Farley v. Lincoln Benefit Life Co.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Deana Farley, No. 2:20-cv-02485-KJM-DB 12 Plaintiff, ORDER 13 v. Lincoln Benefit Life Company, 1S Defendant. 16 17 Defendant Lincoln Benefit Life Company moves to rescind and to stay this action pending 18 | resolution of defendant’s Federal Rule of Civil Procedure 23(f) petition to the Ninth Circuit. For 19 | the reasons below, the court construes the motion to rescind as a motion for reconsideration under 20 | Federal Rule of Civil Procedure 59(e) and Local Rule 230(j) and denies the motion. The court 21 | also denies the motion to stay. 22 | I. BACKGROUND 23 This case involves the termination of a life insurance policy. The court has discussed the 24 | background of this case in its prior order and incorporates that discussion by reference here. See 25 | Prior Order, ECF No. 77. On April 18, 2023, the court granted plaintiff Deana Farley’s motion 26 | for class certification under Federal Rule of Civil Procedure Rule 23(b)(2) and denied her motion

1 for class certification under Rule 23(b)(3). Prior Order at 16. 1 The court defined the approved 2 class as follows: 3 All owners, or beneficiaries upon a death of the insured, of 4 Defendant’s individual life insurance policies issued in California 5 before 2013 that Defendant lapsed or terminated for the non-payment 6 of premium in or after 2013 without first providing all the notices, 7 grace periods, and offers of designation required by Insurance Code 8 Sections 10113.71 and 10113.72. 9 Id. 10 Defendant now moves the court to rescind the order granting in part plaintiff’s motion for 11 class certification. Mot., ECF No. 78-1. Defendant argues the court did not fully address the 12 issues bearing on class certification and should have granted the parties an opportunity to brief 13 issues raised in plaintiff’s reply brief and previously at hearing. Mot. at 2. Plaintiff opposes, 14 Opp’n, ECF No. 86, and defendant has filed a reply, Reply, ECF No. 91. Defendant also has filed 15 a petition for permission to appeal the court’s order in accordance with Rule 23(f). Notice, ECF 16 No. 87. Defendant moves the court to stay the proceedings in this case “pending resolution of its 17 Rule 23(f) Petition—and, if granted, its resulting appeal before the Ninth Circuit.” Mot. Stay at 2, 18 ECF No. 90-1. Plaintiff opposes, Opp’n Stay, ECF No. 93, and defendant has replied, Reply Stay 19 ECF No. 94. The court submitted these motions without a hearing. Min. Order, ECF No. 107.2 20 II. MOTION TO RESCIND CONSTRUED AS RECONSIDERATION 21 A. Legal Standard 22 Defendant has filed a motion to rescind, which the court construes as a motion for 23 reconsideration under Federal Rule of Civil Procedure 59(e). See Osterneck v. Ernst & Whinney, 24 489 U.S. 169, 174 (1989) (motion involving “reconsideration of matters properly encompassed in 25 a decision on the merits” can properly be construed as a motion under Rule 59(e)).

