Banga v. Chevron U.S.A. Inc.
| Decision Date | 07 January 2013 |
| Docket Number | Case No.: C-11-01498 JCS |
| Parties | KAMLESH BANGA, Plaintiff, v. CHEVRON U.S.A. INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
On November 8, 2010, Plaintiff Kamlesh Banga ("Plaintiff") filed a complaint against Defendants Chevron U.S.A. Inc. ("Chevron"), Dish Network L.L.C. f/k/a/ EchoStar Satellite L.L.C. ("Dish Network"), Capital One Bank (USA), N.A. ("Capital One"), and HSBC Bank Nevada, N.A. ("HSBC") (collectively "Defendants").1 Plaintiff alleged that each defendant obtained her credit report from Equifax, a credit reporting agency, through promotional inquiries but failed to extend her a firm offer of credit in violation the federal Fair Credit Report Act ("FCRA") and California's Consumer Credit Reporting Agencies Act ("CCRAA").
Four motions are presently before the Court: 1) Chevron's Motion for Summary Judgment ("Chevron Motion"); 2) Dish Network's Motion for Summary Judgment ("Dish Network Motion"); 3) Capital One's Motion for Summary Judgment ("Capital One Motion"); and 4) HSBC's Motion for Summary Judgment ("HSBC Motion"). The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons discussed below, Defendants' Motions are granted.
In conjunction with their motions, Chevron, Dish Network, and Capital One all filed requests for judicial notice. Chevron requested judicial notice of (1) Plaintiff's Complaint in this action; (2) Plaintiff's October 8, 2009 complaint filed against Equifax in the United States District Court, Northern District of California, Case No. C09-04807 JSW ("the Equifax Action"); and (3) the January 25, 2011 district court order granting Equifax summary judgment in the Equifax Action. Chevron's Request for Judicial Notice ("Chevron RJN"), 1-2. Dish Network requested judicial notice of (1) Plaintiff's October 8, 2009 complaint in the Equifax Action; (2) the January 25, 2011 district court order granting Equifax summary judgment in the Equifax Action; and (3) certain factual findings and the holding of the January 25, 2011 district court order. Dish Network's Request for Judicial Notice ("Dish Network RJN"), 1-2. Capital One requested judicial notice of (1) the declaration of Brian J. Olson ("Olson Declaration") filed by Equifax on October 26, 2010 in conjunction with its motion for partial summary judgment in the Equifax Action; (2) the declaration of Vicki Banks filed by Equifax on October 26, 2010 ("2010 Banks Declaration") in conjunction with its motion for partial summary judgment in the Equifax Action; and (3) the January 25, 2011 district court order granting Equifax summary judgment in the Equifax Action. Capital One's Request for Judicial Notice ("Capital One RJN"), 1-2.
Plaintiff filed objections to the Dish Network RJN and the Capital One RJN. Plaintiff argued that the documents identified by Dish Network and Capital One could be noticed for their existence, but not the truth of their contents. Plaintiff's Objection to Dish Network's Request for Judicial Notice, 1-3 (citing California ex. rel. Lockyer v. Migrant Corp., 266 F.Supp.2d 1046, 1053 (N.D. Cal. 2003), aff'd, 375 F.3d 831 (9th Cir. 2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1836, 61 L.Ed.2d 724 (2005); J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 440 (9th Cir. 2010)); Plaintiff's Objection to Capital One's Request for Judicial Notice, 1-2 (citing the same cases). Only Capital One replied to Plaintiff's Objection, arguing that this Court may consider the content of the declarations and court order it requested noticed. Capital One's Response to Plaintiff's Objection to Request for Judicial Notice, 1 (citing LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2nd Cir.1999) ()).
Under Federal Rule of Evidence 201, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Court filings and orders are the type of documents that are properly noticed, but notice is taken "only for the limited purpose of recognizing the 'judicial act' that the order [or filing] represents on the subject matter of the litigation." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citing Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)); see also San Luis v. Badgley, 136 F.Supp.2d 1136, 1146 (E.D. Cal. 2000) (). In accordance with these limitations, the Court grants judicial notice of (1) Plaintiff's October 8, 2009 complaint in the Equifax Action; (2) the 2010 Banks Declaration filed in the Equifax Action; (3) the Olson Declaration filed in the Equifax Action; and (4) the January 25, 2011 district court order granting the defendant summary judgment in the Equifax Action. The Court denies judicial notice of the Complaint in this case because it is already a part of the record.
