Julia Meza v. Portfolio Recovery Associates , 860 F.3d 1218 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIA C. MEZA, No. 15-16900
Plaintiff-Appellant,
D.C. No.
v. 5:14-cv-03486-LHK
PORTFOLIO RECOVERY
ASSOCIATES, LLC; HUNT & ORDER
HENRIQUES, a general CERTIFYING
partnership; MICHAEL SCOTT QUESTION TO
HUNT; JANALIE ANN HENRIQUES; THE CALIFORNIA
ANTHONY J. DIPIERO, SUPREME COURT
Defendants-Appellees.
Filed June 22, 2017
Before: William A. Fletcher and Richard C. Tallman,
Circuit Judges, and Paul C. Huck, * District Judge.
*
The Honorable Paul C. Huck, United States District Judge for the
Southern District of Florida, sitting by designation.
2 MEZA V. PORTFOLIO RECOVERY ASSOCS.
SUMMARY **
Question Certified to California Supreme Court
The panel certified the following question to the
California Supreme Court:
Under § 98(a) of the California Code of Civil
Procedure, 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?
ORDER
We certify to the California Supreme Court the question
set forth in Part II of this order. Further proceedings are
stayed pending receipt of the response to the certified
question, and this case is withdrawn from submission until
further order of this court. If the California Supreme Court
accepts the certified question, the parties will file a joint
status report six months after the date of acceptance, and
every six months thereafter, advising us of the status of the
proceeding.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 3
I. Administrative Information
Julia Meza is deemed the petitioner in this request
because she appeals from the district court’s ruling on this
issue. The caption of the case is:
No. 15-16900
JULIA C. MEZA,
Plaintiff-Appellant,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC; HUNT
& HENRIQUES, a general partnership; MICHAEL
SCOTT HUNT; JANALIE ANN HENRIQUES; and
ANTHONY J. DIPIERO,
Defendants-Appellees.
The names and addresses of counsel are:
For Plaintiff-Appellant Julia C. Meza: Owen Randolph
Bragg, Horwitz, Horwitz & Associates, 25 East Washington
Street, Suite 900, Chicago, IL 60602; Raeon R. Roulston &
Fred W. Schwinn, Consumer Law Center, Inc., 12 South
First Street, Suite 1014, San Jose, CA 95113-2418.
For Defendants-Appellees Portfolio Recovery
Associates, LLC; Hunt & Henriques, a general partnership;
Michael Scott Hunt; Janalie Ann Henriques; and Anthony J.
Dipiero: Tomio Buck Narita & Jeffrey Topor, Simmonds &
Narita, LLP, 44 Montgomery Street, Suite 3010, San
Francisco, CA 94104.
4 MEZA V. PORTFOLIO RECOVERY ASSOCS.
II. Certified Question
Pursuant to California Rule of Court 8.548(b)(2), we
certify the question presented below. There is no controlling
California precedent regarding the certified question, and the
answer to the question could determine the outcome of this
appeal. Cal. R. Ct. 8.548(a). It is also an issue likely to recur
and affect thousands of cases filed in the “limited civil
division” of the California Superior Courts. The issue has
divided the Appellate Divisions of several Superior Courts,
and there is no authority from any District Court of Appeal.
The question certified is as follows:
Under § 98(a) of the California Code of Civil
Procedure, must the affiant 1 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?
Our phrasing of this question is not intended to restrict
the California Supreme Court’s consideration of the issues,
Cal. R. Ct. 8.548(f)(5), and we agree to accept and follow
the decision of the California Supreme Court, Cal. R. Ct.
8.548(b)(2).
III. Statement of Facts
Julia Meza had a consumer credit card account with
Wells Fargo Bank, N.A. She later defaulted on her credit
account, and the defaulted debt was sold to Portfolio
Recovery Associates (“PRA”). PRA placed the debt with
1
“Affiant” and “declarant” are used interchangeably throughout this
certification order.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 5
the law firm of Hunt & Henriques (“H&H”) for collection,
and the firm, along with PRA (“Appellees”), filed a lawsuit
in the Superior Court of California, San Mateo County, to
collect the defaulted debt from Meza.
