Filed 8/20/15



                                CERTIFIED FOR PUBLICATION


                IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                              FOR THE COUNTY OF VENTURA
                                    APPELLATE DIVISION




 SIERRA MANAGED ASSET PLAN, LLC.,                )
                                                 )
                  Plaintiff and Respondent,      )
                                                 ) (Ventura County Superior Court Case
                  v.                             ) Number 56-2013-00443856-CL-CL-VTA)
                                                 )
 DAVID C. HALE,                                  )
                                                 )
                  Defendant and Appellant.       )
                                                 )



      APPEAL from a judgment from the trial court in the Superior Court of Ventura County,
Matthew P. Guasco, Presiding Appellate Judge, and Mark S. Borrell and Rocky J Baio, Judges.
Judgment REVERSED.

        Trial Judge:
        Honorable Vincent J. O‟Neill


        Counsel:
        James B. de los Reyes, Esq. for Plaintiff and Respondent
        Ian D. Chowdhury, Esq. for Defendant and Appellant


By GUASCO, Matthew P., Presiding Appellate Judge:

        Defendant and appellant, David C. Hale (“appellant”), appeals from a judgment entered
against him and in favor of plaintiff and respondent, Sierra Managed Asset Plan, LLC
(“respondent”) in the total sum of $10,138.41 in this limited civil collection case. Appellant
argues that the trial court prejudicially erred by receiving a declaration in lieu of live testimony
which was filed without complying with Code of Civil Procedure, section 98. Additionally,
appellant argues that the trial court abused its discretion by accepting the testimony of the
declarant concerning the underlying documents supporting the credit account at issue in this
case.
        For the reasons stated in this Opinion, we reject appellant‟s argument that respondent‟s
failure to comply with the requirements of Code of Civil Procedure, section 98 should have
precluded admission of the declaration at issue. The declarant was present at trial and was cross-
examined by appellant. We agree with appellant, however, that the declarant lacked the required
personal knowledge of the foundation necessary for receipt of the exhibits attached to the
declaration pursuant to the business records exception to the hearsay rule. (Evid. Code, § 1271.)
It was error for the trial court to receive the exhibits. The error was not harmless; the exhibits
were essential to proving the existence of the contract and book account upon which the
judgment is premised. Accordingly, we reverse the judgment and remand the matter to the trial
court for further proceedings consistent with this Opinion.


                                              FACTS


        Appellant opened a credit card account with Citibank, N.A. He accumulated an unpaid
balance of $10,138.41. Through a series of assignments, respondent acquired Citibank‟s rights
as creditor. Respondent seeks to enforce those rights in this action. Appellant does not deny the
account, but he testified that he does not recall any of the details of the purchases on or the
accrued balance of the account.



                           PROCEEDINGS IN THE TRIAL COURT


        On October 22, 2013, respondent filed the instant action for breach of contract and
common counts. On December 18, 2013, appellant answered the complaint and alleged both a
general denial as well as 24 affirmative defenses.

                                                  2
         On August 21, 2014, respondent filed a declaration of authorized agent in lieu of live
testimony pursuant to Code of Civil Procedure, section 98, in relation to the trial which was
scheduled for September 29, 2014.1 It is undisputed that the section 98 declaration was
materially inaccurate in one respect: it represented that the declarant, Marc Roberts, was
available for service of process at an address in Santa Monica which is within 150 miles of the
trial court. In fact, that address was a business center/mailbox location at which the declarant
was not available for service of process prior to trial.
         Mr. Roberts‟s section 98 declaration attached exhibits which substantiated the
assignments leading to respondent‟s acquisition of rights as creditor on the account in question,
the account agreement, and the account statements reflecting all of the charges culminating in the
unpaid balance due. The account statements reflect purchases by a “David C. Hale,” with a
listed address the same as that acknowledged by appellant at trial.
         On September 29, 2014, a court trial occurred in this matter. Although respondent filed a
materially false section 98 declaration as discussed above, Mr. Roberts, the section 98 declarant,
was personally present when the trial began. Over appellant‟s multiple objections, including
those pertaining to issues of lack of personal knowledge and hearsay, the trial court received the
section 98 declaration and attached exhibits and permitted appellant to cross-examine Mr.
Roberts. Appellant, who represented himself, did so. The clerk of the court did not swear Mr.
Roberts as a witness. Appellant did not make any objection in the trial court concerning the
unsworn testimony given by Mr. Roberts. Appellant testified. He acknowledged the account,
but denied any knowledge of the purchases or balance due on the account.

         The trial court entered judgment in favor of respondent and against appellant in the total
sum of $10,138.41.
         On October 24, 2014, appellant filed a timely notice of appeal of the money judgment.




