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Fontana v. City and County of San Francisco10/30/2002
nted plaintiffs permission to amend." (Ibid.)
Trial courts also have inherent discretionary power to dismiss claims or actions with prejudice when a plaintiff has failed to prosecute the action diligently or when the complaint has been shown to be a sham or fictitious such that the plaintiff has no valid cause of action. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.) This dismissal power is limited because of the strong public policy favoring resolution of litigation on the merits rather than on procedural grounds. (Id. at p. 916.) When a court is considering dismissing an action, it must consider and apply sanctions less severe than dismissal with prejudice unless its authority cannot possibly be otherwise vindicated. (Id. at p. 917.)
Here, the court dismissed Fontana's action when she failed to appear personally for trial and instead requested what would have been her third continuance of the trial date. Fontana had previously requested a continuance of the December 26, 2000 trial date by noticed motion because she was unable to be present in court on that date. She requested that the court continue the trial to a date after February 15, 2001, so that she could be present for trial. The continuance was granted by order of the court, with trial set for March 26, 2001.
On March 26, 2001, Fontana's counsel appeared for trial, but Fontana herself did not. Mr. Engler orally moved for a continuance on grounds that he had "lost contact [with Fontana] for two months" and that he had just learned that she was unavailable for medical reasons. The record reflects that counsel decided to request a continuance at least two weeks before the trial date, but did not file a motion for a continuance or otherwise inform the court prior to the day of trial. The court trailed the matter for one day to give Mr. Engler an opportunity to obtain documented verification, but warned that failure to provide competent evidence would result in the matter being sent to trial. On March 27, Mr. Engler did not provide the promised verification from Fontana's doctor, but stated that Fontana had told him that she was would not be able to travel to be present at trial until June or July. Despite no competent evidence of unavailability, the court continued the trial to July 16, 2001.
On July 23, 2001, the identical scenario took place. The case was called; Mr. Engler appeared for Fontana, but she herself was not present. Mr. Engler once again requested a continuance on the ground that Fontana was "medically . . . unable to travel." This time, it appears that counsel had four days' notice from his client that "she would not be able to come." Once again, Mr. Engler had no competent evidence of any medical unavailability.
The pattern of disregard for the court's procedures and docket, and willingness to waste the court's time and resources is unmistakable. Moreover, Fontana repeatedly requested and obtained continuances of the trial date so that she could appear personally. The continuance of a trial date is an order of the court. The court's order continuing trial to March 26 was filed on December 21, 2000, and is included in the record on appeal. The order continuing the trial to July 16 is not included, but the transcript from proceedings on March 27 includes reference to it by the court when the continuance was granted. Despite these court orders, Fontana failed to appear, failed to move for a continuance prior to the date of trial, and offered only vague, unsubstantiated excuses.
Under all the circumstances, we cannot say that it was an abuse of discretion for the trial court to conclude that Fontana was not only failing to comply with, but also flaunting, the court's order
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