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Filed 8/5/14 Certified for publication 8/26/14 (order attached)

CERTIFIED FOR PUBLICATION

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF VENTURA

APPELLATE DIVISION

CACH LLC, 

Plaintiff and Respondent,

v.

KATHLEEN RODGERS, 

Defendant and Appellant.

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(Ventura County Superior Court Case 

Number 56-2012-00420026-CL-CL-VTA

APPEAL from a judgment from the trial court in the Superior Court of Ventura County.

Judgment REVERSED.

Trial Judge:

Vincent J. O‟Neill

Counsel:

Ian Chowdhury for Defendant and Appellant.

Elizabeth G. Sutlian for Plaintiff and Respondent.

BY THE COURT:

STATEMENT OF CASE

 This case is a civil debt collection proceeding. Respondent CACH LLC (Respondent) 
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alleges that appellant Kathleen Rodgers (Appellant) opened a revolving credit account with 

Washington Mutual/Chase Bank and failed to pay. After the debt became delinquent 

Respondent purchased the debt from Washington Mutual/Chase Bank and made attempts to 

collect from Appellant by filing this litigation. 

 The lawsuit was initiated on June 18, 2012. Appellant was duly served and filed an 

answer to the complaint on February 28, 2013. On May 1, 2013, Respondent filed a declaration,

pursuant to Code of Civil Procedure section 98 (hereinafter section 98), authored by „Magic 

West,‟ stating Respondent‟s intention to introduce the documentary evidence in lieu of direct 

testimony of the declarant. In his declaration, Magic West states, “I am currently located in 

Denver, Colorado, therefore I authorize service to be accepted on my behalf within a reasonable 

period of time prior to trial in order to allow for necessary travel. Service will be accepted on 

my behalf at the office of Plaintiff’s attorney located at Mandarich Law group, LLP, 

6301Owensmouth Ave. Suite 850, Woodland Hills, California, 91367, which is within 150 miles 

of the place of trial.” On June 3, 2013, Appellant filed a pretrial brief objecting to the 

introduction of the documentary evidence pursuant to section 98. Attached to her motion as 

exhibit C was a record of attempted, but failed, service of Magic West at 6301 Owensmouth 

Ave. Ste. 850, Woodland Hills, CA 91367. The reason for failure of service states, “Deft. Does 

Not Work at This Address—Personal Service Only For Civil Subpena.” The date of attempted 

service was May 7, 2013. In her pretrial brief Appellant objected to Respondent‟s intended use 

of the Magic West declaration and the records contained therein pursuant to section 98 and 

pursuant Evidence Code sections 1270 to 1271 (business records). 

 On June 10, 2013, trial was commenced, Honorable Vincent O‟Neill presiding. 

Argument was heard on Appellant‟s objection to the introduction of the Magic West declaration 

and to its contents. Counsel for CACH prevailed in her argument to the trial court to disregard 

the decision of Target v. Rocha (2013) 216 Cal.App.4

th Supp. 1, because it was not binding 

authority. Counsel for Respondent also argued, “The most damaging factual difference in this 

case is that this Defendant has made zero effort in effecting service on our witness. There‟s no 
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prejudice to the Defendant when service is not effected, so therefore I think it should be 

disregarded.” Appellant pointed out that she did try to effect personal service as it was required 

by section 98 and that the witness actually was a resident of Colorado. The trial court rejected 

Appellant‟s argument and admitted Respondent‟s documentation over objection. 

 Respondent called Appellant as a witness. Appellant‟s testimony, in content, had to do 

with her identity, her residences, and her personal information, or to categorize it more aptly, 

lack of her knowledge pertaining to those things. Respondent then introduced the declaration of 

Magic West and relied on its contents to establish that a debt was owed to Respondent by 

Appellant. Appellant produced no evidence. Appellant argued that the court erroneously relied 

on the documents in the section 98 declaration because they did not comply with the 

requirements of section 98. Appellant further contended that the contents of the records did not 

meet the requirements of Evidence Code sections 1270 to 1271 and that Magic West was not, 

and never had been, a custodian of records for Washington Mutual/Chase Bank, from which the 

underlying documents were generated. 

