Jameson Moore, et al. v. Target Corporation, et al.

Case Number

22CV01230

Case Type

Hearing Date / Time

Fri, 03/22/2024 - 10:00

Nature of Proceedings

(1) Case Number 22CV01182: Motion of Plaintiffs India Kenan for Consolidation; and, (2) Case Number 22CV01230: Motion of Plaintiffs Jameson Moore for Consolidation

Tentative Ruling

India Kenan, et al. v. Target Corporation, et al.

Case No. 22CV01182

Jameson Moore, et al. v. Target Corporation, et al.

Case No. 22CV01230

Hearing Date: March 22, 2024                                   

HEARING:              (1) Case Number 22CV01182: Motion Of Plaintiffs India Kenan, a minor by and through her guardian ad litem Benjamin Kenan, and Benjamin Kenan’s For Consolidation

                                    (2) Case Number 22CV01230: Motion Of Plaintiffs Jameson Moore, a minor by and through his guardian ad litem Katy Kelly, M.D., Jackson Moore, a minor by and through his guardian ad litem Derek Moore, M.D., and Derek Moore, M.D., For Consolidation

                                                           

ATTORNEYS:        For Plaintiffs India Kenan, a minor by and through her guardian ad litem Benjamin Kenan, and Benjamin Kenan, and for plaintiffs Jameson Moore, a minor by and through his guardian ad litem Katy Kelly, M.D., Jackson Moore, a minor by and through his guardian ad litem Derek Moore, M.D., and Derek Moore, M.D.: Stephen McElroy, Josh Dowell, Ryan Davidson, McElroy Parris Trial Lawyers, Nicholas C. Rowley, Trial Lawyers For Justice, Robert J. Stoll, Jr., Robert J. Stoll, III, Stoll, Nussbaum & Polakov

For Defendants Mitsubishi Electric, US, Inc. and Target Corporation: Guy R. Gruppie, Kelsey Maxwell, Matthew E. Voss, Murchison & Cumming, LLP

For Defendant Kone Inc: Timothy S. Noon, Julia M. Dalzell, Noon & Associates, PC

TENTATIVE RULING:

(1) Case number 22CV01182: For all reasons discussed herein, the motion of plaintiffs India Kenan, a minor by and through her guardian ad litem Benjamin Kenan, and Benjamin Kenan, for consolidation is granted, in part and without prejudice.

(2) Case number 22CV01230: For all reasons discussed herein, the motion of plaintiffs Jameson Moore, a minor by and through his guardian ad litem Katy Kelly, M.D., Jackson Moore, a minor by and through his guardian ad litem Derek Moore, M.D., and Derek Moore, M.D., for consolidation is granted, in part and without prejudice.

(3) For all reasons discussed herein, case number 22CV01182 entitled India Kenan, et al. v. Target Corporation, et al. shall be consolidated with case number 22CV01230 entitled Jameson Moore, et al. v. Target Corporation, et al. for all discovery proceedings.

Background:

In the interests of judicial efficiency, the court will address together the motion for consolidation filed by plaintiffs Benjamin Kenan (Benjamin) and India Kenan (India), by and through her guardian ad litem Benjamin, in case number 22CV01182 (the Kenan action), and the motion for consolidation filed by plaintiffs Derek Moore, M.D. (Derek), Jameson Moore (Jameson), by and through his guardian ad litem Katy Kelly, M.D., and Jackson Moore (Jackson), a minor by and through his guardian ad litem Derek, in case number 22CV01230 (the Moore action). (Note: To Due to common familial last names, the court will refer to plaintiffs in each matter individually by their first names. No disrespect is intended.)

(1) Procedural History

On March 25, 2022, Benjamin and India (collectively, the Kenan plaintiffs) filed in the Kenan action a complaint against defendants Target Corporation (Target) and Mitsubishi Electric, US, Inc. (Mitsubishi) alleging four causes of action: (1) negligence; (2) strict products liability-design defect; (3) strict products liability-failure to warn; and (4) fraudulent concealment.

