In a very unusual Friday opinion filing, the Supreme Court in Meza v. Portfolio Recovery Associates, LLC today construes Code of Civil Procedure section 98. That statute provides that, in limited civil cases, testimony may be presented by declaration if “[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.”
Answering a question posed by the Ninth Circuit in a case brought under the federal Fair Debt Collection Practices Act that is claiming a misuse of the section 98 procedure, the court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye holds that the affiant need not invariably be physically located and personally available for service of process at the address provided. “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,” but, the court notes, “at least some prospective witnesses can be called to appear at trial through [a] form of process that does not require personal service.” That’s the broad reading of the statute.
The narrow interpretation is the court’s further conclusion that, contrary to the defendants’ assertion, the particular affiant whose lack of physical presence raised the question in this case was not one of those witnesses who could be served other than personally. Section 98 does not create any additional exceptions to the general rule requiring personal service; instead, it “inherits rather than alters the basic framework” of service rules.
Regarding the court’s first, broad construction of section 98, the opinion casts doubt on — but doesn’t expressly disapprove — decisions by the appellate divisions of the Ventura and Santa Clara County Superior Courts. It also is in sync with the opinion of the federal district court judge, who happens to be Justice Mariano-Florentino Cuéllar’s wife. (Justice Cuéllar is recused.) The second, narrow construction, however, seems at odds with the district court’s ruling that granted the defendants’ summary judgment motion.