In Melendez v. CACH, LLC, 2012 WL 4902687 (N.D.Cal. 2012), Judge Wilken found the “continuing violation” theory for FDCPA statute of limitations purposes inapplicable outside on-going telephone call cases.
The Attorney Defendants, Laskin Law Offices, CACH and SquareTwo contend that the FDCPA claim is barred by the one-year statute of limitations pursuant to 15 U.S.C. § 1692k(d). Under Ninth Circuit authority, when the alleged violation of the FDCPA is the filing of a lawsuit, the statute of limitations begins to run on the filing of the complaint in state court. Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997) (“Filing a complaint is the debt collector’s last opportunity to comply with the Act, and the filing date is easily ascertainable.”) ¶ The gravamen of Plaintiff’s FDCPA claim is to challenge the filing and prosecution of the CACH v. Melendez action in state court. Plaintiff alleges that this collection action was a form lawsuit used by Defendants CACH and Laskin Law Offices to collect consumer debts. 2AC ¶ 30. As such, Plaintiff alleges there was no meaningful professional involvement by an attorney in reviewing the “Ligia Melendez” file and drafting and filing that complaint. 2AC ¶ 30. Plaintiff alleges that the bringing of a form lawsuit without meaningful involvement by an attorney violates 15 U.S.C. § 1692e(2)(A). Id. Because the CACH v. Melendez action was filed on February 14, 2008, 2AC ¶ 29, Plaintiff’s FDCPA claim, alleged in her original complaint filed October 25, 2010, is untimely. ¶ Plaintiff argues that the continuing violation doctrine tolls the statute of limitations, citing Joseph v. J.J. Mac Intyre Companies, LLC, 281 F.Supp.2d 1156, 1160 (N.D.Cal.2003). There, the court applied the continuing violation doctrine because the plaintiff alleged a pattern of repeated harassing phone calls in violation of the FDCPA and Rosenthal Act. The Joseph court limited its holding, applying the contin-uing violation doctrine to debt collection claims under “appropriate circumstances” such as the pattern of repeated calls alleged there, and did not discuss Naas. 281 F.Supp.2d at 1161. Plaintiff’s FDCPA claim, by contrast, alleges that the filing of the CACH v. Melendez lawsuit, a discrete act, constituted the FDCPA violation. With respect to CACH’s motion for sanctions, filed on November 5, 2009, the motion was filed in the CACH v. Melendez action and was not a separate lawsuit or collection effort so as to trigger a new limitations period. See 2AC ¶ 88. As such, the FDCPA claim is time-barred under Naas. ¶ Plaintiff also argues that the discovery rule and equitable tolling for fraudulent concealment should be applied to her untimely FDCPA claim here, but cites no authority applying that tolling doctrine to the FDCPA where the claim is based on the filing of a collection action. Pl.’s Opp. to Laskin Law Offices Mot. Dismiss at 9–11 (citing Norman–Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1268 (9th Cir.1998) (reversing entry of summary judgment on statute of limitations grounds where the district court erred in holding as a matter of law that the plaintiffs knew or had reason to know of the nature of medical tests for syphilis, sickle cell trait, and pregnancy, as a result of their submission to preemployment medical examinations)). ¶ Plaintiff further contends that the class action tolling doctrine should apply to her FDCPA claim because the filing of the Cole class action “must nec-essarily have given reasonable notice to the Defendants” about Plaintiff’s potential claims challenging the Kunkle Affidavit. Pl.’s Opp. to Laskin Law Office Mot. Dismiss at 9–12. See Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir.1985) (commencement of a class action tolls the applicable statute of limitations for all members of the class until class certification is denied). Plaintiff does not contend that either the Laskin Law Offices or any of the Attorney Defendants were parties to the Cole litigation. Nor does Plaintiff allege that SquareTwo was a party to the Cole class action. Plaintiff alleges that CACH is bound by the settlement agreement entered in Cole as a party to that action. 2AC ¶ 65. However, CACH demonstrates that it did not become a party to the Cole class action until March 9, 2009, after the limitations period on Plaintiff’s FDCPA claim had already expired on February 14, 2009. CACH Mot. at 5 and RJN Exs. 13–15. (Docket No. 81.) Plaintiff does not contend otherwise. Thus, Plaintiff fails to demonstrate that the class action tolling doctrine would toll her individual FDCPA claim. ¶ The motions of Laskin Law Offices, the Attorney Defendants, CACH and SquareTwo to dismiss the FDCPA claim as time-barred are therefore granted. Because amendment of the time-barred claim would be futile, the FDCPA claim is dismissed without leave to amend.