Opposition To Ex Parte To Stay and Declaration

Case 2:18-cv-02217-SJO-FFM Document 39 Filed 04/16/18 Page 1 of 27 Page ID #:742
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 STEPHANIE
13 Plaintiff, CLIFFORD’S OPPOSITION TO
14 DEFENDANTS ESSENTIAL
vs.
CONSULTANTS, LLC, DONALD J.
15 TRUMP AND MICHAEL COHEN’S
DONALD J. TRUMP a.k.a. DAVID JOINT EX PARTE APPLICATION
16 DENNISON, and individual,
ESSENTIAL CONSULTANTS, LLC, a TO STAY ACTION
17 Delaware Limited Liability Company,
MICHAEL COHEN and DOES 1
18 through 10, inclusive,
19
Defendants.
20
21
22
23
24
25
26
27
28
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT EX PARTE APPLICATION TO STAY ACTION

1 TABLE OF CONTENTS
2
I. INTRODUCTION ..................................................................................................... 1
3
4 II. FACTUAL BACKGROUND.................................................................................... 2
5 III. LEGAL STANDARD ............................................................................................... 4

6 IV. ARGUMENT ............................................................................................................. 5
7
A. Mr. Cohen’s Alleged Fifth Amendment Concerns Do Not
8 Justify a Stay.................................................................................................... 5
9 1. Any Claimed Fifth Amendment Privilege Does Not
10 Justify a Stay. ........................................................................................ 5
11 a) Mr. Cohen Has Failed to Meet His Burden. ............................... 5

12 b) EC Cannot Invoke Any Fifth Amendment
13 Protections and Mr. Trump Has Not Invoked
Any Such Protection. .................................................................. 9
14
c) Less Drastic Measures are Available than a
15
Blanket Stay. ............................................................................. 10
16
d) The Law Defendants Rely Upon is Inapposite. ........................ 11
17
2. Mr. Cohen Has Waived Any Fifth Amendment
18
Protections as to Matters Voluntarily Disclosed in this
19 Action. ................................................................................................. 12
20 3. Mr. Trump Does Not Raise Any Fifth Amendment
21 Concerns. ............................................................................................. 15
22 B. The Five Keating/Molinaro Factors Do Not Require a Stay ........................ 15

23 1. The Prejudice to Plaintiff and Her Interest in
24 Proceeding Expeditiously Weigh Against a Stay ............................... 16
25 2. The Purported Burden on Defendant Does Not
Require a Stay ..................................................................................... 17
26
27 3. The Conservation of Judicial Resources Weighs

Against a Stay ..................................................................................... 18
28
-i-
4. The Interests of Non-Parties Does Not Weigh in

1
Favor of a Stay .................................................................................... 19
2
5. The Public Interest in the Speedy Resolution of this
3 Action Weighs Against a Stay ............................................................ 19
4
V. CONCLUSION ........................................................................................................ 20
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-ii-
1 TABLE OF AUTHORITIES
2
CASES
3
AIG Prop. Cas. Co. v. Cosby,
4
No. CV 15-04842-BRO (RAOx), 2016 WL 6662733 (C.D. Cal. July 15, 2016)......... 8
5
Air-India v. Goswami,
6
No. 91 CIV. 7290 (JSM), 1993 WL 403999 (S.D.N.Y. Oct. 5, 1993) ....................... 14
7
American Express Bus. Fin. Corp. v. RW Prof’l Leasing Serv. Corp.,
8
225 F. Supp. 2d 263 (E.D.N.Y. 2003) ......................................................................... 11
9
Bolbol v. Feld Entm't, Inc., No. C,
10
11-5539 PSG, 2013 WL 257133 (N.D. Cal. Jan. 23, 2013) ........................................ 13
11
Braswell v. United States,
12
487 U.S. 99 (1988)............................................................................................. 9, 10, 18
13
Brown v. United States,
14
356 U.S. 148 (1958)......................................................................................... 12, 13, 15
15
Cruz v. City of Maywood,
16
No. CV 07-1999 GPS (JCX), 2008 WL 11342706 (C.D. Cal. Sept. 3, 2008) .............. 8
17
Davis v. Fendler,
18
650 F.2d 1154 (9th Cir. 1981) ................................................................................. 6, 10
19
Earp v. Cullen,
20
623 F.3d 1065 (9th Cir. 2010) ....................................................................................... 6
21
22
Edwards v. C. I. R.,
680 F.2d 1268 (9th Cir. 1982) ....................................................................................... 6
23
24
Englebrick v. Worthington Indus., Inc.,
670 F. Supp. 2d 1048 (C.D. Cal. 2009) ......................................................................... 9
25
26
ESG Capital Partners LP v. Stratos,
22 F. Supp. 3d 1042 (C.D. Cal. 2014) ......................................................... 8, 16, 17, 18
27
28 Estate of Morad v. City of Long Beach,

No. CV 16-06785 MWF (AJWx), 2017 WL 5187826 (C.D. Cal. Apr. 28, 2017) ..... 17
-iii-
Fed. Sav. & Loan Ins. Corp. v. Molinaro,

1
889 F.2d 899 (9th Cir. 1989) ................................................................................ passim
2
Fed. Trade Comm’n v. Lucaslawcenter “Incorporated,” No. SACV 09-0770 DOC
3
(ANx), 2009 WL 10669363, at *7 (C.D. Cal. Sept. 30, 2009) ................................... 13
4
Garner v. United States,
5
424 U.S. 648 (1976)..................................................................................................... 15
6
Howard v. State Farm Lloyds,
7
No. H-04-0352, 2005 WL 2600442 (S.D. Tex. Oct. 13, 2005) .................................. 14
8
IBM v. Brown,
9
857 F. Supp 1384 (C.D. Cal 1994). ............................................................................. 18
10
In re Edmond,
11
934 F.2d 1304 (4th Cir. 1991) ..................................................................................... 13
12
In re Grand Jury Proceedings,
13
13 F.3d 1293 (9th Cir. 1994) ......................................................................................... 6
14
In re Master Key Litig.,
15
507 F.2d 292 (9th Cir. 1974)....................................................................................... 12
16
Int’l Floor Crafts, Inc. v. Adams,
17
No. CV 05-11654-NMG, 2008 WL 11388730 (D. Mass. May 2, 2008) .................... 13
18
Juice It Up Franchise Corp. v. Budhraja,
19
No. SACV 07-00678-CJC(MLGx), 2008 WL 11334598 (C.D. Cal. July 10, 2008) . 13
20
21
Keating v. Office of Thrift Supervision,
45 F.3d 322 (9th Cir. 1995) .................................................................................. passim
22
23
Lindsey v. City of Pasadena,
No. CV1608602SJORAOX, 2017 WL 5891097 (C.D. Cal. Mar. 24, 2017) ........ 17, 18
24
25
Microfinancial, Inc. v. Premier Holidays Int’l, Inc.,
385 F.3d 72 (1st Cir. 2004)............................................................................................ 6
26
27 Minnesota v. Murphy,
465 U.S. 420 (1984)..................................................................................................... 15
28
-iv-
Mitchell v. United States,

