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Fontana v. City and County of San Francisco10/30/2002
to trial, but moved to dismiss due to plaintiff's failure to appear, contending it would be "a waste of the Court's resources to send out." The following exchange took place:
Mr. Engler: It seems best to continue it then and dismiss if she doesn't appear. Why waste the Court's time?
The Court: I'm think about it. Why don't you two have a seat. I have some problems with you're telling me you're going to stipulate to it because -- do you have your client's authority to do that?
Mr. Engler: No.
The Court: I don't think so. That's why I've got problems with that. So you can't tell me right now that you can dismiss this case in 90 days if she doesn't show up unless she agrees. All you can do is withdraw from the case. That's different. And so, you know, I take that statement with a grain of salt regarding dismissal.
Mr. Engler: I could put it this way, the Court can dismiss it.
The Court: I can do that right now, according to him.
Mr. Engler: Well, I know, but that wouldn't be justice, your Honor.
The Court:Well, a fourth or fifth continuance wouldn't be. Fontana's counsel argued against dismissal, but observed, " t might be best for me if you did [dismiss the case], your Honor . . . ." The presiding judge denied the oral request for a continuance and assigned the case to a trial department without ruling on the City's motion for a dismissal. Fontana's counsel then requested that the case trail for three days to give Ms. Fontana an opportunity to appear personally. The court denied this request.
Before the trial judge, the City renewed its motion to dismiss based on Fontana's failure to appear for trial. The City also requested that Fontana's deposition be excluded from evidence. The City argued it would be prejudiced by its inability to cross-examine Fontana at trial if she were permitted to try the case on her deposition testimony. Fontana was the only witness to the alleged fall on the sidewalk, and her credibility was a key issue for the finder of fact at trial. Counsel for the City explained that ordinarily, if there is concern that a party might not appear at trial, the City's practice is to depose the party for both discovery and cross-examination purposes and often to videotape the deposition, but that this was not done in conjunction with Fontana's deposition. Rather, the City deposed Fontana for discovery purposes only because it had no reason during discovery to think she might not appear for trial.
The City also requested that the court exclude Fontana's deposition as an appropriate sanction for failing to appear at trial. The City indicated its belief that if the deposition were excluded, Fontana would be unable to establish a prima facie case, and that the action should be dismissed on that basis. Finally, as another basis for dismissal, the City argued Fontana would have trouble establishing a prima facie case because of "evidentiary problems in terms of presenting medical testimony through medical records," and referred to "some of the ways that the court has indicated it's going to rule on the motions in limine." The record contains a written motion to dismiss on the same grounds that was apparently filed on the same day, July 23, 2001.
Fontana's counsel stated that he "disagree with everything" the City had just argued, except the City's contention that Fontana could not establish her case without the admission into evidence of her deposition. Mr. Engler expressly conceded this point. He also argued, "I believe the deposition should be permitted to be entered into evidence. The notice to my client to appear I don't believe is valid. She does not live
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