210 Cal. Rptr. 3d 659
Cal. App. Dep’t Super. Ct.2016Background
- Midland Funding LLC (Plaintiff) sued Michael Romero (Defendant) on a charged‑off Credit One Bank credit card account assigned to Plaintiff; bench trial resulted in judgment for Plaintiff.
- Plaintiff submitted a Code of Civil Procedure §98 declaration by Kenneth Smith (an officer/servicer employee) in lieu of live testimony, attaching Credit One statements, assignment documents, and collection notices.
- Smith’s declaration listed seven addresses and stated he would be available for service of process during the 20 days before trial; multiple listed addresses permitted substituted service and some were over 150 miles from the courthouse.
- Defendant attempted personal service of a subpoena at one listed local address but left the subpoena with a calendar clerk; defendant objected that Smith was not personally available within 150 miles as §98 requires and also objected to hearsay/authentication of the attached records.
- The trial court admitted the declaration and exhibits; on appeal the court reversed, holding the §98 declaration failed the statutory availability requirement and the attached prior‑creditor records were not properly authenticated under the business‑records exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §98 declaration complied with availability/service requirement | Smith’s listed addresses made him available for service within 150 miles and for the 20‑day window | Smith was not personally available for service at a current local address; substituted service addresses insufficient | Reversed: §98 requires personal availability within 150 miles; multiple/substituted addresses were insufficient (trial court erred) |
| Whether attached Credit One documents were admissible under business‑records exception | Smith’s familiarity with MCM records and incorporation of seller records established authentication and trustworthiness | Records from the original creditor were not shown to be prepared or trustworthy; Smith lacked foundation for prior creditor records | Reversed: plaintiff failed to show mode of preparation/trustworthiness for prior‑creditor records; exhibits inadmissible hearsay |
| Whether admission errors were prejudicial (miscarriage of justice) | Admission was harmless or defendant acknowledged debt | Without Credit One statements plaintiff could not establish indebtedness; reversal required | A different result was probable; error was prejudicial—judgment reversed |
Key Cases Cited
- Rocha v. Target Nat’l Bank, 216 Cal.App.4th Supp. 1 (Cal. Ct. App.) (declarant must be personally available for service per §98; substituted acceptance insufficient)
- Rodgers v. CACH LLC, 229 Cal.App.4th Supp. 1 (Cal. Ct. App.) (adopts Rocha; declarant not available when local address was inaccurate)
- Sierra Managed Asset Plan, LLC v. Hale, 240 Cal.App.4th Supp. 1 (Cal. Ct. App.) (prior‑creditor records require adequate foundation for business‑records exception)
- Unifund CCR, LLC v. Dear, 243 Cal.App.4th Supp. 1 (Cal. Ct. App.) (takes a more pragmatic/relaxed approach to authentication in debt collection cases)
- Velasquez v. Superior Court, 227 Cal.App.4th 1471 (Cal. Ct. App.) (appellate division decisions are persuasive but not binding)
- Pannu v. Land Rover N. Am., Inc., 191 Cal.App.4th 1298 (Cal. Ct. App.) (standard of review for evidentiary rulings)
- Florez v. Linens ’N Things, Inc., 108 Cal.App.4th 447 (Cal. Ct. App.) (de novo review for statutory interpretation)