1
526 U.S. 314 (1999) .................................................................................................... 12
2
Neman Fin., L.P. v. Citigroup Glob. Markets, Inc.,
3
No. CV1402499BROPLAX, 2015 WL 12837640 (C.D. Cal. Apr. 17, 2015) ........... 11
4
Nutramax Labs., Inc. v. Twin Labs., Inc.,
5
32 F. Supp. 2d 331 (D. Md. 1999)............................................................................... 14
6
O. Thronas, Inc. v. Blake,
7
No. CIV.09-00353DAE-LEK, 2010 WL 931924 (D. Haw. Mar. 10, 2010) ........ 10, 15
8
OSRecovery, Inc. v. One Groupe Int'l, Inc.,
9
262 F. Supp. 2d 302 (S.D.N.Y. 2003) ......................................................................... 14
10
Perez v. Cty. of Los Angeles,
11
No. CV 15-09585 SJO (FFMx), 2016 WL 10576622 (C.D. Cal. May 3, 2016)7, 8, 18,
12 19
13
Roberts v. Brown,
14 No. 2:13-CV-07461-ODW, 2014 WL 3503094 (C.D. Cal. July 14, 2014) .................. 8
15
S.E.C. v. Braslau,
16 No. 14-01290-ODW (AJWx), 2015 WL 9591482 (C.D. Cal. Dec. 29, 2015) .... 10, 16,
17, 18
17
18 S.E.C. v. Dresser Indus., Inc.,

628 F.2d 1368 (D.C. Cir. 1980)..................................................................................... 6
19
20 S.E.C. v. Glob. Express Capital Real Estate Inv. Fund, I, LLC,

21
289 F. App’x 183 (9th Cir. 2008) .................................................................................. 6
22 Sanrio, Inc. v. Ronnie Home Textile Inc.,

23
No. 2:14-CV-06369-RSWL, 2015 WL 1062035 (C.D. Cal. Mar. 10, 2015) 10, 17, 18,
19
24
25
Shendal v. United States,
312 F.2d 564 (9th Cir. 1963) ....................................................................................... 12
26
27 Sw. Marine, Inc. v. Triple A Mach. Shop, Inc.,

720 F. Supp. 805 (N.D. Cal. 1989) .............................................................................. 16
28
-v-
Taylor, Bean & Whitaker Mortg. Corp. v. Triduanum Fin., Inc.,

