Filed 10/21/21; Certified for Publication 11/12/21 (order attached) 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAMELA SHEREE CHAMBERS,

Plaintiff and Respondent,

v.

CROWN ASSET MANAGEMENT, 

LLC,

Defendant and Appellant.

 D079074

 (Super. Ct. No. 18CV338800)

APPEAL from an order of the Superior Court of Santa Clara County, 

Thomas E. Kuhnle, Judge. Affirmed.

Carlson & Messer, David J. Kaminski and Stephen A. Watkins, for 

Defendant and Appellant.

Consumer Law Center, Fred W. Schwinn, Raeon R. Roulston, and 

Matthew C. Salmonsen, for Plaintiff and Respondent.

Pamela Sheree Chambers filed a putative class action lawsuit against 

Crown Asset Management, LLC (Crown) based on alleged violations of the 

California Fair Debt Buying Practices Act (CFDBPA; Civ. Code, § 1788.50 

et seq.). Crown moved to compel arbitration. It relied on an affidavit from an 

employee of Chambers’s original creditor, Synchrony Bank (Synchrony), who 
2

stated in part that “Synchrony’s records” show a credit card account

agreement containing an arbitration clause was mailed to Chambers. 

Chambers objected to the affidavit on various evidentiary grounds. The trial 

court sustained the objections and denied Crown’s motion to compel 

arbitration.

Crown appeals. It contends the trial court erred by sustaining 

Chambers’s evidentiary objections and denying the motion to compel. We 

disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In her complaint, Chambers alleged that she received a written 

communication from a debt collector contracted by Crown that failed to 

comply with the CFDBPA’s notice formatting requirement. (Civ. Code, 

§ 1788.52, subd. (d)(1).) Chambers allegedly incurred the debt as a result of a 

consumer credit card account issued by Synchrony. Synchrony sold the 

alleged debt to Crown for collection purposes. Chambers sought statutory 

damages (id., § 1788.62, subds. (a)-(b)) and other relief. 

Crown moved to compel arbitration. It contended that Synchrony sent 

Chambers a credit card account agreement, with an arbitration clause, when 

Chambers opened the account and again when Chambers received a 

replacement card a few years later. The agreement allowed Chambers to 

reject the arbitration clause by written notice within 60 days, but Synchrony 

did not receive any such notice. Based on these and other facts, Crown 

argued that Chambers agreed to the arbitration clause, the clause covered 

her CFDBPA claim, and the dispute should be ordered to arbitration. 

To support its contentions, Crown relied on an affidavit from Jodi 

Anderson, who was employed by Synchrony as a litigation analyst. Anderson

stated she had “personal knowledge of the business records of Synchrony” 
3

and was “a qualified person authorized to declare and certify on behalf of 

Synchrony.” She wrote, “My responsibilities include regularly accessing 

Synchrony’s cardholder records and helping to maintain and compile 

histories of credit card accounts. I also regularly review and analyze account 

records and transaction histories, including communications to and from 

cardholders.” 

Anderson continued, “On or about December 13, 2012, Synchrony 

approved an application in the name of Pam Chambers for a [credit card] and 

opened an account in her name . . . . Synchrony’s records show that on or 

about December 13, 2012, the card and a copy of the [account agreement] 

were mailed to Pam Chambers at the address of record on the Account. . . . 

Synchrony has no record that the card or the Account Agreement were 

returned as undeliverable.” In essentially the same language, Anderson 

described Synchrony’s mailing of a replacement card and another account 

agreement a few years later. Anderson attached copies of both account 

agreements to her affidavit. She did not attach any documentation regarding 

mailing.

As to the opt-out provision, Anderson explained, “As part of 

Synchrony’s regular activities in the ordinary course of business, Synchrony 

maintains a record of any correspondence it receives from its cardholders, 

including requests to reject or opt out of an arbitration provision. I have 

reviewed Synchrony’s records, and I have found no record of a notice from 

Pam Chambers exercising her right to reject the arbitration provision.” 

Anderson stated that “Synchrony’s records reflect that purchases and 

payments were posted to the account.” She attached 12 billing statements, 

approximately 30 pages, to her affidavit. Later, “[d]ue to non-payment,” the 

outstanding account balance was charged off, and Synchrony sold Chambers’s 
4

account to Crown. (A Crown employee also submitted a declaration 

attaching, among other things, a similar sheaf of billing statements.) 

Chambers opposed the motion to compel arbitration. She primarily 

contended that Crown had not shown an agreement to arbitrate existed 

between her and Synchrony. Specifically, Chambers argued that Crown had 

not shown she received the account agreement and failed to object. 

Chambers filed evidentiary objections to portions of Anderson’s affidavit, 

including her statement that “Synchrony’s records” show that copies of the 

account agreement were mailed to Chambers. These objections included 

hearsay, lack of foundation, and lack of personal knowledge. Chambers also 

claimed that Anderson’s affidavit ran afoul of the secondary evidence rule 

and, as to any underlying Synchrony records, Crown had not shown they 

were business records. 

