FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIA C. MEZA,

Plaintiff-Appellant,

v.

PORTFOLIO RECOVERY 

ASSOCIATES, LLC; HUNT &

HENRIQUES, a general 

partnership; MICHAEL SCOTT 

HUNT; JANALIE ANN HENRIQUES;

ANTHONY J. DIPIERO,

Defendants-Appellees.

No. 15-16900

D.C. No.

5:14-cv-03486-LHK

ORDER 

CERTIFYING 

QUESTION TO 

THE CALIFORNIA 

SUPREME COURT

Filed June 22, 2017

Before: William A. Fletcher and Richard C. Tallman, 

Circuit Judges, and Paul C. Huck,

* District Judge.

 * The Honorable Paul C. Huck, United States District Judge for the 

Southern District of Florida, sitting by designation.
2 MEZA V. PORTFOLIO RECOVERY ASSOCS.

SUMMARY**

Question Certified to California Supreme Court

The panel certified the following question to the 

California Supreme Court:

Under § 98(a) of the California Code of Civil 

Procedure, must the affiant be physically 

located and personally available for service 

of process at the address provided in the 

declaration that is within 150 miles of the 

place of trial?

ORDER

We certify to the California Supreme Court the question 

set forth in Part II of this order. Further proceedings are 

stayed pending receipt of the response to the certified 

question, and this case is withdrawn from submission until 

further order of this court. If the California Supreme Court 

accepts the certified question, the parties will file a joint 

status report six months after the date of acceptance, and 

every six months thereafter, advising us of the status of the 

proceeding.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 3

I. Administrative Information

Julia Meza is deemed the petitioner in this request 

because she appeals from the district court’s ruling on this 

issue. The caption of the case is:

No. 15-16900

JULIA C. MEZA,

Plaintiff-Appellant,

v.

PORTFOLIO RECOVERY ASSOCIATES, LLC; HUNT 

& HENRIQUES, a general partnership; MICHAEL 

SCOTT HUNT; JANALIE ANN HENRIQUES; and 

ANTHONY J. DIPIERO,

Defendants-Appellees.

The names and addresses of counsel are:

For Plaintiff-Appellant Julia C. Meza: Owen Randolph 

Bragg, Horwitz, Horwitz & Associates, 25 East Washington 

Street, Suite 900, Chicago, IL 60602; Raeon R. Roulston & 

Fred W. Schwinn, Consumer Law Center, Inc., 12 South 

First Street, Suite 1014, San Jose, CA 95113-2418.

For Defendants-Appellees Portfolio Recovery 

Associates, LLC; Hunt & Henriques, a general partnership; 

Michael Scott Hunt; Janalie Ann Henriques; and Anthony J. 

Dipiero: Tomio Buck Narita & Jeffrey Topor, Simmonds & 

Narita, LLP, 44 Montgomery Street, Suite 3010, San 

Francisco, CA 94104.
4 MEZA V. PORTFOLIO RECOVERY ASSOCS.

II. Certified Question

Pursuant to California Rule of Court 8.548(b)(2), we 

certify the question presented below. There is no controlling 

California precedent regarding the certified question, and the 

answer to the question could determine the outcome of this 

appeal. Cal. R. Ct. 8.548(a). It is also an issue likely to recur 

and affect thousands of cases filed in the “limited civil 

division” of the California Superior Courts. The issue has 

divided the Appellate Divisions of several Superior Courts, 

and there is no authority from any District Court of Appeal. 

The question certified is as follows:

Under § 98(a) of the California Code of Civil 

Procedure, must the affiant1 be physically 

located and personally available for service 

of process at the address provided in the 

declaration that is within 150 miles of the 

place of trial?

Our phrasing of this question is not intended to restrict 

the California Supreme Court’s consideration of the issues, 

Cal. R. Ct. 8.548(f)(5), and we agree to accept and follow 

the decision of the California Supreme Court, Cal. R. Ct. 

8.548(b)(2).

III. Statement of Facts

Julia Meza had a consumer credit card account with 

Wells Fargo Bank, N.A. She later defaulted on her credit 

account, and the defaulted debt was sold to Portfolio 

Recovery Associates (“PRA”). PRA placed the debt with 

 1 “Affiant” and “declarant” are used interchangeably throughout this 

certification order.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 5

the law firm of Hunt & Henriques (“H&H”) for collection, 

and the firm, along with PRA (“Appellees”), filed a lawsuit 

in the Superior Court of California, San Mateo County, to 

collect the defaulted debt from Meza.

