Judge Deirdre Hill, Case 19STCV24226 2022-08-10 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

The court considered the moving and opposing papers. No reply has been filed as of August 4, 2022.

The motion is CONTINUED to 09-07-22 08:30 a.m. Plaintiff is ordered to comply with CRC Rule 3.1324(a) to file a copy of the proposed amendment or amended pleading (i.e., the SAC), which must be serially numbered to differentiate it from previous pleadings or amendments. Plaintiff is ordered to serve and file an amended notice of hearing in addition to the proposed amendment or amended pleading.

On July 8, 2019, plaintiff Deborah J. Waltrip (self-represented) filed a complaint against defendant American Airlines, Inc.

On January 10, 2020, plaintiff filed a FAC for general negligence. Plaintiff alleges that on July 12, 2017, she was aboard a flight at LAX, and, upon landing, another passenger was removing her bag from the overhead bin, and fell on plaintiff’s head and neck. The bag was an oversized duffle bag that did not fit the size criterion for a carry-on and should never have been allowed on the plane as a “carry-on.” Following the incident plaintiff was taken the emergency room for medical treatment.

On December 16, 2021, the court denied plaintiff’s motion to amend the FAC without prejudice due to plaintiff’s failure to file a declaration in compliance with CCP §2015.5. On December 27, 2021, plaintiff filed another motion to file a SAC. On February 4, 2022, the court continued the hearing on plaintiff’s motion to file a SAC to allow plaintiff to file a declaration in compliance with CCP §2015.5. On April 5, 2022, the court denied plaintiff’s motion because plaintiff failed to file a declaration in compliance with CRC Rule 3.1324 and CCP §2015.5.

On April 5, 2022, the court denied plaintiff’s motion for leave to file the SAC because plaintiff failed to file a declaration in compliance with CRC Rule 3.1324 and CCP §2015.5

On June 1, 2022, the court continued plaintiff’s motion for leave to file the SAC because plaintiff failed to file a declaration in compliance with CRC Rule 3.1324 and CCP §2015.5, and failed to serve the motion in compliance with CCP § 1013a.

CCP § 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047. Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

Plaintiff Deborah J. Waltrip requests leave to file a Second Amended Complaint to add that the accident took place during international air transportation and that it is covered by the Montreal Convention and that defendant is “strictly liable for damages up to” $128,821.” (Mot. p. 2.)

Plaintiff asserts that the amendment “merely alerts the court to the existence of the law applicable to this accident” and that the factual basis for liability remains the same, i.e., that she was hit on the head and neck by a piece of luggage while on an airplane during an international flight. Waltrip Decl., ¶¶ 3, 5. She states that she did not discover of the existence the Montreal Convention until recently “when I was speaking to a lawyer familiar with it.” Waltrip Decl., ¶ 7.

The court finds that plaintiff failed to comply with CRC Rule 3.1324(a) because she failed to include a copy of the proposed amendment or amended pleading (i.e., the SAC), which must be serially numbered to differentiate it from previous pleadings or amendments.