On reply, Crown maintained that Anderson had personal knowledge 

“based upon her review of the relevant business records of Synchrony,” 

including Chambers’s account. It contended Anderson’s affidavit satisfied the 

secondary evidence rule as to “the content of Synchrony’s business records,” 

because among other things there was no genuine dispute about their 

material terms. It claimed “the documents [Anderson] reviewed and 

attached” to her affidavit satisfied the requirements for the business records 

exception to the hearsay rule. 

After hearing argument, the trial court denied Crown’s motion to 

compel arbitration. In a detailed order, the court wrote, “Unlike many 

motions to compel arbitration, [Crown] relies on testimony—not documents—

to show [Chambers’s] assent to arbitration. Anderson relies solely on what 

‘Synchrony’s records show’ to prove Synchrony mailed the arbitration 

agreement to [Chambers]. [Citation.] Anderson does not describe what those 
5

records looked like (e.g., whether they were electronic or paper records) and 

does not testify regarding their reliability or why she is testifying as to the 

contents of those records rather than attaching the records to her affidavit. 

Further, Anderson does not testify she has any personal knowledge regarding 

the mailing of the arbitration agreement outside what the ‘records show.’ 

Anderson provides no information regarding the regular business practices or 

procedures of Synchrony Bank with regard to the mailing of credit card 

agreements. All she says is that ‘Synchrony approved an application’ and 

then, based on unspecified records, she says Synchrony mailed the credit 

agreement to [Chambers]. [¶] The Court finds the Anderson Affidavit lacks 

foundation and violates the secondary evidence rule and therefore does not 

provide admissible evidence showing the Agreement was mailed to 

[Chambers]. Consequently, [Crown] has not met its burden to show the 

existence of an arbitration agreement between the parties to which 

[Chambers] assented.” Crown appeals. 

DISCUSSION

I

Motions to Compel Arbitration

California statutes create a “summary proceeding” for resolving 

petitions or motions to compel arbitration. (Engalla v. Permanente Medical 

Group, Inc. (1997) 15 Cal.4th 951, 972 (Engalla).) “The petitioner bears the 

burden of proving the existence of a valid arbitration agreement by the 

preponderance of the evidence, and a party opposing the petition bears the 

burden of proving by a preponderance of the evidence any fact necessary to 

its defense. [Citation.] In these summary proceedings, the trial court sits as 

a trier of fact, weighing all the affidavits, declarations, and other 
6

documentary evidence, as well as oral testimony received at the court’s 

discretion, to reach a final determination.”1 (Ibid.)

“Thus, our Supreme Court has clearly stated that a court, before 

granting a petition to compel arbitration, must determine the factual issue of 

‘the existence or validity of the arbitration agreement.’ [Citation.] In this 

way, a court’s role, though limited, is critical. ‘There is indeed a strong policy 

in favor of enforcing agreements to arbitrate, but there is no policy 

compelling persons to accept arbitration of controversies which they have not 

agreed to arbitrate and which no statute has made arbitrable.’ ” (Toal v. 

Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 (Toal).)

“ ‘An “arbitration agreement is subject to the same rules of construction 

as any other contract . . . .” ’ [Citation.] For any contract, the parties’ consent 

is a basic element. [Citation.] In addition, the parties’ consent must be 

communicated to one another. [Citation.] Thus, a party’s consent is essential 

to ‘the contractual underpinning of the arbitration procedure . . . .’ [Citation.] 

‘[T]he asserted absence of contractual consent renders arbitration, by its very 

1 Crown repeatedly points out that Chambers provided no contrary 

evidence on the existence of an arbitration agreement. But it was not 

Chambers’s burden to disprove the existence of such an agreement. As the 

moving party, Crown had the burden of establishing through admissible 

evidence that Chambers had agreed to arbitrate the dispute. (See Engalla,

supra, 15 Cal.4th at p. 972.) Similarly, the presumption of receipt after 

mailing only arises if the fact of mailing is shown. (See Craig v. Brown & 

Root (2000) 84 Cal.App.4th 416, 421.) Crown cites Melorich Builders v. 

Superior Court (1984) 160 Cal.App.3d 931, 934, for the proposition that “the 

court is entitled to accept as true the facts alleged in the movant’s affidavits, 

provided they are within the personal knowledge of the affiant and are facts 

to which he could competently testify.” But here, as discussed below, the 

crucial fact of mailing is not within Anderson’s personal knowledge. Contrary 

to Crown’s assertion, the trial court’s decision could not have simply “started 

and stopped with this analysis.”
7

definition, inapplicable to resolve the issue.’ ” (Toal, supra, 178 Cal.App.4th 

at p. 1221.) 

“A party’s acceptance of an agreement to arbitrate may be express, as 

where a party signs the agreement. A signed agreement is not necessary, 

however, and a party’s acceptance may be implied in fact [citation] or be 

effectuated by delegated consent [citation]. An arbitration clause within a 

contract may be binding on a party even if the party never actually read the 

clause.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

(US), LLC (2012) 55 Cal.4th 223, 236.) Crown contends that Chambers 

accepted the arbitration agreement by using her credit card after receiving 

the terms of the account agreement and failing to opt out of its arbitration 

clause. (See Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 

1081 (Cavalry SPV).) 