As part of the collection action, Appellees served Meza
with a document titled, “Declaration of [PRA] in Lieu of
Personal Testimony at Trial (CCP § 98).” The declaration—
filed pursuant to California Code of Civil Procedure § 98—
described Meza’s unpaid account and was signed by a PRA
employee, Colby Eyre, who authenticated the basis for
claiming the amounts owed. It also stated that, “Pursuant 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.”
The parties agree that the above address is not Colby
Eyre’s work address. They also agree that Eyre lives more
than 150 miles from the relevant county courthouse.
However, it is clear that H&H was authorized to accept
service of process on Eyre’s behalf, and that H&H’s law
offices are within § 98’s 150-mile requirement.
Based on these underlying facts, Meza filed a putative
class action in the United States District Court for the
Northern District of California in August 2014, alleging that
PRA failed to comply with California Code of Civil
Procedure § 98. In her First Amended Complaint, she
purported to represent “(i) all persons residing in California,
(ii) who were served by [PRA] with a Declaration in Lieu of
Personal Testimony at Trial, pursuant to California Code of
Civil Procedure § 98, (iii) where the declarant was located
more than 150 miles from the courthouse where the
collection lawsuit was pending.” She claimed that PRA’s
declaration was invalid because Eyre was not personally
6 MEZA V. PORTFOLIO RECOVERY ASSOCS.
available for service at the address provided in his
declaration. And she argued that PRA’s use of this
declaration misrepresented that it would be admissible at
trial. She therefore maintained that PRA was in violation of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., which, among other things,
prohibits debt collectors from using false, deceptive,
misleading, or unfair representations to collect any debts.
On April 27, 2015, Appellees filed a motion for
summary judgment and argued that California Code of Civil
Procedure § 98 simply requires the affiant to be “available
for service of process” within 150 miles of the place of trial,
not personally available for service at the address provided.
The district court agreed, finding that the plain language of
§ 98 did not require the affiant’s physical presence, and that
the legislative history and purpose of the statute supported
that interpretation. The district court therefore held that
PRA’s declaration complied with § 98 and contained no
false or misleading statements in violation of the FDCPA. It
granted Appellees’ motion and entered judgment in their
favor.
Meza timely appealed.
IV. Explanation of Certification
This appeal turns on whether California Code of Civil
Procedure § 98 requires the affiant to be physically located
and personally available for service of process at the address
provided in the declaration. The question is purely one of
state law and is dispositive of this appeal—if physical
presence is not required, then PRA complied with the state
statute and did not make any false or misleading
representations in violation of the FDCPA. Cal. R. Ct.
8.548(a)(1).
MEZA V. PORTFOLIO RECOVERY ASSOCS. 7
There is no controlling California precedent addressing
this question. Cal. R. Ct. 8.548(a)(2). And while the issue
has been considered by the Appellate Divisions of various
California Superior Courts, those decisions are not binding
and have limited persuasive authority. See Suastez v. Plastic
Dress-Up Co., 647 P.2d 122, 126 n.6 (Cal. 1982). They have
also reached inconsistent outcomes. Compare CACH LLC
v. Rodgers, 176 Cal. Rptr. 3d 843 (Cal. App. Dep’t Super.
Ct. 2014) (holding that § 98 requires the affiant to be
physically present at the location provided in the
declaration), and Target Nat’l Bank v. Rocha, 157 Cal. Rptr.
3d 156 (Cal. App. Dep’t Super. Ct. 2013) (same), with
Citibank v. Bardin, No. BV 028877 (Cal. App. Dep’t Super.
Ct. Dec. 8, 2011) (unpublished) (holding that there was
nothing in the record to demonstrate that the use of a post
office box rendered the declaration noncompliant with § 98).
The question certified presents an issue of significant
importance to the State of California. See Munson v. Del
Taco, Inc., 522 F.3d 997, 999–1000 (9th Cir. 2008). Though
§ 98 applies only to “limited civil cases,” see Cal. Code Civ.
