Petition for Writ of Certiorari — Michael Mogan, Petitioner v. Sacks, Ricketts & Case LLP, et al.

Supreme Court briefSep 5, 2023

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MICHAEL MOGAN,

Petitioner

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SACKS, RICKETTS AND CASE LLP, Et AI.

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Respondents

On Petition for a Writ of Certiorari to the Court

of Appeal of the Northern District Of California

PETITION FOR A WRIT OF CERTIORARI

Michael Mogan, pro se

4803 N. Milwaukee Ave,

Suite B, Unit #244

Chicago, IL 60630

(949) 424-5237

mm@michaelmogan.com

©•■'■’A

QUESTIONS PRESENTED

Did the Ninth Circuit—in direct conflict with the

Seventh Circuit—erroneously fail to recognize

that 28 U.S.C. § 636(c) precludes the parties from

selecting a particular magistrate judge to preside

over their conflict and that, when they do so, the

magistrate judge does not obtain jurisdiction over

the matter?

2. Whether the Rule 11 motions did not adequately

inform Petitioner of the source of authority for the

sanctions being considered in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 14th Amend.) and in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 5th Amend.)

3. Whether denial to Petitioner of oral argument by

the Magistrate Judge through the entire

proceedings including in Petitioner opposing Rule

11 sanctions followed by the Ninth Circuit denying

Petitioner’s request for oral argument and as a

request for special accommodation under the

American With Disabilities Act of 1990, As

Amended warrants reversal.

4. Whether The Rule 11 Motion Should Have Been

Denied Because Airbnb Respondents Did Mot

Mitigate Attorney Fees?

5. Whether California’s Anti-SLAPP Statute Can

Apply In Federal Court Because The Statute

Answers The Same Question As The Federal Rules

And Is Valid Under The Rules Enabling Act?

6. Whether The Appellate Court Applied The Proper

Standard On Appeal In Determining Whether

Petitioner’s Motion For Recusal Should Have

Been Granted?

PARTIES TO THE PROCEEDING

Michael Mogan, Petitioner here, was Petitioner and

objector below. Respondents Sacks Ricketts and Case

LLP, Michele Floyd, Jacqueline Young, Airbnb Inc.,

Jeff Henry, Dave Willner and Sanan Ebrahini were

appellees below.

RELATED PROCEEDINGS

Supreme Court Case No. 23-5169, Mogan v Sacks

Ricketts Case LLP et al.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

RELATED PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISION................

INTRODUCTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION....... 12

1. Did the Ninth Circuit—in direct conflict with the

Seventh Circuit—erroneously fail to recognize that

28 U.S.C. § 636(c) precludes the parties from

selecting a particular magistrate judge to preside

over their conflict and that, when they do so, the

magistrate judge does not obtain jurisdiction over

the matter?

2. Whether the Rule 11 motion did not adequately

inform Petitioner of the source of authority for the

sanctions being considered in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 14th Amend.) and in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 5th Amend.)

3. Wliether denial to Petitioner of oral argument by

the Magistrate Judge through the entire

proceedings including in Petitioner opposing Rule

11 sanctions followed by the Ninth Circuit denying

Petitioner’s request for oral argument and as a

request for special accommodation under the

American With Disabilities Act of 1990, As

Amended warrants reversal

4. Whether The Rule 11 Motion Should Have Been

Denied Because Airbnb Respondents Did Mot

Mitigate Attorney Fees?........................................... 28

5. Whether California’s Anti-SLAPP Statute Can

Apply In Federal Court Because The Statute

Answers The Same Question As The Federal

Rules And Is Valid Under The Rules

Enabling Act?........................................................

6. Whether The Appellate Court Applied The Proper

Standard On Appeal In Determining Wliether

Petitioner’s Motion For Recusal Should Have

Been Granted?

CONCLUSION

■J.

TABLE OF AUTHORITIES

CASES

Page(s)

Abbas v. Foreign Poly Grp., LLC,

783 F.3d 1328 (D.C. Cir. 2015)............... 29,30

Ariz. Dream, Act Coal.,

2018 U.S. Dist. Lexis 207625.................

American Civil Liberties Un. of Ga. v. Barnes,

168 F.3d 423 (11th Cir. 1999).................

Bass v. E.I. DuPont de Nemours & Co.,

324 F.3d 761 (4th Cir. 2003)....................

Berger v. United States,

255 U.S. 22 (1921).....................................

Brown v. Stackler,

612 F.2d 1057 (7th Cir. 1980)................. 25,32

Buffington v. Baltimore County,

913 F.2d 113(4th Cir.), reh'g denied (1990)..25

Buster v. Greisen,

104 F.3d 1186 (9th Cir. 1997)...................... 6,20

Carbone u. CNN, Inc.,

910 F.3d 1345 (11th Cir. 2018)..................... 29

Carlucci v. Piper Aircraft Corp.,

775 F.2d 1440 (11th Cir. 1985)..................... 17

Chemiakin v. Yefim,ov,

932 F.2d 124 (2d Cir. 1991).......................... 27

Chia v. Fidelity Invs.,

No. 05-7184, 2006 U.S. App. LEXIS 20296

(D.C. Cir. Aug. 3, 2006).............................................. 18

Christian v. Mattel, Inc.,

286 F.3d 1118 (9th Cir. 2002).................. 6,19

Combs v. City of Huntington,

829 F.3d 388 (5th Cir. 2016).................... 24,31

Cotner v. Hopkins,

795 F.2d 900 (10th Cir. 1986)..................

Davis v. HSBC Bank Nev., N.A.,

691 F.3d 1152 (9th Cir. 2012)..................

De Dios v. Int’l Realty & Investments,

641 F.3d 1071 (9th Cir. 2011)..................

Divane v. Krull Elec. Co.,

200 F.3d 1020 (7th Cir. 1999)..................

Doering v. Un. Cty. Bd, of Chosen Freeholders,

857 F.2d 191 (3d Cir. 1988)......................

Gasperini v. Ctr. for Humans., Inc.,

518 U.S. 415 (1996)....................................

Goldberg v. Blue Ridge Farms, Inc.,

2005 U.S. Dist. LEXIS 42907 (E.D.N.Y. July

26, 2005)..................................

Hanna v. Plumer,

380 l/.S. 460 (1965)..............

Hensley v./Eckerhart,

4,32

464 U.S. 424 (1983)..............

Hodgdon v. United States,

365 F.2d 679 (8th. Cir. 1966)

In re Allen, No. 06-1429,

2007 U.S. App. LEXIS 22445 (10th Cir. Sept.

19, 2007)............................................................. 18

In re Grantham Brothers,

922 F.2d 1438 (9th Cir. 1991) cert, denied,

502 U.S. 826 (1991).......................................... 20

In re Nissan Litig.,

2018 U.S. Dist. Lexis 154982......................... 31

In re Pennie & Edmonds LLP,

323 F.3d 86 (2d Cir. 2003)......................... 23

Vll

In re Yagman,

796 F.2d 1165 (9th Cir.1986)

4,26

Jimenez v. Wood Cty.,

24,32

621 F.3d 372 (5th Cir. 2010).

KeyCorp,

2017 U.S. Dist. Lexis 21372

Klocke v. Watson,

936 F.3d 240 (5th Cir. 2019)......................

KRW Sales, Inc. v. Kristel Corp.,

No. 93 C 4377, 1993 U.S. Dist.. LEXIS

17246 (N.D. Ill. Dec. 3, 1993).....................

La. Power & Light Co. u. Kellstrom,

50 F.3d 319 (5th Cir. 1995).........................

Landscape Properties, Inc. v. Whisenhunt,

127 F.3d 678 (8th Cir. 1997)...................... 23,27

Liteky u. United States,

510 U.S. 540 (1994)......................................

Maciosek u. Blue Cross & Blue Shield United of

Wisconsin,

930 F.2d 536 (7th Cir. 1991)................

Makaeff v. Trump Univ., LLC (Makaeff I),

715 F.3d 254 (9th Cir. 2013).................

McCluskey v. Henry,

6,22

56 Cal.App.5th 1197 (2020)..................

Menjivar v. Trophy Props.,

No. C06-03086 SI, 2006 WL 2884396.

