Case Conclusion Date: April 29, 2013
Practice Area: Debt Collection
Outcome: Code Civil Procedure § 98 Declarants must be available for personal service of a Subpoena
Description: Target National Bank filed a complaint for breach of contract and common counts against defendant. Target filed a declaration in lieu of live testimony at trial pursuant to Code Civil Procedure § 98(a). The Superior Court of Santa Clara County (California) admitted the declaration into evidence. Based on the declaration, the trial court entered judgment for Target National Bank. Defendant appealed. Aside from the declaration filed by Target, no other evidence was presented at trial by either party. The court held that the declaration offered by Target did not comply with § 98, as the witness was not available for service of process within 150 miles of the courthouse. The trial court thus abused its discretion in admitting the declaration as evidence. Although the witness had apparently authorized a legal services company to accept service on her behalf, she was not physically present at the company's address and thus could not be personally served at that address. The court rejected Target's argument that defendant could have compelled the witness to attend trial if she had served Target's counsel with a notice to appear pursuant to Code Civil Procedure § 1987(b). The witness would not be bound by a notice to attend trial because she was not a party to the action, a person for whose immediate benefit the action was prosecuted, or an officer, director, or managing agent of Target National Bank. Moreover, the witness was not a resident of California. Thus, the only way for defendant to compel the witness's attendance was to personally serve her with a subpoena. The court reversed the judgment and remanded the matter for a new trial. Target National Bank v. Rocha, 216 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2013).