Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#551

Post by Sterngard Friegen » Sat Mar 31, 2018 12:54 am

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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#552

Post by Foggy » Sat Mar 31, 2018 7:48 am

4: Is it possible that Trump is bound to the contract, despite having no knowledge of the contract, under various agency law theories?
This is standard SovCit high school law: Notice to principal is notice to agent. Notice to agent is notice to principal. Notice to vice-principal goes on your permanent attendance record.
If Avenatti advised Stormy of the risks of filing the defamation case, and she agreed to it in advance, then the legal fees are on her. How many of you Fogbowzers think that happened? Raise your hands.
Umm ... no.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#553

Post by ZekeB » Sat Mar 31, 2018 8:31 am

If agent is acting within scope of his agency.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#554

Post by Sterngard Friegen » Sat Mar 31, 2018 11:10 am

Stormy Daniels’ Attorney May Have Fallen Into SLAPP Trap
California’s anti-SLAPP statute presents a formidable trap for the unsuspecting plaintiffs attorney, especially when it comes to claims that are based on statements connected to an actual or possible legal matter. The consequences for filing a SLAPP suit (strategic lawsuit against public participation) can be devastating. And it appears that the attorney for adult film star Stormy Daniels, Michael J. Avenatti, may have just stepped on that legal landmine, subjecting himself and his client to an anti-SLAPP special motion to strike and substantial monetary sanctions.
. . .

. . . Given these facts, Cohen’s statements are arguably protected speech made in connection with legal proceedings under California’s anti-SLAPP statute and litigation privilege. Consequently, Daniels’ defamation claim is not only subject to dismissal, but may also subject her to significant sanctions.

. . .

. . . Furthermore, filing an anti-SLAPP motion could also blunt Avenatti’s efforts to depose Cohen and Trump. Upon the filing of an anti-SLAPP motion, all discovery proceedings are stayed until notice of entry of an order ruling on the anti-SLAPP motion. Thus, Avenatti’s efforts to depose Trump would be immediately thwarted by Cohen filing an anti-SLAPP motion.

Incredibly, this would not be the first time Avenatti has asserted a claim that ran afoul of the anti-SLAPP statute. Just last month, a Los Angeles judge awarded a law firm $1.6 million in attorney’s fees after it prevailed on an anti-SLAPP motion against a plaintiff that was represented by Avenatti.
https://www.bbklaw.com/news-events/insi ... into-slapp

Lots more, but under the four paragraph rule you get the gist. The argument is that everything is potentially covered by the Litigation Privilege. No analysis of the allegedly defamatory lanuage.

In addition to the Latham, Watkins case in which $1.6 million in fees was awarded against Avenatti's client in a SLAPP, I found two other cases where the courts held that Avenatti and his firm had filed SLAPPs. So the Chin should know all about C.C.P. sec. 425.16.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#555

Post by Tiredretiredlawyer » Sat Mar 31, 2018 11:31 am

https://www.politico.com/magazine/amp/s ... ory-217718?
Why Stormy Daniels Is Different
In the recent history of political sex scandals, Donald Trump’s alleged paramour stands out. Here’s how.


Women who have had consensual sex with married male politicians usually play a limited set of assigned roles: In our national consciousness, they could be sex kittens (Ashley Dupré), gooey-eyed love birds (Rielle Hunter) or social climbers (Sydney Leathers).

Stormy Daniels is something new. Never before was such a woman an independent businessperson who, before her scandal, had already made a name for herself and cultivated fans of her work. (Before her alleged tête-à-tête with Trump in 2006, Daniels was already an award-winning adult film performer.) Nor has any such woman ever told her story so unapologetically. Daniels readily admits to having sex with Trump—even to asking him to pull down his pants so she could spank him with a magazine bearing his face on its cover. Nor does Daniels make excuses. She did not have sex with Trump because she felt beholden to a man in power; she did it because, in her recent admission on “60 Minutes,” “I had it coming for making a bad decision for going to his room alone.” (You don’t have to be a porn star to find that assertion believable and relatable.)

In fact, what makes Daniels so different is a lot like what makes Trump different—she doesn’t seem ashamed. After all, she’s a sex professional, and has no qualms talking about the bedroom; there’s no fig leaf of decency to protect. It’s no surprise, then, that she would monetize the experience once this revelation had entered the public sphere. Daniels might not bring down Trump in the way that other women in political sex scandals have, but she is rewriting the standard sex scandal script—and happily profiting along the way. She’s owning it.