Methode Elecs., Inc. v. Adam Techs., Inc..,

371 F.3d 923 (7th Cir. 2004).................

MHC Inv. Co. u. Racom Corp.,

323 F.3d 620 (8th Cir. 2003).................

Midiantic Nat'l Bank v. New Jersey Dep't of

Environmental Protection,

474 U.S. 494 (1986)................................

Vlll

O 'Brien v. Alexander,

101 F.3d 1479 (2d Cir. 1996)

Perretta v. Prometheus Dev. Co.,

No. C-05-02987-WHA, 2006 U.S. Dist. LEXIS

10108 (N.D. Cal. Feb. 24, 2006).....

Piamba Cortes v. American Airlines, Inc.,

26,33,34

177 F.3d 1272 (11th Cir. 1999).......

Pollution Control Indus, of Am. v. Van Gundy,

21 F.3d 152 (7th Cir. 1994).......................... 3,28

Reason v. Cinque & Cinque, P.C.,

221 F.3d 71 (2d Cir. 2000)............................ 3,18

Roberts v. Chevron,

117 F.R.D. 581 (M.D. La. 1987),

affd, 857 F.2d 1471 (5th Cir. 1988)..........

Sakon, Sakon v. Andreo,

119 F.3d 109 (2d Cir. 1997).........................

Schlaifer Nance & Co. v. Estate of Warhol,

194 F.3d 323 (2d Cir. 1999).........................

Shin Park v. Seoul Broad. Sys. Co.,

2008 U.S. Dist. LEXIS 17277 (S.D.N.Y.

Mar. 3, 2008)..................................................

Simmons v. Suare,

4-.94CV131, 1995 U.S. Dist. LEXIS 14948

(W.D.N.C. Sept. 15, 1995)............................ 24

Tech Pharmacy,

2017 U.S. Dist. Lexis 211061...................... 31

Thompson v. Duke,

940 F.2d 192 (7th Cir. 1991)........................

Thornton v. General Motors Corp.,

136 F.3d 450 (5th Cir. 1998)........................ 23

Townsend, v. Holman Consulting Corp.,

914 F.2d 1136 (9th Cir. 1990)..................

United States v. 14.02 Acres of Land More or

Less in Fresno Cty. 547 F.3d 943

(9th Cir. 2008)...!.........................................

United Nat’l Ins. Co. u. R&D Latex Corp.,

242 F.3d 1102 (9th Cir. 2001).................... 17,23

United States v. Hernandez,

109 F.3d 1450 (9th Cir. 1997)....................

United States v. Nelson,

718 F.2d 315 (9th Cir. 1983).....................

United States v. Sibla,

624 F.2d 864 (9t.h Cir. 1980).....................

United States v. Studley,

783 F.2d 934 (9th Cir. 1986).....................

Washington v. Philadelphia Cty. Ct., Common,

89 F.3d 1031 (3d Cir. 1996)........................

Wellz v. GMACMortg., LLC,

720 F3d 736 (8th Cir. 2013)......................

Zuk v. Eastern Pa. Psychiatric Inst, of the Med.

College of Pa.,

103 F.3d 294 (3d Cir. 1996).......................

Federal Statutes:

28 U.S.C.A. §144.............

18 U.S.C. §1343................

18 U.S.C.A §1951.............

18 U.S.C.A. § 1962(c)......

28 U.S.C.A. §2072............

18 U.S.C. § 1962(d)...........

28 U.S.C. §631..................

28 U.S.C. §636(c).............

28 U.S.C. § 636(c)(1)........

U.S. Const., 14th Amend

12,31,14,15

.......... 12,14

........passim

State Statutes

Cal. Civ. Pro. §425.16

passim

Rules

Fed.R.Civ.P. 11................

Fed. R, Civ. P.11(b).........

Fed. R. Civ. P. 11(b)(2)...

Fed. R. Civ.P. 11(c)(1)(A)

Fed. R, Civ. P. 11(c)(2)....

Fed. R, Civ. P. 12(b)(6)...

passim

.passim

Other Authorities

1993 Advisory Committee Notes

Mary Kay Kane, Federal Practice And Procedure §2

PETITION FOR A WRIT OF CERTIORARI

Michael Mogan (“Petitioner”) prays that a writ of

certiorari be granted to review the judgment and

orders entered by the Northern District of California.

OPINIONS BELOW

The opinion of the Ninth District Court of Appeals and

orders of the Northern District Of California case is

attached to this petition as an Appendix.

JURISDICTION

The Ninth District Court Of Appeals opinion is

attached. See Appendix. This petition is filed within

90 days of the date the Petition For Rehearing Was

Denied June 8, 2023. This Court has jurisdiction

under 28 U.S.C. § 1257.

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISION

28 U.S.C. §636; Federal Rules Of Civil Procedure 11;

and California Code Of Civil Procedure 425.16 and

U.S. Const., 5th and 14th Amend.

INTRODUCTION

Petitioner seeks review of his Appeal Case No.

22-15793 which affirmed the judgment and certain

orders by the Ninth Circuit Court Of Appeals.

All 13 appellate courts that sit below the U.S.

Supreme Court, and 94 federal judicial districts

organized into 12 regional circuits, recognize civil

RICO claims are not barred by the litigation privilege.

Menjivar v. Trophy Props., No. C06-03086 SI, 2006

WL 2884396, at *16) Despite such precedent, the

Court imposed $162,010 in Rule 11 sanctions on

Petitioner after Airbnb Inc. , Dave Willner, Jeff Henry

and Sanaz Ebrahini (“Airbnb Respondents”) and the

Court held his RICO claims were barred by the

litigation privilege. Rule 11 sanctions were granted

based upon collateral estoppel despite the fact any

underlying civil or arbitration proceedings with Jeff

Henry, Dave Willner nor Sanaz Ebrahini did not

involve non-party Airbnb nor were such proceedings

final until after the Appellate opinion was issued.

The District Court cancelled every single

hearing and no oral arguments were held throughout

the entire proceedings. The Court only allowed

briefing for one of the motions filed by Petitioner, a

Rule 59 motion and the District Court repeatedly

denied Petitioners motions in a matter of day or days

while the Court allowed briefing on Airbnb and SRC

Respondents two Rule 12(b) motions, the Rule 11

motion, a frivolous vexatious litigant motion and the

two fee petitions filed by SRC Respondents and

Airbnb Respondents. The District Court failed to rule

on Petitioner’s objections to the entries in two

separate fee petitions filed by SRC Respondents and

Airbnb Respondents and the District Court also failed

to rule on Petitioner’s evidentiary objections filed

opposing Airbnb Respondents fee petition.

Petitioner requested a special accommodation

under the American With Disabilities Act from the

Ninth Circuit Court Of Appeals to ensure he would be

finally given an opportunity to be heard at the and the

Appellate Court cancelled oral arguments violating

Petitioner’s civil rights. After the Appellate Court

affirmed the Rule 11 award based on collateral

estoppel despite the fact any underlying civil and

arbitration proceedings were not final, Petitioner

immediately filed a petition for rehearing against

seeking special accommodations and once again and

the Petitioner Court summary denied his petition for

rehearing. The District Court had even concluded in

Airbnb Respondents Rule 12(b)(6) motion, issue

preclusion did not bar any of Petitioner’s RICO claims

thus this was a critical issue.

The Rule 11 motion should have been denied

because Petitioner was not given adequate notice

sanctions were being considered as mandated by the

statute and the due process clause of the federal

Constitution. Petitioner was not provided an

evidentiary hearing either. The District Court abused

its discretion granting sanctions on an erroneous view

of the law and clearly erroneous assessment of the

evidence. Revson v. Cinque & Cinque, P.C., 221 F.3d

71, 78(2d Cir. 2000). The District Court shotdd have

imposed Rule 11 sanctions upon filers of the motion

and ordered sanctions payable to the Court. Airbnb

Respondents also failed in their obligation to mitigate

its attorneys’ fees. Pollution Control Indus, of Am. v.

Van Gundy, 21 F.3d 152, 156 (7th Cir. 1994).

