Michael Mogan v. Airbnb Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 9, 2024
• Docket: 23-55489
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL MOGAN, No. 23-55489

Plaintiff-Appellant, D.C. No. 2:23-cv-00174-SB-JC v.

AIRBNB, INC.; O’MELVENY AND MEMORANDUM* MYERS LLP; DAWN SESTITO; DAMALI TAYLOR; DAVE WILLNER; JEFF HENRY; SANAZ EBRAHINI,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Submitted June 5, 2024** Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and RODRIGUEZ,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2). *** The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. Appellant Michael Mogan (“Mogan”), an attorney proceeding pro se, appeals

(1) the district court’s order granting Appellee Airbnb, Inc. (“Airbnb”) and Appellee

Dawn Sestito’s (“Sestito”) motion to strike Mogan’s claims under California’s Anti-

Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute and to

dismiss under Rule 12(b)(6), and (2) the district court’s order denying Mogan’s

motions for reconsideration and leave to amend. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

The present appeal is the latest chapter in a long history of litigation initiated

by Mogan against or related to Airbnb, either on behalf of himself or his client,

Veronica McCluskey, a former Airbnb host. Since 2017, Mogan, either on his own

behalf or on behalf of McCluskey, has initiated sixteen separate lawsuits all

stemming from a 2017 Airbnb dispute between McCluskey, her co-hosts, and

Airbnb.

In 2017, Mogan began representing McCluskey when her Airbnb account was

deactivated after an Airbnb investigation found she had violated Airbnb’s terms of

service and made defamatory statements about her Airbnb co-hosts. At first,

Mogan’s representation of McCluskey centered on the dispute between McCluskey

and her former co-hosts, William and Roxanne Hendricks. But Mogan’s

representation of McCluskey and his personal stake later expanded, spawning other

2 lawsuits against Airbnb, its employees, and Airbnb’s counsel for the deactivation of

McCluskey’s account and Airbnb’s litigation strategy.

Most importantly, Mogan, proceeding pro se, previously filed a wholly

separate suit in the Northern District of California in 2021 against Airbnb and its

employees, Dave Willner, Jeff Henry, and Sanaz Ebrahimi, as well as Sacks, Ricketts

& Case LLP and two of its attorneys (the “2021 Northern District Airbnb

Litigation”). In that case, Mogan asserted seven causes of action, including abuse of

process and intentional infliction of emotional distress (“IIED”), related to sanctions

obtained by Airbnb against Mogan in a prior state court litigation and Airbnb’s

alleged failure to pay arbitration fees. O’Melveny & Myers (“O’Melveny”),

specifically Sestito and Damali Taylor (“Taylor”), represented Airbnb and its

employees and secured both the dismissal of Mogan’s claims and Rule 11 sanctions

against Mogan. During that representation, O’Melveny filed an unsuccessful

vexatious-litigant motion. See Mogan v. Sacks, Ricketts & Case LLP, No. 21-cv-

08431-TSH, 2022 WL119212, at *5 (N.D. Cal. Jan. 12, 2022).

In January 2023, Mogan filed the instant suit against Airbnb and its

employees1 as well as O’Melveny and its attorneys, Sestito and Taylor (hereinafter

collectively, “Appellees”). In this suit, Mogan asserts that the filing of Appellees’

1 Mogan again named Dave Willner, Jeff Henry, and Sanaz Ebrahimi as defendants—though incorrectly referring to Ebrahimi as “Ebrahini” in his Complaint.

3 vexatious-litigant motion in the 2021 Northern District Airbnb Litigation amounted

to malicious prosecution and IIED. However, soon after Mogan filed this suit,

Airbnb and Sestito filed a motion to strike Plaintiff’s claims under California’s anti-

SLAPP statute and to dismiss under Rule 12(b)(6) (the “Anti-SLAPP Motion”).

After finding the matter suitable for decision without oral argument, the

district court granted the Anti-SLAPP Motion, dismissing Mogan’s claims for

malicious prosecution and IIED. In applying California’s anti-SLAPP framework,

the district court held that (1) Mogan’s claim arose from an “act in furtherance of a

person’s right of petition or free speech under the United States or California

Constitution in connection with a public issue,” (2) Mogan could not satisfy the

requisite elements of malicious prosecution given that claim rested on the vexatious-

litigant motion filed in the 2021 Northern District Airbnb Litigation, and (3)

Mogan’s IIED claim was barred by California’s litigation privilege. Moreover, as

Mogan was not the prevailing party, the district court declined to award him fees

pursuant to California Code of Civil Procedure § 425.16(c)(1).