 The trial court found in favor of Respondent, specifically commenting, “I also find that 

Ms. Rodgers was evasive and unbelievable in testifying to certain things, such as she can‟t 

remember where she lived one year ago.” Judgment was entered on behalf of Respondent for 

$2,956.52 costs and attorney fees. This appeal followed.

GROUNDS ON APPEAL

 Appellant contends that the trial court erred in admitting the section 98 documents over her 

objection. Appellant also contends error in overruling her hearsay objections to the documents 

themselves on various grounds, including hearsay, lack of personal knowledge and failure to 

authenticate. 
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STANDARD OF REVIEW

 The reviewing court generally applies the abuse of discretion standard when reviewing a 

trial court‟s decision concerning the admissibility of evidence. (City of Ripon v. Sweetin (2002) 

100 Cal.App.4

th 887, 900.) However, statutory interpretation and the proper application of a 

statute are questions of law that are reviewed de novo. (Boy Scouts of America National 

Foundation v. Superior Court (2012) 206 Cal.App.4

th428, 443.) Erroneous introduction of 

evidence must result in a miscarriage of justice and reversal should be granted only where the 

reviewing court is convinced that it is reasonably probable that a result more favorable to the 

Appellant would have been reached but for the error. (Evid. Code, § 353; Brokopp v. Ford 

Motor Co. (1977) 71 Cal.App.3d 841, 853.)

DISCUSSION

 The primary issue before us is whether we should elect to follow the decision rendered in 

Target v. Rocha, supra, 216 Cal.App.4

th Supp. 1. Respondent urges us to disregard it as “nonbinding” which prompts us to realize that our own decision in this case, regardless of which way 

we rule, need have no lasting precedent on any future decisions by other jurisdictions. 

Respondent urges us to accept a statutory interpretation of section 98 which is somewhat 

tortured. The language of the statute should be given its clear meaning. If ambiguous, the 

language should be scrutinized in light of the legislative intent. (Boy Scouts of America 

National Foundation v. Superior Court, supra, 206 Cal.App.4

th at p. 443.) In any event, in this 

particular case, we are satisfied that the rule of law set forth in Target v. Rocha should be 

followed. 

 Target v. Rocha, admittedly, is a case of first impression. (Target v. Rocha, supra, 216 

Cal.App.4th at p. Supp. 5.) It is also almost factually identical to the issues before us. Rocha 

owed Target money on a revolving account. A lawsuit was filed by Target. A declaration was 
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filed pursuant to section 98 stating that the declarant was available for service and authorized 

service at a location one mile from the court house, although declarant was actually physically in 

Minnesota. Prior to trial counsel for Rocha attempted service at the specified address, complete 

with witness fees, only to be told that the witness did not work at that location. “As the process 

server was only authorized to personally serve (Lewis), he left without serving the subpoena.” 

(Target v. Rocha, supra, at p. Supp. 7.) 

 Section 98 provides that prepared testimony in lieu of direct testimony is admissible at trial 

under certain conditions. “(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.” We agree with the 

court in Target v. Rocha, supra, 216 Cal.App.4th Supp. 1 that merely providing an address within 

150 miles of the location of the trial is insufficient to effectuate service of a subpoena. Service 

of subpoenas is governed by Code of Civil Procedure section 1987, subdivisions (a) and (b)

(hereinafter sections 1987(a) and 1987(b)). The witness needs to be served personally in order 

to compel appearance at trial (§ 1987(a)) or needs to be an officer director, or managing agent of 

a party (§ 1987(b)) with written notice to the party or its attorney to procure attendance at trial. 

The record in this case indicates that Magic West was not available for service of process at the 

address specified by Respondent. This is evidenced by the fact that no one at the specified 

address was instructed to make him, “available for service” within the 20 days before trial upon 

request. If the address specified for service of Magic West was indeed the law offices of 

Mandarich LLC, someone at the office could have accepted the subpoena on his behalf and 

requested his appearance consistent with his declaration that he would accept it at that location 

and make himself available for trial. Instead attempts by Appellant to secure his attendance at 

trial were refused. Although Respondent‟s attorney claimed to be unaware of Appellant‟s 

attempts to secure the attendance of Magic West, we impute knowledge to Respondent, if not 

because of the refusal of service purported to be an address of her law firm, but because 
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Appellant attached a copy of her attempt to serve Magic West to her pretrial motions, a week 

prior to the actual trial and objected to the introduction of the documents based on her inability to 

serve Magic West at the pretrial. Respondent was well aware that Appellant desired the 

attendance of Magic West and contested the admissibility of the documents. 