On April 1, 2022, Derek, Jameson, and Jackson (collectively, the Moore plaintiffs), filed in the Moore action a complaint against Target and Mitsubishi alleging the same four causes of action as those alleged in the Kenan action: (1) negligence; (2) strict products liability-design defect; (3) strict products liability-failure to warn; and (4) fraudulent concealment.

On August 3, 2022, the Moore plaintiffs filed a first amended complaint (the Moore FAC) alleging 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.

On August 5, 2022, the Kenan plaintiffs filed a first amended complaint (the Kenan FAC) alleging the same 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.

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

On May 16, 2023, the Kenan plaintiffs filed in the Kenan action and the Moore plaintiffs filed in the Moore action a notice of related case identifying the Moore action as related to the Kenan action. On July 19, 2023, the court ordered the Kenan action related to the Moore action.

On June 15, 2023, the Moore plaintiffs filed an amendment to the Moore FAC substituting Kone Inc. (Kone) for fictitiously named defendant Doe 6.

On August 22, 2023, the Kenan plaintiffs also filed an amendment to the Keenan FAC substituting Kone for fictitiously named defendant Doe 6.

On October 2, 2023, Kone filed in the Kenan action a demurrer to the fifth cause of action alleged in the Kenan FAC and a motion to strike the cause of action for punitive damages alleged in the Kenan FAC. On the same date, Kone filed in the Moore action an effectively identical demurrer to the fifth cause of action alleged in the Moore FAC, and an effectively identical motion to strike the claim for punitive damages alleged in the Moore FAC.

On December 21, 2023, the Kenan plaintiffs filed in the Kenan action notices of non-opposition to the demurrer and the motion to strike of Kone, requesting leave to amend to clarify allegations and causes of action asserted in the Kenan FAC. With the notices of non-opposition, the Kenan plaintiffs submitted a proposed second amended complaint (the Kenan SAC).

The Moore plaintiffs did not file an opposition or other response to the demurrer or motion to strike filed by Kone in the Moore action.

On January 12, 2024, the court issued in the Keenan action its Minute Order sustaining the demurrer and granting the motion to strike of Kone with leave to amend, and ordering the Kenan plaintiffs to file the Kenan SAC on or before January 19, 2024.

Also on January 12, 2024, the court issued its Minute Order in the Moore action sustaining the demurrer and granting the motion to strike of Kone, with leave to amend. The court ordered the Moore plaintiffs to file and serve any second amended complaint on or before January 19, 2024.

On February 9, 2024, the Kenan plaintiffs filed in the Kenan action the Kenan SAC alleging four causes of action (1) negligence (against Target, Mitsubishi, and Kone); (2) strict product liability – design defect (against Kone and Mitsubishi); (3) strict product liability – failure to warn (against Kone and Mitsubishi); and (4) breach of the implied warranty of merchantability (against Target, Mitsubishi, and Kone).

Also on February 9, 2024, the Moore plaintiffs filed in the Moore action a second amended complaint (the Moore SAC) alleging four causes of action effectively identical to those alleged in the Kenan SAC: (1) negligence (against Target, Mitsubishi, and Kone); (2) strict product liability – design defect (against Kone and Mitsubishi); (3) strict product liability – failure to warn (against Kone and Mitsubishi); and (4) breach of the implied warranty of merchantability (against Target, Mitsubishi, and Kone).

As alleged in the Kenan SAC:

On June 21, 2021, India, who was four years old at the time, was descending an escalator with her father, Benjamin, in a Target store located at 3891 State Street in Santa Barbara, California (the store). (Kenan SAC, ¶¶ 6, 8.) While India and Benjamin were descending the escalator, the pinky finger of India’s right hand was amputated by the escalator. (Ibid.) Benjamin witnessed the amputation. (Id. at ¶ 7.) An identical incident occurred at the same store on November 21, 2021, when Jameson suffered an amputation of his finger caused by the same escalator. (Id. at ¶¶ 8.)

