Meza v. Portfolio Recovery Associates, LLC, 021519 CASC, S242799
|Opinion Judge:||CANTIL-SAKAUYE, C. J.|
|Party Name:||JULIA C. MEZA, Plaintiff and Appellant, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, et al., Defendants and Respondents.|
|Attorney:||Consumer Law Center, Inc., Fred W. Schwinn, Raeon R. Roulston, Matthew C. Salmonsen; Horwitz, Horwitz & Associates and O. Randolph Bragg for Plaintiff and Appellant. Sharon Djemal, Robin Wetherill, Leigh E. Ferrin, Kari E. Gibson, Arthur D. Levy and Noah Zinner for East Bay Community Law Center, ...|
|Judge Panel:||Chief Justice Cantil-Sakauye authored the opinion of the court, in which Justices Chin, Liu, Corrigan, Kruger, Groban, and Jenkins concurred. We Concur: CHIN, J. CORRIGAN, J. LIU, J. KRUGER, J. GROBAN, J. JENKINS, J.|
|Case Date:||February 15, 2019|
|Court:||Supreme Court of California|
Ninth Circuit 15-16900, Northern District of California 5:14-cv-03486-LHK
Consumer Law Center, Inc., Fred W. Schwinn, Raeon R. Roulston, Matthew C. Salmonsen; Horwitz, Horwitz & Associates and O. Randolph Bragg for Plaintiff and Appellant.
Sharon Djemal, Robin Wetherill, Leigh E. Ferrin, Kari E. Gibson, Arthur D. Levy and Noah Zinner for East Bay Community Law Center, Public Law Center and Housing and Economic Rights Advocates as Amici Curiae on behalf of Plaintiff and Appellant.
Simmonds & Narita, Tomio B. Narita, Jeffrey A. Topor and Jennifer L. Yazdi for Defendants and Respondents.
Chief Justice Cantil-Sakauye authored the opinion of the court, in which Justices Chin, Liu, Corrigan, Kruger, Groban, and Jenkins [*] concurred.
CANTIL-SAKAUYE, C. J.
This state recognizes a subset of civil actions, known as limited civil cases, in which the amount in controversy does not exceed $25, 000 and the parties seek only certain types of relief. (See Code Civ. Proc., § 85.)1 The rules in limited civil cases concerning subjects such as pleading, discovery, and the presentation of evidence differ in some respects from the procedures followed in other civil matters. As indicated by their shared heading within the code, “Economic Litigation for Limited Civil Cases” (§§ 90-100), these departures from normal procedural practices are designed to make it more affordable to pursue and defend actions falling within the limited civil classification.
This case involves one of the economical litigation rules. Statements made outside of trial are generally regarded as hearsay when they are offered for their truth (see Evid. Code, § 1200, subd. (a)), and hearsay statements are normally inadmissible unless they fit within a statutory exception to the hearsay rule (id., subd. (b)). But in limited civil cases, a sworn written statement, the contents of which otherwise might constitute inadmissible hearsay, may sometimes be admitted on the same terms applicable to live witness testimony. One such scenario arises when a party offers into evidence an affidavit or declaration (with these terms hereafter being used interchangeably) and “a copy [of the affidavit] has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.” (Code of Civ. Proc., § 98, subd. (a) (hereafter section 98(a)).)
We have accepted a request by the United States Court of Appeals for the Ninth Circuit to decide a question of state law associated with this provision. (See Cal. Rules of Court, rule 8.548(a).) That court asks, “Under section 98(a)... must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”
Upon our review of the language, purpose, and history of section 98(a), we answer this question as follows: A section 98(a) affiant's personal availability for service at an address within 150 miles of the place of trial often will be required for his or her affidavit to be admissible as evidence under that section, but such presence is not invariably necessary for all affiants. To explain, section 98's limited exception to the hearsay rule is predicated on the party or parties against whom a sworn statement is offered having an opportunity to examine the maker of the statement under oath. Section 98(a) thus requires the provision of an address within 150 miles of the place of trial at which the affiant can be lawfully served with a form of process designed to secure his or her appearance at trial, at which time the affiant can be called as a witness. Although one such type of process, a subpoena ad testificandum (i.e., a subpoena to testify), typically must be personally served, there are exceptions to this general rule, and at least some prospective witnesses can be called to appear at trial through another form of process that does not require personal service. Section 98(a) therefore does not categorically require that all affiants be personally present for service at an address within 150 miles of the place of trial for a reasonable period during the 20 days prior to trial. Such personal presence is required only if it is necessary for lawful service, at the specified location, of process that directs the affiant to appear at trial, under the standard rules prescribing the pertinent types of process and how such process is to be served.
I. Factual and Procedural Background
In 2010, defendants Portfolio Recovery Associates, LLC; Hunt & Henriques; Michael Scott Hunt; Janalie Ann Henriques; and Anthony DiPiero (hereafter collectively referred to as defendants) filed a limited civil case against plaintiff Julia Meza in San Mateo County Superior Court. Defendants sued to collect a debt from Meza. Meza had incurred this debt through a consumer credit account with Wells Fargo Bank, N.A. After Meza defaulted on the account, Portfolio Recovery Associates, LLC acquired the right to pursue the obligation and then referred the debt to Hunt & Henriques, a law firm, for collection purposes. The remaining defendants (DiPiero, Hunt, and Henriques) were attorneys with Hunt & Henriques during the relevant time period.
Prior to trial in the state court proceeding, Meza was served with a declaration bearing the caption, “Declaration of Plaintiff in Lieu of Personal Testimony at Trial (CCP § 98).” Section 98, the statute identified in the caption, provides in full as follows: “A party may, in lieu of presenting direct testimony, offer the prepared testimony of [relevant] witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies: [¶] (a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial. [¶] (b) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition. [¶] The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.”
This declaration was sworn to by Colby Eyre, who identified himself as a custodian of records for Portfolio Recovery Associates, LLC. Eyre attested that he had “personally reviewed the books and records pertaining to [Meza's] credit card account number, ” which revealed a balance of more than $11, 000 owed on the account. Eyre also declared that “[p]ursuant to CCP § 98 this affiant is available for service of process: c/o Hunt & Henriques, 151 Bernal Road, Suite 8, San Jose, CA 95119 for a reasonable period of time, during the twenty days immediately prior to trial.” Eyre's declaration did not explain how service was to occur at the 151 Bernal Road location, or what the effect of that service would be.
Meza undertook no efforts in the state court proceeding to serve Eyre with a subpoena ad testificandum at the 151 Bernal Road address, or anywhere else. For reasons not apparent in the record, the action was dismissed in July 2014, five days prior to the noticed trial date. Had the trial occurred, the place for trial identified in the clerk's notice of court trial was the Hall of Justice in Redwood City, California. As any map of the area will show, the San Jose address provided in Eyre's declaration is well within 150 miles of the Redwood City courthouse.
Meza initiated her federal action in August 2014. In her lawsuit, framed as a putative class action under the Fair Debt Collection Practices Act, 15 United States Code section 1692 et seq. (hereafter the FDCPA), Meza alleges that when Eyre submitted his section 98 declaration, both his “principal office” and his residence were located more than 150 miles from the Redwood City courthouse and that Eyre “was not reasonably available for service of process...
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