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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JOSE ANTONIO RAMOS,

Plaintiff,

v.

CAPITAL ONE, N.A., et al.,

Defendants.

Case No. 17-cv-00435-BLF 

ORDER DENYING MOTION TO STAY

[Re: ECF 5]

Before the Court is Defendants’ motion seeking a stay of this action until the California 

Court of Appeal reaches its decision in Ron Kempton, et al. v. Capital One Financial Corporation, 

No. 37-2014-00023795-CU-MC-NC (Cal. Super. Ct.) sub nom. Dalia Rojas v. HSBC Card 

Services Inc., et al., No. D071442 (Cal. App. Ct. filed Nov. 18, 2016) (the “Rojas case”). Mot., 

ECF 5, Joinder to Mot., ECF 22. Plaintiff Jose Antonio Ramos (“Plaintiff”) opposes the motion, 

claiming that Defendants did not meet their burden of showing that a stay is warranted. Opp’n., 

ECF 18. Pursuant to Civ. L.R. 7-1(b), the Court finds Defendants’ motion to stay suitable for 

submission without oral argument and hereby VACATES the hearing scheduled for July 27, 2017. 

As set forth below, the Court finds that the Defendants’ requested stay is not justified and hereby 

DENIES the motion.

I. BACKGROUND

Plaintiff alleges the following facts in his complaint. Compl., Ex A. to Notice of Removal, 

ECF 1. Plaintiff is a California resident whose wife was employed by Defendants HSBC Card 

Services Inc. (“Card Services”) at an HSBC Technology & Services (USA) Inc. (collectively, 

“HSBC”) facility in Salinas, California, from March 2009 to May 2012. Compl. ¶¶ 7, 28. As of 

May 1, 2012, Defendant Capital One Financial Corporation (“Capital One”) acquired certain 

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assets of HSBC, including the Salinas facility. Plaintiff’s wife thereafter was employed by Capital 

One from May 1, 2012 through October 2013. Id. ¶ 29.

Plaintiff alleges that during the relevant time period, he had “numerous personal telephone 

communications” with Defendants’ employees, including his wife. Id. ¶¶ 30-32. According to 

Plaintiff, Defendants intentionally recorded the conversations without his consent or knowledge. 

Id. ¶¶ 32-33.

Plaintiff filed a complaint in Monterey County Superior Court asserting that Defendants 

violated the California Invasion of Privacy Act. Compl.; Cal. Penal Code §§ 632, 632.7. HSBC

removed the case to this Court. Notice of Removal. Defendants then filed a motion to dismiss 

and a motion to stay the case. ECF 5, 7. The Court now addresses Defendants’ motion to stay.

II. LEGAL STANDARD

“Granting a motion to stay is within the sound discretion of the Court.” Fuller v. Amerigas 

Propane, Inc., No. 09-2493, 2009 WL 2390358, at *1 (N.D. Cal. Aug. 3, 2009). The power to 

stay is “incidental to the power inherent in every court to control the disposition of the causes on 

its docket with economy of time and effort for itself, for counsel, and for litigants.” Id. (quoting 

Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (quoting Landis v. N. Am. 

Co., 299 U.S. 248, 254 (1936) (internal quotation marks omitted)).

“In considering whether a stay is appropriate, the Court weighs three factors: [1] the 

possible damage which may result from the granting of a stay, [2] the hardship or inequity which a 

party may suffer in being required to go forward, and [3] the orderly course of justice measured in 

terms of the simplifying or complicating of issues, proof, and questions of law which could be 

expected to result from a stay.” See Gustavson v. Mars, Inc., Case No. 13-cv-04537-LHK, 2014 

WL 6986421, at *2 (N.D. Cal. Dec. 10, 2014) (internal quotation marks and citation omitted) 

(brackets in original). These factors are drawn from the Supreme Court’s decision in Landis v. 

North American Co., 299 U.S. 248 (1936). Id. “If there is even a fair possibility that a stay will 

work damage to someone else, the stay may be inappropriate absent a showing by the moving 

party of hardship or inequity.” Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 

1059, 1066 (9th Cir. 2007) (internal quotation marks omitted) (citing Landis, 299 U.S. at 255).

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In addition, the “proponent of a stay bears the burden of establishing its need.” Clinton v. 

Jones, 520 U.S. 681, 708 (1997) (citing Landis, 299 U.S. at 255). If there is “even a fair 

possibility” of harm to the opposing party, the moving party “must make out a clear case of 

hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255. 

