Filed 4/29/13; pub. order 5/16/13




                                SUPERIOR COURT OF CALIFORNIA
                                    COUNTY OF SANTA CLARA
                                     APPELLATE DIVISION


 TARGET NATIONAL BANK,                                Case No. 1-12-AP-001359

                  Plaintiff and Respondent,
   v.                                                 ORDER

 LUCY I. ROCHA,

                  Defendant and Appellant.


THE COURT:
        The appeal by appellant Lucy I. Rocha (“Rocha”) from the judgment entered on July 9,
2012, came on regularly for hearing and was heard and submitted on April 26, 2013. We hereby
hold as follows:
Procedural History
        On July 22, 2011, plaintiff/respondent Target National Bank (“Target”) filed a complaint
for breach of contract and common counts against Rocha. On August 2, 2011, Rocha filed an
answer generally denying the allegations in the complaint and asserting several affirmative
defenses. On June 6, 2012, Target filed a declaration in lieu of live testimony at trial.
        On July 9, 2012, the case came before the Honorable Socrates P. Manoukian for a short
cause trial. After argument by the parties, the trial court admitted the declaration into evidence
pursuant to Code of Civil Procedure section 98 (“Section 98”). Aside from this declaration, no
other evidence was presented at trial by either party. Based on the declaration, the trial court

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entered judgment for Target in the amount of $7,788.30 (See Clerk’s Transcript (“CT”), p. 170.)
On August 7, 2012, Appellant filed her notice of appeal.
Standard of Review
       The issue in this appeal is whether the trial court properly admitted into evidence the
declaration offered by Target. Generally, an appellate court applies the abuse of discretion
standard of review to any ruling by a trial court on the admissibility of evidence. (City of Ripon
v. Sweetin (2002) 100 Cal.App.4th 887, 900.) Here, however, the declaration was admitted
pursuant to Section 98. Statutory interpretation and the application of a statute are questions of
law that are reviewed de novo. (Boy Scouts of America National Foundation v. Superior Court
(2012) 206 Cal.App.4th 428, 443.) As explained by the court in City of Sacramento v. Drew
(1989) 207 Cal.App.3d 1287 (Drew ), “[t]he scope of discretion always resides in the particular
law being applied, i.e., in the legal principles governing the subject of [the] action. Action that
transgresses the confines of the applicable principles of law is outside the scope of discretion and
we call such action an abuse of discretion.” (Drew, supra, 207 Cal.App.3d at p. 1297, internal
quotations omitted.)
       For the judgment to be reversed on appeal, the appellant must show that the erroneous
admission of evidence resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b).) “A
miscarriage of justice should be declared only when the reviewing court is convinced after an
examination of the entire case, including the evidence, that it is reasonably probable a result
more favorable to the appellant would have been reached absent the error.” (Brokopp v. Ford
Motor Co. (1977) 71 Cal.App.3d 841, 853.) Prejudice from error is never presumed but must be
affirmatively demonstrated by the appellant. (Id. at pp. 853-854.)




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Code of Civil Procedure Section 98
       Section 98 provides, in relevant part:
       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.

(Code Civ. Proc., § 98.)
       The interpretation of Section 98, subdivision (a) is a matter of first impression.
Consequently, the Appellate Division examines the statute under principles of statutory
construction:
       [O]ur fundamental task is to ascertain the Legislature’s intent so as to effectuate
       the purpose of the statute. We begin with the language of the statute, giving the
       words their usual and ordinary meaning. The language must be construed in the
       context of the statute as a whole and the overall statutory scheme, and we give
       significance to every word, phrase, sentence, and part of an act in pursuance of
       the legislative purpose. In other words, we do not construe statutes in isolation,
       but rather read every statute with reference to the entire scheme of law of which it
       is part so that the whole may be harmonized and retain effectiveness. If the
       statutory terms are ambiguous, we may examine extrinsic sources, including the
       ostensible objects to be achieved and the legislative history.              In such
       circumstances, we choose the construction that comports most closely with the
       Legislature’s apparent intent, endeavoring to promote rather than defeat the
       statute’s general purpose, and avoiding a construction that would lead to absurd
       consequences.

(Boy Scouts of America National Foundation v. Superior Court, supra, 206 Cal.App.4th 428,
443, internal citations and quotations omitted.)