Target retained Mitsubishi to maintain the allegedly defective escalator. (Kenan SAC, ¶ 9.) Both Target and Mitsubishi were responsible for the safe operation, maintenance, and repair of the escalator. (Ibid.) 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. (Id. at ¶ 14.) Target, Mitsubishi, and Kone (collectively, defendants) had actual notice that the escalator was defective and was exposing customers and their children to amputations and other injuries. (Id. at ¶¶ 10, 15.) 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. (Id. at ¶¶ 11-13 & 17.) Target and Mitsubishi also failed to implement safety measures or to warn the public of the hidden dangers of the escalator. (Id. at ¶¶ 12-13, 16, 17.)

As alleged in the Moore SAC:

Derek is the father of Jameson and Jackson who are natural brothers. (Moore SAC, ¶ 25.) On November 10, 2021, Derek, Jameson, and Jackson (collectively, the Moore plaintiffs) were customers at the store. (Id. at ¶ 6.) While the Moore plaintiffs were descending an escalator at the store, an amputation occurred causing Jameson to lose part of his right little finger. (Id. at ¶¶ 6.) The remaining allegations of the Moore SAC are identical or effectively identical to those asserted in the Kenan SAC.

On March 12, 2024, Kone filed its answer to the Kenan SAC generally denying its allegations and asserting thirty affirmative defenses, and filed its answer to the Moore SAC also generally denying its allegations and asserting thirty affirmative defenses.

The court has no record of Target or Mitsubishi having filed an answer to the Kenan SAC or the Moore SAC.

(2) The Motions to Consolidate

The Kenan plaintiffs and the Moore plaintiffs have filed in the Kenan action and the Moore action (collectively, the actions) motions for an order consolidating the actions for all purposes or, alternatively, for discovery and trial (collectively, the motions to consolidate). (Note: For ease of reference, the court will refer at times to the Kenan plaintiffs and the Moore plaintiffs, collectively, as plaintiffs.) Plaintiffs assert that the claims alleged in the actions each involve young children suffering a partial amputation of the right fifth pinkie finger due to the same condition on the same escalator in the same store on dates five months apart. Plaintiffs also assert that the parties are each represented by the same counsel and that experts and witnesses to each incident will likely be the same. For these reasons, plaintiffs argue, the claims alleged in each action are the same or effectively the same, and that consolidation will benefit the court and all parties by avoiding duplication of resources across both matters.

Target and Mitsubishi (collectively, the Target defendants) have filed joint oppositions to the motions to consolidate filed by plaintiffs. Kone has also filed oppositions to the motions.

Analysis:

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., § 1048, subd. (a).) “Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147 [also noting that “[c]onsolidation under Code of Civil Procedure section 1048 is permissive, and it is for the trial court to determine whether the consolidation is for all purposes or for trial only”].)

Procedurally, a notice of motion to consolidate must “list all named parties in each case, the names of those who have appeared, and the names of all attorneys of record”, must include the captions of each case sought to be consolidated with the lowest numbered case shown first, and be filed in each case for which consolidation is sought. (Cal. Rules of Court, rule 3.350(a)(1)(A)-(C).) Though the memorandum, declarations, and other supporting papers are required to be filed only in the lowest numbered case, the motion must be served on all attorneys of record in each case to be consolidated and include a proof of service. ( Cal. Rules of Court, rule 3.350(a)(2)(A)-(C).)

Neither the Target defendants nor Kone challenge the motions filed by plaintiffs on procedural grounds. Moreover, the court finds that the notices and the motions to consolidate substantially comply with the requirements of California Rules of Court, rule 3.350(a) and are procedurally appropriate.