II

Standards of Review

“ ‘There is no uniform standard of review for evaluating an order 

denying a motion to compel arbitration. [Citation.] If the court’s order is 

based on a decision of fact, then we adopt a substantial evidence standard. 

[Citations.] Alternatively, if the court’s denial rests solely on a decision of 

law, then a de novo standard of review is employed.’ ” (Carlson v. Home 

Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 630.) Here, the trial 

court’s order is based on a decision of fact, i.e., whether Synchrony mailed the 

credit card account agreement containing an arbitration clause to Chambers.

Because the trial court excluded Crown’s evidence on this factual issue, 

Crown primarily challenges the court’s underlying evidentiary rulings. “Trial 

court rulings on the admissibility of evidence . . . are generally reviewed for 

abuse of discretion.” (Pannu v. Land Rover North America, Inc. (2011) 
8

191 Cal.App.4th 1298, 1317; accord, Christ v. Schwartz (2016) 2 Cal.App.5th 

440, 446-447.) “The abuse of discretion standard is not a unified standard; 

the deference it calls for varies according to the aspect of a trial court’s ruling 

under review. The trial court’s findings of fact are reviewed for substantial 

evidence, its conclusions of law are reviewed de novo, and its application of 

the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi 

v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)2

Crown claims the rules of evidence are “relaxed” in connection with a 

motion to compel arbitration. The import of Crown’s proposed “relaxed” 

standard is unclear. In any event, Crown has not shown the trial court erred

by applying the Evidence Code. Crown cites an unpublished federal district

court order for the proposition that a trial court may consider written 

declarations in connection with a motion to compel arbitration, 

notwithstanding the fact that such declarations would be considered hearsay 

2 Crown contends we should employ the de novo standard of review, 

based on an analogy to summary judgment appeals. Some courts have held 

that de novo review is appropriate in that context because summary 

judgment presents only a question of law and is decided on the papers alone. 

(See, e.g., Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451; but see 

Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1118 [abuse of 

discretion].) Crown’s analogy is inapt. A court sits as a trier of fact when

considering a motion to compel arbitration. (Engalla, supra, 15 Cal.4th at 

p. 972.) The moving party must prove the existence of a valid arbitration 

agreement by a preponderance of the evidence. (Ibid.) A motion to compel 

arbitration therefore presents issues of fact as well as law. Crown relies on a 

footnote in Engalla, in which the Supreme Court described a motion to 

compel arbitration as a “quasi-summary-judgment motion.” (Id. at p. 973, 

fn. 7.) But the Supreme Court was describing the specific circumstances 

before it, where the trial court had “apparently abdicated its role as trier of 

fact,” so the Supreme Court was required to remand the matter unless there 

was no triable issue of fact for the trial court to consider. (Id. at p. 973.) 

That is not the situation here.
9

at trial. (See Lomeli v. Midland Funding, LLC (N.D.Cal., Sept. 26, 2019, 

No. 19-CV-01141-LHK) 2019 WL 4695279, at *7 (Lomeli).) On this point, 

California law is similar. A motion to compel arbitration “shall be heard in a 

summary way in the manner . . . provided by law for the making and hearing

of motions.” (Code Civ. Proc., § 1290.2.) Hearing and determination in this 

manner “would ordinarily mean the facts are to be proven by affidavit or 

declaration and documentary evidence, with oral testimony taken only in the 

court’s discretion.” (Rosenthal v. Great Western Financial Securities Corp. 

(1996) 14 Cal.4th 394, 413-414; see Code Civ. Proc., § 2009.) The trial court 

followed this procedure. It did not exclude Anderson’s affidavit because, as a 

written document, it was technically hearsay.

Crown cites Sweetwater Union High School Dist. v. Gilbane 

Building Co. (2019) 6 Cal.5th 931 (Sweetwater Union), but it did not involve 

arbitration. It considered an anti-SLAPP motion (Code Civ. Proc., § 425.16), 

which has distinct purposes and procedures. (Sweetwater Union, at p. 940.) 

In particular, the second step of the anti-SLAPP analysis requires a trial 

court to determine whether the plaintiff has shown “ ‘a probability of 

success,’ ” which is a “ ‘ “summary-judgment-like procedure.” ’ ” (Ibid.) “ ‘The 

court does not weigh evidence or resolve conflicting factual claims. Its 

inquiry is limited to whether the plaintiff has stated a legally sufficient claim 

and made a prima facie factual showing sufficient to sustain a favorable 

judgment.’ ” (Ibid.) In this context, the Supreme Court held that a trial court 

may consider written statements “if it is reasonably possible the proffered 

evidence set out in those statements will be admissible at trial.” (Id. at 

p. 949.) “It may not be possible at the [anti-SLAPP] hearing to lay a 

foundation for trial admission, even if such a showing could be made after full 

discovery. . . . To strike a complaint for failure to meet evidentiary obstacles 
10

that may be overcome at trial would not serve the SLAPP Act’s protective 

purposes. Ultimately, the SLAPP Act was ‘intended to end meritless SLAPP 

suits early without great cost to the target’ [citation], not to abort potentially 

meritorious claims due to a lack of discovery.” (Ibid.)