As part of the collection action, Appellees served Meza 

with a document titled, “Declaration of [PRA] in Lieu of 

Personal Testimony at Trial (CCP § 98).” The declaration—

filed pursuant to California Code of Civil Procedure § 98—

described Meza’s unpaid account and was signed by a PRA 

employee, Colby Eyre, who authenticated the basis for 

claiming the amounts owed. It also stated that, “Pursuant to 

CCP § 98 this affiant is available for service of process: c/o 

Hunt & Henriques, 151 Bernal Road, Suite 8, San Jose, CA 

95119 for a reasonable period of time, during the twenty 

days immediately prior to trial.”

The parties agree that the above address is not Colby 

Eyre’s work address. They also agree that Eyre lives more 

than 150 miles from the relevant county courthouse. 

However, it is clear that H&H was authorized to accept 

service of process on Eyre’s behalf, and that H&H’s law 

offices are within § 98’s 150-mile requirement.

Based on these underlying facts, Meza filed a putative 

class action in the United States District Court for the 

Northern District of California in August 2014, alleging that 

PRA failed to comply with California Code of Civil 

Procedure § 98. In her First Amended Complaint, she 

purported to represent “(i) all persons residing in California, 

(ii) who were served by [PRA] with a Declaration in Lieu of 

Personal Testimony at Trial, pursuant to California Code of 

Civil Procedure § 98, (iii) where the declarant was located 

more than 150 miles from the courthouse where the 

collection lawsuit was pending.” She claimed that PRA’s 

declaration was invalid because Eyre was not personally 
6 MEZA V. PORTFOLIO RECOVERY ASSOCS.

available for service at the address provided in his 

declaration. And she argued that PRA’s use of this 

declaration misrepresented that it would be admissible at 

trial. She therefore maintained that PRA was in violation of 

the Fair Debt Collection Practices Act (“FDCPA”), 

15 U.S.C. § 1692 et seq., which, among other things, 

prohibits debt collectors from using false, deceptive, 

misleading, or unfair representations to collect any debts.

On April 27, 2015, Appellees filed a motion for 

summary judgment and argued that California Code of Civil 

Procedure § 98 simply requires the affiant to be “available 

for service of process” within 150 miles of the place of trial, 

not personally available for service at the address provided. 

The district court agreed, finding that the plain language of 

§ 98 did not require the affiant’s physical presence, and that 

the legislative history and purpose of the statute supported 

that interpretation. The district court therefore held that 

PRA’s declaration complied with § 98 and contained no 

false or misleading statements in violation of the FDCPA. It 

granted Appellees’ motion and entered judgment in their 

favor.

Meza timely appealed.

IV. Explanation of Certification

This appeal turns on whether California Code of Civil 

Procedure § 98 requires the affiant to be physically located 

and personally available for service of process at the address 

provided in the declaration. The question is purely one of 

state law and is dispositive of this appeal—if physical 

presence is not required, then PRA complied with the state 

statute and did not make any false or misleading 

representations in violation of the FDCPA. Cal. R. Ct. 

8.548(a)(1).
MEZA V. PORTFOLIO RECOVERY ASSOCS. 7

There is no controlling California precedent addressing 

this question. Cal. R. Ct. 8.548(a)(2). And while the issue 

has been considered by the Appellate Divisions of various 

California Superior Courts, those decisions are not binding 

and have limited persuasive authority. See Suastez v. Plastic 

Dress-Up Co., 647 P.2d 122, 126 n.6 (Cal. 1982). They have 

also reached inconsistent outcomes. Compare CACH LLC 

v. Rodgers, 176 Cal. Rptr. 3d 843 (Cal. App. Dep’t Super. 

Ct. 2014) (holding that § 98 requires the affiant to be 

physically present at the location provided in the 

declaration), and Target Nat’l Bank v. Rocha, 157 Cal. Rptr. 

3d 156 (Cal. App. Dep’t Super. Ct. 2013) (same), with 

Citibank v. Bardin, No. BV 028877 (Cal. App. Dep’t Super. 

Ct. Dec. 8, 2011) (unpublished) (holding that there was 

nothing in the record to demonstrate that the use of a post 

office box rendered the declaration noncompliant with § 98).

The question certified presents an issue of significant 

importance to the State of California. See Munson v. Del 

Taco, Inc., 522 F.3d 997, 999–1000 (9th Cir. 2008). Though 

§ 98 applies only to “limited civil cases,” see Cal. Code Civ. 