1 When citing page numbers on filings, the court uses the pagination applied by the CM/ECF system. 2 The court notes plaintiff’s subsequent filing of supplemental authority, ECF No. 108, which does not affect the court’s conclusions below. 1 “Under Rule 59(e), a motion for reconsideration should not be granted, absent highly 2 unusual circumstances, unless the district court is presented with newly discovered evidence, 3 committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. 4 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). Further, under this 5 district’s Local Rules, any request to reconsider must explain “what new or different facts or 6 circumstances are claimed to exist which did not exist or were not shown upon such prior motion, 7 or what other grounds exist for the motion” and “why the facts or circumstances were not shown 8 at the time of the prior motion.” E.D. Cal. L.R. 230(j)(3)–(4). “Absent a showing of manifest 9 injustice, the court will not disturb its prior ruling in the interest of fairness.” Advanced Steel 10 Recovery, LLC v. X-Body Equip., Inc., No. 16-0148, 2020 WL 6043935, at *5 (E.D. Cal. Oct. 13, 11 2020). 12 B. Analysis 13 Reconsideration is not warranted here. Defendant points to no new facts, nor any changes 14 in controlling law. Instead, defendant argues the court improperly considered arguments plaintiff 15 raised for the first time in its reply brief and at hearing, Mot. at 5, depriving the court of an 16 opportunity “to conduct the ‘rigorous analysis’ class certification requires,” id. at 7 (citing Ellis v. 17 Costco Wholesale Corp., 657 F.3d 970, 980–81 (9th Cir. 2011)). Specifically, defendant argues 18 plaintiff disavowed monetary damages for the first time in reply and during hearing. Id. at 6. 19 Defendant appears to make two main arguments to support its motion: 1) plaintiff unfairly raised 20 new arguments in its reply and at hearing so defendant needs an opportunity to brief these new 21 issues; and 2) the court incorrectly interpreted the statutes to find typicality and ignored a more 22 limited class that plaintiff endorsed at hearing. Defendant’s arguments are unpersuasive for the 23 reasons explained below. 24 First, the court does not find plaintiff unfairly raised new arguments. Plaintiff specifically 25 sought declaratory relief as the main form of relief in her complaint. See Compl. ¶¶ 52–65, ECF 26 No. 1. Even if plaintiff had not conceded she no longer claims damages for living policy holders, 27 her request for damages “where available,” Compl. at 23 (Prayer for Relief), would not have 28 prevented class certification under Rule 23(b)(2) because the request for damages was incidental 1 to her primary claim for declaratory relief, see Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 2 780 (9th Cir. 1986) (“Class actions certified under Rule 23(b)(2) are not limited to actions 3 requesting only injunctive or declaratory relief, but may include cases that also seek monetary 4 damages.”). Additionally, in her motion for class certification under Rule 23(b)(2), plaintiff 5 explicitly sought “a declaration, injunction, or judgment requiring Defendant to provide the 6 notices and rights mandated by The Statutes.” Mot. Cert. at 22, ECF No. 40-1. In plaintiff’s 7 request for class certification under Rule 23(b)(2), there is no mention of or request for monetary 8 relief. See id. at 22–23. Similarly, in plaintiff’s request for class certification under Rule 9 23(b)(3), which the court denied, plaintiff discussed the calculation of damages for the vested 10 beneficiaries and not for the living insureds. See Mot. Cert. at 24–25. Nowhere in her motion did 11 plaintiff seek damages for the living policyholders, including herself. Thus, plaintiff’s 12 clarification and concession that she does not seek damages for living policyholders was not 13 materially new in that it was not raised for the first time only in reply or at hearing. 