NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                          NOV 6 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

STEPHEN PERRY, an individual,                     No.   19-55411

                Plaintiff-Appellee,               D.C. No.
                                                  2:18-cv-09543-JFW-SS
 v.

PHIL BROWN, an individual,                        MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                      Argued and Submitted October 18, 2019
                               Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BATAILLON,**
District Judge.

      Phil Brown appeals the district court’s denial of his anti-SLAPP and Rule

12(b)(2) motions challenging Steve Perry’s California right-of-publicity claims and

the district court’s personal jurisdiction, and the district court’s imposition and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
extension of a temporary restraining order (“TRO”). We have jurisdiction under

28 U.S.C. §§ 1291 and 1292(a)(1). We affirm, but remand for the district court to

promptly hold a hearing and issue findings concerning Perry’s request for a

preliminary injunction.

      1. Although we generally lack jurisdiction over temporary restraining

orders, “an order that does not possess the essential features of a temporary

restraining order will be treated like a preliminary injunction.” Bennett v.

Medtronic, Inc., 

, 804 (9th Cir. 2002). The initial ex parte TRO lasted

only 14 days and thus was not appealable. 

court’s three-month

extension in March, however, had a duration six times the length of an ordinary

TRO and was made after notice and briefing in opposition by Brown. It is

therefore appealable. See id.; SEIU v. Nat’l Union of Healthcare Workers, 

, 1067 (9th Cir. 2010).

      2. In appeals of preliminary injunctions, we have pendent jurisdiction to

review personal jurisdiction properly challenged in the district court. Hendricks v.

Bank of Am., N.A., 

, 1134–35 (9th Cir. 2005). The district court did

not err in determining that it had personal jurisdiction over Brown. We apply

California’s long-arm statute permitting jurisdiction to the full extent of the

Constitution. Schwarzenegger v. Fred Martin Motor Co., 

, 800–01

(9th Cir. 2004); Cal. Civ. Proc. Code § 410.10. Because the motion was decided


                                           2
on written materials, Perry must put forth only a “prima facie showing of personal

jurisdiction,” and we review the district court’s determination de novo.

(quoting Caruth v. Int’l. Psychoanalytical Ass’n,

, 128 (9th Cir. 1995)). Specific personal jurisdiction requires

purposeful availment or direction of the defendant’s activities towards the forum;

that the claim relate to the defendant’s forum-related activities; and that the

exercise of jurisdiction be reasonable. 

In the tort context, purposeful

direction in turn requires that a defendant “have (1) committed an intentional act,

(2) expressly aimed at the forum state, (3) causing harm that the defendant knows

is likely to be suffered in the forum state.” Washington Shoe Co. v. A-Z Sporting

Goods Inc., 

, 673 (9th Cir. 2012) (quoting Marvis Photo Inc. v. Brand

Techs., Inc., 

, 1228 (9th Cir. 2011)).

      Perry has established the first two prongs of specific jurisdiction. Brown

purposefully directed his actions at California by targeting Perry, whom he knew to

be a California resident, through the use of Perry’s name and likeness in proximity

to advertisements of Brown’s band and CD. See 

And Brown’s

actions were based on his claimed right to exploit the 1991 works that he

participated in writing and recording with Perry in California, two of which are the

subject of a contract executed in California. These actions “create a substantial

connection with California” that satisfies the requirements of personal jurisdiction.


                                           3
Walden v. Fiore, 

(2014); see also Axiom Foods, Inc. v. Acerchem

Int’l, Inc., 

, 1070 (9th Cir. 2017).1

      Because the first two prongs are satisfied, the burden shifts to Brown to

make “a compelling case” that specific jurisdiction would be unreasonable under a

seven-factor test. Dole Food Co. v. Watts, 

, 1114 (9th Cir. 2002)

(quoting Burger King Corp. v. Rudzewicz, 

, 477 (1985)). We

conclude he has not presented such a case, because the balance of the factors is at

best equivocal. Brown lived for many years in California before moving to

Tennessee and directing his actions toward a California resident. The underlying

works at issue were written and recorded in California and the related contracts

were executed in California. Excepting that Brown is now a Tennessee resident,

nothing about the internet postings makes Tennessee’s location particularly

important to the litigation. Any inconvenience to Brown does not outweigh his

purposeful direction to California and the 1991 California works at issue.

      3. The district court did not err in denying Brown’s anti-SLAPP motion to

strike Perry’s California right-of-publicity claims. Brown asserts only affirmative

defenses to the right-of-publicity claims and so bears the burden of proof. Davis v.


      1
         These actions also constitute “purposeful availment” for the purposes of
Perry’s declaratory judgment claim, which would bring with it “pendent personal
jurisdiction over any remaining claims that arise out of the same ‘common nucleus
of operative facts,’” including here Perry’s other claims. Picot v. Weston, 

, 1211 (9th Cir. 2015).

                                          4
Elec. Arts, Inc., 

, 1177 (9th Cir. 2015). Because these defenses raise

issues of fact, Brown must establish his defense as a matter of law. Id.; see also

Hilton v. Hallmark Cards, 

, 910 (9th Cir. 2010).

      Here, there is a factual issue as to whether Brown created the false

impression that Perry has endorsed Brown’s band. That issue prevents Brown

from prevailing as a matter of law. See Cher v. Forum Int’l, Ltd., 

,

638–40 (9th Cir. 1982); Montana v. San Jose Mercury News, Inc., 

, 797 (1995).2

      4. The district court’s extension of the TRO for three months over Brown’s

objection, without issuing findings of fact and conclusions of law, was

procedurally improper. See Fed. R. Civ. P. 52(a)(2), 65(b)(2); FTC v. Enforma

Nat. Prods., Inc., 

, 1212 (9th Cir. 2004). While this appeal was

pending, however, the parties stipulated to extend the TRO and stay the case and

the preliminary-injunction hearing pending this appeal. See Fed. R. Civ. P.

65(b)(2) (allowing the extension of a TRO “for good cause” or when “the adverse

party consents”). We thus remand for a proper hearing on the application for a



      2
         Brown also makes an argument about Lanham Act fair use, but we lack
jurisdiction to consider it. Hallmark 

–01. To the extent
Brown seeks to import the Lanham Act test into the California right of publicity
context, he cites no authority to do so, and in any event that test carves out an
exception for acts that suggest “endorsement by the trademark holder.” Cairns v.
Franklin Mint Co., 

, 1154 (9th Cir. 2002).

                                          5
preliminary injunction but decline to vacate the TRO in the interim.3

         On remand, unless the parties otherwise agree, the district court is instructed

to hold a preliminary-injunction hearing “at the earliest possible time, taking

precedence over all other matters except hearings on older matters of the same

character,” Fed. R. Civ. P. 65(b)(3), and to “state the findings and conclusions that

support its action” on the record, Fed. R. Civ. P. 52(a)(2).

AFFIRMED; REMANDED with instructions. Each party shall bear its own

costs.




         3
        Normally, a “failure to comply with Rule 52(a) does not require reversal
unless a full understanding of the question is not possible without the aid of
separate findings.” Enforma Nat. 

. Here, Brown has
waived his challenge to the merits of the injunctive relief issue by failing to brief it.
See Padgett v. Wright, 

, 985 n. 2 (9th Cir. 2009).

                                            6