Thereafter, Mogan filed a motion for reconsideration under Federal Rules of

Civil Procedure 59(e) and 60(b) and a motion for leave to amend his complaint to

add another defendant as well as a civil conspiracy claim. The district court denied

both motions. In doing so, the district court held, among other things, that (1) Mogan

4 had provided no proper basis for reconsideration and (2) Mogan’s proposed

amendments were futile. This appeal followed.

1. After a de novo review, this Court concludes that the district court properly

applied California’s anti-SLAPP statute in dismissing Mogan’s claims for malicious

prosecution and IIED. In seeking review, Mogan argues that (1) California’s anti-

SLAPP statute does not apply in federal court and, in any event, (2) the district court

erred in applying California’s anti-SLAPP statute. We address both arguments in

turn.

First, despite Mogan’s arguments to the contrary, California’s anti-SLAPP

statute applies in federal court. Though Mogan cites out-of-circuit authority to argue

the opposite, California’s anti-SLAPP statute plainly applies in federal court under

Ninth Circuit precedent. See CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136,

1141–44 (9th Cir. 2022) (holding that California’s anti-SLAPP statute applies in

federal court).

Second, the district court properly applied California’s anti-SLAPP statute in

dismissing Mogan’s claims as they rest on writings and statements made in civil

litigation, and Mogan cannot establish any probability that he will prevail on either

his malicious prosecution claim or his IIED claim because both claims fail as a

matter of law.

5 The application of California’s anti-SLAPP statute is a two-step process: (1)

a defendant must first “establish[] the plaintiff’s cause of action arises from the

defendant’s exercise of the right of petition or free speech,” and then (2) the plaintiff

must “establish that there is a probability that the plaintiff will prevail on the claim.”

Fashion 21 v. Coal. for Humane Immigrant Rts. of L.A., 117 Cal. App. 4th 1138,

1145 (2004), as modified on denial of reh’g (May 18, 2004) (cleaned up) (citing

CAL. CIV. PROC. CODE § 425.16(b)(1)).

Under the first step, Appellees have established that Mogan’s cause of action

arises from their exercise of the right to petition or free speech. In relevant part,

“statements, writings and pleadings in connection with civil litigation are covered

by the anti-SLAPP statute, and that statute does not require any showing that the

litigated matter concerns a matter of public interest.” Rohde v. Wolf, 154 Cal. App.

4th 28, 35 (2007); see also CAL. CIV. PROC. CODE § 425.16(e). “Numerous cases

have held that the SLAPP statute protects lawyers sued for litigation-related speech

and activity.” Thayer v. Kabateck Brown Kellner LLP, 207 Cal. App. 4th 141, 154

(2012), as modified (June 22, 2012). Here, Mogan premises his claims on a

vexatious-litigant motion filed by O’Melveny on behalf of Airbnb and its employees

in a separate suit, squarely falling within the ambit of the first step. See Flatley v.

Mauro, 39 Cal. 4th 299, 320 (2006).

6 Mogan contends that a narrow exception removes his claims from the first

step’s scope. According to Mogan, Appellees’ conduct in prior litigation “was illegal

and [thus] not constitutionally protected.” Id. at 317. Specifically, Mogan contends

that Airbnb allegedly procured false testimony in prior litigation to compel

arbitration and to conceal the late payment of arbitration fees. However, there are

two issues with Mogan’s position: (a) the challenged act underlying this suit is the

filing of the vexatious-litigant motion in the 2021 Northern District Airbnb

Litigation, not the alleged solicitation of false testimony; and (b) Mogan simply fails

to show that Appellees’ conduct was illegal as a matter of law. See id. at 320.

Accordingly, Mogan fails to demonstrate that this exception applies.

Under the second step, Mogan fails to state a plausible claim under Rule

12(b)(6), and his claims fail as a matter of law. To start, Mogan’s malicious

prosecution claim is improperly based on a subsidiary procedural motion filed in

other litigation. Though independent actions for declaratory relief and frivolous

cross-claims can give rise to malicious prosecution liability under California law, a

vexatious-litigant motion filed in other litigation will not support a malicious

prosecution claim. See Adams v. Superior Ct., 2 Cal. App. 4th 521, 528 (1992)

(“[S]ubsidiary procedural actions within a lawsuit such as an application for a

restraining order or for a lien will not support a claim of malicious prosecution.”).

Next, Mogan’s IIED claim fails as a matter of law as it is based on Appellees’

7 vexatious-litigant motion filed in the 2021 Northern District Airbnb Litigation. That

is, Mogan’s IIED claim is barred by California’s litigation privilege as it is based

wholly on Appellees’ litigation conduct. See Jacob B. v. Cnty. of Shasta, 40 Cal. 4th

948, 956 (2007); Flatley, 39 Cal. 4th at 323.