1
No. 2:09-CV-0954 FCD EFB, 2009 WL 2136986 (E.D. Cal. July 15, 2009) ............ 11
2
United States v. Gwinn,
3
No. 8:02-CV-1112-T-27EAJ, 2003 WL 23357667 (M.D. Fla. Aug. 15, 2003) ......... 14
4
Zicarelli v. New Jersey State Comm’n of Investigation,
5
406 U.S. 472 (1972)................................................................................................. 6, 10
6
STATUTES
7
8 28 U.S.C. §§ 471-82........................................................................................................ 19
9
10
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12
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14
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16
17
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25
26
27
28
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1 I. INTRODUCTION
2 Before the Court is the ex parte application for a stay filed by defendants Essential
3 Consultants, LLC (“EC”), Donald J. Trump, and Michael Cohen (collectively,
4 “Defendants”), based on the mere alleged existence of a criminal investigation involving
5 Mr. Cohen. Defendants’ application must be denied for many reasons.
6 First, Defendants fail to proffer any evidence to support such a broad and sweeping
7 remedy. Defendants offer no declaration from Mr. Cohen or Mr. Trump, let alone a
8 declaration establishing the existence of a criminal investigation, or the supposed
9 relationship between the criminal investigation and the facts of this case. They rely
10 exclusively on a declaration from counsel from EC, who himself appears to rely on a
11 single news article from the Internet that is clear hearsay. To invoke the extraordinary and
12 powerful remedy of a stay, Defendants cannot require the Court to simply assume certain
13 facts are true. The Court must be presented with competent admissible evidence. Here,
14 there is none.
15 Second, the mere fact that an FBI raid occurred does not end the inquiry as
16 Defendants argue. Indeed, Defendants ignore that there is “no absolute right not to be
17 forced to choose between testifying in a civil matter and asserting his Fifth Amendment
18 privilege.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995).
19 They also ignore the overwhelming weight of authority denying stays and, even in those
20 limited cases where stays are granted, the requirement to demonstrate that criminal
21 charges have actually been filed.
22 Third, even if Mr. Cohen’s Fifth Amendment rights were implicated, they have
23 been waived. He has filed two separate declarations in this case addressing the facts –
24 with one of them being filed after the FBI raids. This is in addition to the myriad public
25 statements issued by Mr. Cohen, including a phone interview with Don Lemon of CNN
26 occurring the day after the raids. Mr. Cohen made the choice to make these public
27 statements with full knowledge of the raids; he cannot now refuse cross-examination.
28 -1-
1 Finally, the five Keating factors weigh against a stay. Among other things, Plaintiff
2 would suffer prejudice from a delay in the proceedings—a proceeding necessitated by
3 EC’S filing of arbitration and Defendants’ threats to recover $20 Million from her.
4 Defendants fail to make any showing of prejudice.
5 For each of these reasons, Defendants’ ex parte application should be denied.
6 II. FACTUAL BACKGROUND
7 Even though Mr. Cohen expresses concern about making self-incriminating
8 statements regarding this case in his ex parte application, the record demonstrates that Mr.
9 Cohen has already freely and openly discussed this matter in the public, including under
10 oath in declarations filed in this case.
11 On February 13, 2018, Mr. Cohen issued a public statement regarding Plaintiff, the
12 existence of the Settlement Agreement, and details concerning the Settlement
13 Agreement. [Avenatti Decl., Ex. 1.] Therein, Mr. Cohen stated, in part:
14 In a private transaction in 2016, I used my own personal funds to facilitate a
15 payment of $130,000 to Ms. Stephanie Clifford. Neither the Trump
Organization nor the Trump campaign was a party to the transaction with Ms.
16 Clifford, and neither reimbursed me for the payment, either directly or
17 indirectly. The payment to Ms. Clifford was lawful, and was not a campaign
contribution or a campaign expenditure by anyone. [Id. (emphasis added).]
18
On February 22, 2018, EC filed an arbitration proceeding at ADR Services, Inc. in
19
Los Angeles. [Dkt No. 31-2 at ¶8.] In the arbitration proceeding, EC brought an
20
emergency application for a temporary restraining order. [Id., ¶9.] The arbitrator entered
21
an order in favor of EC and against Plaintiff. [Id.]
22
Plaintiff filed this action on March 6, 2018. [Dkt No. 1 at Ex. 1.] On March 16,
23
Defendants filed a Notice of Removal. [Dkt No. 1.] In it, Defendants state that the
24
Settlement Agreement contains a liquidated damages clause in the amount of “‘One-
25
Million Dollars ($1,000,000)’ for ‘each breach’ of the confidentiality provisions of the
26
Settlement Agreement.” [Dkt No. 1 at 5.] In a threat directed at Plaintiff, Defendants
27
proclaimed they have the right to seek liquidated damages against Plaintiff and they
28
approximate such damages to be in excess of $20 Million. [Id.]
-2-
1 On March 9, 2018, referring to the $130,000 payment, Mr. Cohen said “[t]he funds
2 were taken from my home equity line and transferred internally to my LLC account in the
3 same bank.” [Avenatti Decl., Ex. 2.]
4 In a March 19, 2018 Vanity Fair article, Mr. Cohen again suggested Mr. Trump had
5 no knowledge of the Settlement Agreement or payment. [Avenatti Decl., Ex. 3.] In it, he
6 is quoted as saying: “What I did defensively for my personal client, and my friend, is
7 what attorneys do for their high-profile clients.” [Id.] The article also states that Mr.
8 Cohen “claims that Trump did not know that he had paid Clifford the $130,000.” [Id.]
9 Undeterred by any concerns about self-incrimination, on April 2, 2018, Mr. Cohen
10 filed a declaration personally testifying in this matter to support EC’s Motion to Compel
11 Arbitration. [Dkt No. 20-5.] Among other things, Mr. Cohen authenticated the
12 Settlement Agreement. [Dkt No. 20-5, at ¶2, Ex. A.] He also testified he “signed the
13 Settlement Agreement on behalf of EC on or about October 28, 2016.” [Dkt No. 20-5 at
14 ¶3.] Regarding the payment, Mr. Cohen admitted: “EC paid Clifford, and she accepted
15 $130,000 pursuant to the Settlement Agreement.” [Dkt No. 20-5 at ¶3 (emphasis added).]
16 On Monday, April 9, the FBI raided Mr. Cohen’s residence, office, and hotel room
17 in New York. [Blakely Decl., ¶3.] The raid occurred in the morning hours on Monday in
18 New York. [Avenatti Decl., Ex. 4 (“The F.B.I. raided the Rockefeller Center office and
19 Park Avenue hotel room of President Trump’s longtime personal lawyer, Michael D.
20 Cohen, on Monday morning . . .”) (emphasis added).]
21 Despite the FBI raid, much later that same day, Mr. Cohen filed another
22 declaration providing testimony in this action. [Dkt No. 31-2.] In it, Mr. Cohen again
23 authenticates the Settlement Agreement, confirms he signed it, and confirms that EC paid
24 the $130,000 pursuant to the Settlement Agreement to Plaintiff. [Cohen Decl., ¶¶2-
25 3.] According to the Court’s ECF notification, Mr. Cohen filed his declaration at “3:08
26 PDT”—or at least six hours after the FBI raids. [Avenatti Decl., Ex. 5.]
27 But Mr. Cohen’s public statements did not stop. They continued the next day. On
28 April 10, according to CNN, Mr. Cohen stated in a phone interview to Don Lemon that he
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1 “continues to say everything he did in regards to paying Stormy Daniels for the non-
2 disclosure agreement was perfectly legal.” [Avenatti Decl., Ex. 6.]
3 Notwithstanding Mr. Cohen’s claims through counsel that his Fifth Amendment
4 rights may be adversely impacted if this case proceeds, Mr. Trump has made no such
5 similar claim regarding his own Fifth Amendment rights.
6 III. LEGAL STANDARD
7 “The Constitution does not ordinarily require a stay of civil proceedings pending
8 the outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d
9 322, 324 (9th Cir. 1995); see also Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899,
10 902 (9th Cir. 1989) (“While a district court may stay civil proceedings pending the
11 outcome of parallel criminal proceedings, such action is not required by the
12 Constitution.”). “Nevertheless, a court may decide in its discretion to stay civil
13 proceedings ... ‘when the interests of justice seem [ ] to require such action.’” Keating, 45
14 F.3d at 324 (citation omitted) (alterations in original). “A court must decide whether to
15 stay civil proceedings in the face of parallel criminal proceedings in light of the particular
