Thursday, December 15, 2016

Seven Service Options, None Good, Doesn't Cut It Under CCP § 98.

Midland Funding, Inc. v. Romero, No. JAD16-06 (Orange Cnty. Super. App. Div. Sept. 6, 2016)

Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendants account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.

The whole point of § 98 is to save expenses by letting the offering party put in direct testimony through declaration, while ensuring that the witness is available for cross if the non-offering party wants to take it. Section 98 has three basic requirements: (1) The opposing party must be served with the declaration at least 30 days before trial. (2) The service info needs to provide an address for the declarant within 150 miles of the courthouse at which the declarant will accept service. And (3) the declarant must be available for service at that address for a reasonable period of time at least twenty days before trial.

Prior case law reads the regime as requiring availability for personal, not just substitute service. Defendant here proved he tried and failed to effectuate personal service as one of the nearby listed addresses. Based on that showing, the court finds that the declaration wasn’t up to snuff on § 98.

And even were the declaration admissible under § 98, it was nonetheless substantively deficient foundation for the documents as business records under Evidence Code § 1271.* In particular, § 1271 requires testimony from a witness who understands the basic means of the documents creation and storage. It does not, however, require testimony from someone who has personal knowledge of the particular document’s creation.

While the declarant here knew about the keeping of the records while Plaintiff had them, he knew nothing about the manner in which they were created by the credit card company that Plaintiff bought the debt from. That being the case, even if admissible under § 98, the declaration was facially insufficient to vouch for the docs as business records before Plaintiff got them.

Reversed. 

*The court here suggests that the propounding partys burden is addressed under Evidence Code § 403(a)(3), which only requires the party to make to a prima facie showing sufficient for a trier of fact to find that the document is authentic. But beyond the authenticity of the document, the issue also raises the sufficiency of the foundation for the business records hearsay exception under Evidence Code § 1271. That foundation is governed by the higher burden under Evidence Code § 405, which requires the propounding party to prove up the elements of the exception to the court by a preponderance of the evidence. See People v. Livaditis, 2 Cal. 4th 759, 779-80 (1992); People v. Blacksher, 52 Cal. 4th 769, 834 (2011).

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