Filed 7/25/23 Tebbi v

. Fitness International CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, e xcept 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

VIDA TEBBI

,

Plaint iff and Appellant,

v.

FITNESS INTE RNATION AL, LLC,

Defendant and Respondent

. B3 13092

(Los Angeles County Super. Ct. No. B C 707114 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Whitaker , Judge. Affirmed

.

Lione ss Law Group and Farah Faramarzi for Plaintiff and Appellant.

Yoka  Smith, Alice Chen Smith and Christine C. De
Metruis for Defendant and Respondent.

_________________________2 After she tripped and fell getting off a treadmill at a facility owned and ope rated by Fitness International, LLC ( Fitness)

, Vida Tebbi brought an action for negligence against Fitness. The trial court granted summary judgment in favor of Fitness, based on a release signed by Tebbi as part of her membership agreement with Fitness. Tebbi appeals from the judgment,

con tending the trial court’s tentative ruling, which was in her favor, was correct, and its subsequent final ruling in favor of
Fitness was erroneous. She further contends that the trial court abused its discretion in gra nting summary judgment without
allowi ng her to file an amended complaint adding additional facts about her fall, known to her since the time of that fall in 2016. Finally, she contends she did not receive notice of the assignment of a new judge to her cas e, and this voids the entire proceedi ng. We affirm the judgment

. BACKGROUND
The relevant facts of this case are short, but the procedural history is long.
Fitness , doing business as L.A. Fitness

, operates an L.A. Fitness gym in Chatsworth. In January 2 012, Tebbi signed a membership agreem ent with L.A. Fitness with a release and waiver of liability and indemnity ( r elease). The r elease provide d that Tebbi understood and assumed the risk of using Fitness’s facilities, services, equipment

, and premises, in cluding the risk of injuries arising from her use of exercise equipment and machines. She expressly released Fitness from claims for injury caused by Fitness’s active or passive negligence while she was “in, upon, or about L.A. Fitness premises or using a ny L.A. Fitness facilities, services or equipment.”3 On May 2 3 , 2016, Tebbi was injured when she fell as she was stepping off a treadmill at the L.A. Fitness gym in
Chatsworth. Tebbi claimed that as she was stepping off the back of a treadmill, her leg be came stuck on a metal object, possibl y the loosened back cover of the treadmill, causing her to trip and
fall. She broke her hip. On May 22, 2018, Tebbi filed he r complaint against
Fitness . She alleged three causes of action , entitled negligence

premise s liability, unsafe conditions

, and d angerous conditions on private property

. For all three causes of action, she alleged that she “turned off the treadmill and was stepping off, when suddenly and without warning she was stabbed by sharp metal dangerously protruding, which caused her to fall from the
machine.” For her premises liability cause of action, she alleged defendants “were negligent in that, among other things, they failed to exercise due care in the ownership, inspection, and
maintenance of the Premises.” For her unsafe conditions cause of action, she alleged defendants “knew or should have known through the exercise of reasonable care that the dangerously protruding metal was a condition on its property that created an
unreasonable risk of harm ” and defendants “failed to repair th e condition” or “give adequate warnings of the condition.” For her dangerous condition cause of action, Tebbi alleged the “sharp metal dangerously protruding constituted a dangerous condition
at the time of incident” a nd “ created a reasonably foreseeable risk of the kind of injury that occurred.”
Fitness filed an a nswer to the c omplaint in September
2018. It asserted a number of affirmative defenses, including the

r elease.4 On March 29, 2019, F arah F aram a rzi substitute d in as counsel for Tebbi. Tebbi’s p rior counsel had been recused in January 2019. During the ensuing discovery, Fitness was able to identify
the treadmill from which Tebbi fell. Tebbi testified at her deposit ion it was the back cover of the treadmill up on which she tripped. On March 6, 20 20, Fitness filed its motion for summary judgment or , in the alternative, summary adjudication

. The
motion was set for hearing on May 21, 2020. The motion identified three issues for summary adjudication: Tebbi could not establish that Fitness had actua l or constructive notice of the defect, and one or more of the causes of action were barred by the trivial defect and primary assumption of risk doctrines