16 circumstances and competing interests involved in the case.” Molinaro, 889 F.2d at 902.
17 In doing so, “[o]bviously a court should consider the extent to which the defendant’s fifth
18 amendment rights are implicated.” Id.
19 Other factors a court should consider will vary according to the case itself, but
20 generally will include:
21
(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or
22 any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2)
23 the burden which any particular aspect of the proceedings may impose on
defendants; (3) the convenience of the court in the management of its cases, and
24 the efficient use of judicial resources; (4) the interests of persons not parties to
25 the civil litigation; and (5) the interest of the public in the pending civil and
criminal litigation.
26
Molinaro, 889 F.2d at 902-03; Keating, 45 F.3d at 325.
27
Here, as explained below, neither Defendant Cohen’s purported Fifth Amendment
28
concerns, nor the remaining five Keating/Molarino factors, support the issuance of a stay.
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1 IV. ARGUMENT
2 A. Mr. Cohen’s Alleged Fifth Amendment Concerns Do Not Justify a Stay.
3 In deciding whether to issue a stay, the first issue that should be considered by the
4 Court is whether, and the extent to which, any Fifth Amendment concerns are implicated
5 by proceeding with this action. Molinaro, 889 F.2d at 902-03. Here, the Fifth
6 Amendment does not weigh in favor of a stay because Defendant Cohen has failed to
7 demonstrate that his Fifth Amendment rights justify a stay and, in any event, he waived
8 his rights by his prior voluntary public statements and declarations filed in this action.
9
1. Any Claimed Fifth Amendment Privilege Does Not Justify a Stay.
10
Defendant Cohen’s Fifth Amendment concerns are largely irrelevant for at least
11
three reasons. First, Mr. Cohen has failed to meet his evidentiary burden to show his
12
testimony would be self-incriminating. His individual concerns simply do not justify the
13
issuance of a stay. Second, Defendant EC has no Fifth Amendment rights and Defendant
14
Trump has not invoked any. Third, less drastic measures, such as ordering Mr. Cohen to
15
testify and requiring Mr. Cohen to invoke the Fifth Amendment on a question-by-question
16
basis, are available to the Court than imposing a blanket stay.
17
a) Mr. Cohen Has Failed to Meet His Burden.
18
Mr. Cohen’s principal argument is that “if the case moves forward, Defendants’ key
19
witness would have to choose between exercising his Fifth Amendment rights, and
20
testifying on Defendants’ behalf.” [Dkt No. 38 at 4:22-24.] The problem with Mr.
21
Cohen’s argument is that according to the Ninth Circuit, “[a] defendant has no absolute
22
right not to be forced to choose between testifying in a civil matter and asserting his Fifth
23
Amendment privilege.” Keating, 45 F.3d at 326. Indeed, “[n]ot only is it permissible to
24
conduct a civil proceeding at the same time as a related criminal proceeding, even if that
25
necessitates invocation of the Fifth Amendment privilege, but it is even permissible for
26
the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in
27
a civil proceeding.” Id.
28
Thus, not surprisingly, it is well settled that the case for staying civil proceedings is
-5-
1 “far weaker” when no indictment has been returned. Molinaro, 889 F.2d at 903
2 (emphasis added); see also S.E.C. v. Glob. Express Capital Real Estate Inv. Fund, I, LLC,
3 289 F. App’x 183, 191 (9th Cir. 2008) (“The case for staying civil proceedings is weak
4 when no indictment has been returned.”); Microfinancial, Inc. v. Premier Holidays Int’l,
5 Inc., 385 F.3d 72, 79 (1st Cir. 2004) (“[A]n unindicted defendant who argues that going
6 forward with a civil proceeding will jeopardize his Fifth Amendment rights usually
7 presents a much less robust case for such extraordinary relief.”); S.E.C. v. Dresser Indus.,
8 Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980) (“The case at bar is a far weaker one for
9 staying the administrative investigation. No indictment has been returned; no Fifth
10 Amendment privilege is threatened.”).
11 This principle is in accord with the general law governing the invocation of the
12 Fifth Amendment wherein it “is well established that the privilege protects against real
13 dangers, not remote and speculative possibilities.” Zicarelli v. New Jersey State Comm’n
14 of Investigation, 406 U.S. 472, 478 (1972) (emphasis added); see also Earp v. Cullen, 623
15 F.3d 1065, 1070 (9th Cir. 2010) (“A witness justifiably claims the privilege if he is
16 ‘confronted by substantial and real, and not merely trifling or imaginary, hazards of
17 incrimination.’”); In re Grand Jury Proceedings, 13 F.3d 1293, 1295 (9th Cir. 1994);
18 Edwards v. C. I. R., 680 F.2d 1268, 1270 (9th Cir. 1982).
19 Thus, generally, “a witness must show that his testimony would ‘support a
20 conviction under a federal criminal statute” or “furnish a link in the chain of evidence
21 needed to prosecute the claimant for a federal crime.’” Earp, 623 F.3d at 1070. “A proper
22 assertion of a Fifth Amendment privilege requires, at a minimum, a good faith effort to
23 provide the trial judge with sufficient information from which he can make an intelligent
24 evaluation of the claim.” Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981).
25 Here, Mr. Cohen has failed to meet his burden to establish that his purported Fifth
26 Amendment concerns justify the issuance of a stay. He makes no attempt to demonstrate
27 why his testimony about the Settlement Agreement or the payment made thereunder
28 would be self-incriminating. To justify such a broad and sweeping remedy, one would
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1 expect a declaration from Mr. Cohen testifying about, among other things, the FBI raids,
2 what was seized in the raids, the supposed relationship between the seizures and this case,
3 the fact that he has been informed that he is under criminal investigation and that criminal
4 charges are imminent. And yet, no such declaration was filed. Nor did Defendant Trump
5 file any such declaration. Rather, Defendants rely exclusively on two sentences from the
6 declaration of EC’s counsel regarding the FBI raids and a citation to a CNN article.
7 [Blakely Decl., ¶3, Ex. A.] Needless to say, Defendants’ mere reliance on a news article
8 (which is hearsay and renders counsel’s declaration lacking foundation) does not come
9 close to satisfying the heavy burden imposed on Defendants.1 The Court may not simply
10 assume facts to be true based on a news story; it must rely on competent evidence.
11 Indeed, no evidence has been presented to demonstrate that the materials the FBI
12 seized have any relationship to this case. Nor do Defendants present evidence showing
13 that the government is investigating, or even interested in pursuing, criminal charges
14 relating to the Settlement Agreement and $130,000 payment at issue here. Accordingly,
15 the evidence presented is thus insufficient and as in a prior case before this Court, there is
16 “no basis in either law or reason to create” a rule that civil litigation should be stayed
17 based on the mere “possibility of bringing criminal charges…” Perez v. Cty. of Los
18 Angeles, No. CV 15-09585 SJO (FFMx), 2016 WL 10576622, at *3 (C.D. Cal. May 3,
19 2016) (emphasis in original) (Otero, J.). This is particularly true where, as here, Mr.
20 Cohen has already testified in this action about these topics and initiated legal action by
21 pursuing the arbitration on behalf of EC.
22 Further, Mr. Cohen, Mr. Trump and EC have not been indicted. The case law is
23 clear that in the absence of an indictment, the case for staying civil proceedings is “far
24 weaker.” Molinaro, 889 F.2d at 903. Indeed, as this specific Court has previously ruled,
25 in the absence of evidence “tending to show that criminal charges . . . are likely to be
26
1
27
EC’s counsel similarly fails to establish any foundation or basis for his belief that the
FBI sought documents relating to the $130,000 payment, or why Defendants contend Mr.
28 Cohen is under criminal investigation for matters that overlap with this case.
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1 brought” through, for example, an “affidavit by a member of the DA’s office” or similar
2 law enforcement official, there is very little reason to impose a stay based on Fifth
3 Amendment concerns. Perez, 2016 WL 10576622, at *2.
4 But even if an indictment were issued, this fact alone is not determinative. For
5 example, where the facts of the criminal proceeding and the civil proceeding are
6 dissimilar, staying the civil proceeding “would eviscerate th[e] element of the Keating