In the moving memorandum, plaintiffs assert in a conclusory manner and by relying primarily on the allegations of the Kenan SAC and the Moore SAC, that the actions each involve injuries which are effectively the same which involve similar claims for bystander emotional distress. Though plaintiffs provide few details apart from general assertions and allegations regarding the nature of the claims at issue in each of the actions, available information indicates that there are or may be threshold predominating and significant questions of law and fact regarding, among other things, whether the escalator located in the store was defective, whether any defects present in the escalator caused the injuries alleged by plaintiffs, and whether Target, Mitsubishi, or Kone possessed knowledge of any defects in the escalator. Kone appears to generally acknowledges these potential common issues. (See Dalzell Decl., ¶ 12 [addressing potential overlap in expert testimony].)

In exercising its broad discretion to determine the motions, the court also considers whether consolidation of the actions will prejudice any substantial right of the Target defendants or Kone. (State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432; see also Code Civ. Proc., § 1048, subd. (b).)

Target defendants assert that complete consolidation is inappropriate because plaintiffs are different persons. The Target defendants also assert that each incident occurred on different dates and on separate areas of the escalator at issue, that each minor plaintiff was treated by different physicians, and that the witnesses to each incident are different. For these reasons, Target defendants contend that the same issues are not present in each action and that a joint trial would not result in any greater economy of convenience. The Target defendants also assert in a general and conclusory manner that consolidation of the actions would result in prejudice to the Target defendants.

To support their contentions, the Target defendants submit the declaration of their counsel, Matthew E. Voss. Attached to the Voss declaration are copies of Target’s responses to plaintiffs’ form interrogatories, set one, and plaintiffs’ separate responses to the Target defendants’ form interrogatories set one. (Voss Decl., ¶¶ 4, 5 & Exhs. B & C.) Counsel also attaches excerpts from the deposition of Robert Phelan (Phelan), who the Target defendants identify as the person most knowledgeable at Mitsubishi. (Id. at ¶ 6 & Exh. D.)

Though the Voss declaration includes general citations to the testimony of Phelan purporting to establish the manner in which the injuries at issue occurred, it is not clear to the court which specific excerpts establish the location on the escalator where India’s injuries occurred or the location where Jameson’s injuries occurred. In addition, and notwithstanding that plaintiffs have not asserted objections to the evidence presented by means of the Phelan deposition transcript, the court questions the admissibility of this evidence for the present purpose for which it is offered. (See, e.g., Code Civ. Proc., § 2025.620, subd. (b); LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 947-949.)

In response to the Target defendants’ assertions regarding the location of the escalator at which each injury at issue occurred, plaintiffs’ offer the declaration of their counsel who declares that confidential security footage demonstrates that the injuries sustained by India and Jameson each occurred at the top of the escalator at the store. (McElroy Decl., ¶¶ 2-4.) This information tends to indicate that, even if the court were to assume without deciding that the specific location on the escalator where each of the injuries occurred is different, this fact would not necessarily establish that any alleged defects in the escalator are different or that different defects or conditions caused or contributed to plaintiffs’ injuries.

Though for present purposes the Target defendants have not sufficiently or conclusively demonstrated that cause of the injuries sustained by India and Jameson are not common with respect to any purported defects in the escalator, plaintiffs’ discovery responses establish that India was examined or treated for her injuries by various medical providers who are different from the medical providers who examined or treated Jameson. (Voss Decl., Exh. C at PDF pp. 133-135, 154-155, 175-176 & 196-197.) In addition, information offered by the Target defendants shows that Target has identified different witnesses to the incident at issue in the Kenan action and the incident at issue in the Moore action. (Voss Decl., Exh. B at PDF pp. 55-56 & 93-94.)

In its opposition, Kone asserts that while consolidation for discovery purposes could result in greater efficiency, streamlined costs, and the avoidance of duplication, consolidation for trial purposes would cause delay, confusion, and prejudice. (Kone Opp. at pp. 5, ll. 18-19 & 6, ll. 20-21 [effectively asserting that consolidation for discovery purposes may be appropriate].) To support these arguments, Kone submits the declaration of its counsel, Julia M. Dalzell.

