Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 02-20-2019
Case Style: Julia C. Meza v. Portfolio Recovery Associates, LLC
Case Number: S242799
Judge: Cantil-Sakauye, C. J.
Court: Supreme Court of California
Plaintiff's Attorney: Raeon Rodrigo Roulston and O. Randolph Bragg
Defendant's Attorney: Jeffrey Alan Topor and Tomio B. Narita
Description:
MoreLaw Helps People Find Lawyers
This state recognizes a subset of civil actions, known as
limited civil cases, in which the amount in controversy does not
exceed $25,000 and the parties seek only certain types of relief.
(See Code Civ. Proc., § 85.)1
The rules in limited civil cases
concerning subjects such as pleading, discovery, and the
presentation of evidence differ in some respects from the
procedures followed in other civil matters. As indicated by their
shared heading within the code, “Economic Litigation for
Limited Civil Cases” (§§ 90-100), these departures from normal
procedural practices are designed to make it more affordable to
pursue and defend actions falling within the limited civil
classification.
This case involves one of the economical litigation rules.
Statements made outside of trial are generally regarded as
hearsay when they are offered for their truth (see Evid. Code,
§ 1200, subd. (a)), and hearsay statements are normally
inadmissible unless they fit within a statutory exception to the
hearsay rule (id., subd. (b)). But in limited civil cases, a sworn
written statement, the contents of which otherwise might
constitute inadmissible hearsay, may sometimes be admitted on
the same terms applicable to live witness testimony. One such
scenario arises when a party offers into evidence an affidavit or
1 Subsequent undesignated statutory references are to the
Code of Civil Procedure.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
2
declaration (with these terms hereafter being used
interchangeably) and “a copy [of the affidavit] 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.” (Code of
Civ. Proc., § 98, subd. (a) (hereafter section 98(a)).)
We have accepted a request by the United States Court of
Appeals for the Ninth Circuit to decide a question of state law
associated with this provision. (See Cal. Rules of Court, rule
8.548(a).) That court asks, “Under section 98(a) . . . 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?”
Upon our review of the language, purpose, and history of
section 98(a), we answer this question as follows: A section 98(a)
affiant’s personal availability for service at an address within
150 miles of the place of trial often will be required for his or her
affidavit to be admissible as evidence under that section, but
such presence is not invariably necessary for all affiants. To
explain, section 98’s limited exception to the hearsay rule is
predicated on the party or parties against whom a sworn
statement is offered having an opportunity to examine the
maker of the statement under oath. Section 98(a) thus requires
the provision of an address within 150 miles of the place of trial
at which the affiant can be lawfully served with a form of process
designed to secure his or her appearance at trial, at which time
the affiant can be called as a witness. Although one such type
of process, a subpoena ad testificandum (i.e., a subpoena to
testify), typically must be personally served, there are
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
3
exceptions to this general rule, and at least some prospective
witnesses can be called to appear at trial through another form
of process that does not require personal service. Section 98(a)
therefore does not categorically require that all affiants be
personally present for service at an address within 150 miles of
the place of trial for a reasonable period during the 20 days prior
to trial. Such personal presence is required only if it is necessary
for lawful service, at the specified location, of process that
directs the affiant to appear at trial, under the standard rules
prescribing the pertinent types of process and how such process
is to be served.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2010, defendants Portfolio Recovery Associates, LLC;
Hunt & Henriques; Michael Scott Hunt; Janalie Ann Henriques;
and Anthony DiPiero (hereafter collectively referred to as
defendants) filed a limited civil case against plaintiff Julia Meza
in San Mateo County Superior Court. Defendants sued to collect
a debt from Meza. Meza had incurred this debt through a
consumer credit account with Wells Fargo Bank, N.A. After
Meza defaulted on the account, Portfolio Recovery Associates,
LLC acquired the right to pursue the obligation and then
referred the debt to Hunt & Henriques, a law firm, for collection
purposes. The remaining defendants (DiPiero, Hunt, and
Henriques) were attorneys with Hunt & Henriques during the
relevant time period.
Prior to trial in the state court proceeding, Meza was
served with a declaration bearing the caption, “Declaration of
Plaintiff in Lieu of Personal Testimony at Trial (CCP § 98).”
Section 98, the statute identified in the caption, provides in full
as follows: “A party may, in lieu of presenting direct testimony,
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
4
offer the prepared testimony of [relevant] witnesses in the form
of affidavits or declarations under penalty of perjury. The
prepared testimony may include, but need not be limited to, the
opinions of expert witnesses, and testimony which authenticates
documentary evidence. To the extent the contents of the
prepared testimony would have been admissible were the
witness to testify orally thereto, the prepared testimony shall be
received as evidence in the case, provided that either of the
following applies: [¶] (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. [¶] (b) The 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. [¶] The court shall determine whether the
affidavit or declaration shall be read into the record in lieu of
oral testimony or admitted as a documentary exhibit.”
This declaration was sworn to by Colby Eyre, who
identified himself as a custodian of records for Portfolio
Recovery Associates, LLC. Eyre attested that he had
“personally reviewed the books and records pertaining to
[Meza’s] credit card account number,” which revealed a balance
of more than $11,000 owed on the account. Eyre also declared
that “[p]ursuant 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.” Eyre’s declaration did
not explain how service was to occur at the 151 Bernal Road
location, or what the effect of that service would be.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
5
Meza undertook no efforts in the state court proceeding to
serve Eyre with a subpoena ad testificandum at the 151 Bernal
Road address, or anywhere else. For reasons not apparent in
the record, the action was dismissed in July 2014, five days prior
to the noticed trial date. Had the trial occurred, the place for
trial identified in the clerk’s notice of court trial was the Hall of
Justice in Redwood City, California. As any map of the area will
show, the San Jose address provided in Eyre’s declaration is well
within 150 miles of the Redwood City courthouse.