Proc. § 91, an answer from the California Supreme Court
will help simplify litigation procedures in these low value
cases, which are responsible for the vast majority of civil
filings in California. See Preface to Judicial Council of
California, 2016 Court Statistics Report, Statewide Caseload
Trends (2016); see also id. at 40. It will also provide
guidance to California consumers, creditors, and debt
collectors and purchasers who litigate thousands of debt
collection cases each year.
V. Relevant Law and Arguments Presented
Under California Code of Civil Procedure § 98, “[a]
party may, in lieu of presenting direct testimony, offer the
prepared testimony of relevant witnesses in the form of
8 MEZA V. PORTFOLIO RECOVERY ASSOCS.
affidavits or declarations under penalty of perjury.” To be
received as evidence, however, a copy of the declaration
must be served on the opposing party, “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.” Cal. Code Civ. Proc.
§ 98(a). 2 The dispute here centers on the meaning of
“available for service of process.”
California rules of statutory interpretation seek to
“ascertain the intent of the Legislature so as to effectuate the
purpose of the law.” State Farm Mut. Auto. Ins. Co. v.
Garamendi, 88 P.3d 71, 78 (Cal. 2004) (internal quotation
omitted). Under California law, courts “look first to the
words of the statute themselves, giving to the language its
usual, ordinary import and according significance, if
possible, to every word, phrase, and sentence in pursuance
of the legislative purpose.” Id. (internal quotation omitted).
California courts also “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.” Id. (internal
quotation omitted).
If the statute is clear, then there is no need for judicial
construction. Hughes v. Bd. of Architectural Examiners,
952 P.2d 641, 649 (Cal. 1998). However, if the statute is
ambiguous—i.e., capable of two reasonable constructions—
2
The declaration may also be received as evidence if “[t]he
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.” Cal. Code Civ. Proc. § 98(b).
MEZA V. PORTFOLIO RECOVERY ASSOCS. 9
then California courts will “consider evidence of the
Legislature’s intent beyond the words of the statute.” Id.
Both Meza and PRA contend that the plain language of
the statute supports their respective positions. Meza’s
argument focuses on the language of § 98 read in
conjunction with other California statutory provisions. She
argues that the California Legislature must have
contemplated that the affiant be personally available for
service of process at the address provided in the declaration
because § 98 operates as an exception to the general rule
against hearsay evidence. See Cal. Evid. Code § 1200.
Though § 98 broadly allows a party to present witness
testimony in the form of a declaration, § 98(a) in turn
requires the offering party to provide a current address of the
affiant so that the opposing party can seek to require the
affiant’s attendance at trial. It therefore preserves the
opposing party’s right to cross-examine the affiant, should
that party wish to challenge the hearsay evidence. See
Rocha, 157 Cal. Rptr. 3d at 159–60.
For this protection to work, Meza claims that the affiant
must be physically located at the address provided in the
declaration. She cites California Code of Civil Procedure
§§ 1985(a) and 1987(a) in support of this argument. Read
alongside § 98, these provisions could suggest that the
affiant’s attendance at trial can only be secured through the
use of a subpoena, § 1985(a), and that a subpoena must be
delivered to the witness personally, § 1987(a). Thus, Meza
argues that § 98(a) implicitly requires physical presence,
since its protective purpose can only be enforced through the
use of a trial subpoena, according to other provisions of the
California Code of Civil Procedure. See Rodgers, 176 Cal.
Rptr. 3d at 847–48; Rocha, 157 Cal. Rptr. 3d at 160.
10 MEZA V. PORTFOLIO RECOVERY ASSOCS.
PRA argues that § 98’s language does not require actual
physical presence. Had the California Legislature intended
physical presence at the address provided in the declaration,
it could have easily required the affiant to provide “a current
residential or work address,” rather than simply “a current
address.” See Cal. Code Civ. Proc. § 98(a). The Legislature
also could have required an address where the affiant is
subject to subpoena prior to trial. But because the
Legislature merely demanded an address where the affiant is
“available for service of process,” id., PRA argues that the
court should not add words to an otherwise clear statutory
provision.