Airbnb Respondents and Sacks Ricketts and

Case LLP, Michele Floyd and Jacqueline Young’s

(“SRC Respondents”) fee petitions should have been

denied because they were not supported by adequate

testimony. Hensley v. Eckerhart, 461 U.S. 424, 738

n.13 (1983). The District Court abused its discretion

failing to consider Petitioners inability to pay any

Rule 11 sanctions. In re Yagman, 796 F.2d 1165, 1185

California’s AntiSLAPP statute

(9th Cir.1986).

should not apply in Federal Court based upon

Supreme Court jurisprudence. The District Court

abused its discretion not granting Petitioner’s motion

for recusal as evidence of apparent and actual bias

existed. Finally, Petitioner had not consented to

magistrate jurisdiction for the Magistrate Judge who

issued Rule 11 sanctions as the case was related after

Petitioner consented to a specific Magistrate Judge.

STATEMENT OF THE CASE

A. Factual Background

Petitioner filed a complaint October 29, 2021

that included claims for (1) Abuse Of Process; (2)

Intentional Infliction Of Emotional Distress; (3)

Intentional Interference With Prospective Economic

Relations; (4) Civil Conspiracy; (5) Federal Civil

RICO, 18 U.S.C. 3 1962(c); (6) Conspiracy to Engage

in a Pattern of Racketeering Activity: 18 U.S.C.

§ 1962(d); (7) Unfair Business Practices Under

Business & Professions Code Sections 17200, et seq.

Dkt. at 1. The crux of the complaint was based upon

threatening letters, an unfiled sanctions motion never

filed and fake documents sent to petitioner in a

desperate attempt to compel Petitioner into refiling

an arbitration claim closed after Respondents failed to

pay their arbitration filing fees.

The complaint alleged in part Petitioner as an

attorney was involved in arbitration proceedings with

his client, where Petitioner timely paid the filing fee,

however Respondents Jeff Henry, Dave Willner and

Sanaz Ebrahini recklessly did not and arbitration

proceedings were closed April 8, 2019. The complaint

alleged on June 10, 2019 SRC Respondents served

Petitioner a sanctions motion pursuant to California

Code Of Civil Procedure 128.7 seeking $25,047 in fees

to vex and annoy Petitioner into refiling an

arbitration claim instead of proceeding in state court.

The frivolous sanctions motion was never filed. The

complaint also alleged in part the June 10, 2019

sanctions motion included an invoice with false

information that Airbnb Inc. had paid their $7,500.

The RICO claims in the complaint alleged

predicate acts for (1) use of wires to defraud in

Violation of 18 U.S.C. §1343 based upon a threatening

phone calf made by Respondent Young to Petitioner;

(2) extortion based upon Respondents threatening

Petitioner with the sanctions motion never filed; (3)

extortion based upon Respondents sending Petitioner

a threatening letter with the unfiled sanctions motion;

(4) extortion based upon personal service of the

unfiled sanctions motion on Petitioner; (5) extortion

based upon service of the unfiled sanctions motion

over email; (6) violation of the Hobbs Act pursuant to

18 USC §1951 for Respondents threats in a letter to

Petitioner’s business and reputation; and (7) violation

of the Hobbs Act 18 USC §1951 for service of the

unfiled sanctions motion upon Petitioner.

On December 21, 2021 Airbnb Respondents

filed a Rule 11 motion with 29 exhibits which motion

cited a single statute, Fed. R. Civ. P. 11, not even the

RICO statutes were cited. The Rule 11 motion only

cited eleven cases which were Adriana Int’l Corp. v.

Theoren, 913 F.2d 1406 (9th Cir. 1990); Bletas v.

Deluca, 2011 WL 13130879 (S.D.N.Y. Nov. 15, 2011);

Bus. Guides, Inc. v. Chromatic. Commnc’ns Enters.,

498 U.S. 533 (1991); Buster v. Greisen, 104 F.3d 1186,

1190 (9th Cir. 1997), as amended on denial of reh’g

(Mar. 26, 1997); Christian v. Mattel, Inc., 286

F.3d 1118 (9th Cir. 2002); Golden Eagle Distrib. Corp.

v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986);

Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005)

In re Keegan Mgmt. Co. Sec. Litig., 78 F.3d 431 (9th

Cir. 1996); McCluskey v. Hendricks, 2021 WL 4815938

(C.D. Cal. June 16, 2021) McCluskey v. Henry, 56 Cal.

App. 5th 1197 (2020) and Silberg v. Anderson, 50 Cal.

3d 205 (1990), as modified (Mar. 12, 1990). The Rule

11 motion did not cite DKN Holdings LLC v. Faerber,

61 Cal.4th 813 (Cal. 2015) (cited by the District Court

in its motion to dismiss and the Appellate Opinion)

and, the litigation privilege nor any legal authority

that the complaint was barred because (1) Airbnb paid

its filing fee; and (2) they filed a separate sanctions

motion for a proper purpose.

B. Procedural History

District Court

After Petitioner filed his complaint, Magistrate

Judge Kandis A. Westmore was assigned to the case

November 1, 2019 and Petitioner consented to her as

Magistrate Judge November 13, 2021. On December

3, 2021 SRC Respondents filed a notice of related case

to transfer the case to Judge Thomas Hixson. On

December 4, 2021 Petitioner objected to the case being

related. On December 10, 2021 Judge Thomas Hixson

issued a related case order and did not rule on

Petitioner’s objections.

On November 24, 2021 Airbnb Respondents

filed a motion to dismiss. Dkt. 12. On November 29,

2021 SRC Respondents filed a motion to strike the

complaint pursuant to California Code Of Civil

Procedure §425.16. Dkt. 16. On December 21, 2021

Airbnb Respondents filed a Rule 11 motion (Dkt. 32)

and a separate motion to declare Petitioner a

vexatious litigant and for sanctions. Dkt. 41. After

briefing concluded the District Court granted the

motion to dismiss and AntiSLAPP motion. Dkt. 38. On

January 12, 2021 the District Court granted Rule 11

sanctions with leave for Airbnb Respontents to file a

fee petition. Dkt. 50 Petitioner filed a Rule 12(b)

motion citing California’s AntiSlapp statute Cal. Civ.

Pro. §425.16 and Petitioner filed a separate opposition

to the vexatious litigant motion which the District

Court stated were untimely. On January 11 ,2021

Petitioner sought leave to file his opposition to

vexatious litigant motion and for sanctions. On

January 11, 2021, the District Court stated

Petitioner’s Rule 12(b) motion was filed late pursuant

to Civil Local Rule 7-3(a) which requires oppositions

to be filed in 14 days however in such order the

District Court stated in part the motion to strike also

had no merit. Dkt. 43. Petitioner filed a second motion

for recusal on May 16, 2022 (Dkt. 83) after he

discovered new information and the motion was

denied the same day. Dkt. 84.

In the order the District Court and not SRC

Respondents discussed the unfiled sanctions motion

under the first and second prongs of Cal. Civ. Pro.

§425.16. On January 10, 2022 the Court ordered SRC

Respondents to file a request for attorney fees under

Cal. Civ. Proc. 425.16 by February 10, 2022 and they

filed the motion a day late February 11, 2022. In a

declaration supporting the fee petition, SRC

Respondents counsel Mr. Servais stated “I am the

supervising attorney on this matter and oversaw all

the work being performed by the associate, Natasha

Mayat. Based on my review of their time entries and

work product I have personal knowledge of the work

they performed and the time expended. Based on my

professional experience, the fees incurred were

reasonable. Mr. Servais stated “[i]n total, I spent 71.3

billable hours overseeing this matter as described in

paragraph 4, bringing the successful anti-SLAP P

motion. At my customary rate of $450 per hour, my

total fees amount to $32,085.00. No declaration was

included from Ms. Mayat. On February 11, the

District Court ordered SRC to submit detailed time

records not included in their fee petition.

On February 12, 2022 SRC Respondents filed a

Notice Of Errata with an Amended Declaration from

Mr. Servais. Now suddenly almost all the entries

claimed the work was done by Mr. Servais and not

Natasha Mayat which is the opposite of his testimony

in his initial declaration. Between December 14, 2021

and January 10, 2022 SRC Respondents claimed they

spent 48.30 hours for fees of $10,879 yet spent only 23

hours for fees of $5,520 between September 11, 2021

and November 29, 2021 when the Anti-SLAPP motion

was filed. No declaration nor request for judicial

notice was included with the Reply but it took twice as

long as the motion. Petitioner filed his opposition to

SRC Respondents Anti-SLAPP motion December 13,

2022. SRC Respondents were allowed to file their

reply two weeks late January 3, 2022.

