Salvatore Bonina v. Breakthrough Physical Therapy, Inc. et. al

II. DISCUSSION

A. LEGAL STANDARD

The pleadings limit the issues presented for summary judgment or summary adjudication, and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 74.) A defendant moving for summary judgment need address only the issues raised by the operative complaint. (Bostrim v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. . . . The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R.

Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72, internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) A motion for summary judgment or adjudication shall be granted only if it completely disposes of an entire cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (See Code Civ.

Proc., § 437c, subd. (f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) Although the same standards of admissibility govern both, the opposition declarations are liberally construed, while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) As a general matter, the moving party may not rely on additional evidence filed with its reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

B. Motion for Summary Judgment

a. Breach

Breakthrough and Matsushita move for summary judgment on the grounds that there is no triable issue of material fact that Breakthrough and Matsushita complied with the applicable standard of care. (Memorandum of Points and Authorities in Support of Motion for Summary Judgment (“MPA”), pp. 12:21-16:10.)

A cause of action for medical malpractice or medical negligence consists of the same essential elements as an ordinary negligence cause of action, namely duty, breach, causation, and damages. (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230.) The distinction is that the skill and training of the defendant “serves to establish the basis by which ‘ordinary prudence’ 8

will be calculated and the defendant’s conduct evaluated.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) Because a medical professional’s conduct is measured against the skill, prudence, and diligence as is commonly possessed and used by others in that medical profession, expert testimony is ordinarily required to establish the standard of care and whether a breach of that standard occurred. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 (Hanson).)

Breakthrough and Matsushita submit the declaration of David Powers (“Powers”), a licensed and practicing physical therapist in California, in support of their motion. According to Powers, Bonina first presented himself to Breakthrough on March 10, 2020; Bonina exhibited various symptoms; the therapist’s assessment found Bonina had postural dysfunction, impaired shoulder strength, and neck pain, as well as headaches caused by neck pain; Matsushita performed the following treatment: “manual therapy, neuromuscular re-education, therapeutic exercise, ice/IFC (interferential current), and PT evaluation”; and Bonina returned to Breakthrough for various treatments with Matsushita in March 2020, May 2020, June 2020, July 2020, August 2020, and September 2020. (Defendants’ Compendium of Evidence in Support of Motion for Summary Judgment (“Defendants’ Evidence”), Ex. 3 (“Powers Decl.” or “Powers Declaration”), ¶¶ 7-70.)

The Powers Declaration concludes that “the evaluations, history, documentation, physical therapy care and treatment, communications, and all related services performed by [Matsushita] and [Breakthrough], to [Bonina] were well within the standard of care at all times. . . . The physical therapy standard of care permits a therapist to perform [various treatments]. . . . [Bonina] was documented as being apprised and understanding the various risks of physical therapy . . . it was appropriate and within the standard of care for Defendants to provide physical therapy treatment to Mr.

Bonina’s cervical spine area. . . . In reviewing the detailed physical therapy documentation as well as [Bonina’s] testimony of the alleged incident, his description of the event aligns with [Matsushita] performing manual cervical mobilization of his neck. . . . [I]t is fully within the physical therapy standard of care for a licensed physical therapist to perform cervical/neck mobilization . . .” (Id. at ¶¶ 75-82.)

Bonina argues that this testimony is insufficient for Defendants to meet their burden because Powers failed to consider certain evidence and “admits” that in preparing his expert opinion he reviewed only the SAC, the original complaint, deposition testimony from Bonina, and Bonina’s records from Breakthrough Physical Therapy. (Memorandum of Points and Authorities in Support of Opposition (“Opposition”), pp. 9:9-10:3, citing Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 (Garibay); see also Powers Decl., ¶ 4.)

In Garibay, an expert witness testified in his declaration to the facts of a medical procedure without personal knowledge of those facts, relied on medical records that were not before the court, and set forth a chronology of treatment. (Garibay, supra, 161 Cal.App.4th at pp. 742-743.) The Court of Appeal held that without submitting the medical records or providing testimony authenticating those records, the expert witness’s declaration lacked a sufficient evidentiary basis. (Id. at p. 743.)

Here, unlike the expert in Garibay, Defendants have submitted the medical records Powers relied on in forming his opinion. Bonina does not appear to challenge the authenticity of these records, and counsel for Defendants states that each of the documents “are true and correct copies of exhibits . . .” (Declaration of Joshua S. Dixon in Support of Motion for Summary Judgment, ¶ 3; Defendants’ Evidence, Exs. 1-34.) Thus, the Court is not persuaded by Bonina’s argument under Garibay. 9

Furthermore, the Court finds that Breakthrough and Matsushita have met their initial burden of establishing that there are no material issues of fact as to breach. Powers’s expert opinion establishes that Breakthrough and Matsushita met the applicable standard of care.