. On April 21, 2020, Tebbi filed a motion for leave to file a
f irst amended complaint , with no speci fied hearing date

. Tebbi sought to add allegations to the three existing causes of action that the treadmills were placed very close to each other, forcing her to stop off the rear of the treadmill rather than the side , and that after she fell, a Fitness employee “negligently and carelessly ” lifted and “dragged” her to the reception area without her consent, causing additional injury. Tebbi also sought to add a fourth cause of action entitled negligence, which was base d on the
same facts as the first thre e causes of action

. On April 23 and 28, 2020, due to the COVID pandemic, the trial court continued the hearing on the motion for summary judgment to August 7, 2020, and set the hearing for the motion to
file an amended complaint for the same date.
On Jul y 24, 2020, Tebbi filed her opposition to Fitness’s summary judgment motion. In her memorandum of points and5

authorities, Tebbi raised the allegations about the close treadmill placement and her movement by an employee

. She listed those
facts as addition al undisputed material facts but did not offer
evidence showi ng additional details

. On July 2 7 , 2020, Fitness filed its opposition to the motion to file an amended complaint. Fitness pointed out that the facts
in the amended complaint were not new facts

. Fitness claimed it would be prejudiced by the delay because it had already filed a motion for summary judgment

. T h e next day

, Fitnes s filed a notice of withdrawal of its summary judgment motion.
O n September 10, 202 0, t he trial court denied the motion to amend without prejudice on the ground that the declaration by Tebbi’s attorney failed to state when the facts necessitating the amendments arose, as required by the California Rules of Court. On September 15 , 2020, Tebbi filed a new motion for leave

to file a first amended complaint. The proposed complaint was identical to the complaint attached to the April motion. The
motion was set for hearing on February 22, 2021. Tebbi ’s primary explanation for the delay in r equesting leave to amend was ongoing settlement talks. On October 26, 2020 , Fitness filed its motion for summary judgment or

, in the alternative

, summary adjudication, with a hearing date of January 15 , 2021. In this motion, which is the subject of this appeal, Fitness added the existence o f the release as a basis for summary judgment, and also as an issue for summary adjudication. Fitness repeated its three earlier grounds for summary adjudication

. On December 31, 2020 , Tebbi filed her opposition to th e summary judgment motion. She also filed a separate statement in opposition. She did not file any declarations or submit any6

additional evidence. She did not dispute that she signed the membership agreement which included the release. 1 She also did

no t dispute Fitness’s evidence about it s inspection, maintenance, and repair protocols and performance, Fitness’s statement that it had no notice of prior similar incidents or complaints about the metal protrusion at the end of its treadmills, or Fitness’s

s tatement that it had no notice that t he treadmill used by Te b bi needed repair in the weeks preceding her fall.
Tebbi argued Fitness had notice that by placing its treadmills close together, “it created a dangerous condition and safety issue as it made it d ifficult for Tebbi to properly get of f the
treadmill from the side of the treadmill and therefore

, she was forced to get off from the rear of the treadmill, which due to the protruding ‘metal’ object, caused her to fall and sustain injuries.”
She conte nde d the placement of the treadmills con stituted gross negligence and the waiver and release of liability did not release Fitness from liability for the treadmill placement.
Tebbi also contended that she did not consent to the employee moving her after the fa ll and that the employee’s action

cau sed “her injuries and pain to exacerbate.” She claimed that moving her “ [ did ] not fall within the purview of any defense theory Defendant [had] raised.” In its reply brief, Fitness
indicated that i t understood the emp loyee movement claim to be
a claim of gross negligence. On January 11, 2021, the court continued the hearing on the summary judgment motion to February 22, 2021, so that it

1 She did argue that the membersh ip agreement, including the release, was void for lack of consideration and was a n incomplete document. The trial court rejected these contentions and Tebbi does not repeat them on appeal.7

could be heard at the same time as Tebbi’s motion to file an amended complaint.
On February 3, 2021, Tebbi filed an ame nded notice for leave to file a first amended complaint, with a hearing date of
June 22 , 2021. The new proposed amended complaint added a new cause of action for battery but was based on the same factual allegations as the previous proposed amended compla int. Oral argument on the summary judgment motion proceeded as scheduled on February 22, 2021. Before argument, the trial court issued a tentative ruling in favor of Tebbi, finding
there were triable issues of fact on the notice, assumption of risk