7 rubric” relating to the implicating of Fifth Amendment rights. Roberts v. Brown, No.
8 2:13-CV-07461-ODW, 2014 WL 3503094, at *3 (C.D. Cal. July 14, 2014); see also AIG
9 Prop. Cas. Co. v. Cosby, No. CV 15-04842-BRO (RAOx), 2016 WL 6662733, at *8 (C.D.
10 Cal. July 15, 2016) (“In sum, the Court concludes that continuing with this declaratory
11 relief action while Defendant faces criminal charges involving a completely different set
12 of facts will likely not implicate Defendant’s Fifth Amendment right against self-
13 incrimination.”). Moreover, even when the facts of the civil and criminal proceedings are
14 similar, this “is not enough by itself to stay a civil action.” ESG Capital Partners LP v.
15 Stratos, 22 F. Supp. 3d 1042, 1046 (C.D. Cal. 2014).
16 Significantly, like Mr. Cohen’s prior public statements and declarations, the
17 defendant in ESG Capital had previously offered testimony regarding the subject matter of
18 the criminal action. While the Court expressed “no view” on waiver, it noted that the
19 defendant “can’t have it both ways, using the Fifth Amendment only when it is convenient
20 for him and his interests.” Id.; see also Molinaro, 889 F.2d at 903 (affirming denial of
21 stay where the defendant “had already given a partial deposition.”); Cruz v. City of
22 Maywood, No. CV 07-1999 GPS (JCX), 2008 WL 11342706, at *2 (C.D. Cal. Sept. 3,
23 2008) (denying stay even where indictments were issued and the facts overlap because the
24 defendant can “refuse to testify on a question-by-question basis.”). Similarly, here, Mr.
25 Cohen should not be permitted to speak when it suits him and then invoke the Fifth
26 Amendment to stay this action.
27 Nothing Defendants offer in their ex parte application changes the analysis.
28 Defendants completely ignore that in the absence of an indictment, the case for staying
-8-
1 civil proceedings is “far weaker.” Molinaro, 889 F.2d at 903. Instead, Defendants argue
2 that the “possibility of prosecution” is enough. [Dkt. No. 38 at 8:10.] This assertion is
3 against the great weight of the case law establishing that “[a] defendant has no absolute
4 right not to be forced to choose between testifying in a civil matter and asserting his Fifth
5 Amendment privilege.” Keating, 45 F.3d at 326. In fact, one of the cases relied upon by
6 Defendants for the principle that the “possibility” of criminal prosecution is enough is not
7 even a case granting a stay of civil proceedings. See Englebrick v. Worthington Indus.,
8 Inc., 670 F. Supp. 2d 1048 (C.D. Cal. 2009) (addressing whether the invocation of the
9 privilege was proper in response to deposition questions).
10
b) EC Cannot Invoke Any Fifth Amendment Protections and
11 Mr. Trump Has Not Invoked Any Such Protection.
12 Even aside from his failure to meet his fundamental burden, a stay should be denied
13 because Mr. Cohen’s individual Fifth Amendment concerns are largely irrelevant to the
14 majority of issues raised by this action. This action centers on the Settlement Agreement
15 itself, the propriety of arbitration, and any discovery pertaining to the formation of that
16 Agreement. In this regard, EC, Mr. Trump, and Plaintiff are the only contemplated
17 parties to that Agreement. Mr. Cohen is not a party to the Agreement. He merely signed
18 it on behalf of EC. Further, as of this filing, Mr. Trump has not asserted any claimed Fifth
19 Amendment concerns.
20 Importantly, as to Defendant EC, corporations cannot invoke the Fifth Amendment.
21 Indeed, “it is well established that such artificial entities are not protected by the Fifth
22 Amendment.” Braswell v. United States, 487 U.S. 99, 102 (1988). Further, any corporate
23 records produced by EC are not entitled to Fifth Amendment protections and “a corporate
24 custodian … may not resist a subpoena for corporate records on Fifth Amendment
25 grounds.” Id. at 109. This is so, “even though the act of production may prove personally
26 incriminating” for a custodian of records. Id. at 112 (emphasis added).
27 Thus, as to any discovery from EC, regardless of whether it is sought from Mr.
28 Cohen as a custodian of those records or information, there is no Fifth Amendment
-9-
1 protection. Further, Mr. Cohen may not resist discovery on the grounds that it would be
2 personally incriminating. Braswell, 487 U.S. at 109. Consequently, as to EC, there is no
3 basis to invoke the Fifth Amendment or seek to avoid discovery regarding matters
4 pertaining to EC or the enforceability of the Settlement Agreement or arbitration. Even if
5 Mr. Cohen has individual Fifth Amendment concerns, these cannot preclude discovery
6 from EC.
7
c) Less Drastic Measures are Available than a Blanket Stay.
8
The Fifth Amendment protects against “real dangers, not remote and speculative
9
possibilities.” Zicarelli, 406 U.S. at 478. Mr. Cohen must, at a minimum, “provide the
10
trial judge with sufficient information from which he can make an intelligent evaluation of
11
the claim.” Davis, 650 F.2d at 1160. Mr. Cohen, however, has failed to proffer evidence
12
extending beyond speculation and conjecture. Indeed, Mr. Cohen has not even been
13
called upon to testify and, therefore, it is not clear whether any question posed to him
14
would even require him to invoke the Fifth Amendment.
15
Based on this record, as other courts have found, any legitimate “Fifth Amendment
16
rights can be protected through less drastic means [than a stay], such as asserting the
17
privilege on a question by question basis and implementing protective orders.” O.
18
Thronas, Inc. v. Blake, No. CIV.09-00353DAE-LEK, 2010 WL 931924, at *3 (D. Haw.
19
Mar. 10, 2010); see also S.E.C. v. Braslau, No. 14-01290-ODW (AJWx), 2015 WL
20
9591482, at *3 (C.D. Cal. Dec. 29, 2015) (the defendant can “protect his Fifth
21
Amendment rights through other, less drastic measures, like those discussed in O.
22
Thronas.”); Sanrio, Inc. v. Ronnie Home Textile Inc., No. 2:14-CV-06369-RSWL, 2015
23
WL 1062035, at *3 (C.D. Cal. Mar. 10, 2015) (noting that “[a]s to other potentially
24
incriminating evidence outside of [corporate] business records, if [the defendants] are
25
indicted, ‘the Court can rule on individual assertions of fifth amendment privilege if and
26
when such assertions occur.’”).
27
Here, therefore, when Mr. Cohen is deposed individually, he may assert any Fifth
28
Amendment rights he deems appropriate at that time on a question by question basis.
-10-
1 Depending on the testimony, along with the testimony from Mr. Trump, other witnesses,
2 and the documents produced in this action, Mr. Cohen’s testimony may very well be
3 sufficient to proceed to the jury trial under section 4 of the Federal Arbitration Act (FAA).
4 A blanket stay is both premature and an overly drastic and prejudicial remedy.
5
d) The Law Defendants Rely Upon is Inapposite.
6
As to those decisions Defendants cite that do grant a stay, virtually every decision
7
involved circumstances where an indictment had been issued. For instance, the
8
unreported Chrome Hearts order Defendants relied upon in their meet and confer
9
discussions and emphasize again before this Court involved actual pending criminal
10
charges. See Chrome Hearts, LLC, v. Old School Fairfax, Inc., No. 16-CV-09080 AB,
11
Dkt. No. 70 at 3:13-16.
12
Taylor, Bean & Whitaker Mortg. Corp. v. Triduanum Fin., Inc., No. 2:09-CV-0954
13
FCD EFB, 2009 WL 2136986, at *1 (E.D. Cal. July 15, 2009), cited by Defendants, is
14
also distinguishable. In Taylor, two of the corporate officers had actually been indicted
15
for crimes that also formed the basis for the civil proceeding. Similarly, American
16
Express Bus. Fin. Corp. v. RW Prof’l Leasing Serv. Corp., 225 F. Supp. 2d 263 (E.D.N.Y.
17
2003), also involved corporate officers who actually faced criminal indictments.
18
Defendants’ reliance on Neman Fin., L.P. v. Citigroup Glob. Markets, Inc., No.
19
CV1402499BROPLAX, 2015 WL 12837640 (C.D. Cal. Apr. 17, 2015), is likewise
20
misplaced. In Neman, the plaintiff—the party seeking the stay in that case—had already
21
“been convicted on three counts of mail and wire fraud and is currently incarcerated.” Id.
22
at *1. Moreover, unlike in this case, there was no opposition to the motion to stay. See
23
id. at *4 (“Defendant does not oppose Plaintiffs motion, and therefore Defendant
24
identifies no burden that it will suffer by the Court granting a stay.”).
25
Here, there has been no indictment and Defendants fail to address, let alone
26
distinguish, the law on this point. As such, Mr. Cohen’s speculative and individual Fifth
27
Amendment concerns simply do not justify a stay of this action.
28
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1 2. Mr. Cohen Has Waived Any Fifth Amendment Protections as to

