Filed 7/1/21 Starre v. March CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RAVEN STARRE,

Plaintiff and Appellant,

v.

BROOKE MARCH et al.,

Defendants and 

Respondents.

 B304980

 (Los Angeles County

 Super. Ct. No. 

 BC687258)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Teresa A. Beaudet, Judge. Affirmed.

MLG, Jonathan A. Michaels, Robert B. Smith, Kseniya Y. 

Stupak, and Afnan Shukry for Plaintiff and Appellant.
2

Jason M. Stone and Kelly P. Sorensen for Defendants and 

Respondents Brooke March, Scott Cervine, Amy Sheely, Beth 

Bayard, Debra Artura, and Steven Cervine.

Hanger, Steinberg, Shapiro & Ash, Marc S. Shapiro, and 

Kristina M. Parido for Defendant and Respondent Nancy 

Johnson.

* * * * * *

A multilevel marketing guru solicited money from several 

people to fund a yearlong reality TV show where participants 

would vie to be the first to gross $1 million in that year. The 

guru abandoned the show after 10 days of filming and did not 

return any of the funding. After some of the participants sent 

emails demanding refunds and after a former intern went rogue 

and created a website that falsely accused the guru of being a 

pedophile, she sued the participants for libel and intentional 

infliction of emotional distress. The trial court granted summary 

judgment to the participants because the undisputed facts 

established that they were not responsible for the libelous 

website and because the emails demanding a refund did not 

constitute “outrageous” conduct capable of supporting a claim for 

emotional distress. We affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Plaintiff’s expertise with the multilevel 

marketing industry

Raven Starre (plaintiff) makes a living in the “multilevel 

marketing” industry. Within that industry, a person earns 

income by (1) keeping a percentage of the product sales she 

makes to customers, and (2) taking a percentage of the product 
3

sales made by people in her “downline”—that is, sales made by 

the people she recruits to sell the same product. Plaintiff is so 

experienced in this industry that she conducts seminars on how 

to succeed. 

B. Plaintiff’s first reality TV venture fails

In mid-2014, plaintiff came up with a new and different 

way to make money. She would coproduce a yearlong reality TV 

show where she would mentor 12 contestants on how to make a 

million dollars in the multilevel marketing industry in a year. 

The show would be called “One Year To A Millionaire,” and even 

had its own snazzy acronym, “1Y2M.”

Plaintiff recruited several participants for the show. Each 

paid a “participation fee” of $25,000, although some ended up 

paying in excess of $25,000. The parties dispute what the 

participants were to get for their money. The participants 

thought that they were paying (1) to participate in a yearlong 

show, and (2) for one year of plaintiff’s mentorship with a 

multilevel marketing business. Plaintiff thought the participants 

were making a “non-refundable” payment for the “opportunity to 

be a participant in the show and [to] receive [her] 

transformational coaching.” (Italics added.) At some point after 

the participants paid their “fee,” plaintiff required them to sign a 

“Participation Agreement & Release,” in which the participants 

(1) acknowledged that their earlier payment was “nonrefundable,” (2) agreed never to sue plaintiff and to release her 

from any and all liability, and (3) capped any recovery against 

her at a maximum of $30,000 in actual damages. 

The show filmed for 10 days in December 2014 before 

plaintiff, in January 2015, scrapped the concept because it would 
4

be “impossible” to earn one million dollars in a single year from 

multilevel marketing.

Plaintiff had received $336,000 in participation fees, and 

had allocated $60,000 to herself as her “fee.”

C. Plaintiff’s second reality TV venture fails

At the same January 2015 meeting where plaintiff decided 

to scrap the 1Y2M reality TV show, she suggested using the 

participation fee money on a new and different TV project. The 

project would be a talk show about women’s issues, where 

“women [would] talk[] about real raw topics.” The concept was

called “RAWomyn.” 

Plaintiff persuaded several of the participants in 1Y2M to 

contribute additional funds for the RAWomyn project.

Less than a month later, the RAWomyn show also “failed.” 

D. The fallout

Plaintiff did not refund nearly any of the $25,000 

participation fees for 1Y2M or the further contributions for the 

RAWomyn project and did not provide a year’s worth of 

mentoring, although she continued to “offer. . . coaching and 

mentoring.” 