Airbnb Respondents fee petition claimed 141.4

hours for $86,745 in fees between November 2nd and

November 24th, 2021 and the entries referenced the

motion to dismiss and Rule 11 motion but not the

vexatious litigant motion filed the same day as the

Rule 11 motion. A spreadsheet covering December 1st

to December 24, 2021 described 49.70 hours and

$34,864 in fees with no mention of the vexatious

litigation motion.

Airbnb Respondents did not discuss the

complaint with Petitioner before he received an email

November 23, 2021 when Airbnb Respondents counsel

asked Petitioner if he would accept electronic service.

The Rule 11 motion included a short three page

argument but 28 exhibits. The vexatious litigant

motion included a 25 page motion and twice the

exhibits.

Airbnb Respondents fee petition claimed Ms.

Kambourelis and Ms. Cardelus spent significant time

on this matter but no affidavits were provided from

them. Ms. Taylor stated “the fees and costs billed in

November and December were “submitted to and

promptly paid by Airbnb” and no testimony said any

amount was paid. Airbnb employee John Polito stated

in part from November 2021 through present, “I

received, reviewed, and tendered full payment

promptly upon receipt for all invoices associated with

this proceeding. I understand that from January 1

through February 8, 2022, O’Melveny & Myers LLP

has incurred an additional $50,864.54 in legal fees

related to this matter. Those fees will also be promptly

paid upon receipt” and he did not state any amount

was paid.

On May 14, 2022 Petitioner learned John Polito

had a personal and business relationship with Judge

Thomas Hixson (“District Court Judge”) and

immediately filed a second motion for recusal. Based

on information in the public domain, from 1998-2002

the District Court Judge worked as an Associate with

the firm of McCutchen, Doyle, Brown & Enersen LLP.

From 2002-2014, he worked at Bingham McCutchen

LLP (which McCutchen, Doyle, Brown & Enersen,

LLP became) as an Associate and then Partner. From

2014-2018, the District Court Judge was a partner at

Morgan, Lewis & Bockius LLP before being appointed

a Magistrate Judge. Id. Lucy Wang accepted a

position as the lead counsel, litigation at Airbnb Inc.

in November 2021.She was previously a partner at the

same firm as the Magistrate Judge, Morgan, Lewis &

Bockius LLP, where she worked with him until 2018

and Lucy Wang worked there until November 2021.

During the time the Magistrate Judge was a partner

at Morgan, Lewis & Bockius LLP, Lucy Wang worked

as an associate between November 2014 and

September 2018 at the firm’s San Francisco and Hong

Kong office, the same San Francisco office as the

Magistrate Judge. Id. Between 2008 and 2014, Lucy

Wang worked as an associate at Bingham McCutehen

LLP 2008 (Associate Resident in San Francisco! Hong

Kong) which is the same firm the Magistrate Judge

worked at as a partner from 2002 to 2014. John Polito

worked as Associate General Counsel, Global

Litigation and Regulatory at Airbnb from June 2021

through the present. From 2014 through June 2021 he

worked at Morgan, Lewis & Bockius LLP with the

Magistrate Judge and Lucy Wrang. Id. John Polito

worked as a partner from 2015 to 2021 at Morgan,

Lewis & Bockius LLP and as an associate in 2014.

John Polito worked as a lawyer at Bingham

McCutehen LLP from September 2007 through

November 2014 which is the same time the

Magistrate Judge worked there.

Petitioner offered testimony the Judge has been

biased in favor of counsel for Omelvey and Myers LLP

throughout these proceedings because of this

relationship with the Magistrate Judge’s former

employer. Petitioner offered testimony the Magistrate

Judge was personally biased against Petitioner. He

stated the Court had shown a deep-seated favoritism

and antagonism in favor of all the Respondents in this

case that would make a fair judgment impossible.

Petitioner respectfully contended facts exist that

might reasonably call into question the District Court

Judge’s impartiality. Petitioner requested the

District Court carefully consider all Petitioner’s filings

in this case in considering whether recusal is proper

including the fact Petitioner had not been afforded a

hearing or oral argument throughout the entire

proceedings. The motion for recusal was denied. The

District Court granted $162,160 in Rule 11 sanctions

to Airbnb Respondents and $16,399 in fees to SRC

Respondents based under California’s AntiSLAPP

statute. Dkt. 82.

B. Ninth Circuit Court Of Appeals

The Ninth Circuit affirmed the District

Court dismissal of Petitioner’s claims against Airbnb

Respondents and the abuse of process claim against

SRC Respondents. The Opinion addressed two

combined appeals filed by Petitioner (22-15254

and 22-15793) however the appeals were not

consolidated. Petitioner had previously filed a writ of

certiorari for Case 22-15254 which remains pending.

REASONS FOR GRANTING THE PETITION

1. Did the Ninth Circuit—in direct conflict

with the Seventh Circuit—erroneously

fail to recognize that 28 U.S.C. § 636(c)

precludes the parties from selecting a

particular magistrate judge to preside

over their conflict and that, when they do

so, the magistrate judge does not obtain

jurisdiction over the matter?

The Federal Magistrates Act governs the

jurisdiction authority of federal magistrate judges.

28 U.S.C. §§631-39. Section 636(c)(1) authorizes a

magistrate judge to “conduct any or all proceedings” in

a civil matter, but only if (l) the parties consent and

(2) the magistrate judge is “specially designated to

exercise such jurisdiction by the district court” that he

or she serves. A magistrate judge lacks jurisdiction

unless both criteria are met: there must be consent by

the parties and the court’s special designation. Roell

v. Withrow, 538 U.S. 580, 582 (2003).

The reason for requiring the court, not the parties,

to select the magistrate judge who is to proceed under

§636(c) is obvious: to prevent the parties (or a party)

from engaging in judge-shopping, which “doubtless

disrupts the proper functioning of the judicial

systeml.]” Standing Comm, on Discipline of U.S. Dist.

Ct. for Cent. Dist. of California v. Yagman, 55 F.3d

1430, 1443 (9th Cir. 1995). “Judge-shopping clearly

constitutes ‘conduct which abuses the judicial

process.” Hern andez v. City of El Monte, 138 F.3d 393,

399 (9th Cir. 1998)(quoting Chambers u. NASCO, Inc.,

501 U.S. 32, 44-45 (1991)).

The Seventh Circuit in Hatcher held that parties

cannot select their magistrate judge. Hatcher u. Consol.

City of Indianapolis, 323 F.3d 513, 514 (7th Cir. 2003)

Hatcher, was a civil-rights lawsuit against

government officials. Id. The parties specified in their

settlement agreement that a particular magistrate

judge would resolve an outstanding attorneys’ fees

issue. Id. The plaintiff appealed because the district

judge, not the magistrate judge, made the final

attorneys’ fees award. Id. The plaintiff argued that the

parties had validly consented to the magistrate

judge’s jurisdiction, which precluded the district judge

from riding. Id. Despite consenting to the magistrate

judge, the defendants countered that the form of the

parties’ consent to the magistrate judge was

inadequate under §636(c). Id.

The Seventh Circuit provided two reasons for this

prohibition. First, “the general rule that one may not

choose one’s judge in federal court should not have an

exception for magistrate judges.” Id. at 519. “[N]o one

would think of arguing that parties had the right to

select a particular district judge,” and there is “no

distinction between the position of the magistrate

judges for this purpose and the position of any other

judicial officers exercising power in the federal

courts.” Id. at 518. The court refused to endorse a

scheme that allowed the parties to “shop among a

district court’s magistrate judges” and “disregardt ]

the assignment procedures otherwise used in that

district court for allocating work to the magistrate

judges.” Id. at 517-18.

Second, the plain language of § 636(c) does not

“provide for the parties’ choice of a specific magistrate

judge.” Id. at 518. It would be inappropriate to

construe §636(c) “to allow parties to designate a

magistrate judge independently of the district court’s

procedures for magistrate assignment.” Id. “The

language in the statute that indicates that the

magistrate judge may exercise her power ‘when

specially designated to exercise such jurisdiction by

the district court or courts’ is inconsistent with a rule

permitting the parties effectively to make that

designation.” Id. at 519 (quoting 28 U.S.C. § 636(c)(1)).

