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Case 2:18-cv-02217-SJO-FFM Document 29 Filed 04/08/18 Page 1 of 3 Page ID #:429

1 AVENATTI & ASSOCIATES, APC


Michael J. Avenatti, State Bar No. 206929
2 Ahmed Ibrahim, State Bar No. 238739
520 Newport Center Drive, Suite 1400
3 Newport Beach, CA 92660
Telephone: 949.706.7000
4 Facsimile: 949.706.7050

5 Attorneys for Plaintiff Stephanie Clifford


a.k.a. Stormy Daniels a.k.a. Peggy Peterson
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8
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11
STEPHANIE CLIFFORD a.k.a. CASE NO.: 2:18-cv-02217-SJO-FFM
12 STORMY DANIELS a.k.a. PEGGY
PETERSON, an individual,
13 PLAINTIFF’S NOTICE OF MOTION
Plaintiff, AND RENEWED MOTION FOR
14
vs. EXPEDITED JURY TRIAL
15 PURSUANT TO SECTION 4 OF THE
FEDERAL ARBITRATION ACT,
16 DONALD J. TRUMP a.k.a. DAVID
DENNISON, and individual, AND FOR LIMITED EXPEDITED
17 ESSENTIAL CONSULTANTS, LLC, a DISCOVERY
Delaware Limited Liability Company,
18 MICHAEL COHEN and DOES 1
through 10, inclusive, Hearing Date: May 7, 2018
19 Hearing Time: 10:00 a.m.
Location: Courtroom 10C
20 Defendants.
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PLAINTIFF’S NOTICE OF MOTION AND RENEWED MOTION FOR EXPEDITED TRIAL SETTING AND
DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29 Filed 04/08/18 Page 2 of 3 Page ID #:430

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


2 PLEASE TAKE NOTICE THAT on May 7, 2018, in Courtroom 10C of the above-
3 referenced Court, Plaintiff Stephanie Clifford a.k.a. Stormy Daniels a.k.a. Peggy Peterson
4 (“Plaintiff”) will and does hereby move this Court for the following relief.
5 First, Plaintiff seeks an order pursuant to section 4 of the Federal Arbitration Act (9
6 U.S.C. § 4) setting a summary jury trial on a date that is convenient to the Court. The
7 jury trial is requested regarding whether the subject agreement at issue in the case (the
8 “Settlement Agreement”) was formed, or ever existed, between the parties.
9 Second, Plaintiff seeks an order granting her leave to conduct limited expedited
10 discovery in connection with opposing defendant Essential Consultants, LLC’s motion to
11 compel arbitration and to present evidence in support of her position at the
12 aforementioned trial pursuant to 9 U.S.C. § 4. Specifically, Plaintiff requests: (1) a
13 deposition of defendant Donald J. Trump of no greater than two (2) hours, (2) a
14 deposition of defendant Michael Cohen of no greater than two (2) hours, and (3) no more
15 than ten (10) targeted requests for production of documents directed to Mr. Trump and
16 Mr. Cohen on various topics relating to the Settlement Agreement.
17 Plaintiff bases this motion upon this Notice of Motion; the concurrently filed
18 Memorandum in Support of Plaintiff’s Renewed Motion for Expedited Jury Trial Pursuant
19 to Section 4 of the Federal Arbitration Act, and For Limited Expedited Discovery, the
20 Declaration of Michael J. Avenatti in Support of Plaintiff’s Renewed Motion for
21 Expedited Jury Trial Pursuant to Section 4 of the Federal Arbitration Act, and For Limited
22 Expedited Discovery, the pleadings and record in this action; and such further argument
23 and evidence as this Court may consider at or before the hearing on this motion.
24 This Motion is made following the conference of counsel pursuant to Local Rule 7-
25 3 which took place on March 21, 2018 regarding issues relating to the motion, and further
26 communications between counsel. [See Declaration of Michael Avenatti.]
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PLAINTIFF’S NOTICE OF MOTION AND RENEWED MOTION FOR EXPEDITED TRIAL SETTING AND
DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29 Filed 04/08/18 Page 3 of 3 Page ID #:431

Dated: April 8, 2018 AVENATTI & ASSOCIATES, APC


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2 By: /s/ Michael J. Avenatti


Michael J. Avenatti
3 Attorneys for Plaintiff Stephanie Clifford
4
a.k.a. Stormy Daniels a.k.a. Peggy Peterson

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PLAINTIFF’S NOTICE OF MOTION AND RENEWED MOTION FOR EXPEDITED TRIAL SETTING AND
DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-1 Filed 04/08/18 Page 1 of 27 Page ID #:432

1 AVENATTI & ASSOCIATES, APC


Michael J. Avenatti, State Bar No. 206929
2 Ahmed Ibrahim, State Bar No. 238739
520 Newport Center Drive, Suite 1400
3 Newport Beach, CA 92660
Telephone: 949.706.7000
4 Facsimile: 949.706.7050

5 Attorneys for Plaintiff Stephanie Clifford


a.k.a. Stormy Daniels a.k.a. Peggy Peterson
6

8 UNITED STATES DISTRICT COURT


9 CENTRAL DISTRICT OF CALIFORNIA
10

11 STEPHANIE CLIFFORD a.k.a. CASE NO.: 2:18-cv-02217-SJO-FFM


STORMY DANIELS a.k.a. PEGGY
12 PETERSON, an individual,
PLAINTIFF’S MEMORANDUM OF
13 Plaintiff, POINTS AND AUTHORITIES IN
14 vs. SUPPORT OF RENEWED MOTION
FOR EXPEDITED JURY TRIAL
15 PURSUANT TO SECTION 4 OF THE
DONALD J. TRUMP a.k.a. DAVID
16 DENNISON, and individual, FEDERAL ARBITRATION ACT,
ESSENTIAL CONSULTANTS, LLC, a AND FOR LIMITED EXPEDITED
17 Delaware Limited Liability Company, DISCOVERY
MICHAEL COHEN and DOES 1
18 through 10, inclusive,
Hearing Date: May 7, 2018
19 Hearing Time: 10:00 a.m.
Defendants.
20 Location: Courtroom 10C
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR


EXPEDITED TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-1 Filed 04/08/18 Page 2 of 27 Page ID #:433

1 TABLE OF CONTENTS
2
I. INTRODUCTION ..................................................................................................... 1
3
II. FACTUAL BACKGROUND.................................................................................... 2
4
A. The Settlement Agreement .............................................................................. 2
5

6 B. Mr. Cohen’s Role and Public Statements Regarding This


Dispute. ............................................................................................................ 2
7
C. The White House Denies Any Involvement With the
8
Settlement Agreement or A Relationship With Plaintiff. ............................... 4
9
D. The Parties Met and Conferred In Person Regarding the
10 Issues Raised in this Motion............................................................................ 5
11
III. ARGUMENT ............................................................................................................. 5
12
A. Plaintiff Requests the Court Set a Jury Trial Pursuant to
13 Section 4 of the FAA Regarding Whether an Agreement
14 Was Ever Formed. ........................................................................................... 5
15 B. The Court Should Grant Plaintiff Leave to Conduct Limited
16
Expedited Discovery. ...................................................................................... 7

17 1. The Court Will Decide Whether the Dispute Must Be


Arbitrated Because Plaintiff Contends No Agreement
18 Was Formed. ......................................................................................... 7
19
2. Plaintiff Is Entitled to Conduct Discovery. ........................................... 8
20
3. Good Cause Exists for an Order Compelling
21 Defendants to Provide Expedited Discovery. ....................................... 9
22
a) The Discovery Is Needed on an Expedited
23 Basis Because there is Urgency to Resolve the
24
Question of Arbitrability........................................................... 10

25 b) The Breadth of the Proposed Discovery Is


Reasonable. ............................................................................... 11
26

27 c) Plaintiff Has a Valid Purpose for the Proposed


Discovery. ................................................................................. 11
28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR


EXPEDITED TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-1 Filed 04/08/18 Page 3 of 27 Page ID #:434

1 (1) The Discovery Is Necessary to Resolve


2 Factual Disputes Concerning Whether
Mr. Trump Was Aware of, and
3 Consented to, the Agreement ......................................... 11
4
(2) The Discovery Is Necessary to Resolve
5 Factual Disputes Concerning Whether
the Agreement and the Arbitration
6
Clause Had a Lawful Purpose ........................................ 14
7
d) The Discovery Requests Do Not Impose an
8 Unreasonable Burden on Defendants. ...................................... 18
9
e) The Fifth Factor Relating to Timing of the
10 Discovery Weighs in Favor of Expedited
Discovery. ................................................................................. 19
11

12 IV. CONCLUSION ........................................................................................................ 19


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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR
EXPEDITED TRIAL SETTING AND DISCOVERY
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1
TABLE OF AUTHORITIES
2

3
Cases
4

5 Armendariz v. Found. Health Psychcare Servs., Inc.,


6 24 Cal. 4th 83 (2000) ................................................................................................... 15
7 Banner Entertainment, Inc. v. Superior Court,
8 62 Cal. App. 4th 348 (1998) ........................................................................................ 13
9 Barraza v. Cricket Wireless LLC,
10 No. C 15-02471 WHA, 2015 WL 6689396 (N.D. Cal. Nov. 3, 2015) ..................... 6, 8
11 Britton v. Co-op Banking Grp.,
12 4 F.3d 742 (9th Cir. 1993) ........................................................................................... 17
13 Brown v. Freese,
14 28 Cal. App. 2d 608 (1938) ......................................................................................... 17
15 Buckeye Check Cashing, Inc. v. Cardegna,
16 546 U.S. 440 (2006)..................................................................................................... 15
17 Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC,
18 816 F.3d 1208 (9th Cir. 2016) ..................................................................................... 13
19 Chaganti v. I2 Phone Int’l, Inc.,
20 635 F. Supp. 2d 1065 (N.D. Cal. 2007)....................................................................... 12
21 Clinton v. Jones,
22 520 U.S. 681 (1997)..................................................................................................... 18
23 Comedy Club, Inc. v. Improv W. Assocs.,
24 553 F.3d 1277 (9th Cir. 2009) ....................................................................................... 7
25 Doherty v. Barclays Bank Delaware,
26 No. 16-CV-01131-AJB-NLS, 2017 WL 588446 (S.D. Cal. Feb. 14, 2017) ................. 8
27