Meza initiated her federal action in August 2014. In her
lawsuit, framed as a putative class action under the Fair Debt
Collection Practices Act, 15 United States Code section 1692 et
seq. (hereafter the FDCPA), Meza alleges that when Eyre
submitted his section 98 declaration, both his “principal office”
and his residence were located more than 150 miles from the
Redwood City courthouse and that Eyre “was not reasonably
available for service of process at 151 Bernal Road, Suite 8, San
Jose, California 95119, between July 3, 2014, and July 22, 2014,
as stated” in his declaration. Meza further alleges that “[i]t is
the standard practice and policy of Defendants to use
Declarations in Lieu of Personal Testimony at Trial . . . which
falsely represent or imply that the declarant signor is personally
available for service of process within 150 miles of the place of
trial.” Meza asserts that the practice of filing section 98
declarations under such circumstances represents a “false,
deceptive, or misleading representation or means in connection
with the collection of [a] debt” and an “unfair or unconscionable
means to collect or attempt to collect [a] debt” under the FDCPA.
(15 U.S.C. §§ 1692e, 1692f.)
Defendants moved for summary judgment in the federal
action. In connection with that motion, defendants supplied
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
6
another declaration by Eyre in which he swore that he resided
and worked in California when he signed his declaration in the
state court proceeding. Defendants did not claim that Eyre
would have been personally present for service of process at an
address within 150 miles of the Redwood City courthouse prior
to trial in the state case, however. Instead, they asserted that
Hunt & Henriques would have accepted service for Eyre had
Meza delivered process to the law firm, demanding that Eyre
appear in person at trial. Hunt averred in a declaration that his
“firm has implemented a policy of agreeing to accept service of
process on behalf of declarants who submit declarations in
support of our clients. We accept process that is delivered to us
by any means, including mail, fax, email, overnight courier or
personal delivery. . . . If our firm receives any form of written
notice requesting that a declarant appear at trial, it is our policy
to honor that request and treat it as satisfying the requirements
of section 98 of the Code of Civil Procedure. In the event a
process server or other individual arrives at our firm with any
form of written notice requesting that a section 98 declarant
appear at trial, our staff has been instructed to inform the
individual that we are authorized to accept service, and we do,
in fact, accept service of anything delivered in this fashion.”
Defendants further represented in their summary judgment
briefing that “[h]ad Meza attempted service of process on [Hunt
& Henriques], it would have been binding on Mr. Eyre and he
would have been notified that he was being compelled to testify
at trial.”
The federal district court granted defendants’ motion for
summary judgment. (Meza v. Portfolio Recovery Associates, LLC
(N.D.Cal. 2015) 125 F.Supp.3d 994, 1007 (Meza).) The court
agreed with defendants that Eyre’s declaration complied with
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
7
section 98(a), and therefore provided no basis for a claim under
the FDCPA. (Meza, at p. 1007.) Beginning with the language
of the state statute, the district court observed that section 98(a)
does not explicitly demand that the affiant be physically located
at the address provided, and the court did not perceive the
statute’s “available for service of process” language as implicitly
incorporating a personal presence requirement. (Meza, at
p. 1001.) The court read the statute as calling only for an
address at which the affiant could be served by any means
recognized as appropriate for service of some form of process
under state law. The court noted that “[i]n California, service of
process may be effected by means other than personal delivery,
including by sending the documents to the mailing address of
the person to be served or by delivering the documents to a
person authorized to receive service of process on another’s
behalf.” (Ibid., citing §§ 415.20 [concerning service of a
summons], 415.30 [same], 416.90 [same], 684.120 [concerning
service under the Enforcement of Judgments Law, § 680.010 et
seq.].) Thus, the district court determined, “a mailing address
or other address where the affiant is authorized to be served
under California law would be a current address for the affiant
at which the affiant is available for service of process, satisfying
the literal requirements of Section 98.” (Meza, at p. 1001.)
2
The district court rejected Meza’s alternative
interpretation of section 98(a), which would construe this
2
In a footnote, the district court also opined that in light of
the representations in Eyre’s declaration, binding service could
have occurred at the Hunt & Henriques address had Meza
attempted to serve him at that location. (Meza, supra, 125
F.Supp.3d at p. 1002, fn. 3.)
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
8
provision as concerned with service of a particular type of
process — a civil subpoena ad testificandum — for which state
law expressly contemplates only personal service. (Meza, supra,
125 F.Supp.3d at pp. 1001-1002; see also §1987, subd. (a) [“the
service of a subpoena is made by delivering a copy, or a ticket
containing its substance, to the witness personally”].) The court
regarded such a construction as not only foreclosed by the
statute’s plain language, but also contradicted by the available
legislative history. (Meza, at pp. 1002-1004.)
Reviewing this history, the district court observed that as
introduced in the Legislature, proposed legislation (Assembly
Bill No. 3170 (1981-1982 Reg. Sess.)) (Assembly Bill No. 3170)
would have permitted the use of an affidavit 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 the
trial, and the affiant is subject to subpena for the trial.” (Id., as
introduced Mar. 10, 1982, § 1.) As this bill progressed through
the legislative process, it was amended to delete the reference to
a subpoena. As amended, the measure provided that an
affidavit could be used if “[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 of trial, at least 20
days prior to trial.” (Id., as amended Apr. 21, 1982, § 1, italics
added.) This revised language was ultimately enacted into law
as part of the set of economical litigation laws. (See Stats. 1982,
ch. 1581, § 1, p. 6229.)3
3 As will be detailed post, section 98 was amended in 1983 to
incorporate the current language within subdivision (a).
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
9
The district court concluded from this sequence that
because the Legislature had replaced language expressly
demanding that an affiant be subject to subpoena with more
general “available for service of process” phrasing, an
interpretation of section 98 that required a declarant to be
available within a 150-mile radius for personal service of a
subpoena ad testificandum would improperly “ ‘reinsert what
the Legislature intentionally removed.’ ” (Meza, supra, 125
F.Supp.3d at p. 1003, quoting People v. Soto (2011) 51 Cal.4th
229, 245.)
The district court acknowledged that section 98(a) had
been construed differently in CACH LLC v. Rodgers (2014) 229
Cal.App.4th Supp. 1 and Target National Bank v. Rocha (2013)
216 Cal.App.4th Supp. 1. (Meza, supra, 125 F.Supp.3d at
p. 1005.) In Rodgers and Rocha, the Appellate Divisions of the
Superior Courts of Ventura County and Santa Clara County,
respectively, each had regarded the admissibility of a section 98
affidavit as conditioned on the affiant’s susceptibility to effective
service of a subpoena ad testificandum. (Rodgers, at pp. Supp.
6-7; Rocha, at p. Supp. 9.) The federal court rejected these
rulings as being “at odds with both the plain meaning of Section
98 and its legislative history.” (Meza, at p. 1005.) The district
court also noted that unpublished decisions issued by appellate
divisions of the superior courts of this state had read section
98(a) as not requiring the affiant’s personal presence within 150
miles of the place of trial. (Meza, at p. 1006.)
Meza appealed. After briefing and oral argument, the
Ninth Circuit posed its request that we construe section 98(a),
which we have accepted.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
10
II. DISCUSSION
We begin with a review of pertinent background principles
concerning the statutory scheme for limited civil cases, what
“process” entails, and how process is to be served. Our analysis
then turns to the language, purpose, and history of section 98(a).
We ultimately conclude that section 98(a)’s reference to
“process” refers to specific types of process that direct a
prospective witness — here, the affiant — to appear at trial.
Because nothing within section 98(a) or its history clearly
indicates that the Legislature sought to depart from the
prevailing rules specifying how service of these kinds of process
is to occur, we then return to the above-referenced background
principles and conclude that section 98(a) does not invariably
require that the affiant be personally present for service of
process at an address within 150 miles of the place of trial.
Instead, personal presence at the specified address is required
only if it is necessary for lawful service of process, under the
conventional rules applicable to service of the relevant types of
process.
A. The Statutory Framework
Before delving into the language of section 98(a), it is
helpful to review what limited civil cases are, what “process”
entails under state law, and the prevailing rules governing
service of process.
1. Limited Civil Cases
A limited civil case is one in which the amount in
controversy does not exceed $25,000, and the relief sought is of
a kind deemed suitable for this type of proceeding. (§ 85.)
Limited civil cases involve some of the same procedures that
generally apply in other civil matters. (§ 90.) But the
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
11
Legislature also has crafted procedures specific to limited civil
cases, which are designed to simplify and thereby reduce the
cost of pursuing and defending these actions. (See Stats. 1982,
ch. 1581, § 5, p. 6230.) These distinctive procedures include the
sworn statements authorized by section 98, restrictions on the
types of pleadings that are permitted (§ 92), an optional case
questionnaire through which a plaintiff may provide and elicit
relevant case information (§ 93), and streamlined discovery
procedures (§§ 94, 95). The rules for economical litigation also
include a fail-safe provision; pursuant to section 91, subdivision
(c), “[a]ny action may, upon noticed motion, be withdrawn from
the provisions of this article [§§ 90-100], upon a showing that it
is impractical to prosecute or defend the action within the
limitations of these provisions.”
2. Process and Service of Process
“ ‘Process’ signifies a writ or summons issued in the course
of a judicial proceeding.” (§ 17, subd. (b)(7); see also Gov. Code,
§§ 22 [defining “process” as “includ[ing] a writ or summons
issued in the course of judicial proceedings of either a civil or
criminal nature”], 26660 [defining “process,” as used in title 3 of
the Government Code, as “includ[ing] all writs, warrants,
summons, and orders of courts of justice, or judicial officers”];
Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 859
[discussing what “process” involves].) A subpoena represents a
commonly used form of process (Code Civ. Proc., § 1985, subd.
(a)), as does a summons served upon a defendant along with a
complaint (see id., § 412.20).
“A subpoena is a command to appear at a certain time and
place to give testimony upon a certain matter.” (Black’s Law
Dict. (6th ed. 1990) p. 1426; see also § 1985, subd. (a) [“[t]he
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
12
process by which the attendance of a witness is required is the
subpoena”].) Service of a civil subpoena “may be made by any
person.” (§ 1987, subd. (a).) The manner of serving a civil
subpoena is specified by statute: “[T]he service of a subpoena is
made by delivering a copy, or a ticket containing its substance,
to the witness personally, giving or offering to the witness at the
same time, if demanded by him or her, the fees to which he or
she is entitled for travel to and from the place designated, and
one day’s attendance there.” (Ibid.) The personal service
requirement for subpoenas found in section 1987, subdivision (a)
perpetuates a long-standing rule of state procedure, one that
predates even the codification of state law. (See Stats. 1851,
ch. 5, § 404, p. 115 [“The service of a subpoena shall be made by
showing the original, and delivering a copy . . . to the witness
personally”].) A strict personal service requirement for civil
trial subpoenas has been justified on the ground that
disobedience of a “duly served” subpoena represents a form of
contempt (§ 1209, subd. (a)(10)), and the potentially severe
consequences associated with a contempt finding make it
especially important to ensure that a prospective witness knows
that he or she has been subpoenaed to testify (In re Abrams
(1980) 108 Cal.App.3d 685, 690). Furthermore, because
personal delivery is the form of service most likely to provide
notice of a demand to appear at trial, requiring personal service
of a trial subpoena minimizes the likelihood that a trial will be
disrupted by a subpoenaed person’s failure to appear.
There are a few established exceptions to the general
requirement that, in order for a party to compel a person to
appear at a civil trial, that person must be personally served
with a subpoena. When the subpoenaed person is a minor, the
subpoena must be served on a parent, guardian, or other person
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
13
identified by statute. (§ 1987, subd. (a).) Likewise, certain
public employees (such as police officers and firefighters) need
not be personally served with subpoenas to secure their
appearance at trial, at least when their testimony would concern
matters associated with their professional duties. In these
situations, effective service of a trial subpoena can occur by
personal service or by “delivering two copies to [the prospective
witness’s] immediate superior at the public entity by which he
or she is employed or an agent designated by that immediate
superior to receive that service.” (Gov. Code, § 68097.1, subd.
(a); see also id., §§ 68097.1, subd. (b), 68097.3.)
Furthermore, no subpoena at all is required for the
production at a civil trial of a party, or “a person for whose
immediate benefit an action or proceeding is prosecuted or
defended or . . . anyone who is an officer, director, or managing
agent of any such party or person.” (§ 1987, subd. (b).) Such a
party or person may be summoned to appear at trial through
service “upon the attorney of that party or person” of “written
notice requesting the witness to attend . . . a trial,” with service
to occur no less than “10 days before the time required for
attendance unless the court prescribes a shorter time.” (Ibid.)
“The giving of the notice shall have the same effect as service of
a subpoena on the witness, and the parties shall have those
rights and the court may make those orders, including the
imposition of sanctions, as in the case of a subpoena for
attendance before the court.” (Ibid.) The notice to attend
mechanism does not oblige a person who resides outside of this
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
14
state to appear at trial, a limitation that applies to subpoenas,
as well. (See § 1989.)4
The relative strictness of the statutory scheme for service
of subpoenas becomes clear when contrasted with the rules
concerning service of summons. A summons accompanying a
complaint may be served personally (§ 415.10), but service by
other methods is also permitted, including service by mail
(§§ 415.30, 415.40) and (as a matter of last resort) by publication
(§ 415.50). Also, with some parties, service may occur by
providing copies of the summons and the complaint “to a person
authorized [by the person to be served] to receive service of
process.” (§ 416.90.)
B. Interpretation of Section 98(a)
The question before us involves the interpretation of a
statute. “ ‘When we interpret a statute, “[o]ur fundamental
task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do
not examine that language in isolation, but in the context of the
4
In 1872, a trial subpoena was effective only to oblige
attendance by persons residing less than 30 miles from the place
of trial. (Former § 1989.) This radius was increased to 50 miles in
1915 (Stats. 1915, ch. 162, § 1, p. 330), to 100 miles in 1935 (Stats.
1935, ch. 257, § 1, p. 942), to 150 miles in 1957 (Stats. 1957, ch.
1560, § 1, p. 2918), to 500 miles in 1980 (Stats. 1980, ch. 591, § 1,
p. 1603), and finally made congruent with state boundaries in 1981
(Stats. 1981, ch. 184, § 3, p. 1106). A narrow exception to section
1989 appears at Government Code section 68097.3, which applies
to subpoenas served upon nonresident California Highway Patrol
officers called to testify in civil actions or proceedings regarding
matters associated with their professional duties.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
15
statutory framework as a whole in order to determine its scope
and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.”
[Citation.] “Furthermore, we consider portions of a statute in
the context of the entire statute and the statutory scheme of
which it is a part, giving significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative
purpose.” ’ ” (City of San Jose v. Superior Court (2017) 2 Cal.5th
608, 616-617.)
Section 98(a) requires “a current address of the affiant
that is within 150 miles of the place of trial,” at which he or she
is “available for service of process.” This language admits of two
different interpretations. One construction, advanced by
defendants and accepted by the federal district court, would
regard the statute as satisfied by the affiant providing an
address at which he or she is amenable to any form of service
recognized as appropriate for some type of process — such as a
mailing address, regarded as suitable for service of a summons
— with the consequence being that the affiant’s personal
presence at an address would not be required for the affiant to
be “available for service of process” there. (Ibid.) Under a
second construction, the statute could have the affiant’s
availability for a specific type or types of process in mind, with
this process to be served in the conventional manner. Under the
latter reading of section 98(a), if an affiant normally could be
summoned to appear at trial only through service of a subpoena
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
16
ad testificandum, availability for personal service of this sort of
process would be necessary — meaning that the affiant would
need to be personally present within 150 miles of the place of
trial — unless an exception to the personal service requirement
were to apply.