                                         APPEALABILITY


1
    All further statutory references are to the Code of Civil Procedure unless otherwise specified.

                                                   3
        This appeal is properly taken from a final judgment fully adjudicating the rights of the
parties. (§ 904.2, subd. (a).)
                                          DISCUSSION


                                                 I.


                                   STANDARD OF REVIEW

        Whether and to what extent the trial court erred by receiving Mr. Roberts‟s declaration
and attached exhibits as against appellant‟s objection that respondent failed to comply with
section 98 presents a question of law which we review de novo. (Cach LLC v. Rodgers (2014)
229 Cal.App.4th Supp. 1, 5; Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1, 4.)
        The question of whether the trial court erred by admitting Roberts‟s testimony, including
the declaration and the attached exhibits, over appellant‟s foundation and hearsay objections is
one we review pursuant to the deferential abuse of discretion standard. (City of Ripon v. Sweetin
(2002) 100 Cal.App.4th 887, 900.) A trial court error in the admission of evidence shall not
result in reversal of a judgment unless the appellant demonstrates that the error was prejudicial
and resulted in a miscarriage of justice. (Cal. Const., Art. VI, § 13; § 475; Evid. Code, § 353.)
“In civil cases, a miscarriage of justice should be declared only when the reviewing court, after
an examination of the entire cause, including the evidence, is of the opinion that it is reasonably
probable that a result more favorable to the appealing party would have been reached in the
absence of the error.” (Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679,
692.)




                                                 II.


                                                 4
                   THE TRIAL COURT DID NOT ERR BY RECEIVING
                  THE NON-CONFORMING SECTION 98 DECLARATION


         In limited civil cases, in which the amount in controversy is less than $25,000,2 the law
provides efficiencies to minimize the costs to the parties of litigation. One such measure is
section 98 concerning prepared testimony by affidavit or declaration.
         Section 98 provides as follows:

         “ A party may, in lieu of presenting direct testimony, 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 in to the record in lieu of oral testimony or admitted as a documentary
         exhibit.”
         “Section 98 is a noted departure from the hearsay rule as declarations are generally not
admissible at trial.” (Target Nat. Bank v. Rocha, supra, 216 Cal.App.4th Supp. at p. 7.) So long
as the opposing party has the opportunity to serve the declarant with a deposition or trial
subpoena as provided in section 98, subdivision (a), a declaration may be received as evidence at
trial as against a hearsay objection because the declarant is subject to cross-examination
concerning the contents of the declaration. (Ibid.)(Accord, Cach LLC v. Rodgers, supra, 229
Cal.App.4th Supp. at p. 6.)
         Here, it is undisputed that respondent did not comply with the provisions of section 98,
subdivision (a): Mr. Roberts was not available for service with a deposition or trial subpoena at


2
    Section 86, subdivision (a)(1).

                                                    5
the address identified in his declaration. That non-compliance with subdivision (a), however,
was rendered moot by Mr. Roberts‟s attendance at the trial at which he was subjected to cross-
examination concerning the contents of his declaration. Appellant made no showing whatsoever
before the trial court that he attempted to take Mr. Roberts‟s deposition as opposed to attempting
to subpoena him to attend the trial. The purpose of section 98, subdivision (b), was fulfilled in
substance if not in form: Mr. Roberts was present for trial and he was cross-examined by
appellant.3
         Accordingly, we hold that the trial court did not err by receiving Mr. Roberts‟s
declaration pursuant to section 98.


                                                 III.

       ANY CHALLENGE TO MR. ROBERTS’S TESTIMONY ON THE GROUND
      THAT THE CLERK DID NOT ADMINISTER THE OATH HAS BEEN WAIVED


         After receiving the declaration, the trial court permitted Mr. Roberts to be cross-
examined by appellant. The trial court allowed Mr. Roberts to testify without having the Clerk
administer the witness‟s oath as required by Evidence Code, section 710. Appellant, however,
did not raise any objection in the trial court to that omission. Accordingly, the issue has been
waived on appeal. (In re Heather H. (1988) 200 Cal.App.3d 91, 96.)




                                                 IV.

            THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING
         RESPONDENT’S EXHIBITS WITHOUT THE FOUNDATION REQUIRED
          BY THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE


         Appellant objected to receipt of the credit account exhibits attached to Mr. Roberts‟s
declaration on a variety of grounds, including hearsay and the lack of any foundation which
would support their admission under the business records exception. (Evid. Code, § 1271.) For
3
    “The law respects form less than substance.” (Civ. Code, § 3528.)

