Judge Deirdre Hill, Case 19STCV24226 2022-10-11 Tentative Ruling

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The court considered the moving and opposition papers. The court continued the hearing from September 21, 2022 to consider the opposition filed on July 28, 2022.

On July 8, 2019, plaintiff Deborah J. Waltrip (self-represented) filed a complaint against 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 when upon landing, another passenger was removing her bag from the overhead bin, and it fell and landed on plaintiff’s head and necks. 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.” The flight attendant made no effort to try and prevent the injury. The captain decided that she needed to be transported to the emergency room before being allowed on her next flight. An AA employee called 911 and plaintiff was taken to the hospital for evaluation, Xray, and CT scan. Since that time, she has had physical therapy, which has been unsuccessful.

On October 13, 2020, plaintiff filed a substitution of attorney. She is represented by counsel.

On June 22, 2021, plaintiff filed a substitution of attorney. She is now self-represented.

On December 16, 2021, the court denied plaintiff’s motion to amend complaint without prejudice due to plaintiff’s failure to file a declaration in compliance with CCP §2015.5.

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. Plaintiff had not filed a declaration in compliance with CRC Rule 3.1324 and CCP §2015.5.

On June 1, 2022, the court continued plaintiff’s motion to file a SAC to July 15, 2022 to allow plaintiff to file a declaration.

On July 15, 2022, the court deemed the motion withdrawn because plaintiff had filed a new motion.

On August 10, 2022, the court continued the hearing on plaintiff’s motion to file a SAC and ordered plaintiff to comply with CRC Rule 3.1324.

On September 7, 2022, the court continued the hearing as plaintiff had not filed any new documents and represented that she had been ill. The court continued the hearing to September 21, 2022 and ordered plaintiff to serve an amended notice of motion by September 12, 2022.

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” $100,000.

Plaintiff asserts that the amendment “merely alerts the court to the existence of the law applicable to this accident” and that the factual basis remains the same, that she was hit on the head and neck with a piece of luggage while on the airplane during an international flight. She states that she was unaware of the existence the Montreal Convention until recently “when I was speaking to a lawyer familiar with it.”

In opposition, defendant argues that the motion is untimely and that plaintiff has been dilatory. Defendant contends that the claim under the Montreal Convention is based on the same factual allegations as her negligence claim, which she was aware of at least over three years ago when she filed the complaint. Defendant also argues that it will be prejudiced because such amendment would result in delay of trial, added costs of preparation, and increased burden of discovery and that defendant will have to rewrite its summary judgment motion because a claim under the Montreal Convention preempts state law negligence. Defendant further contends that amendment would be futile because the statute of limitations has run, and the amendment does not relate back to the original complaint. Defendant also contends that the motion is procedurally defective. The court notes that plaintiff has resolved the procedural defects. In the alternative, defendant requests that the trial be continued, discovery reopened, and that plaintiff pay defendant $6,800 to reimburse for the fees and costs involved in preparing and filing the motion for summary judgment.

The court finds that plaintiff complied with CRC Rule 3.1324. In light of the liberal policy in allowing amendment, the motion is GRANTED. Trial was continued to April 11, 2023, which is sufficient time for defendant to file a motion for summary judgment and to conduct additional discovery, if necessary. The court denies defendant’s request for reimbursement.