III. DISCUSSION

Defendants contend that a stay of the present case pending resolution of the Rojas case on 

appeal will conserve judicial resources without prejudice to Plaintiff. A denial of stay would 

cause hardship to the parties when they have to expend time and resources litigating this case. 

Plaintiff argues that Defendants have made an insufficient showing to warrant a stay. Before 

turning to the merits of these arguments, the Court addresses HSBC’s request for judicial notice.

A. Judicial Notice

HSBC has requested judicial notice of six documents filed in the Rojas case, attached to 

the request as Exhibits A through H: (A) HSBC’s motion for summary judgment; (B) plaintiff 

Rojas’ opposition to the summary judgment motion; (C) HSBC’s reply in support of the motion 

for summary judgment; (D) order granting HSBC’s motion for summary judgment; (E) excerpts of 

the certified reporter’s transcript for the November 4, 2016 hearing; (F) the notice of appeal., (G) 

Notice regarding fee for record on appeal; and (H) Order denying motion to stay in Nicklaus Lal v. 

Capital One N.A., et al., No. 5:16-cv-06674-BLF (N.D. Cal.) (the “Lal Stay Order”). RJN, ECF 6.

Judicial notice is appropriate with respect to all these exhibits because they are documents 

publicly filed with the San Diego County Superior Court and this Court. See Mir v. Little Co. of 

Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of matters of public 

record). Plaintiff opposed the request for judicial notice because the documents have no “direct 

relation to the matters at issue.” Opp’n 6-7. Courts “may take notice of proceedings in other 

courts, both within and without the federal judicial system, if those proceedings have a direct 

relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 

971 F.2d 244, 248 (9th Cir. 1992). The Court finds that the facts of the Rojas case and Nicklaus 

Lal v. Capital One N.A., et al., No. 5:16-cv-06674-BLF (N.D. Cal. filed Nov. 17, 2016) (the “Lal

case”) are very similar. In the Rojas case, the Lal case, and the case here, the plaintiffs assert the 

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same causes of action arising from similar allegations concerning recording of telephone 

conversation by the defendants. Accordingly, the documents have a “direct relation to the matters 

at issue.” See Mot. 3-5.

Plaintiff also argues that the documents to be noticed contain disputed facts and arguments 

so the Court may not take judicial notice of them to prove the truth of the contents. Opp’n 7-8. 

However, Plaintiff’s objection to the Court taking judicial notice of the documents filed in other 

proceedings is misguided. The Court does not take judicial notice of the legal reasoning or 

disputed facts contained therein, but rather the existence of such allegations and arguments. Reply 

8-9; Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (permitting a court to take 

judicial notice of another court’s opinion, but not the truth of the facts recited therein). Plaintiff 

does not dispute the authenticity of the documents, either. As such, the request for judicial notice 

is GRANTED with respect to all the exhibits attached to HSBC’s request.

B. Possible Prejudice from Granting Stay

The Court turns to the first Landis factor: possible prejudice that could arise from granting 

the stay. Defendants argue that a stay will not damage Plaintiff given that the allegations relate to 

calls made between 2009 and 2012, made over four to seven years ago. Mot. 7. According to 

Defendants, Plaintiff has not alleged any ongoing violations, confirming that a stay of causes of 

actions that are already stale would not incur any additional damages. Id.; Reply 2. Defendants 

also contend that oral argument in Rojas likely will occur by the end of the year given the briefing 

schedule. Reply 2-3. Plaintiff contends that if a stay were to be granted, evidence could be lost or 

destroyed, witness memories could fade, and witnesses might become unavailable. Opp’n 3. 

Plaintiff further argues that a stay should not be instituted because of the strong public policy 

favoring expeditious resolution of litigation. Id. at 4.

Given that Plaintiff’s allegations were based on events that occurred more than four to 

seven years ago, additional damage from granting a stay should be relatively small in comparison 

to damage from the pre-existing delay. However, the Court finds that with passing time, there 

remains a risk of lost and destroyed evidence, as well as fading witness memories. Although 

Defendants predict that oral argument will be scheduled by the end of this year based on the

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appellate briefing schedule, it is not certain that this prediction will come to fruition. As such, the 

parties may need to wait for the state court appellate decision for an indefinite amount of time, 

which is a concern of this Court. The Court thus finds that a stay pending the state appellate court 

decision could prejudice Plaintiff.