In contrast to an anti-SLAPP motion, a motion to compel arbitration 

requires the court to sit as a trier of fact and make factual findings regarding 

the existence of an arbitration agreement. (Engalla, supra, 15 Cal.4th at 

p. 972; Toal, supra, 178 Cal.App.4th at pp. 1219-1220.) A hearing on a 

motion to compel arbitration does not serve a mere gatekeeping function. It 

is the proceeding in which these factual issues are addressed. The standard 

articulated in Sweetwater Union makes no sense in the arbitration context. 

There is no future trial concerning the existence and coverage of an 

arbitration agreement where such statements would be any more relevant or 

admissible than at the hearing on a motion to compel arbitration. Crown has 

not shown the Sweetwater Union anti-SLAPP standard should apply here.

III

Evidentiary Objections

Crown contends the court erred by excluding the Anderson affidavit 

because it was admissible under the secondary evidence rule (Evid. Code, 

§§ 1521, 1523)3 and the underlying Synchrony documents qualified as 

business records (§ 1271). Again, we review the court’s exclusion on these 

grounds for abuse of discretion. (See, e.g., People v. Hovarter (2008) 

44 Cal.4th 983, 1011 [business records]; Penny v. Wilson (2004) 

123 Cal.App.4th 596, 602 [secondary evidence].)

3 Subsequent statutory references are to the Evidence Code unless 

otherwise specified.
11

The current secondary evidence rule descends from “the venerable 

common law rule that lost documents may be proved by secondary evidence.” 

(Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 

1068.) Section 1521, subdivision (a) provides, “The content of a writing may 

be proved by otherwise admissible secondary evidence. The court shall 

exclude secondary evidence of the content of [a] writing if the court 

determines either of the following: [¶] (1) A genuine dispute exists 

concerning material terms of the writing and justice requires the exclusion. 

[¶] (2) Admission of the secondary evidence would be unfair.”

The business records exception to the hearsay rule provides, “Evidence 

of a writing made as a record of an act, condition, or event is not made 

inadmissible by the hearsay rule when offered to prove the act, condition, or 

event if: [¶] (a) The writing was made in the regular course of a business; 

[¶] (b) The writing was made at or near the time of the act, condition, or 

event; [¶] (c) The custodian or other qualified witness testifies to its identity 

and the mode of its preparation; and [¶] (d) The sources of information and 

method and time of preparation were such as to indicate its trustworthiness.” 

(§ 1271.) 

The court’s analysis in Pajaro Valley Water Management Agency v. 

McGrath (2005) 128 Cal.App.4th 1093 (Pajaro Valley) provides a helpful 

introduction to the relationship between these two statutes. In that case, a 

public agency sought to establish its damages with a declaration from its 

general manager. (Id. at p. 1106.) The declaration stated the total amount 

owed, based on bills the public agency sent to the defendant. (Ibid.) 

Attached to the declaration was a table summarizing the agency’s claimed 

damages. (Ibid.) The defendant objected to the declaration on various 

grounds, but the trial court overruled his objections. (Id. at pp. 1106-1107.) 
12

The appellate court reversed. (Pajaro Valley, supra, 128 Cal.App.4th at 

p. 1097.) As an initial matter, the court noted the general manager’s 

declaration was technically hearsay, but it was not inadmissible for that 

reason under the general authorization for motion practice. (Id. at p. 1107.) 

The problem with the declaration was the amount of damages stated. (Ibid.) 

It reflected another layer (or two) of hearsay, including the underlying bills 

and the calculation table. (Ibid.) The court explained, “The original bills 

might be admissible over a hearsay objection as business records [citation] or 

perhaps official records [citation], but to establish either exception would 

require a showing of the time and circumstances of the documents’ creation. 

[Citations.] No such showing was attempted.” (Ibid.) 

The court in Pajaro Valley explained that the secondary evidence rule 

did not save the declaration. “Section 1521 permits the introduction of 

‘otherwise admissible secondary evidence’ to prove the contents of a writing. 

It does not excuse the proponent from complying with other rules of evidence, 

most notably, the hearsay rule. [Citation.] As applicable here, section 1521 

means only that the Agency could introduce secondary evidence to establish 

the contents of bills if (1) the contents themselves were admissible, and 

(2) the secondary evidence was ‘otherwise admissible.’ (§ 1521, subd. (a).) 

Here the contents of the bills were hearsay. In the absence of a showing that 

they came within an exception, secondary evidence of their contents was no 

more admissible than the bills themselves, which is to say, not at all.” 

(Pajaro Valley, supra, 128 Cal.App.4th at p. 1108.)

The trial court here was confronted with an analogous situation. 