, and t rivial defect issues. The tentative did not address the
release issue . At oral argument, counsel for Fitness brought the
omission of the release issue to the court’s attention. When the
trial court asked appellant to comment on the release, she replied: “[W]e believe that the evidence demonstrates that the back cover of the treadmill and them not fixing it was a dangerous condition

, your honor, that was grossly negligent. So they’re not relieved of liability.” The t rial court took the matter
under subm ission. The trial court’s final order granted summary judgment in favor of Fitness based on the release, which barred liability for ordinary negligence. The trial court foun d Tebbi had failed to offer any evidence sho wing gross negligence by Fitness , to which the release would have been inapplicable. The trial court did not continue the hearing on the summary judgment motion to
consider Tebbi’s amended motion for leave to file an amended complaint. This appeal followe d.8 DISCUSSION
We review an order gra nting summary judgment de novo. ( Parkview Villas Assn. Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4 th 1197, 1208.) Summary judgment is appropriate “if all the papers
submitted show that there is no triab le issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., 2 § 437c, subd. (c).) “The materiality of a disputed fact is measured by the pleadings.” ( Conroy v. Regents of University of Calif ornia (2009) 45 Cal.4th 1244, 1250 .)

“ The defendant bears the initial burden of showing that the plaintiff cannot establish one or more elements of the cause of action, or that there is an affirmative defense to it. (§ 437c,
subd. (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850 [ 107 Cal.Rptr.2d 841, 24 P.3d 493 ] [( Aguilar )] .) If the defendant makes one of the required showings, the burden shifts to the plaintiff to establish a triable issue of material fact. ” ( Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)

14 C al.App.5th 438, 443 ( Jacobs ) .)

“ The pleadings play a key role in a summary judgment motion and ‘ “ ‘set the boundaries of the issues to be resolved at

summary judgment .’ ” ’ [Citation.] ‘[T]he scope of the issues to be properly addressed in [a] summary judgment motion’ is generally
‘limited to the claims framed by the pleadings .’ ” ( Jacobs

, supra , 14 Cal.App.5th at p. 444 .)

2 Undesignated statutory references are to the Code of Civil Proc edure.9 Thus, t here are only two issues before us on appeal: 1) whether the trial court properly grant ed summary judgment
on the claims as framed by the pleadings before it

, and 2) whether the trial court abused its discretion in failing to allow Tebbi to amend her complaint. We hold that summary judgment was proper and there was no abuse of discretion in denying leave
to amend.

A

. The Summ ary J udgment Motion Fitness moved for summary judgment on the ground that

a ll the claims in Tebbi’s complaint were based on ordinary negligence, and so were barred by the release. A contract releasing a party from liab ility for future ordinary negligence is valid unless barred by statute or against public policy. ( Tunkl v. Regents of University of Cal ifornia (1963) 60 Cal.2d 92, 97

– 98;
Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877 ( Anderson ) .) Relea ses for recreational sports and exerc ise facilities are not against public policy ( Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084) and courts routinely enforce releases found in fitness club member agreements. (See, e.g. Grebin g v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 633 , 637 ( Grebing ) .)
Fitness also moved for summary adjudication on three
issues related to elements of Tebbi’s pleaded ordinary negligence
causes of action : lack of notice

, the trivial defect doct rine

, and the primary assumption of r isk doctrine.

1. The Court’s Tentative Ruling i n Favor o f Tebbi Was Incomplete and Non

- Binding In its tentative ruling, the trial court addressed only the three issues which formed the basis of Fitness’s request for10

summa ry adjudication. The ruling indicate d that Fitness’s own
evidence was conflicting a s to whether Fitness had notice of the protrusion

, and thus there was a triable issue of material fact on
that element. The court found the photographs proffered by
Fitnes s were not enough to show that the pr otrusion was a trivial
defect and thus Fitness had not met its initial burden of producing evidence . As to the assumption of risk doctrine, the
court foun d there was a triable issue of material fact as to
whether Fitne ss “increased the risks inherent in u sing a treadmill by failing to repair a broken treadmill

