                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 TIFFANY BRINKLEY, on behalf of                  No. 17-56335
 herself and others similarly situated,
                     Plaintiff-Appellee,           D.C. No.
                                                3:16-cv-01103-
                     v.                          WQH-WVG

 MONTEREY FINANCIAL SERVICES,
 INC.; MONTEREY FINANCIAL                          OPINION
 SERVICES, LLC,
             Defendants-Appellants.



        Appeal from the United States District Court
          for the Southern District of California
        William Q. Hayes, District Judge, Presiding

           Argued and Submitted October 3, 2017
                   Pasadena, California

                    Filed October 20, 2017

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

            Opinion by Judge Milan D. Smith, Jr.

    *
      The Honorable Diana Gribbon Motz, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by
designation.
2        BRINKLEY V. MONTEREY FINANCIAL SERVS.

                          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

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
        BRINKLEY V. MONTEREY FINANCIAL SERVS.               3

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.


                        COUNSEL

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.


                         OPINION

M. SMITH, Circuit 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.
4       BRINKLEY V. MONTEREY FINANCIAL SERVS.

    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 Business and Professions Code § 17200, et seq.
She brought her first and third claims on behalf of a class of

       [a]ll persons who, while physically located or
       residing in California and Washington, made
       or received one or more telephone calls with
       [Monterey] during the four year period
       preceding the filing of this lawsuit (the “Class
       Period”) and did not receive notice at the
       beginning of the telephone call that their
       telephone conversation may be recorded or
       monitored[.]

    On May 6, 2016, Monterey removed this action to
federal district court. Brinkley then moved to remand the
case back to California state court pursuant to CAFA’s
home-state       controversy    exception,    28     U.S.C.
§ 1332(d)(4)(B). The district court delayed ruling on
Brinkley’s motion, and ordered jurisdictional discovery.

    Following a series of discovery disputes regarding
Monterey’s records, the parties conducted two telephonic
conferences with the assigned magistrate judge. The
magistrate judge subsequently ordered Monterey to produce
a list of all putative California and Washington class
members. Brinkley did not appeal this order. Purportedly
complying with the order, Monterey produced a list of over
        BRINKLEY V. MONTEREY FINANCIAL SERVS.                5

152,000 persons who had recorded calls with Monterey
between October 15, 2009, and May 6, 2016, and had a
California or Washington mailing address.

    Statistician Dr. James Lackritz, hired by Brinkley,
analyzed the list produced by Monterey and segregated a
random sample of individuals included in that list. Monterey
challenged Dr. Lackritz’s analysis because he did not limit
his analysis to individuals who had telephonic contact with
Monterey before the class period ended on October 15, 2013.
In response, Dr. Lackritz submitted a supplemental report
purporting to be limited to individuals who made or received
at least one call with Monterey during the defined class
period. Dr. Lackritz’s report contained no evidence of
individuals who were physically located in, but were not
residents of, California or Washington when they made or
received a phone call with Monterey.

    On March 23, 2017, the district court granted Brinkley’s
motion to remand this case to California state court. Based
on Dr. Lackritz’s analysis, the district court found that at
least two-thirds of class members are California citizens.
Monterey timely moved for permission to appeal pursuant to
28 U.S.C. § 1453(c)(1). On September 5, 2017, we granted
Monterey’s request for permission to appeal.

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction to review a district court’s remand
order pursuant to 28 U.S.C. § 1453(c)(1). We review a
district court’s remand order de novo. Jordan v. Nationstar
Mortg. LLC, 781 F.3d 1178, 1181 (9th Cir. 2015). We
review the “‘construction, interpretation, or applicability’ of
CAFA de novo.” Washington v. Chimei Innolux Corp.,
659 F.3d 842, 847 (9th Cir. 2011) (quoting Bush v.
Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005)).
6          BRINKLEY V. MONTEREY FINANCIAL SERVS.

                               ANALYSIS

    Congress passed CAFA with the “overall intent . . . to
strongly favor the exercise of federal diversity jurisdiction
over class actions with interstate ramifications.” S. Rep. No.
109-14, at 35 (2005). CAFA vests federal courts with
original diversity jurisdiction over class actions where
(1) the aggregate amount in controversy exceeds
$5,000,000; (2) any class member is a citizen of a state
different from any defendant; and (3) there are at least 100
class members. 28 U.S.C. § 1332(d)(2), (5)(B). However,
CAFA also contains some exceptions which require the
district court to decline to exercise jurisdiction and remand
the matter to state court. See id. § 1332(d)(4). The party
seeking remand to state court bears the burden of proving
that a CAFA exception applies. See Serrano v. 180 Connect,
Inc., 478 F.3d 1018, 1024 (9th Cir. 2007).