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EXPEDITED TRIAL SETTING AND DISCOVERY
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1
Duffens v. Valenti,
2
161 Cal. App. 4th 434 (2008) ...................................................................................... 14
3
Esparza v. Sand & Sea, Inc.,
4
2 Cal. App. 5th 781 (2016) .......................................................................................... 14
5
FEC Advisory Opinion 1990-09 ..................................................................................... 16
6
Ferguson v. Countrywide Credit Indus., Inc.,
7
No. CV00-13096AHM(CTX), 2001 WL 867103 (C.D. Cal. Apr. 23, 2001) ............... 6
8
GIB, LLC v. Salon Ware, Inc.,
9
634 F. App’x 610 (9th Cir. 2016) .................................................................................. 6
10
Goldman, Sachs & Co. v. City of Reno,
11
747 F.3d 733 (9th Cir. 2014) ......................................................................................... 7
12
Granite Rock Co. v. Int’l Bhd. of Teamsters,
13
561 U.S. 287 (2010)....................................................................................................... 7
14
Gutierrez v. Carter Bros. Sec. Servs., LLC,
15
63 F. Supp. 3d 1206 (E.D. Cal. 2014) ......................................................................... 15
16
Hicks v. Citigroup, Inc.,
17
No. C11-1984-JCC, 2012 WL 254254 (W.D. Wash. Jan. 26, 2012) ............................ 8
18
Infineon Techs. AG,
19
No. 216CV02859CASPLAX, 2017 WL 1371247 (C.D. Cal. Mar. 17, 2017) .... 10, 11,
20
18, 19
21
Kramer v. Toyota Motor Corp.,
22
705 F.3d 1122 (9th Cir. 2013) ..................................................................................... 17
23
McKee v. Audible, Inc.,
24
No. CV 17-1941-GW(EX), 2017 WL 7388530 n. 2 (C.D. Cal. Oct. 26, 2017) ........... 9
25
Nagrampa v. MailCoups, Inc.,
26
469 F.3d 1257 (9th Cir. 2006) ..................................................................................... 15
27

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EXPEDITED TRIAL SETTING AND DISCOVERY
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1
Newton v. Clearwire Corp.,
2
No. 2:11-CV-00783-WBS, 2011 WL 4458971 (E.D. Cal. Sept. 23, 2011) .................. 9
3
Nguyen v. Barnes & Noble, Inc.,
4
763 F.3d 1171 (9th Cir. 2014) ..................................................................................... 12
5
NobelBiz, Inc. v. Wesson,
6
No. 14cv0832 W(JLB), 2014 WL 1588715 (S.D. Cal April 18, 2014) ...................... 10
7
O’Brien v. Am. Exp. Co.,
8
No. 11-CV-1822-BTM BGS, 2012 WL 1609957 (S.D. Cal. May 8, 2012) ........... 9, 19
9
Plows v. Rockwell Collins, Inc.,
10
812 F. Supp. 2d 1063 (C.D. Cal. 2011) ......................................................................... 9
11
R. M. Sherman Co. v. W. R. Thomason, Inc.,
12
191 Cal. App. 3d 559 (1987) ....................................................................................... 14
13
Rovio Entertainment Ltd. v. Royal Plush Toys, Inc.,
14
907 F. Supp. 2d 1086 (N.D. Cal. 2012)....................................................................... 10
15
Sanford v. MemberWorks, Inc.,
16
483 F.3d 956 (9th Cir. 2007) ............................................................................. 5, 6, 7, 8
17
Semitool, Inc. v. Tokyo Electron America, Inc.,
18
208 F.R.D. 273 (N.D. Cal. 2002) .................................................................................. 9
19
Smith v. Superior Court,
20
41 Cal. App. 4th 1014 (1996) ...................................................................................... 16
21
Switch, LLC v. ixmation, Inc.,
22
No. 15-CV-01637-MEJ, 2015 WL 4463672 (N.D. Cal. July 21, 2015) ................. 8, 12
23
Synergy HomeCare Franchising, LLC v. Aviatech, LLC,
24
No. CV-12-1601-PHX-SMM, 2013 WL 12284536 (D. Ariz. Mar. 12, 2013) ............. 6
25
Three Valleys,
26
925 F.2d ......................................................................................................................... 8
27

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EXPEDITED TRIAL SETTING AND DISCOVERY
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1
Williamson v. Superior Court,
2
21 Cal. 3d 829 (1978) .................................................................................................. 16
3

4 STATUTES
5 9 U.S.C. § 2 ..................................................................................................................... 15
6
9 U.S.C. § 4 .............................................................................................................. passim
7

8 52 U.S.C. § 30101(8)(A)(i) ............................................................................................. 15


9 52 U.S.C. § 30104(b)(3)(A), (4), (5)......................................................................... 15, 16
10
52 U.S.C. §§ 30116(a)(1)(A), (c) .................................................................................... 15
11

12 Cal. Civ. Code § 1550 ............................................................................................... 12, 14


13 Cal. Civ. Code § 1558 ..................................................................................................... 12
14
Cal. Civ. Code § 1580 ..................................................................................................... 12
15

16 N.Y. Penal Law § 255.17 ................................................................................................ 17


17 RULES
18
Fed. R. Civ. P. 26(b)(1) ..................................................................................................... 8
19

20 REGULATIONS
21
11 C.F.R. § 100.52(d)(1) ................................................................................................. 15
22
11 C.F.R. § 104.3(a)(3)(ii) .............................................................................................. 15
23

24 OTHER AUTHORITIES
25
Restatement (First) of Contracts § 557 (1932) ......................................................... 16, 17
26

27

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR
EXPEDITED TRIAL SETTING AND DISCOVERY
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1 I. INTRODUCTION
2 Plaintiff Stephanie Clifford, also known as Stormy Daniels (“Plaintiff”) files this
3 renewed motion for expedited jury trial pursuant to 9 U.S.C. § 4, and for limited
4 expedited discovery. On March 29, this Court denied Plaintiff’s previous motion
5 requesting the same relief without prejudice on the sole ground that the motion was
6 premature because defendants Essential Consultants, LLC (“EC”) and Donald J. Trump
7 (“Mr. Trump”) had not yet moved to compel arbitration. Now that a motion to compel
8 arbitration has been filed (as Plaintiff predicted), and Plaintiff’s return date on the motion
9 has arrived, Plaintiff’s motion is ripe for decision.
10 This case centers on a dispute concerning whether a settlement agreement,
11 containing a mutual release and terms of non-disclosure, was ever formed between the
12 parties. Plaintiff contends she is not bound by any of the terms and conditions of the
13 agreement, including the provision of the agreement providing for arbitration, for a
14 variety of reasons.
15 At issue is an agreement entitled “Confidential Settlement Agreement and Mutual
16 Release; Assignment of Copyright and Non-Disparagment [sic] Agreement” (hereafter,
17 the “Settlement Agreement” or “Agreement”). As detailed in her First Amended
18 Complaint, Plaintiff contends that (1) the Settlement Agreement was never formed, and
19 (2) even if such an agreement had been formed, there was no lawful object or purpose for
20 the Settlement Agreement in general, or the confidential arbitration clause in particular.
21 By this Motion, Plaintiff seeks two forms of relief. First, Plaintiff seeks an order
22 setting a jury trial as soon as possible, on a date that is convenient for the Court and its
23 extremely busy calendar.1
24

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1 Plaintiff recognizes the incredible amount of work and demands that are placed on this
26
Court by way of the Court’s docket and its caseload. By way of this motion, Plaintiff is
27 not suggesting in any way, shape or form that she believes this case is entitled to special
treatment or that the claims in this case are deserving of an inordinate amount of attention
28 from the Court.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR EXPEDITED
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1 Second, Plaintiff seeks an order granting her leave to conduct limited expedited
2 discovery in connection to assist with opposing EC’s motion to compel arbitration (in
3 which Mr. Trump joins and “consents”) and to present evidence in support of her position
4 at the aforementioned trial pursuant to 9 U.S.C. § 4. Specifically, Plaintiff requests: (1) a
5 deposition of Mr. Trump of no greater than two hours, (2) a deposition of Mr. Cohen of
6 no greater than two hours, and (3) no more than ten (10) targeted requests for production
7 of documents directed to Mr. Trump and Mr. Cohen on various topics relating to the
8 Settlement Agreement.
9 Because the requested discovery is needed in connection with opposing EC’s
10 motion to compel arbitration and the trial, Plaintiff requests that consideration of EC’s
11 motion to be stayed pending consideration of the present motion and the completion of
12 the requested jury trial.
13 II. FACTUAL BACKGROUND
14 A. The Settlement Agreement
15 The agreement at issue in this action is entitled “Confidential Settlement
16 Agreement and Mutual Release; Assignment of Copyright and Non-Disparagment [sic]
17 Agreement.” A true and correct copy of the agreement, referred to hereafter as the
18 “Settlement Agreement” or simply the “Agreement,” is attached to the First Amended
19 Complaint as Exhibit 1. The provisions of the Settlement Agreement relevant to the
20 motion are discussed below in connection with Plaintiff’s arguments below.
21 B. Mr. Cohen’s Role and Public Statements Regarding This Dispute.
22 As alleged in the FAC, Michael Cohen is an attorney licensed in the State of New
23 York. [FAC, ¶16.] Mr. Cohen worked as the “top attorney” at the Trump Organization
24 from 2007 until after the election and presently serves as Mr. Trump’s personal attorney.
25 [Id.] He is also generally referred to as Mr. Trump’s “fixer.” [Id.]
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1 Mr. Cohen is alleged to have prepared the Settlement Agreement and presented it
2 to Plaintiff. [Id., ¶¶17-18.] Mr. Cohen is also alleged to have formed EC on October 17,
3 2016, just weeks before the 2016 presidential election. [Id., ¶18.]
4 On or about February 13, 2018, Mr. Cohen issued a public statement regarding Ms.
5 Clifford, the existence of the Settlement Agreement, and details concerning the
6 Settlement Agreement. Mr. Cohen stated in part: “In a private transaction in 2016, I
7 used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie
8 Clifford. Neither the Trump Organization nor the Trump campaign was a party to the
9 transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly
10 or indirectly.” [FAC, ¶27.]
11 On March 9, 2018, regarding the $130,000 payment, Mr. Cohen said “[t]he funds
12 were taken from my home equity line and transferred internally to my LLC account in the
13 same bank.” [Declaration of Michael Avenatti in Support of Renewed] Motion for
14 Expedited Jury Trial and Discovery (“Avenatti Decl.”), Ex. A.] An e-mail confirming
15 the transfer by Mr. Cohen to Plaintiff’s attorney in connection with the Agreement,
16 however, showed Mr. Cohen used his Trump Organization e-mail account to conduct the
17 transfer. [Id.]
18 In a March 19, 2018 Vanity Fair article, Mr. Cohen again suggested Mr. Trump
19 had no knowledge of the Settlement Agreement or $130,000 payment. [Avenatti Decl.,
20 Ex. B.] In it, he is quoted as saying: “What I did defensively for my personal client, and
21 my friend, is what attorneys do for their high-profile clients.” [Id.] The article also states
22 that Mr. Cohen “claims that Trump did not know that he had paid Clifford the $130,000”
23 and that Mr. Cohen and his counsel determined “there is no bar-association violation for
24 his action.” [Id.]
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1
C. The White House Denies Any Involvement With the Settlement
2 Agreement or A Relationship With Plaintiff.
3 White House and campaign representatives purportedly speaking on Mr. Trump’s
4 behalf, have denied that Mr. Trump had any knowledge of, or involvement with, the
5 Settlement Agreement. [See Avenatti Decl., Ex. C.]
6 On April 5, 2018, Mr. Trump, making his first public comments regarding this
7 dispute, denied having knowledge of the $130,000 payment to Plaintiff under the
8 Settlement Agreement. [Avenatti Decl., Ex. D.] Mr. Trump stated he did not know
9 where the money came from, denied setting up a fund from which Mr. Cohen could draw
10 from to make the payment, and directed reporters’ questions to Mr. Cohen. [Id.]
11 In light of these seemingly contradictory and implausible statements, many things
12 that bear directly on the formation of the Agreement and its existence—issues soon to be
13 before the Court—remain uncertain. By way of example only, it continues to remain
14 unclear:
15 • Whether Mr. Trump is “David Dennison” or “DD” as referenced in the Settlement
16
Agreement;

