Personal Service Required

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.

The procedure at issue concerns Code of Civil Procedure § 98, which permits the admission of a sworn written statement in lieu of testimony. But one two conditions must be met. Either the statement needs to be a deposition that the opposing party had an opportunity to attend or the party offering the testimony needs to provide an address within 150 miles of the courthouse where, for twenty days before trial, the witness is available for service of process. The point of the latter being that the other party can serve a trial subpoena if it believes a cross exam is necessary.

In this case, the Defendant gave the address of a law firm easily within 150 miles. It contends that the law firm was authorized to accept service there on the witness’s behalf. So even though the witness wasn’t physically present at that address, the purposes of the statute were satisfied. 

The case basically comes down to the meaning of the term “available for service of process” in § 98. Does it mean service of a document that compels appearance at trial, like trial subpoena? (A subpoena ad testificandum to use the lingo.) Or does it mean service of the type that would apply to a summons and complaint. Because the former, with quite limited exceptions, requires personal service when the witness isn’t a party. See § 1987(a). (Mail service on an attorney is sufficient, however, for a “notice to appear” to a party-affiliate who resides in California. See § 1987(b).) Complaint/summons service, on the other hand, permit various kinds of personal, mail, and substitute service. See, e.g., §§ 415.10, 415.30, 415.40.
 
The court finds the statutory term textually ambiguous. But after reviewing the legislative history and considering the purpose and function of statute in making the witness available for cross examination at trial, the court holds that the witness needs to be available for service of a document compelling appearance at trial. For a non-party like the witness here, that generally requires a physical presence to serve a trial subpoena.
 
Notably, the Court drops a footnote at the end, saying that it declines to reach the issue of what happens if the parties agree to some nontraditional means of service among themselves.
 
Certified question answered.