KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

4. Substitution of Class Representative

94. Kirola argues that any deficiencies in her standing as a class representative can be rectified by allowing class members who testified at trial to be substituted in her stead. Dkt. 662, 15:4-16:12. As support, Kirola cites several cases where courts permitted such a substitution where the class representative's claims became moot. E.g., United States Parole Comm'n v. Geraghty, 445 U.S. 388, 415 n.8 (1980) ("If the named plaintiff's own claim becomes moot after certification, the court can re-examine his ability to represent the interests of class members. Should it be found wanting, the court may seek a substitute representative or even decertify the class."); Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir. 1977) ("We reverse and remand for a ruling on the outstanding class certification motion, including a determination [of] whether Wade may remain as the class representative despite the mootness of his individual claim or whether putative class members with live claims should be allowed to intervene.").

95. The issue here is not mootness, however, but the lack of standing. As a result, substitution is not an appropriate solution to Kirola's lack of standing. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (finding that the class representative's lack of standing could not be cured by substituting in another class member as the named party, vacating the class certification, and remanding the case to the district court with instructions to dismiss). "[I]f a case has only one class representative and that party does not have standing, then the court lacks jurisdiction over the case and it must be dismissed; if the case only had this one class representative from the outset, then there is no opportunity for a substitute class representative to take the named plaintiff's place because this means that the court never had jurisdiction over the matter." Newberg on Class Actions § 2:8 (5th ed. 2013).

96. In view of the above, the Court concludes that Kirola cannot rectify her lack of standing by substituting additional class members as class representatives. In addition, permitting a substitution at this late stage of the proceeding would be prejudicial to the City and otherwise futile for the reasons discussed below.