, ” and this issue prevented application of the doctrine. 3 The tentative indicated
the court was inclined to deny Fitness’s motion

. Tebbi devotes much of her brief to arguing that the reasoning of the tentative was correct. This ruling was, of course, not binding. (Cal. Rules of Court

, r ule 3.1 3 08( a ).) The ruling did not mention the release or use the term “gross negligence ” and
thus it was not complete and corre ct, and in no way should have
become the final ruling of the court. Further, given these omissions, the reasoning of the ruling can only be understood as address ing Fitness ’s requests for summary adjudication on three issues relating to Tebbi’s causes of action, all of which assert

3 The doctrine requires a def endant “to use due care not to increase the risks to a participant over and above those inherent in” the dangerous activity. ( Knight v. Jewett (1992) 3 Cal.4 th 296, 315

– 316.) In context, we understand the trial court’ s comments as focusing on whether Fit ness failed to use due care, and not as a finding that there was a triable issue of fact whether Fitness “substantially or unreasonably increased the inherent risk” in an activity as can support gross negligence. (See Anderson, supra , 4 Cal.App.5 th at p. 881.)11

some form of ordinary negligence. 4 A release is a n affirmative
defense to even merit or ious causes of action for ordinary negligence

. Fitness could and did move for and obtain summary judgment on the basis of Tebbi’s release. ( Aguilar, supra

, 25 Cal.4th at p. 849 ; § 437c, subds. (o)(2) & (p)(2) [cause of action
lacks merit if the “ defendant establishes an affirmative defense to
that cause of action. ”].) Thus, the trial court’s analysis of the summary adjudication issues relate d to Tebbi’s causes of action
for ord inary negligence became superfluous when the court found there were no triable issues of material fact as to the validity of
the release. To the extent that Tebbi’s arguments about the tentative ruling have any applica bility to the court’s final order,

we discuss them below.

2. The Final Order G ranting S ummary J udgment Is
Correct

. In it s order granting summary judgment based on the
release

, the trial court explained: “Having determined that the release operates as a comple te defense to Plaintiff’s negligence

- based causes of action, the burden shifts to Plaintiff to

4 At the end of the tentative, t he trial co urt stated , without elaboration

, that “the [c]ourt finds that Plaintiff’s ‘Additional Material Facts’ Nos. 23

– 25 raise triable issues of material fact. ” These three add itional facts concern the close place ment of the treadmills and Tebbi’s movement by a Fitness employee after her injury. The trial court did not explain its reasoning in reaching this conclusion or specify what the issues of fact were. Given the court’s failure to mention the release or the concept of gross negligence, we see no reason to believe that the court was referring to gross negligence. Again, this statement was in no way binding on the trial court.12

produce evidence demonstrating Defendant’s alleged conduct constituted gross negligence. The burden shifted to Plaintiff because the operative complaint does no t allege facts demonstrating gross ne gligence. [Citation.] [ ¶ ] Again, it must be noted, Plaintiff did not proffer any evidence in support of her opposition to the motion for summary judgment. Plaintiff instead relies on the evidence produced by Defendant in her attempt to
raise triable issu es of material facts. Notwithstanding this fatal flaw, the [c] ourt will analyze Plaintiff’s contentions that triable issues of material fact exist regarding whether Defendant’s actions or inaction constitute gross negl igence.” 5 The court continued: “In P laintiff’s Additional Facts, Plaintiff claims that Defendant placed treadmills in close proximity forcing Plaintiff to exit the treadmill she was using from the rear as opposed to stepping off the side of the treadmill. Upon exiting the treadmill from the rear , Plaintiff tripped and fell over a protruding metal cap. She also claims that after she fell, an employee of Defendant moved her causing injury and pain.” The court acknowledged that it was possible that a parti cular improper placement of a treadmi ll could greatly increase the risk of injury and could constitute such an extreme departure from the ordinary standard of care that it was gross negligence. The court found, however, that Tebbi “did not produce any evi dence that the placement of the tread mills in close proximity increased the risk of injury. Plaintiff does not proffer evidence as to what are the industry or manufacturer