Though Mogan argues the illegality exception removes his IIED claim from

the ambit of California’s litigation privilege, Mogan fails to point to any illegal

conduct by Appellees in filing the vexatious-litigant motion. Instead, Mogan again

contends that Appellees procured false testimony in prior litigation. But Mogan’s

allegations do not remove his IIED claim from California’s litigation privilege. See

Flatley, 39 Cal. 4th at 322 (“The litigation privilege has been applied in ‘numerous

cases’ involving ‘fraudulent communication or perjured testimony.’”). In addition,

Mogan’s allegations are, as discussed above, simply irrelevant because his claims

here rest on the vexatious-litigant motion filed in the 2021 Northern District Airbnb

Litigation.2

2. As for Mogan’s challenge to the district court taking judicial notice of some

records, we find no error. “[A] court may take judicial notice of matters of public

2 Mogan also contends that the district court erred in failing to award him attorney’s fees under under California Code of Civil Procedure § 425.16(c) for those fees incurred in opposing the Anti-SLAPP Motion. However, as we conclude the district court properly granted the Anti-SLAPP Motion dismissing Mogan’s malicious prosecution and IIED claims, Mogan was not the prevailing party and thus was not entitled to attorney’s fees under California Code of Civil Procedure § 425.16(c).

8 record without converting a motion to dismiss into a motion for summary judgment.”

Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting Lee

v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). Though Mogan contends

the district court erred in judicially noticing court and arbitration records from

Mogan’s prior litigation history, those records are plainly noticeable. See Trigueros

v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (court documents); DeFiore v. SOC LLC,

85 F.4th 546, 553 n.2 (9th Cir. 2023) (arbitration awards and briefing). Of course,

while “a court cannot take judicial notice of disputed facts contained in [judicially

noticed] public records,” Khoja, 899 F.3d at 999, Mogan fails to demonstrate that

the district court relied on any such disputed fact in reaching its conclusion.

Nor did the district court abuse its discretion in forgoing oral argument and

deciding the Anti-SLAPP Motion on the briefs. Contrary to Mogan’s arguments, the

district court’s decision to forgo oral argument did not violate Mogan’s constitutional

or civil rights. Mogan does not have a constitutional right to oral argument. Toquero

v. I.N.S., 956 F.2d 193, 196 n.4 (9th Cir. 1992) (“[I]t is well settled that oral argument

is not necessary to satisfy due process.”). Further, though Mogan argues he was

entitled to oral argument as a “reasonable accommodation” as he has

“communications disabilities” and “health issues,” Mogan does not direct us to any

authority suggesting that Mogan’s alleged disabilities and health issues entitle him

to oral argument, and we have found none.

9 The district court also did not abuse its discretion in denying Mogan’s motion

for reconsideration. A motion for reconsideration can only be properly granted in

certain circumstances. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th

Cir. 1999) (“Under Rule 59(e), a motion for reconsideration should not be granted,

absent highly unusual circumstances, unless the district court is presented with

newly discovered evidence, committed clear error, or if there is an intervening

change in the controlling law.”); FED. R. CIV. P. 60(b); see also Delay v. Gordon, 475

F.3d 1039, 1044 (9th Cir. 2007). But Mogan never pointed to any proper grounds for

reconsideration; instead, Mogan improperly sought to reargue many of the same

arguments earlier made in opposition to the Anti-SLAPP Motion. See C.D. Cal. R.

7-18 (“No motion for reconsideration may in any manner repeat any oral or written

argument made in support of, or in opposition to, the original motion.”). The other

claimed bases for reconsideration—that other Defendants had failed to appear, that

another Defendant allegedly filed an untimely joinder to the Anti-SLAPP Motion,

and that Mogan was improperly deprived of oral argument—were meritless and did

not warrant reconsideration.

Nor did the district court abuse its discretion in denying Mogan leave to

amend his complaint. Mogan sought to add a frivolous civil conspiracy claim and to

add as another defendant the Airbnb in-house counsel that reviewed the vexatious-

litigant motion before it was filed. None of the proposed amendments would have

10 saved his malicious prosecution or IIED claims from dismissal, and the proposed

civil conspiracy claim would have failed as a matter of law as well. Steiner v.

Eikerling, 181 Cal. App. 3d 639, 643 (1986) (applying California’s litigation

privilege to bar a civil conspiracy claim). Therefore, the district court properly

denied Mogan’s motion for leave to file an amended complaint as his proposed

amendments were futile. See Partington v. Bugliosi, 56 F.3d 1147, 1162 (9th Cir.

1995) (“[A] district court may properly deny such a motion if it would be futile to

[amend].”).

AFFIRMED.