1. Plaintiff’s March 7 emails

When several of the participants started to ask for a refund 

of their participation fees because the TV shows had failed and 

because plaintiff was not mentoring them, plaintiff sent out two 

group emails on March 7, 2015. In the first email, plaintiff 

apologetically declared that she “would like to take responsibility 

for th[e] fiasco” and promised to send each email recipient a 

settlement offer. In the second email sent just four hours later, 

plaintiff warned the same group that she had “screen shots” of 

the participants’ “public” and “private Facebook, Twitter and 
5

other social media conversations,” and “strongly advise[d]” them 

“not to use [her] name . . . in any libel [sic] or slanderous way.” 

2. The participants’ responsive emails

Between March 7 and March 31, 2015, five of the 1Y2M 

participants—Brooke March (March), Debra Artura (Artura), 

Nancy Johnson (Johnson), Mika Shoemaker (Shoemaker), and 

Beth Bayard (Bayard)—sent responsive emails to plaintiff. In 

their emails sent on March 7 and March 8, respectively, March 

and Artura spelled out how much money they had given plaintiff, 

demanded to be “pa[id] back” and, if a refund was not 

forthcoming, indicated “[t]he world will know exactly what you 

are up to and what you have done.” In their emails sent on 

March 26, March 27 and March 31, respectively, Johnson, 

Shoemaker and Bayard also spelled out the amount each had 

given plaintiff, demanded a refund of those amounts and, if a 

refund was not forthcoming, indicated that their “next steps” 

included filing a “criminal complaint” with the Federal Trade 

Commission, the Internal Revenue Service, the California 

Attorney General and/or the local police. 

3. Discussion of possible website

In June 2015, Johnson posted a message to a Facebook 

group that included March, Bayard, Shoemaker and Peter 

Kirkpatrick (Kirkpatrick). In that message, Johnson suggested 

“launch[ing] a website—something like ravenstarrewarning.com 

where we each . . . tell our factual and non-libelous story and . . . 

use the tools of search engine optimization to assure that anyone 

searching for info on [plaintiff] finds that site.” To Johnson, the 

website would “warn others away from [plaintiff]” so that 

plaintiff “will not have gotten away with scamming us without 

recourse.” 
6

There was no discussion of launching a website containing 

any false information. What is more, none of the participants 

counseled anyone else to create such a website. 

4. Website created by “rogue” intern

Kirkpatrick had worked as an intern during the 10 days 

that 1Y2M filmed. On his own and without the participation of 

anyone else, he launched a website under the domain name

www.RavenStarreScam.com (the website). The website falsely 

accused plaintiff of sexually molesting her son, called her a 

“pedophile,” posted photographs of her with her son, and falsely 

reported that her son had been taken from her by the authorities.

II. Procedural Background

A. The pleadings

In December 2017, and as pertinent here, plaintiff sued 

March and her husband, Artura and her husband, Johnson, 

Sheely, and Bayard (collectively, defendants) for libel and civil 

extortion.1 She sought $5 million in compensatory damages as 

well as punitive damages.

In March 2019, plaintiff filed the operative second amended 

complaint against defendants.

2 Plaintiff alleges claims for (1) 

libel per se, (2) cyber stalking (in violation of Civil Code section

1 Plaintiff also sued Kirkpatrick, Jason Starr, Kang Vang, 

Mindy Weathers, Shoemaker and Shoemaker’s husband. 

Kirkpatrick, Starr, Vang and Weathers did not join in the motion 

for summary judgment at issue in this appeal. Although 

Shoemaker and her husband joined the motion, they were 

dismissed as defendants prior to the hearing on that motion. 

2 She added Chris Herriford as an additional defendant, but 

Herriford did not join the summary judgment motion at issue in 

this appeal, so will not be discussed further. 
7

1708.7), (3) intentional infliction of emotional distress, (4) 

conspiracy to commit libel per se, (5) aiding and abetting libel per 

se, (6) conspiracy to intentionally inflict emotional distress, and 

(7) aiding and abetting the intentional infliction of emotional 

distress. She seeks $5 million in compensatory damages as well 

as punitive damages. 

In its general allegations, the operative complaint alleges

that “[b]eginning in 2015, [d]efendants . . . banded together and 

hatched a plan to emotionally and financially destroy 

[p]laintiff []. In furtherance of this, [] [d]efendants undertook two 

actions toward her. First, they created a website called 

RavenStarreScam.com, which contains a litany of false, 

derogative and libelous statements about the [p]laintiff. Second, 

they sent the [p]laintiff written communications demanding that 

she pay them money, under threat of filing false criminal 

complaints against her.” The libel per se claim is based solely on 

the “creat[ion]” and “maintain[ance]” of the website. The 

intentional infliction of emotional distress claim is based upon 

the website and on the emails defendants sent in March 2015, 

which plaintiff alleges were an “outrageous” “shakedown . . . for 

money, under the threat of false criminal accusations.”

