Michael Mogan v. William Hendricks

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2024
• Docket: 23-55691
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL MOGAN, No. 23-55691

Plaintiff-Appellant, D.C. No. 2:23-cv-00140-FMO-PD v.

WILLIAM HENDRICKS; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted October 11, 2024** Pasadena, California

Before: PAEZ, NGUYEN, and HURWITZ, Circuit Judges.

Michael Mogan appeals the district court’s order granting the motions of

William Hendricks, Roxanne Hendricks, Kathrin Wanner, and Kirsten Miller

(collectively, “Appellees”) to strike his complaint under California’s Anti-Strategic

Lawsuits Against Public Participation (“anti-SLAPP”) statute, Cal. Civ. Proc. Code

* 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). § 425.16, and to dismiss it under Federal Rule of Civil Procedure 12(b)(6).

Mogan is an attorney who represented Veronica McCluskey, a host on the

Airbnb platform. McCluskey was banned from Airbnb for allegedly violating its

service terms in connection with a dispute with her business partners, William

Hendricks and Roxanne Hendricks (“the Hendricks”). Acting first on behalf of

McCluskey and then himself, Mogan filed sixteen unsuccessful lawsuits arising

from the dispute against various parties in state and federal court. This is Mogan’s

third appeal from adverse judgments in federal lawsuits arising from the same

underlying dispute. See Mogan v. Sacks, Ricketts & Case, LLP (“SRC”), Nos. 22-

15254, 22-15793, 2023 WL 2983577 (9th Cir. Apr. 18, 2023); Mogan v. Airbnb,

Inc., No. 23-55489, 2024 WL 3738480 (9th Cir. Aug. 9, 2024). In this action,

Mogan claims (1) malicious prosecution (against all Appellees) and (2) intentional

infliction of emotional distress (“IIED”) (against only the Hendricks).

We review de novo the district court’s order granting the motion to strike

under the anti-SLAPP statute and to dismiss the complaint. Vess v. Ciba-Geigy

Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. Mogan first argues that the anti-SLAPP statute does not apply in federal

court. We have previously rejected that argument, see CoreCivic, Inc. v. Candide

Grp., LLC, 46 F.4th 1136, 1141-43 (9th Cir. 2022), as we noted in two previous

2 appeals arising from this incident. See Airbnb, Inc., 2024 WL 3738480, at *2;

SRC, 2023 WL 2983577, at *2 n.2.

2. To prevail on an anti-SLAPP motion to strike, a defendant first must

show that “the plaintiff’s suit arises from an act in furtherance of the defendant’s

constitutional right to free speech.” Gunn v. Drage, 65 F.4th 1109, 1118 (9th Cir.

2023) (quoting Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013)).

If that showing is made, the burden shifts to the plaintiff to “demonstrate that each

challenged claim based on protected activity is legally sufficient and factually

substantiated.” Id. When, as here, “an anti-SLAPP motion to strike challenges

only the legal sufficiency of a claim, a district court should apply the Federal Rule

of Civil Procedure 12(b)(6) standard and consider whether a claim is properly

stated.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890

F.3d 828, 834 (9th Cir.), as amended, 897 F.3d 1224 (9th Cir. 2018). The district

court did not err in finding that Mogan’s operative complaint did not state a claim

either for malicious prosecution or IIED.

a. Mogan’s malicious prosecution claim is based entirely on Appellees’

motions for sanctions. But a “malicious prosecution claim cannot be based on

subsidiary procedural actions taken within the litigation, such as a motion for

sanctions.” Pollock v. Univ. of S. Cal., 112 Cal. App. 4th 1416, 1429 (2003)

(internal citations omitted).

3 b. Mogan’s IIED claim also fails because California’s litigation privilege,

Cal. Civ. Code § 47, bars tort claims against parties for “any publication required

or permitted by law in the course of a judicial proceeding.” Jacob B. v. Cnty. of

Shasta, 40 Cal. 4th 948, 955 (2007) (cleaned up). His IIED claim is based solely

on the filing of sanctions motions, which is protected by California’s litigation

privilege. Id.

3. The district court did not abuse its discretion in denying oral argument.

Mogan cites no authority suggesting he is entitled to oral argument or discovery at

the motion to dismiss stage, nor do the facts suggest any abuse of discretion. See

Fed. R. Civ. P. 78(b).

4. The district court did not abuse its discretion in denying leave to amend

the complaint as any amendment would have been futile. See Partington v.

Bugliosi, 56 F.3d 1147, 1162 (9th Cir. 1995).

5. The district court did not abuse its discretion in denying Mogan’s Rule

59(e) motion because Mogan failed to show any newly discovered evidence, clear

error, or a change in the law. See 389 Orange St. Partners v. Arnold, 179 F.3d

656, 665 (9th Cir. 1999).

6. The district court did not abuse its discretion in taking judicial notice of

Mogan’s prior litigation history. Courts may “take judicial notice of matters of

public record,” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir.

4 2018) (cleaned up), including litigation records, see, e.g., Trigueros v. Adams, 658

F.3d 983, 987 (9th Cir. 2011).

AFFIRMED.