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Fontana v. City and County of San Francisco10/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Eliane Fontana (Fontana), a resident of Brazil, brought suit against the City and County of San Francisco (the City), alleging that she slipped and fell on a City sidewalk. On appeal, Fontana contends it was error for the trial court to dismiss her case based on her failure to appear personally at trial and to comply with the notice to appear.
Fontana also contends the trial court erred in excluding her deposition from evidence. We conclude the trial court did not abuse its discretion in excluding the deposition and that dismissal was appropriate under the circumstances. Accordingly, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 1999, Fontana filed a complaint for damages against the City, alleging that she suffered injury from slipping and falling on a City sidewalk. The City filed its answer on September 24, 1999. The matter was set for trial on December 26, 2000.
On December 13, 2000, Fontana moved to continue the trial date "due to personal and legal matters that require her presence in Brazil at or about the time of trial . . . ." The declaration of Fontana's counsel stated that Fontana is a citizen and resident of Brazil. The court granted the unopposed motion and continued the trial to March 26, 2001.
Fontana did not appear for trial on March 26, 2001. Instead, her counsel, George J. Engler, requested a continuance, claiming he had lost contact with his client for two months. He had finally been able to contact her on the Friday before trial and she claimed she was medically unable to travel. The City opposed the request because the trial had already been continued once based on Fontana's claimed unavailability. The City was ready to try the case. The court trailed the matter for one day on counsel's offer to produce competent evidence of Fontana's unavailability to travel for medical reasons. The court indicated that the case would be sent out for trial if no competent evidence were produced. The next day, despite counsel's failure to produce any of the promised documentation, the court continued the trial to July 16, 2001.
On May 17, 2001, the City filed a motion to continue the July 16 trial date to July 23, 2001 so that its one witness, a medical expert, could attend trial. Fontana did not oppose the motion, and the court continued the trial to July 23.
On July 3, 2001, the City served on Fontana's counsel a notice to Fontana to appear at trial on July 23, 2001 and produce documents pursuant to Code of Civil Procedure section 1987, subdivisions (b) and (c).
On July 23, Fontana appeared for trial only through her counsel; she herself was not present in court. When the presiding judge supervising the master calendar called the case, Mr. Engler stated that Fontana had informed him four days earlier that she was medically unable to travel. Mr. Engler requested a 60-day continuance and offered to stipulate to dismissal with prejudice if she again failed to appear. Alternatively, he indicated that he would put on her case through her deposition testimony and by calling four custodians of records. The court noted that there was a "history" of Fontana's failure to appear for trial and requests for continuance, and that the case had "been in front of me, the Court[,] too many times." The City indicated its readiness to go
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