5 The placement of the treadmills was shown i n two photographs which were part of Fitness’s evidence in support of summary judgment.13

safety standards regarding the placement of treadmills, and she does not produce ev idence that the placement of the trea dmills in close proximity to each other violated industry or manufacturer safety standards thereby increasing the risk of injury. In addition, Plaintiff has failed to demonstrate that Defendant’s employee’s actions in moving her after the fall equates to gross negligence. Such actions on an employee’s part may amount to ordinary negligence, but without more, such actions do not constitute gross negligence.” Tebbi contends that the trial court erred in requiring her to produce evidence, such as industry o r manufacturer safety standards, showing the treadmills were unsafely placed, and should instead have required Fitness to produce evidence showing the placement was safe. The law is clear on this issue, and it was corr ectly cited by
the trial court. A re lease does not bar claims based on gross negligence. When a plaintiff has signed a release, the plaintiff may, but is not required to, anticipatorily plead facts showing gross negligence

. ( Hass v. RhodyCo Productions (2018)
26 Cal.App.5th 11, 32 ( Hass ) .) The plaintiff’s pleading decision has consequences on summary judgment. ( Ibid .) When a complaint does not mention a release or plead facts sufficient to raise gross negligence as a material issue, the defendant is n ot required to refute gross negligenc e

. “ Instead, [defendant meets] its initial burden by producing evidence of the existence of the Release and its execution by [the plaintiff]

. The burden then
shift [s] to the [plaintiffs] to raise a triable issue of ma terial fact

as to gross negligence

. ” ( Id . at p. 33.) 6

6 This is a specific application of a general rule: “ If the moving defendant argues that it has a complete defense to the14 In the Argument section of her brief, Tebbi does not
address this law at all. She apparently bases her claim of error

on a claim in her statement of facts section that the court “erroneously found t hat the operative complaint did not a llege facts demonstrating gross negligence. The [c] ourt thereby disregarded the operative complaint’s allegation which alleged

‘ Plaintiff was on a treadmill at the Premises ’ . . . Plaintiff turned
off the treadmill an d was stepping off, when suddenly and without warning she was stabbed by sharp metal dangerously protruding, which caused her to fall from the machine.” 7 The Statement of Facts section is not the correct place to make arguments of legal erro r and is groun ds for forfeiture

. ( United
Grand Cor

p. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 ( United Grand ) .)

plaintiff's cause of action, the defendant ha s the initial burden to show that und isputed facts support each element of the affirmative defense. Once it does so, the burden shifts to plaintiff to show an issue of fact concerning at least one element of the defense. (§ 437c, subd. (o)(2).) If, in a nticipation of an affirmative defense , the complaint alleges facts to refute it, the pleadings themselves create ‘a material issue which defendant[] would have .

. . to refute in order to obtain summary [judgment].’ [Citation.] In the absence of such all egations, the plaintiff can avoid sum mary judgment only by presenting evidence sufficient to raise a triable issue concerning the affirmative defense.” ( Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.)

7 The trial court did not “disrega rd” the operative complaint. The tri al court expressly rejected Tebbi’s claim that the one

- inch protrusion of the metal cap could establish the “ ‘ want of even
scant care ’ ” or the “ ’ extreme departure from the ordinary standard of care ’ ” required for gr oss negligence.15 Even assuming the argument were not forfeited, it has no
merit. The short factual allegation cited by Tebbi shows at most
a failure on Fitne ss’s part to discover a dangerous con dition or to perform a duty, such as inspecting or maintaining the equipment and such “nonfeasance” amounts only to ordinary negligence. ( Anderson, supra , 4 Cal.App.5 th at p. 881.) We note that in her written oppositi on she described the gross negligence as

“ plac [ing] all the treadmills in close proximity to one another rendering it difficult for Plaintiff to be able to step off the
treadmill from the sides of the treadmill machine , as [ is ] routinely done.” To the ext ent that Tebbi contends her use of th e word “recklessly” in her complaint was sufficient to allege gross negligence, she is mistaken. “ Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. [ Citation.] However, to set forth a

c laim for ‘gross negligence’ the plaintiff must allege extreme
conduct on the part of the defendant.” ( Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 , italics added ; see Joshi v. Fitness Internat