Thus, under Hatcher, parties cannot “pick the

magistrate judge who [is] to handle their case.” Id. at

518. To do so violates § 636(c) and amounts to

improper judge-shopping. This conclusion is legally

sound. The plain language of the statute clearly

allows only the “district court” to designate the

magistrate judge. 28 U.S.C. § 636(c)(1). “This can

mean only that it is the court, and not the parties, that

has the power to confer general or specific duties upon

an individual magistrate judge.” Hatcher, 323 F.3d at

518.

The Ninth Circuit claimed Petitioner consented to

magistrate jurisdiction but such generalization

elevates form over substance as Petitioner consented

to a specific magistrate judge then the case was

related. It places too much emphasis on the formal

referral or designation that triggers the statutory

transfer of jurisdiction from one magistrate judge to

another. And it ignores Hatcher’s concern with the

selection of a particular magistrate judge designated

to carry out § 636(c) functions. It goes without saying

that any of Respondents have no ability—no power—

to actually assign judges to their cases and relating a

case to a separate magistrate judge does not enable

such power otherwise Congress would have provided

such rule. Although Hatcher did not involve a party

consenting to one magistrate judge before a related

case order, such principle still forbids parties from

“pickting] the magistrate judge who [is] to handle

their case.” 323 F.3d at 518. Indeed, in Hatcher, the

district judge “was advised of the decision of the

parties and seemed to endorse the referral.” Id. at 51516. The Seventh Circuit still vacated the referral

because the parties made the particular selection. Id.

at 518-19.

Furthermore, Congress has not granted a plenary

power to all Magistrate Judges to hold litigants and

attorneys in contempt or impose Rule 11 sanctions. To

do so would undermine Congress's decision to grant

magistrate judges certain powers and withhold

others. Furthermore, the normal rule of statutory

construction is that if Congress intends for legislation

to change the interpretation of a judicially created

concept, it makes that intent specific. Midlantic Natl

Bank v. New Jersey Dep't of Environmental

Protection, 474 U.S. 494, 501(1986) Congress could

have included the power to impose Rule 11 sanctions

in 2000 when it amended §636. Petitioner objected to

the case being reassigned to another magistrate judge

and later filed a declination to magistrate jurisdiction

which the District Court failed to consider. Thus this

Court should grant the writ and hold that Magistrate

Judge Hixson lacked jurisdiction to proceed in this

case.

2. To Determine whether the Rule 11 motions

did not adequately inform Petitioner of the

source of authority for the sanctions being

considered in violation of the Due Process

Clause of the Federal Constitution (U.S.

Const., 14th Amend.) and in violation of the

Due Process Clause of the Federal

Constitution (U.S. Const., 5th Amend.)

A district court’s imposition of sanctions under

Rule 11 are reviewed for abuse of discretion and the

Appellate Opinion does not indicate the Appellate

Court performed such a review and in particular for

the complex RICO claims in the complaint. De Dios v.

Int’l Realty & Investments, 641 F.3d 1071, 1076 (9th

Cir. 2011)(imposition of sanctions); United Na-t’l Ins.

Co. v. R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir.

2001)(“[W]e review findings of historical fact under

the clearly erroneous standard, the determination

that counsel violated the rule under a de novo

standard, and the choice of sanction under an abuse of

discretion standard.”). The decision to take judicial

notice and/or incorporate documents by reference is

reviewed for an abuse of discretion and these issues

raised by Petitioner in his appellate brief was not

addressed on appeal either. See United States v. 14.02

Acres of Land. More or Less in Fresno Cty. 547 F.3d

943, 955 (9th Cir. 2008)(judicial notice); Davis v.

HSBC Bank Nev., N.A., 691 F.3d 1152, 1160(9th Cir.

2012) (incorporation by reference).

Adequate notice sanctions are being considered

is mandated by statute and the due process clause of

the federal Constitution (U.S. Const., 14th Amend.).

An award of attorney's fees implicates interests

protected by the Due Process Clause of the Fifth

Amendment. Carlucci v. Piper Aircraft Corp., 775 F.2d

1440 (11th Cir. 1985). It is mandated that when Rule

11 sanctions are initiated by the motion of a party, the

moving party gives the subject the opportunity to

withdraw the potentially offending statements before

the sanctions motion is filed. Fed.R.Civ.P. Rule

11(c)(1)(A). Airbnb Respondents admit Petitioner did

not receive adequate notice by stating “[t]he

Complaint is also frivolous for the remaining reasons

discussed in Airbnb’s Motion to Dismiss” in the Rule

11 motion. The District Court cited the motion to

dismiss multiple times and legal authority for

collateral estoppel in the order granting fees which

specific authority was not included in the Rule 11

motion thus Petitioner’s due process rights were

violated.

The District Court was required to explain the

basis for its selection of an appropriate sanction, in

addition to explaining why the conduct at issue

violated the rule. Cilia v. Fidelity Inus., No. 05-7184,

2006 U.S. App. LEXIS 20296 (D.C. Cir. Aug. 3,

2006)(remanding for the district court to state its

grounds for imposing sanctions); Zuk v. Eastern Pa.

Psychiatric Inst, of the Med. College of Pa., 103 F.3d

294, 301 (3d Cir. 1996)(remanding for further

consideration of appropriate sanction where district

court failed to explain basis for its imposition of severe

sanctions and failed to consider mitigating factors).

The Court failed to explain legal grounds for

concluding each claim violated Rule 11.

A District Court “abuses its discretion if it bases

its decision on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Revson

v. Cinque & Cinque, P.C., 221 F.3d 71, 78(2d Cir.

2000); In re Allen, No. 06-1429, 2007 U.S. App. LEXIS

22445, at *9 (10th Cir. Sept. 19, 2007)(sanctions are

reviewed under abuse of discretion standard,

“[h]owever, any statutory interpretation or other legal

analysis which provides the basis for the award is

reviewable de novo”). Even with an abuse of discretion

standard, “[cjoncerns for the effect on both an

attorney’s reputation and for the vigor and creativity

of advocacy by other members of the bar necessarily

require that we exercise less than total deference to

the district court in its decision to impose Rule 11

sanctions. Thompson v. Duke, 940 F.2d 192, 195 (7th

Cir. 1991). The Appellate Court did not review

Petitioner’s arguments on appeal under such

standard.

When a "complaint is the primary focus of Rule

11 proceedings, a district court must determine (1)

whether the complaint is legally or factually baseless

from an objective perspective, and (2) if the attorney

has conducted a reasonable and competent inquiry

before signing and filing it. Christian v. Mattel, Inc.,

286 F.3d 1118, 1127 (9th Cir. 2002). With regard to

factual contentions, "sanctions may not be imposed

unless a particular allegation is utterly lacking in

support." O'Brien u. Alexander, 101 F.3d 1479, 1489

(2d Cir. 1996) Such allegations have to be considered

in a group, because, the isolation of fragmentary

contentions creates

the

appearance

of an

unwarranted contention. Schlaifer Nance Co., 194

F.3d 337. Apostolic Pentecostal Church v. Colbert, 169

F.3d 409, 417 (6th Cir. 1999)(remand because district

court did not specifically inquire into whether

contentions in garnishee disclosure had evidentiary

support). The District Court did not discuss this two

prong inquiry nor state which allegations were

lacking in support.

Under the legally frivolous prong, the test is

whether a party’s conduct is objectively unreasonable,

with no showing of bad faith required which involves

an assessment of (1) the knowledge that reasonably

could have been acquired at the time the pleading was

filed; (2) the type of claims and difficulty of acquiring

sufficient information; and (3) which party has access

to the relevant facts. Townsend v. Holman Consulting

Corp., 914 F.2d 1136, 1139-1140 (9th Cir. 1990). To

establish a Rule 11(b)(2) violation, it must be patently

clear that a claim has absolutely no chance of success

under the existing precedents, and where no

reasonable argument can be advanced to extend,

modify or reverse the law as it stands. Shin Park v.

Seoul Broad. Sys. Co., 2008 U.S. Dist. LEXIS 17277

(S.D.N.Y. Mar. 3, 2008). The Court concluded the

complaint was frivolous with no discussion of the the

claims nor allegations in the complaint.