17
• Whether Mr. Trump knew about the Settlement Agreement;
• Whether Mr. Trump truly did not know about the $130,000 payment;
18
• Whether the payment was made with Mr. Trump’s own money, money from his
19
presidential campaign, money from The Trump Organization, another source
20 linked to Mr. Trump, or from Mr. Cohen;
21 • What was the scope of Mr. Trump’s participation or involvement in the Settlement
Agreement, and did Mr. Trump consider himself a party?
22
• What was Mr. Cohen’s role?
23
• What is Essential Consultants, LLC, who are its members, and what other business
24 does it conduct?
25 • Did Mr. Trump approve or authorize Mr. Cohen’s actions?;
26 • Whether Mr. Trump consented to be a party to the Settlement Agreement;
27 • Did Mr. Trump consent to the contractual obligations imposed on him by the
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1 Settlement Agreement?;

2
• If so, did Mr. Trump actually communicate any assent to the Settlement
Agreement to Plaintiff given that he never signed the Settlement Agreement?;
3
• Was Mr. Trump personally involved in an effort to silence Plaintiff in order to
4 benefit his presidential campaign by preventing voters from hearing Plaintiff speak
5
publicly;
• Who (if anyone) was acting as Mr. Trump’s attorney in connection with the
6
Settlement Agreement?
7

8 D. The Parties Met and Conferred In Person Regarding the Issues Raised in
this Motion.
9
On March 20, 2018, the parties met and conferred in person concerning the relief
10
requested in this Motion. [Avenatti Decl., ¶10.] Specifically, Plaintiff’s counsel advised
11
counsel for Defendants that Plaintiff sought limited discovery on an expedited basis as
12
follows: (1) a deposition of Mr. Trump of no greater than two hours, (2) a deposition of
13
Mr. Cohen of no greater than two hours, and (3) no more than ten (10) targeted requests
14
for production of documents directed to Mr. Trump and Mr. Cohen on various topics
15
relating to the Agreement. [Avenatti Decl., ¶6.] Defendants contend that no discovery
16
should be conducted in the case, and no trial should be set, because the case should be
17
summarily ordered to arbitration. [Id.] The parties, therefore, were unable to
18
successfully resolve their dispute. [Id.] Since the Court’s denial of the prior motion as
19
premature, the parties’ positions have remained the same. [Id.]
20
III. ARGUMENT
21

22 A. Plaintiff Requests the Court Set a Jury Trial Pursuant to Section 4 of the
FAA Regarding Whether an Agreement Was Ever Formed.
23
Under the Federal Arbitration Act (FAA), “[i]f the making of the arbitration
24
agreement . . . be in issue, the court shall proceed summarily to the trial thereof.” 9
25
U.S.C. § 4; see also Sanford v. MemberWorks, Inc., 483 F.3d 956, 962 (9th Cir. 2007)
26
(“[W]hen one party disputes ‘the making of the arbitration agreement,’ the Federal
27
Arbitration Act requires that ‘the court [ ] proceed summarily to the trial thereof’ before
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1 compelling arbitration under the agreement.”) (brackets in original); GIB, LLC v. Salon
2 Ware, Inc., 634 F. App’x 610, 611 (9th Cir. 2016) (where triable issues existed on
3 whether agreement was formed, district court erred in compelling arbitration without first
4 proceeding under Section 4 of the FAA to resolve the dispute). The Ninth Circuit has
5 “interpreted this language to encompass not only challenges to the arbitration clause
6 itself, but also challenges to the making of the contract containing the arbitration clause.”
7 Sanford, 483 F.3d at 962. For this reason, “challenges to the existence of a contract as a
8 whole must be determined by the court prior to ordering arbitration.” Id. (emphasis
9 added).
10 “If no jury trial be demanded . . . , the court shall hear and determine such issue.”
11 9 U.S.C. § 4. If on the other hand, one party demands a jury trial in a timely fashion,
12 “upon such demand the court shall make an order referring the issue or issues to a jury in
13 the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury
14 for that purpose.” Id.; see also Barraza v. Cricket Wireless LLC, No. C 15-02471 WHA,
15 2015 WL 6689396, at *6 (N.D. Cal. Nov. 3, 2015) (setting “summary jury trial” less than
16 45 days from date of order to determine whether plaintiffs agreed to terms and conditions
17 contained in guide enclosed with their wireless phones). 2 “If the jury find that no
18 agreement in writing for arbitration was made . . . the proceeding shall be dismissed.” 9
19 U.S.C. § 4.
20

21 2Synergy HomeCare Franchising, LLC v. Aviatech, LLC, No. CV-12-1601-PHX-SMM,


22 2013 WL 12284536, at *3 (D. Ariz. Mar. 12, 2013) (denying motion to compel arbitration
pending a jury trial and setting the “matter for a pre-trial status hearing in order to
23 schedule any necessary discovery, depositions, etc., prior to trial on the existence of an
24 arbitration agreement . . .”); Ferguson v. Countrywide Credit Indus., Inc., No. CV00-
13096AHM(CTX), 2001 WL 867103, at *1 (C.D. Cal. Apr. 23, 2001), aff’d, 298 F.3d 778
25 (9th Cir. 2002) (recognizing that the “plaintiff has raised a genuine dispute regarding
26 whether an arbitration agreement governs her claims and is therefore entitled to a trial of
the issue” but declining to order a trial because, even assuming an agreement, the claims
27 were not required to be arbitrated).
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1 Here, Plaintiff has demanded a jury trial pursuant to section 4 of the FAA. [FAC
2 at p. 18; see also Dkt No. __ at __.] Moreover, Plaintiff disputes the “making of the
3 arbitration agreement[.]” 9 U.S.C. § 4; Sanford, 483 F.3d at 962; see also FAC, ¶¶36-57.
4 Such a trial “shall proceed summarily” upon a showing that the making of the arbitration
5 agreement is at issue. 9 U.S.C. § 4. Therefore, Plaintiff is entitled to an expedited jury
6 trial regarding whether the Settlement Agreement was ever formed.
7
B. The Court Should Grant Plaintiff Leave to Conduct Limited Expedited
8 Discovery.
9
1. The Court Will Decide Whether the Dispute Must Be Arbitrated
10 Because Plaintiff Contends No Agreement Was Formed.
11 Based on the parties’ meet and confer discussion and the arguments made in EC’s
12 motion to compel arbitration, Plaintiff anticipates Defendant will argue that discovery
13 should not be ordered because the arbitrator, not the Court, will resolve the parties’
14 dispute over whether an agreement exists. Defendants are incorrect.
15 It is axiomatic that “[a]rbitration is a matter of contract and a party cannot be
16 required to submit any dispute which he has not agreed so to submit.” Sanford, 483 F.3d
17 at 962. Thus, “[t]he strong public policy in favor of arbitration does not extend to those
18 who are not parties to an arbitration agreement.” Comedy Club, Inc. v. Improv W.
19 Assocs., 553 F.3d 1277, 1287 (9th Cir. 2009) (citation omitted). Importantly, “[i]f the
20 parties contest the existence of an arbitration agreement, the presumption in favor of
21 arbitrability does not apply.” Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 742
22 (9th Cir. 2014) (emphasis in original).
23 For this reason, although it is true that questions “regarding
24 the validity or enforcement of a putative contract mandating arbitration should be referred
25 to an arbitrator,” this is not so for “challenges to the existence of a contract as a whole”—
26 which “must be determined by the court prior to ordering arbitration.” Sanford, 483 F.3d
27 at 962 (emphasis in original); see also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561
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1 U.S. 287, 296 (2010) (“[W]here the dispute at issue concerns contract formation, the
2 dispute is generally for courts to decide.”); Three Valleys v. E.F. Hutton, 925 F.2d 1136,
3 1140–41 (“[A] party who contests the making of a contract containing an arbitration
4 provision cannot be compelled to arbitrate the threshold issue of the existence of an
5 agreement to arbitrate.”). 3
6 Therefore, Defendants’ contention that discovery should be denied because the
7 arbitrator will resolve the parties’ dispute concerning the formation of the Settlement
8 Agreement is without merit.
9
2. Plaintiff Is Entitled to Conduct Discovery.
10
As a logical and necessary corollary of Plaintiff’s right to a jury trial in the context
11
of this dispute and of opposing EC’s motion to compel arbitration, Plaintiff is also
12
entitled to conduct discovery. Permitting a party to conduct discovery in conjunction
13
with an opposition to a motion to compel arbitration “is consistent with the FAA and
14
within the Court’s discretion.” Hicks v. Citigroup, Inc., No. C11-1984-JCC, 2012 WL
15
254254, at *2 (W.D. Wash. Jan. 26, 2012). For that reason, “[c]ourts have permitted
16
limited discovery as to arbitrability where parties have placed the validity of the
17
arbitration agreement in issue.” Id. at *1; see also Barraza, 2015 WL 6689396, at *6
18
(ordering “summary jury trial” and that “[b]oth sides should cooperate in expedited
19
discovery on the factual matters in play on this motion, and failure to cooperate may lead
20
to preclusion or adverse inferences as a sanction.”).
21
Such discovery is appropriate because “it is relevant to a ‘claim or defense.’”
22
3District courts in this Circuit are in accord. Doherty v. Barclays Bank Delaware, No.
23 16-CV-01131-AJB-NLS, 2017 WL 588446, at *3 (S.D. Cal. Feb. 14, 2017) (“Plaintiff is
24 challenging the existence of a contract with Defendant. Therefore, following relevant
Ninth Circuit case law, the Court must first decide whether a valid contract exists.”);
25 Barraza, 2015 WL 6689396, at *3 (the “existence of a contract as a whole must be
26 determined by the court prior to ordering arbitration”) (quoting Sanford, 483 F.3d at
962); Switch, LLC v. ixmation, Inc., No. 15-CV-01637-MEJ, 2015 WL 4463672, at *3
27 (N.D. Cal. July 21, 2015) (same).
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1 Newton v. Clearwire Corp., No. 2:11-CV-00783-WBS, 2011 WL 4458971, at *6 (E.D.


