Tebbi v. Fitness International CA2/8 ( 2023 )

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, B313092
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC707114)
v.
FITNESS INTERNATIONAL,
LLC,
Defendant and Respondent.
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.
_________________________
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.”
2
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 negligence-
premises 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.
3
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
4
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
5
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.
6
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.
7
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.
8
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
9
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.)
10
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.
11
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.
12
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
13
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.
14
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.)
15
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)
16
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.
17
“[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
18
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
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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.
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