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Fontana v. City and County of San Francisco10/30/2002
in the state. She is a resident of a foreign country. I believe if I could proceed on her deposition, I could make a case, at least a prima facie case."
It was stipulated on the record that Fontana was in Brazil. It was further stipulated that there was no current evidence before the court that Fontana was unable for any reason to be present in court other than she was in Brazil.
Upon submission of the matters, the court excluded the deposition and granted the motion to dismiss without prejudice. The court based its ruling on section 581, subdivisions (b)(5) and (l) for Fontana's failure to appear for trial and on her failure to comply with the notice to appear pursuant to section 1987, subdivision (b). The court excluded the deposition because (1) there was no showing Fontana was unable to attend trial, (2) the City would be prejudiced by the inability to cross-examine her, and (3) Fontana failed to appear pursuant to the notice to appear. Finally, the court granted the City's motion to dismiss for the additional reason that Fontana had conceded her inability to make a prima facie case of liability without her deposition.
Fontana timely appealed the judgment ordering dismissal of her case.
II. DISCUSSION
This court reviews a trial court's dismissal of an action for abuse of discretion. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Karras v. Western Title Ins. Co. (1969) 270 Cal.App.2d 753, 757.) Evidentiary rulings are also reviewed for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 214-215.) " `The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' " (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136, citations omitted.)
It bears repeating the well-settled principle that " ` judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, citations and italics omitted.) " n appellate court reviews the action of the lower court and not the reasons given for its action; . . . there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct." (Estate of Beard (1999) 71 Cal.App.4th 753, 776, original italics.) Thus, we will affirm the trial court's order if it is correct on any theory of the case, even if the court failed clearly to specify a proper basis for its ruling. (Id. at p. 777; People v. Evans (1967) 249 Cal.App.2d 254, 257.)
Fontana contends the trial court erred in dismissing her case because her appearance at trial through her attorney was sufficient under section 581, and therefore, her personal appearance was not necessary. Section 581, subdivisions (b)(5) and (l) provide for dismissal without prejudice when either party fails to appear at trial and the other party appears and requests the dismissal. It is well established that a party may appear at trial through its attorney. (Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1699-1700; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008; Silvagni v. Superior Court (1958) 157 Cal.App.2d 287, 291.) Fontana's appearance through counsel satisfied the requirement that she appear at trial. Thus, the trial court did not have discretion to dismiss Fontana's action on this basis. (Link v. Cater, supra, 60 Cal.App.4th at p. 1321.)
Fontana also contends the dismissal was error becaus
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