                                                   6
the following reasons, we hold that neither Mr. Roberts‟s declaration nor his testimony provides
substantial evidence of the foundation necessary for admission of the records pursuant to the
business records exception to the hearsay rule.
       Evidence Code, section 1271 provides as follows:
               “Evidence of a writing made as a record of an act, condition, or event
       is not made inadmissible by the hearsay rule when offered to prove the act,
       condition, or even if:
               “(a) The writing was made in the regular course of a business;
               “(b) The writing was made at or near the time of the act, condition, or
       event;
               “(c) The custodian or other qualified witness testifies to its identity
       and the mode of its preparation; and
               “(d) The sources of information and method and time of preparation
       were such as to indicate its trustworthiness.”
       In order for business records to meet the above elements for admission as an exception to
the hearsay rule, either the person who created the documents, or an authorized custodian of the
documents, or some “other qualified witness” must testify “as to the identity and mode of
preparation of the documents.” The trial court has wide discretion in determining whether a
“qualified witness” possesses sufficient personal knowledge of the “identity and mode of
preparation” of documents for purposes of the business records exception. (Aquimatang v.
California State Lottery (1991) 234 Cal.App.3d 769, 797.) That foundation may be met,
however, by “. . . any „qualified witness‟ who is knowledgeable about the documents . . . – the
witness need not be the custodian or the person who created the record.” (Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 324.)
       Here, Mr. Roberts‟s declaration attaches credit account documents created and
maintained by respondent‟s predecessor in interest, Citibank. The documents were not created
by respondent, nor was Mr. Roberts the authorized custodian of Citibank documents. Mr.
Roberts‟s declaration and testimony on cross-examination provide the following as the purported
foundation for admission of the documents as business records:
       (1)     He is an authorized agent of respondent who is “thoroughly familiar with the
manner and method by which [respondent] maintains its business books and records for its
outstanding credit card accounts.”
       (2)     He is the duly authorized custodian of respondent’s business books and records.

                                                  7
       (3)     The documents, created by Citibank prior to assignment of the account to
respondent, are electronically stored on digital computer media by respondent.
       (4)     The documents reflect the creation, charges, billing and balances due on the
account while Citibank was the creditor.
       (5)     He has personal knowledge that Citibank‟s business practice is that the original
credit application and acceptance forms, which are sent to and signed by the cardholders, contain
the terms and conditions of the account agreement.
       (6)     “It is the regular business practice” of Citibank to mail monthly account
statements to its cardholders.
       (7)     He has never worked for Citibank.
       (8)     He does not have personal knowledge about the account or charges in question,
other than what he knows as a result of acquiring the documents from Citibank.
       While the trial court has broad discretion in determining whether a witness is “qualified”
to testify concerning “the identity and mode of preparation” of business records, Mr. Roberts‟s
declaration and testimony at trial simply do not meet the necessary foundation. At best, all Mr.
Roberts‟s declaration and testimony establish is that respondent, as assignee from the creditor,
received records originating from Citibank concerning the account in question. This falls short
of the foundation necessary for admission of business records as against a hearsay objection. Mr.
Roberts‟s declaration and testimony are insufficient to permit any court to determine that “[t]he
sources of information and method and time of preparation were such as to indicate its
trustworthiness.” (Evid. Code, § 1271, subd. (d).)
       Further, it was error for the trial court to receive the declaration of Citibank‟s custodian
of records, Lee Krege, which attended the exhibits. Upon appellant‟s hearsay and foundational
objections, it was incumbent upon respondent to produce a qualified witness to lay the business
records foundation required by Evidence Code, section 1271, based upon personal knowledge of
the identity and mode of preparation of the documents. This could have been done by the
identified Citibank custodian or another qualified person, including non-Citibank witnesses with
the requisite personal knowledge of Citibank‟s business record creation and maintenance
practices. The declaration was inadmissible hearsay. It should have been excluded.
                                                 8
       The error in admitting respondent‟s account exhibits and the Krege declaration was
prejudicial. If the trial court had sustained appellant‟s objections, all of the documentary
evidence supporting the judgment would have been excluded. On this record, that would have
compelled a judgment in favor of appellant. Accordingly, the error requires reversal. 4


                                           JUDGMENT


       For the reasons stated in the above Opinion, we hereby REVERSE the judgment and
remand the matter to the trial court for further proceedings consistent with this Opinion.
Appellant is awarded statutory costs of appeal.


Dated: August 20, 2015


GUASCO             , P. A. J.


WE CONCUR:


BORRELL            , J.
BAIO               , J.




4
 We summarily reject without prejudice appellant‟s inappropriate request that this Court issue its
order disqualifying Judge O‟Neill on remand. The request is not based upon anything other than
improper speculation and is not related to the issues before the Court in this appeal.

                                                  9
