Midland Funding v. Romero, JAD16-06

Midland Funding LLC (assignee of a defaulted Credit One Bank credit card account) sued Michael Romero to collect an alleged unpaid balance.
Plaintiff submitted a declaration under Code Civ. Proc. § 98 by Kenneth Smith (a Midland employee/agent) in lieu of live testimony, attaching Credit One statements, assignment documents, and collection notices.
Smith’s declaration listed seven addresses where he purportedly would be available for service during the 20 days before trial; several addresses were more than 150 miles from the courthouse and several authorized substituted service only.
Romero attempted personal service of a subpoena at the nearest listed address but the server left the documents with a calendar clerk; Romero objected that Smith was not personally available within 150 miles as § 98 requires and also objected to hearsay/lack of authentication of the attached records.
The trial court admitted the declaration and exhibits and entered judgment for Midland; Romero appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the § 98 declaration complied with the availability-for-service requirement	Smith’s listed addresses satisfied § 98 and made him available for service within 150 miles	Smith was not personally available for service at a current local address; listing remote addresses and addresses permitting substituted service fails § 98	Court held § 98 requires personal availability within 150 miles; Smith’s declaration did not comply and admission was abuse of discretion
Whether the attached documents were properly authenticated / admissible under the business records hearsay exception	Smith’s testimony that records were part of Midland’s business records and were relied upon sufficed to authenticate the exhibits and qualify them under Evid. Code § 1271	Exhibits originated with Credit One; Smith lacked foundation as to mode of preparation/trustworthiness of the original creditor’s records	Court held plaintiff failed to establish the necessary foundation for the prior creditor’s records; exhibits were not properly authenticated or admissible
Whether any error was prejudicial (i.e., miscarriage of justice)	Admission of the declaration and exhibits was harmless or cumulative	Excluding those materials would prevent plaintiff from proving indebtedness; error was prejudicial	Court concluded a different result was probable without the improperly admitted evidence and reversed and remanded

Pannu v. Land Rover North America, Inc., 191 Cal.App.4th 1298 (general appellate standard of review for evidentiary rulings)
Florez v. Linens ‘N Things, Inc., 108 Cal.App.4th 447 (statutory interpretation reviewed de novo)
Target Nat. Bank v. Rocha, 216 Cal.App.4th Supp. 1 (section 98 requires personal availability for service; noncompliance reversible)
CACH LLC v. Rodgers, 229 Cal.App.4th Supp. 1 (adopted Rocha reasoning; declarant not available within 150 miles fails § 98)
Sierra Managed Asset Plan, LLC v. Hale, 240 Cal.App.4th Supp. 1 (insufficient foundation for original creditor records renders exhibits inadmissible)
Unifund CCR, LLC v. Dear, 243 Cal.App.4th Supp. 1 (contrasting decision; treated business-records foundation more permissively)
Jazayeri v. Mao, 174 Cal.App.4th 301 (familiarity with business procedures can satisfy record-custodian foundation)

Disposition: Judgment reversed and remanded; appellant awarded costs on appeal.