 We perceive the necessity of proceeding to trial in cases of this nature by way of 

declaration as opposed to live witnesses. In the vast majority of cases, where the matters are 

uncontested or otherwise unchallenged, section 98 makes perfect sense. However, when 

documentation is challenged in the trial court and plausible arguments are made concerning the 

authenticity or accuracy of the underlying declarations or documents, and where a litigant has 

made good faith efforts to compel the declarant‟s testimony at trial, the litigant should be 

allowed to cross-examine the declarant. The spirit of section 98 was most certainly not to 

deprive litigants of the right of cross-examination. “A person‟s right to cross-examination and 

confrontation of witnesses against him in noncriminal proceedings is a part of procedural due 

process guaranteed by the Fifth Amendment and the Fourteenth Amendment of the federal 

Constitution, where there is a threat to life liberty or property.” (August v. Department of Motor 

Vehicles (1968) 264 Cal.App.2d 52, 60.) “Thus a party may only introduce a witness‟s 

declaration if the opposing party had the opportunity to cross examine the witness at deposition 

or could require the witness to be subject to cross-examination at trial.” (Target v. Rocha, supra,

216 Cal.App.4th at p. Supp. 9.) 

 If the legislature had intended to allow long distance service without complying with 

section 1987, or making a third or hybrid type of service permissible, they certainly know how to 

say so. Although requiring personal service, or having a local declarant literally available for 

service within 150 miles, is unwieldy in cases of this nature, in a contested matter, where the 

litigant has made efforts to effectuate service, the right of cross-examination at trial should 

prevail over the convenience of the litigants and the witnesses. Section 98, subdivision (b) also 

contains an alternative provision to attendance of the witness at trial by allowing for the 

admission of testimony taken at a deposition. If the statute needs to be amended to clearly 
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provide for service of a subpoena that is not accomplished by personal service on the person who 

is sought for trial, then the legislature needs to make those changes. We agree with the holding 

of Target v. Rocha, supra, 216 Cal.App.4th Supp. 1 and find its logic persuasive. Magic West 

was not available for service within 150 miles and was not at the location for a reasonable period 

of time during the 20 days immediately prior to the trial as required by statute.

 Because we agree with appellant‟s contention that the documents attached to the Magic 

West declaration were inadmissible, we need not address appellant‟s other contentions. 

 We have reviewed the record of the trial to decide if admission of the evidence resulted in 

a miscarriage of justice which requires reversal. If the declaration and its contents had been 

refused as evidence, Respondent could not have prevailed in this matter. We have reviewed the 

testimony offered by Respondent in the form of Appellant‟s testimony, which was the only other 

evidence introduced by Respondent. Although Appellant‟s testimony lacked candor, was 

contentious, and was disbelieved by the trial court, it did not constitute grounds for a civil 

judgment to be entered for the cause of action stated in the complaint. As such, we must 

conclude that there is a reasonable likelihood that Appellant may have prevailed but for the 

admission of the declaration of Magic West and the documents subject matter of his declaration.

 

ORDER

 The judgment entered on June 10, 2013, is reversed and the matter is remanded for a new 

trial. 

 Ayers, Acting P. J.

WE CONCUR:

 Walsh, J.

 Guasco, J.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF VENTURA

APPELLATE DIVISION

CACH LLC, 

Plaintiff and Respondent,

v.

KATHLEEN RODGERS, 

Defendant and Appellant.

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(Ventura County Superior Court Case 

Number 56-2012-00420026-CL-CL-VTA

ORDER CERTIFYING OPINION AND 

JUDGMENT FOR PUBLICATION

The application to certify this case for publication is GRANTED.

Clerk to give notice. 

______________________

MATTHEW P. GUASCO

Judge of the Superior Court

Acting Presiding Appellate Judge