Matters Voluntarily Disclosed in this Action.
2
Defendants’ request for a stay should be also denied for a separate reason: Mr.
3
Cohen has waived any Fifth Amendment rights by voluntarily testifying twice on topics he
4
now seeks to avoid testifying about. [Dkt. No. 20-5, 31-2.]
5
The Supreme Court’s decision in Brown v. United States, 356 U.S. 148 (1958) is
6
controlling. In that case, the defendant voluntarily testified in a civil denaturalization
7
proceeding, but refused to answer questions on cross examination. The district court held
8
her in criminal contempt. The Supreme Court affirmed. See id. at 150–52. The Court
9
reached this conclusion even though the defendant’s testimony “did not amount to an
10
admission of guilt or furnish clear proof of crime, but was, on the contrary, a denial of any
11
activities that might provide a basis for prosecution.” Id. at 154 (quotation omitted). The
12
Court explained that if a defendant “takes the stand and testifies in his own defense [then]
13
his credibility may be impeached and his testimony assailed like that of any other witness,
14
and the breadth of his waiver is determined by the scope of relevant cross-examination.”
15
Id. at 154-55. This rule, according to the Supreme Court, “applies to a witness in any
16
proceeding who voluntarily takes the stand and offers testimony in his own behalf.” Id. at
17
154–55.2 The Court explicitly distinguished the operation of waiver when a witness
18
voluntarily testifies from the line of cases that govern waiver by a “witness who is
19
compelled to testify.” Id. at 155. 3
20
2 Brown was quoted with approval in Mitchell v. United States, where the Court stated
21
“[t]he illogic of allowing a witness to offer only self-selected testimony should be obvious
22 even to the witness, so there is no unfairness in allowing cross-examination when
testimony is given without invoking the privilege.” 526 U.S. 314, 322 (1999).
23 3
In In re Master Key Litig., the Ninth Circuit recognized the same distinction, although it
24 mistakenly referred to the defendant in Brown as a criminal, rather than civil, defendant.
507 F.2d 292, 294 (9th Cir. 1974) (“Whatever may be the rule with respect to such a
25
‘waiver’ by a criminal defendant who elects to take the stand in his own behalf, an
26 ordinary witness may ‘pick the point beyond which he will not go,’ and refuse to answer
27
any questions about a matter already discussed, even if the facts already revealed are
incriminating, as long as the answers sought may tend to further incriminate him.”)
28 (quoting Shendal v. United States, 312 F.2d 564, 566 (9th Cir. 1963)). However, because
Continued on the next page
-12-
1 Declarations made under oath and subject to the penalty of perjury are the
2 equivalent of live testimony in court. See Juice It Up Franchise Corp. v. Budhraja, No.
3 SACV 07-00678-CJC(MLGx), 2008 WL 11334598, at *10 (C.D. Cal. July 10, 2008) (“It
4 is the presence of the penalties of perjury, in part, that allows for out of court declarations
5 to be treated as the equivalent of in-court, sworn testimony”); Bolbol v. Feld Entm't, Inc.,
6 No. C 11-5539 PSG, 2013 WL 257133, at *6 (N.D. Cal. Jan. 23, 2013). A declaration
7 “operates like other testimonial statements to raise the possibility that the witness has
8 waived the Fifth Amendment privilege.” Fed. Trade Comm’n v. Lucaslawcenter
9 “Incorporated,” No. SACV 09-0770 DOC (ANx), 2009 WL 10669363, at *7 (C.D. Cal.
10 Sept. 30, 2009) (quoting In re Edmond, 934 F.2d 1304, 1308–09 (4th Cir. 1991)).
11 In fact, numerous courts have found a Fifth Amendment waiver in circumstances
12 similar to those here. See id. at *7 (“The right to invoke the privilege against self-
13 incrimination may be waived in some cases in which a witness makes a sworn statement
14 about a matter and then later attempts to assert the privilege.”); Int’l Floor Crafts, Inc. v.
15 Adams, No. CV 05-11654-NMG, 2008 WL 11388730, at *1 (D. Mass. May 2, 2008)
16 (defendant’s “affidavit constitute[d] a waiver of his Fifth Amendment privilege and [the
17 plaintiff was] entitled to interrogate him about his statements” and argument otherwise
18 was an attempt “to testify in [the] case without subjecting himself to cross examination.
19
20
21
Continued from the previous page
22 Mr. Cohen’s two declarations were entirely voluntary and were not in response to a
discovery request, such cases are distinguishable and should thus be disregarded because
23
the policy rationale is entirely different. As the Supreme Court in Brown explained, the
24 scope of waiver for “[a] witness who is compelled to testify” is narrower because he “has
no occasion to invoke the privilege against self-incrimination until testimony sought to be
25
elicited will in fact tend to incriminate.” 356 U.S. at 155. As a consequence, “he must be
26 able to raise a bar at the point in his testimony when his immunity becomes operative. A
27
witness thus permitted to withdraw from the cross-fire of interrogation before the
reliability of his testimony has been fully tested may on occasion have succeeded in
28 putting before the trier of fact a one-sided account of the matters in dispute.” Id.
-13-
1 No witness enjoys that right.”)4

