Mandel v. Hafermann

• Decision Date: 30 November 2020
• Docket Number: Case No. 20-cv-03668-JSC
• Citation: 503 F.Supp.3d 946
• Court: U.S. District Court — Northern District of California
• Parties: Todd MANDEL, Plaintiff, v. Holly HAFERMANN, et al., Defendants.

503 F.Supp.3d 946

Todd MANDEL, Plaintiff,

v.Holly HAFERMANN, et al., Defendants.

Case No. 20-cv-03668-JSC

United States District Court, N.D. California.

Signed November 30, 2020

Andrew G. Deiss, Pro Hac Vice, Corey Drew Riley, Colleen Elizabeth Mooney, Pro Hac Vice, Deiss Law PC, Salt Lake City, UT, David A. DeGroot, Sheppard, Mullin, Richter & Hampton LLP, San Francisco, CA, for Plaintiff.

Marc S. Mazer, Andrew John Weill, Weill & Mazer, APC a Professional Corporation, San Francisco, CA, Brennan J. Curtis, Stephen C. Clark, Jones Waldo Holbrook & McDonough, Lesley A. Manley, Myriad Genetics Inc., Salt Lake City, UT, for DefendantsHolly Hafermann, Vanessa Ostovich, Elliott Taylor.

Casey Blair Sypek, Mille Sasha Frid, Miller Barondess LLP, Los Angeles, CA, Keith A. Call, Matthew B. Purcell, Snow Christensen & Martineau, Salt Lake City, UT, for DefendantsPaul Rothenberg, Rothenberg PC.

ORDER RE DEFENDANTS’ MOTIONS TO STRIKE AND MOTION TO DISMISS

Re: Dkt. Nos. 53, 54, 55

JACQUELINE SCOTT CORLEY, United States Magistrate Judge

Plaintiff in the above-captioned case brings state law claims against Holly Hafermann, Vanessa Ostovich, Elliott Taylor, Paul Rothenberg, and Rothenberg, P.C.Now before the Court are Defendants’ motions to strike pursuant to California Civil Procedure§ 425.16, as well as Ms. Hafermann's motion to dismiss Mr. Mandel's claims pursuant to Federal Rule of Civil Procedure 12(b)(6).After careful consideration of the parties’ briefing, and having had the benefit of oral argument on September 24, 2020, the Court GRANTS Ms. Hafermann's motion to strike, GRANTS in part and DENIES in part Mr. Rothenberg's motion to strike, and GRANTS in part and DENIES in part Ms. Hafermann's motion to dismiss.

BACKGROUND

I.Complaint Allegations

After being introduced in 2009, Mr. Mandel and Ms. Hafermann married in November 2012.In 2010, Ms. Hafermann, a professional singer and songwriter, hired Mr. Mandel to be her manager.The couple agreed that Mr. Mandel would manage Ms. Hafermann in exchange for a percentage of earnings from her performances and intellectual property.As Ms. Hafermann's career developed, the two formed two limited liability companies, Thunder Bay Touring ("TBT") and Psycho Killer Music ("PKM"), to help manage aspects of Ms. Hafermann's career and business; Mr. Mandel owned 40% of each, and Ms. Hafermann owned the remaining 60%.Mr. Mandel also formed Mandel Music Group, LLC("MMC"), of which he was the sole member.In 2012, Mr. Mandel hired Ms. Ostovich as an employee of MMC to act as Ms. Hafermann's personal assistant.From 2009 to 2017 Mr. Mandel and Ms. Hafermann lived together in Park City, Utah.

Mr. Taylor met Ms. Hafermann and Mr. Mandel in 2016, and the three developed a friendship.After meeting them, Mr. Taylor, a California resident, would visit Mr. Mandel and Ms. Hafermann in Utah.Sometime between late 2016 and mid-2017 Mr. Taylor and Ms. Hafermann began having an extramarital affair.In May 2017, Ms. Hafermann moved from the residence she shared with Mr. Mandel in Park City, Utah to St. Helena, California, where she began to live with Mr. Taylor.On June 12, 2017, Ms. Hafermann filed for divorce to end her marriage with Mr. Mandel.

Mr. Rothenberg is an entertainment attorney and the sole owner of Rothenberg, P.C.At all relevant times, Mr. Mandel alleges that Mr. Rothenberg served as legal counsel for Mr. Mandel, TBT, PKM, and MMC, as well as that Mr. Rothenberg often travelled to Park City, Utah to provide legal counsel to Mr. Mandel.Mr. Mandel additionally alleges that Mr. Rothenberg provided him with legal counsel during his divorce proceedings with Ms. Hafermann, and that until December 2017 Mr. Rothenberg gave constant legal advice to Mr. Mandel for management and publishing opportunities.

On September 26, 2017, Mr. Mandel and Ms. Hafermann settled their divorce in a mediation proceeding conducted in Salt Lake City, Utah.At the mediation, Mr. Mandel and Ms. Hafermann entered into a stipulation ("Divorce Stipulation") that outlined terms regarding Mr. Mandel's continued employment as Ms. Hafermann's manager, as well as percentages of Ms. Hafermann's revenue to which Mr. Mandel would be entitled.On November 6, 2017, a Utah state court entered the parties’ Decree of Divorce that incorporated the Divorce Stipulation's terms regarding Mr. Mandel's employment and compensation.