Consequently, the burden shifts to Bonina to demonstrate the existence of a triable issue of material fact. Bonina submits a declaration from Jordan Dangerfield, a licensed and practicing physical therapist in California. (See Declaration of Michael C. Haley in Support of Opposition to Motion for Summary Judgment (“Haley Decl.”), Ex. J (the “Dangerfield Declaration or “Dangerfield Decl.”).) According to Bonina, the Dangerfield Declaration identifies “six independent standard-of-care deviations,” each of which independently create a triable issue. (Opposition, pp. 10:16-13:7.)

Defendants challenge the admissibility of the Dangerfield Declaration. (Reply in Support of Motion for Summary Judgment (“Reply”), pp. 3:5-5:16; see, e.g., Evidentiary Objections to Plaintiff’s Evidence.) Like Bonina, Defendants direct the Court to Garibay, arguing that the Dangerfield Declaration references and relies upon several documents in rendering its opinions that are not before the Court. (Reply, p. 3:18-24.) According to Defendants, the following materials relied on by Dangerfield were not lodged or authenticated with the Court: (1) “Treating-Physician Records and Correspondence from Stanford University, including the Letters and Reports of Gary K.

Steinberg, M.D., Dated May 2023, September 14, 2023, and February 9, 2024”; (2) “The Operative Report of September 6, 2023”; (3) “Treating-Physician Letters from Drs. Jaradeh, Dodd, Leeper, and Perez”; (4) “Records of South Valley Neurology and the Office of Dr. Hovsepian”; and (5) “The Published Peer- Reviewed and Authoritative Materials Cited in the Body of Dr. Dangerfield’s Declaration.” (Id. at p. 4:3-28.) Defendants appear to be correct that Bonina did not submit these materials in support of his opposition to Defendants’ motion. (See Haley Decl., pp. 2:11-3:8.)

However, Dangerfield notes that Bonina testified that at the time Matsushita performed the “subject cervical rotational thrust, his cervical muscles ‘were still contracted’ . . . Bonina testified that he has no recollection of being given any instruction to relax his neck musculature before the maneuver . . . [t]he Breakthrough chart for the relevant August 13, 2020 through September 16, 2020 visit window contains no documentation of any instruction to relax . . . [u]nder the applicable physical therapy standard of care, the failure to obtain and confirm patient muscular relaxation before applying a high-velocity cervical rotational technique, together with the absence of any documentation that any such step was taken, is a direct and independent deviation from the standard of care.” (Dangerfield Decl., ¶ 33, citing Haley Decl., Ex.

A at p. 44:7-21.) Bonina submitted excerpts of his deposition testimony and the patient records from Breakthrough in support of his opposition. (Haley Decl., Exs. A. F, G.) The Court cannot conceive what else would have had to have been submitted in order to provide an evidentiary foundation for the opinion offered in paragraph 33 of the Dangerfield Declaration. Nor does this opinion appear to rely on the materials discussed by Defendants in their reply brief.

Similarly, Dangerfield describes the “Maitland Grading System,” states that based on Bonina’s description of the Subject Incident Matsushita performed a “Grade V” “HVLAT” procedure, and concludes that Bonina’s symptoms did not meet the requirements for performing a Grade V procedure. (Dangerfield Decl., ¶¶ 21-26.) Therefore, according to

Dangerfield, “the decision to perform a more aggressive treatment in that the form cervical HVLAT in of itself was not supported by the patent’s [sic] presentation and fell below the standard of care.” (Id. at ¶ 26.) Again, the opinions outlined in paragraphs 21 through 26 of the Dangerfield Declaration do not cite or appear to rely on the records identified by Defendants in their reply or their evidentiary objections. For this reason, the Court OVERRULES Defendants’ objections to paragraphs 23, 24, and 26 of the Dangerfield Declaration.

