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

#1451

Post by bob » Tue Dec 11, 2018 6:38 pm

Mikedunford wrote:
Tue Dec 11, 2018 5:57 pm
In a case where - correct me if I'm wrong - it's not entirely clear whether the plaintiff now on the hook for the fees provided informed consent to the filing of the case.
It would probably take another proceeding (Clifford v. Avenatti) to work that out.

But I would not be surprised if he quietly agrees to eat the fees.


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

#1452

Post by Mikedunford » Tue Dec 11, 2018 6:46 pm

bob wrote:
Tue Dec 11, 2018 6:38 pm
Mikedunford wrote:
Tue Dec 11, 2018 5:57 pm
In a case where - correct me if I'm wrong - it's not entirely clear whether the plaintiff now on the hook for the fees provided informed consent to the filing of the case.
It would probably take another proceeding (Clifford v. Avenatti) to work that out.

But I would not be surprised if he quietly agrees to eat the fees.
Can he? The judgment is going to be against Clifford, I'd presume. And Avenatti would have to be able to give her money to pay it off with. But he's got to have a phenomenal burn rate right now, and didn't he personally guarantee millions in the bankruptcy of his old firm, plus some other stuff?


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

#1453

Post by Foggy » Tue Dec 11, 2018 6:49 pm

:shock:

She's gonna have to show them ta-tas to a whole mess of people to make that kind of moolah. :-


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

#1454

Post by bob » Tue Dec 11, 2018 6:50 pm

Mikedunford wrote:
Tue Dec 11, 2018 6:46 pm
The judgment is going to be against Clifford, I'd presume.
Yes; in California, SLAPP fees are against the party only, and not counsel (and not both).
And Avenatti would have to be able to give her money to pay it off with. But he's got to have a phenomenal burn rate right now, and didn't he personally guarantee millions in the bankruptcy of his old firm, plus some other stuff?
Yes; this is where the accounting for gogriftme accounts will come into play....

But Avenatti has an interest in keeping her as a client, and not being sued by her.


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

#1455

Post by Notorial Dissent » Tue Dec 11, 2018 7:31 pm

Does she even have that kind of money?


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

#1456

Post by Foggy » Tue Dec 11, 2018 7:48 pm

I think she has some assets. :mrgreen:



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

#1457

Post by Somerset » Tue Dec 11, 2018 7:54 pm

Notorial Dissent wrote:
Tue Dec 11, 2018 7:31 pm
Does she even have that kind of money?
Her recently published book is probably generating some cash.



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

#1458

Post by Mikedunford » Tue Dec 11, 2018 7:58 pm

bob wrote:
Tue Dec 11, 2018 6:50 pm
Mikedunford wrote:
Tue Dec 11, 2018 6:46 pm
The judgment is going to be against Clifford, I'd presume.
Yes; in California, SLAPP fees are against the party only, and not counsel (and not both).
And Avenatti would have to be able to give her money to pay it off with. But he's got to have a phenomenal burn rate right now, and didn't he personally guarantee millions in the bankruptcy of his old firm, plus some other stuff?
Yes; this is where the accounting for gogriftme accounts will come into play....

But Avenatti has an interest in keeping her as a client, and not being sued by her.
He's got the interest. And he seems to be good at staying afloat. But is he good enough is what I'm wondering. As is often the case, I'm put in mind of a Pratchett quote: "...when the juggler misses the first chainsaw it is only the start of his problems. Some more will be along shortly."

Credit where due, Avenatti is pretty damn good at juggling chainsaws. But he's got a hell of a lot of them in the air right now.


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

#1459

Post by Res Ipsa » Tue Dec 11, 2018 8:30 pm

This is just sad...



I have not seen a performance like that since Orly was on Lawrence O'Donnell. Either he's gone nuts or he thinks everyone else has.


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

#1460

Post by Mikedunford » Tue Dec 11, 2018 8:35 pm

Res Ipsa wrote:
Tue Dec 11, 2018 8:30 pm
This is just sad...


I have not seen a performance like that since Orly was on Lawrence O'Donnell. Either he's gone nuts or he thinks everyone else has.
"It was not the main case" has an Orly sound to it, for sure. And, given that the hearing is on the other side's motion to dismiss, so does the "heard again in January."

And then I lost the will to keep listening.


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

#1461

Post by Res Ipsa » Tue Dec 11, 2018 8:49 pm

Mikedunford wrote:
Tue Dec 11, 2018 8:35 pm
And then I lost the will to keep listening.
It manages to get worse, if you can believe it.