14 Second, the court finds defendant had the opportunity to object and address the issue of 15 monetary damages in the context of the court’s consideration of Rule 23(b)(2) class certification, 16 both in defendant’s opposition and at hearing. Rather than addressing plaintiff’s arguments for 17 class certification under Rule 23(b)(2) separately, defendant chose to focus on plaintiff’s 18 arguments for class certification under Rule 23(b)(3) in support of its argument that plaintiff is 19 seeking individualized monetary relief. See Opp’n to Mot. Certification at 21, ECF No. 45 (citing 20 in part portions of plaintiff’s motion discussing predominance and superiority under Rule 21 23(b)(3)). Defendant’s choice of argument and which points to emphasize in opposition reflects 22 its litigation strategy over which the court has no control. Moreover, defendant did not object to 23 plaintiff’s reply or argument at hearing, nor did it request supplemental briefing on the issue of 24 damages during the hearing. See generally Tr., ECF No. 73; cf. Tr. at 30:23–31:2 (requesting 25 opportunity to brief narrower class definition). Rather, during oral argument, defendant argued 26 there was no “clear statement to this court” that plaintiff does not seek monetary damages for 27 living policyholders. Id. at 31:3–11. In response, plaintiff reiterated her concession that she no 28 longer seeks monetary damages for living policyholders. Id. at 33:10–18. The court gave 1 defendant an opportunity to respond, id. at 33:23–34:8, and defendant did not object to the court’s 2 acceptance of this concession, id. at 34:9–17. 3 Third, the court declines to entertain again defendant’s arguments about typicality. 4 Defendant argues the court misread the statutes and appears to challenge the court’s 5 determination that plaintiff meets the typicality requirement of Rule 23(a)(3). Defendant had the 6 opportunity to fully brief and argue the issue of whether plaintiff’s claims are typical, Opp’n to 7 Mot. Certification at 22–24; Tr. at 9:23–13:12, and the court addressed defendant’s argument in 8 its prior order, see Prior Order at 8–10. Thus, defendant has already and could have previously 9 raised the arguments regarding typicality and the interpretation of the statutes; the court will not 10 revisit those issues here. 11 Finally, defendant is incorrect in saying the court “ignore[d] the more limited class 12 endorsed by Plaintiff at the hearing.” Mot. at 7. At hearing, plaintiff’s counsel stated plaintiff 13 “would agree that the class definition can be limited to just those people who did not receive the 14 third-party designee notice if the Court were inclined to not include the 60-day grace notice 15 persons in the class because they are overlapping classes nonetheless.” Tr. at 27:1–6 (emphasis 16 added). Defendant requested the opportunity to brief the issue of a changing or narrowing of the 17 class definition. Id. at 30:23–31:2. The court did not limit the class definition, mooting the need 18 for additional briefing. See Nava v. Parkwest Rehab. Ctr. LLC, No. 20-07571, 2021 WL 19 1253577, at *4 (C.D. Cal. Apr. 5, 2021) (“Whether to permit or deny supplemental briefing is 20 within the Court’s discretion.”). 21 The court finds defendant has not shown reconsideration is warranted, so denies this 22 motion. 23 III. MOTION TO STAY 24 A. Legal Standard 25 Defendant moves this court for a stay pending resolution of its Rule 23(f) petition. Mot. 26 Stay.3 A petition for permission to appeal under Federal Rule of Civil Procedure 23(f) “does not

3 Defendant’s request to stay its motion to rescind, which the court has construed as a motion for reconsideration, is moot to the extent it is now resolved. 1 stay proceedings in the district court unless the district judge or the court of appeals so orders.” 2 Fed. R. Civ. P. 23(f). “A stay is not a matter of right, even if irreparable injury might otherwise 3 result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 4 272 U.S. 658, 672 (1926)). Rather, it is “an exercise of judicial discretion.” Id. As the party 5 requesting a stay, defendant “bears the burden of showing that the circumstances justify an 6 exercise of that discretion.” Id. at 433–34. 7 “The standard for evaluating stays pending appeal is similar to that employed by district 8 courts in deciding whether to grant a preliminary injunction.” Lopez v. Heckler, 713 F.2d 1432, 9 1435 (9th Cir. 1983). Four considerations guide judicial discretion in ruling on a motion to stay: 10 “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the 11 merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of 12 the stay will substantially injure the other parties interested in the proceeding; and (4) where the 13 public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 770–71 (1987). “The first two 14 factors . . . are the most critical”; a court reaches the last two only “[o]nce an applicant satisfies 15 the first two factors.” Nken, 556 U.S. at 434, 435. If the court reaches all four factors, it applies a 16 sliding scale. Ariz. Democratic Party v. Hobbs, 976 F.3d 1081, 1086 (9th Cir. 2020). The factors 17 are “balanced, so that a stronger showing of one element may offset a weaker showing of 18 another.” Id. (quoting Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020)). 