The Court finds that Bonina has shown that a triable issue of material fact exists as to whether any breach of the applicable standard of care occurred. (See Hanson, supra, 76 Cal.App.4th at pp. 606-607.) Moreover, the Court notes that Defendants’ reply brief does not make any arguments specifically addressing the evidence submitted by Bonina concerning breach, instead making more general admissibility arguments under Garibay.

b. Causation

In “a medical malpractice action, a plaintiff must prove the defendant’s negligence was a cause-in-fact of injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (Jennings), citing Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1502.) “[T]here exists an obvious distinction between a reasonable medical probability and a medical possibility. There can be many, even an infinite number of, possible circumstances which can produce an injury. But a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Simmons v. W. Covina Medical Clinic (1989) 212 Cal.App.3d 696, 702 (Simmons), internal citations and quotation marks omitted.)

The Court finds that Breakthrough and Matsushita have met their initial burden of establishing a lack of causation. According to Breakthrough and Matsushita, there is no causal connection between any negligent act and Bonina’s injuries because Matsushita “appropriately and within the standard of care applied a cervical mobilization to [Bonina] as permitted within her scope of practice. . . . [Bonina] was allegedly injured, which is a known risk to such maneuvers and to which he explicitly consented.” (MPA, pp. 16:26-17:1.) Powers concludes that none of the alleged actions or omissions of Matsushita or Breakthrough proximately caused or contributed to Plaintiff’s injuries based on the “detailed physical therapy documentation and records reviewed” and in light of Powers’s “education, training, and experience.” (Powers Decl., ¶¶ 84-86.)

In turn, Bonina directs the Court to “written confirmation that the manipulation ‘caused the artery to be pushed up against your brain stem causing the symptoms you were experiencing’”; a letter stating that a “large ectatic left vertebral artery was significantly compressing the medulla from anterolaterally”; expert testimony from Dangerfield; and “temporal and circumstantial proof.” (Opposition, pp. 15:24-16:23.)

Defendants argue that Dangerfield’s testimony is conclusory and speculative under Jennings. (Reply, pp. 6:1-7:2.) The Court disagrees. Dangerfield concludes that Matsushita treated Bonina with a “Grade V . . . high-velocity thrust” and states that “a high-velocity rotational thrust applied to the upper cervical spine is a recognized biomechanical mechanism

capable of” producing the types of symptoms confirmed by “Stanford’s neurosurgical evaluation.” (Dangerfield Decl., ¶¶ 21-23, 49.) Dangerfield further states that “Ms. Matsushita’s additional failure to ensure complete cervical muscular relaxation before applying the thrust compounded the biomechanical risk by concentrating greater force on the vertebral arteries and surrounding neurovascular structures.” (Ibid.) Dangerfield further notes that during “twenty-two Breakthrough Physical Therapy visits between March 10 and July 29, 2020, the clinical records contain no documentation of dizziness, syncope, tunnel vision, or any other neurological or neurovascular symptom attributable to the cervical treatment.

This extended, well-documented baseline of neurological stability is inconsistent with the defense’s suggestion of a clinically significant pre-existing neurovascular condition. . . . Mr. Bonina testified that he experienced new dizziness, tunnel vision, and lightheadedness—sensations he had not previously experienced—beginning within days of the Subject Incident . . .” (Id. at ¶ 50, citing Haley Decl., Ex. A at pp. 50:20-51:22.)1 The Court is not persuaded that this opinion is “too conclusory to satisfy the requirements for admissibility.” (Jennings, supra, 114 Cal.App.4th at p. 1119.)

Instead, the Court finds that this evidence shows a triable issue of fact as to whether it was “more likely than not that the injury was a result” of the Subject Incident. (Simmons, supra, 212 Cal.App.3d at p. 702.) Thus, the Court finds that Bonina has shown that a triable issue of material fact exists as to causation.

The Court DENIES Breakthrough and Matsushita’s motion for summary judgment.

C. Summary Adjudication

a. Statute of Limitations

Breakthrough and Matsushita argue that the SAC is barred by the applicable statutes of limitations. (MPA, pp. 17:11-22:2.)

Here, the SAC alleges that the Subject Incident occurred in August or September 2020. (SAC, ¶ 12.) A cause of action for battery has a two-year statute of limitations. (Code Civ. Proc., § 335.1.) A cause of action for medical negligence must be brought three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever comes first. (Code Civ. Proc., § 340.5.) Bonina did not file the initial complaint until April 2024. Bonina argues that the delayed discovery rule has tolled any applicable statute of limitations. (Opposition, pp. 17:19- 21:26.)