2 In this case, Mr. Cohen has filed two declarations that contain substantive
3 testimony. First, he filed a declaration in support of EC’s Motion to Compel Arbitration
4 on April 2, 2018. [Dkt. No. 20-5.] Then on the morning of April 9, Mr. Cohen’s office,
5 home, and hotel room were raided by the FBI in New York (EST). [Blakely Decl., ¶3.]
6 Apparently unconcerned by the raid that morning, Mr. Cohen still elected to file a second
7 declaration at approximately 3:08 p.m. Pacific time, at least six hours after the raid. [Dkt.
8 No. 31-2; Avenatti Decl., Ex. 5.] He did so not because he was compelled to, but for his
9 own benefit. Mr. Cohen’s decision to testify by declaration a second time only provides
10 further support that he has waived his Fifth Amendment rights.
11 In addition, Mr. Cohen’s waiver was not inadvertent. Even before the raids, Mr.
12 Cohen was on notice that his involvement in the Settlement Agreement could result in
13 criminal prosecution. As referenced in Mr. Cohen’s own February 13, 2018 statement,
14 Common Cause had already filed a complaint with the Federal Election Commission
15 alleging he “violated campaign finance laws.” [Avenatti Decl. Ex. 1.] Further, Plaintiff
16
4
See also, e.g., Howard v. State Farm Lloyds, No. H-04-0352, 2005 WL 2600442, at *9
17
(S.D. Tex. Oct. 13, 2005) (“By voluntarily offering testimony through multiple
18 depositions and through her affidavit submitted in response to State Farm’s motion for
summary judgment on the affirmative defense of concealment and fraud, Howard waived
19
her right to invoke the Fifth Amendment in response to questions by State Farm during the
20 July 7, 2005 show cause hearing related to matters about which she previously testified.”);
United States v. Gwinn, No. 8:02-CV-1112-T-27EAJ, 2003 WL 23357667, at *6 (M.D.
21
Fla. Aug. 15, 2003) (holding that “[a] witness may waive his Fifth Amendment privilege
22 as to any matters addressed by the witness in an affidavit to the court” and that by doing
so, it is also “waived as to documentary admissions on the same subject matter.”);
23
OSRecovery, Inc. v. One Groupe Int'l, Inc., 262 F. Supp. 2d 302, 310 (S.D.N.Y. 2003);
24 Nutramax Labs., Inc. v. Twin Labs., Inc., 32 F. Supp. 2d 331, 336 (D. Md. 1999)(“[I]f
[defendant] testified to [certain] matters . . . in his prior affidavits . . . he waived his
25
privilege against self-incrimination on these matters.”); Air-India v. Goswami, No. 91
26 CIV. 7290 (JSM), 1993 WL 403999, at *9 (S.D.N.Y. Oct. 5, 1993) (“Once you have
27
waived your Fifth Amendment privilege by filing an affidavit setting forth certain facts,
you open yourself up to examination with regard to those facts and circumstances
28 disclosed in the affidavit.”).
-14-
1 alleged that the Settlement Agreement itself was illegal because it involved an in-kind
2 contribution in violation of the Federal Election Campaign Act. [Dkt. No. 14 ¶¶ 44-51.]
3 Mr. Cohen’s decision to proceed with filing the second declaration after the raid only
4 underscores that his request for a stay has very little to do with his Fifth Amendment
5 rights, but is rather a naked attempt to now avoid being subject to cross-examination at a
6 deposition. This is precisely the type of conduct the Brown Court held defendants should
7 not be permitted to engage in. See 356 U.S. at 154–55. Moreover, the Supreme Court has
8 “made clear that an individual may lose the benefit of the privilege [against self-
9 incrimination] without making a knowing and intelligent waiver.” Minnesota v. Murphy,
10 465 U.S. 420, 428 (1984) (quoting Garner v. United States, 424 U.S. 648, 654 n. 9
11 (1976)).
12
3. Mr. Trump Does Not Raise Any Fifth Amendment Concerns.
13 Returning to the legal standard the Court must apply to Defendants’ request, the
14 Court “should consider the extent to which the defendant’s fifth amendment rights are
15 implicated.” Molinaro, 889 F.2d at 902; Keating, 45 F.3d at 325. In this regard,
16 Defendants’ application ignores two very important facts: Mr. Trump is also a defendant,
17 and yet he does not presently claim his Fifth Amendment rights are personally implicated.
18 In fact, Mr. Trump did not file his own declaration or submit any evidence supporting a
19 stay. Accordingly, even if the Court were to agree that Mr. Cohen has properly
20 established that his Fifth Amendment rights are substantially implicated (which, as shown
21 above, he has failed to do), a blanket stay should be denied. See O. Thronas, 2010 WL
22 931924, at *3 (“Fifth Amendment rights can be protected through less drastic means” than
23 a stay).
24
B. The Five Keating/Molinaro Factors Do Not Require a Stay
25
The remainder of the five (5) Keating/Molinaro factors do not require a stay. In
26
fact, contrary to Defendants’ arguments, not a single factor weighs in favor of a stay.
27
28
-15-
1 1. The Prejudice to Plaintiff and Her Interest in Proceeding