2 Cal. Sept. 23, 2011) (quoting Fed. R. Civ. P. 26(b)(1)). More specifically, courts will
3 permit discovery that “is relevant to the formation or making of the agreement.” O’Brien
4 v. Am. Exp. Co., No. 11-CV-1822-BTM BGS, 2012 WL 1609957, at *1 (S.D. Cal. May
5 8, 2012); McKee v. Audible, Inc., No. CV 17-1941-GW(EX), 2017 WL 7388530, at *3
6 n. 2 (C.D. Cal. Oct. 26, 2017) (permitting discovery on issue of “mutual assent” in
7 connection with motion to compel arbitration).
8 Similarly, when the party opposing arbitration raises unconscionability
9 arguments, “the parties must be afforded an opportunity to gather the appropriate
10 evidence.” Plows v. Rockwell Collins, Inc., 812 F. Supp. 2d 1063, 1069–70 (C.D. Cal.
11 2011) (granting parties four months to conduct discovery on enforceability of arbitration
12 agreement); O’Brien, 2012 WL 1609957, at *2 (“Based on [the] available defenses to the
13 validity of an arbitration agreement, courts have permitted parties opposing a motion to
14 compel arbitration to take discovery on the unconscionability of an arbitration
15 provision”).
16 Accordingly, Plaintiff is entitled to conduct discovery in connection with EC’s
17 motion to compel arbitration and the FAA section 4 summary jury trial.
18
3. Good Cause Exists for an Order Compelling Defendants to
19 Provide Expedited Discovery.
20 Having established Plaintiff is entitled to conduct discovery, the next question is
21 whether the request for the limited discovery should be expedited. As shown below,
22 Plaintiff’s request should be granted.
23 To obtain discovery on an expedited basis, Plaintiff must show “good cause.”
24 Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).
25 “Good cause” exists “where the need for expedited discovery, in consideration of the
26 administration of justice, outweighs the prejudice to the responding party.” Id.
27

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1 “In considering whether good cause exists, factors courts may consider include:
2 (1) whether a preliminary injunction is pending; (2) the breadth of the discovery request;
3 (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants
4 to comply with the requests; and (5) how far in advance of the typical discovery process
5 the request was made.” MACOM Tech. Sols. Holdings, Inc. v. Infineon Techs. AG, No.
6 216CV02859CASPLAX, 2017 WL 1371247, at *2 (C.D. Cal. Mar. 17, 2017) (citing
7 Rovio Entertainment Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1099 (N.D.
8 Cal. 2012); see also NobelBiz, Inc. v. Wesson, No. 14cv0832 W(JLB), 2014 WL
9 1588715, at *1 (S.D. Cal April 18, 2014).
10 Here, Plaintiff seeks the following limited discovery on an expedited basis: (1) a
11 deposition of Mr. Trump of no greater than two hours, (2) a deposition of Mr. Cohen of
12 no greater than two hours, and (3) a maximum of ten (10) targeted requests for
13 production of documents directed to Mr. Trump and Mr. Cohen on various topics relating
14 to the Agreement. Good cause exists for this requested discovery.
15
a) The Discovery Is Needed on an Expedited Basis Because
16 there is Urgency to Resolve the Question of Arbitrability.
17 The first factor courts may consider in the “good cause” analysis is “whether a
18 preliminary injunction is pending[.]” MACOM, 2017 WL 1371247, at *2. Although no
19 motion for preliminary injunction has been filed in this case, this factor nevertheless
20 weighs in favor of granting expedited discovery. Specifically, there is urgency to
21 resolving the present dispute over arbitrability because EC—without any notice to
22 Plaintiff—initiated an arbitration proceeding in Los Angeles before ADR Services and
23 obtained a temporary restraining order on an ex parte basis (again, without any notice to
24 Plaintiff) purporting to restrict Plaintiff from speaking.4 [Avenatti Decl., ¶5.] Because
25 Defendants threaten to enforce the order (which Plaintiff does not recognize as valid
26 because, among other reasons, there was no agreement to arbitrate formed between the
27 4 It is widely understood that prior restraints on speech are generally unconstitutional.
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1 parties), it is important that the FAA section 4 trial be set as soon as possible, and that
2 discovery be ordered on an expedited basis to use at the trial.
3
b) The Breadth of the Proposed Discovery Is Reasonable.
4
The second factor the Court may consider in the “good cause” analysis is the
5
“breadth of the discovery request” at issue. MACOM, 2017 WL 1371247, at *2.
6
Here, Plaintiff makes very modest, limited, and targeted discovery requests.
7
Although entitled to seven (7) hours of deposition for each witness, Plaintiff requests
8
only two (2) hours to depose Messrs. Trump and Cohen, a small fraction of the time she
9
is allotted under Rule 30. Plaintiff also does not seek broad document discovery.
10
Plaintiff intends to propound no more than ten (10) document requests narrowed in scope
11
by time period and subject matter.
12
c) Plaintiff Has a Valid Purpose for the Proposed Discovery.
13
The third factor is the “purpose for requesting the expedited discovery.”
14
MACOM, 2017 WL 1371247, at *2. This factor is also met. Simply stated, the purpose
15
of the expedited discovery is to enable Plaintiff to oppose EC’s motion to compel
16
arbitration. As explained below, the requested discovery is narrowly targeted to
17
establishing that (1) the Settlement Agreement was never formed between the parties, and
18
(2) even if such an agreement had been formed, there was no lawful purpose for the
19
Settlement Agreement in general, or the confidential arbitration clause in particular.
20
There are several examples of factual issues likely to arise which demonstrate why such
21
expedited discovery will be necessary.
22
(1) The Discovery Is Necessary to Resolve Factual
23
Disputes Concerning Whether Mr. Trump Was Aware
24 of, and Consented to, the Agreement
25 The first reason why the requested discovery has a valid purpose is that there is a
26 factual dispute between the parties regarding whether Defendant Trump was aware of the
27 Settlement Agreement, whether he was a party to the Agreement, and whether he ever
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1 consented to the Agreement. This issue goes directly to whether a valid contract was
2 ever in fact formed between the parties. “In determining whether a valid arbitration
3 agreement exists, federal courts ‘apply ordinary state-law principles that govern the
4 formation of contracts.’” Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175 (9th Cir.
5 2014). The elements “essential to the existence of a contract” are as follows: (1) that the
6 parties are capable of contracting; (2) their consent; (3) a lawful object; and (4) sufficient
7 cause or consideration. Cal. Civ. Code § 1550; see also Switch, 2015 WL 4463672, at
8 *4. Consent is an essential element. Id.
9 Here, statements in the public record from the White House and Mr. Cohen show
10 in stark terms why EC’s motion to compel arbitration cannot possibly be decided without
11 facts and evidence, and thus, discovery. Reading these statements at face value, both the
12 White House (theoretically on behalf of Mr. Trump) and Michael Cohen appear to call
13 into question whether Mr. Trump knew of the Settlement Agreement, whether he
14 consented to it, whether he authorized it, and, more fundamentally, whether he even had
15 any relationship at all with Plaintiff. 5
16 For his part, Mr. Cohen has suggested that he paid the $130,000 to Plaintiff out of
17 his own pocket (through a home equity line of credit), that he did not make Mr. Trump
18 aware of what he was doing, and that he did it as a favor to Mr. Trump as a “friend.”
19 [Avenatti Decl., Exs. A-B.] Indeed, if Mr. Trump was completely unaware of Mr.
20 Cohen’s actions, the question naturally arises as to how it would be possible for a
21 “meeting of the minds” to have occurred between parties where one of the parties does
22 not even know about the existence of the agreement? Chaganti v. I2 Phone Int’l, Inc.,
23

24 Indeed, Defendants will not even confirm or deny whether the “David Dennison”
5

mentioned in the Agreement is Mr. Trump. See Cal. Civ. Code § 1558 (“It is essential to
25 the validity of a contract, not only that the parties should exist, but that it should be

26 possible to identify them.”) (emphasis added). In fact, despite repeated requests from
Plaintiff’s counsel as to their position, Defendants refuse to state whether Mr. Trump is
27 even a party to the Agreement.

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1 635 F. Supp. 2d 1065, 1071 (N.D. Cal. 2007) (“In order for a contract to form, there must
2 be a meeting of the minds with an intent to be bound by a legally enforceable
3 agreement.”); Cal. Civ. Code § 1580 (“Consent is not mutual, unless the parties all agree
4 upon the same thing in the same sense.”). Therefore, Plaintiff must be permitted to
5 request documents from Defendants and to cross-examine Mr. Trump and Mr. Cohen at a
6 deposition regarding these topics that are at the heart of whether an agreement was ever
7 formed.
8 Moreover, the absence of Mr. Trump’s signature is a highly relevant topic of
9 discovery in this proceeding. This is particularly so where, as here, the Agreement
10 requires the signature of all parties as a condition to it becoming valid and binding.
11 [Agreement at ¶8.6 (“[T]his Agreement, when signed by all Parties, is a valid and
12 binding agreement, enforceable in accordance with its terms.”) (emphasis added).] See
13 Banner Entertainment, Inc. v. Superior Court, 62 Cal. App. 4th 348, 358 (1998) (“When
14 it is clear, both from a provision that the proposed written contract would become
15 operative only when signed by the parties as well as from any other evidence presented
16 by the parties that both parties contemplated that acceptance of the contract’s terms
17 would be signified by signing it, the failure to sign the agreement means no binding
18 contract was created.”). Moreover, by failing to sign the Agreement, Mr. Trump failed to
19 supply essential consideration to Plaintiff in the form of a release, covenant not to sue,
20 and representations and warranties. [See Agreement at ¶¶2.3, 2.5, 4.3, 8.6.] See Casa del
21 Caffe Vergnano S.P.A. v. ItalFlavors, LLC, 816 F.3d 1208, 1212 (9th Cir. 2016)
22 (“[W]here the parties to a ‘contract’ have not mutually consented to be bound by their
23 agreement, they have not formed a true contract.”); Banner, 62 Cal. App. 4th at 362
24 (reversing order compelling arbitration on the grounds that in the absence of a signature,
25 there was no agreement at all.).
26 Therefore, the lack of a signature from Mr. Trump, along with his testimony and
27 Mr. Cohen’s testimony explaining why he did not sign the Agreement when the
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1 Agreement plainly included a place for his signature, is an unmistakably relevant area of
2 inquiry in connection with resolving EC’s motion to compel arbitration.
3 Further, the source of funds for the $130,000 payment is highly relevant to the
4 motion to compel arbitration. If Mr. Trump did not supply the funds or did not even
5 know about the funds, this would be another relevant fact demonstrating that he never
6 consented to the Settlement Agreement. On the other hand, if Mr. Trump, The Trump
7 Organization, or another Trump related entity is the source of funds for the $130,000
8 payment, then Mr. Trump may be said to have consented to the terms of the Agreement.
9 Finally, if Mr. Trump was aware of the Settlement Agreement, given that he never
10 signed it, Plaintiff must be permitted to explore through document demands and
11 deposition testimony how he claims he communicated his acceptance and assent of the
12 Agreement, including his assent to the terms requiring him to provide Plaintiff with a
13 release of claims and a covenant not to sue. Esparza v. Sand & Sea, Inc., 2 Cal. App. 5th
14 781, 788 (2016) (the “consent of the parties to a contract must be communicated by each
15 party to the other.”).
16
(2) The Discovery Is Necessary to Resolve Factual
17 Disputes Concerning Whether the Agreement and the
Arbitration Clause Had a Lawful Purpose
18
In addition to discovery on the question of whether an agreement was formed in
19
light of Mr. Trump’s failure to consent to the Agreement, discovery concerning whether
20
there was a lawful purpose to the Agreement’s confidential arbitration clause is also
21
highly probative of whether a contract was formed. Cal. Civ. Code § 1550 (contract must
22
have a “lawful object” which is “essential to the existence of a contract”).
23
The illegality of a contract “voids the entire contract, including the arbitration
24
clause.” Duffens v. Valenti, 161 Cal. App. 4th 434, 454 (2008); see also R. M. Sherman
25
Co. v. W. R. Thomason, Inc., 191 Cal. App. 3d 559, 563 (1987) (“If the contract was
26
truly void it created no right or claim whatsoever. . . . [I]t binds no one and is a mere
27
nullity.”) (internal quotation marks omitted). Thus, for example, in Gutierrez v. Carter
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1 Bros. Security Services, the district court concluded, in part, that “if a contract’s ‘central
2 purpose’ is ‘tainted with illegality,’ then the contract as a whole is unenforceable” and
3 thus denied a motion to compel arbitration. Gutierrez v. Carter Bros. Sec. Servs., LLC,
4 63 F. Supp. 3d 1206, 1214 (E.D. Cal. 2014) (quoting Armendariz v. Found. Health
5 Psychcare Servs., Inc., 24 Cal. 4th 83, 124 (2000))
6 Under federal law (including the FAA), the legality of the arbitration provision is
7 to be decided by the Court, not the arbitrator. See Nagrampa v. MailCoups, Inc., 469
8 F.3d 1257, 1264 (9th Cir. 2006) (“When the crux of the complaint is not the invalidity of
9 the contract as a whole, but rather the arbitration provision itself, then the federal courts
10 must decide whether the arbitration provision is invalid and unenforceable under 9 U.S.C.
11 § 2 of the FAA.”). In Buckeye Check Cashing v. Cardegna, the Supreme Court held that
12 “a challenge to the validity of the contract as a whole” based on illegality “and not
13 specifically to the arbitration clause, must go to the arbitrator.” Buckeye Check Cashing,
14 Inc. v. Cardegna, 546 U.S. 440, 449 (2006) (emphasis added).
15 Here, Plaintiff’s challenge to the lawful purpose of the contract is not simply to the
16 legality of the contract as a whole, but also specifically to the arbitration clause itself.
17 [FAC, ¶¶57-61.] Under the Federal Election Campaign Act (FECA), it is unlawful to
18 make campaign contributions—defined broadly to include “any gift, subscription, loan,
19 advance, or deposit of money or anything of value made by any person for the purpose of
20 influencing any election for Federal office”— to a candidate for federal office where the
21 contribution exceeds the limits provided for by federal law. 52 U.S.C. § 30101(8)(A)(i)
22 (emphasis added). see also 52 U.S.C. §§ 30116(a)(1)(A), (c). The phrase “anything of
23 value” includes “all in-kind contributions.” 11 C.F.R. § 100.52(d)(1).
24 Moreover, critical to the legality of the arbitration clause itself, any such campaign
25 “contributions” or “expenditures” (defined similarly to “contribution”) must be made
26 public. 52 U.S.C. § 30104(b)(3)(A), (4), (5). This also includes any contributions or
27 expenditures to benefit the campaign made by the “candidate.” 11 C.F.R. §
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1 104.3(a)(3)(ii); FEC Advisory Opinion 1990-09.


