Filed 7/25/23 Tebbi v. Fitness International CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

VIDA TEBBI,

Plaintiff and Appellant,

v.

FITNESS INTERNATIONAL, 

LLC,

Defendant and Respondent.

B313092

(Los Angeles County

Super. Ct. No. BC707114)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael E. Whitaker, Judge. Affirmed.

Lioness 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 operated 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, 

contending 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 granting summary judgment without 

allowing 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 case, and this voids the entire proceeding. 

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 2012, Tebbi signed a 

membership agreement with L.A. Fitness with a release and 

waiver of liability and indemnity (release). The release provided

that Tebbi understood and assumed the risk of using Fitness’s 

facilities, services, equipment, and premises, including 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 any L.A. 

Fitness facilities, services or equipment.”
3

On May 23, 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 became stuck on a metal object, possibly 

the loosened back cover of the treadmill, causing her to trip and 

fall. She broke her hip.

On May 22, 2018, Tebbi filed her complaint against 

Fitness. She alleged three causes of action, entitled negligencepremises liability, unsafe conditions, and dangerous 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 the 

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” and “created a reasonably foreseeable risk 

of the kind of injury that occurred.”

Fitness filed an answer to the complaint in September 

2018. It asserted a number of affirmative defenses, including the 

release.
4

On March 29, 2019, Farah Faramarzi substituted in as 

counsel for Tebbi. Tebbi’s prior 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 

deposition it was the back cover of the treadmill upon which she 

tripped.

On March 6, 2020, 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 actual 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 

first amended complaint, with no specified 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 based on the 

same facts as the first three 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 July 24, 2020, Tebbi filed her opposition to Fitness’s 

summary judgment motion. In her memorandum of points and 
5

authorities, Tebbi raised the allegations about the close treadmill 

placement and her movement by an employee. She listed those 

facts as additional undisputed material facts but did not offer 

evidence showing additional details.

On July 27, 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. The next day, Fitness filed a 

notice of withdrawal of its summary judgment motion.

On September 10, 2020, the 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 requesting 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 of 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 the 

summary judgment motion. She also filed a separate statement 

in opposition. She did not file any declarations or submit any 
6

additional evidence. She did not dispute that she signed the 

membership agreement which included the release.1 She also did 

not dispute Fitness’s evidence about its 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 

statement that it had no notice that the treadmill used by Tebbi 

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 difficult for Tebbi to properly get off 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 contended the placement of the treadmills constituted 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 fall and that the employee’s action

caused “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 it understood the employee 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 membership agreement, including 

the release, was void for lack of consideration and was an 

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 amended 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 complaint.

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 trivial 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 trial court took the matter 

under submission.

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 found Tebbi had failed to 

offer any evidence showing 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 followed.
8

DISCUSSION

We review an order granting summary judgment de novo. 

(Parkview Villas Assn. Inc. v. State Farm Fire & Casualty Co.

(2005) 133 Cal.App.4th 1197, 1208.)

Summary judgment is appropriate “if all the papers 

submitted show that 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.” (Code Civ. Proc.,2 § 437c, subd. (c).) “The 

materiality of a disputed fact is measured by the pleadings.” 

(Conroy v. Regents of University of California (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 Cal.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 

Procedure.
9

Thus, there are only two issues before us on appeal: 

1) whether the trial court properly granted 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 Summary Judgment Motion

Fitness moved for summary judgment on the ground that 

all the claims in Tebbi’s complaint were based on ordinary 

negligence, and so were barred by the release. A contract 

releasing a party from liability for future ordinary negligence is 

valid unless barred by statute or against public policy. (Tunkl v.

Regents of University of California (1963) 60 Cal.2d 92, 97–98; 

Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877

(Anderson).) Releases for recreational sports and exercise 

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. Grebing 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 doctrine, and the

primary assumption of risk doctrine.

