based on his education, training, experience, and a review of plaintiff’s medical records, Dr. Kirk concluded Dr. Batta “complied with the standard of care at all times as concerns the care and treatment rendered to [plaintiff].” Citing plaintiff’s medical records, Dr. Kirk explained that Dr. Richards performed a “radical prostectomy” in December 1998 after plaintiff was diagnosed with prostate cancer. Although plaintiff performed well following the surgery, he had problems with urinary incontinence, so a “genitourinary sphincter device which was implanted on February 4, 2002.” However, an infection developed and the device had to be removed on February 18, 2002.
After the device was removed, Dr. Richards continued to monitor plaintiff’s “PSA levels” at regular intervals, and by January 24, 2004, the PSA level had risen to 1.1. As a result of rising PSA levels, Dr. Richards recommended radiation or hormone treatment, but plaintiff refused. At the request of Dr. Richards, Dr. Batta consulted with plaintiff on January 21, 2004. Plaintiff’s medical records indicate “Dr. Batta explained the risk of the rising PSA level of 1.1 and that radiation or hormone ablation therapy was the best way to treat such a diagnosis.” According to Dr. Kirk, “[t]he fact that the patient previously had a radical prostatectomy and possessed rising PSA levels leads to no alternative conclusion that the carcinoma has reappeared.” Despite plaintiff’s allegation to the contrary, Dr. Kirk opined that “a biopsy was not warranted at this time nor was it within the standard of care.” Dr. Kirk explained that Dr. Batta’s recommendation to plaintiff was within the standard of care because “[i]t is recognized within the urology community” that the best and most accepted way to treat rising PSA levels under these circumstances is through radiation or hormone therapy.
In sum, Dr. Kirk provided a reasoned explanation for his opinions. His conclusions about Dr. Batta’s single consultation with plaintiff are based on his education, training, experience, as well as a review of plaintiff’s medical records. As outlined above, a medical expert can reasonably rely on these sources to reach and express an opinion as to whether a treating physician met the applicable standard of care. Dr. Kirk also reasonably relied on these sources to reach his conclusion that Dr. Batta’s single consultation with plaintiff on January 21, 2004, could not have caused plaintiff any injury because (1) it was within the applicable standard of care; and (2) there is nothing in plaintiff’s medical records indicating Dr. Batta had any involvement in plaintiff’s medical treatment prior to that time. In other words, Dr. Kirk’s declaration is sufficient to meet defendant’s burden to present evidence, which if uncontradicted, would be sufficient to show by a preponderance of evidence that plaintiff cannot prove his medical negligence allegation against Dr. Batta. As a result, Dr. Kirk’s declaration shifted the burden to plaintiff to submit competent evidence to rebut Dr. Kirk’s opinion.
Plaintiff argues summary judgment in Dr. Batta’s favor was inappropriate because he sufficiently disputed all material facts in Dr. Kirk’s declaration with “unimpeachable” citation to a medical treatise. As outlined above, the material facts alleged in the complaint against Dr. Batta are that when he was asked for a second opinion on the cause and appropriate treatment of the redness and swelling under plaintiff’s penis on January 21, 2004, he negligently failed to recommend a biopsy, and made an “inaccurate and incorrect” diagnosis of a recurrence of prostate cancer. Plaintiff further alleges he had a CT scan after consulting with Dr. Batta on January 21, 2004, but the CT scan showed there was “no recurrence of prostate cancer in the prostate fossa.”
Based on his review of plaintiff’s medical records, Dr. Kirk explained in his declaration that a biopsy was not warranted at the time plaintiff consulted with Dr. Batta because plaintiff had already had a radical prostatectomy and had rising PSA levels, which “leads to no alternative conclusion that the carcinoma has reappeared.” In Dr. Kirk’s opinion, the CT scan did not show a reoccurrence of prostate cancer because the “carcinoma ha[d] not localized to be definitely observed on such a study.” Without citation to competent evidence, as required by Code of Civil Procedure section 437c and relevant case law, plaintiff did not meet his burden to rebut Dr. Kirk’s reasonable explanations as to why Dr. Batta’s treatment of plaintiff fell within the applicable standard of care. Plaintiff’s mere citation to a medical treatise and an unsubstantiated CT scan to prove negligent misdiagnosis of a complex medical condition is simply not enough to create a triable issue of fact.
Plaintiff also attacks the credibility of Dr. Kirk and refers to his declaration as a “lie.” 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 Dr. Kirk’s credibility are simply unsupported and therefore do nothing to satisfy his burden of proof.
Plaintiff further claims the other doctor who ultimately removed a cancerous tumor agreed to rebut Dr. Kirk’s declaration but later refused, because he did not want to testify against a colleague. As a result, plaintiff claims his only alternative was to subpoena the doctor for trial “as a hostile witness and make him testify to the truth.” He argues the trial court should have accepted this reason for his inability to submit an expert opinion prior to trial and blames the adverse ruling on bias by the trial court. However, there is no evidence to indicate this other doctor’s opinion would have been sufficient to create a triable issue of fact. Plaintiff has not submitted any competent evidence to even suggest this other doctor disagrees with Dr. Kirk’s opinion, or has any reason to believe plaintiff was negligently misdiagnosed by Dr. Batta, which resulted in some injury to plaintiff.