B. Motion for summary judgment

In August 2019, defendants filed a motion for summary 

judgment or, in the alternative, summary adjudication. 

On October 8, 2019, plaintiff filed her opposition to the 

motion. Plaintiff raised three new factual grounds to support her 

claims for libel per se and intentional infliction of emotional 

distress—namely, that defendants had (1) distributed flyers at an 

event where she spoke and which read, “SCAM ALERT! RAVEN 

STARRE . . . You need to know her MLM [multilevel marketing] 
8

mentorship is a complete scam. She charged 12 people $25,000 

each [for] a year for mentorship and then walked away saying it 

was too hard to make $ in MLM. She kept every dollar of it and 

refused any requests for refunds. #MLMmentorscam,” (2) posted 

a YouTube video “outlining how they were ‘scammed’ by” 

plaintiff, and (3) falsely informed ARIIX, whose products plaintiff 

devoted some of her time to marketing, that plaintiff was 

collecting fees for “preferential placement in her downline,” which 

prompted ARIIX to cancel its contract with plaintiff.3 Plaintiff 

had learned of the flyer no later than November 20, 2018, when 

Shoemaker discussed it during her deposition, and had learned of 

defendants’ alleged interference with ARIIX in July 2015 emails 

with ARIIX regarding the termination of her contract. None of 

these facts were alleged in any of the three iterations of plaintiff’s 

complaint.

Following receipt of defendants’ reply, the trial court issued 

a tentative ruling to grant summary judgment. After a hearing, 

the trial court stuck with its tentative ruling and granted 

summary judgment. As pertinent to this appeal, the court found 

that defendants were entitled to judgment on plaintiff’s libel per 

se claim because she had not introduced any evidence that 

defendants were involved with the website; the only evidence 

indicated that Kirkpatrick was solely responsible for it. The 

court also found that defendants were entitled to judgment on 

plaintiff’s intentional infliction of emotional distress claim 

because “sending one email demanding payment for a failed 

3 Plaintiff also raised a fourth factual ground—namely, that 

the defendants had reported her to child protective services. 

However, that report was based on alleged neglect and not sexual

abuse, and is not an asserted basis for error in this appeal.
9

multi-level marketing scheme” was not “outrageous” as a matter 

of law. The court declined to consider the evidence regarding the 

flyer, the YouTube video, or ARIIX because they were outside the 

scope of the operative complaint. The court denied plaintiff’s oral 

request for leave to file a third amended complaint adding new 

allegations regarding the flyer, YouTube video, or ARIIX because 

it was “not a correct remedy” to do so at time of the summary 

judgment hearing. 

Following the entry of judgment, plaintiff filed this timely 

appeal.

DISCUSSION

Plaintiff argues that the trial court erred in (1) granting 

defendants’ summary judgment motion and (2) denying her oral 

request for leave to amend her complaint.4

4 In her reply brief, plaintiff asks us to strike the two 

respondents’ briefs filed, respectively, by Johnson and by the 

remaining defendants, on the ground that the combined word 

count of both briefs exceeds the 14,000-word limit applicable had 

they filed a single, consolidated respondents’ brief. (Cal. Rules of 

Court, rule 8.204(c).) Because defendants could have each filed 

their own respondent’s brief, we see no ground to strike all 

respondents’ briefs because defendants opted to file two briefs 

rather than one. Our task, in any event, is to evaluate the merits 

of the arguments the appellant (here, plaintiff) presents in her

opening brief, and we can—and, indeed, must—do so regardless 

of whether there is no, one, two, or ten respondents’ briefs on file. 

(In re Bryce C. (1995) 12 Cal.4th 226, 232-233 [in absence of 

respondent’s brief, “the judgment is not automatically reversed,” 

but “can and should be affirmed” if no “‘prejudicial error is

found”]; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 

224, 226-227 [burden remains on appellant to demonstrate 

error].)
10

I. Motion for Summary Judgment

Summary judgment is appropriately granted “where ‘all the 

papers submitted show there is no triable issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law.’” (Hartford Casualty Ins. Co. v. Swift 

Distribution, Inc. (2014) 59 Cal.4th 277, 286 (Hartford Casualty), 

quoting Code Civ. Proc., § 437c, subd. (c).) In other words, 

summary judgment is warranted where “the plaintiff has not 

established, and reasonably cannot be expected to establish, one 

or more elements of the cause of action in question.” (Patterson v. 

Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 500.) “‘“‘We review 

the trial court’s decision [granting summary judgment] de novo, 

considering all the evidence set forth in the moving and opposing 

papers except that to which objections were made and 

sustained.’” [Citation.] We liberally construe the evidence in 

support of the party opposing summary judgment and resolve all 

doubts concerning the evidence in favor of that party.’ 

[Citation.]” (Hartford Casualty, at p. 286.) 

In her opening brief, plaintiff only asserts error with regard 

to the trial court’s judgment on her claims for libel per se and 

intentional infliction of emotional distress. Although plaintiff’s 

reply brief summarily proclaims that the trial court’s judgment 

with regard to her other five claims is also in error, she makes no 

argument as to four of the claims and only cursory argument as 

to the fifth.

5 Plaintiff has therefore doubly waived her appeal as 

5 Even if we were to consider the merits of the cursorily 

raised claim, plaintiff’s argument in support of it lacks merit. 

Specifically, plaintiff declares that her cyberstalking claim 

withstands summary judgment because the defendants’ demand 

emails created a triable issue of fact as to whether they engaged 
11

to those claims—for failing to raise them in her opening brief and 

for failing to present any reasoned argument. (Tyler v. Children’s 

Home Society (1994) 29 Cal.App.4th 511, 526, fn. 8 [“[I]t is unfair 

to raise new arguments for the first time in a reply brief”]; Cahill 

v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 

[failure to support assertions with “reasoned argument” amounts 

to waiver].) We will accordingly address only the two claims 

properly before us.

A. Libel per se

To prove libel, the plaintiff must prove “‘(1) a publication 

that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a 

natural tendency to injure or causes special damage.’” (John Doe 

2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312; Civ. Code, 

§§ 44, 45.) To prove libel per se, the plaintiff must also prove that 

the publication is “defamatory” “on its face”—that is, libelous 

“without the necessity of explanatory matter, such as an 

inducement, innuendo or other extrinsic fact.” (Civ. Code, § 45a.) 

To prove libel per se against a particular defendant, the libelous 

per se publication “must be done by th[at] defendant.” (E.g., Live 

Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 

1284, italics added.) Because plaintiff’s libel per se claim is based 

solely upon the publication of the website and because it is 

undisputed that Kirkpatrick was solely responsible for that 

website, plaintiff is unable to establish an element of her libel per 

in a “pattern of conduct” within the meaning of Civil Code section 

1708.7, subdivision (a)(1). In the operative complaint, however, 

plaintiff rested her cyberstalking claim solely on the website. As 

explained below, we necessarily reject plaintiff’s attempt to evade 

summary judgment on a claim based on facts not alleged with 

respect to that claim in the operative complaint.
12

se claim against the moving defendants. As a result, those 

defendants are entitled to summary judgment on that claim.

Plaintiff responds that her libel per se claim is also based 

on the statements defendants made on the flyers, in the YouTube 

video, and to ARIIX. She urges that her operative complaint 

makes “broad claims” that the defendants “banded together and 

hatched a plan”; that the website and emails referenced in the 

operative complaint were merely aspects of that plan; and that 

the flyers, the YouTube video, and the statements to ARIIX are 

“additional aspects of the defendants’ plan.” To put a finer point 

on it, plaintiff characterizes her operative complaint’s listing of 

the website and emails as being illustrative of defendants’ plan

rather than exhaustive. This is inaccurate. Although the 

operative complaint alleges that defendants “banded together 

and hatched a plan,” it goes on to allege that “[d]efendants 

undertook two actions” “[i]n furtherance” of that plan, and at no 

point indicates that these two actions are just a sampling of that 

plan; by the plain language of the operative complaint, the 

website and email were the plan. “The pleadings frame the 

issues on a motion for summary” judgment (e.g., Heritage 

Marketing & Ins. Service, Inc. v. Chrustawka (2008) 160 

Cal.App.4th 754, 764), and while we must “construe[]” the 

operative pleading “broadly” when deciding whether facts 

presented at summary judgment are within the issues framed by 

the complaint (e.g., Cavalry SPV I, LLC v. Watkins (2019) 36 

Cal.App.5th 1070, 1084), we cannot rewrite the pleading. 