Anderson’s affidavit expressly referenced “Synchrony records” as the basis for 

her statement that the credit card account agreement had been mailed to 

Chambers. In order for Anderson’s statement to be admissible, the 
13

underlying Synchrony records would have to be admissible (among other 

conditions).

Crown argues that the underlying Synchrony records were admissible 

as business records under section 1271. It references Anderson’s statement 

that she “regularly review[s] and analyze[s] account records and transaction 

histories, including communications to and from cardholders.” Crown argues 

this statement shows that “Synchrony’s account records and transaction 

histories are made in the regular course of business.” (See § 1271, subd. (a).) 

The trial court could reasonably find otherwise. While Anderson states she 

regularly reviews and analyzes the records, she does not say anything about 

their preparation. Nor does she describe the specific “Synchrony records” she 

relied upon to state that Chambers had been mailed the account agreement. 

The trial court could reasonably find that Anderson had not shown those 

specific records—whatever they were—were made in the regular course of 

Synchrony’s business.

For the same reasons, the trial court could reasonably find that 

Anderson’s affidavit was insufficient to establish that the unspecified records 

were “made at or near the time of the act, condition, or event” and “[t]he 

sources of information and method and time of preparation were such as to 

indicate its trustworthiness.” (§ 1271, subds. (b), (d).) Information about the 

sources of information and the method and time of preparation of the records, 

including whether they were prepared at or near the time of alleged mailing, 

is completely absent from Anderson’s affidavit.

Crown relies on Jazayeri v. Mao (2009) 174 Cal.App.4th 301 (Jazayeri), 

but it shows the inadequacy of Anderson’s affidavit. Jazayeri involved a 

dispute between the plaintiff, a chicken supplier, and the defendant, a 

poultry processor. (Id. at p. 306.) To support its claims, the plaintiff sought 
14

to introduce purchase orders and other documentary records showing the 

number of chickens that were found dead on delivery to the defendant (the 

DOA number). (Id. at pp. 308-309, 313.) The trial court found that the 

plaintiff had not shown they were business records, and it sustained the 

defendant’s evidentiary objection. (Id. at p. 314.)

The appellate court held this was error. (Jazayeri, supra, 

174 Cal.App.4th at p. 305.) It noted that the plaintiff “testified that the DOA 

count was obtained on the date of delivery after the chickens were unloaded 

by [defendant’s] employee and generally written on the purchase order.” (Id. 

at p. 322.) Several employees of the defendant “testified concerning the 

manner of preparing the DOA count. Alland Zapata, head of quality control, 

testified that when chickens were delivered, one of [the defendant’s] 

employees counted the DOA chickens and recorded the total on the purchase 

order or other handy piece of paper; Zapata then used that document to fill in 

the DOA box on the [documents]. Susan Mao testified at her deposition that 

DOA chickens were counted by an employee of [the defendant] at the time of 

delivery. Pitman, the defense expert, confirmed that the procedures for 

counting and recording the number of DOA chickens described by [the 

plaintiff] were followed generally in the industry.” (Id. at pp. 322-323.) 

Based on this evidence, the appellate court concluded that the DOA number 

qualified as a business record because it “was obtained through a count 

performed in the regular course of business by [defendant’s] employee and 

transmitted to Zapata, who was responsible for inputting that information 

onto the [documents].” (Id. at pp. 323-324.)

Crown points out Jazayeri’s comment that evidence should not be 

excluded “because the offering party did not follow the standard or preferred 

method of laying the foundation for admission.” (Jazayeri, supra, 
15

174 Cal.App.4th at p. 324.) But in Jazayeri, “the means by which the DOA 

numbers were routinely recorded on the [documents] was sufficiently 

established by witnesses with firsthand knowledge of the process to qualify 

the evidence for admission under section 1271.” (Id. at p. 324.) The trial 

court here could reasonably find that Crown did not provide any comparable 

information. Among other things, Anderson did not describe how the 

information in Synchrony’s records regarding mailing was entered or 

maintained. The portion of Anderson’s affidavit cited by Crown, that she 

“regularly review[s] and analyze[s] account records and transaction 

histories,” shows the records exist but it does not provide information about 

the means by which they were prepared. 

Crown also relies heavily on People v. Dorsey (1974) 43 Cal.App.3d 953 

(Dorsey).) In that case, involving charges of writing bad checks, a bank 

operations officer testified that “he was the custodian of the bank’s records 

and that all the records involved were kept in the normal course of business.” 

(Id. at p. 958.) Based on the bank’s records, the officer testified about the 

date the defendant opened an account, the date the bank closed the account, 

and the fact of various insufficient fund items that were presented and 

rejected. (Ibid.) On appeal, the defendant contended that the officer’s 

testimony was inadmissible because the underlying records were not 

business records. (Id. at pp. 959-960.) The appellate court noted that the 

officer brought with him various records, including “monthly statements from 

the date the account was opened until it was closed” and various overdraft 

notices. (Id. at p. 960.) Although the defendant objected based on hearsay 

and foundation, he did not cite the business records exception. The appellate 

court found he had waived the issue. (Ibid.) The court stated, “The only 

apparent defect in the foundation required by . . . section 1271 was in the 
16

failure of [the officer] to testify as to the mode and time of preparation of the 

bank statements. This oversight obviously could have been remedied if 

appellant’s counsel had objected on that specific ground; his failure to do so 

should prevent his asserting this ground on appeal.” (Ibid.)