The District Court discussed multiple cases in

the January 2022 Rule 11 order where only one was

cited in the Rule 11 motion, Buster v. Greisen, 104

F.3d 1186, 1190 (9th Cir. 1997), where a court

concluded that the suit was barred by the res judicata

and collateral estoppel effects of the prior judgment

however Petitioner did not seek to overturn any

judgment. In re Grantham Brothers, 922 F.2d 1438,

1442 (9th Cir. 1991) cert, denied, 502 U.S. 826 (1991))

involved a Rule 11 award for a complaint that involved

an impermissible collateral attack upon a bankruptcy

court order approving sale of property. Id. 1441.

Petitioner’s claims sought no collateral attack on any

court order. Maciosek v. Blue Cross & Blue Shield

United of Wisconsin, 930 F.2d 536, 542 (7th Cir. 1991)

involved an award after Plaintiffs attorneys knew

from their involvement in previous cases that two of

Plaintiffs four claims had been ruled preempted by

ERISA. No legal theory established Petitioner’s

claims were pre-empted by ERISA or any legal

authority. In Welk v. GMAC Mortg., LLC, 720 F3d

736, 738-39 (8th Cir. 2013) the Appellate Court

affirmed a sanctions award after an attorney brought

thirteen separate claims for the plaintiffs, nearly

rested on a “show me the note” theory which had been

rejected by the courts. Petitioner’s claims were not

barred by any rejected theories. Finally, Roberts v.

Chevron, 117 F.R.D. 581 (M.D. La. 1987), affd, 857

F.2d 1471 (5th Cir. 1988)) involved sanctions for an

attempt to have a state court reverse or change a valid

federal court judgment. Petitioner’s claims did not

seek to reverse or change a federal judgment. No

authority supporting collateral estoppel was cited in

the Rule 11 motion which only briefly mentioned the

litigation privilege without any specific authority why

the claims against Airbnb (a non-party to state

proceedings) or Jeff Henry, Dave Wilmer and Sanaz

Ebrahini should be amended or withdrawn.

The Court abused its discretion overruling

Petitioner’s objections to the Court taking judicial

notice of Airbnb Respondents Exhibits filed with the

Rule 11 motion as Respondents sought judicial notice

of publicly and non-publicly available documents for

the purpose of contending that statements set forth

therein were true facts. Perretta v. Prometheus Dev.

Co., No. C-05-02987- WHA, 2006 U.S. Dist. LEXIS

10108, at *7-8 (N.D. Cal. Feb. 24, 2006). The District

Court had incorporated by reference disputed facts

from the motion to dismiss order in the order granting

sanctions which was an abuse of discretion. The

District Court stated the complaint is baseless

because all claims are barred by the preclusive effect

of the state court’s rulings on the motion to lift the

stay and the motion for sanctions however the motion

to lift the stay was interlocutory and state Appellate

Court found no evidence of a clerical error and

confirmed evidence of a late payment which are

disputed facts. The complaint was at issue but the

Court stated Petitioner was admonished for

unprofessional conduct when the Appellate Court

already concluded Airbnb Respondents misled the

state court. McCluskey v. Henry, 56 Cal.App.5th 1197,

1202. The Appellate opinion also did not discuss

precedent cited by Petitioner under the Federal

Arbitration Act. McCluskey v. Henry, 56 Cal.App.5th

at 1197. It was undisputed in the record Respondent

committed fraud misleading the state court judge

then opposed discovery on such issue even in these

proceedings.

The District Court denied Petitioner’s request

for Rule 11 sanctions because it violated Fed. R. Civ.

P. 11(c)(2) since he did not bring a separate motion

however this is not required. Goldberg v. Blue Ridge

Farms, Inc., 2005 U.S. Dist. LEXIS 42907, at *7

(E.D.N.Y. July 26, 2005).

Legal authority for issue preclusion was not

discussed in the Rule 11 motion but was in the Court’s

order dismissing the complaint. When a Court

imposes sanctions on its own initiative, first, the court

must issue a “show cause” order to the party or

attorney who is exposed to sanctions. See Bass v. E.I.

DuPont de Nemours & Co., 324 F.3d 761, 767(4th Cir.

2003) (vacating sanctions award where court did not

issue order to show cause); Methode Elecs., Inc. v.

Adam Techs., Inc., 371 F.3d 923, 927 (7th Cir. 2004).

Second, the show cause order, like a party’s sanctions

motion, must describe the specific conduct that

appears to violate Rule 11(b). Thornton v. General

Motors Corp., 136 F.3d 450, 455 (5th Cir. 1998) A

higher standard may also apply because no “safe

harbor” applies to sanctions imposed on the court’s

own initiative, thus particular care must be taken not

to impose sanctions in a manner that will deter

zealous advocacy. MHC Inv. Co. v. Racom Corp., 323

F.3d 620, see United Nat’l Ins. Co. v. R&D Latex

Corp., 242 F.3d 1102, 1118 (9th Cir. 2001)(reversing

sua sponte sanctions because conduct “was in neither

purpose nor substance ‘akin to contempt’”). Even if an

a show cause order was issued, where a court sua

sponte initiates sanctions proceedings under

circumstances where the lawyer has no opportunity to

correct or withdraw the challenged submission, a bad

faith, rather than objective reasonableness, standard

applies. In re Pennie & Edmonds LLP, 323 F.3d 86 (2d

Cir. 2003).

A sanction also cannot exceed the amount the

court finds sufficient to deter repetition of the

sanctioned conduct, either by the party or attorney

sanctioned, or others similarly situated. The 1993 rule

disfavors monetary awards to the proponent of the

Rule 11 motion. Landscape Properties, Inc. v.

Whisenhunt, 127 F.3d 678, 685 (8th Cir. 1997) In

addition, courts applying the amended rule have

considered whether the conservation of judicial

resources counsels against a sanctions proceeding.

Simmons v. Suare, 4:94CV131, 1995 U.S. Dist. LEXIS

14948, at *11 (W.D.N.C. Sept. 15, 1995). When

monetary sanctions are found to be necessary, they

“should ordinarily be paid into court as a penalty, only

under unusual circumstances, particularly for

violations of Rule ll’s improper purpose subsection,

will monetary sanctions payable to the opposing party

be an effective deterrent. 1993 Advisory Committee

Notes; Divane v. Krull Elec. Co., 200 F.3d 1020, 1030

(7th Cir. 1999).

Federal courts in federal law cases use the

lodestar method— the reasonable number of hours

expended multiplied by the reasonable hourly rate—

the result of which is presumed to be reasonable.

Combs v. City of Huntington, 829 F.3d 388, 393 (5th

Cir. 2016). "The party seeking reimbursement of

attorneys' fees has the burden of establishing the

number of attorney hours expended, and can meet

that burden only by presenting evidence that is

adequate for the court to determine what hours should

be included in the reimbursement." La. Power & Light

Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). "The

court should exclude all time that is excessive,

duplicative, or inadequately documented." Jimenez v.

Wood Cty., 621 F.3d 372, 379-80 (5th Cir. 2010).

Airbnb Respondents bore the burden of establishing

by way of satisfactory evidence, in addition to their

own affidavits that the requested hourly rates met

this standard. Id.; Washington v. Philadelphia Cty.

Ct., Common, 89 F.3d 1031, 1035 (3d Cir. 1996). Only

one of the three attorneys, Damali Taylor, submitted

an affidavits identifying their usual billing rates and

time spent and the rates are clearly inflated thus

counsel failed to fulfill their duty to the court as no

testimony was provided Airbnb ever paid these rates

nor were billing sheets provided. District courts also

have the discretion to deny a fee request in its entirety

when the requested amount is "outrageously

excessive." Brown u. Stackler , 612 F.2d 1057, 1059

(7th Cir. 1980). The amount of Rule 11 fees was

excessive and should have been denied in its entirety.

Moreover, "if the district court determines that

the unsuccessful claims...were indeed unrelated to the

successful ones, the burden of showing which hours

are recoverable for work on the successful claims will

of course rest with the fee applicant." Buffington v.

Baltimore County, 913 F.2d 113, 128 (4th Cir.), reh'g

denied (1990). The burden was on Airbnb

Respondents to separate work on vexatious litigant

motion from Rule 11 motion and motion to dismiss

and other unrelated tasks and they failed. Their

spreadsheet contained general descriptions of work

performed and no evidence of contemporaneous time

entries.