Because the operative complaint cannot be read to encompass the 

flyers, the YouTube video, or defendants’ alleged statements to 

ARIIX without rewriting it, the trial court properly refused to 

consider plaintiffs’ newly proffered facts in support of her libel 
13

per se claim. This refusal is particularly appropriate in light of 

the “general rule” that the “‘words constituting an alleged libel 

must be specifically identified, if not pleaded verbatim, in the 

[operative] complaint’ [citation]” (Medical Marijuana, Inc. v. 

ProjectCBD.com (2020) 46 Cal.App.5th 869, 888, italics added), 

and here the words from the flyer, in the YouTube video, and 

uttered to ARIIX are entirely absent.

B. Intentional infliction of emotional distress

To prove intentional infliction of emotional distress, the 

plaintiff must prove, among other things, “‘“extreme and 

outrageous conduct by the defendant with the intention of 

causing, or reckless disregard of the probability of causing, 

emotional distress.”’” (Christensen v. Superior Court (1991) 54 

Cal.3d 868, 903.) Conduct is “outrageous” only if it ““exceed[s] all 

bounds of that usually tolerated in a civilized community””; 

conduct that merely causes “discomfort, worry, anxiety, upset 

stomach, concern [or] agitation” is not enough. (Hughes v. Pair

(2009) 46 Cal.4th 1035, 1051.) Because “the attempted collection 

of a debt, by its very nature, often causes the debtor to suffer 

emotional distress,” a debt collector engages in actionable, 

“outrageous” conduct only if her conduct “goes beyond ‘all 

reasonable bounds of decency’ in attempting to collect the debt,” 

such as when she knows that “the debtor is susceptible to 

emotional distress because of her physical or mental condition.” 

(Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 789-790; 

Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 

Cal.App.4th 736, 745 (Ross); Symonds v. Mercury Savings & 

Loan Assn. (1990) 225 Cal.App.3d 1458, 1469 (Symonds).) 

Rudeness or insolence by a debt collector is not enough. 

(Symonds, at p. 1469.)
14

Applying this precedent, the trial court correctly granted 

summary judgment on plaintiff’s claim for intentional infliction of 

emotional distress. As explained above, the undisputed facts 

establish that defendants were not responsible for the website, so 

they cannot be held liable for the emotional distress flowing from 

it; indeed, plaintiff does not argue to the contrary on appeal. And 

defendants’ conduct in sending five emails over the course of 

three weeks was not, as a matter of law, “outrageous” conduct by 

the defendants who were seeking to collect on what they 

reasonably believed was a debt plaintiff owed them. In Girard v. 

Ball (1981) 125 Cal.App.3d 772, 787, the court affirmed summary 

judgment for a creditor on an intentional infliction of emotional 

distress claim when the creditor sent “two written 

communications” and made “some telephone requests for 

payment.” Defendants’ conduct in sending plaintiff one email 

each—particularly when those emails were in response to an 

email conversation plaintiff herself initiated—is even less

invasive and hence even less outrageous.

Plaintiff responds with four arguments. First, she contends 

that defendants’ conduct is outrageous when considered in 

conjunction with the flyers, the YouTube video, and their 

communication with ARIIX. As explained above, however, those 

additional facts are not properly before us. Second, plaintiff 

asserts that we must consider the five individual emails to be 

part of a single, “coordinat[ed]” effort—such that she was emailed 

five times by one “collective[]” rather than one time by five 

individuals. This is a distinction without a difference because 

even one entity sending five emails over the course of three weeks 

in an attempt to collect a debt is not outrageous as a matter of 

law. Third, plaintiff proffers that Kinnamon v. Staitman & 
15

Snyder (1977) 66 Cal.App.3d 893, 895-896 (Kinnamon), 

disapproved on other grounds in Silberg v. Anderson (1990) 50 

Cal.3d 205, 212, 219 dictates a ruling in her favor. It does not. 

Kinnamon held that a lawyer’s conduct in threatening a criminal 

action to obtain an advantage in a civil action was outrageous 

enough to withstand a demurrer because such conduct violated 

the Rules of Professional Conduct. Kinnamon’s rule does not 

apply to nonlawyers and has in any event been eclipsed by 

subsequent precedent holding that violations of the Rules of 

Professional Conduct do not by themselves give rise to an action 

for damages. (Ross, supra, 100 Cal.App.4th at pp. 745-746.) 