The court went on, “Moreover, we believe that bank statements 

prepared in the regular course of banking business and in accordance with 

banking regulations are in a different category than the ordinary business 

and financial records of a private enterprise. It is common knowledge that 

bank statements on checking accounts are prepared daily and that they 

consist of debit and credit entries based on the deposits received, the checks 

written and the service charges to the account. We fail to see where 

appellant has been prejudiced by the absence of testimony as to the ‘method’ 

of preparation of the records, i.e., whether by hand or by computer and from 

what sources. Such testimony would not have a bearing on the basic 

trustworthiness of the records. While mistakes are often made in the entries 

on bank statements, such matters may be developed on cross-examination 

and should not affect the admissibility of the statement itself.” (Dorsey, 

supra, 43 Cal.App.3d at pp. 960-961.) The court found no abuse of discretion 

in admitting the bank officer’s testimony. (Id. at p. 961.)

Dorsey does not aid Crown under the circumstances here. First, even 

accepting that bank statements may be more readily found to be business 

records than other hearsay documents, bank statements are not at issue 

here. What is at issue are the records showing the mailing of the credit card 

account agreement to Chambers. Their nature and mode of preparation is 

unknown. The fact that they were apparently maintained by a bank is not 

dispositive. “A rule allowing or requiring admissibility of any document 

found in a bank’s records without evidence of reliability would be a sharp 
17

break with past practice [and] could raise grave implications for the 

continued maintenance of reliable bank records over the long term.” 

(Remington Investments, Inc. v. Hamedani (1997) 55 Cal.App.4th 1033, 1039.) 

Second, Dorsey considered a situation where the trial court admitted the 

testimony, and it noted a trial court’s “broad discretion in admitting business 

records” under section 1271. (See Dorsey, supra, 43 Cal.App.3d at p. 961.) It 

did not consider whether and under what circumstances a contrary ruling 

would be an abuse of discretion.4

Crown contends that the elements of the business records exception can 

be inferred from the circumstances, but it has not shown the court abused its 

discretion by finding Crown’s showing inadequate. Crown claims the court 

should have inferred that Synchrony’s “account records and transaction 

histories” were made at or near the time of mailing, but it provides no basis 

for such an inference—other than the implicit assumption that a business 

should work that way. The trial court was not required to make this 

inference based on the scant information Crown provided.

Crown points to the fact that Chambers received her credit card from 

Synchrony and she received other correspondence at the address identified by 

Anderson. But only Anderson’s review of “Synchrony’s records” shows that 

the credit card and account agreement were mailed at the same time or to 

4 Crown also cites People v. Lugashi (1988) 205 Cal.App.3d 632, but in 

that case the record showed that “the computer entries . . . were made as they 

occurred in the regular course of business” and the witness “identified the 

record and explained its mode of preparation.” (Id. at p. 641.) The primary 

issue was whether “testimony on the acceptability, accuracy, maintenance, 

and reliability of the bank’s computer hardware and software should have 

been produced.” (Id. at p. 642.) Lugashi held that such testimony was not 

required. (Ibid.) No analogous issue exists here.
18

that address. Crown’s position still depends on the admissibility of the 

underlying records regarding mailing.

Crown claims the court “erred by holding Ms. Anderson had to attach 

the ‘account records and transaction histories’ she reviewed.” Our review of 

the court’s order reveals no such mandate. The court referenced the lack of 

records as the reason for its close examination of Anderson’s affidavit, since 

that was the only evidence of mailing provided by Crown. Additionally, the 

court found it noteworthy that Anderson had not attached any records, and 

had only vaguely alluded to unspecified Synchrony records, to prove mailing. 

The trial court was entitled to consider these circumstances when evaluating

Anderson’s affidavit. We note that Anderson attached other records, 

including dozens of pages of Chambers’s account statements, but not any 

record of mailing.5

Crown argues Anderson’s statements were admissible under 

section 1523, subdivision (d) as a summary of a voluminous record. That 

5 Crown relies on Unifund CCR LLC v. Dear (2015) 243 Cal.App.4th 

Supp. 1, but in that case the declarant attached the relevant records. (Id. at 

p. 5.) In addition, the declarant “asserted she had personal knowledge of the 

manner, methods and practices by which plaintiff maintains its business 

records and otherwise does business. The various assignments and records 

attached to the declaration are asserted to be maintained by plaintiff in the 

form of computerized account records kept in the ordinary routine course of 

business by plaintiff. Computerized ledgers were also asserted to be 

maintained by plaintiff. She stated these computerized ledgers maintained 

by plaintiff constituted the principal records for amounts due and owing to 

plaintiff for all transactions that occurred when defendant used the original 

creditor’s card account. Since this description coincides with our 

commonsense understanding of how credit card records are electronically 

generated, we cannot find that the trial court abused its discretion in finding 

that [the declarant] adequately laid the foundation to authenticate the billing 

statements as business records within the meaning of . . . section 1271.” (Id. 