2 Here, the discovery is needed to establish that the arbitration clause had no such
3 lawful object or purpose. [See FAC, ¶59.] More specifically, Plaintiff intends to prove
4 the arbitration clause was entered with the purpose of keeping facts concerning federal
5 campaign contributions and expenditures secret and hidden from public view by using a
6 confidential arbitration proceeding in violation of FECA’s mandates to publicly report
7 campaign contributions and expenditures. See 52 U.S.C. § 30104(b)(3)(A), (4), (5). In
8 other words, the principal aim and design of the arbitration clause is to keep confidential
9 that which, by law, must be publicly disclosed. Indeed, Plaintiff contends the clause
10 plainly is designed to prevent the public disclosure of an illegal campaign contribution by
11 mandating that disputes between Plaintiff and Mr. Trump be resolved in a confidential
12 arbitration proceeding shielded from public scrutiny. [FAC, ¶59.]
13 In short, deposition testimony of Mr. Trump and Mr. Cohen, along with document
14 requests directed to Defendants, is necessary to determine whether the Agreement and the
15 arbitration clause had a lawful object and purpose. These are issues the Court, not the
16 arbitrator, will be required to decide in connection with EC’s forthcoming Petition to
17 Compel Arbitration.
18 Further, Plaintiff also intends to prove that the Settlement Agreement, along with
19 the arbitration clause, are also without a lawful object or purpose and thus void ab initio
20 because they violate public policy by suppressing speech on a matter of enormous public
21 concern about a candidate for President of the United States, mere weeks before the
22 election. “‘Agreements to suppress evidence have long been held void as against public
23 policy, both in California and in most common law jurisdictions.’” Smith v. Superior
24 Court, 41 Cal. App. 4th 1014, 1025 (1996) (quoting Williamson v. Superior Court, 21
25 Cal. 3d 829, 836–837 (1978)). “A bargain that has for its consideration the nondisclosure
26 of discreditable facts, or of facts that the promisee is under a fiduciary duty not to
27 disclose, is illegal.” Restatement (First) of Contracts § 557 (1932). Remarkably,
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1 Illustration 1 in the official comments to section 557 provides the following example of a
2 bargain that is illegal:
3
1. A, a candidate for political office, and as such advocating
4 certain principles, had previously written letters to B, taking a
contrary position. B is about to publish the letters, and A fearing
5
that the publication will cost him his election, agrees to pay
6 $1000 for the suppression of the letters. The bargain is illegal.
7 Restatement (First) of Contracts § 557, Illustration 1 (1932); see also Brown v. Freese, 28
8 Cal. App. 2d 608, 618 (1938) (contract offering to pay the plaintiff to refrain from
9 disclosing information the plaintiff discovered about transactions in which the decedent’s
10 husband had participated held illegal). The arbitration clause itself is illegal because it
11 facilitates the suppression of speech by mandating a confidential arbitration proceeding
12 shielded from public view.
13 Finally, the Settlement Agreement, and the arbitration clause, are also without a
14 lawful object or purpose and are thus void ab initio because they cover up adulterous
15 conduct, a crime in Mr. Trump’s home state of New York, N.Y. Penal Law § 255.17, and
16 because the Settlement Agreement was designed to cover up Mr. Cohen’s ethical
17 violations, including his violations of Rule 1.4 and 1.8(e) of the New York Rules of
18 Professional Conduct. [See FAC, ¶¶53-55, 61.]
19 In addition to the foregoing, Plaintiff also contends no agreement to arbitrate was
20 formed between Plaintiff and EC under the plain language of section 5.2 of the
21 Settlement Agreement [FAC, ¶56], see Kramer v. Toyota Motor Corp., 705 F.3d 1122,
22 1126 (9th Cir. 2013) (“Generally, the contractual right to compel arbitration ‘may not be
23 invoked by one who is not a party to the agreement and does not otherwise possess the
24 right to compel arbitration.’”) (quoting Britton v. Co-op Banking Grp., 4 F.3d 742, 744
25 (9th Cir. 1993)). [FAC, ¶¶57-58.]
26 For all these reasons, Plaintiff has established she has a valid purpose for
27 requesting limited expedited discovery and thus satisfies the third factor in the good
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1 cause analysis. Plaintiff must be permitted to present evidence at the FAA section 4 trial
2 supporting these bases for voiding the arbitration clause. To do so, Plaintiff must be
3 permitted to conduct the limited discovery she has requested.
4
d) The Discovery Requests Do Not Impose an Unreasonable
5 Burden on Defendants.
6 The fourth factor – the “burden on the defendants to comply with the requests” –
7 also strongly favors expedited discovery. MACOM, 2017 WL 1371247, at *2.
8 As a preliminary matter, it is firmly established that a sitting president is not
9 afforded special protection from a civil suit regarding conduct before he or she
10 entered office. See Clinton v. Jones, 520 U.S. 681, 717 (1997) (The “Constitution
11 does not offer a sitting President significant protections from potentially
12 distracting civil litigation . . .”) (Breyer, J. concurring) (emphasis in original). Indeed,
13 even prior to the Supreme Court’s decision in Clinton v. Jones, there were
14 “several instances” when “sitting Presidents have given depositions or testified at
15 criminal trials” and the Supreme Court had previously “twice authorized the enforcement
16 of subpoenas seeking documents from a sitting President…” Id. at 717. Therefore, Mr.
17 Trump cannot reasonably argue that he is not subject to being compelled to provide
18 discovery in this case based on his status as President.
19 The burdens of discovery are also minimal. Instead of the seven (7) hours of
20 testimony from each witness that she is entitled to under Rule 30, Plaintiff requests a
21 modest two hours from each witness. Plaintiff is willing to accommodate the witnesses
22 and their counsels’ respective schedules by conducting the depositions on any day of
23 their choosing (even weekends) within 21 days of the Court’s order. Further, Plaintiff is
24 agreeable to conducting the depositions in any location of Defendants’ choosing.
25 Further, although under Rule 34, Plaintiff is not limited in the number of document
26 demands she may propound, here, she requests leave to propound no more than ten (10)
27

28 -18-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR EXPEDITED
TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-1 Filed 04/08/18 Page 26 of 27 Page ID
#:457

1 document requests. The requests will be limited by subject matter to only those topics
2 pertaining to the Settlement Agreement as described in this Motion.
3 Finally, the burdens imposed by the expedited discovery are not unreasonable
4 because Plaintiff merely proposes to conduct discovery that will be relevant to this
5 dispute regardless of where the case is ultimately litigated. In other words, even if later
6 in the case or in arbitration, Mr. Trump and Mr. Cohen will in any event be required to
7 answer the same questions and produce the same documents regarding this dispute.
8 Therefore, there is no undue burden or prejudice to Mr. Trump or Mr. Cohen to compel
9 them to provide this discovery on a limited basis now.
10
e) The Fifth Factor Relating to Timing of the Discovery Weighs
11 in Favor of Expedited Discovery.
12 The last factor the Court may consider in deciding whether good cause exists for
13 expedited discovery is “how far in advance of the typical discovery process the request
14 was made.” MACOM, 2017 WL 1371247, at *2. This factor is of minimal relevance
15 under the particular circumstances of this case. Because this will case will require a jury
16 trial under section 4 of the FAA, it is not unusual or unreasonable for Plaintiff to request
17 expedited discovery at this early stage to support their position with admissible evidence
18 through formal discovery demonstrating there was no agreement that was ever formed.
19 See, e.g., O’Brien, 2012 WL 1609957, at *1; see also section III(B)(2), supra. Indeed,
20 Defendants’ objection is not to the timing of the discovery; their position is that the
21 discovery should not be conducted at all.
22 IV. CONCLUSION
23 For the reasons set forth above, Plaintiff respectfully requests that the Court grant
24 this Motion in its entirety and enter an order (1) setting a jury trial pursuant to section 4
25 of the FAA on the earliest possible date convenient to the Court’s schedule, and (2)
26 requiring Defendants to produce Mr. Trump and Mr. Cohen for depositions within 21
27 days of the Court’s order for no more than two hours of deposition time for each witness,
28 -19-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR EXPEDITED
TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-1 Filed 04/08/18 Page 27 of 27 Page ID
#:458