. , L LC (2022) 80 Cal.App.5th 814, 828 [pl aintiff must allege facts sufficient to support a theory of gross negligence].) 8

8 Further, even assum ing for the sake of argument that the allegation of a metal protrusion was enough to allege gross negligence, Fitness offered undisputed evidence that it conducted regular inspections, maintenance

, and repairs. When a defendant undertakes such measures it s “ conduct cannot reasonably be regarded as demonstrating a want of even scant care or an extreme departure from the ordinary standard of conduct.” ( Grebing

, supra , 234 Cal.App.4th at p. 639.)16 The trial court was also correct that merely showing that the treadmills were placed close together did not create a triable
issue of mate rial fact concerning gross negligence

. Tebbi offered
no evidence that it was unsafe or unusual to place treadmills close together, or unsafe or unusual to dismount from a treadmill
at the rear rather th a n the sides . T here was no evidence from
Fitness on this topic on which she could rely

. T ebbi further contends that the trial court erred in finding
that she had “failed to demonstrate that Defendant’s employee’s actions in moving her after the fall equates to gross negligence. ”
She maintains that the re is a triable issue of fact concerning

w hether the Fitness employee’s act ions constituted gross negligence or a battery. The only evidence of the employee’s action is found in
Tebbi’s response to Special Interrogatory No. 2, in which she states: “[Fitness’s] employee, ‘Mario’, moved Plaintiff af ter she flew off the treadmill, without her consent, from the treadmill area of the gym to the reception area, causing her injuries and pain to exacerbate.” We would assess these facts even more critically than the tri al court , which found that the employ ee action might amount to ordinary negligence

. We find these facts do not permit any assessment of the level of care exercised by the employee , even when considered with the fact that Tebbi’s hip was subsequently disco vered to have been broken in her fall

. 9 Moving an injured person need not involve negligence

. 10

9 We disregard Tebbi’s s tatement that the movement exacerbate d her injuries. As phrased, this is simply an unsupported conclusion.

10 Although not discussed by the trial court, b attery requires an intent to harm or offend the victim ( So v. Shin (2013)17 Seizing on the trial court’s comment that “without more, [the employee’s] actions do not constitute gross negligence,” Tebbi
contend s tha t the trial court shoul d, at a minimum

, “have granted Plaint iff an opportunity to present more by amending her complaint rather than to grant summary judgment.” The trial court is referring to more evidence, not more allegations. As discussed above, because Tebbi did not allege facts showing gross negligence in he r complaint, she was required to offer evidence of gross negligence to avoid summary judgment. ( Hass, supra

, 26 Cal.App.5th at pp. 32

– 33.) Tebbi was able to offer some evidence about her movement by the employee, and we see nothing that would have preven ted her from offering more evidence about the circumstances of her movement to show gross negligence. She chose not to do so. We discuss her claim that she should have been permitted to amend her complaint to add a
ba ttery cause of action in the next sec tion.

B

. Motion for L eave to A mend
Tebbi’s third motion for leave to file a first amended complaint was pending when the trial court granted Fitness’s motion for summary judgment. She contends it was error to grant th e summary judgment motion without giv ing her the opportunity to amend her complaint. We review a trial court’s
decision t o deny a motion for leave to amend for abuse of
discretion. ( Melican v. Regents of University of California (2007) 151 Cal.App.4th 16 8, 175 ( Melican ) .) We see none.

212 Cal.App.4 th 652, 669), and there are no facts from which a
t rier of fact could infer such an intent on the part of an employee who has no apparent connection to Tebbi.18 “[C] ourts generally should permit amendment to the complaint at any stage of the proceedings, up to and including
trial. [ Citations

. ]

. . . Moreover, ‘ “ ‘even if a good amendment is proposed in proper form, unwarranted d elay in presenting it

may

— of itself

— b e a valid reason for denial.’ ” ’ [Citations.] Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is

‘ “offered after long unexplained delay .