“An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,

1 The Court notes that there do not appear to be any issues under Garibay. Breakthrough and Matsushita have not submitted evidentiary objections to paragraph 49 or 50 of the Dangerfield Declaration, and the statements in these paragraphs do not appear to rely on materials that Bonina did not submit to the Court. 12

807.) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. [Citations.]” (Ibid.) “Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Ibid.) “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

The Court finds that Breakthrough and Matsushita have not met their initial burden to demonstrate that the applicable statute of limitations bars the SAC’s first or second causes of action. Defendants submit evidence that (1) at the time Bonina received the “neck manipulation” that allegedly caused the injuries at issue Bonina knew that Matsushita was “not supposed to perform” the neck manipulation and (2) Bonina experienced pain during this procedure. (MPA, p. 18:2-26, citing Separate Statement of Undisputed Facts (“SSUMF”) nos. 86-87; see also Defendants’ Evidence, Ex. 34 at pp. 42:6-9, 44:15-45:3, 45:18-23.)

The Court disagrees that Bonina’s purported knowledge that Matsushita “was not supposed to perform” a “neck manipulation” would start the running of the statute of limitations. (MPA, p. 19:1-3.) As the Court noted in its order on Defendants’ demurrer to the first amended complaint, “Plaintiff’s knowledge that Ms. Matsushita was not authorized to perform the neck manipulation [does not] necessarily defeat[] his allegations that he had no reason to suspect that the symptoms he later suffered were a result of wrongdoing.” (Order re: Demurrer to First Amended Complaint, p. 10:8-11, fn. 3.)

Nor was the applicable statute of limitations necessarily triggered by the fact that Bonina experienced symptoms and injury immediately following Matsushita’s alleged conduct. “In many cases, the harm caused by medical malpractice is not immediately apparent. The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects. Thus, even if a patient is unhappy with his condition, he may not suspect he has been wronged.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899.)

Nor is the Court convinced by the authorities cited by Defendants. (MPA, p. 19:7-8, citing Filosa v. Alagappan (2020) 59 Cal.App.5th 772 (Filosa); Brewer v. Remington (2020) 46 Cal.App.5th 14 (Brewer); Drexler v. Peterson (2016) 4 Cal.App.5th 1181 (Drexler).) Filosa and Drexler are distinguishable. In both cases the Courts of Appeal held that there were triable issues of fact as to whether the statute of limitations barred the plaintiff’s medical negligence cause of action. (Drexler, supra, 4 Cal.App.5th at p. 1184 [“Because there are disputed issues of material fact regarding whether Drexler discovered his injury within the meaning of section 340.5 more than one year before he filed this action, we reverse.”].)

For instance, in Filosa, the Court of Appeal reversed and held that the defendants did not carry their initial burden on summary judgment to establish a statute of limitations defense in a case involving a “latent, progressive” undiagnosed condition. (Filosa, supra, 59 Cal.App.5th at pp. 779-785; see also id. at p. 784 [“Defendants point to Filosa’s testimony about increasingly severe headaches but fail to establish, as a matter of law, that these would have prompted a person of reasonable diligence to discover the brain tumor.”].)

Even if Defendants had met their initial burden, the Court would have found that Bonina has shown that a triable issue of fact exists as to whether the statute of limitations bars the causes of action alleged in the SAC. In Brewer, the Court of Appeal held that “whether 13

plaintiffs should have linked the persistence of [the injured plaintiff’s] symptoms to wrongdoing by [the defendant] is a factual question—there is evidence from which it can be inferred plaintiffs reasonably did not link [the injured plaintiff’s] symptoms to any wrongdoing by [the defendant].” (Brewer, supra, 46 Cal.App.5th at p. 29.) Here, there is evidence from which it could be inferred that Bonina did not link any symptoms he experienced to any alleged wrongdoing by Breakthrough or Matsushita.

Bonina returned to Breakthrough repeatedly following the Subject Incident between 2022 and 2023. (See Defendants’ Evidence, Ex. 33.) Bonina submits evidence that in September and October 2023, Steinberg informed Bonina that the symptoms he was experiencing were attributable to the Subject Incident and a staff nurse, Jezica Teagle, stated that “[w]hen you had manipulation of your neck, it caused the artery to be pushed up against your brain stem causing the symptoms you were experiencing.” (Haley Decl., Exs.

H, I; see also ex. A at p. 82:9-20.) Bonina filed the initial complaint in this matter in April 2024, within one year of September 2023.