Following the entry of their Decree of Divorce, on December 5, 2017 Mr. Mandel and Ms. Hafermann met Mr. Rothenberg at his Los Angeles office to discuss business for 2018.At this meeting, Mr. Rothenberg discussed offers from publishing companies and potential cash advances regarding Ms. Hafermann's work.He also discussed renegotiating Mr. Mandel's management salary under the terms of the Divorce Stipulation.Mr. Mandel declined to renegotiate these terms.

On December 13, 2017, Ms. Hafermann, Ms. Ostovich, and Mr. Mandel attended a holiday party organized by Ms. Hafermann's record company.Mr. Taylor attended the event as well.Shortly after arriving and greeting Ms. Hafermann and Mr. Taylor, Mr. Mandel left the party after Ms. Ostovich offered to drive him to a friend's house.At approximately 9:46 p.m. that evening, Ms. Hafermann sent Mr. Mandel a text message apologizing for bringing Mr. Taylor to the holiday party.At approximately 10:52 p.m., Ms. Hafermann sent a second text message in which she asked if Mr. Mandel "threaten[ed][her] life and [Mr. Taylor's] life and sa[id]we have 2 hours?That's how I took it ... you have PI's, cameras in the house, and we have 2 hours."At approximately 12:08 a.m., Mr. Mandel replied:

Apology accepted.I do not appreciate you trying to instigate a scene and belittle me in front of our business peers tonight.I think you've had some drinks.I'm not sure why you are bringing hostility into this conversation.No one has threatened anyone.Tomorrow is a new day.I look forward to crushing it together!

On December 15, 2017, Ms. Hafermann initiated proceedings for a temporary restraining order ("TRO") against Mr. Mandel in Los Angeles Superior Court(the "TRO Proceeding").Ms. Hafermann filed a sworn statement in the TRO Proceeding that Mr. Mandel had been following and stalking her, hiding recording devices in her home, tracking her with a private investigator, and threatening her with violence.Ms. Ostovich additionally submitted a sworn statement in support of Ms. Hafermann's request for a TRO.That same day, the news site TMZ.com ("TMZ") published an article related to and describing the TRO Ms. Hafermann sought against Mr. Mandel, and Ms. Hafermann sent a letter of termination to Mr. Mandel, ending her management relationship with him and MMG.Los Angeles Superior Court issued the TRO against Mr. Mandel on December 15, 2017.¹

Mr. Mandel, believing this termination to be in violation of the Divorce Stipulation's terms, agreed to mediation with Ms. Hafermann on April 17, 2018 in Salt Lake City, Utah.Mr. Mandel alleges that during the course of the mediation, Ms. Ostovich broke into his home where she stole computer hard drives containing intellectual property in the form of songs.

II.Procedural History

On September 18, 2018, Mr. Mandel filed a complaint against Ms. Hafermann, Ms. Ostovich, Mr. Taylor in the Third Judicial Court, State of Utah("Utah State Court").(Dkt. No. 2-1at 2.)²Mr. Mandel then filed a first amended complaint ("FAC") in Utah State Court, adding Mr. Rothenberg and Rothenberg, P.C. as named defendants and bringing new claims against them.(Dkt. No. 2-1at 34).Mr. Rothenberg removed the complaint to the District of Utah on diversity grounds (Dkt. No. 2at 1), and shortly thereafter moved to dismiss for lack of personal jurisdiction; on that same day Ms. Hafermann, Ms. Ostovich, and Mr. Taylor filed a motion to change venue requesting the case be transferred to this District pursuant to 28 U.S.C. § 1404(a), as well as a Rule 12(b)(6) motion to dismiss.(Dkt. Nos. 10, 11, & 12.)Thereafter, the action was transferred to this Court.(Dkt. No. 40.)On July 2, 2020, Mr. Rothenberg and Ms. Hafermann filed motions to strike pursuant to California Code of Civil Procedure § 425.16, and Ms. Hafermann filed a Rule 12(b)(6) motion to dismiss.(Dkt. Nos. 53, 54, & 55.)The motions are fully briefed, and the Court held oral argument on the motions September 24, 2020.³

CHOICE OF LAW

This diversity case was transferred from the District of Utah under 28 U.S.C. § 1404(a); as such, this Court, the transferee court, must apply the choice-of-law rules of Utah, the state in which the transferor court sits.SeeFerens v. John Deere Co. , 494 U.S. 516, 519, 110 S.Ct. 1274, 108 L.Ed.2d 443(1990).Utah courts apply the "most significant relationship" test set forth in the Restatement (Second) of Conflict of Laws in "determining which state's laws should apply to a given circumstance."Waddoups v. Amalgamated Sugar Co. , 54 P.3d 1054, 1059(Utah2002).Under Utah law, "a choice of law analysis is preceded by a determination of whether there is a true conflict between the laws of those states that are interested in the dispute."One Beacon Am. Ins. Co. v. Huntsman Polymers Corp. , 276 P.3d 1156, 1165 n.10(Utah App.2012);see alsoAm. Nat. Fire Ins. Co. v. Farmers Ins. Exch. , 927 P.2d 186, 188(Utah1996)("Indeed, were it not for the ‘different rules of local law’ on the subject of insurance policy coverage, there would be no [choice-of-law] issue before us.").Where a conflict exists between the laws of interested states, the particular factors considered in determining the "most significant relationship" will "vary according to the type of action brought[.]"Waddoups , 54 P.3d at 1059."If no conflict exists, the court may apply Utah's law regardless of which state has the most significant relationship to the causes of action asserted in the complaint."Rupp v. Transcon. Ins. Co. , 627 F. Supp. 2d 1304, 1314(D. Utah2008)(citation omitted).

When determining what state...