1. The Court’s Tentative Ruling in Favor of 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 for 
10

summary adjudication. The ruling indicated that Fitness’s own 

evidence was conflicting as 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 

Fitness were not enough to show that the protrusion 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 found there was a triable issue of material fact as to 

whether Fitness “increased the risks inherent in using 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, rule 3.1308(a).) The ruling did 

not mention the release or use the term “gross negligence” and 

thus it was not complete and correct, 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

addressing 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 defendant “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.4th

296, 315–316.) In context, we understand the trial court’s 

comments as focusing on whether Fitness 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.5th at p. 881.)
11

some form of ordinary negligence.4 A release is an affirmative

defense to even meritorious 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 related to Tebbi’s causes of action 

for ordinary 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 applicability to the court’s final order, 

we discuss them below.

2. The Final Order Granting Summary Judgment Is 

Correct.

In its order granting summary judgment based on the 

release, the trial court explained: “Having determined that the 

release operates as a complete defense to Plaintiff’s 

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

4 At the end of the tentative, the trial court 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 additional facts concern the close placement 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 not allege facts 

demonstrating gross negligence. [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 issues 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 negligence.” 5

The court continued: “In Plaintiff’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 

particular improper placement of a treadmill 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 evidence that the placement of the treadmills 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 in 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 evidence that the placement of the treadmills 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 or 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 correctly cited by 

the trial court. A release 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 not 

required to refute gross negligence. “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 material 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 the 
14

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 that the operative complaint did not allege

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 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.”7 The 

Statement of Facts section is not the correct place to make 

arguments of legal error and is grounds for forfeiture. (United

Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 

142, 153 (United Grand).)

plaintiff's cause of action, the defendant has the initial burden to 

show that undisputed 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 anticipation 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 allegations, the plaintiff can 

avoid summary 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 “disregard” the operative complaint. 

The trial 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 gross 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 Fitness’s part to discover a dangerous condition 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.5th at p. 881.) We note that in her 

written opposition 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 extent that Tebbi contends her use of the 

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 

claim 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., LLC (2022) 80 Cal.App.5th 814, 828

[plaintiff must allege facts sufficient to support a theory of gross 

negligence].)8

8 Further, even assuming 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 its “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 material 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 than the sides. There was no evidence from 

Fitness on this topic on which she could rely.

Tebbi 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 there is a triable issue of fact concerning 

whether the Fitness employee’s actions 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 after 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 trial court, which found that the employee 

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 discovered to have been broken in her fall.

9

Moving an injured person need not involve negligence.

10

9 We disregard Tebbi’s statement that the movement 

exacerbated her injuries. As phrased, this is simply an 

unsupported conclusion.

10 Although not discussed by the trial court, battery 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 

contends that the trial court should, at a minimum, “have 

granted Plaintiff 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 her 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 prevented 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 

battery cause of action in the next section.

B. Motion for Leave to Amend

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 the summary judgment motion without giving her the 

opportunity to amend her complaint. We review a trial court’s 

decision to deny a motion for leave to amend for abuse of 

discretion. (Melican v. Regents of University of California (2007) 

151 Cal.App.4th 168, 175 (Melican).) We see none.

212 Cal.App.4th 652, 669), and there are no facts from which a 

trier 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 delay in presenting it 

may—of itself—be 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 was filed, one year 

after Tebbi’s current 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 delay in 

seeking to amend the 2018 complaint 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 explanation 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 suggests she was attempting 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 subsequently filed its motion for 
19

summary 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 on February 3, 2021, Tebbi filed 

an amended 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. The hearing date was ultimately set for June 2021.

The failure to offer 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’ unbounded 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 that 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, the 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 

the 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 supporting a theory of gross negligence exist, [plaintiff] had 
20

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.5th at pp. 884–885.)

C. Lack of Notice of New Judge

Tebbi contends 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 prevented her from 

filing a peremptory challenge pursuant to section 170.6, and the 

court therefore lacked jurisdiction over her case. She also 

contends the lack of notice violated her right to due process and 

the judge’s failure to allow her to amend her complaint resulted 

in prejudice to her.

Tebbi 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 resulted in a lack of jurisdiction. She does 

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 [We 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 results in a forfeiture of her claim on appeal. 

(See Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 

517, 526.)
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DISPOSITION

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.