In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling.
As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on or after October 30, 2013. Plaintiff, however, is not a member of that class. Her last Speedpay fee was beyond the one-year statute of limitations; Plaintiff last used Speedpay on August 22, 2012. Absent equitable tolling, Plaintiff is not within the class definition. While the Ninth Circuit has held that equitable tolling, otherwise known as the “discovery rule,” is applicable to the FDCPA, equitable tolling is extended only sparingly by the courts. Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 939-40 (9th Cir. 2009). At the class certification stage, Plaintiff bears the burden of proving that she has met Rule 23’s requirements for class certification. Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). The Court need not determine the merits of Plaintiff’s equitable tolling claim to find that Plaintiff has failed to meet her burden to prove Rule 23(a)’s fundamental requirement that a class representative be a member of the class she seeks to represent. The class is defined as claims within the statute of limitations. Plaintiff’s claim does not arise within the statute of limitations. Hence, the Court finds that she cannot be an adequate representative.