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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, D efendant and Appellant. ) ) ) ) ) ) ) ) ( Ventura County Superior Court Case Number 56

- 2012

- 00420026

- CL

- CL

- VTA

APPEAL from a judgment from the trial court in the S uperior 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)2

alleges that a ppell ant 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 Appe llant 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 , purs uant to Code of Civil Proc edure s ection 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
Denve r, 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 Mandari ch Law group, LLP, 6301Owensmouth Ave. Suite 850, W oodland Hills, California, 91367, which is within 150 miles of the place of trial.” On June 3, 2013, A ppellant filed a pretrial brief objecting to the introduction of the documentary evidence pursuant to s ection 98. Attached to her motion as

e xhibit 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

— Pers onal Service Only For Civil Subpena.” The date of attem pted 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 there in pursuant to s ection 98 and pursuant Evidence Code s ection s 1270 to 1271 ( business records )

. On June 10, 2013, trial was commenced, Honorable Vincent O‟Neill p residing. Argument was heard on Appellant‟s objection to the introduction of the Magic West d eclaration
and to its con tents. 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 differe nce in this case is that this Defendant has made zero effort in effecting service on our witness. There‟s no3

prejudice to the Defendant when service is not effected, so therefore I think it should be disregarded.” Appellant pointed out that she did try t o effect personal service as it was required by section 98 and that the witness actually was a resident of Colorado. The trial court rejected
A ppellant‟s argument and admitted Respondent‟s documentation over objection. Respondent called A

ppel lant 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 content s 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 s ection 98. Appellant further contended that the contents of the records did not meet the requirements of Evidence Code s ections 1270 to 1271 and that Magic West was not, and never had been, a custodian of records for Washi ngton 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, suc h 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 t he section 98 documents over her objection. Appell ant also contends error in over ruling her hearsay objections to the documents themselves on various grounds, including hearsay, lack of personal knowledge and failure to
authenticate.4 STANDARD OF REVI EW

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 inter pretation 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 th 428, 443. ) Erroneous introduction of
evidence must result in a miscarria ge 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 C o. (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 “non

binding” 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 s ection 98 which is some what 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.4 th 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 was5

filed pursuant to s ection 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 l ieu 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 t he 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.4 th Supp. 1 that merely pr oviding 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 s ection 1987 , subdivisions (a) and (b) (hereinafter sections 1987(a) and 19 87(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 t rial. 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 servic e ” 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 w ith 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 because6

Appellant attached a copy of her attempt to serve Magic West to her pre trial 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 pre trial. 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, s ection 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 s ection 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 cro ss

- examination at trial.” ( Target v. Rocha , supra, 216 Cal.App.4 th at p. Supp. 9. ) If the legislature had intended to allow long distance service without complying with

s ection 1987, or making a third or hybrid type of service permissib le, 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 eff ectuate 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 clearly7

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 chan ges. We agree with the holding
of Target v. Rocha, supra, 216 Cal.App.4 th 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 im mediately 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 r eviewed 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 di d 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 Magi c 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.
Gua sco , 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. ) ) ) ) ) ) ) ) (Ventura County Superior Court Case Numb er 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 Supe rior Court Acting Presiding Appellate Judge