In sum, based on the foregoing, we conclude Dr. Batta met his burden of producing evidence demonstrating that his treatment of plaintiff fell within the applicable standard of care, and that there is a lack of evidence in plaintiff’s medical records to prove he was negligent. The burden then shifted to plaintiff to raise a triable issue of material fact. Plaintiff has demonstrated he cannot meet his burden of establishing a triable issue of fact on the applicable standard of care because he has been unable to locate a medical expert to discredit Dr. Kirk’s opinion in a declaration under oath. We therefore agree with the trial court’s ruling that Dr. Batta is entitled to summary judgment in his favor.
III. Trial Court’s Continuation of Summary Judgment Hearings
Plaintiff argues the trial court abused its discretion by continuing the hearing on the first summary judgment motions filed by Dr. Richards and Dr. Batta because there was no request for a continuance. Rather, the trial court continued the hearing so the doctors could prevail against him by revising their moving papers. Plaintiff also believes the trial court was biased against him as evidenced by its suggestion to the doctors on how to revise their moving papers so a ruling in their favor would “stand up on appeal.”
“The justification for summary judgment is that it roots out cases in which no triable issues of material fact exist thus alleviating the need for a time-consuming and costly trial and allowing the court to award judgment as a matter of law.” (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97.) However, because of the “drastic nature of the measure,” the granting of summary judgment motions based on curable, procedural deficiencies is disfavored “unless the party’s violation of the procedural rule was willful, [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing less severe sanctions would not produce compliance with the procedural rule. [Citations.]” (Id. at p. 98.)
To protect the right of litigants to have disputes determined by a jury, continuances under Code of Civil Procedure section 437c are to be liberally granted. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.) The trial court must have a good reason for denying a continuance even if one is not requested. (Ibid.) In the absence of an affidavit requiring a continuance under Code of Civil Procedure section 437c, subdivision (h), we review the continuance of a summary judgment motion for abuse of discretion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)
“[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.) However, based on principles of fairness, it is not inappropriate for a trial court to make suggestions to solve a procedural difficulty likely to result in a decision that is not on the merits, such as calling attention to omissions in evidence or defects in the pleadings. (Ibid.)
The hearing on the first summary judgment motions filed by Dr. Richards and Dr. Batta was held September 7, 2005. At the outset of the hearing, the trial court noted plaintiff was appearing “in pro per” and might not understand summary judgment procedure. The trial court then explained summary judgment procedures to plaintiff and stated “it looks like they have a good case to win based on the evidence submitted.” The trial court further explained the burden of proof would shift to plaintiff if the doctors submitted declarations showing they acted within the standard of care and did nothing to cause any injury to plaintiff. The trial court specifically advised plaintiff that “[t]he law is clear in a medical malpractice case,” he could not simply “refer to literature,” and it would be “absolutely necessary” for him to rebut such evidence by the doctors with evidence from his own medical expert to create a triable issue of fact. Citing deficiencies in the expert declarations of Dr. Kirk, which were submitted by the doctors in support of their motions, the court denied both doctors’ summary judgment motions without prejudice and continued the hearing.
On June 19, 2006, the court held a second hearing on motions for summary judgment by Dr. Richards and Dr. Batta. This time the trial court granted both motions. The trial court reasoned Dr. Kirk’s amended declarations 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.
Although plaintiff contends the trial court’s continuance of the hearing on the doctors’ summary judgment motions is indicative of bias against him, it is our view the continuance was calculated to protect plaintiff, as well as defendants, from a judgment based on curable procedural defects rather than on the merits of the dispute. The record shows a clear intent by the trial court to allow plaintiff additional time to locate a medical expert who could file a suitable declaration to create a triable issue of fact. It is true the trial court at this time also outlined deficiencies in defendants’ medical expert declaration in order to explain its ruling and thus suggested how the declaration could be amended to meet defendants’ burden of proof. The trial court’s comments to defendants were consistent with the purposes of summary judgment procedures and were necessary for the court to explain its reasons for the ruling. (See Code Civ. Proc., § 437c, subd. (g).) Similar to the opposing papers submitted by plaintiff, the defects in the defendants’ medical expert declaration were obvious, and it appeared possible to correct them. We therefore discern no abuse of discretion or bias by the trial court in outlining the deficiencies in defendants’ expert declaration and allowing them an opportunity to amend.
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 subpoenas could not be located. He believes the trial court did not rule on the subpoenas because of bias against him.
In general, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) “Civil discovery is intended to operate with a minimum of judicial intervention. ‘[I]t is a “central precept” of the Civil Discovery Act . . . that discovery “be essentially self-executing.” ’ ” (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.) Thus, “the trial court does not usually consider either the propriety of a party’s discovery demand or the adequacy of a party’s response unless a dispute arises.” (Ibid.) When a dispute arises over the production of documents, the trial court may intervene in the discovery process if the responding party files a motion for a protective order, or if the propounding party files a motion to compel because the responding party failed to serve timely or adequate responses. (Ibid.) As noted above, “propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.” (Gamet v. Blanchard, supra, 91 Cal.App.4th at p. 1284.)
There is nothing to indicate plaintiff sought the trial court’s assistance in enforcing these subpoenas by filing a formal motion to compel. 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.) On the record before us, there is nothing from which we could conclude the trial court acted improperly with respect to the subpoenas. As a result, we conclude plaintiff is not entitled to any relief on appeal.
DISPOSITION
The judgment is affirmed.
Each party to bear their own costs.
We concur: GAUT, J., KING, J.