Use Of Declaration In Limited Jurisdiction Court Abuse Of Discretion.

The only evidence admitted by plaintiff bank in a limited jurisdiction action for breach of contract and common counts was a declaration admitted pursuant to Code of Civil Procedure section 98. Judgment of $7,788.30 was entered for plaintiff. The declaration included a statement that the declarant was available for 20 days prior to trial for service of process through plaintiff’s counsel. Within that time, counsel for defendant issued a civil subpoena for personal appearance at the trial along with a $35 check payable to the declarant. But the process server, who had been authorized to effectuate personal service only, was not able to serve the declarant at the address given, and did not serve a person who said he could accept service on the declarant’s behalf. On appeal, defendant, who wanted to cross-examine the declarant, argued section 98 contemplates service of a civil subpoena for personal appearance at trial, but plaintiff contended the declarant was available for service of process because defendant could have compelled her attendance at trial by serving its counsel with a notice to appear pursuant to Code of Civil Procedure section 1987(b). 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.” The appellate division of the Santa Clara superior court reversed, stating the declaration “did not comply with Section 98 as [the declarant] 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.” Target National Bank v. Rocha (Sup. Ct. App. Div.; May 16, 2013) 216 Cal.App.4th Supp. 1.