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        Here, Tiffany Lewis (“Lewis”) executed her declaration in Minneapolis, Minnesota. (See
CT, p. 19.) In her declaration, Lewis stated, “Pursuant to CCP §98, for 20 days immediately
prior to trial, this declarant is available for service of process via Plaintiff’s Counsel, Tara
Muren, located at 111 N. Market Street, San Jose, CA 95113 for 20 days immediately prior to
trial.” (See Id.) It is undisputed that 111 N. Market Street is within 150 miles of the trial court.
However, it is also undisputed that 111 N. Market Street is not Lewis’s address. While Lewis
declared that Target’s counsel, Tara Muren, was located at that address, Tara Muren’s business
address is actually in San Diego. (See CT, pp. 1, 16.) 111 N. Market Street is the address for
ABC Legal Services. (See CT, p. 149; see also Reporter’s Transcript (“RT”) p. 8:13-28.)
        On June 27, 2012, counsel for Rocha issued a civil subpoena for personal appearance at
trial or hearing and a check payable to Lewis in the amount of $35.00 (for statutory witness fees
and mileage) which ordered Lewis to appear in person at trial. (CT, pp. 145-147.) Rocha’s
process server made two separate attempts to personally serve the subpoena at 111 N. Market
Street. (CT, p. 149.) A person at ABC Legal Services informed the process server that Lewis
was not at that office but that he could accept service on her behalf. (Id.) As the process server
was only authorized to personally serve Lewis, he left without serving the subpoena. (Id.)
        Section 98 is a noted departure from the hearsay rule as declarations are generally not
admissible at trial. (See Evid. Code, § 1200.) “The essence of the hearsay rule is a requirement
that testimonial assertions shall be subjected to the test of cross-examination. [Citation.] The
basic theory is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examination.” (Buchanan v. Nye (1954) 128
Cal.App.2d 582, 585.) As a condition to receipt of testimony by declaration, it must be shown
that either: (a) the affiant is available for service of process within 150 miles of the place of trial;
or (b) the affiant has been deposed and the declaration is in the form of the deposition testimony.
(Code Civ. Proc., § 98.)
        In this regard, Section 98 implicitly recognizes the opposing party’s right of cross-
examination. “A person’s right of cross-examination and confrontation of witnesses against him


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in noncriminal proceedings is a part of procedural due process guaranteed by the Fifth
Amendment and the Fourteenth Amendment to the federal Constitution, where there is involved
a threat to life, liberty or property.” (August v. Department of Motor Vehicles (1968) 264
Cal.App.2d 52, 60.) The right of cross-examination has been termed “the greatest legal engine
ever invented for the discovery of truth.” (People v. Ramirez (1979) 25 Cal.3d 260, 280, citing
People v. Fries (1979) 24 Cal.3d 222, 231.) Thus, a party may only introduce a witness’s
declaration if the opposing party had the opportunity to cross-examine the witness at deposition
or could require the witness to be subject to cross-examination at trial.
       Rocha argues that Section 98 contemplates service of a civil subpoena for personal
appearance at trial or hearing as “[t]he process by which the attendance of a witness is required is
the subpoena.” (See Code Civ. Proc., § 1985.) Indeed, a previous draft version of Section 98
required the affiant to provide his or her current address and be “subject to subpoena for the
trial.” (See Assem. Bill No. 3170 (1981-1982 Reg. Sess.) as introduced March 10, 1982.) The
same draft also specified that the affiant could be called as a witness for cross-examination. (Id.)
       While the Legislature has provided many different modes of serving summons, only one
mode, personal delivery, is available for serving a subpoena. (Code Civ. Proc., § 1987, subd. (a);
In re Abrams (1980) 108 Cal.App.3d 685, 690.) While In re Abrams is distinguishable in that it
addressed whether a witness who was not personally served with a subpoena could be held in
contempt for failing to appear at trial, the court’s holding that subpoenas must be personally
served is based on a reading of Code of Civil Procedure section 1987, which explicitly states the
subpoena must be delivered to the witness personally. (See Code Civ. Proc., § 1987, subd. (a).)
Although Lewis apparently authorized ABC Legal Services to accept service on her behalf, she
was not physically present at 111 N. Market Street and thus could not be personally served at
that address.
        Pursuant to Code of Civil Procedure section 1989, a party may compel attendance of
witnesses subpoenaed anywhere within this state. However, to deter improvident subpoenas of
civil witnesses, the civil witness is entitled upon demand to receive travel fees to and from the
place designated and one day’s fees for trial attendance in advance. (Lucas v. Superior Court