Proc. § 91, an answer from the California Supreme Court 

will help simplify litigation procedures in these low value 

cases, which are responsible for the vast majority of civil 

filings in California. See Preface to Judicial Council of 

California, 2016 Court Statistics Report, Statewide Caseload 

Trends (2016); see also id. at 40. It will also provide 

guidance to California consumers, creditors, and debt 

collectors and purchasers who litigate thousands of debt 

collection cases each year.

V. Relevant Law and Arguments Presented

Under California Code of Civil Procedure § 98, “[a] 

party may, in lieu of presenting direct testimony, offer the 

prepared testimony of relevant witnesses in the form of 
8 MEZA V. PORTFOLIO RECOVERY ASSOCS.

affidavits or declarations under penalty of perjury.” To be 

received as evidence, however, a copy of the declaration 

must be served on the opposing party, “together with a 

current address of the affiant that is within 150 miles of the 

place of trial, and the affiant is available for service of 

process at that place for a reasonable period of time, during 

the 20 days immediately prior to trial.” Cal. Code Civ. Proc. 

§ 98(a).2 The dispute here centers on the meaning of 

“available for service of process.”

California rules of statutory interpretation seek to 

“ascertain the intent of the Legislature so as to effectuate the 

purpose of the law.” State Farm Mut. Auto. Ins. Co. v. 

Garamendi, 88 P.3d 71, 78 (Cal. 2004) (internal quotation 

omitted). Under California law, courts “look first to the 

words of the statute themselves, giving to the language its 

usual, ordinary import and according significance, if 

possible, to every word, phrase, and sentence in pursuance 

of the legislative purpose.” Id. (internal quotation omitted). 

California courts also “read every statute with reference to 

the entire scheme of law of which it is part so that the whole 

may be harmonized and retain effectiveness.” Id. (internal 

quotation omitted).

If the statute is clear, then there is no need for judicial 

construction. Hughes v. Bd. of Architectural Examiners, 

952 P.2d 641, 649 (Cal. 1998). However, if the statute is 

ambiguous—i.e., capable of two reasonable constructions—

 2 The declaration may also be received as evidence if “[t]he 

statement is in the form of all or part of a deposition in the case, and the 

party against whom it is offered had an opportunity to participate in the 

deposition.” Cal. Code Civ. Proc. § 98(b).
MEZA V. PORTFOLIO RECOVERY ASSOCS. 9

then California courts will “consider evidence of the 

Legislature’s intent beyond the words of the statute.” Id.

Both Meza and PRA contend that the plain language of 

the statute supports their respective positions. Meza’s 

argument focuses on the language of § 98 read in 

conjunction with other California statutory provisions. She 

argues that the California Legislature must have 

contemplated that the affiant be personally available for 

service of process at the address provided in the declaration 

because § 98 operates as an exception to the general rule 

against hearsay evidence. See Cal. Evid. Code § 1200. 

Though § 98 broadly allows a party to present witness 

testimony in the form of a declaration, § 98(a) in turn 

requires the offering party to provide a current address of the 

affiant so that the opposing party can seek to require the 

affiant’s attendance at trial. It therefore preserves the 

opposing party’s right to cross-examine the affiant, should 

that party wish to challenge the hearsay evidence. See 

Rocha, 157 Cal. Rptr. 3d at 159–60.

For this protection to work, Meza claims that the affiant 

must be physically located at the address provided in the 

declaration. She cites California Code of Civil Procedure 

§§ 1985(a) and 1987(a) in support of this argument. Read 

alongside § 98, these provisions could suggest that the 

affiant’s attendance at trial can only be secured through the 

use of a subpoena, § 1985(a), and that a subpoena must be 

delivered to the witness personally, § 1987(a). Thus, Meza 

argues that § 98(a) implicitly requires physical presence, 

since its protective purpose can only be enforced through the 

use of a trial subpoena, according to other provisions of the 

California Code of Civil Procedure. See Rodgers, 176 Cal. 

Rptr. 3d at 847–48; Rocha, 157 Cal. Rptr. 3d at 160.
10 MEZA V. PORTFOLIO RECOVERY ASSOCS.

PRA argues that § 98’s language does not require actual 

physical presence. Had the California Legislature intended 

physical presence at the address provided in the declaration, 

it could have easily required the affiant to provide “a current 

residential or work address,” rather than simply “a current 

address.” See Cal. Code Civ. Proc. § 98(a). The Legislature 

also could have required an address where the affiant is 

subject to subpoena prior to trial. But because the 

Legislature merely demanded an address where the affiant is 

“available for service of process,” id., PRA argues that the 

court should not add words to an otherwise clear statutory 

provision.