Daniels is blunt and unashamed. She matches Trump’s talk and raises him without bluffing. And she knows it’s all ratings gold. After all, why shouldn’t Daniels reap the benefits of telling her version of events, instead of playing the part of a woman on the side with a muted voice? If Stormy Daniels is going to be talked about, analyzed and outed in a media and entertainment world dominated by men, then she’s making sure she gets her fair share of the action.
And women like her, IMHO.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#556

Post by Foggy » Sat Mar 31, 2018 3:37 pm

Sterngard Friegen wrote:In addition to the Latham, Watkins case in which $1.6 million in fees was awarded against Avenatti's client in a SLAPP, I found two other cases where the courts held that Avenatti and his firm had filed SLAPPs. So the Chin should know all about C.C.P. sec. 425.16.
:shock:


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#557

Post by Sterngard Friegen » Sat Mar 31, 2018 4:36 pm

The Chin has big cases.

Unfortunately, they're big recoveries for the other side.

He also had a big shitkicker of a dispute with his former partners when he dissolved his last firm, or the one before that.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#558

Post by Dallasite » Mon Apr 02, 2018 6:14 pm

I found out last week, Ms Clifford lives about 2 miles up the road from me.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#559

Post by Dolly » Mon Apr 02, 2018 10:05 pm

Trump asks judge for private arbitration in Stormy Daniels lawsuit

President Trump and his attorney, Michael Cohen, filed paperwork on Monday asking a federal judge to order a lawsuit brought by adult film star Stormy Daniels be resolved through private arbitration.
..............................
Multiple news outlets reported that in Monday’s filing in Los Angeles, Cohen claims Daniels had not previously raised any issues with the non-disclosure agreement prior to her lawsuit.

Daniels’ attorney, Michael Avenatti, tweeted late Monday that he will “vigorously oppose” the request for private arbitration.

“This is a democracy and this matter should be decided in an open court of law owned by the people,” Avenatti said.
http://thehill.com/blogs/blog-briefing- ... ls-lawsuit


tweet in the article:
Michael Avenatti
@MichaelAvenatti
We will vigorously oppose the just-filed motion by DJT and MC to have this case decided in a private arbitration, in a private conf room, hidden from the American public. This is a democracy and this matter should be decided in an open court of law owned by the people. #sunlight

4:03 PM - Apr 2, 2018


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#560

Post by Orlylicious » Mon Apr 02, 2018 10:16 pm

All four tweets are funny, how these must be getting passed around...

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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#561

Post by Dan1100 » Mon Apr 02, 2018 10:21 pm

Dallasite wrote:
Mon Apr 02, 2018 6:14 pm
I found out last week, Ms Clifford lives about 2 miles up the road from me.
Big expensive house in expensive neighborhood (suitable for stashing assets in anticipation of bankruptcy)? Adding a pool and some more rooms?


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#562

Post by Tiredretiredlawyer » Mon Apr 02, 2018 11:09 pm

Dallasite wrote:
Mon Apr 02, 2018 6:14 pm
I found out last week, Ms Clifford lives about 2 miles up the road from me.
Hi! Long time no see! Welcome back! :wave:


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#563

Post by Mikedunford » Mon Apr 02, 2018 11:33 pm

Short version of Arbitration Motion stuff:

1: Anti-SLAPP will be filed on defamation.
2: Buckeye Check Cashing v Cardegna, 546 U.S. 440 (2005), requires that challenges to the validity of the contract as a whole, as opposed to challenges to the arbitration clause itself, go to the arbitrator to decide, not the court.

I await :sterngard: 's exploration of whether the motion complies with local rules.

On the substance, the I think the primary case cited is on point, and would almost certainly be decisive if the agreement was competently drafted. In this case, I'd say it's only probably decisive.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#564

Post by Sterngard Friegen » Mon Apr 02, 2018 11:56 pm

I agree with Mike. The first claim will be sent to arbitration, the second claim will be subject to a special motion to strike. But ordering the first claim to arbitration will be close since David Dennison is the party on his side to compel arbitration and only Essential Consultants has sought arbitration, with Donald Trump (not Dennison) joining in the motion. (Harder may be too clever by half. Only if Trump is Dennison does he have standing to join and to be a proper party to the arbitration. The joinder ignores that factual link.) I predict Judge Otero will grumble about that but send it to an arbitrator to let the arbitrator sort it out.

Here's what I predict "on the merits":

First claim: An integral term of the hush agreement was that David Dennison would release Stormy Daniels. The agreement recites that he had claims against her. But if Dennison did not sign the agreement, she could not be released. Thus, the arbitrator will find the agreement fails for lack of consideration, holding that Daniels is free to blab but has to pay Essential Consultants back the money. In the meantime, Avenatti may be able to obtain some discovery and possibly take Trump's deposition.