1 and to produce documents responsive to Plaintiff’s requests for production of documents


2 (not to exceed ten (10) requests) within 14 days of the Court’s Order. Further, because
3 the requested discovery is needed in connection with opposing EC’s motion to compel
4 arbitration, Plaintiff requests that consideration of EC’s motion to be stayed pending
5 consideration of the present motion and the completion of the requested jury trial.
6
Dated: April 8, 2018 AVENATTI & ASSOCIATES, APC
7

8 By: /s/ Michael J. Avenatti


Michael J. Avenatti
9 Attorneys for Plaintiff Stephanie Clifford
10
a.k.a. Stormy Daniels a.k.a. Peggy Peterson

11

12

13

14

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22

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28 -20-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RENEWED MOTION FOR EXPEDITED
TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 1 of 34 Page ID #:459

1 AVENATTI & ASSOCIATES, APC


2 Michael J. Avenatti, State Bar No. 206929
Ahmed Ibrahim, State Bar No. 238739
3 520 Newport Center Drive, Suite 1400
4 Newport Beach, CA 92660
Tel: (949) 706-7000
5 Fax: (949) 706-7050
6
Attorneys for Plaintiff Stephanie Clifford
7 a.k.a. Stormy Daniels a.k.a. Peggy Peterson
8

10
UNITED STATES DISTRICT COURT

11
CENTRAL DISTRICT OF CALIFORNIA

12

13 STEPHANIE CLIFFORD a.k.a. CASE NO.: 2:18-cv-02217-SJO-FFM


STORMY DANIELS a.k.a. PEGGY
14 PETERSON, an individual, DECLARATION OF MICHAEL J.
15 AVENATTI IN SUPPORT OF
Plaintiff, PLAINTIFF’S RENEWED MOTION
16 FOR EXPEDITED JURY TRIAL
17 vs. PURSUANT TO SECTION 4 OF THE
FEDERAL ARBITRATION ACT,
18 DONALD J. TRUMP a.k.a. DAVID AND FOR LIMITED EXPEDITED
19 DENNISON, an individual, ESSENTIAL DISCOVERY
CONSULTANTS, LLC, a Delaware
20 Limited Liability Company, MICHAEL Hearing Date: May 7, 2018
21 COHEN, an individual, and DOES 1 Hearing Time: 10:00 a.m.
through 10, inclusive Location: Courtroom 10C
22

23 Defendants.
24

25

26

27

28

DECLARATION OF MICHAEL J. AVENATTI IN SUPPORT OF PLAINTIFF’S RENEWED MOTION FOR


EXPEDITED TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 2 of 34 Page ID #:460

1 DECLARATION OF MICHAEL J. AVENATTI


2 I, MICHAEL J. AVENATTI, declare as follows:
3 1. I am an attorney duly admitted to practice before this Court. I am an
4 attorney with the law firm of Avenatti & Associates, APC, counsel of record for
5 Plaintiff Stephanie Clifford (“Plaintiff”). I am submitting this declaration in support of
6 Plaintiff’s Motion for Expedited Discovery. I have personal knowledge of the
7 information stated herein and if called to testify to the same would and could do so.
8 2. Attached hereto as Exhibit A is true and correct copy of the CNN article
9 titled “Michael Cohen Says He Used His Own Home Equity Line for Stormy Daniels
10 Payment,” obtained from the internet.
11 3. Attached hereto as Exhibit B is true and correct copy of the March 19,
12 2018 Vanity Fair article titled “’I Have Never Threatened Her in Any Way’: Michael
13 Cohen Offers His Side of the Stormy Daniels Saga,” obtained from the internet.
14 4. Attached hereto as Exhibit C is true and correct transcript of the March 26,
15 2018 press briefing by Deputy Press Secretary Raj Shah, obtained from the internet.
16 5. Attached hereto as Exhibit D is true and correct transcript of the April 5,
17 2018 remarks by Donald Trump, obtained from the internet.
18 6. Defendant Essential Consultants, LLC—without any notice to Plaintiff—
19 initiated an arbitration proceeding in Los Angeles before ADR Services and obtained a
20 temporary restraining order against my client on an ex parte basis (again, without any
21 notice to Plaintiff) purporting to restrict my client from speaking.
22 7. On March 21, 2018, in accordance with Local Rule 7-3, the parties met and
23 conferred and thoroughly discussed the relief requested in this Motion. I participated in
24 the conference by telephone and another attorney from my office participated in person
25 at the office of counsel for defendant Essential Consultants, LLC. We discussed the
26 substantive grounds for the Motion and attempted to reach an accord that would
27 eliminate the need for this Motion. We provided citations to specific legal authority to
28 support our position. We advised counsel for Defendants that Plaintiff intended to seek
-1-
DECLARATION OF MICHAEL J. AVENATTI IN SUPPORT OF PLAINTIFF’S RENEWED MOTION FOR
EXPEDITED TRIAL SETTING AND DISCOVERY DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 3 of 34 Page ID #:461

1 a jury trial in connection with the issue of whether an agreement was formed. We also
2 advised counsel for Defendants that Plaintiff sought limited discovery on an expedited
3 basis as follows: (1) a deposition of Mr. Trump of no greater than two (2) hours, (2) a
4 deposition of Mr. Cohen of no greater than two (2) hours, and (3) no more than ten (10)
5 targeted requests for production of documents directed to Mr. Trump and Mr. Cohen on
6 various topics relating to the Agreement. The parties, however, were unable to
7 successfully resolve their dispute. According to counsel for both Defendants,
8 Defendants’ position is that no discovery should be conducted in this case, and no trial
9 should be set, because this case should be summarily ordered to arbitration.
10 I declare, under penalty of perjury and under the laws of the United States of
11 America, that the foregoing is true and correct. Executed on April 8, 2018.
12

13 /s/ Michael J. Avenatti


Michael J. Avenatti
14

15

16

17

18

19

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27

28 -2-
DECLARATION OF MICHAEL J. AVENATTI IN SUPPORT OF PLAINTIFF’S RENEWED MOTION FOR
EXPEDITED TRIAL SETTING AND DISCOVERY
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 4 of 34 Page ID #:462

Exhibit A
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 5 of 34 Page ID #:463

Michael Cohen says he used his own home


equity line for Stormy Daniels payment
A By Veronica Stracqualursi, ctm
- Updated 7:59 PM ET, Fri March 9, 2010

<
Cohen: I used home Po!ygraph. St0m1y Storm7 De.mets· friend· Stormy'~ la·,·,yer· some Lawy
equity line to pey Daniels DJniels truthful abott. Shefears lor hcrllle inc1dentstoo~:p1ace wail
Trump dunngTrumpprcStdenq, threa

Washington (CNN)- President Donald Trump's personal lawyer used runds rrom his own home
equity line to make a $130,000 payment to porn star Stormy Daniels on Trump's behalf. he told
CNN.

"The funds were taken from my home equity line and transrerred Internally to my LLC account in
the same bank," Michael Cohen said in a statement.

Cohen also confirmed that he used his Trump Organization email account to communicate
details of a payment transfer to Stephanie Clifford. the adult ftlm star known as Stormy Daniels.
who allegedly had an affair with the President before his Ume In office.

Earlier Friday, Clifford's lawyer, Michael Avenattl, provided an email to CNN In which Cohen
confirmed the transrer to Daniels' rormer attorney, Keith Davidson. In the email, both Cohen's
personal email account and trumporg.com email account were used. The deposit was
conftrmed to Cohen by a First Republic Bank employee.

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f 1om: Michntl Cohen <mrohrn'ii m,mnme cam>
Date: Wed, Oc126, 2016:114:49 J>~·I
Subject: FW: Fir, t Republic Bnnk Tmnsfer
Tu: "11ut,11brn. 'l'\ 1n.1il nun" <mdcohcrtllll 4mn;,1I com:.
1

1-'rom: (moiho·
Sent: Wcdm:sJay, Oclober 26, 2016 4: 15 PM
To: Michael Cohen <mcohrn1{uumpocg com>
Subj«t: RE: First Republic Bank Trnnsfcr

Good Aflcmoon Mr. Cohen.

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Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 6 of 34 Page ID #:464

Cohen responded later Friday, saying that he regularly used his business email account for
personal matters.

'I sent emails from the Trump Org email address to my family, friends as well as Trump business
emails. I basically used it for everything. I am certain most people can relate," he said.

Avenatti, speaking on MSNBC. said Cohen's use of his business email to conduct this transaction
could be an indication that he was acting in an official capacity as a legal counsel to Trump
when he transferred the money to Clifford.

While this development brings the payment to Clifford closer to Trump himself, It is not proof that
he knew about It. Any Involvement by Trump would indicate the payment was an in-kind
campaign contribution which was not disclosed to the Federal Election Commission. which
would be a violation of federal law, according to Paul S. Ryan, a campaign finance attorney who
works for Common Cause.

The email does not say where the funds originated from.

NBC News first reported Cohen's use of the email


account.

The day after the email, Cohen wired money from First
Republic Bank to Davidson's bank account, according
to NBC News.

Davidson did not respond to a request for comment


Related Article: Law firm handling st~rmy
Daniels case for COhen also did legal work from CNN. First Republic Bank declined to comment to
with Trump campaign the network.

Trump's 2017 financial disclosures listed an account at


First Republic Bank. valued between $15,001 and $50,000.

Cohen also regularly used that same email account to negotiate with Clifford last year before she
signed a nondisclosure agreement, NBC News reported.

Last month, Cohen said he wired Clifford $130,000 of his own money rtght before the 2016
election in exchange for her silence about the alleged affair.

Cohen said Friday that he is in the midst of a "witch hunt," saying, "These incessant attacks
against me are meritless and are concocted by the liberal mainstream media to continue to
malign our President and distract the country from his historic achievements over the past year.
This witch hunt has now gone from ludicrous to Insane.'

He has denied the Trump Organization's involvement in the payment. and both Cohen and the
White House have denied any sexual encounter between the President and Clifford.

"In a private transaction in 2016, I used my own


personal funds to facilitate a payment of $130,000 to
Ms. Stephanie Clifford," Cohen said in a statement In
February. "Neither the Trump Organization nor the
Trump campaign was a party to the transaction with
Ms. Clifford, and neither reimbursed me for the
payment. either directly or indirectly."
Related Article: Stormy Daniels' attorney

. <p~i'fti~~· 45 CONGRESS SECURITY THE NINE TRUMPMERICA 2018

favor" regarding the case. The statement Is an


admission that the nondisclosure agreement exists and that it directly Involves Trump. It was the

11~:·--E
first time the White House had admitted the President was involved in any way with Clifford.