at pp. 7-8.) No similar showing was made here.
19

statute provides that “[o]ral testimony of the content of a writing” may be 

admissible “if the writing consists of numerous accounts or other writings 

that cannot be examined in court without great loss of time, and the evidence 

sought from them is only the general result of the whole.” (Ibid.) Setting 

aside whether Anderson’s affidavit is oral testimony (and the other issues 

that might raise), Crown’s argument does not justify reversal. First, Crown 

did not argue in the trial court that Anderson’s statements were admissible 

under this statute and subdivision. Crown may not raise a theory of 

admissibility for the first time on appeal. (See People v. Hines (1997) 

15 Cal.4th 997, 1034, fn. 4.) Second, Crown has not shown the records of 

mailing were voluminous or otherwise satisfied the requirements of the 

statute. The authorities Crown cites bear no relation to the circumstances 

here. (See Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 

24 Cal.App.3d 410, 418-419 [affirming admission of a summary of “some 

50,000 sales invoices,” where it was “clear that the summary was prepared 

from admissible business records” and the underlying records had already 

been made available to the opposing party]; see also Heaps v. Heaps (2004) 

124 Cal.App.4th 286, 294 [affirming admission of a “schedule of assets” that 

was “a general compilation of documents that could not be examined 

individually by the court without great loss of time”].) Crown references a 

“computer database” that “cannot be examined in court,” but such a database 

is not mentioned in Anderson’s affidavit. And, even presuming its likely 

existence, Crown has not explained why examination of the whole database, 

rather than the relevant individual record, would be necessary or useful to 

show mailing.

Crown additionally contends the trial court erred by finding that 

Anderson “provide[d] no information regarding the regular business practices 
20

or procedures of Synchrony Bank with regard to the mailing of credit card 

agreements.” Crown asserts that Anderson provided “overwhelming evidence 

that it was the regular custom and practice of Synchrony to mail cardholder 

Agreements (and accompanying arbitration provisions) to consumers.” This 

assertion is wholly unsupported by the record. Crown relies on the following 

statement from Anderson: “As part of Synchrony’s regular activities in the 

ordinary course of business, Synchrony maintains a record of any 

correspondence it receives from its cardholders, including requests to reject or 

opt out of an arbitration provision.” This statement discusses Synchrony’s 

regular practice of maintaining a record of whatever is received. It does not 

mention a practice of maintaining a record of whatever is sent. And, even if it 

did so, it still says nothing about what Synchrony sends to its cardholders in 

the regular course of business, or when it does so.

Crown relies on numerous and largely unpublished federal decisions, 

but they highlight the shortcomings of Anderson’s affidavit. The evidence in 

these decisions included an explicit statement of the custom and practice of 

mailing, i.e., what was sent, and when, in the regular course of business. 

(See Izett v. Crown Asset Management, LLC (N.D.Cal., Oct. 1, 2019, No. 18-

CV-05224-EMC) 2019 WL 4845575, at *4 [declarant stated “that it has been 

the Bank’s ‘regular business practice to send a new card agreement to 

customers at the time they open a new account’ ”]; Lomeli, supra, 2019 WL 

4695279, at *5 [declarant stated “it is Citibank’s regular business practice to 

mail a card agreement to customers at the time of the opening of an 

account”]; Brecher v. Midland Credit Management, Inc. (E.D.N.Y., March 13, 

2019, No. 18-CV-3142 (ERK) (JO)) 2019 WL 1171476, at *4 [declarant stated 

that Synchrony “ ‘had a regular procedure of mailing, via United States 

Postal Service, the credit card and a copy of the credit card agreement that 
21

governed the account for each new Old Navy cardholder’ ”]; Biggs v. Midland 

Credit Management, Inc. (E.D.N.Y., March 9, 2018, No. 17-CV-340 (JFB) 

(ARL)) 2018 WL 1225539, at *8 [declarant stated that “at the time plaintiff’s 

account was opened, ‘Synchrony had a regular procedure of mailing a letter 

via United States Postal Service containing the account number, and a copy 

of the credit card agreement that governed the account for each new Amazon 

cardholder’ ”]; Oyola v. Midland Funding, LLC (D.Mass. 2018) 295 F.Supp.3d 

14, 15-16 [declarant stated that “after an account holder opens an account, 

Credit One mails their credit card, enclosed with Credit One’s [cardholder 

agreement]”]; Beattie v. Credit One Bank (N.D.N.Y., Aug. 9, 2016, No. 5:15-

CV-1315 (LEK/TWD)) 2016 WL 4203511, at *3 [declarant stated “that 

including a Cardholder Agreement when mailing a credit card is Defendant’s 

policy”]; Flowers v. Citigroup Inc. (S.D.Cal., Sept. 9, 2013, No. 12-CV-2748-

CAB (NLS)) 2013 WL 12075973, at *1 [declarant stated that “ ‘[p]ursuant to 

regular office practices and procedures in place as of September 2005, [a] 

