503 F.Supp.3d 946
N.D. Cal.2020Background
- Mandel managed Hafermann (married 2012), they formed TBT and PKM (Mandel 40%); Divorce Stipulation (2017) setting Mandel’s post‑divorce management/compensation terms was incorporated into the Utah Divorce Decree.
- In Dec. 2017 Hafermann filed for a TRO in Los Angeles claiming stalking/threats; sworn statements (by Hafermann and Ostovich) and media notice (TMZ) followed; Hafermann terminated Mandel’s management.
- Mandel alleges Ostovich stole computer hard drives containing songs during an April 2018 Utah mediation; he asserts multiple state‑law claims against Hafermann, Ostovich, Taylor, and attorney Rothenberg (and Rothenberg, P.C.).
- Rothenberg removed to Utah; case transferred to N.D. Cal.; Hafermann and Rothenberg moved under California’s anti‑SLAPP statute §425.16; Hafermann also moved to dismiss under Rule 12(b)(6).
- Court applied Utah choice‑of‑law rules (most significant relationship); concluded California anti‑SLAPP law governs many claims tied to the California TRO proceeding, and resolved (1) anti‑SLAPP motions and (2) Rule 12(b)(6) challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law for torts arising from TRO and related publicity | Mandel contends injuries occurred in Utah (his domicile) so Utah law should govern | Defendants argue the conduct causing injury (filing statements, notifying media) occurred in California so CA law/anti‑SLAPP applies | Court applied Utah choice‑of‑law rules and held California law/anti‑SLAPP applies to claims tied to the California TRO, because conduct occurred in CA and was connected to CA proceedings |
| Whether statements in the TRO proceeding and related communications are protected petitioning/speech under §425.16 step one | Mandel contends some publications were outside the litigation and not protected | Defendants say the sworn statements and communications were in connection with judicial proceedings and thus protected | Court: defendants made prima facie showing; statements in or connected to the TRO proceeding are protected activity under §425.16(e) |
| Whether litigation privilege/federal procedure defeat defamation/false‑light/abuse of process/malicious prosecution claims | Mandel argues press publications and some out‑of‑court statements fall outside the privilege | Defendants invoke the litigation privilege and say privilege bars liability as a matter of law | Court: litigation privilege applies to statements made in or connected to the TRO; those claims dismissed under Rule 12(b)(6) but with leave to amend |
| Rothenberg: anti‑SLAPP re defamation/false light and other torts; breach/fiduciary claims | Mandel says Rothenberg breached fiduciary/contract duties (non‑protected) and conspired, so anti‑SLAPP should fail | Rothenberg contends his advice and communications as counsel are petitioning/protected and subject to litigation privilege | Court: anti‑SLAPP granted as to defamation/false light and many torts (litigation privilege). But Rothenberg did not meet step one as to breach of contract and breach of fiduciary duty (those survive the strike motion) |
| Whether the Divorce Stipulation is an enforceable independent contract | Mandel treats the Stipulation as a private contract entitling him to relief for breach | Hafermann says the Stipulation was incorporated into the Divorce Decree and later vacated by the Utah court—it’s a court order, not an independent contract | Court: Stipulation was part of the Divorce Decree (a court order), not a standalone contract; breach/related contract claims dismissed (leave to amend) |
| Claims for theft and conversion (hard drives) | Mandel alleges physical hard drives containing songs were stolen at Utah mediation | Defendants seek dismissal or argue intellectual property (intangible) not subject to conversion | Court: conversion/theft claims as to physical hard drives survive; they are properly pleaded |
| Alienation of affection against Taylor | Mandel alleges Taylor intentionally alienated Hafermann’s affections harming him | Taylor contends choice‑of‑law/insufficient facts as to Utah conduct | Court: Utah law applies and motion to dismiss alienation claim denied (claim survives) |
| IIED, NIED, IIER, conspiracy claims | Mandel asserts emotional distress, interference, and conspiracy based on the same facts (TRO, termination, theft) | Defendants argue privilege, failure to plead outrageous/wrongful conduct, and insufficient factual detail | Court: these claims were dismissed (often with leave to amend) because of privilege, conclusory pleading, or failure to allege requisite elements |
Key Cases Cited
- Ferens v. John Deere Co., 494 U.S. 516 (1990) (transferee court applies transferor forum's choice‑of‑law rules)
- Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) (purpose of California anti‑SLAPP statute)
- Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828 (9th Cir. 2018) (standard for anti‑SLAPP motions in federal court; distinguish legal vs factual challenges)
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (anti‑SLAPP burden shifting and analysis)
- Rohde v. Wolf, 154 Cal. App. 4th 28 (2007) (statements in connection with litigation are covered by anti‑SLAPP)
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (California litigation privilege elements)
- Neville v. Chudacoff, 160 Cal. App. 4th 1255 (2008) (communications to nonparties in connection with anticipated litigation are protected)
- Thayer v. Kabateck Brown Kellner LLP, 207 Cal. App. 4th 141 (2012) (attorneys' communicative acts in litigation contexts are per se protected)
- Verizon Delaware, Inc. v. Covad Commc’ns Co., 377 F.3d 1081 (9th Cir. 2004) (anti‑SLAPP dismissal without leave to amend conflicts with Rule 15; leave to amend required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard—courts need not accept conclusory allegations)