After essentially just flat out lying that the "case is going to be heard again in January", he starts going off about how Trump and Cohen are not going to be able to continue hiding their crimes. Uh, no, they certainly aren't able to continue hiding them. They actually haven't been able to hide the one relating to the Daniels payment since January 2018, before Avenatti ever MET Daniels.

I can't imagine what he's going to do if the motion to dismiss the NDA case is successful.

Does he know it's going to be the same judge?

I just can't get over the depth of his delusion. Daniels isn't even SEEKING damages in the NDA case, so what is it that he thinks is going to dwarf the award here? Does he think he's going to be awarded fees in the Daniels case, and that will somehow be paid over to Daniels?

Or does he just think that anyone who still listens to him is stupid?


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

#1462

Post by Mikedunford » Tue Dec 11, 2018 9:18 pm

Res Ipsa wrote:
Tue Dec 11, 2018 8:49 pm
I just can't get over the depth of his delusion. Daniels isn't even SEEKING damages in the NDA case, so what is it that he thinks is going to dwarf the award here? Does he think he's going to be awarded fees in the Daniels case, and that will somehow be paid over to Daniels?
The $1.5 million figure is identical to the value for his legal services that he claimed in the response he sent Daily Beast back when Stormy said he filed the Trump defamation suit against her wishes, so I'd guess that it's for fees.

But that's based, apparently, on a value for his services in the $1500/hr range - and it assumes some basis for fee recovery. IIRC (but I'm too lazy to go back any look to be sure) the NDA contained a provision that would allow for a fee award - but that was for an award made by an arbitrator. Award of fees for court wasn't, at least as far as I can remember, mentioned. And he's claiming that the contract is invalid anyway, and is insisting on litigation instead of arbitration. Unless there's a fee-shifting provision in the applicable law, I'm not sure how he'd get a fee award.

But I kind of hope there is a fee-shifting provision that applies - if only because I'd love to see Judge Otero's discussion of an appropriate hourly rate for his services.


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

#1463

Post by Res Ipsa » Tue Dec 11, 2018 9:37 pm

Mikedunford wrote:
Tue Dec 11, 2018 9:18 pm

The $1.5 million figure is identical to the value for his legal services that he claimed in the response he sent Daily Beast back when Stormy said he filed the Trump defamation suit against her wishes, so I'd guess that it's for fees.
Okay, but then how would a dime of that $1.5 million find its way to Stormy, even in the astronomically unlikely event of it happening?

That's why I'm convinced he's lost his grip on his marbles. He's not even making any kind of sense. Daniels just got dinged to the tune of $300k. That's on her, not him. So if she gets awarded fees in the NDA case, it doesn't do anything about this.

And, the odds of anything other than the NDA case being dismissed are very small.

Plus, he's deleting his tweets again. I'll bet he goes back to a "followers only" period again because trolls.

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I think he realized that a fee award wouldn't go to Daniels, but he seems to have a hard time distinguishing between his interests and his client's interests.


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

#1464

Post by Res Ipsa » Tue Dec 11, 2018 9:42 pm

He's also bizarrely tweeting documents from the arbitration. For what possible good reason I cannot imagine.

Yes Mike, they got an arbitration award. That's why you got hired. If you had simply stuck with that case, your client would be free and clear at this point.


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

#1465

Post by Mikedunford » Tue Dec 11, 2018 9:51 pm

Honestly, I consider the likelihood of a fee award to be so low that I haven't bothered to try and think of ways the award could go to Stormy instead of Avenatti.

That said, the January hearing is kind of weird because technically speaking I'm not sure there's a way for Clifford to actually lose. If the case is dismissed, she actually wins - the NDA is invalid, the case is over. If the case isn't dismissed there's still a chance she could lose, but she won't have lost yet and discovery will commence. And it's the second one, where she doesn't immediately win, that Avenatti is arguing for.


But, yeah, I'm entirely with you as far as his ability to distinguish between his interests and his client's. I'm not sure he's quite at the point where Orly was by the time she got to Mississippi, where she was referring to her "plaintiffs" instead of her clients, but it does seem to be moving in that general direction.


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

#1466

Post by Res Ipsa » Tue Dec 11, 2018 10:01 pm

Mikedunford wrote:
Tue Dec 11, 2018 9:51 pm
And it's the second one, where she doesn't immediately win, that Avenatti is arguing for.
Correct.