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(1988) 203 Cal.App.3d 733, 736; Code Civ. Proc., § 1987, subd. (a).) The fees are set at thirty-
five dollars ($35) a day plus mileage at twenty cents ($0.20) a mile. (Gov. Code, § 68093.)
        Thus, the fact that Section 98 requires an affiant to be within 150 miles of the court
significantly reduces the travel fees to be paid by the subpoenaing party. For example, the
address provided by Lewis was less than a mile from the courthouse, and thus Rocha’s counsel
prepared a check in the amount of $35. (See CT, p. 147.) Containing such witness fees is
consistent with the Legislature’s goal to reduce the expense of litigation in limited civil cases.
(See Stats. 1982, ch. 1581, § 5, p. 6230.)
        Target does not disagree that subpoenas must be personally served. Rather, Target
argues that Lewis was “available for service of process” because Rocha could have compelled
Lewis to attend trial if she had served Target’s counsel with a notice to appear pursuant to Code
of Civil Procedure section 1987, subdivision (b). That section provides:
        In the case of the production of a party to the record of any civil action or
        proceeding or of a person for whose immediate benefit an action or proceeding is
        prosecuted or defended or of anyone who is an officer, director, or managing
        agent of any such party or person, the service of a subpoena upon any such
        witness is not required if written notice requesting the witness to attend before a
        court, or at a trial of an issue therein, with the time and place thereof, is served
        upon the attorney of that party or person. The notice shall be served at least 10
        days before the time required for attendance unless the court prescribes a shorter
        time. If entitled thereto, the witness, upon demand, shall be paid witness fees and
        mileage before being required to testify. 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.

(Code Civ. Proc., § 1987, subd. (b), emphasis added.)
        However, this process was not available to Rocha for two reasons. First, Lewis is not a
party to the action, a person for whose immediate benefit the action is prosecuted, or an officer,
director, or managing agent of Target.1 Lewis’s declaration simply states she is “a designated
agent of the Plaintiff” and Target asserts that Lewis is its custodian of records. (See CT, p. 16;
Respondent’s Brief, p. 15.) Thus, Lewis would not be bound by a notice to attend trial.

1
  A “managing agent” includes only those corporate employees who exercise substantial independent authority and
judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. (White v.
Ultramar (1999) 21 Cal.4th 563, 566-567.)
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           Second, a notice to attend trial can only compel the attendance at trial of persons who are
residents of California. “A witness, including a witness specified in subdivision (b) of Section
1987, is not obliged to attend as a witness before any court, judge, justice or any other officer,
unless the witness is a resident within the state at the time of service.” (Code Civ. Proc., § 1989,
emphasis added; see also Amoco Chemical Co. v. Certain Underwriters at Lloyd’s of London
(1995) 34 Cal.App.4th 554, 560, fn. 7 [a nonresident witness served with a notice to attend is not
obliged to attend].) Here, Lewis is not a resident of California. Thus, the only way for Rocha to
compel Lewis’s attendance was to personally serve her with a subpoena.
           Target asserts that a literal interpretation of Section 98 would impose a requirement that
the declarant must reside within 150 miles of the court, a requirement that has not been adopted
by the Legislature. However, this argument ignores subdivision (b) of Section 98, which allows
a party to submit a declaration in lieu of live testimony when the declaration is in the form of
deposition testimony regardless of the declarant’s location. (See Code Civ. Proc., § 98, subd.
(b).) Here, however, Target did not provide the deposition testimony of Lewis, but rather sought
to introduce the declaration pursuant to subdivision (a).2
           For all of the foregoing reasons, the Appellate Division concludes that the declaration
offered by Target did not comply with Section 98 as Lewis was not available for service of
process within 150 miles of the courthouse. Thus, the trial court abused its discretion in
admitting the declaration as evidence. As that was the only evidence offered at trial, the
judgment in favor of Target cannot stand.




2
    There is no indication in the record that Lewis was deposed as part of this action.
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Conclusion
       The judgment entered on July 9, 2012, is REVERSED and the matter is remanded for a
new trial.




                                          Honorable Griffin M.J. Bonini
                                          Acting Presiding Judge of the Appellate Division


                                          Honorable Deborah A. Ryan
                                          Judge, Appellate Division



                                          Honorable Julia Alloggiamento
                                          Judge, Appellate Division




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Trial Court:

Superior Court of Santa Clara County, Socrates P. Manoukian, Judge.


Counsel:

Frederick W. Schwinn, Consumer Law Center, for Defendant and Appellant.

John A. Clinnin, CIR, Law Offices, for Plaintiff and Respondent.




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