Defendants each filed a declaration by Vicki Banks ("Banks") dated August 14, 2012 ("Banks Declaration") with their moving papers. 2 Plaintiff contended in each Opposition that the Banks Declaration is inadmissible because Chevron had initially planned to depose Banks, but canceled the deposition and did not make Plaintiff aware that Banks would supply a declaration. Defendants counter that Plaintiff had every opportunity to notice her own deposition of Banks, and was familiar with Banks' information because Banks filed a similar declaration in the Equifax Action. Declarations may be relied upon to support a motion for summary judgment. Fed. R. Civ. P.56(c)(1)(A). Plaintiff has not established any basis for rejecting the Banks Declaration, so the Court will consider it.
On November 8, 2010, Plaintiff filed the Complaint that gave rise to this cause of action in the Superior Court of California, County of San Francisco. Complaint, ¶ 1. In her Complaint, she alleged that (1) Chevron obtained copies of her credit report from Equifax on March 24, 2006 and June 16, 2006; (2) Dish Network obtained copies of her credit report from Equifax on March 31, 2006, July 27, 2006, and November 16, 2006; (3) Capital One obtained copies of her credit report from Equifax on November 11, 2005, January 6, 2006, May 11, 2006, June 12, 2006, and July 17, 20063 ; and (4) HSBC obtained copies of her credit report from Equifax on November 8, 2005, November 10, 2005, December 12, 2005, and March 10, 2006. Id. at ¶ 15. Plaintiff further alleged that each defendant obtained those reports by representing that it was needed to extend Plaintiff a firm offer of credit. Id. at ¶ 14. Finally, Plaintiff alleged that Defendants never intended to provide her with a firm offer of credit, and that no firm offer of credit was ever made. Id. As a result, Plaintiff claimed that Defendants violated the FCRA, 15 U.S.C. Sections 1681n-1681o, and the CCRAA, California Civil Code Section 1785.20.1. Id. at ¶¶ 18-20, 24-26, 30-32, 48-50. Plaintiff maintains that she did not become aware of these violations until October 26, 2010 when she received certain documents from Equifax in the Equifax Action. Id. at ¶ 14.
Equifax is a consumer reporting agency as defined by the FCRA. Chevron Joint Statement of Undisputed Facts ("Chevron JSUF"), ¶ 1; Dish Network Joint Statement of Undisputed Facts ("Dish Network JSUF"); ¶ 3.4 Equifax maintains consumer credit files for millions of consumers, including Plaintiff. Dish Network JSUF, ¶ 4. Equifax's customers may make a promotional inquiry. Id. at ¶ 5. A promotional inquiry is a request by a third party for a list of consumers that meet certain credit-related criteria. Id. at ¶ 7. Promotional inquiries are identified in credit reports and Equifax's internaldocuments with the prefix "PRM." Id. at ¶ 8; HSBC Joint Statement of Undisputed Facts ("HSBC JSUF"), ¶¶ 19-20. Defendants produced evidence that Equifax only provides the consumer's name and address in response to a promotional inquiry so that a firm offer of credit can be extended. Banks Declaration ¶ 10. Promotional inquiries remain listed on a consumer's credit report for twelve months. Chevron JSUF, ¶ 5; Dish Network JSUF, ¶ 11; HSBC JSUF, ¶ 21; Capital One Joint Statement of Undisputed Facts ("Capital One JSUF"), ¶ 4. Defendants have produced evidence that promotional inquiries have no impact on an individual's credit score. Banks Declaration ¶ 11. In 2003, Plaintiff learned that a third party is obligated to make a firm offer of credit to all consumers whose contact information it receives in response to a promotional inquiry. Dish Network JSUF ¶¶ 20-21.
In support of their Motions, Defendants produced evidence that Plaintiff received copies of her credit report from Equifax on July 24, 2004, July 28, 2004, March 24, 2006, July 7, 2007, July 20, 2007, August 14, 2007, October 18, 2007, July 23, 2008, and March 3, 2009. Banks Declaration ¶ 15. Banks explained that Equifax maintains records of each date a report is prepared and mailed in response to a request by a consumer. Id. at ¶¶ 13-14. Plaintiff does not contest that she received her Equifax credit reports on July 24, 2004, August 14, 2007, November 28, 2007, July 23, 2008, and March 9, 2009. Plaintiff's Affidavit in...
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