Second claim: The allegedly defamatory language is not false nor capable of being defamatory, there is no possibility the language would harm Daniels, and the statement is covered by the litigation privilege. The special motion to strike will be granted and attorney's fees will be awarded against Daniels. If Cohen's lawyer follows Rule 11, and demands the lawsuit be dismissed, there is also a chance that Avenatti will be personally sanctioned. If Cohen's lawyer makes a "safe harbor" demand for dismissal, it will put Avenatti in a bind. If he dismisses he doesn't get socked with Rule 11 sanctions, but if he dismisses the anti-SLAPP motion will essentially be deemed to have been won, and attorney's fees will be awardable against Daniels. There is a conflict of interest here. Too bad for Avenatti for trying to be aggressive. He was stupidly aggressive.

The case will end, Cohen will get his illegal campaign contribution back, Daniels will be free to talk about what she has already talked about and Cohen's lawyers will get a nice pay day.

After all that bad publicity for Trump and Avenatti hype, the lawsuit will end not with a bang but with a whimper.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#565

Post by maydijo » Tue Apr 03, 2018 1:54 am

Sterngard Friegen wrote:
Mon Apr 02, 2018 11:56 pm

After all that bad publicity for Trump and Avenatti hype, the lawsuit will end not with a bang but with a whimper.
Much like the act which necessitated the NDA in the first place . . .



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#566

Post by Dallasite » Tue Apr 03, 2018 1:57 am

Dan1100 wrote:
Mon Apr 02, 2018 10:21 pm
Dallasite wrote:
Mon Apr 02, 2018 6:14 pm
I found out last week, Ms Clifford lives about 2 miles up the road from me.
Big expensive house in expensive neighborhood (suitable for stashing assets in anticipation of bankruptcy)? Adding a pool and some more rooms?
No, actually just an average house in an average neighborhood. It's in one of the local planned community neighborhoods (I hate them! :evil: ). I think the HOA prohibits the pool. The community pool is big, though.
Tiredretiredlawyer wrote:
Mon Apr 02, 2018 11:09 pm
[quote=Dallasite post_id=974816 time=<a href="tel:1522707258">1522707258</a> user_id=723]
I found out last week, Ms Clifford lives about 2 miles up the road from me.
Hi! Long time no see! Welcome back! :wave:
[/quote]
Hi to you, too, also! :waves back:


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#567

Post by andersweinstein » Tue Apr 03, 2018 4:57 pm

I am still puzzled. MC is arguing that what looked like a three-party agreement (in which PP gets essential stuff from DD) cleverly left him the option to turn it into a two-party agreement, which he then did. Very plausibly, PP was defrauded by this too-clever switcheroo. Ah, no problem, you say, fraud in the inducement is a flaw in the contract as a whole, and that is for the arbiter to decide.

BUT: for that to happen, one has to find parties made a valid aribtration agreement. So look at the arbitration clause itself. Plainly it describes an agreement between DD and PP. It would give PP rights that, according to MC, she never actually got (e.g the right to compel DD to arbitrate rather than sue her), since DD never joined.

If DD never joined the contract as a party, shouldn't the arbitration clause just be struck out entirely when interpreting the resulting contract on MC's theory?

Sterngard Friegen wrote:
Mon Apr 02, 2018 11:56 pm
I agree with Mike. The first claim will be sent to arbitration, the second claim will be subject to a special motion to strike. But ordering the first claim to arbitration will be close since David Dennison is the party on his side to compel arbitration and only Essential Consultants has sought arbitration, with Donald Trump (not Dennison) joining in the motion. (Harder may be too clever by half. Only if Trump is Dennison does he have standing to join and to be a proper party to the arbitration. The joinder ignores that factual link.) I predict Judge Otero will grumble about that but send it to an arbitrator to let the arbitrator sort it out.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#568

Post by Mikedunford » Tue Apr 03, 2018 5:59 pm

andersweinstein wrote:
Tue Apr 03, 2018 4:57 pm
I am still puzzled. MC is arguing that what looked like a three-party agreement (in which PP gets essential stuff from DD) cleverly left him the option to turn it into a two-party agreement, which he then did. Very plausibly, PP was defrauded by this too-clever switcheroo. Ah, no problem, you say, fraud in the inducement is a flaw in the contract as a whole, and that is for the arbiter to decide.

BUT: for that to happen, one has to find parties made a valid aribtration agreement. So look at the arbitration clause itself. Plainly it describes an agreement between DD and PP. It would give PP rights that, according to MC, she never actually got (e.g the right to compel DD to arbitrate rather than sue her), since DD never joined.