    Under the home-state controversy exception, a district
court must decline to exercise jurisdiction where “two-thirds
or more of the members of all proposed plaintiff classes in
the aggregate, and the primary defendants, are citizens of the
State in which the action was originally filed.” 1 28 U.S.C.
§ 1332(d)(4)(B). To meet this burden, the moving party
must provide “some facts in evidence from which the district
court may make findings regarding class members’
citizenship.” Mondragon v. Capital One Auto Fin., 736 F.3d
880, 884 (9th Cir. 2013); see Coleman v. Estes Express
Lines, Inc., 631 F.3d 1010, 1017 (9th Cir. 2011) (“Fact-
finding is ‘necessitated by the existing jurisdictional
statutes’ on questions of citizenship . . . .” (quoting S. Rep.
No. 109-14, at 44)). While this “jurisdictional finding of fact
should be based on more than guesswork,” a court may

    1
        The parties do not dispute that Monterey is a citizen of California.
        BRINKLEY V. MONTEREY FINANCIAL SERVS.               7

“make reasonable inferences from facts in evidence.”
Mondragon, 736 F.3d at 884, 886. The district court makes
these factual findings under a preponderance of the evidence
standard. Id. at 884.

    In order to determine whether two-thirds of class
members are California citizens, we must first determine the
size of the class as a whole. See Arbuckle Mountain Ranch
of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 339
(5th Cir. 2016) (“The class definition issue is critical to
determine whether the local controversy exception
applies.”). Here, Brinkley’s class consists of all individuals
who made or received a telephone call with Monterey “while
physically located or residing in California and
Washington.” By its terms, the class includes individuals
who were physically located in, but were not residents of,
California or Washington when they made or received a call
with Monterey (the “located in” subgroup).

    During jurisdictional discovery the court ordered
Monterey to produce a list of putative California and
Washington class members, and Brinkley requested a list of
putative class members. Monterey replied that it would “not
produce documents or information in response to the request
as propounded” and produced a document “which contains
a list of Monterey accounts listing California and
Washington street addresses with respect to which accounts
telephone calls (to and/or from) were recorded between
October 15, 2009 and May 6, 2016.” Brinkley relied on Dr.
Lackritz’s analysis of the list produced by Monterey in her
attempt to prove that two-thirds of all class members are
California citizens. That list addresses only a portion of the
class—those who were “residing in California and
Washington” when they made or received a call with
Monterey. It does not address, or contain information about,
8       BRINKLEY V. MONTEREY FINANCIAL SERVS.

the size of the “located in” subgroup. Brinkley never sought
more information about the size of the class after she
obtained Monterey’s list, never appealed the magistrate
judge’s discovery order, and never argued that the list did
not comply with the discovery order. Thus, even if
Monterey had information about the “located in” subgroup,
Brinkley did not pursue this information during discovery.

    Brinkley did not submit any evidence regarding the
“located in” subgroup. Without knowing the size of this
subgroup, the size of the entire class is unknown. That is,
absent “some facts in evidence” regarding the size of the
entire class, the district court cannot determine whether two-
thirds of all class members are California citizens. See
Mondragon, 736 F.3d at 884; see also 28 U.S.C.
§ 1332(d)(4)(B) (home-state controversy exception requires
two-thirds of “all proposed plaintiff classes in the aggregate”
to be in-state citizens). Brinkley therefore has not met her
burden to show that the home-state controversy exception
applies. Mondragon, 736 F.3d at 884, 886 (vacating remand
order where the plaintiff “failed to satisfy his burden of
proof” that two-thirds of all class members were California
citizens).

    Brinkley was also on notice of her class definition
problem. During the telephonic discovery conferences,
Monterey informed the court and Brinkley that Brinkley’s
class definition was problematic because it included the
“located in” subgroup, and Monterey could not identify who
fell within that subgroup. Despite Monterey’s comments
alerting Brinkley to this class definition issue, Brinkley did
not attempt to resolve it during discovery. Simply stated, the
class definition issue is “of [Brinkley’s] own making.” See
id. at 885.
         BRINKLEY V. MONTEREY FINANCIAL SERVS.                     9

    Brinkley alternatively argues that her class definition
problem is a red herring because Monterey fails to identify a
single non-California or Washington citizen whose
telephone conversation it recorded. This argument misstates
the burden of proof in CAFA exception cases. The burden
is not on Monterey to prove the inapplicability of a CAFA
exception. Rather, the burden is on Brinkley, as the party
seeking remand, to prove the applicability of a CAFA
exception. See Serrano, 478 F.3d at 1021–22.

    A plaintiff cannot remand an otherwise valid CAFA case
to state court when only a portion of the class meets the two-
thirds citizenship requirement.            See 28 U.S.C.
§ 1332(d)(4)(B). This is what Brinkley seeks to do here—
remand a class action based on evidence of only some class
members’ citizenship. 2 The size of the entire class is
unknown and Brinkley has failed to prove that two-thirds of
class members are California citizens because there is 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. Cf.
Mondragon, 736 F.3d at 884 (“A complete lack of evidence
does not satisfy [the preponderance of the evidence] standard
[for factual findings regarding CAFA jurisdiction].”).

                        CONCLUSION

    We vacate the district court’s order remanding this action
to California state court, and remand this action to the district
court for further proceedings.

    2
      Because the size of the class is unknown, we need not address
whether the residential and mailing addresses Brinkley submitted
constitute prima facie evidence of citizenship for purposes of a CAFA
exception.
10     BRINKLEY V. MONTEREY FINANCIAL SERVS.

   Costs are to be taxed against the appellee Tiffany
Brinkley.

     VACATED AND REMANDED.