Card Agreement was included with the cards mailed to customers, like 

Plaintiff, after an account was opened’ ”]; Chavez v. Bank of America 

(N.D.Cal., Oct. 7, 2011, No. C 10-653 JCS) 2011 WL 4712204, at *7-8

[declarant describing mailing “in the ordinary course of the . . . enrollment 

process”]; Haas v. J.A. Cambece Law Office, P.C. (S.D.Cal., April 5, 2006, 

No. 05cv2039 DMS (RBB)) 2006 WL 8455381, at *3 [declarant stated “that ‘at 

the time MBNA acquired the account, it was the general policy of MBNA to 

provide the Credit Card Agreement to all of its cardmembers’ ”]; see also 

Cavalry SPV, supra, 36 Cal.App.5th at p. 1082 [witness testified “that 

Citibank’s regular practice was to provide a copy of the terms and conditions 

governing the use of the card along with the card”].)
22

Crown also relies on several decisions that credited the personal 

knowledge of the declarant or witness. (See People ex rel. Owen v. Media One 

Direct, LLC (2013) 213 Cal.App.4th 1480, 1484 [declarant stated “the 

Department sent certain correspondence to Media One” and attached the 

documents; “[t]he trial court was entitled to accept [the declarant’s] assertion 

of personal knowledge”]; Mason v. Midland Funding LLC (11th Cir. 2020) 

815 Fed.Appx. 320, 329 [declarant had “personal knowledge of the mailing”]; 

Kensu v. JPay, Inc. (E.D.Mich., March 11, 2019, No. 18-11086) 2019 WL 

1109948, at *3, fn. 4 [“the Court is satisfied that the information in the 

affidavit is based on [the declarant’s] personal knowledge”].)

Personal knowledge is “ ‘a present recollection of an impression derived 

from the exercise of the witness’[s] own senses.’ ” (People v. Lewis (2001) 

26 Cal.4th 334, 356.) Unless a witness is testifying as an expert, “the 

testimony of a witness concerning a particular matter is inadmissible unless 

he has personal knowledge of the matter.” (§ 702, subd. (a).) “In the absence 

of personal knowledge, a witness’s testimony or a declarant’s statement is no 

better than rank hearsay or, even worse, pure speculation.” (People v. 

Valencia (2006) 146 Cal.App.4th 92, 103-104.) Anderson’s affidavit shows she 

has no personal knowledge of Synchrony’s mailing the credit card agreement 

to Chambers. As the trial court found, “Anderson does not testify she has any 

personal knowledge regarding the mailing of the arbitration agreement 

outside what the ‘records show.’ ” As discussed, the contents of those records 

were hearsay, and Crown has not shown the trial court abused its discretion 

by finding the business record exception did not apply.

In its reply brief, for the first time, Crown contends “it is arguable that 

the [Anderson affidavit] was not proving the contents of a writing at all,” and 

thus the secondary evidence rule did not apply. This contention appears to 
23

contradict Crown’s position in its opening brief. And we generally do not 

consider arguments made for the first time on reply. (See In re Groundwater 

Cases (2007) 154 Cal.App.4th 659, 692-693.) Even if we were to consider it, 

we would conclude Crown had not shown error. Crown is correct that the 

relevant issue is the fact of mailing, not what Synchrony’s records show. But 

Crown attempted to prove mailing by reference to Synchrony’s records, 

rather than by testimony of a witness with personal knowledge of mailing. 

The admissibility of those records is therefore crucial. (See Pajaro Valley, 

supra, 128 Cal.App.4th at pp. 1107-1108.)

Finally, in light of our conclusions, we need not consider whether the 

court erred by excluding Anderson’s statements that she found no record of 

Chambers’s objection to the arbitration agreement or its return as 

undeliverable. Without a predicate showing that Chambers was mailed the 

arbitration agreement, these additional statements do not establish her 

consent. We also need not consider the parties’ dispute over Crown’s 

standing to compel arbitration.
24

DISPOSITION

The order is affirmed. Chambers is entitled to her costs on appeal.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.
Filed 11/12/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAMELA SHEREE CHAMBERS,

Plaintiff and Respondent,

v.

CROWN ASSET MANAGEMENT, 

LLC,

Defendant and Appellant.

 D079074

 (Super. Ct. No. 18CV338800)

ORDER CERTIFYING 

OPINION FOR PUBLICATION

THE COURT:

The opinion in this case filed October 21,2021, was not certified for 

publication. It appearing the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c), the November 9, 2021 

request pursuant to rule 8.1120(a) for publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for 

publication specified in California Rules of Court, rule 8.1105(c); and
2

ORDERED that the words "Not to Be Published in the Official Reports" 

appearing on page 1 of said opinion be deleted and the opinion herein be 

published in the Official Reports.

McCONNELL, P. J.

Copies to: All parties