Well, I Read Some Documents Once

Chambers v. Crown Asset Mgm’t, LLC, D0079074 (D4d1 Nov. 12, 2021)

This is an appeal of a denial of a motion to compel arbitration in a dispute between a Consumer and a credit card Provider. Provider claims that it mailed Consumer an arbitration policy that said if Consumer thereafter used the card, she consented to arbitration. To support this assertion, Provider put in a declaration from an employee attesting that she had reviewed Provider’s business records, and they showed Consumer had been mailed a copy of the agreement and failed to object. 

Two problems with that. 

First, the employee’s declaration didn’t put in the work to show that the records she reviewed were, in fact, within the business records exception to the hearsay rule. In particular, she didn’t attest to the way the records were created or maintained in the course of the company’s regular operations, or even to Provider’s custom and practice regarding the way such records were created.

Second, the secondary evidence* rule does not save Provider from the fact that it failed to actually attach any of the records that were the subject of the attestation. The secondary evidence rule requires that the documents that are the subject of oral testimony must be otherwise admissible. Since Provider failed to lay the necessary foundation to establish that the records, what ever they were, were subject to a hearsay exception, the testimony was just another level of unexcepted hearsay.

Affirmed.

*FWIW, the secondary evidence rule, California’s version of the best evidence rule, is fundamentally indeterminate and arbitrary. Unlike the federal rule, which presumes that, absent specified reasons, oral testimony about the contents of documents does not come in, see Fed. R. Evid. 1002, 1003, 1004, the California rule presumes that oral testimony is admissible. See Evid. Code § 1521. The testimony is inadmissible only if there is a dispute about the contents and “justice requires the exclusion” or if admitting it would be “unfair.” Those are hardly bright line standards that can be uniformly applied. And practically, it seems like, in an age where most records are electronically created or stored, you should need to come up with a good reason why you can’t attach a document before someone can just attest to it in a declaration. Otherwise, the standard is in the eye of the beholder.