Clifford filed suit against Trump on Tuesday, alleging that he never signed a hush agreement
regarding the alleged affair and therefore the agreement is void.
J ··- --- ------ ~
CNN's Wolf Blitzer contributed to this report. Now Pl aying Cohen: I used home ...
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 7 of 34 Page ID #:465

Exhibit B
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 8 of 34 Page ID #:466
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 9 of 34 Page ID #:467
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 10 of 34 Page ID
#:468
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 11 of 34 Page ID
#:469
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 12 of 34 Page ID
#:470
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 13 of 34 Page ID
#:471
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 14 of 34 Page ID
#:472
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 15 of 34 Page ID
#:473
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 16 of 34 Page ID
#:474
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 17 of 34 Page ID
#:475
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 18 of 34 Page ID
#:476
Case 2:18-cv-02217-SJO-FFM Document 29-2 Filed 04/08/18 Page 19 of 34 Page ID
#:477

Exhibit C
3/27/2018 Case 2:18-cv-02217-SJO-FFM
PressDocument 29-2Deputy
Briefing by Principal Filed
Press04/08/18 Page 20 of 34 Page ID
Secretary Raj Shah
#:478
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#:479

Press Briefings

Press Briefing by Principal Deputy Press Secretary


Raj Shah
Issued on: March 26, 2018

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Secretary Raj Shah
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. f
• 't#
. Q_)
•••
:::All News
James S. Brady Press Briefing Room

2:09 P.M. EDT

MR. SHAH: Good afternoon, everyone. Let me start by saying that the United States is deeply saddened by the
news of yesterday's tragic fire at a shopping mall in Siberia. The American peop le extend our deepest
sympathies to the Russian people and the fa mi lies of those who lost their lives and were injured in the fire.

Separately, as many of you saw, the President ordered the expulsion of dozens of Russian intelligence officers,
and the closure of the Russian consulate in Seattle.

This action is a response to Russia's use of a mi litary-grade chemical weapon in the U nited Kingdom, and was
taken in conjunction w ith our allies and partners around the world, including more than a dozen countries in the
EU and NATO, and others around the world .

Today's actions make the United S tates safer by reducing Russ ia's ability to spy on Americans and to conduct
covert operations and threaten America's national securi ty. With these steps, the U.S. and our a llies and partners
around the world make clear to Russ ia that actions have consequences.

We stand ready to cooperate to build a better relationship w ith Russia, but th is can only happen w ith a change in
the Russian government's behavior.

Looking ahead to next week, the President w ill welcome the leaders of Eston ia, Latvia, and Lithuania to the
White House on April 3rd.

President Trump and the three Baltic heads of state wi ll celebrate the I 00th anniversary of Estonia, Latvia, and
Lithuania's independence and set the stage for another century of strong ties between our countries.

The U.S.-Baltic Smnmit will focus on how best to strengthen our security, business, trade, energy, an d cultural
partnerships. The visit will also highlight Baltic States' achievements since thei r independence, including their
economi c growth, recent success in meeting NATO's defense and spendi ng pledges.

A quick rem inder for everyone here, the annual Wh ite House Easter Egg Ro ll w il l take p lace on the South Lawn
a week from today. We are inviting members of the White H ouse Press Co rps to bring yow- kids to the event.
So please work with the Press O ffi ce to secure tickets, if you haven' t a lready.

And w ith that, I' ll take your questions.

Zeke.

Q Thanks, Raj . Thanks for doing thi s. F irst, on Thursday, White House officia ls were up on the stage and
they said the Pres ident would sign the omnibus legislation. On Friday morning, he tlu·eatened to veto it.
Ultimately, he signed it. Ten days ago, Sarah said that H.R. McMaster had the P resident's confi dence and
support and wou ldn 't be leaving. Last Thursday, it was announced that he would be leaving the White House.
And about two and a ha lf weeks ago, the Presiden t expressed confi dence in hi s attorneys. And then there was a
bit of shake-up there last week. So can you ta lk - speak to the White House's credi bi lity, why should we, in
this room, and mo re importantly, the American peop le, trust anything that this administration is telling them?

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MR. SHAH: Well, our job, as a press office and as an administration, is to give you the best information that we
have available to us, the most accurate information in a timely fashion. Sometimes the dynamics are fluid in any
given situation. You mentioned some personnel matters; facts and circumstances change. We continue to give
you guys the best information that we can as quickly as possible.

Q Thanks, Raj. One more for you just on the Stormy Daniels incident. I'm sure my colleagues have more
questions on that. Could you state, categorically, that the President, his campaign, and the Trump Organization
did not violate federal law - specifically, election law - regarding that payment?

MR. SHAH: Well, I can speak for only the White House, and I can say, categorically, and obviously, the White
House didn't engage in any wrongdoing. The campaign or Mr. Cohen -

Q (Inaudible.)

MR. SHAH: Yeah. The campaign or Mr. Cohen can address anything with respect to their actions. With
respect to that interview, I will say the President strongly, clearly, and has consistently denied these underlying
claims. And the only person who's been inconsistent is the one making the claims.

Phil.

Q Yeah, Raj. Regarding the Russia actions that were announced earlier today, the President has not personally
said anything about the expulsion of these 60 diplomats. And in his phone call last week with President Putin,
he decided not to confront Putin on the attack despite the advice he was given from his national security
advisors. And he went on to congratulate Putin on that phone call. So how do you square the aggressive actions
that the administration is taking with an entirely different approach from the President?

MR. SHAH: Well, I think there was a statement coming out from the Press Secretary on this. And the last
sentence basically outlined our approach to this, which is our relationship with Russia is, frankly, up to the
Russian government and up to Vladimir Putin and others in senior leadership in Russia.

We want to have a cooperative relationship. The President wants to work with Russia, but their actions
sometimes don't allow that to happen.

The poisoning in the UK that has kind of led to today's announcement was a very brazen action. It was a
reckless action. It endangered not just two individuals who were poisoned, but many civilians - many innocent
civilians. And this is not the type of conduct that the United States or allies can accept. But the President still
remains open to working with the Russians on areas of mutual concern - counterterrorism, for example, and
others. But, you know, that's really up to the Russians to decide.

Q But if the President believes it was a reckless and brazen action, why did he not say so to Putin, directly,
when he spoke with him and had the opportunity to do that?

MR. SHAH: Well, he raised a number of issues and we did secure with Putin, on that call, some positive
interaction when it comes to nuclear arms. So there were certainly positive developments on that call, and the
President will continue diplomacy with Russia and with Putin. But, you know, this action by the President is
very clear. We're very heartened that it comes in conjunction with over a dozen allies, both in NATO and EU.

Kevin.

Q Thank you, Raj. You mentioned that it was brazen and that it was reckless. Does that attack on the soil of a
valued ally rise to the level of an act of war? Is that the administration's policy, here?

MR. SHAH: Well, we've been joined at the hip with the UK on this matter. We stand firmly with our ally.
Again, I'll classify this action as both brazen and reckless. And I don't want to get ahead of anything the
President may or may not announce or declare later on.

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Q And if I could follow up very quickly -

MR. SHAH: Yeah.

Q You mentioned that the President continues to maintain his consistent story that he did not do what has been
alleged by Ms. Daniels. Did he, by chance, watch the interview last night? Did you ask him about that?

MR. SHAH: You know, I'm not going to get into what the President may or may not have seen. I'll just say that
he's consistently denied these allegations.

Kristen.

Q Thank you. Was the President aware of a physical threat made against Ms. Daniels when she was with her
daughter back in 2011?

MR. SHAH: Well, the President doesn't believe that any of the claims that Ms. Daniels made last night in the
interview are accurate.

Q He doesn't believe she was threatened?

MR. SHAH: No, he does not.

Q What's his basis for that, Raj?

MR.SHAH:Sorry?

Q What's his basis for that?

MR. SHAH: Well, he just doesn't believe that-you know, there's nothing to corroborate her claim.

Q And Raj, did he have dinner with Michael Cohen at Mar-a-Lago on Saturday?

MR. SHAH: Yeah, I believe he did.

Q Can you give us a readout of that? Did they discuss the interview with Stormy Daniels?

MR. SHAH: I don't have any additional information on it.

Cecilia.

Q So ifhe doesn't believe her claims made in that TV interview, we can deduce he saw it from that?

MR. SHAH: Well, I'm-again, I'm not going to get into what he saw. There are clips of it playing all over in
the morning new shows. What I'll just say is that he's denied the accusations that she made last night and has
been consistent in doing so. She has not.

Q So on the expulsions, three weeks passed between the attacks and the expulsions. What took so long?

MR. SHAH: Well, I mean, actions like this take time and we coordinated with, again, over a dozen allies. We
wanted this to be a joint effort in which the United States is joining both the European Union and NATO Allies.

Q And a spokeswoman for the Russian Foreign Minister is now threatening retaliation against the U.S. and
other countries involved in these expulsions. Your response to that?

MR. SHAH: Look, we want to work with Russia, but this type of an action cannot be tolerated. The United
States is responding to Russia's action- as I called it, brazen and reckless. So this is a U.S. response. We want

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to work with Russia. You know, the ball is in their court with respect to how they want to respond.

Jim.

Q If you listen to national security experts, diplomatic experts on what happened with Russia, they will say
that you have to hit Russia where it hurts. You have to sanction them. Economically, you have to go after
Putin's cronies. You have to go after Putin himself, potentially. Would this President consider sanctioning
Vladimir Putin or his cronies to punish him and the Russian government for what happened in the UK and also
for meddling in the 2016 election?

MR. SHAH: Well, the United States has issued sanctions on key Russian oligarchs in response to the meddling
in the 2016 election.

Q What about Putin himself?

MR. SHAH: So, I wouldn't close any doors or I wouldn't preclude any potential action. But the President
doesn't telegraph his moves.

Q And one other question about this weekend: There was this massive march here in Washington, led by the
students from Parkland, Florida. The President did not tweet about it, he hasn't really said anything about this.
What is the White House response to this? And are the actions of the President signed into law last week
strengthening some of the, I guess, background check systems and whatnot we have in this country? Is that the
end of it? Is the President going to do any more on the gun safety issue? And what about that question that he
asked of the Republican lawmakers here - "Are you afraid of the NRA?"

MR. SHAH: Look, the President does respect everyone's First Amendment right and wants their voices to be
heard. As you mentioned, there were actions that he signed into law on Friday in the omnibus bill. They
included over $2 billion in new funding for school safety. He signed into law the STOP School Violence Act
which was, actually, a priority of the Sandy Hook Promise Organization; and the Fix NICS bill, the background
check portion that you mentioned.

Also on Friday, the Department of Justice announced a new rule which effectively banned the sale of bump
stock devices. And the President is a strong believer in the Second Amendment, but he does believe other
measures could potentially be taken both at the federal and also at the state level to improve school safety. He's
mentioned hardening schools. He's talked about these extreme risk protective orders that states can engage in.
So there's a whole lot of things that can be done.

This Wednesday, the School Safety Commission that is chaired by Secretary De Vos will be meeting for the first
time, and we hope some fruitful ideas can come from that.

Mike.

Q Can you talk a little bit about David Shulkin? Is he going to be fired face-to-face or is it going to be through
the media, on Twitter? Can you give us an update on that?

MR. SHAH: I have no personnel announcements to make at this time.

Steven.

Q Raj, just to follow up on Stormy Daniels. Can you explain, Raj, why it has been the President's practice, or
the practice of those associated with the President, to offer compensation to people to keep them silent? Why
would the President do that? And why has he done that or caused others to do that?