The party opposing the fee application must

satisfy his obligation to provide specific and

reasonably precise objections concerning hours that

should be excluded. American Civil Liberties Un. of

Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)

Erroneous admission/exclusion of evidence is

reviewed under abuse of discretion standard. Piarnba

Cortes v. American Airlines, Inc., 177 F.3d 1272, 130506 (11th Cir. 1999). The complaining party must

establish that the error resulted in a “substantial

prejudicial effect.” Id. Petitioner specifically objected

to all the line items including time in Reply papers

and the District Court did not review Petitioner’s

objections in error and his request for an evidentiary

hearing or supplemental briefing which caused

Petitioner substantial prejudice as almost all fees

were awarded.

An attorney's ability to pay is also undoubtedly

a legitimate consideration when imposing Rule 11

sanctions. In re Yagman, 796 F.2d 1165, 1185 (9th

Cir. 1986). The offender's ability to pay must also be

considered, not because it affects the egregious ness of

the violation, but because the purpose of monetary

sanctions is to deter attorney and litigant misconduct.

Doering v. Un. Cty. Bd. of Chosen Freeholdersx 857

F.2d 191, 196 (3d Cir. 1988). Because of their

deterrent purpose, Rule 11 sanctions are analogous to

punitive damages. Cotner v. Hopkins, 795 F.2d 900,

903 (10th Cir. 1986) (considering financial status of

offender in evaluating effect of fine imposed under

Rule 11. Inability to pay what the court would

otherwise regard as an appropriate sanction should be

treated as reasonably akin to an affirmative defense,

with the burden upon the parties being sanctioned to

come forward with evidence of their financial status.

Landscape Properties, Inc. v. Whisenhunt, 127 F.3d

678, 685 (8th Cir. 1997) Petitioner offered evidence he

did not have ability to pay the inordinate Rule 11 fees

based on his minimal income and assets and

inordinate liabilities. His bankruptcy proceeding was

pending. Yet no hearing was held to enable Petitioner

to respond to any further evidence required from the

District Court either.

3. Whether denial to Petitioner of oral

argument by the Magistrate Judge through

the entire proceedings including in

Petitioner opposing Rule 11 sanctions

followed by the Ninth Circuit denying

Petitioner’s request for oral argument and as

a request for special accommodation under

the American With Disabilities Act of 1990,

As Amended warrants reversal.

The subject of a motion for sanctions is entitled

to an opportunity to be heard. Sakon, Sakon v.

Andreo, 119 F.3d 109, 113(2d Cir. 1997). The District

Court granted Rule 11 sanctions for reasons not

included in the motion then cancelled the February 3,

2022 hearing thus Petitioner was denied an

opportunity to be heard. There is no requirement that

an evidentiary hearing be held prior to the imposition

of sanctions, absent disputed facts or issues of

credibility, (Chemiakin v. Yefimov, 932 F.2d 124, 130

(2d Cir. 1991)) however disputed facts existed

underlying the Court’s order based on the timeliness

of a wire transfer and Airbnb Respondents

extortionate behavior. The District Court cited

disputed facts in the order granting sanctions. Issues

of credibility existed as the District Court questioned

Petitioner’s credibility referencing disputed facts from

interlocutory state orders even after Petitioner offered

evidence Airbnb Respondents misled the state trial

court and the Appellate Court’s factual findings made

clear the AAA confirmed any payment was late.

McCluskey v. Henry, 56 Cal.App.5th 1197, 1202(Cal.

Ct. App. 2020)

4. Whether The Rule 11 Motion Should Have

Been Denied Because Airbnb Respondents

Did Mot Mitigate Attorney Fees?

The party opposing a pleading or a motion that

violates Rule 11 bears an obligation to mitigate its

attorneys’ fees. Pollution Control Indus, of Am. v. Van

Gundy, 21 F.3d 152, 156 (7th Cir. 1994)(vacating

sanctions against plaintiffs and remanding for

appropriate award); KRW Sales, Inc. v. Kristel Corp.,

No. 93 C 4377, 1993 U.S. Dist. LEXIS 17246, at *8

(N.D. Ill. Dec. 3, 1993)(sanctions denied because

plaintiff should have mitigated its damages by

notifying defendant and attempting to have the

problem corrected instead of waiting and filing Rule

11 motion). Airbnb Respondents did not contact

Petitioner to discuss any purported deficiencies in the

complaint and decided early on they were filing a Rule

11 motion. Since Airbnb Respondents did not make

any effort to mitigate fees all fees should have been

denied.

5. Whether California’s Anti-SLAPP Statute

Can Apply In Federal Court Because The

Statute Answers The Same Question As

The Federal Rules And Is Valid Under The

Rules Enabling Act?

In diversity cases where the issue is whether a

state or federal law should apply, a court may apply

“the typical, relatively unguided Erie choice[,]”

{Hanna v. Plumer, 380 U.S. 460, 471 (1965)) under

which “federal courts sitting in diversity apply state

substantive law and federal procedural law.”

Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415,

427(1996). However, in situations covered by the

Federal Rules, courts will apply the relevant Rule,

unless it is either invalid under the Rules Enabling

Act (28 U.S.C. §2072) or unconstitutional. Hanna, 380

U.S. at 471. AntiSLAPP statutes conflict with Federal

Rules 8, 12, and 56 because both the antiSLAPP

statutes and the Rules govern pre-trial dismissal of

claims. Klocke v. Watson, 936 F.3d 240, (5th Cir.

2019); Carbone v. CNN, Inc., 910 F.3d 1345 (11th Cir.

2018); Abbas v. Foreign Poly Grp., LLC, 783 F.3d 1328

(D.C. Cir. 2015).

The state anti-SLAPP statutes do not create

substantive rights and merely exist to provide

additional protection for rights found in the First

Amendment, state constitutions, and state laws.

Makaeff v. Trump Univ., LLC (Makaeff I), 715 F.3d

254, 273 (9th Cir. 2013)(Kozinski, J., concurring). The

statutes do not define the scope of the rights so much

as they provide a “protective mechanism” for them.

Klocke, 936 F.3d at 247; Abbas, 783 F.3d at 1335;

Makaeff I, 715 F.3d at 273(Kozinski, J., concurring).

Similar to the statute in Shady Grove, which applied

to claims based on any state’s law, (Shady Grove, 559

U.S. at 432 (Stevens, J., concurring)), antiSLAPP

statutes also operate to protect defendants based on

the type of claim, not the specific state’s own law.

C.C.P. §425.16. As in Shady Grove, it is difficult to see

how anti-SLAPP statutes could be “so intertwined

with a state right” if they are not tied to the rights of

a specific state but just to certain types of claims.

Shady Grove, 559 U.S. at 423 (Stevens, J.,

concurring); see C.C.P. §425.16. Thus, even under

Justice Stevens’s test, Rules 8, 12, and 56 are valid

under the Rules Enabling Act. Because Rules 8, 12,

and 56 are valid under both Justice Scalia’s and

Justice Stevens’s tests, they are valid under the Rules

Enabling Act. Consequently, because the Federal

Rules are valid and govern pre-trial dismissal in

federal court, anti-SLAPP statutes should not be

applied in federal diversity cases. Furthermore, the

anti-SLAPP statute only permits an award of

attorney’s fees if the defendant prevails under the

specific motion. C.C.P. 425.16(c)(1). As a result,

because the award is dependent on the defendant

prevailing under the statutorily proscribed method,

the attorney’s fees must also rise and fall with the

special motion. Since SRC Respondents special

motion cannot apply in federal court, neither can the

attorney fee provision and all fees should have been

denied.

On January 10, 2022 the Court ordered SRC

Respondents to file their fee petition within 30 days.

They filed the fee petition 31 days later February 11,

2022 thus all fees should have been denied. Federal

courts use the lodestar method—the reasonable

number of hours expended multiplied by the

reasonable hourly rate—the result of which is

presumed to be reasonable. Combs v. City of

Huntington, 829 F.3d 388, 393 (5t,h Cir. 2016). A fee

application must be supported by: (1) adequate

testimony (live or by affidavit), covering all the

necessary areas, proving at a minimum an attorney’s

experience, reasonable hourly rate, and billing

judgment exercised; and (2) contemporaneous billing

time records. Hensley, 461 U.S. at 438 n.13. In re

Nissan Litig., 2018 U.S. Dist. Lexis 154982, at *12.

While editing and revising is permitted, wholesale re

creation of billing entries from documents, calendars,

and other extrinsic evidence is insufficient. Ariz.

