Jameson Moore et al vs Target Corporation et al

Case Number

22CV01230

Case Type

Hearing Date / Time

Fri, 06/14/2024 - 10:00

Nature of Proceedings

Motion to Strike

Tentative Ruling

For all reasons set forth herein, the motion of defendants Mitsubishi Electric US, Inc. and Target Corporation to strike plaintiffs’ punitive damages claim is granted with leave to amend.

Plaintiffs shall file and serve their third amended complaint on or before July 5, 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 their original 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 (FAC) against Target and Mitsubishi alleging four causes of action for: (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 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 failed to allege facts sufficient to constitute a cause of action and was 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 failed to plead conduct sufficient to support a claim for punitive damages.

On January 12, 2024, the court sustained Kone’s demurrer, with leave to amend, and granted Kone’s motion to strike, with leave to amend.

On February 9, 2024, plaintiffs filed their second amended complaint (SAC), which is the operative complaint. The SAC contains causes of action for: (1) General Negligence; (2) Strict Products Liability - Design Defect; (3) Strict Products Liability - Failure to Warn; and (4) Breach of Implied Warranty of Merchantability. The allegations of the SAC are substantially the same as the allegations of the FAC.

As alleged in plaintiffs’ SAC:

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 March 22, 2024, the court ordered the Kenan action consolidated with this matter for discovery purposes.

On April 2, 2024, Target and Mitsubishi filed the present motion to strike punitive damages portions of the SAC on the grounds that plaintiffs have failed to allege facts sufficient for recovery of punitive damages.

Plaintiffs oppose the motion.

Analysis:

“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).)

Mitsubishi and Target seek an order striking references to and claims for punitive damages as alleged in the SAC. Specifically, they move to strike: (1) Paragraph 35, page 7, lines 23-25; (2) Paragraph 44, page 8, lines 26-27; and (3) Paragraph 54, page 10, lines 4-5.

The paragraphs sought to be stricken are included in the causes of action for (1) Negligence against all defendants; (2) Strict Products Liability - Design Defect against Kone and Mitsubishi; and (3) Strict Product Liability - Failure to Warn against Kone and Mitsubishi.

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).)

“While punitive damages may be recovered in a products liability case [citation] and in a negligence action [citation], in order to justify an award of punitive damages on the basis of a conscious disregard of the safety of others, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of its conduct and that it wilfully and deliberately failed to avoid those consequences. [Citation.]” (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395.)

“[A] punitive damages award may properly be entered in a strict products liability suit. [Citations.]” (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 475, fn. 4.)

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant’s conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  Punitive damages may not be pleaded generally. (Ibid.)” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

Allegations of “knowledge” and “intent” are allegations of facts, which are sufficiently alleged through use of the term. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“Allegations of the defendant’s knowledge and intent to deceive may use conclusive language.”].)

As to seeking punitive damages from an employer: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

Plaintiffs have adequately pled knowledge. However, the SAC does not allege any intent on the part of defendants, nor does it set forth sufficient factual allegations showing that any of the defendants’ conduct was oppressive, fraudulent or malicious. Further, the SAC does not contain sufficient allegations that would impose punitive damages liability on the corporate moving defendants. Plaintiffs’ allegations are merely conclusory statements that they are entitled to punitive damages without setting forth any facts as to why. As such, the motion to strike will be granted. As it is reasonably likely that plaintiffs can amend the complaint to allege sufficient facts and set forth a proper prayer for punitive damages, leave to amend will be granted.