Lastly, plaintiff broadly proclaims that her failure to prove that 

defendants intended to inflict emotional distress necessarily 

means that they recklessly did so. Aside from the logical fallacy 

of this proclamation, it is also irrelevant because the absence of 

outrageous conduct alone is fatal to plaintiff’s claim for 

intentional infliction of emotional distress.

II. Denial of Leave to Amend 

A trial court has “wide” discretion, “in furtherance of

justice” to “allow a party to amend [her] pleading.” (Code Civ. 

Proc., § 473, subd. (a)(1); Falcon v. Long Beach Genetics, Inc.

(2014) 224 Cal.App.4th 1263, 1280 (Falcon).) We accordingly 

review a trial court’s denial of a request to amend for an abuse of 

that discretion. (Melican v. Regents of University of California

(2007) 151 Cal.App.4th 168, 175 (Melican).) 

Although a trial court’s discretion to grant leave to amend 

exists up to and even during a trial (Melican, supra, 151 

Cal.App.4th at p. 175; Honig v. Financial Corp. of America (1992) 

6 Cal.App.4th 960, 965 (Honig)), courts will not exercise that 

discretion if amendment would prejudice the other side (Honig, at 
16

p. 965). This is why courts consistently hold that a trial court 

does not abuse its discretion in denying a request for leave to 

amend made for the first time at the hearing on a motion for

summary judgment. (580 Folsom Assocs. v. Prometheus 

Development Co. (1990) 223 Cal.App.3d 1, 18; Shugart v. Regents 

of University of California (2011) 199 Cal.App.4th 499, 508; 

Liebert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 

1699; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90; Distefano 

v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; cf. Higgins v. 

Del Faro (1981) 123 Cal.App.3d 558, 564 [allowing more 

“liberal[ity]” of amendment upon grant of a motion for judgment 

on the pleadings].) Because a motion for summary judgment is, 

as noted above, tied to the operative pleading, to allow a party to 

change the pleading at the eleventh hour is to “‘move[ the] 

target’” and to prejudice the party moving for summary judgment 

by rendering its prior motion a complete waste of time. (Falcon, 

supra, 224 Cal.App.4th at p. 1280.) This is particularly so where, 

as here, the party seeking leave to amend has proffered no reason 

for waiting until the hearing itself to so request. (Falcon, at p. 

1280; Melican, at pp. 175-176; Leader v. Health Industries of 

America (2001) 89 Cal.App.4th 603, 613; but see Kirby v. Albert 

D. Seeno Constr. Co. (1992) 11 Cal.App.4th 1059, 1067-1068, 

1069, fn. 7 [amendment permitted as to issues “already raised by 

the pleadings” on file].) Because plaintiff was aware of the flyers 

by November 2018, aware of the YouTube video by the time she 

filed her opposition in October 2019, and aware of the ARIIX 

communications by July 2015, she had no reason whatsoever to 

wait until the February 2020 summary judgment hearing to seek 

leave to amend. On these facts, the trial court most certainly did 

not abuse its discretion in denying leave to amend.
17

Plaintiff resists this conclusion with three arguments. 

First, she asserts that the trial court impermissibly adopted a 

blanket rule against granting leave to amend at the summary 

judgment hearing. Where, as here, the party requesting leave to 

amend seeks to add wholly new facts and has proffered no basis 

for the delay in requesting that leave, the trial court’s proffered 

rule is the correct one on the facts. Second, she contends that the 

trial court’s second basis for denying leave to amend—namely, 

that plaintiff had alleged the flyer, YouTube video, and ARIIX 

communications in a prior complaint but later deleted them from

the operative complaint—was incorrect, and thus warrants 

reversal. However, the trial court was admittedly unsure about 

this second basis, and more to the point, the trial court’s first 

basis (namely, the untimeliness of plaintiff’s request) is sufficient 

by itself to justify the court’s denial of leave to amend. What is 

more, the absence of these three facts from any of the prior 

iterations of plaintiff’s complaint means that plaintiff’s lastminute request to add them to avoid summary judgment has an 

even greater prejudicial impact on defendants, who had no prior

notice of these factual theories. Lastly, plaintiff notes that the 

last deposition in this case was on August 7, 2019, the day 

defendants filed their motion. This is irrelevant, because, as 

noted above, plaintiff knew about most of the new facts long 

before then and still waited until February 2020 to seek leave to 

amend. 
18

DISPOSITION

The judgment is affirmed. Defendants are entitled to their 

costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST