This article originally appeared in the Daily Journal on June 24, 2019.
According to Archimedes, the shortest distance between two points is always a straight line. Archimedes was well schooled in geometry but not in California appellate procedure.
Limited civil cases — mostly suits in which plaintiff seeks money damages of $25,000 or less, Code Civ. Proc., § 85 — stay largely below the appellate radar. Appeal by right lies only to the superior court’s appellate department. Appellate department decisions are occasionally published, but only in the California Appellate Reports Supplement, the boondocks of reported decisions.
Limited civil cases have special procedural rules, under the rubric “Economic Litigation.” Code Civ. Proc., §§ 90-100. One of these, at Section 98, allows a party to use an affidavit in lieu of live testimony at trial, if it identifies a location within 150 miles of the place of trial where “the affiant is available for service of process” during the 20 days before trial.
But what does “available for service of process” mean in this context? Does it mean available to receive personal service, as is usually required for a trial subpoena? Two published appellate department decisions so held. CACH LLC v. Rodgers, 229 Cal. App. 4th Supp. 1 (2014); Target National Bank v. Rocha, 216 Cal. App. 4th Supp. 1 (2013). Or does it mean available to receive service by any of the means allowed for a summons, including mail and substitute service on an authorized individual? Some unpublished appellate department decisions have said so.
The chances of this question being definitively resolved any time soon through the California appellate process were slim. A Court of Appeal can in its discretion take up a limited case, but only if it determines that transfer is necessary to secure uniformity of decision or to settle an important question of law, Cal. Rules of Court, 8.1002 — the same exacting criteria the California Supreme Court applies in deciding whether to grant a petition for review (which it does in very few cases). The Courts of Appeal almost never order transfer of a limited civil appeal, and to get to the Supreme Court such an appeal would twice have to make the difficult passage through the “uniformity of decision”/“important question of law” portal.
Still, the California Supreme Court recently took up and decided the question, in Meza v. Portfolio Recovery Associates, LLC, 6 Cal. 5th 844 (2019), illuminating another dimension of California appellate procedure.
The Meza litigation began as a typical limited civil debt collection action for about $11,000, initiated in the superior court by the assignees of a consumer credit card account. Before trial, plaintiff Portfolio served on defendant Meza for use at trial a declaration of its custodian of records, summarizing the details of Meza’s accounts. The declaration also represented that the declarant would be available for service of process at Portfolio’s attorneys’ offices during the twenty days before trial. The validity of the declaration was never tested, because the suit was dismissed a few days before trial.
That, however, did not end the matter. Soon thereafter, Meza filed a class action in federal district court against Portfolio and its attorneys under the federal Fair Debt Collection Practices Act. She alleged that the declarant had not been physically present for service of a subpoena at the given address, as would be required for service of a subpoena, and that the defendants had a standard practice and policy of presenting declarations falsely representing or implying that the declarant was personally available for service of process.
Portfolio and its attorneys moved for summary judgment. They conceded that the declarant had not been physically present at the address given, but they represented that the law firm located there would have accepted service of a subpoena on his behalf. This, they argued, was sufficient to satisfy Section 98’s requirement that the declarant be available for “service of process,” since service on an authorized substitute would be adequate for service of a summons.
This left it to the federal trial judge to sort out what Section 98 means by “service of process.” Her remit, in the absence of a decision by the California Supreme Court, was to predict how that court would eventually decide the question — a distant prospect for an issue that had never even made it to a Court of Appeal. She predicted that the California Supremes would side with defendants, holding that “service of process” within the statute embraced service by means available for any form of process. She therefore granted summary judgment for defendants, which sent the case off to the 9th U.S. Circuit Court of Appeals.
At this point, another pathway to the California Supreme Court opened. Under California Rule of Court 8.548, the court can decide an unresolved question of California law at the request of a federal appellate court. The court appears amenable to such requests from the 9th Circuit, entertaining on average something more than one per year. Here, the 9th Circuit asked what Section 98 means, pointing out that an answer would “provide guidance to California consumers, creditors, and debt collectors and purchasers who litigate thousands of debt collection cases each year.” Meza v. Portfolio Recovery Associates, LLC, 860 F.3d 1218, 1221 (9th Cir. 2017). The Supreme Court accepted the invitation and answered.
The answer was that Section 98 requires that the declarant be available for service of a subpoena, so that in almost all circumstances he or she must be physically present at the given address. This, it held, comports with the apparent intention of the Legislature — that a party should be able to haul the declarant into court for trial if the declaration is to be used as evidence. Back in the 9th Circuit, this meant that summary judgment in defendants’ favor had to be vacated and the matter remanded to the district court for further proceedings.
And so a detour through the federal courts became the shortest path to the California Supreme Court. If Archimedes were expounding on geometry today, he might have to acknowledge that the California Rules of Court don’t always adhere to the accepted axioms.
Charles Kagay is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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