. . or where there is a lack of diligence

. . . . ” ’ ” ( Melican, supra, 151 Cal.App.4th at p. 175.) Here, there was a long delay with no satisfactory explanation. Tebbi’s first motion for leave to amend was filed on April 21 , 2020, about two years after the case wa s filed, one year
after Tebbi’s curre nt attorney substituted into the case and one month after Fitness filed a motion for summary judgment.
Tebbi’s motion was denied on September 10, 2020

, because it
contained no attorney explanation for the two

- year dela y in seeking to amend the 2018 compla int to add facts known to Tebbi
since the incident in 2016. The timing of the motion could be understood to be tactical, to delay or to derail the summary judgment motion. Tebbi promptly filed a new motion to amend on September 15, 2020 , but the only exp lanation for the previous delay offered by her attorney was that the parties were engaged in settlement negotiations. Tebbi’s discovery responses , referenced in the attorney declaration, confirmed her attorney had been aware of
these facts since at least May 2019. Tebbi’s subsequent conduct suggest s she was attempt ing to use the motion to amend to delay or avoid summary judgment proceedings. She scheduled the hearing for her new motion on February 22, 2021. Fitness s ubsequently filed its motion for19

summ ary judgment, with a hearing date of January 15, 2021. On January 11, 2021, the trial court on its own motion continued the hearing to February 22, 2021, to be heard at the same time as
Tebbi’s motion to amend. Then o n February 3, 2021, Tebbi filed

an am ended motion to amend based on the same facts as her previously proposed amended complaints; the new complaint added a cause of battery based on Fitness’s employee’s movement
of Tebbi. T he hearing date was ultimately s et for June 2021.
The failure to off

er a satisfactory explanation for the long initial delay in filing a motion to amend, together with the strategic timing of the filing of the first and third motions, suggests Tebbi was trying to defeat summary judgment by

“ present[ing] a ‘moving target’ u nbounded by the pleadings.” (See Melican, supra

, 151 Cal.App.4th at p. 176.) Thus, the trial court did not abuse its discretion in denying Tebbi the opportunity to file a first amended complaint. (See id . at

pp. 176

- 177.) We also agree with Fitness tha t even if the trial court had abused its discretion, the denial of leave to amend did not result
in the miscarriage of justice required to warrant reversal

. (Cal. Const., art. VI, § 13.) As we have discussed above, t h e mere fact
that the treadmills were placed close together and an employee
moved Tebbi after she fell are not sufficient to show gross negligence. Thus, even if Tebbi had alleged those facts in an amended complaint, they would not have been sufficient to shift
th e burden on summary judgment to Fitness to negate gross negligence. Further, Tebbi had ample opportunity to present both these and additional unpleaded facts in opposition to summary judgment but did not present any additional facts. “ If
facts su pporting a theory of gross negligence exist, [plaintiff] had20

ample opportunity to present such facts; [her] failure to do so before the trial court does not warrant granting leave to amend on appeal.” (

Anderson, supra , 4 Cal.App.5 th at pp. 884

– 885.)

C

. La ck of Notice of New Judge
Tebbi conte nds she received no notice that a new judge had been assigned to her case, which occurred at some unknown time
before the hearing on the summary judgment motion on February 22, 2021. She contends this lack of notice pr evented her from filing a peremptory challenge pursuant to section 170.6, and the court therefore lacked jurisdiction over her cas e. She also
contends t he lack of notice violated her right to due process and the judge’s failure to allow her to amend her c omplaint resulted in prejudice to her

. T ebbi has not cited any legal authority to support her argument, except section 170.6, which details the procedures for challenges. She does not cite any authority to support her claim
that the lack of notice resulte d in a lack of jurisdiction. She doe s not cite any cases discussing the requirements for a due process violation in this or any context. This deficient argument alone is
sufficient to forfeit this claim. ( United Grand, supra

, 36 Cal.App.5th at p. 153 [W e may and do “ ‘ disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt. ’ ”].) In addition, Tebbi made no attempt to bring this issue to
the attention of the trial court at any time before

, during

, or after the hearing at which she presumably learned of the assignment.
This failure also result s in a forfeiture o f her claim on appeal. (See Andrisani v. Saugus Colony Limited (1992 ) 8 Cal.App.4th 517, 526.)21 DISPOSITIO N
The judgment is affirmed. Appellant to pay costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY , J.

VIRAMONTES , J.