19 B. Analysis 20 1. Likelihood of Success 21 To justify a stay, a party seeking to appeal must first make “a strong showing that he is 22 likely to succeed on the merits.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) 23 (quoting Nken, 556 U.S. at 434). Although the petitioner “need not demonstrate that it is more 24 likely than not that they will win on the merits,” id., the petitioner “must show, at a minimum, 25 that she has a substantial case for relief on the merits,” id. at 968. A party can show likelihood of 26 success by showing “serious legal questions are raised.” Id. (quoting Abbassi v. I.N.S., 143 F.3d 27 513, 514 (9th Cir. 1998)). 1 Here, defendant argues serious legal questions are raised. First, defendant makes the same 2 argument it raised before in opposition to class certification: plaintiff cannot meet the 3 commonality requirement because she did not suffer the identical procedural violations as some 4 of the other class members. See Mot. Stay at 5. But plaintiff alleges she, along with all class 5 members, did not receive one or more of the procedural safeguards required by the statutes, which 6 the California Supreme Court has held “create a single, unified pretermination notice scheme.” 7 McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213, 240 (2021). As a result, the alleged injury to 8 the class is the same for all members: an injury based on defendant’s failure to comply with the 9 statutes. As the court explained in its order, there is a common question of law and fact raised by 10 plaintiff’s claims: whether defendant violated California Insurance Code sections 10113.71 and 11 10113.72 by not providing the statutes’ required procedural safeguards prior to lapsing and/or 12 terminating life insurance policies. Prior Order at 6–8. Other courts addressing the question of 13 commonality in similar cases, including cases defendant cites in support of its motion, have found 14 commonality was satisfied. See, e.g., Small v. Allianz Life Ins. Co. of N. Am., No. 20-01944, 15 2023 WL 4042593, at *2 (C.D. Cal. May 23, 2023); Nieves v. United of Omaha Life Ins. Co., No. 16 21-01415, 2023 WL 2705836, at *4 (S.D. Cal. Mar. 28, 2023); Siino v. Foresters Life Ins. & 17 Annuity Co., 340 F.R.D. 157, 163 (N.D. Cal. 2022); Pitt v. Metro. Tower Life Ins. Co., No. 20- 18 694, 2022 WL 17972167, at *4 (S.D. Cal. Dec. 1, 2022). This argument does not weigh in favor 19 of granting a stay. 20 Second, defendant argues there is a serious legal question regarding whether language 21 about lapses in sections 10113.71(b)(1) and 10113.72(c) apply just to the Grace Notice violations 22 (failure to give notice of lapse or termination),4 or apply more broadly to include Annual Notice

4 California Insurance Code section 10113.71(b)(1) states: A notice of pending lapse and termination of a life insurance policy shall not be effective unless mailed by the insurer to the named policy owner, a designee named pursuant to Section 10113.72 for an individual life insurance policy, and a known assignee or other person having an interest in the individual life insurance policy, at least 30 days prior to the effective date of termination if termination is for nonpayment of premium. 1 violations (failure to provide annual notice of the right to designate someone or change 2 designation).5 Although the Ninth Circuit has not formally decided whether any procedural 3 violation of the statutes prevents a policy from lapsing, in a memorandum decision, a Circuit 4 panel has suggested it does. Citing the California Supreme Court’s decision in McHugh, the 5 panel in Thomas explained, “[a]n insurer’s failure to comply with these statutory requirements 6 means that the policy cannot lapse.” Thomas v. State Farm Life Ins. Co., No. 20-55231, 2021 7 WL 4596286, at *1 (9th Cir. Oct. 6, 2021) (unpublished). Specifically, the panel found the 8 defendant’s “fail[ure] to comply with sections 10113.71 and 10113.72 . . . prevented the policies 9 from lapsing.” Id. In the absence of countervailing precedent, this argument also weighs against 10 a stay. 11 Additionally, “whether class members could actually prevail on the merits of their claims” 12 is not a proper inquiry in determining the preliminary question “whether common questions 13 exist.” Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir. 2015) (internal marks and citation 14 omitted). Thus, the court’s task was not to determine ultimately whether defendant’s failure to 15 comply with one or more statutory provisions prevents a lapse or termination of a policy. See 16 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). 17 Third, defendant argues there is a split among district courts regarding the propriety of 18 class certification in these cases. As the court explained before, unlike the post-McHugh cases 19 defendant relies on, the primary relief sought by plaintiff and the class members here is not

Cal. Ins. Code § 10113.71(b)(1). Similarly, California Insurance Code section 10113.72(c) states: No individual life insurance policy shall lapse or be terminated for nonpayment of premium unless the insurer, at least 30 days prior to the effective date of the lapse or termination, gives notice to the policy owner and to the person or persons designated pursuant to subdivision (a), at the address provided by the policy owner for purposes of receiving notice of lapse or termination. Notice shall be given by first-class United States mail within 30 days after a premium is due and unpaid. Cal. Ins. Code § 10113.72(c). 5 California Insurance Code section 10113.72(b) provides: “The insurer shall notify the policy owner annually of the right to change the written designation or designate one or more persons. The policy owner may change the designation more often if he or she chooses to do so.” 1 monetary; rather, plaintiff primarily seeks class-wide declaratory relief: a declaration that 2 defendant wrongfully terminated their policies and their policies, thus, remain in force. Cf. 3 Nieves, 2023 WL 2705836, at *7; Siino, 340 F.R.D. at 161; Moriarty v. Am. Gen. Life Ins. Co., 4 No. 17-1709, 2022 WL 6584150, at *3 (S.D. Cal. Sept. 27, 2022); Pitt, 2022 WL 17972167, at 5 *9. While some other post-McHugh cases found the more stringent Rule 23(b)(3) predominance 6 requirement set up an insurmountable hurdle, see, e.g., Siino, 340 F.R.D. at 164, this court did not 7 address that factor because it declined on other grounds to certify a class under Rule 23(b)(3), see 8 Prior Order at 15. 9 The court acknowledges other district courts have come out differently on the question of 10 typicality in similar cases. Some courts have held typicality is not met because analysis of the 11 twin insurance statutes requires individualized inquiries into the different policies and violations 12 of the different parts of the statutes, resulting in different defenses and questions of causation. 13 See, e.g., Steen v. Am. Nat’l Ins. Co., No. 22-11226, 2023 WL 4004192, at *6 (C.D. Cal. June 14, 14 2023); Nieves, 2023 WL 2705836, at *5; Pitt, 2022 WL 17972167, at *4. Other courts have 15 found, as this court has, typicality was satisfied because the plaintiff’s claims were coextensive 16 with the absent class members; the plaintiff alleged the same injury resulting from the same 17 course of conduct by the same defendant—noncompliance with the statutes prior to lapsing or 18 terminating the class members’ life insurance policies. See, e.g., Small, 2023 WL 4042593, at *2; 19 Bentley v. United of Omaha Life Ins. Co., No. 15-7870, 2018 WL 3357458, at *9 (C.D. Cal. 20 May 1, 2018). 21 In the cases where courts have declined to find typicality, the facts underlying those cases 22 are distinguishable from those in this case. For example, among other differences, Steen involved 23 plaintiffs who intended to terminate their policies, 2023 WL 4004192, at *7; Nieves involved a 24 plaintiff whose policy was reinstated, 2023 WL 2705836, at *5; and Pitt involved a plaintiff 25 whose policy was issued and delivered outside of California, 2022 WL 17972167, at *4, 26 rendering the plaintiffs’ claims in those cases not typical. In any event, the fact defendant 27 “disagrees with the Court’s ruling does not in and of itself raise a serious legal question.” Belyea 28 v. GreenSky, Inc., No. 20-01693, 2021 WL 3270987, at *3 (N.D. Cal. July 30, 2021). 