C. Possible Hardship or Inequity from Denying Stay

The Court next considers the possible harm that could arise from going forward. CMAX, 

300 F.2d at 268. Defendants argue that denial of the stay would force it to devote significant legal 

expense to the present action, which may be rendered unnecessary by the appellate decision in the 

Rojas case. Mot. 6; Reply 4-5. In addition, Defendants contend that litigating this case and the 

Lal case simultaneously adds to their hardship. Reply 5. Plaintiff contends that Defendants’ 

speculative argument on irreparable harm does not justify a stay. Opp’n 4-5.

Aside from conclusory assertions, Defendants have not provided any detail as to why 

simultaneous litigation of this case and the Lal case that have substantial overlap in their factual 

and legal issues would cause a significant burden relative to litigating only the Lal action. 

Defendants also similarly proffer no support for their argument that the “vast majority of the 

burden” will be placed on them as opposed to Plaintiff. Mot. 8. A denial of stay would require 

both parties to expend significant resources to litigation. Recognizing the potential burden for

both parties, the potential hardship from denying the stay weighs slightly in favor of granting it. 

See, e.g., Google Inc. v. Creative Labs, Inc., No. 16-02628-JST, 2016 WL 6947564, at *2 (N.D. 

Cal. Nov. 28, 2016) (noting that there could be “potential duplication of discovery” between the 

ITC investigation and federal proceedings and ultimately finding the “hardship” factor to be 

largely neutral). 

A. Orderly Course of Justice

The Court now addresses the third, and last, of the Landis factors—whether a stay will 

complicate or simplify the issues before it. According to Defendants, the claims dismissed by the 

trial court in the Rojas case are identical to the claims asserted here. Mot. 8-9; Reply 6. 

Defendants argue that because the order granting their summary judgment is on appeal and 

addressed the same issues in this case, the appellate decision will be important in defining and 

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determining the issues presented here. Mot. 8-9. In opposition to this motion for stay, Plaintiff 

argues that the Rojas case has no bearing on this action because Plaintiff is not a party to the Rojas

case. Opp’n 5. Plaintiff also contends that even if Defendants did not “intentionally” record the 

telephone conversations implicated in the Rojas case, this Court could still find that Plaintiff’s 

telephone conversations were “intentionally” recorded. Id.

The plaintiff in Rojas alleges that when her daughter and her friends, HSBC employees, 

called her using their work phones, her personal telephone communications with them were 

recorded without her consent. RJN, Ex. B 1, 3-4. In granting summary judgment to HSBC, the 

trial court found that the plaintiffs in the Rojas case had failed to establish a triable issue of 

material fact as to Defendants’ intent to record the phone conversations in violation of the 

California Invasion of Privacy Act. Id., Ex. D. Specifically, the court found no triable issue of 

material fact on whether Defendants recorded the phone calls “with the purpose or desire of 

recording a confidential conversation, or with the knowledge to a substantial certainty that his use 

of the equipment will result in the recordation of a confidential conversation,” and on whether 

Defendants “intentionally recorded” a communication involving a cell phone or cordless phone. 

Id. 

Based on Plaintiff’s complaint and the exhibits discussed above, it is clear that the Rojas

case and the present action share many similarities. However, it is less clear that an appellate 

decision from the Rojas case would affect this case. In interpreting state law, federal courts are 

not necessarily bound by intermediate appellate court decisions, unless “there is no convincing 

evidence that the state supreme court would decide differently.” Vestar Dev. II, LLC v. Gen. 

Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001). Moreover, given the Court’s schedule, it is 

likely that this case will not be tried before the state appellate court reaches its decision. 

Accordingly, the Court finds that this third factor weighs only slightly in favor of granting a stay.

IV. ORDER

In light of the above, the Court finds that Defendants fail to meet the burden of establishing 

the need for a stay. Given that the stay may last into the indefinite future, the Court finds that 

there is possible prejudice to Plaintiff in granting this stay. Although a stay might lessen the 

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hardship on both parties and could potentially simplify issues in the case, these factors weigh only 

slightly in favor of granting the stay and do not outweigh the possible prejudice to Plaintiff.

For the foregoing reasons, the Court DENIES Defendants’ motion to stay until the California 

Court of Appeal’s decision in the Rojas case.

Dated: March 7, 2017

 ______________________________________

BETH LABSON FREEMAN

United States District Judge

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