CACH v. Rodgers

Filed 8/5/14 Certified for publication 8/26/14 (order attached)

CERTIFIED FOR PUBLICATION

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF VENTURA APPELLATE DIVISION

CACH LLC, ) ) Plaintiff and Respondent, ) ) (Ventura County Superior Court Case v. ) Number 56-2012-00420026-CL-CL-VTA ) KATHLEEN RODGERS, ) Defendant and Appellant. )

APPEAL from a judgment from the trial court in the Superior Court of Ventura County. Judgment REVERSED.

Trial Judge: Vincent J. O‟Neill

Counsel:

Ian Chowdhury for Defendant and Appellant.

Elizabeth G. Sutlian for Plaintiff and Respondent.

BY THE COURT:

STATEMENT OF CASE This case is a civil debt collection proceeding. Respondent CACH LLC (Respondent)

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alleges that appellant Kathleen Rodgers (Appellant) opened a revolving credit account with Washington Mutual/Chase Bank and failed to pay. After the debt became delinquent Respondent purchased the debt from Washington Mutual/Chase Bank and made attempts to collect from Appellant by filing this litigation. The lawsuit was initiated on June 18, 2012. Appellant was duly served and filed an answer to the complaint on February 28, 2013. On May 1, 2013, Respondent filed a declaration, pursuant to Code of Civil Procedure section 98 (hereinafter section 98), authored by „Magic West,‟ stating Respondent‟s intention to introduce the documentary evidence in lieu of direct testimony of the declarant. In his declaration, Magic West states, “I am currently located in Denver, Colorado, therefore I authorize service to be accepted on my behalf within a reasonable period of time prior to trial in order to allow for necessary travel. Service will be accepted on my behalf at the office of Plaintiff’s attorney located at Mandarich Law group, LLP, 6301Owensmouth Ave. Suite 850, Woodland Hills, California, 91367, which is within 150 miles of the place of trial.” On June 3, 2013, Appellant filed a pretrial brief objecting to the introduction of the documentary evidence pursuant to section 98. Attached to her motion as exhibit C was a record of attempted, but failed, service of Magic West at 6301 Owensmouth Ave. Ste. 850, Woodland Hills, CA 91367. The reason for failure of service states, “Deft. Does Not Work at This Address—Personal Service Only For Civil Subpena.” The date of attempted service was May 7, 2013. In her pretrial brief Appellant objected to Respondent‟s intended use of the Magic West declaration and the records contained therein pursuant to section 98 and pursuant Evidence Code sections 1270 to 1271 (business records). On June 10, 2013, trial was commenced, Honorable Vincent O‟Neill presiding. Argument was heard on Appellant‟s objection to the introduction of the Magic West declaration and to its contents. Counsel for CACH prevailed in her argument to the trial court to disregard the decision of Target v. Rocha (2013) 216 Cal.App.4th Supp. 1, because it was not binding authority. Counsel for Respondent also argued, “The most damaging factual difference in this case is that this Defendant has made zero effort in effecting service on our witness. There‟s no