Moreover, PRA argues that such an exercise would
contravene the legislative history and purpose of § 98. See
Hughes, 952 P.2d at 649. California Code of Civil
Procedure §§ 90–100, collectively referred to as Economic
Litigation for Limited Civil Cases, were enacted to reduce
costs in cases involving relatively small dollar values. As
originally introduced, § 98 allowed a party to introduce the
affidavit of any witness 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 trial, and
the affiant is subject to subpena [sic] for the trial.” Assemb.
B. 3170, 1981–1982, Reg. Sess. (Cal. 1982) (as introduced,
March 10, 1982). It was then amended in the Assembly on
April 21, 1982, and enacted into law as part of Senate Bill
No. 1820 later that year. The 1982 version allowed parties
to prepare affidavits or declarations, in lieu of trial
testimony, provided that “[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
MEZA V. PORTFOLIO RECOVERY ASSOCS. 11
of trial.” Assemb. B. 3170, 1981–1982, Reg. Sess. (Cal.
1982) (as amended, April 21, 1982).
In 1983, § 98(a) underwent one final amendment. It
remains in effect today:
A party may, in lieu of presenting direct
testimony, offer the prepared testimony of
relevant witnesses in the form of affidavits or
declarations . . . provided that . . .
(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.
Cal. Code Civ. Proc. § 98(a).
PRA argues that these amendments strongly support its
position that § 98(a) does not require physical presence at
the address provided. According to California rules of
statutory interpretation, “[t]he rejection by the Legislature of
a specific provision contained in an act as originally
introduced is most persuasive to the conclusion that the act
should not be construed to include the omitted provision.”
People v. Soto, 245 P.3d 410, 420 (Cal. 2011) (quoting Rich
v. State Bd. of Optometry, 45 Cal. Rptr. 512, 522 (Cal. Dist.
Ct. App. 1965)). As such, PRA contends that the court
should not read § 98 to require the use of a trial subpoena.
Rather, PRA argues that the Legislature clearly
contemplated other forms of service of process, forms that
12 MEZA V. PORTFOLIO RECOVERY ASSOCS.
do not require the affiant to be personally available to accept
service of process. 3
Given the seemingly ambiguous language of § 98, and
the inconsistent outcomes reached by California Superior
Courts, we believe the California Supreme Court is in the
best position to interpret the statute and settle an important
question of state law. We therefore respectfully request that
the California Supreme Court exercise its discretion to
decide the certified question. Absent certification, we will
attempt to determine how the California Supreme Court
would interpret this statute, though we are not the final
expositor of California law. Walker v. City of Lakewood,
272 F.3d 1114, 1125 (9th Cir. 2001); Pacheco v. United
States, 220 F.3d 1126, 1131 (9th Cir. 2000).
VI. Accompanying Materials
The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of record, and an original and
ten copies of this order and request for certification, along
3
Additionally, PRA notes that alternative forms of service of
process would better promote § 98’s purpose. In its view, requiring
parties to hire process servers would be much more costly than simply
allowing parties to fax or email notices to authorized agents. Cf.
Rodgers, 176 Cal. Rptr. 3d at 847–48 (indicating that, “in the vast
majority of cases, where the matters are uncontested or otherwise
unchallenged,” it is “unwieldy” to “requir[e] personal service, or hav[e]
a local declarant literally available for service within 150 miles”). Meza,
however, contends that § 98’s purpose weighs in her favor, as it limits
how far an opponent must travel to serve a subpoena on an affiant whose
attendance at trial is required.
MEZA V. PORTFOLIO RECOVERY ASSOCS. 13
with a certification of service on the parties, pursuant to
California Rule of Court 8.548(c) and (d).
The Clerk is directed to administratively close this
docket, pending further order. This panel retains jurisdiction
over further proceedings.
IT IS SO ORDERED.