Jameson Moore et al vs Target Corporation et al

Case Number

22CV01230

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, in part and as to Kone Inc., only, with leave to amend.

(3) Plaintiffs shall file and serve their second amended complaint on or before January 19, 2024.

Background:

Plaintiffs Derek Moore, M.D. (Derek), Jameson Moore (Jameson), by and through his guardian ad litem Katy Kelly, M.D., and Jackson Moore, a minor by and through his guardian ad litem Derek (collectively, plaintiffs), filed a complaint for damages on April 1, 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 3, 2022, plaintiffs filed a first amended complaint (the FAC) against Target and Mitsubishi alleging four causes of action notwithstanding those identified in the caption of the FAC: (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 plaintiffs’ operative FAC:

On November 10, 2021, plaintiffs were customers at a Target store located at 3891 State Street in Santa Barbara, California. Derek is the father of Jameson and Jackson who are natural brothers. While plaintiffs were descending an escalator at the Target store, Jameson lost part of his right little finger when an amputation occurred. Derek and Jackson witnessed the amputation.

Target retained Mitsubishi to maintain the escalator. Both Target and Mitsubishi were responsible for the safe operation, maintenance, and repair of the escalator.

An identical incident occurred at the same Target store on June 21, 2021, when four-year-old India Kenan, who is not a party to this action, was descending the same escalator with her father, Benjamin Kenan, when the small finger of India Kenan’s right hand was amputated. Target and Mitsubishi received notice and knowledge of the defective nature of the escalator after India Kenan suffered injury as described above on June 21, 2021.

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. 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 and did not warn the public or Target customers that the escalator was dangerous.

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 22CV01182 entitled India Kenan, et al. vs. Target Corporation (the Kenan action) as related to the present action.

On June 15, 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 July 19, 2023, the court entered an order in the Kenan action, ordering that action related to the present action.

On October 2, 2023, Kone filed a demurrer to the 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 plaintiffs’ claim for punitive damages, and all references to punitive damages, alleged in the FAC on the grounds that the FAC fails to plead conduct sufficient to support a claim for punitive damages.

Plaintiffs have not filed an opposition or other response to the demurrer or motion to strike of Kone.

Analysis:

(1) Kone’s Demurrer to the FAC:

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“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.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Id. at p. 645.)

In the fourth claim for relief entitled fraudulent concealment, plaintiffs allege that “defendants” knew the subject escalator was defective and had an unreasonably dangerous propensity to amputate human members and intentionally concealed or failed to disclose to plaintiffs and the general public the defective nature of the subject elevator. (FAC, ¶¶ 57-60 & 70.) “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ [Citation.]” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

To the extent a fiduciary relationship is not alleged by the plaintiff, “ ‘a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; [or] (3) the defendant actively conceals discovery from the plaintiff.” [Citation.]’” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132.)

Wholly absent from the FAC are any specific allegations demonstrating that Kone had a duty to disclose material facts or the circumstances under which Kone knew of but intentionally and fraudulently concealed material facts regarding the defective nature of the subject elevator, among other things. The general and conclusory allegations of the FAC are wholly insufficient to state a cause of action for fraudulent concealment against Kone. Therefore, the court will sustain the demurrer with leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411 [denial of leave to amend is an abuse of discretion unless the complaint is incapable of amendment].)

(2) Kone’s Motion To Strike:

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Kone requests an order striking references to and claims for punitive damages as alleged in the FAC. The court notes that the FAC includes a claim for punitive damages against Mitsubishi and Target. Therefore, the allegations of or references to punitive damages are essential to claims and matters alleged against Mitsubishi and Target. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [it is error to strike portions of complaint that are essential to a cause of action].)

Notwithstanding that Kone requests an order striking matters essential to claims against other named defendants as further discussed above, to survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) In addition, the facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

Based on the allegations of the FAC, it appears that plaintiffs’ claim for punitive damages against Kone is based on the fraudulent concealment claim for relief alleged against Kone in the FAC. Plaintiffs have not filed an opposition demonstrating which allegations, if any, apart from those asserted in connection with plaintiffs’ fraud claim support a claim for punitive damages. In addition, and as further discussed above, the allegations of the FAC as to Kone are conclusory and do not by themselves support a claim for punitive damages. As the court will sustain the demurrer to the fraudulent concealment cause of action and for all reasons discussed above, the court will also grant the motion to strike as to allegations of punitive damages against Kone, with leave to amend.