Judge: Deirdre Hill, Case: 22STCV03393, Date: 2023-01-27 Tentative Ruling

Case Number: 22STCV03393    Hearing Date: January 27, 2023    Dept: M

Hearing Date:                         January 27, 2023

Moving Parties:                      Plaintiff Marlene Thomas, ind. and as successor in interest to Ryan Thomas

Responding Party:                  Defendant Aeolus Air Charter, Inc.

Motion for Leave to File a First Amended Complaint to Seek Punitive Damages and Add Parties

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is GRANTED.  Plaintiff is ordered to file the FAC within five days.

BACKGROUND

            On January 27, 2022, plaintiff Marlene Thomas, ind. and as successor in interest to Ryan Thomas, filed a wrongful death and survival action against Aeolus Air Charter, Inc. for (1) negligence, (2) products liability – strict, and (3) products liability – negligence. 

On November 29, 2022, the case was transferred from the PI Hub to Dept. M.

On December 27, 2022, the case was deemed related to 22VECV01878.

LEGAL AUTHORITY

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.

DISCUSSION

            Plaintiff Marlene Thomas requests leave to file a First Amended Complaint to add a prayer for punitive damages and Let’s Jett, Inc., Conner Jadwin, and Dave Ventrellas as defendants and to withdraw the 2^nd and 3^rd causes of action for products liability.

            In the complaint, plaintiff alleges that on July 26, 2021, a Bombardier Inc., CL-600-2B16 airplane bearing United States Registration Number N605TR was in the course of private flight for hire operated by defendant Aeolus Air Charter, Inc.  Complaint, ¶1.  At approximately 1:18 p.m., the plan crashed in Truckee, California, killing the occupants and passengers onboard the aircraft.  Id., ¶2.  Ryan Thomas was a passenger on the plane at the time of the crash and was injured, suffered pain, was disfigured, and ultimately died as a result of the crash.  Id., ¶3.  In total, the incident resulted in six fatalities.  Id., ¶4.  The National Transportation Safety Board has issued a preliminary report.  The NTSB has not released further information or findings.  Id., ¶5.

            Plaintiff asserts that when the complaint was filed, the NTSB had initiated an investigation but had not released any facts or findings beyond a brief preliminary report.  Plaintiff contends that the facts in this matter have developed substantially since the filing of the original complaint as the NTSB released hundreds of pages of facts and reports and the parties have engaged in discovery.  In mid-November 2022, plaintiff took the depositions of two Aeolus officers—Conner Jadwin and Dave Ventrella.  Plaintiff also notes that it learned that on May 18, 2022, defendant Aeolus began to operate as business named Let’s Jett, Inc.  Jadwin and Ventrella hold the same job positions at Let’s Jett as they did at Aeolus.  Let’s Jett is using the FAA issued Part 135 charter certificate that had been issued to Aeolus.  Further, the depositions revealed, plaintiff contends, that Aeolus and its owner-officers Jadwin and Ventrella intend to assert that Aeolus was a partnership and/or had partners, in claiming that decedent Thomas was a partner/owner of Aeolus. 

            Plaintiff also contends that the statute of limitations has not run.  As to adding a prayer for punitive damages, plaintiff argues that defendants put profits over safety leading up to the fatal crash in that Aeolus, Jadwin, and Ventrella had focused their time on trying to get a Part 135 charter certificate from the FAA and on generating revenue from ongoing operations and thus their bandwidth, or time to do other things, was slim.  Plaintiff contends that they focused on trying to get their newly acquired Bombardier Challenger on the Aeolus Part 135 certificate instead of developing safety programs, like a Safety Management System or a Crew Resource Management System, and having a Director of Safety.  Further, Aeolus “opened” an office in Fargo, North Dakota to feign being a charter company “in the making” to get the certificate as quickly as possible.  Also, they gave themselves a 5-star safety rating and misrepresented that they had a IS-BAO certification.  Further, they did not look into the pilot’s visa status, which did not allow him to fly in the United States at all for compensation, or check with his flight instructors who all felt that the pilot had several problem areas, including in areas of piloting he encountered in the subject fatal flight.  Moreover, plaintiff argues, the flight was an unauthorized and illegal Part 135 flight.  Also, plaintiff argues, the pilot’s conduct during the flight warrants and supports punitive damages in that he consciously chose to disregard FAA regulations and engaged in prohibited flight operations.

            In opposition, defendant argues that the addition of newly listed parties “adds nothing to the case” because Let’s Jett is the new name of defendant Aeolus and Jadwin and Ventrella were officers of Aeolus who acted in the course and scope of their employment.  As to adding a claim for punitive damages, defendants argue that plaintiff does not have a good faith claim because plaintiff’s decedent had partnered with Aeolus in the procurement of the subject aircraft and that the aircraft had not yet been added to the Aeolus Part 135 certificate but that decedent had the right to fly it and did so pursuant to CFR Part 91, and thus not subject to the requirements of Part 135.  As to the pilot, defendant contends that plaintiff “offers no evidence or argument to the effect that Montero was not a fully certified and trained pilot licensed to fly the Aircraft and Aeolus had no reason to believe the contrary was true.”  Defendant further argues that plaintiff’s contention that the flight was an illegal charter flight is unsupported by the facts and the pilot was not a managing agent of Aeolus.

            In reply, plaintiff reiterates that the motion is based upon substantial facts and that plaintiff is well within the statute of limitations.  Plaintiff further argues that Let’s Jett, Inc., Jadwin, and Ventrella are appropriate parties and plaintiff’s addition of punitive damages is meritorious.

The court finds that plaintiff has complied with CRC Rule 3.1324.  In light of the liberal policy in allowing amendment, the motion is GRANTED.

Plaintiff is ordered to give notice of ruling.