Meza v. Portfolio Recovery Assocs., LLC
| Citation | 860 F.3d 1218 |
| Decision Date | 22 June 2017 |
| Docket Number | No. 15-16900,15-16900 |
| Parties | Julia C. MEZA, Plaintiff-Appellant, v. PORTFOLIO RECOVERY ASSOCIATES, LLC; Hunt & Henriques, a general partnership; Michael Scott Hunt; Janalie Ann Henriques; Anthony J. Dipiero, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
We certify to the California Supreme Court the question set forth in Part II of this order. Further proceedings are stayed pending receipt of the response to the certified question, and this case is withdrawn from submission until further order of this court. If the California Supreme Court accepts the certified question, the parties will file a joint status report six months after the date of acceptance, and every six months thereafter, advising us of the status of the proceeding.
Julia Meza is deemed the petitioner in this request because she appeals from the district court's ruling on this issue. The caption of the case is:
The names and addresses of counsel are:
For Plaintiff-Appellant Julia C. Meza: Owen Randolph Bragg, Horwitz, Horwitz & Associates, 25 East Washington Street, Suite 900, Chicago, IL 60602; Raeon R. Roulston & Fred W. Schwinn, Consumer Law Center, Inc., 12 South First Street, Suite 1014, San Jose, CA 95113-2418.
For Defendants-Appellees Portfolio Recovery Associates, LLC; Hunt & Henriques, a general partnership; Michael Scott Hunt; Janalie Ann Henriques; and Anthony J. Dipiero: Tomio Buck Narita & Jeffrey Topor, Simmonds & Narita, LLP, 44 Montgomery Street, Suite 3010, San Francisco, CA 94104.
Pursuant to California Rule of Court 8.548(b)(2), we certify the question presented below. There is no controlling California precedent regarding the certified question, and the answer to the question could determine the outcome of this appeal. Cal. R. Ct. 8.548(a). It is also an issue likely to recur and affect thousands of cases filed in the "limited civil division" of the California Superior Courts. The issue has divided the Appellate Divisions of several Superior Courts, and there is no authority from any District Court of Appeal. The question certified is as follows:
Under § 98(a) of the California Code of Civil Procedure, must the affiant1 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?
Our phrasing of this question is not intended to restrict the California Supreme Court's consideration of the issues, Cal. R. Ct. 8.548(f)(5), and we agree to accept and follow the decision of the California Supreme Court, Cal. R. Ct. 8.548(b)(2).
Julia Meza had a consumer credit card account with Wells Fargo Bank, N.A. She later defaulted on her credit account, and the defaulted debt was sold to Portfolio Recovery Associates ("PRA"). PRA placed the debt with the law firm of Hunt & Henriques ("H & H") for collection, and the firm, along with PRA ("Appellees"), filed a lawsuit in the Superior Court of California, San Mateo County, to collect the defaulted debt from Meza.
As part of the collection action, Appellees served Meza with a document titled, "Declaration of [PRA] in Lieu of Personal Testimony at Trial (CCP § 98 )." The declaration—filed pursuant to California Code of Civil Procedure § 98 —described Meza's unpaid account and was signed by a PRA employee, Colby Eyre, who authenticated the basis for claiming the amounts owed. It also stated that, "Pursuant 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."
The parties agree that the above address is not Colby Eyre's work address. They also agree that Eyre lives more than 150 miles from the relevant county courthouse. However, it is clear that H & H was authorized to accept service of process on Eyre's behalf, and that H & H's law offices are within § 98's 150-mile requirement.
Based on these underlying facts, Meza filed a putative class action in the United States District Court for the Northern District of California in August 2014, alleging that PRA failed to comply with California Code of Civil Procedure § 98. In her First Amended Complaint, she purported to represent "(i) all persons residing in California, (ii) who were served by [PRA] with a Declaration in Lieu of Personal Testimony at Trial, pursuant to California Code of Civil Procedure § 98, (iii) where the declarant was located more than 150 miles from the courthouse where the collection lawsuit was pending." She claimed that PRA's declaration was invalid because Eyre was not personally available for service at the address provided in his declaration. And she argued that PRA's use of this declaration misrepresented that it would be admissible at trial. She therefore maintained that PRA was in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. , which, among other things, prohibits debt collectors from using false, deceptive, misleading, or unfair representations to collect any debts.
On April 27, 2015, Appellees filed a motion for summary judgment and argued that California Code of Civil Procedure § 98 simply requires the affiant to be "available for service of process" within 150 miles of the place of trial, not personally available for service at the address provided. The district court agreed, finding that the plain language of § 98 did not require the affiant's physical presence, and that the legislative history and purpose of the statute supported that interpretation. The district court therefore held that PRA's declaration complied with § 98 and contained no false or misleading statements in violation of the FDCPA. It granted Appellees' motion and entered judgment in their favor.
Meza timely appealed.
This appeal turns on whether California Code of Civil Procedure § 98 requires the affiant to be physically located and personally available for service of process at the address provided in the declaration. The question is purely one of state law and is dispositive of this appeal—if physical presence is not required, then PRA complied with the state statute and did not make any false or misleading representations in violation of the FDCPA. Cal. R. Ct. 8.548(a)(1).
There is no controlling California precedent addressing this question. Cal. R. Ct. 8.548(a)(2). And while the issue has been considered by the Appellate Divisions of various California Superior Courts, those decisions are not binding and have limited persuasive authority. See Suastez v. Plastic Dress-Up Co. , 31 Cal.3d 774, 183 Cal.Rptr. 846, 647 P.2d 122, 126 n.6 (1982). They have also reached inconsistent outcomes. Compare CACH LLC v. Rodgers , 229 Cal.App.4th Supp. 1, 176 Cal.Rptr.3d 843 (2014) (), and Target Nat'l Bank v. Rocha , 216 Cal.App.4th Supp. 1, 157 Cal.Rptr.3d 156 (2013) (same), with Citibank v. Bardin , No. BV 028877 (Cal. App. Dep't Super. Ct. Dec. 8, 2011) (unpublished) ().
The question certified presents an issue of significant importance to the State of California. See Munson v. Del Taco, Inc. , 522 F.3d 997, 999–1000 (9th Cir. 2008). Though § 98 applies only to "limited civil cases," see Cal. Code Civ. Proc. § 91, an answer from the California Supreme Court will help simplify litigation procedures in these low value cases, which are responsible for the vast majority of civil filings in California. See Preface to Judicial Council of California, 2016 Court Statistics Report, Statewide Caseload Trends (2016); see also id. at 40. It will also provide guidance to California consumers, creditors, and debt collectors and purchasers who litigate thousands of debt collection cases each year.
Under California Code of Civil Procedure § 98, "[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." To be received as evidence, however, a copy of the declaration must be served on the opposing party, "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." Cal. Code Civ. Proc. § 98(a).2 The dispute here centers on the meaning of "available for service of process."
California rules of statutory interpretation seek to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." State Farm Mut. Auto. Ins. Co. v. Garamendi , 32 Cal.4th 1029, 12 Cal.Rptr.3d 343, 88 P.3d 71, 78 (2004) (internal quotation omitted). Under California law, courts "look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase, and sentence in pursuance of the legislative purpose." Id. (internal quotation omitted). California courts also "read every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." Id. (internal quotation omitted).
If the statute is clear, then there is no need for judicial construction. Hughes v. Bd. of Architectural Examiners , 17 Cal.4th 763, 72 Cal.Rptr.2d 624, 952 P.2d 641, 649 (1998). However, if the...
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