1 Here, the court finds defendant has not identified a serious legal question, and therefore, 2 has not shown a strong likelihood of success on the merits. This factor weighs heavily against a 3 stay. 4 2. Irreparable Injury 5 Defendant must also “show that an irreparable injury is the more probable or likely 6 outcome.” Leiva-Perez, 640 F.3d at 968. Defendant argues it will likely “suffer substantial 7 reputational injury absent a stay” because plaintiff moves to facilitate limited class notice to 8 absent class members. Mot. Stay at 8. Plaintiff argues any damage to defendant’s reputation 9 would be caused by defendant’s own admission that it has not complied with the statutes. Opp’n 10 Stay at 9. Some courts have found class notice may result in reputational harm. See, e.g., 11 Romero v. Securus Techs., Inc., 383 F. Supp. 3d 1069, 1075 (S.D. Cal. 2019). However, as one 12 court notes, “[d]amage to reputation from a class notice is highly speculative given the prevalence 13 of class action lawsuits, meritorious and not, against virtually any and all kinds of companies.” 14 Montanez v. Gerber Childrenswear, LLC, No. 09-7420, 2012 WL 12932032, at *2 (C.D. Cal. 15 Feb. 2, 2012); see also Ngethpharat v. State Farm Mut. Ins. Co., No. 20-652, 2021 WL 4244519, 16 at *4 (W.D. Wash. Aug. 2, 2021) (noting defendant has failed to show why stay would avoid 17 reputational injury in case pending over a year). The court finds defendant’s argument about 18 possible reputational harm unpersuasive. 19 Defendant also argues it will suffer irreparable harm absent a stay pending its petition to 20 appeal because it will incur the costs of litigating claims that may not be cognizable. Mot. Stay at 21 7. Plaintiff argues defendant does not explain what kind of additional litigation costs it will face 22 and the parties already have engaged in extensive discovery. Opp’n Stay at 8–9. “District courts 23 have found irreparable harm probable where an appeal may result in decertification of the class, 24 thereby resulting in a substantial waste of time and resources.” Romero v. Securus Techs., Inc., 25 383 F. Supp. 3d 1069, 1075 (S.D. Cal. 2019) (citations omitted) (collecting cases). However, 26 courts also have found “routine discovery and litigation costs that are unavoidable regardless of 27 the outcome of the appeal do not amount to irreparable harm.” Id. (collecting cases). 1 Here, the court finds granting a stay would avoid some discovery and litigation costs. 2 While discovery related to class certification is now closed, see ECF 43, the parties have not 3 conducted discovery on the merits. The contentious nature of this litigation is likely to continue, 4 and if the case goes forward, the parties are likely to incur costs of additional discovery, 5 discovery disputes, and motion practice. In fact, plaintiff has already filed the motion to facilitate 6 limited class notice referenced above, Mot. Class Notice, ECF No. 92, and a motion to compel, 7 Mot. Compel, ECF No. 104, the latter of which the magistrate judge has denied, ECF No. 109. In 8 a footnote, plaintiff argues the motion for limited class notice does not factor into whether a stay 9 is warranted because the motion is directed to a damages subclass the court declined to certify. 10 Opp’n Stay at 9 n.1. Although the court declined to certify a damages class, those potential 11 subclass members are part of the larger class the court did certify; the pendency of the motion and 12 requested notice does factor into whether a stay is warranted. The costs associated with those 13 motions may be avoidable if the Ninth Circuit were to conclude the case is not suitable for class 14 litigation. See Pena v. Taylor Farms Pac., Inc., No. 13-01282, 2015 WL 5103157, at *4 (E.D. 15 Cal. Aug. 31, 2015). However, if the Ninth Circuit affirms this court’s order or declines to hear 16 the appeal or modifies the scope of the class, then the additional costs, time, and effort expended 17 on this case would not be completely wasted. See Lopez v. Liberty Mut. Ins. Co., No. 14-05576, 18 2019 WL 1452906, at *4 (C.D. Cal. Jan. 9, 2019). Some of the costs incurred will be routine 19 discovery and litigation costs that are unavoidable regardless of the appellate court’s decision. 20 Because the court finds some, but not all, of the additional discovery and litigation costs 21 may be rendered unnecessary by an appellate decision, the court finds defendant has shown it 22 may suffer some irreparable injury absent a stay; this factor weighs only slightly in favor of a 23 stay. 24 3. Injury to Other Party 25 The court next considers the injury to plaintiff and the class members. Here, defendant 26 argues “the cost of a stay to plaintiff is minimal” because there are no imminent deadlines and 27 plaintiff has previously stipulated to a stay. Mot. Stay at 9. In opposition, plaintiff argues the 28 stay will injure plaintiff and the class because the case involves life insurance policies and further 1 delays could result in death of class members and loss of evidence. Opp’n Stay at 10. 