India Kenan et al vs Target Corporation

Case Number

22CV01182

Case Type

Hearing Date / Time

Fri, 01/12/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons set forth herein, the demurrer of defendant Kone Inc., to plaintiffs’ first amended complaint is sustained with leave to amend.

(2) For all reasons set forth herein, the motion of defendant Kone Inc., to strike plaintiffs’ punitive damages claim is granted as to Kone Inc., only, with leave to amend.

(3) Plaintiffs shall file and serve their second amended complaint, in the form attached to plaintiffs’ non-oppositions to the demurrer and motion to strike of Kone, on or before January 19, 2024.

Background:

Plaintiffs Benjamin Kenan (Benjamin) and India Kenan (India), by and through her guardian ad litem Benjamin (collectively, plaintiffs), filed a complaint for damages on March 25, 2022, against Target Corporation (Target) and Mitsubishi Electric, US, Inc. (Mitsubishi). (Note: To avoid confusion due to common familial last names, the court will refer to plaintiffs individually by their first names. No disrespect is intended.) Notwithstanding the causes of action identified in its caption, the complaint alleges four causes of action: (1) negligence; (2) strict products liability-design defect; (3) strict products liability-failure to warn; and (4) fraudulent concealment.

On August 5, 2022, plaintiffs filed a first amended complaint (the FAC) against Target and Mitsubishi. The caption of the FAC identifies six causes of action: (1) negligence; (2) strict products liability-design defect (against Mitsubishi only); (3) strict products liability-failure to warn (against Mitsubishi only); (4) breach of implied warranty of merchantability; (5) fraudulent concealment; and (6) claim for punitive damages. Notwithstanding its caption, in the FAC plaintiffs allege four causes of action: (1) negligence; (2) strict products liability-design defect (against Mitsubishi only); (3) strict products liability-failure to warn (against Mitsubishi only); and (4) fraudulent concealment. As alleged in the FAC:

On June 21, 2021, India, who was four years old at that time, was descending an escalator with her father, Benjamin, in a Target store located at 3891 State Street in Santa Barbara, California. While India and Benjamin were descending the escalator, the small finger of India’s right hand was amputated by the escalator. Benjamin witnessed the amputation. An identical incident occurred at the same Target store on November 21, 2021, when nonparty Jameson Moore, also a patron of the same subject Target store, had his finger amputated by the same escalator.

Target retained Mitsubishi to maintain the escalator. Both Target and Mitsubishi were responsible for the safe operation, maintenance, and repair of the escalator. There was an opening in the skirt or apron of the escalator large enough for human fingers and other body parts to get caught and amputated. Target and Mitsubishi had actual notice that the escalator was defective and exposed customers and their children to amputations and other injuries. Though the escalator could be repaired in less than one day, Target and Mitsubishi failed to shut down, repair, modify, or fix the escalator before other customers could use it. Target and Mitsubishi also concealed the defective condition of the escalator from plaintiffs and the general public.

On September 12, 2022, Target and Mitsubishi each filed their respective answers to the FAC, generally denying its allegations and asserting affirmative defenses.

On May 16, 2023, plaintiffs filed a notice of related case, identifying case number 22CV01230 entitled Jameson Moore, et al. vs Target Corporation, et al. (the Moore action) as related to the present action. On July 19, 2023, the court order the present action related to the Moore action.

On August 22, 2023, plaintiffs filed an amendment to the FAC substituting Kone Inc. (Kone) for fictitiously named defendant Doe 6, where it appears on the FAC.

On October 2, 2023, Kone filed a demurrer to the fifth cause of action for fraudulent concealment alleged in the FAC on the grounds that the FAC fails to allege facts sufficient to constitute a cause of action and is uncertain.

Also on October 2, 2023, Kone filed a motion to strike the cause of action for punitive damages and all references to punitive damages alleged in the FAC (the motion to strike) on the grounds that the FAC fails to plead conduct sufficient to support a claim for punitive damages.

On December 21, 2023, plaintiffs filed a “non-opposition” to the demurrer of Kone, and a “non-opposition” to the motion to strike, requesting leave to amend to clarify the allegations and causes of action asserted in the FAC.

Analysis:

In the non-oppositions to the demurrer and motion to strike, plaintiffs “concede punitive damages are not available” against Kone, assert that plaintiffs do not oppose Kone’s demurrer to the fourth cause of action for fraudulent concealment or Kone’s motion to strike plaintiffs’ claim for punitive damages, and state that plaintiffs intended but inadvertently failed to plead a cause of action for breach of implied warranty of merchantability rather than a cause of action for fraudulent concealment as reflected in the caption of the FAC. (Pl. Non-Opp. to Demurrer at p. 2, ll. 7-11, p. 3, ll. 4-10; Pl. Non-Opposition to Motion to Strike at p. 2, ll. 8-12 & p. 3, ll. 5-11.)

Plaintiffs attach a copy of a proposed second amended complaint (the SAC) to each of their non-oppositions to the demurrer and motion to strike. (See Pl. Non-Opps., Exhs. 2.) The proposed SAC alleges four causes of action: (1) negligence (against Target, Kone, and Mitsubishi); (2) strict products liability-design defect (against Mitsubishi and Kone); (3) strict products liability-failure to warn (against Mitsubishi and Kone); and (4) breach of implied warranty of merchantability (against Target, Mitsubishi, and Kone). In the proposed SAC, plaintiffs do not allege a cause of action for fraudulent concealment and assert a demand for punitive damages against Target and Mitsubishi only.

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) “Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131; see also People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506 [filing of an amended complaint renders demurrer moot].)

Though court records reflect that plaintiffs did not file the SAC, the court will construe plaintiffs’ assertions in the non-oppositions to the demurrer and motion to strike, and the submission of the proposed SAC, as plaintiffs’ recognition that the demurrer and motion to strike of Kone have merit. (See Code Civ. Proc., § 128, subds. (a)(3) & (a)(8); Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1378 [discussing court’s inherent powers to fashion procedures to ensure the orderly and efficient conduct of the court’s business].) Therefore, the court will sustain the demurrer and grant the motion to strike as to Kone only, with leave to amend, and will consider the SAC as the proposed amended pleading. This ruling is without prejudice to a future pleading challenge to the SAC.

The court will further order plaintiffs to file and serve the SAC, in the form attached to plaintiffs’ non-oppositions, on or before January 19, 2024.