Tiffany Brinkley, on behalf of herself and others similarly situated, Plaintiff-Appellee,
Monterey Financial Services, Inc.; Monterey Financial Services, LLC, Defendants-Appellants.
and Submitted October 3, 2017
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
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.
Action Fairness Act
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.
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.
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.
D. Smith, Jr. Judge
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.
AND PROCEDURAL BACKGROUND
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 ...