If DD never joined the contract as a party, shouldn't the arbitration clause just be struck out entirely when interpreting the resulting contract on MC's theory?
The basic jurisprudential doctrine of kompetenz kompetenz is applicable to arbitration in most of the world, including the USA, mostly because it's virtually impossible for a system of dispute resolution to function without it. So the presumption is that the arbitrator has the capacity to determine if she has jurisdiction. And it's long-standing public policy to favor arbitration, particularly when (as is arguably the case here) the arbitration agreement is part of an arms-length agreement between parties with relatively equal bargaining power.

Challenges in court are really, really limited. I'm not at all sure a challenge to whether Trump is bound by the arbitration agreement is enough. That's not really a challenge to the validity of the clause, just the applicability. I know that's within the scope of arbitration in most of the world, and I suspect it's true in this case. The pathological nature of the contract leaves some room for doubt, but not a lot.


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#569

Post by Orlylicious » Tue Apr 03, 2018 6:25 pm

Wow even on a news day like today, Michael's on with Wolf on CNN next (6:24pm EDT). Something about asking the Treasury Department for help. Love the negative press for Donald. :lol:


ETA: They're leading the bottom of the hour with it, Michael released the tweet 30 minutes ago. It's going to be 6-7 minutes in air time. He want the Suspicious Activity Report (SAR) on the $130K which First Republic Bank (Cohen's bank) did. Here's the letter to Mnuchin. He wants the SAR released to show how the money flowed.





https://www.dropbox.com/s/g5310ztlxcfss ... 9.pdf?dl=0



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#570

Post by Dan1100 » Tue Apr 03, 2018 6:56 pm

So, when "Stormy and the Chin"© gets sent to arbitration, the Chin can, of course, appeal that to Trump's Favorite Circuit Court of Appeals. So, the show goes on, albeit in a less desirable time slot.

What is the chance that the arbitration gets stayed pending appeal?


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#571

Post by Mikedunford » Tue Apr 03, 2018 7:06 pm

Dan1100 wrote:
Tue Apr 03, 2018 6:56 pm
So, when "Stormy and the Chin"© gets sent to arbitration, the Chin can, of course, appeal that to Trump's Favorite Circuit Court of Appeals. So, the show goes on, albeit in a less desirable time slot.

What is the chance that the arbitration gets stayed pending appeal?
Unlikely IMO. Policy is to favor arbitration, and has been for decades. It's hard to see how any of the challenges that have been raised are challenges to the arb clausev rather than the contract as a whole. And Buckeye Check is very clear that challenges to the agreement go to arbitration. And that was a 7-1 decision, with Thomas as the sole dissent (and Alito not participating).


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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#572

Post by Sterngard Friegen » Tue Apr 03, 2018 8:22 pm

Is the suspicious activity report that Avenatti wants released exempt from disclosure under FOIA?



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#573

Post by Sterngard Friegen » Tue Apr 03, 2018 8:26 pm

Dan1100 wrote:
Tue Apr 03, 2018 6:56 pm
So, when "Stormy and the Chin"© gets sent to arbitration, the Chin can, of course, appeal that to Trump's Favorite Circuit Court of Appeals. So, the show goes on, albeit in a less desirable time slot.

What is the chance that the arbitration gets stayed pending appeal?
The Ninth Circuit has held that its district courts have inherent authority to manage their dockets and thus to dismiss or to stay cases when they compel arbitration of all of the claims that are before them. Sparling v. Hoffman Constr. Co., 864 F.2d 635 (9th Cir. 1988). Thus, Judge Otero gets to exercise his discretion. Since interlocutory appeals are permissible, I suspect Judge Otero will stay the first claim. As to the second claim, it will be the subject of a special motion to strike as a SLAPP.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#574

Post by Sterngard Friegen » Tue Apr 03, 2018 8:29 pm

maydijo wrote:
Tue Apr 03, 2018 1:54 am
Sterngard Friegen wrote:
Mon Apr 02, 2018 11:56 pm

After all that bad publicity for Trump and Avenatti hype, the lawsuit will end not with a bang but with a whimper.
Much like the act which necessitated the NDA in the first place . . .
I would say the whole affair began with a bang but ended with a rejection.



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Re: Stephanie Clifford aka Stormy Daniels v Donald J. Trump aka David Dennison, U.S. District Court, Central California

#575

Post by RoadScholar » Tue Apr 03, 2018 10:11 pm

Well, certainly whimpering was involved at some point.


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