There is, literally, nothing for his client to win by not simply taking the defendants' recission and calling it quits. The complete relief requested in the case is a given.

And yet he forges on for reasons having nothing to do with the substantive claims or his client's interests.

If he wants to litigate on for no reason, maybe someone can interest him in Liberi v. Taitz.


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

#1467

Post by SLQ » Tue Dec 11, 2018 10:09 pm

Mikedunford wrote:
Tue Dec 11, 2018 9:51 pm
Honestly, I consider the likelihood of a fee award to be so low that I haven't bothered to try and think of ways the award could go to Stormy instead of Avenatti.
If Avenatti has privately agreed to pay Trump's attorneys' fees, which I believe is highly likely, this question is moot.


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

#1468

Post by Res Ipsa » Tue Dec 11, 2018 10:22 pm

SLQ wrote:
Tue Dec 11, 2018 10:09 pm
If Avenatti has privately agreed to pay Trump's attorneys' fees, which I believe is highly likely, this question is moot.
Can you DO that in California?

Offhand, my guess would be that he could not agree to do such a thing.


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(a)
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represent that the lawyer or lawyer's law firm* will pay the personal or business
expenses of a prospective or existing client.


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

#1469

Post by Gregg » Tue Dec 11, 2018 10:26 pm

Notorial Dissent wrote:
Tue Dec 11, 2018 7:31 pm
Does she even have that kind of money?
Even if she does, justice demands, SCREAMS OUT IN FACT, that she file bankruptcy and walk away from it leaving Trump holding the bag. For once.


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

#1470

Post by SLQ » Tue Dec 11, 2018 10:30 pm

Can you DO that in California?
I think you're forgetting the conversation upthread where people said Avenatti should not have filed the defamation suit in the first place, and this was not in the best interests of his client. Also, the part where Stormy said she did not authorize the defamation suit. While it would be a violation of the RPCs for him to pay Stormy's expenses (of any kind) if he were not culpable, I think it would be acceptable for him to have settled Stormy's potential lawsuit and potential bar complaint by agreeing to pay the attorney's fees. ;)


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

#1471

Post by Res Ipsa » Wed Dec 12, 2018 12:18 am

SLQ wrote:
Tue Dec 11, 2018 10:30 pm
Can you DO that in California?
Also, the part where Stormy said she did not authorize the defamation suit.
There is no way she didn’t authorize the defamation suit. Remember, it was originally filed in the Southern District of New York at the height of the bizarre Avenatti/Daniels sideshow to the Cohen matter. The idea that she only just became aware of it is just ridiculous. This was filed when she was literally right there.


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

#1472

Post by Mikedunford » Wed Dec 12, 2018 8:16 am

OK. I finally found the provision that Avenatti will be relying upon for fees. It took a bit to find because the NDA is such a drafting shitshow, but it is, in fact, present and does cover court proceedings as well as arbitration. (It's in Section 8.2 of the NDA - a section that's labeled as containing the choice of law provision, but also contains a fee-shifting provision. It's also a "shall award" provision, and I don't think there's much doubt that Clifford is the prevailing party on the contract dispute, so she'll be entitled to at least a partial award. The questions are "how much?" and "can she collect it."

On the "how much" side, it's not going to be 1.5 mil, and it's not going to be close to 1.5 mil. I'm pretty confident about that. I doubt that the court will agree to a billing rate for Avenatti that's higher than the $800-$900/hr that they authorized for Harder, and I suspect that it may be a bit less. I think the court is also likely to seriously question the necessity for some of the hours. At a minimum, everything that's associated with the defamation claim they brought (and are now seeking to dismiss) against Cohen is going to be tossed out. Same will likely be true for everything subsequent to the point where Trump and Cohen moved to dismiss the case with prejudice.

In addition, the fee award will probably be offset by an award to Cohen on the SLAPP. Clifford is seeking to dismiss that claim, but I'm fairly sure from some quick reading that voluntary dismissal of a SLAPP doesn't allow the plaintiff to evade a fees award. (Which makes sense, since allowing voluntary dismissal to defeat the SLAPP motion would kind of defeat the purpose of the law.)

And, after all that, there's going to be a collection problem with whatever's left.