2 Additionally, plaintiff argues a stay is particularly harmful “[w]here the claims at issue are 3 remedial in nature and address an important public policy.” Id. 4 Plaintiff and class members may well incur injury as a result of a stay. Plaintiff notes 5 class members have already died and more may die, affecting the availability of evidence and 6 critical witnesses for trial. While evidence must be preserved, see Peschel v. City of Missoula, 7 664 F. Supp. 2d 1137, 1141 (D. Mont. 2009), the loss of witnesses due to death cannot be fully 8 compensated, see, e.g., In re Packaged Seafood Prod. Antitrust Litig., No. 15-2670, 2020 WL 9 2745231, at *9 (S.D. Cal. May 27, 2020). Moreover, this case is about life insurance policies. 10 Class members who may be entitled to the protections of a life insurance policy may be deprived 11 of their benefits if there are further delays. Additionally, a benefit of having life insurance is the 12 “peace of mind and security in having protection against calamity.” U.S. Bank Nat. Ass’n v. PHL 13 Variable Ins. Co., No. 11-09517, 2012 WL 1525012, at *3 (C.D. Cal. Apr. 26, 2012). Continued 14 delays in litigation may leave plaintiff and class members without these benefits. 15 At the same time, plaintiff has previously stipulated to stay proceedings for an 16 indeterminate length of time pending resolution of appeals before the California Supreme Court 17 and the Ninth Circuit in other cases confronting similar issues. See Stip., ECF No. 13. Plaintiff 18 did not raise concerns about availability of witnesses or the prejudice to class members at that 19 time. See id.6 Also, as defendant notes, the court has not set a schedule for further proceedings, 20 see Mot. Stay at 9, and plaintiff has not requested the court set a scheduling conference to 21 advance the case, see Reply Stay at 8. Further, a stay would benefit both parties by precluding 22 litigation of discovery disputes that may later be moot. A stay may also “benefit class members 23 as it would protect against the possibility of unnecessary disclosure of personal information and 24 avoid any confusion caused by issuing a class notice that may later need to be revised or 25 withdrawn.” Romero v. Securus Techs., Inc., 383 F. Supp. 3d 1069, 1077 (S.D. Cal. 2019).

6 The court lifted the previously imposed stay after the California Supreme Court’s decision in McHugh. ECF No. 19. ] After balancing the substantial injury plaintiff and absent class members may face by 2 | further delays with potential injury they may face absent a stay, the court finds this factor weighs 3 | in favor of a granting of a stay. 4 4. Public Interest 5 Lastly, the court considers the public interest. Although the public has an interest in the 6 | speedy resolution of this case, granting a stay could serve the public interest by avoiding 7 | potentially costly and unnecessary litigation. See, e.g., Altamura v. L’Oreal, USA, Inc., No. 11- 8 | 1067, 2013 WL 4537175, at *3 (C.D. Cal. Aug. 26, 2013). A stay could help avoid any whipsaw 9 | effect for the public and class members in the event of an appellate reversal or modification of the 10 | court’s ruling. See, e.g., Alfred v. Pepperidge Farm, Inc., No. 14-07086, 2017 WL 5665019, at 11 | *3 (C.D. Cal. July 13, 2017). On balance, this factor weighs slightly in favor of a stay if it is not 12 | neutral. 13 Having considered all the factors, the court finds defendant has not met its burden of 14 | showing a stay is warranted in this case. Specifically, defendant has not shown a strong 15 | likelihood of success on the merits and the other factors do not strongly weigh in favor of a stay. 16 | The motion is denied. 17 | IV. CONCLUSION 18 For the reasons above, the court denies both defendant’s motion to rescind and motion to 19 | stay. A status conference is hereby set for September 21, 2023 at 2:30 p.m. The parties shall 20 | meet and confer and file a joint status report with a proposed schedule for the case moving 21 | forward no later than fourteen (14) days before the status conference. 22 This order resolves ECF Nos. 78 and 90. 23 IT IS SO ORDERED. 24 | DATED: August 24, 2023. / □ 25 CHIEF ED STATES DISTRICT JUDGE