The Court DENIES Breakthrough and Matsushita’s motion for summary adjudication on statute of limitations grounds.

b. Second Cause of Action

The SAC’s second cause of action alleges battery. (SAC, ¶¶ 48-54.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669 (So), internal citations omitted.) Breakthrough and Matsushita argue that there are no triable issues of fact as to each of these elements.

i. Consent

Breakthrough and Matsushita argue that there is no triable issue of material fact that Bonina consented to the treatment he received from Matsushita. (MPA, pp. 22:28-23:20, citing SSUMF nos. 4, 5, 12, 17, 20, 24, 28, 32, 36, 38.) The Court finds that Defendants have met their burden of establishing consent. Bonina appears to have signed “an informed consent for physical therapy” form with Breakthrough and also “verbally consented to physical therapy.” (Defendants’ Evidence, Exs. 4, 5.)

In turn, the Court finds that Bonina has shown that a triable issue of fact exists as to consent. Battery is an intentional tort that “occurs when a doctor performs a procedure without obtaining any consent. [Citations.]” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324.) “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery. [Citations.]” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 (Cobbs).) Here, Bonina submits to the Court evidence that Bonina did not consent to the procedure performed by Matsushita. (Dangerfield Decl. ¶¶ 23, 46.)2

2 The court OVERRULES Breakthrough and Matsushita’s objection to paragraph 46 of the Dangerfield Declaration. Again, it does not appear that this paragraph relies on the materials 14

ii. Intent to Harm

Breakthrough and Matsushita argue that Bonina must prove that they intended to harm or offend Bonina. (MPA, p. 23:21-28.) According to Defendants, there “is no evidence in any medical records or testimony that Defendants ever intended to harm or offend Mr. Bonina at any time.” (Ibid., citing SSUMF, nos. 3-66.) “[W]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544, internal citation and quotation marks omitted.) Given this, and the Court’s discussion of consent above, the Court is not persuaded by Defendants’ “intent” argument.

iii. Reasonable Person

Breakthrough and Matsushita argue that Bonina must prove that a reasonable person in Bonina’s situation would have been offended by their conduct. (MPA, p. 24:5-6.) Beyond citing California Civil Jury Instruction 1300 for the general proposition that a plaintiff must prove this, Defendants cite no legal authority or standard outlining what constitutes “reasonableness” or “offensiveness.” Instead, Defendants argue that Bonina testified that he did not experience any pain or discomfort during the Subject Incident and that “any such injuries sustained by Mr. Bonina were the result of an unfortunate manifestation of the known risks of treatment.” (Id. at p. 24:7-14, citing SSUMF nos. 98, 99.)

The Court finds that Breakthrough and Matsushita have not met their initial burden of demonstrating that a “reasonable” person would not have found the conduct at issue “offensive.” A “medical battery occurs where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained.” (So, supra, 212 Cal.App.4th at p. 669, internal citation and quotation marks omitted.) The very act of performing an unconsented-to procedure would be “offensive” conduct to a “reasonable” person—in other words, the Court struggles to see how a reasonable person would not find “offensive” a medical procedure that they did not consent to.

iv. Causation

As to causation, Breakthrough and Matsushita incorporate causation arguments that they made in support of their motion for summary judgment. (MPA, p. 24:19-20.) Bonina incorporates the arguments he made in response. (Opposition, p. 25:17-22.) Having found that Bonina has created a triable issue of fact as to causation, the Court denies summary adjudication on causation grounds as to the SAC’s second cause of action.

The Court DENIES Breakthrough and Matsushita’s motion for summary adjudication as to the SAC’s second cause of action.

D. Evidentiary Objections

Defendants contend that Bonina did not submit to the court. Moreover, Defendants do not address Bonina’s consent arguments in their reply brief. 15

Breakthrough and Matsushita submit thirty-two objections, all to the Dangerfield Declaration. (Defendants’ Objections to Evidence, nos. 1-32.) The Court has addressed Defendants’ objections to paragraphs 23, 24, 26, and 46 of the Dangerfield Declaration. The Court declines to consider the remaining objections, which are not material to the outcome of the motion. (Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

E. Bonina’s Request Under Code of Civil Procedure Section 437c, subd. (h)

If the Court is not prepared to deny Defendants’ motion, Bonina requests that it continue the motion pursuant to Code of Civil Procedure section 437c, subdivision (h). (Declaration of Michael C. Haley in Support of Plaintiff’s Request for a Continuance, ¶ 2; Opposition, pp. 25:23-26:21.) Given the Court’s discussion above, Bonina’s request is moot.

F.

Conclusion

The Court DENIES Breakthrough and Matsushita’s motion for summary judgment. The Court DENIES Breakthrough and Matsushita’s motion for summary adjudication.

The Court will prepare the final order.

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