Attached to the Dalzell declaration are excerpts of the deposition testimony of Phelan also purporting to establish that the injuries sustained by India and Jameson occurred at different locations on the escalator and involved different mechanical parts and areas of the escalator. (Dalzell Decl., ¶ 6 & Exh. 1.) For similar reasons discussed above, the testimony of Phelan does not conclusively or necessarily demonstrate that the alleged defects at issue are different or not common notwithstanding the location at which each injury occurred.

In addition, apart from counsel’s description of the testimony of the person most knowledgeable of Target, Kone offers insufficient evidence or information to permit the court to determine whether the mechanics of the injuries at issue were different, or that there exists a different alleged defect or malfunction which caused or contributed to India and Jameson’s injuries. (See, e.g., Dalzell Decl., ¶ 6 [offering conclusory and unsupported information regarding the substance of deposition testimony of Target’s person most knowledgeable].)

Kone further asserts in a conclusory manner that the presentation of emotional distress claims by the Kenan plaintiffs and the Moore plaintiffs will result in jury confusion or bias. The abstract arguments offered by Kone, without more, are too conclusory to permit the court at this stage of the proceedings to determine whether and to what extent Kone or any other party may suffer prejudice should the actions be consolidated for trial. Moreover, at the time of trial, the court may take measures to address any concerns regarding jury bias or confusion. (See, e.g., Shivers v. Van Loben Sels (1952) 109 Cal.App.2d 286, 290 [“principles of law applicable to each of the consolidated cases could well have been stated in a few, simple, readily understandable instructions” such that court did not find jury was misled because case was consolidated]; Pilliod v. Monsanto Company (2021) 67 Cal.App.5th 591, 626 [also noting that the court presumes the jury follows its instructions absent contrary information in the record].)
 

Kone further contends that plaintiffs’ discovery responses show that India and Jameson did not suffer from the same injury and did not seek treatment from identical facilities. For this reason, Kone argues that the documents, witnesses, treaters, and expert evaluation on damages and future treatments will be significantly different. Kone offers the same evidence presented by the Target defendants further discussed above to establish that India and Jameson were evaluated and treated by different medical providers. (See Dalzell Decl., ¶¶ 8, 9 & Exhs. 2 & 3.) Though the evidence shows that India and Jameson were treated by different medical providers, available information and evidence tends to show that the injuries were substantially the same or similar. There exists insufficient information to permit the court to conclude otherwise.

For all reasons discussed above, the available information and evidence establishes that there exists sufficient overlap in common factual and legal issues between the actions including with respect to the nature of plaintiffs’ injuries, any purported defects in the subject elevator that existed on the dates of the injuries were sustained, the extent to which any purported defects caused or contributed to the conditions or injuries alleged by plaintiffs, and whether the Target defendants or Kone were aware of any such conditions or defects, among other issues. This overlap may also impact discovery by creating the potential for inconsistent outcomes regarding any common issues of fact and law as further discussed above.

Moreover, information demonstrating that the witnesses to each incident, including plaintiffs’ treating physicians, are or may be different indicates that consolidation of the Kenan action and the Moore action will tend to avoid unnecessary costs or delay considering the overlap in the legal and factual basis for the claims alleged by the Kenan plaintiffs and the Moore plaintiffs.

Though the court is presently inclined to order these matters consolidated for trial, the arguments offered by the parties regarding prejudice are too abstract to permit the court to determine whether consolidation for trial is appropriate at this stage of the proceedings. Though the court is unable to presently determine whether consolidation may prejudice any substantial rights of a party, as there exists common factual and legal questions and to avoid inconsistent results and promote the efficient use of judicial resources, the court will grant the motion, in part, and order that the actions be consolidated for all discovery proceedings. The court’s ruling herein is without prejudice to a future procedurally and substantively appropriate motion to consolidate the actions for trial should future developments demonstrate that such consolidation would be appropriate.