Moreover, PRA argues that such an exercise would 

contravene the legislative history and purpose of § 98. See 

Hughes, 952 P.2d at 649. California Code of Civil 

Procedure §§ 90–100, collectively referred to as Economic 

Litigation for Limited Civil Cases, were enacted to reduce 

costs in cases involving relatively small dollar values. As 

originally introduced, § 98 allowed a party to introduce the 

affidavit of any witness if “[a] copy, together with the 

current address of the affiant, has been received by the party 

against whom it is offered at least 15 days prior to trial, and 

the affiant is subject to subpena [sic] for the trial.” Assemb. 

B. 3170, 1981–1982, Reg. Sess. (Cal. 1982) (as introduced, 

March 10, 1982). It was then amended in the Assembly on 

April 21, 1982, and enacted into law as part of Senate Bill 

No. 1820 later that year. The 1982 version allowed parties 

to prepare affidavits or declarations, in lieu of trial 

testimony, provided that “[a] copy, together with the current 

address of the affiant, has been served on the party against 

whom it is offered at least 30 days prior to the trial, and the 

affiant is available for service of process at a place 

designated by the proponent, within 150 miles of the place 
MEZA V. PORTFOLIO RECOVERY ASSOCS. 11

of trial.” Assemb. B. 3170, 1981–1982, Reg. Sess. (Cal. 

1982) (as amended, April 21, 1982).

In 1983, § 98(a) underwent one final amendment. It

remains in effect today:

A party may, in lieu of presenting direct 

testimony, offer the prepared testimony of 

relevant witnesses in the form of affidavits or 

declarations . . . provided that . . .

(a) A copy has been served on the party 

against whom it is offered at least 30 days 

prior to the trial, together with a current 

address of the affiant that is within 150 miles 

of the place of trial, and the affiant is 

available for service of process at that place 

for a reasonable period of time, during the 

20 days immediately prior to trial.

Cal. Code Civ. Proc. § 98(a).

PRA argues that these amendments strongly support its 

position that § 98(a) does not require physical presence at 

the address provided. According to California rules of 

statutory interpretation, “[t]he rejection by the Legislature of 

a specific provision contained in an act as originally 

introduced is most persuasive to the conclusion that the act 

should not be construed to include the omitted provision.” 

People v. Soto, 245 P.3d 410, 420 (Cal. 2011) (quoting Rich 

v. State Bd. of Optometry, 45 Cal. Rptr. 512, 522 (Cal. Dist. 

Ct. App. 1965)). As such, PRA contends that the court 

should not read § 98 to require the use of a trial subpoena. 

Rather, PRA argues that the Legislature clearly 

contemplated other forms of service of process, forms that 
12 MEZA V. PORTFOLIO RECOVERY ASSOCS.

do not require the affiant to be personally available to accept 

service of process.3

Given the seemingly ambiguous language of § 98, and 

the inconsistent outcomes reached by California Superior 

Courts, we believe the California Supreme Court is in the 

best position to interpret the statute and settle an important 

question of state law. We therefore respectfully request that 

the California Supreme Court exercise its discretion to 

decide the certified question. Absent certification, we will 

attempt to determine how the California Supreme Court 

would interpret this statute, though we are not the final 

expositor of California law. Walker v. City of Lakewood, 

272 F.3d 1114, 1125 (9th Cir. 2001); Pacheco v. United 

States, 220 F.3d 1126, 1131 (9th Cir. 2000).

VI. Accompanying Materials

The clerk of this court is hereby directed to file in the 

California Supreme Court, under official seal of the United 

States Court of Appeals for the Ninth Circuit, copies of all 

relevant briefs and excerpts of record, and an original and 

ten copies of this order and request for certification, along 

 3 Additionally, PRA notes that alternative forms of service of 

process would better promote § 98’s purpose. In its view, requiring 

parties to hire process servers would be much more costly than simply 

allowing parties to fax or email notices to authorized agents. Cf. 

Rodgers, 176 Cal. Rptr. 3d at 847–48 (indicating that, “in the vast 

majority of cases, where the matters are uncontested or otherwise 

unchallenged,” it is “unwieldy” to “requir[e] personal service, or hav[e] 

a local declarant literally available for service within 150 miles”). Meza, 

however, contends that § 98’s purpose weighs in her favor, as it limits 

how far an opponent must travel to serve a subpoena on an affiant whose 

attendance at trial is required.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 13

with a certification of service on the parties, pursuant to 

California Rule of Court 8.548(c) and (d).

The Clerk is directed to administratively close this 

docket, pending further order. This panel retains jurisdiction 

over further proceedings.

IT IS SO ORDERED.