                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 02 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WADE GRANT, on behalf on himself, all            No. 11-56200
other persons similarly situated and the
general public,                                  D.C. No. 3:10-cv-02471-WQH-
                                                 BGS
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

CAPITAL MANAGEMENT SERVICES,
L.P.,

              Defendant - Appellant.


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

                           Submitted August 31, 2011**
                              Pasadena, California

Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

       Capital Management Services, L.P. appeals from the district court’s order

granting Wade Grant’s motion to remand his class complaint alleging causes of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                          -2-
action under the federal Telephone Consumer Protection Act (47 U.S.C. § 227 et

seq.) and the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200

et seq.). We have jurisdiction pursuant to 28 U.S.C. § 1453(c)(1). We reverse.

      Because neither the size of the proposed class nor the total amount in

controversy was apparent from the face of the class complaint, CMS need only

show by a preponderance of the evidence that Grant’s action places more than

$5,000,000 in controversy and implicates a class with greater than 100 members.

See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007).

      The TCPA prohibits persons from (1) making “any call,” (2) “using any

automatic telephone dialing system or an artificial or prerecorded voice,” (3) “to

any telephone number assigned to a . . . cellular telephone service . . . .” See 47

U.S.C. § 227(b)(1)(A).1 CMS submitted the Florczak declaration which stated that

a review of the company’s databases by its executive vice president of information

technology using technology designed to distinguish cell phone numbers from land

lines had revealed that CMS had (1) made over 10,000 calls to numbers assigned to

      1
         Calls otherwise in violation of the TCPA are not unlawful if made “for
emergency purposes or made with the prior express consent of the called party,” 47
U.S.C. § 227(b)(1)(A); however, “express consent” is not an element of a TCPA
plaintiff’s prima facie case, but rather is an affirmative defense for which the
defendant bears the burden of proof. See 23 F.C.C.R. 559, 565 (Dec. 28, 2007)
(“[W]e conclude that the creditor should be responsible for demonstrating that the
consumer provided prior express consent.”).
                                         -3-
California cell phones and (2) placed calls to more than 1,000 phone numbers

identified with a unique debtor residing in California. ER 10-11, 13-15. Given

that Grant’s complaint alleges that each call in violation of the TCPA would incur

no less than $500 in damages and that CMS presented evidence establishing that it

made over 10,000 calls to cellular phone numbers, CMS has shown that Grant “is

seeking recovery from a pot that . . . could exceed $5 million and [Grant] has

neither acknowledged nor sought to establish that the class recovery is potentially

any less.” Lewis v. Verizon Communications, Inc., 627 F.3d 395, 401 (9th Cir.

2010); Chabner v. United of Ohama Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th

Cir. 2000) (noting that courts may consider statutory damages, including treble

damages, for purposes of calculating amount in controversy). By presenting the

Florczak declaration and its addendum, CMS has “explained plausibly how the

stakes exceed $5 million” and how the proposed class exceeds 100 members.

Lewis, 627 F.3d at 401 (quoting Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir.

2008)).

      In remanding the case due to CMS’s failure to present evidence that it used

an automated dialing system in connection with the calls averred to in the Florczak

delcaration, the district court effectively required that CMS admit liability under

the TCPA to remove the case to federal court—a result that is incompatible with
                                         -4-
Lewis. See 627 F.3d at 400 (holding that a party “need not concede liability” to

remove a case to federal court under CAFA.) In the absence of any evidence to

the contrary from Grant, CMS presented sufficient evidence to carry its burden of

proving that Grant’s action satisfied CAFA’s numerosity and amount in

controversy requirements and the district court erred in ruling otherwise.

      We therefore reverse and remand to the district court for further proceedings

consistent with this disposition.

      REVERSED.