This second construction finds support in the statute’s
text. The requirement that the affiant be “available for service
of process” does not necessarily signify that availability for
service of any type of process will suffice. (§ 98(a).) In fact,
certain aspects of section 98 suggest that the Legislature was
concerned with particular types of process and regarded
conventional service rules as applicable. Section 98’s
alternative method of securing the admission of a hearsay
statement offers one such indication of legislative intent.
Section 98, subdivision (b) permits the introduction of a written
statement that “is in the form of all or part of a deposition in the
case,” provided that “the party against whom it is offered had an
opportunity to participate in the deposition.” This limitation on
the admissibility of deposition testimony conveys that such
statements should be admitted only when a party against whom
they are offered has already received an opportunity to develop,
clarify, or challenge the testimony through examination, crossexamination,
or evidentiary objections at the deposition. The
two avenues of admissibility of a sworn statement within section
98 are synchronized only if section 98(a) is construed as
requiring amenability to a form of process, such as a subpoena,
that can secure an affiant’s presence at trial. At that time, the
affiant-witness can be called to testify regarding the subjects
addressed in the affidavit. This testimony can function as a
check on the representations made in the affidavit, much as
examination or cross-examination by an opposing party in a
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
17
prior deposition might serve the same purpose when introduced
in response to deposition testimony offered under section 98,
subdivision (b).
Moreover, the 150-mile radius specified by section 98(a),
as well as the statute’s requirement that the affiant be present
“at that place for a reasonable period of time, during the 20 days
immediately prior to trial,” reflect a concern with the affiant’s
physical whereabouts that is in harmony with the traditional
personal service requirement for trial subpoenas. Read with
personal service in mind, these provisions serve to reduce the
time and expense required for a party to perform service, at least
when the party resides close to the place of trial. In contrast,
these terms do not resonate with a scheme such as the one
defendants propose, in which a party against whom an affidavit
is offered normally would have a variety of service options (such
as mail service) at his or her disposal. Under that framework,
parties would be expected to personally serve an affiant with
process only rarely, if ever, and the same amount of postage
could serve process to a witness in a given case regardless of
whether he or she lived in Crescent City or Blythe. If the
Legislature had such a scheme in mind, the emphasis section
98(a) places on the affiant’s physical location prior to trial would
be difficult — although perhaps not impossible — to explain.
Given the statute’s ambiguity, the discussion below
evaluates the two interpretations offered above by further
considering, first, whether the purpose and history of section
98(a) convey that an affiant must be available for service of a
particular type or types of process; and second, whether in
enacting the law, the Legislature sought to deviate from
prevailing rules that define the pertinent forms of process and
how this process should be served.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
18
1. The Purpose and History of Section 98(a) Establish
That the Statute Is Concerned with Process That
Directs an Affiant To Appear at Trial
As will be explained below, we perceive the purpose and
history of section 98(a) as establishing that the statute
contemplates an address at which the affiant can be served with
process that directs him or her to appear at trial.
Construing section 98(a) as concerned with service of
process that summons an affiant to appear at trial is logically
consistent with the purpose of the affidavit procedure. A section
98 sworn statement functions as a substitute for live testimony.
Conditioning the use of a section 98(a) affidavit on the affiant’s
availability for service of a trial subpoena or comparable process
ensures that if another party disputes the contents of the
affidavit, that party can insist that the affiant appear as a
witness at trial and examine him or her at that time regarding
the contents of the statement. If, on the other hand, the affidavit
is uncontroversial, the party or parties against whom an
affidavit is offered may decline to subpoena or otherwise
demand the trial attendance of its author. That way, they will
avoid having to pay statutory witness fees, a not insignificant
consideration in limited civil cases. (See Gov. Code, §§ 68093,
68097 [addressing the payment of witness fees].)
The legislative history of section 98 corroborates that the
statute’s language regarding “service of process” has in mind the
specific forms of legal process that direct a person to appear at
trial. This history begins in 1976, when the Legislature
authorized the Economical Litigation Pilot Project. With this
project, the Legislature ordered the Judicial Council to conduct
short-term pilot programs in two counties (Los Angeles County
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
19
and Fresno County were selected) to audition simplified
procedures for use in civil cases with limited amounts in
controversy. (Former §§ 1823, 1823.1, added by Stats. 1976, ch.
960, § 1, p. 2192 and repealed by Stats. 1994, ch. 146, § 26,
p. 1311.) In endorsing this project, the Legislature found and
declared “that the costs of civil litigation have risen sharply in
recent years. This increase in litigation costs makes it more
difficult to enforce smaller claims even though the claim is valid
or makes it economically disadvantageous to defend against an
invalid claim.” (Former § 1823, added by Stats. 1976, ch. 960, §
1, p. 2192 and repealed by Stats. 1994, ch. 146, § 26, p. 1311.)
The Legislature also found and declared “that there is a
compelling state interest in the development of pleading,
pretrial and trial procedures which will reduce the expense of
litigation to the litigants and there is likewise a compelling state
interest in experimentation on a small scale with new
procedures to accomplish that result before those procedures are
adopted statewide.” (Ibid.)
The Legislature scripted some of the procedures that
would apply in the pilot programs. Among them, the
Legislature directed that “[w]ritten submissions of direct
testimony shall be permitted if the court determines that such
submissions will result in a saving of time for the court and
counsel.” (Former § 1826.6, added by Stats. 1976, ch. 960, § 1,
p. 2195 and repealed by Stats. 1994, ch. 146, § 26, p. 1311.) The
Legislature also instructed the Judicial Council to develop
additional rules of procedure for the pilot programs. Consistent
with the use of these trial efforts as laboratories for innovation,
the Legislature specifically provided that these rules could, as
revised in light of experience, eventually deviate from the initial
framework designed by the Legislature. (Former § 1823.4,
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
20
added by Stats. 1976, ch. 960, § 1, p. 2193 and repealed by Stats.
1994, ch. 146, § 26, p. 1311.)
The Judicial Council’s initial rules of court for the
Economical Litigation Pilot Project provided for the limited use
of documents in lieu of live testimony at trial. The rules on this
subject conditioned the admissibility of written testimony on the
ability of other parties to cross-examine the witness or author at
trial, if such cross-examination was desired. Initially, the rules
permitting the use of documents provided that “if any party, not
less than 10 days before trial or 10 days after receipt of the
documents, whichever date is first, delivers to the proponent of
the evidence a written demand that the witness or author of a
report, bill, or estimate be produced in person to testify, no
statement or document shall be received in evidence . . . unless
the witness is present and available for cross-examination.”
(Cal. Rules of Court, former rules 1741(b), 1849(b), repealed
May 1, 1980.) Later, the rules were revised to permit the
introduction of an affidavit only when, in addition to other
conditions being satisfied, “a copy [of the affidavit], 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 the
trial, and the affiant is subject to subpena for the trial.” (Cal.
Rules of Court, former rules 1741(c)(3), 1849(c)(3), repealed
July 1, 1983.)
When the pilot efforts had run their course, the
Legislature sought to codify some of the most effective
procedural reforms developed through these programs. (See
Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3170
(1981-1982 Reg. Sess.) Mar. 10, 1982, p. 1.) As introduced in the
Assembly, proposed legislation that would implement these
procedures drew from the pilot programs in allowing the use of
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
21
affidavits in place of live witness testimony, while conditioning
the admissibility of these statements on the maker’s
susceptibility to service of a subpoena. This measure, Assembly
Bill No. 3170, originally provided that “[a]ny party may call as
a witness, for direct or cross-examination, the author of any such
affidavit,” and further specified that an affidavit would be
admissible only if “[a] copy [of the affidavit], 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 the trial, and
the affiant is subject to subpena for the trial.” (Id., as introduced
Mar. 10, 1982, § 1.)
This bill was amended during the legislative process. The
amendments to Assembly Bill No. 3170 included the addition of
the provision, now found at section 98, subdivision (b), allowing
prior statements from a deposition to be introduced at trial as
evidence against a party that had an opportunity to participate
in the deposition. Also, language demanding that the affiant
supply his or her local (i.e., within 150 miles of the place of trial)
address at which he or she would be “available for service of
process” prior to trial was inserted in place of the subpoena
requirement, with the revised bill authorizing an affidavit when
“[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 of trial, at least 20 days prior to trial.” (Assem. Bill
No. 3170, as amended Apr. 21, 1982, § 1.) This phrasing became
law later that year, after the Assembly measure was folded into
a Senate bill that was then approved by both legislative bodies
and signed by the Governor. (See Stats. 1982, ch. 1581, § 1,
p. 6229.)
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
22
Notwithstanding the change in phrasing within Assembly
Bill No. 3170, the relevant legislative materials bespeak a
continued belief that the admissibility of a section 98 affidavit
hinged on the affiant’s availability for service of process that
would direct him or her to attend trial. Significantly, a Senate
Judiciary Committee Analysis of Assembly Bill No. 3170 that
circulated after that measure was amended described the
affidavit procedure as follows: “A party could, in place of
presenting direct testimony, offer the testimony of witnesses in
the form of affidavits or declarations under . . . penalty of
perjury if — the copy of the affidavit was served on the other
party at least 30 days prior to trial, and — the affiant was
available to be subpoenaed by the other party; and — the
statement was in the form of a deposition, and the other party
had an opportunity to participate in the deposition.” (Sen. Com.
on Judiciary, Analysis of Assem. Bill No. 3170 (1981-1982 Reg.
Sess.) as amended Apr. 21, 1982, at pp. 4-5, italics added.)5
This analysis indicates that the replacement of the specific
reference to a subpoena within Assembly Bill No. 3170 with
more generic language referencing the affiant’s availability for
service of process did not reflect a rejection of the intent behind
the earlier phrasing. On the contrary, although the Legislature
removed the express mention of a subpoena, it replaced this
language with phrasing reasonably read as communicating
essentially the same standard: In order for an affidavit to be
admissible under section 98(a), the affiant must be available for
a form of process designed to secure his or her presence at trial.
5 We construe “and,” as it precedes the Committee Analysis’s
description of the use of deposition testimony, as in fact meaning
“or.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3170
(1981-1982 Reg. Sess.), supra, at p. 5.)
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
23
Although the legislative history does not provide a reason for the
change in wording, the broader reference to “process” could
simply recognize that the notice to attend mechanism under
section 1987, subdivision (b) also can be used to procure the
appearance of some potential affiants, meaning that the statute
would be unduly narrow if it referenced only a subpoena.