MR. SHAH: Well, I would have Michael - you can have Michael Cohen address any specifics regarding this
agreement that you're referring to. But, look, false charges are settled out of court all the time, and this is
nothing outside the ordinary.
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Q But why would, in this case, $130,000 be paid to a woman in the days before the election? You're saying
that she made false claims, but why, then, would $130,000 be paid to her?

MR. SHAH: Again, false charges are settled out of court all the time. You'd have to ask Michael Cohen about
the specifics.

Q Does the President have any intention of responding directly himself? You've said that he denies the
claims. Why haven't we heard from him?

MR. SHAH: Well, that will be up to the President.

Jen.

Q Thanks, Raj. On North Korea, Bloomberg has reported that Kim Jong-un is in China right now. Does the
White House see that as a precursor to talks between President Trump and Kim Jong-un? And has China offered
to host that summit?

MR. SHAH: Well, you know, we can't confirm those reports. We don't know if they're necessarily true. What
I'll just state, though, is that, you know, where we are with North Korea is in a better place than we used to be
because the President's maximum pressure campaign, in conjunction with dozens of countries around the world,
has paid dividends and has brought the North Koreans to the table. So we're looking forward to a potential
summit some months in advance.

Q On Shulkin, does the White House believe that the nation's veterans are best served by having David
Shulkin serve as VA Secreatry?

MR. SHAH: Again, I have no personnel announcements to make at this time when it comes to -

Q How much longer should the Secretary expect to work in the administration?

MR. SHAH: Sorry, say that again.

Q How much longer should the Secretary expect to work in the administration?

MR. SHAH: Guys, I have no personnel announcements.

Yeah.

Q Thanks, Raj. The Israeli press is reporting that Prime Minister Netanyahu has begun informing French and
German foreign ministers that the U.S. is very likely to pull out of the Iran deal in May. Can you confirm that?

MR. SHAH: Well, I can't confirm that. What I can tell you is that the President has been pretty clear since
January, where he gave some remarks about this, what he thinks of the Iran deal. In fact, that goes back years.
He thinks it's one of the worst agreements the United States has ever made internationally, and he is insistent on
changes both at the congressional level working with Congress, and also with our European partners. If changes
aren't made, the President is prepared to potentially withdraw from the agreement.

Jon.

Q Thanks a lot, Raj. In light of these announced expulsions of these 60 Russian intelligence agents, is the
President still going full steam ahead in meeting with Russian President Vladimir Putin?

MR. SHAH: Again, we have no announcements on a potential meeting or any kind of summit.

Q But you still want to do it, right?

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MR. SHAH: Yeah. Again, as I said, we want to work with Russia. We have areas of mutual concern where we
can work with them. Again, I mentioned counterterrorism. There's general global stability and other matters
where we can-we want to work with Russia. But that ball is in their court. It is up to them on whether we're
going to have a fruitful and constructive relationship or an adversarial relationship.

Q But why give that gift of meeting with the President after they've done what the U.S. not just alleges - say
they have done? They've poisoned a former Russian spy on British soil, and you've punished them for it. Why,
at this point, also give them this gift of meeting with the President of the United States?

MR. SHAH: Well, again, there's no meeting to announce.

Jordan.

Q Thanks, Raj. Treasury Secretary Mnuchin said this weekend that there might be some kind of workaround
for a Supreme Court ruling that said line-item vetoes are unconstitutional. What is that workaround, and is that
something that the White House is aggressively pursuing and is going to propose that Congress take care of?

MR. SHAH: Well, the President outlined on Friday why he was very frustrated with the legislation that he was
given. It was a massive spending bill handed to him at the eleventh hour. You know, spending by Congress
hasn't really been executed properly since 1996. They haven't had individual spending bills for over two
decades.

And so this omnibus process, the President wants to reform. He's talked about ending the filibuster. He's talked
about a line-item veto. Obviously, it has to pass constitutional muster - anything that's passed. But he wants
to fix the budget process. And, you know, his message to leaders in Congress of both parties is that if something
similar happens again, he's much more inclined to veto it.

Q On the line-item veto in particular, though, have you been able to find a workaround to that Supreme Court
ruling that says it's unconstitutional?

MR. SHAH: Well, there are certain things being discussed with respect to House and Senate rules. I don't want
to get ahead of anything that we may come out in favor of.

John.

Q Yeah. Thank you, Raj. Two questions. First, last week Senator Barrasso, the Republican Whip, made a
very strong speech in which he denounced, as Marc Short did, the necessity to use cloture on all appointments,
and he called for a new agreement similar to the bipartisan agreement Senator Schumer had with Republicans in
2013, allowing several votes on a nomination to come up and not requiring the cloture so much. Have you
talked to Senator Barrasso about this, or has the President talked to him? And is that something the
administration endorses?

MR. SHAH: Well, I'm not aware of a White House conversation with Senator Barrasso. I hav~n't spoken to
him. You know, I would generally agree with the concept. But having not seen all the details, I don't want to
commit to it.

Q The other thing is that Egypt is having an election this week, and all signs are President Al Sisi will be
reelected without much opposition. Does the President plan to call him?

MR. SHAH: I don't have any call plans to read out to you.
Trey.

Q Thanks, Raj. The President spoke with Russian President Vladimir Putin last week. Today, we saw this
major action by the United States to expel these 60 diplomats and, additionally, close the consulate in Seattle.

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Why did the President not bring up this poisoning of a former Russian spy with President Putin when he spoke
with him on the phone?

MR. SHAH: Well, as I mentioned earlier, the President did discuss a range of issues with Vladimir Putin. But,
you know, he's addressed this matter publicly and repeatedly addressed it. After he spoke with Prime Minister
May, he addressed it in the quad statement, and, you know, with this action right now.

So the President has made his position and the country's position pretty clear.

Q And if I could ask you about Shulkin. I'm not looking for a personnel announcement here; I'd simply like
to ask you, how would you describe the relationship between President Trump and VA Secretary Shulkin?

MR. SHAH: Well, I haven't asked the President about it directly, today. So I don't want to comment on it too
specifically.

Q Thanks very much, Raj. You said earlier that the only person who's been inconsistent is the one making
these claims, meaning Stormy Daniels. What has she said that's inconsistent?

MR. SHAH: Well, my understanding is that she signed some statements that conflict with what she said last
night.

Last question.

Q Thanks, Raj. There have a been cascade of expulsion announcements from around the globe today. I think
some 130 diplomats across 18 countries. What was the U.S. role in this? And can you tell us a little bit more
about the President's role in what looks like a pretty coordinated effort?

MR. SHAH: Yeah. Well, this was a coordinated effort, and the President spoke with many foreign leaders-
our European allies and others - and encouraged them to join the United States in this announcement.

We think that this is not just an important message to send to the Russian government, but it's also significant in
degrading their intelligence capabilities around the world, not just in the United States.

Q Raj, the President has come out strongly about the importance that law enforcement plays in this country.
Has he commented at all about the shooting death of Stephon Clark? He was unarmed, shot by a police officer.
A lot of protests happening across the country as a result.

MR. SHAH: I'm not aware of any comments that he has. I haven't asked him about that directly. Obviously,
the President cares about any individual who would be harmed through no fault of their own. I don't know the
specifics in that case, and I don't want to comment any further.

All right. Thanks, folks.

END
2:29 P.M. EDT

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#:489

Exhibit D
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#:490

Remarks

Remarks by President Trump in Press Gaggle en route


Washington, D.C.
Issued on: April 5, 2018

Share:
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#:491

All News

Aboard Air Force One

En Route Washington, D.C.

4:22 P.M. EDT

THE PRESIDENT: (In progress) — very happy. Thought it was really great.

Q How are you feeling about Scott Pruitt, Mr. President? Is he —

THE PRESIDENT: I think he’s done a fantastic job at EPA. I think he’s done an incredible job. He’s been very courageous. Hasn’t been
easy, but I think he’s done an absolutely fantastic job. I think he’ll be fine.

Q (Inaudible.)

THE PRESIDENT: I think he’ll be fine. Yeah, I want to look at it. I haven’t seen the details, but I can tell you, at EPA he has done a
fantastic job.

Q Are you bothered by the reports about him, sir?

THE PRESIDENT: On Scott?

Q Yeah.

THE PRESIDENT: Who’s saying that? I have to look at it, and close. You know, I hear different versions of it. But I’ll make that
determination.

But he’s a good man. He’s done a terrific job. But I’ll take a look at it very closely.

Q What did you think of his interview?

THE PRESIDENT: You know, I didn’t — with Ed Henry?

Q Yes.

THE PRESIDENT: Which one? Ed Henry?

Q Yes. With Fox.

THE PRESIDENT: It’s an interesting interview. (Laughs.)

Q Are you thinking about switching him out for Attorney General?

THE PRESIDENT: No, no. No, Scott is doing a great job where he is.

Q How many National Guard do you want to see at the border?

THE PRESIDENT: Anywhere from 2,000 to 4,000. We’re looking at a combination of from 2,000 to 4,000. We’re moving that along.

Q How much do you think that’s going to cost?

THE PRESIDENT: We’re looking at it, but, I mean, I have a pretty good idea. But it depends on what we do. But we’re looking from
2,000 to 4,000. And we’ll probably keep them, or a large portion of them, until such time as we get the wall.

Did you enjoy the roundtable? A little different, right?

Q (Inaudible) — about Amazon. You’ve been tweeting a lot about that. Are you going to actually take some action to change the law
that would affect Amazon?
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THE PRESIDENT: Well, Amazon is just not on an even playing field. #:492
You know, they have a tremendous lobbying effort, in addition to
having The Washington Post, which is, as far as I’m concerned, another lobbyist. But they have a big lobbying effort. One of the biggest,
frankly. One of the biggest. And it’s — you know, what they have is a very uneven playing field. You look at the sales tax situation —
which is going to be taken up, I guess, very soon — it’s going to be a decision by the Supreme Court. So we’ll see what happens.

The Post Office is not doing well with Amazon, that I can tell you. But we’re going to see what happens. The playing field has to be level
for everybody. That’s very important.

Q Would you like to make changes to make that level playing field?

THE PRESIDENT: Well, I’m going to study it and we’re going to take a look. We’re going to take a very serious look at that. But I want,
as long — hey, it’s very important for me. It’s got to be an even playing field for everybody.

Q Mr. President, did you know about the $130,000 payment to Stormy Daniels?

THE PRESIDENT: No. No. What else?

Q Then why did Michael Cohen make those if there was no truth to her allegations?

THE PRESIDENT: Well, you’ll have to ask Michael Cohen. Michael is my attorney. And you’ll have to ask Michael Cohen.

Q Do you know where he got the money to make that payment?

THE PRESIDENT: No, I don’t know. No.

Q Did you ever set up a fund of money that he could draw from?

Q I’m sorry, I couldn’t hear your response earlier about Scott Pruitt. Are you still —

THE PRESIDENT: About who?

Q About Pruitt. I was — I couldn’t hear it.

THE PRESIDENT: I think that Scott has done a fantastic job. I think he’s a fantastic person. I believe — you know, I just left — I just left
coal and energy country. They love Scott Pruitt. They feel very strongly about Scott Pruitt, and they love Scott Pruitt.

Thank you very much everybody. I’ll see you back in New York. Thank you.

END

4:26 P.M. EDT

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