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Attorney Mogan Loses Appeal in Ninth Circuit Same Day State Bar Suspends Law License
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the granting of an anti-SLAPP motion, terminating an action filed by Chicago attorney Michael Mogan—the same day the State Bar of California placed Mogan on involuntary inactive status pending resolution of disciplinary charges against him.
Both the Ninth Circuit’s decision and the State Bar action stem from the lawyer’s representation of one Veronica McCluskey in 16 lawsuits—some in state courts, others in federal court—based on the client being stripped of her “superhost” status by Airbnb, an online marketplace bringing together lessors and lessees of residential space.
The Ninth Circuit’s memorandum opinion affirms an order by District Court Judge Fernando M. Olguin of the Central District of California. Signing it were Judge Jacqueline H. Nguyen and Senior Circuit Judges Andrew D. Hurwitz and Richard A. Paez.
“This is Mogan’s third appeal from adverse judgments in federal lawsuits arising from the same underlying dispute,” the judges noted.
Mogan, on behalf of McCluskey, brought suit against four persons involved in Airbnb’s decision to blackball the client based on rules violations, claiming malicious prosecution and intentional infliction of emotional distress predicated on their motion for sanctions.
A malicious prosecution claim, the Ninth Circuit judges said, cannot be founded on an action taken within litigation, such as pursuing a motion for sanctions, and the emotional distress claim, they wrote, “is based solely on the filing of sanctions motions, which is protected by California’s litigation privilege.”
Olguin did not abuse his discretion in taking into consideration Mogan’s litigation history, the judges declared, given that judicial notice may be taken of matters contained in court records.
The State Bar’s Office of Chief Trial Counsel is seeking discipline of Mogan based on a frivolous motion to lift a stay, pending arbitration, in an action brought on behalf of McCluskey in San Francisco Superior Court and for his failure to pay a $22,159.50 sanction imposed on him by Judge Ethan P. Schulman in making that motion. That sanction was affirmed by Div. Three of the First District Court of Appeal on Nov. 2, 2020.
However, the appeals court denied a motion for sanctions, saying an opinion by Justice Ioana Petrou that “we cannot conclude that Mogan’s appeal is so totally and completely without all arguable merit as to justify an award of sanctions under” the “demanding requirements.”
In his response to the disciplinary charges, Mogan said he “DENIES that he disobeyed or violated an order as the Bankruptcy Court for the Northern District of Illinois has jurisdiction over the full $22,159.50 monetary sanctions effective February 19, 2022.”
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