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Brinkley v. Monterey Financial Services, Inc.

United States Court of Appeals, Ninth Circuit

October 20, 2017

Tiffany Brinkley, on behalf of herself and others similarly situated, Plaintiff-Appellee,
v.
Monterey Financial Services, Inc.; Monterey Financial Services, LLC, Defendants-Appellants.

          Argued and Submitted October 3, 2017

         Appeal from the United States District Court No. 3:16-cv-01103-WQH-WVG for the Southern District of California William Q. Hayes, District Judge, Presiding

          William P. Cole (argued) and Matthew R. Orr, Call & Jensen APC, Newport Beach, California, for Defendants-Appellants.

          Patrick N. Keegan (argued) and James M. Treglio, Keegan & Baker LLP, Carlsbad, California; Steven A. Wickman and Christina E. Wickman, Wickman & Wickman, Escondido, California; for Plaintiff-Appellee.

          Before: DIANA GRIBBON MOTZ, [*] MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.

         SUMMARY[**]

         Class Action Fairness Act

         The panel vacated the district court's order granting plaintiff's motion to remand her putative class action to California state court, and remanded the action to the district court for further proceedings.

         Plaintiff brought a putative class action in California state court alleging that Monterey Financial Services Company recorded or monitored its telephone conversations with plaintiff without giving her notice. Monterey removed the action to federal court and plaintiff moved to remand the case back to California state court pursuant to the Class Action Fairness Act's home-state controversy exception, 28 U.S.C. § 1332(d)(4)(B). Based on the statistical evidence presented, the district court found that at least two-thirds of class members were California citizens, and therefore the district court granted plaintiff's motion.

         The panel held that a plaintiff could not remand an otherwise valid Class Action Fairness Act case to state court when only a portion of the class meets the two-thirds citizenship requirement. The panel determined that this was what plaintiff sought to do here-remand a class action based on evidence of only some class members' citizenship. The panel held that the size of the entire class was unknown and plaintiff failed to prove that two-thirds of class members were California citizens because there was no evidence regarding the citizenship of class members who made or received a phone call from Monterey while located in, but not residing in, California or Washington.

          OPINION

          Milan D. Smith, Jr. Judge

         Monterey Financial Services, Inc. and Monterey Financial Services, LLC (collectively, Monterey) appeal the district court's grant of Tiffany Brinkley's (Brinkley) motion to remand this class action to California state court. We conclude that Brinkley did not meet the requirements of the Class Action Fairness Act's (CAFA) home-state controversy exception because she did not prove that two-thirds of all class members are California citizens. We therefore vacate the district court's remand order, and remand to that court for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         Monterey, a financial services company, allegedly recorded or monitored its telephone conversations with Brinkley without giving her notice. On October 15, 2013, Brinkley brought this action in California state court against Monterey, alleging (1) invasion of privacy in violation of California and Washington state law; (2) unlawful recording of telephone calls under California law; and (3) violation of California ...


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