Trump isn't a party to the contract. Avenatti's entire litigation strategy was based around Trump not being a party to the contract. Trump not being a party to the contract is the reason they claim that Clifford is not bound by the contract. I'm not sure, given that, how they'll get a fees award against Trump - any award they get will be against the LLC and possibly Cohen. But there's a really good chance that the LLC has no assets (unless Clifford is told to pay back the $130K, in which case she might then get to keep it as part of the fees award). And there's also a really good chance that Cohen, who is facing the virtual certainty of several years of quality time at a federally-run residence, is rapidly entering the ranks of the judgment-proof.

Trump's lawyers, meanwhile, can go after Clifford for payment pretty much immediately.

Edit: ETA: Although I think Avenatti will probably get away with opposing the motion to dismiss without sanctions, if he files a motion to reconsider the dismissal in favor of his client, there's a chance that any fee award will be further reduced by a §1927 sanction for vexatious multiplication of the proceedings.


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

#1473

Post by Mikedunford » Wed Dec 12, 2018 8:30 am

SLQ wrote:
Tue Dec 11, 2018 10:30 pm
Can you DO that in California?
I think you're forgetting the conversation upthread where people said Avenatti should not have filed the defamation suit in the first place, and this was not in the best interests of his client. Also, the part where Stormy said she did not authorize the defamation suit. While it would be a violation of the RPCs for him to pay Stormy's expenses (of any kind) if he were not culpable, I think it would be acceptable for him to have settled Stormy's potential lawsuit and potential bar complaint by agreeing to pay the attorney's fees. ;)

Yes, I said that filing the defamation suit wasn't in the best interests of the client. I think that was borne out when Clifford went to the press with her allegations about the defamation case having been filed against her wishes, and further borne out by the ~$300K awarded against her after Trump's lawyers kicked her lawyer's ass.

As far as whether he offered to pay the fees in a settlement of a possible malpractice action, I think you're right and that probably would be acceptable. But he's going to have to come up with that money fairly quick, because while that might give her the right to recoup her losses, I don't think it would make him primarily responsible for payment - she's still the one responsible for the debt, and Harder et al will still be able to go after her for payment


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

#1474

Post by Res Ipsa » Wed Dec 12, 2018 9:05 am

Mikedunford wrote:
Wed Dec 12, 2018 8:30 am

As far as whether he offered to pay the fees in a settlement of a possible malpractice action, I think you're right and that probably would be acceptable. But he's going to have to come up with that money fairly quick,
Good point. And with the minor exceptions of a few malcontents like his landlord, his former law partners, the IRS, Tully's Coffee's creditors, his ex-wife and his girlfriend, nobody has ever questioned a promise of payment from Michael Avenatti.


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

#1475

Post by Res Ipsa » Wed Dec 12, 2018 9:53 am

Mikedunford wrote:
Wed Dec 12, 2018 8:16 am
OK. I finally found the provision that Avenatti will be relying upon for fees. ... a section that's labeled as containing the choice of law provision, but also contains a fee-shifting provision. It's also a "shall award" provision, and I don't think there's much doubt that Clifford is the prevailing party on the contract dispute, so she'll be entitled to at least a partial award.
Perhaps we might talk a walk through Avenatti's argument on the present motion....

https://www.courtlistener.com/recap/gov ... 0.89.0.pdf

Plaintiff has a right to pursue her preferred remedy - a declaration that the agreement is illegal - and decide which remedy she will ultimately accept at the time of judgment. Moreover, a determination that the agreement is illegal is of paramount significance because it means that Plaintiff will not be required to return the $130,000 payment she received. See Fong v. Miller, 105 Cal. App. 2d 411, 413–14 (1951).

...

Here, Plaintiff requests alternative relief by demanding “a judgment declaring that no agreement was formed between the parties, or in the alternative, to the extent an agreement was formed, it is void, invalid, or otherwise unenforceable.”

....

When a contract is found to be illegal, no party can “recover the monies paid pursuant to the terms of the contract. It is a well settled general rule that a party to an illegal contract may not obtain the aid of the courts . . . to recover any consideration parted with pursuant thereto; the law leaves the parties where it finds them.” Richardson v. Roberts, 210 Cal. App. 2d 603, 606–07 (1962).

...

A declaratory judgment that the Settlement Agreement is illegal and that Plaintiff is not required to return the $130,000 is necessary and establishes that the claims at issue are not moot.



If I were fixing to recover attorney's fees under a fee provision of a contract, I might be a little bit less sweeping in my characterization of the contract as "void", "invalid", "unenforceable", "illegal"; followed with "oh, and, the contract also entitles us to attorney's fees".

Seems like the main thing he is fighting here is the prospect of Daniels getting dinged for another $130k.


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