Section 98 has since been amended, but these alterations
do not suggest that the Legislature has changed its mind with
regard to the issue before us. The present language of section
98 reflects amendments made one year after the statute’s
original enactment. (Stats. 1983, ch. 102, § 4, p. 267.) The
primary purpose of these modifications was to clarify that a
section 98(a) affiant had to be available for service of process
within the 150-mile radius only for a reasonable period of time
within the 20 days prior to trial, as opposed to some other time
frame. The amendments also made other changes to the
statute’s wording. Most notably, the reference to “the” current
address of the affiant in section 98(a), as enacted the prior year,
was changed to “a” current address. This address also was
equated with the one at which the affiant would be available for
service, whereas there had been no explicit connection between
the two in the original version of the statute. The legislative
history for Assembly Bill No. 1474 (1983-1984 Reg. Sess.), the
measure through which the Legislature revised section 98 in
1983, yields no rationale for these rephrasings, and they do not
suggest any change in the Legislature’s views regarding the
need to supply an address at which an affiant could be
effectively served with process intended to secure his or her
presence at trial.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
24
2. Section 98(a) Does Not Implicitly Alter Prevailing
Rules Regarding Service of Process
Defendants also raise the possibility that even if section
98(a) is concerned with service of forms of process that direct an
affiant to appear at trial, the Legislature intended that effective
service of such process upon a section 98(a) affiant could be
made through methods that would be inadequate for proper
service of the same types of process in other contexts.
Consistent with their position in federal court, defendants
assert here that “Eyre . . . was available for service of process as
required by the statute,” because if Meza had attempted to serve
process on Eyre at the 151 Bernal address, “the attorneys at
Hunt & Henriques would have accepted service for him,” and
such service “would have been binding on . . . Eyre.” In effect,
defendants argue that simply by supplying an address at which
he was assertedly “available for service of process,” Eyre
effectively made it so. Furthermore, defendants posit, had Meza
not delivered some suitable form of process to that address prior
to trial, she would have forfeited the opportunity to later object
to Eyre’s declaration on the ground that it did not comply with
section 98(a).
Defendants’ construction of the statute has some
superficial appeal, but does not withstand close scrutiny. For
this interpretation to be correct, section 98(a) must contemplate
either a form of process not presently recognized by law or a
novel method of serving the types of process implicated here. As
previously noted, there are two basic mechanisms a party can
employ to direct a person to attend trial: a subpoena and, when
appropriate, a notice to attend. Effective use of a notice to
attend is limited to situations in which the witness whose
attendance is desired is a party or someone closely affiliated
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
25
with a party, as specified by statute. (§ 1987, subd. (b).)
Because Eyre is neither, his appearance as a witness at trial
could be secured only by a subpoena, which by law must be
personally served, absent an exception — none of which applies
here. We presume that the Legislature is aware of laws in
existence when it enacts a statute. (In re Greg F. (2012) 55
Cal.4th 393, 407.) Had the Legislature sought to deviate from
these basic rules regarding process and proper service with
section 98(a), we believe it would have more clearly said so. (Cf.
California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th
924, 945 [invoking the general principle of statutory
interpretation disfavoring repeal by implication].) Indeed, the
Legislature has had little difficulty articulating different rules
for service of a subpoena when it has chosen to depart from the
norm of personal service. (See § 1987, subd. (a) [articulating
alternative service rules when the subpoenaed person is a
minor]; Gov. Code, § 68097.1, subds. (a), (b) [articulating
alternative service rules for certain government employees].)
If anything, the language and history of section 98(a)
indicate that the Legislature intended for litigants to work
within the existing framework for service of process. As
mentioned earlier, section 98(a)’s requirement that the affiant
supply an address for service within 150 miles of the place of
trial and be available at that place for a “reasonable period”
immediately prior to trial suggests that the Legislature sought
to maintain a personal service requirement for subpoenas. If,
as defendants have argued, “available for service of process”
(§ 98(a)) were read to connote availability through any method
deemed acceptable for service of any form of process, such as
mail service (§§ 415.30, 415.40), the statute’s concern with the
affiant’s whereabouts would seem, at a minimum,
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
26
disproportionate to how often personal service likely would
occur. And as also noted above, section 98 was enacted only
after pilot programs had auditioned different approaches toward
the use of affidavits. The original Judicial Council rules
regarding affidavits incorporated an informal notice
mechanism. (See Cal. Rules of Court, former rules 1741(b),
1849(b), repealed May 1, 1980.) But instead of adopting this
approach, or an alternative phrasing that also would have
clearly communicated a deviation from prevailing service
conventions, section 98(a) refers only to an affiant’s
“availab[ility] for service of process.” It seems doubtful that the
Legislature would have adopted this generic phrasing if it had
intended a wholesale break from existing service rules, even in
this narrow context.
The support for defendants’ interpretation of section 98(a),
meanwhile, is relatively weak. Defendants note that as
amended, section 98(a) references “a current address” of the
affiant, as opposed to “the current address.” But the use of the
article “a” does not establish that section 98(a) is satisfied
through the provision of any sort of address within 150 miles,
regardless of whether effective service of an appropriate form of
process normally could occur at that address. This phrasing is
better read as simply recognizing that an affiant may have more
than one address at which he or she may be personally served
with a subpoena, such as different work and home addresses.
Moreover, an affiant who is a party or closely affiliated with a
party, and therefore falls within the parameters of section 1987,
subdivision (b), might supply the address of an attorney upon
whom a notice to attend could be served. The use of “a,” instead
of “the,” is therefore consistent with the Legislature adhering to
normal service practices with section 98(a).