Dream Act Coal., 2018 U.S. Dist. Lexis 207625, at

*19-22. Typically, adequate billing records require

that each entry identify the date performed, the

individual performing the task, and the hourly rate of

the individual or charge for the task; describe the

general subject matter of the task; and assign an

amount of time to perform the task. See generally

Tech Pharmacy, 2017 U.S. Dist. Lexis 211061, at *15—

16. With respect to individual entries, the courts seek

information sufficient to allow them to evaluate the

reasonableness not only of that entry but also of the

overall fee request. See generally KeyCorp, 2017 U.S.

Dist. Lexis 21372, at *40. The court should exclude all

time that is excessive, duplicative, or inadequately

documented." Jimenez v. Wood Cty., 621 F.3d 372,

379-80 (5th Cir. 2010). SRC Respondents sought fees

and tasked one lawyer with recreating time records

with vague descriptions and excessive hours. They did

not maintain contemporaneous time records, instead

recreating the records for the amended petition. The

descriptions in the entries did not indicate the nature

of the subject being reviewed and their entries were

unnecessary and excessive as the same descriptions

are repeatedly copied especially in the entries for the

time claimed for the reply. Natasha Mayat did not

provide an affidavit nor did Mr. Servais for

contemporaneous entries of his own time. The entire

amount should have been denied.

District courts have the discretion to deny a fee

request in its entirety when the requested amount is

"outrageously excessive" under the circumstances.

Brown v. Stackler , 612 F.2d 1057,1059 (7th Cir. 1980)

It is the duty of the requesting party to "make a good

faith effort to exclude...hours that are excessive,

redundant, or otherwise unnecessary, just as a lawyer

in private practice ethically is obligated to exclude

such hours from his fee submission." Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983). To discourage

such greed a severe reaction is needful. Brown v.

Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980). The

initial fee request was inflated to an intolerable

degree as SRC Respondents claimed double the fees.

After the Court gave them the opportunity to cure

deficiencies, they tried to recreate billing records and

sought an inordinate amount of time for the reply

papers claiming they took twice as long as the motion.

The party opposing the fee application must

satisfy his obligation to provide specific and

reasonably precise objections concerning hours that

should be excluded. Barnes, 168 F.3d at 428). Given

this requirement, the respondent must pore over the

applicant’s billing records with auditor- like attention,

line-by-line,

making specific objections (e.g.,

duplicative, attributable solely to a failed claim, block

billing). Erroneous admission/exclusion of evidence is

reviewed under abuse of discretion standard. Piamba

Cortes v. American Airlines, Inc., 177 F.3d 1272, 130506 (11th Cir. 1999). The complaining party must

establish that the error resulted in a “substantial

prejudicial effect.” Id. Petitioner objected to the time

entries and the Court did not review the objections in

which caused Petitioner substantial prejudice as fees

were awarded based on a spreadsheet and no

testimony was introduced who entered the time and

when.

6. Whether The Appellate Court Applied The

Proper

Standard

Appeal

Determining Whether Petitioner’s Motion

For Recusal Should Have Been Granted?

The abuse of discretion standard for judging the

appearance of partiality requiring recusal under 28

U.S.C. §455 is an objective one and involves

ascertaining whether a reasonable person with

knowledge of all the facts would conclude that the

judge's impartiality might reasonably be questioned.

United States v. Nelson, 718 F.2d 315, 321(9th Cir.

1983). Erroneous admission/exclusion of evidence is

reviewed under abuse of discretion standard. Piarnba

Cortes v. American Airlines, Inc., 177 F.3d 1272, 130506 (11th Cir. 1999). The complaining party must

establish that the error resulted in a “substantial

prejudicial effect.” Id. There is no indication in the

Appellate Opinion the Court applied the abuse of

disci'etion standard but instead they summarily

concluded there was no basis for recusal despite

evidence of apparent and actual bias.

Two statutes govern a Judge’s recusal in

federal court, 28 U.S.C §§ 144 & 455. The standard

under either statute is the same: “[W]hether a

reasonable person with knowledge of all of the facts

would conclude that the judge’s impartiality might

reasonably be questioned.” United States v. Studley,

783 F.2d 934, 939 (9th Cir. 1986)). “Ordinarily, the

alleged bias must stem from an ‘extrajudicial

source [,]’” and “judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.”

Id. at 1454 (quoting Liteky v. United States, 510 U.S.

540, 554-56 (1994)).“[0]pinions formed by the judge on

the basis of facts introduced or events occurring in the

course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair

judgment impossible.” Id. (quoting Liteky, 510 U.S. at

554-56). When presented with an affidavit of prejudice

a judge may not pass upon the truth or falsity of the

allegations therein, but must accept them as true for

the purpose of passing upon the legal sufficiency of the

affidavit. Berger v. United States, 255 U.S. 22, 41

(1921) The bias contemplated by 28 U.S.C.A. §144 is a

personal bias, extrajudicial in origin, that a judge may

have against a particular defendant. Hodgdon v.

United States, 365 F.2d 679, 686 (8th Cir. 1966), cert,

denied 385 U.S. 1029.

Airbnb Respondents filed a frivolous vexatious

litigant motion which was denied yet it was Petitioner

who was warned he may be subject to injunctive relief

if he filed another claim against Airbnb Respondents.

The District Court did not advise Airbnb Respondents

they would be subject to injunctive relief if another

frivolous vexatious litigant motion was filed.

Petitioner filed an Anti-SLAPP motion opposing the

vexatious litigant motion and the Court struck the

motion stating it had no merit despite the fact under

the second prong of Cal. Civ. Proc. 425.16 a Defendant

party has to prove such motion has merit. 10-2372. In

contrast, District Court applied the two prongs under

Cal. Civ. Proc. 425.16 when considering SRC

Respondents AntiSLAPP motion.

The District Court quickly struck Petitioner

opposition he filed 21 days after the vexatious litigant

motion was filed. When SRC Respondents did not file

their reply to the AntiSLAPP motion, the District

Court reminded them to file a reply and allowed it to

,J w

be filed almost two weeks late. SRC Respondents filed

their fee request and reply each a day late and the

District Court did not strike these pleadings. Even if

a "judge declines to grant recusal pursuant to section

455(a) & (b)(1), the judge still must determine the

legal sufficiency of the affidavit filed pursuant to

section 144." United States v. Sibla, 624 F.2d 864, 868

(9th Cir. 1980). The Court did not address this

requirement.

Petitioner stated facts exist that call into

question the District Court’s impartiality. Petitioner

discovered the Court had a longstanding personal and

business relationship with two executives at Airbnb

John Polito and Lucy Wang and this exhibited the

appearance of bias. When the District Court

concluded SRC Respondents fee petition, was

inadequate the Court ordered them to amend it and

gave an unsolicited extension. When the District

Court concluded Petitioner evidence of his income and

net assets was deficient in opposition to the Rule 11

fee petition, the Court did not hold an evidentiary

hearing nor give Petitioner an opportunity to submit

additional evidence. The District Court failed to rule

on Petitioner’s objections to the SRC and Airbnb

Respondents fee petitions nor allow supplemental

briefing despite Petitioner request.

Petitioner offered testimony there was evidence

on display throughout this case of bias when no

hearings were held and inconsistent treatment by

Petitioner versus other parties and opposing counsel

which exhibited a deep-seated favoritism and

antagonism by the Court that would make any fair

judgment impossible by the Court. Petitioner stated

the District Court continued to be biased against

Petitioner throughout the proceedings which is

evident based on the statements by him in his orders

including in the order denying the frivolous vexatious

litigant motion and the order granting Rule 11 fees for

reasons not described in the Airbnb Respondents Rule

11 motion. The Court did not permit Petitioner to

conduct an evidentiary hearing where Petitioner could

cross-examine John Polito or anyone offering

testimony on fees nor would the Court allow

supplemental briefing opposing Respondents fee

motions because the Court was personally biased in

favor of Defendants and Airbnb executives Polino and

Wang. Thus the record indicated the Court

demonstrated a

deep-seated favoritism

and

antagonism towards Petitioner that would make a fair

judgment impossible for Petitioner. United States v.

Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997)

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Date: September 5, 2023

Respectfully submitted,

Michael Moga

4803 N. Milwaukee Ave.

Suite B, Unit #244

Chicago, IL 60630

(949) 424-5237

mm@michaelmogan.com

Pro Se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.