Meza v. Portfolio Recovery Assocs. LLC, No. S242799 (Cal. Feb. 15, 2019)
This case concerns a procedural issue in limited civil cases. But it arises in a federal debt collection case where the Ninth Circuit certified a question to the California Supreme Court. Plaintiff in that case contends that the failure to comply with the the procedure made Defendant’s debt collection process deceptive under the Fair Debt Collection Practices Act.
Showing posts with label 98. Show all posts
Showing posts with label 98. Show all posts
Friday, March 1, 2019
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 Defendant’s 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.
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 Defendant’s 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.
Tuesday, September 29, 2015
An Object Lesson on the Epistemic Limits of Debt Collectors
Sierra Managed Asset Plan, LLC v. Hale, No. 06-2013-00443856-CL-CC-VTA (Venura App. Div. Aug. 20, 2015)
In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.
But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.
Reversed.
Kinda reminds me of something I once heard on the radio.
In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.
But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.
Reversed.
Kinda reminds me of something I once heard on the radio.
Tuesday, September 9, 2014
Over in Limited Civil ...
CACH LLC v. Rogers, No. 56-2012-00420026-CL-CL-VTA (Ventura App. Div. Aug. 26, 2104)
The Code of Civil Procedure affords simplified trial procedures for limited civil cases—those where less than $25,000 is at issue. One of those procedures, in § 98, permits a party to submit direct testimony by declaration, provided the declarant agrees to be subject to service in some place within 150 miles of the courthouse, so he, she, or it can be subpoenaed for cross-examination at trial. The point is to avoid burdening certain witnesses—like custodians of records—who are unlikely to face serious cross at trial.
Here the declarant—a company offering documentary evidence—was from Colorado, but agreed to take service at its attorney’s office in Woodland Hills. Problem is, when service was attempted, the attorney’s office wouldn’t take it, claiming that the client didn’t work there. The court—following a similar appellate division case—holds that the trial court should not have accepted the declaration. If the declarant isn’t actually available for effective service at the location provided, § 98 isn’t satisfied and the declaration testimony (including attached documents) can’t come in. Any other result would interfere with the right to cross examine witnesses at trial.
Reversed.
The Code of Civil Procedure affords simplified trial procedures for limited civil cases—those where less than $25,000 is at issue. One of those procedures, in § 98, permits a party to submit direct testimony by declaration, provided the declarant agrees to be subject to service in some place within 150 miles of the courthouse, so he, she, or it can be subpoenaed for cross-examination at trial. The point is to avoid burdening certain witnesses—like custodians of records—who are unlikely to face serious cross at trial.
Here the declarant—a company offering documentary evidence—was from Colorado, but agreed to take service at its attorney’s office in Woodland Hills. Problem is, when service was attempted, the attorney’s office wouldn’t take it, claiming that the client didn’t work there. The court—following a similar appellate division case—holds that the trial court should not have accepted the declaration. If the declarant isn’t actually available for effective service at the location provided, § 98 isn’t satisfied and the declaration testimony (including attached documents) can’t come in. Any other result would interfere with the right to cross examine witnesses at trial.
Reversed.
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