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
27
Defendants also stress that section 98(a), like the other
rules for limited civil cases, is intended to reduce the costs of
litigating these matters. They observe that a construction of
section 98(a) that would require most remote affiants to spend a
“reasonable period” of time prior to trial at a location within 150
miles of the trial site would prove more expensive than a
construction that would allow for service of process by mail or
through a designated agent. Defendants may be correct that the
interpretation we adopt is more expensive for the proponents of
affidavits than their construction would be and could discourage
the use of section 98(a) affidavits when remote witnesses are
involved. But there is a countervailing consideration in play, as
well: This form of evidence can shift a subtle but significant
threshold expense upon party opponents.
Specifically, most witnesses who are subpoenaed to testify
at a civil trial are entitled to demand up-front payment of
witness fees (Gov. Code, § 68097), which include a charge of 20
cents per mile actually travelled to and from the place of trial
(id., § 68093). Defendants’ construction of section 98(a)
facilitates the use of affidavits, with the affiants then having to
be subpoenaed (or summoned through a notice to attend) if an
opposing party wants them to appear in person at trial. If
accepted, defendants’ approach would open the section 98(a)
mechanism to a broader array of affiants, and thereby lead to
more affidavits being offered. Given that these affiants can
demand the statutory fees they are owed as witnesses, it could
be prohibitively expensive for an opposing party in a limited civil
case to call them to testify — particularly when affidavits from
several persons are submitted. This prepayment requirement
could significantly compromise the opponent’s ability to pursue
or defend a case, and thereby prevent them ever from recouping
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
28
these expenditures after trial as a prevailing party. (See
§ 1033.5, subd. (a)(7).)
The cost-shifting consequences of section 98(a) affidavits
complicates any portrayal of these statements as uniformly
beneficial from a cost perspective to the parties involved. We
presume the Legislature weighed these costs and benefits in
crafting what is, after all, an exception to generally applicable
evidentiary rules. Our application of the standard tools of
statutory interpretation leads us to conclude that the
Legislature’s response was to limit the potential shift in
litigation expenses associated with the affidavit procedure by
adhering to conventional service rules.
Defendants also note section 1989’s qualification that
residents of other states cannot be obliged to attend trial, even
when served with a subpoena. They contend that a construction
of section 98(a) that requires an affiant to be available for
service of a form of process that, as a matter of law, compels
attendance at trial would effectively prohibit section 98(a)
affidavits from this out-of-state cohort — even when an affiant
makes himself or herself personally present for service of
process within 150 miles of the place of trial for an adequate
pretrial period. But even if we were to assume that defendants
are correct in viewing the geographical limitations of section
1989 as applicable to section 98(a) affiants, such a conclusion
would not provide compelling support for their interpretation of
the statute. Our review of the history of section 98 yields no
significant indication that the Legislature was particularly
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
29
concerned with encouraging the use of affidavits from out-ofstate
residents.6
In sum, section 98(a) is concerned with types of process
through which a party can summon a person to appear at trial
and inherits rather than alters the basic framework of rules
governing service of these forms of process. With a civil trial
subpoena ad testificandum, personal delivery upon the
subpoenaed person is generally required for effective service.
(See § 1987, subd. (a).) Thus, when an affidavit is submitted by
someone who can be directed to appear in person at trial only
through such a subpoena, a local address at which the affiant is
personally present for pretrial service is necessary — unless, of
course, the person fits within a recognized exception to the
personal service rule, in which case an address that permits
proper service upon an appropriate representative will suffice.
When an affiant also can be summoned to appear at trial
through a notice to attend served on an attorney (§ 1987, subd.
(b)), however, either a local address where the affiant will be
6 This case does not provide an occasion for determining
whether, or under what circumstances, an affiant could be
“available for service of process” under section 98(a) if the relevant
parties and persons in a particular case agree upon service
arrangements that deviate from statutory norms. (Cf. Holt v.
Nielson (Utah 1910) 109 P. 470, 475 [“we think a witness within
the distance that he could be legally required to attend court when
served with a subpoena may waive the manner of service and may
accept service in some other form, though not in strict compliance
with the statute, and, when he does so, he will be required to
respond in obedience to the subpoena the same as though served
in strict conformity with the statute”].) The record reflects no such
agreement here.
MEZA v. PORTFOLIO RECOVERY ASSOCIATES, LLC
Opinion of the Court by Cantil-Sakauye, C. J.
30
personally present for service of a subpoena or a local address of
the attorney will suffice.7
Outcome: We answer the Ninth Circuit’s question as follows:
Section 98(a) requires an affiant to provide an address within
150 miles of the place of trial at which lawful service can be
made of a form of process that directs the affiant to attend trial.
Although a subpoena normally must be personally served, in
some circumstances witnesses can be summoned to appear at
trial without service of process upon the witness personally.
Thus, section 98(a) does not categorically require that all
affiants be personally present at a location within 150 miles of
the place of trial for a reasonable period within the 20 days prior
to trial. Such presence is required only if it is necessary for
lawful service at that address of process designed to secure the
affiant’s attendance at trial.
7 Defendants also assert that an interpretation of section 98(a)
that would expose debt collectors to liability under the FDCPA
would raise constitutional concerns, insofar as it would impose
statutory tort liability based on acts (i.e., debt collection actions)
characterized as having been taken in furtherance of the right to
petition the government. To the extent this contention entails an
interpretation of the FDCPA and the merits of plaintiff’s claims
under that statute, it lies outside of the scope of the question of
state law that has been posed to us, and we do not address it here.
For present purposes, it suffices to say that we do not perceive any
constitutional problems with our interpretation of section 98(a), on
its own.
Plaintiff's Experts:
Defendant's Experts:
Comments: