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Fontana v. City and County of San Francisco10/30/2002
p. 275.) The appellate court affirmed, concluding that to preserve the integrity of the judicial system, courts have inherent power to exclude evidence to prevent an abuse or an unfair advantage by a party to litigation. (Id. at pp. 288-289.)
In Castaline, a personal injury action, the trial court excluded the testimony of a doctor who examined one of the plaintiffs three days before trial. (Castaline v. City of Los Angeles, supra, 47 Cal.App.3d at p. 591.) The defendant objected that the doctor would be a " `surprise witness.' " (Ibid.) Defense counsel stated that, based on interrogatory responses he received from plaintiffs indicating they had fully recovered from their injuries, he had withdrawn defendant's request that plaintiffs be examined by defendant's physician. (Id. at pp. 591-592.) The plaintiffs did not state what they expected the doctor's testimony to prove. (Id. at p. 592.) The appellate court concluded the defendant's claim of unfair surprise had merit, noting that the defendant produced no medical testimony and plaintiffs did not challenge defendant's statement that it cancelled the medical examination after receiving the interrogatory answers. (Ibid.)
Similarly here, the trial court excluded Fontana's deposition to prevent her from gaining an unfair advantage in the litigation and to remedy prejudice to the City. The circumstances of this case support the trial court's ruling. On the day of trial, when the court refused Fontana's request for yet another continuance, Fontana's counsel announced, to the City's surprise, that he would proceed on Fontana's deposition testimony to establish liability. The City argued that it would be prejudiced by the inability to cross-examine and impeach Fontana before the jury. The City had deposed Fontana for discovery purposes only and had no reason to think she would not appear for trial.
Fontana did not take issue with these assertions. Moreover, although the notice to Fontana to appear at trial was not enforceable, she did not object or otherwise indicate that she would not appear. Fontana should not be permitted to take advantage of the court's inability to compel her attendance at trial and thereby gain an unfair advantage where (1) the City reasonably expected that she would appear as a witness at trial; (2) it did all it could to compel her attendance; (3) there was no competent evidence of any reason for her failure to appear; and (4) her credibility as a witness was a key issue for the trier of fact. On this record, we cannot say that the court abused its discretion in excluding the deposition.
Fontana's counsel expressly conceded that if Fontana's deposition were excluded, a prima facie case could not be established. Unquestionably, the trial court has discretion to dismiss an action without prejudice where a plaintiff admits she cannot establish her case.
Finally, Fontana contends for the first time on reply that the trial court does not have discretionary power to dismiss a case for lack of prosecution except on properly noticed motion. This may be true as a general principle, but the trial court did not dismiss for lack of prosecution. Moreover, Fontana waived this issue, or any issue regarding notice, by failing to raise it in the trial court or in her opening brief on appeal.
III. DISPOSITION
The judgment is affirmed.
We concur:
Marchiano, P.J.
Stein, J.
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