Expeditiously Weigh Against a Stay
2
The first of the factors to be considered is the plaintiff’s interest in proceeding
3
expeditiously and any prejudice to Plaintiff likely caused by the issuance of a stay.
4
Keating, 45 F.3d at 325. As to this factor, courts uniformly recognize that a “civil
5
plaintiff has an interest in having her case resolved quickly.” ESG Capital, 22 F. Supp. 3d
6
at 1046. This is so because “[w]itnesses relocate, memories fade, and persons allegedly
7
aggrieved are unable to seek vindication or redress for indefinite periods of time on end.”
8
Sw. Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F. Supp. 805, 809 (N.D. Cal. 1989);
9
see also Braslau, 2015 WL 9591482, at *3 (“The Court also recognizes that a stay would
10
increase the odds that key witnesses may become unavailable, that their memories will
11
fade, and that documents in their possession may be lost.”).
12
Consequently, plaintiffs are necessarily prejudiced by the delay caused by a stay.
13
Here, these concerns are particularly acute because Plaintiff’s claims center on her ability
14
to speak and be free from any potential liability for a violation of the Settlement
15
Agreement. Defendants have already initiated arbitration proceedings against Plaintiff
16
and sought an injunction preventing her from speaking. Defendants have further indicated
17
that they intend to seek damages from Plaintiff in excess of $20 million. [Dkt. No. 1 at
18
5:8-18.] In addition to her general interest in the speedy resolution of her case, Plaintiff
19
has an interest in being free from the cloud of this potential liability. Consequently, this
20
factor necessarily weighs against granting a stay.
21
Nothing Defendants argue establishes otherwise. Instead, Defendants focus on the
22
supposedly short duration of the requested stay. [Dkt. No. 38 at 9-10.] However,
23
Defendants have offered no concrete reason to believe that a stay of 90 days will be
24
sufficient. It is far more likely that it will extend longer and that Defendants will seek to
25
extend the stay indefinitely. Accordingly, Plaintiff’s prejudice is clear and this factor
26
weighs in favor of denying Defendants’ application.
27
28
-16-
1 2. The Purported Burden on Defendant Does Not Require a Stay
2 The second factor is the consideration of any prejudice to a defendant likely to be
3 caused by the denial of the requested stay. Keating, 45 F.3d at 325. Although Mr. Cohen
4 argues he will suffer prejudice, “[c]ourts have found that even when a defendant’s Fifth
5 Amendment rights are implicated, this factor does not support granting a stay unless the
6 defendant can show other ‘compelling factors as described in Keating.’” ESG Capital, 22
7 F. Supp. 3d at 1046 (emphasis added); see also Lindsey v. City of Pasadena, No.
8 CV1608602SJORAOX, 2017 WL 5891097, at *4 (C.D. Cal. Mar. 24, 2017) (Otero, J.)
9 (same). Indeed, as cited above, “[n]ot only is it permissible to conduct a civil proceeding
10 at the same time as a related criminal proceeding, even if that necessitates invocation of
11 the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw
12 adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.”
13 Keating, 45 F.3d at 326. As such, “[t]he Ninth Circuit has found that where a defendant
14 has had adequate time to prepare for a related civil trial, the burden on the defendant is
15 substantially diminished.” Id. (citing Keating, 45 F.3d at 325).
16 Not surprisingly, courts routinely reject the argument that the Fifth Amendment
17 prevents the defendant from presenting a defense because a party “has no constitutional
18 right to a stay of this civil proceeding” and a defendant “may assert his Fifth Amendment
19 privilege on an issue-by-issue basis throughout the proceedings, giving him the
20 opportunity to defend himself even while asserting the privilege.” Braslau, 2015 WL
21 9591482, at *4; see also Estate of Morad v. City of Long Beach, No. CV 16-06785 MWF
22 (AJWx), 2017 WL 5187826, at *9 (C.D. Cal. Apr. 28, 2017) (“Simply being forced to
23 invoke the Fifth Amendment, and accordingly incurring an adverse inference, is not by
24 itself the sort of prejudice that categorically favors a stay.”); Sanrio, 2015 WL 1062035, at
25 *3 (“Defendants have not identified any legitimate burden that could result from this
26 Action proceeding, other than Defendants’ “Fifth Amendment concerns…”). 5
27 5
In fact, as this specific Court has noted, although defendants such as Mr. Cohen
28 typically complain of the prejudice from denial of a stay, because they typically contest
Continued on the next page
-17-
1 Here, Defendants make no showing sufficient to justify a stay. Rather, they rely
2 entirely on the fact that Mr. Cohen may seek to invoke his Fifth Amendment protections
3 and that this will deprive the defense of a “key witness.” [Dkt. No. 38 at 10:10-12.] In
4 doing so, Defendants do not address or distinguish the well-established rule that this alone
5 is insufficient to establish the requisite prejudice. Lindsey, 2017 WL 5891097, at *4.
6 Rather, Defendants must establish “other compelling factors” and fail to do so here. ESG
7 Capital Partners, 22 F. Supp. 3d at 1046. Further, Defendants ignore binding precedent
8 that, as a representative of EC, Mr. Cohen cannot invoke any Fifth Amendment
9 protections even if it would be personally incriminating. Braswell, 487 U.S. at 109.
10 Moreover, Defendant Trump has submitted nothing to establish that he would suffer
11 any prejudice from denial of a stay. Neither he, nor his counsel, submit a declaration of
12 offer any evidence. This, too, weighs against a stay.
13
3. The Conservation of Judicial Resources Weighs Against a Stay
14
The third factor to be considered addresses the conservation of judicial resources.
15
Keating, 45 F.3d at 325. As to this factor, the law is clear that the Court has an “interest
16
in clearing its docket.” Molinaro, 889 F.2d at 903. Consequently, “[t]his factor usually
17
weighs against granting a stay . . .” Braslau, 2015 WL 9591482, at *4; see also Sanrio,
18
2015 WL 1062035, at *4 (same). Indeed, “a policy of issuing stays solely because a
19
litigant is defending simultaneous multiple suits would threaten to become a constant
20
source of delay and an interference with judicial administration.” IBM v. Brown, 857 F.
21
Supp. 1384, 1392. Again, Mr. Cohen offers nothing to change this analysis. Instead,
22
Defendants focus on the purportedly short duration of the requested stay. As argued
23
above, it is highly unlikely Defendants will not seek to extend the stay beyond 90 days.
24
Moreover, the Chrome Heart order cited by Defendants involved circumstances where an
25
Continued from the previous page
26 the relief sought by the plaintiff, they are in fact “prejudiced by a stay, as delaying
27
resolution of [the] civil lawsuit would affect [the defendant’s] ability to extricate himself
from what he claims is a meritless lawsuit against him.” Perez, 2016 WL 10576622, at
28 *3 (Otero, J.) (emphasis added).
-18-
1 indictment had in fact been issued. Here, particularly in the absence of an indictment,
2 Defendants offer no concrete reason to conclude that the criminal investigation will in any
3 meaningful way obstruct the resolution of this action. Thus, this factor weighs against a
4 stay.
5
4. The Interests of Non-Parties Does Not Weigh in Favor of a Stay
6
The fourth factor is the interest of third parties. Keating, 45 F.3d at 325.
7
Defendants identify no third parties with an interest in a stay. This factor is thus neutral.
8
Sanrio, 2015 WL 1062035, at *4.
9
5. The Public Interest in the Speedy Resolution of this Action Weighs
10 Against a Stay
11 The final factor is the public interest. Keating, 45 F.3d at 325. The public has an
12 interest in the “speedy resolution” of this action. Keating, 45 F.3d at 325; see also
13 Molinaro, 889 F.2d at 903 (finding that the interest of the public “would be frustrated by
14 further delay.”). Indeed, as this Court has previously held, the “public has an interest in
15 the prompt disposition of civil litigation, an interest that has been enacted into positive law
16 through the Civil Justice Reform Act of 1990.” Perez, 2016 WL 10576622, at *4 (citing
17 28 U.S.C. §§ 471-82) (Otero, J.). “A stay would clearly impair that interest.” Id.
18 This action especially has received significant media attention. This is
19 understandable as it involves the President of the United States and his personal attorney
20 as defendants, and an allegation that hush money was paid just weeks before the
21 presidential election to influence American voters. For example, in Keating the Ninth
22 Circuit held that “in light of the inordinate amount of media attention given to the case,
23 any delay would have been detrimental to public confidence” in judicial enforcement and
24 resolution of pending actions. Keating, 45 F.3d at 326. The same conclusion should be
25 reached here. This action should proceed in the normal course towards resolution, as to
26 do otherwise would impair the public interest in the outcome of this action and the
27 resolution of the claims directly involving and impacting the President of the United
28 States and his lawyer.
-19-
1 Defendants cannot establish otherwise. Instead, they advance a conclusory

2 argument that the public interest is served by ensuring this action does not interfere with
3 the criminal investigation. [Dkt. No. 38 at 10:24-25.] Defendants have offered no reason
4 to believe that this action will or could interfere with the criminal investigation nor do
5 they discuss the importance or scope of the criminal investigation. Indeed, their
6 assumption and the very position they advance plainly contradicts the general rule that it
7 is “permissible to conduct a civil proceeding at the same time as a related criminal
8 proceeding, even if that necessitates invocation of the Fifth Amendment privilege” and
9 that “[a] defendant has no absolute right not to be forced to choose between testifying in a
10 civil matter and asserting his Fifth Amendment privilege.” Keating, 45 F.3d at 326.
11 V. CONCLUSION
12 For the reasons stated above, Plaintiff respectfully requests the Court DENY
13 Defendants’ ex parte application for a stay of this action in its entirety.
14
Dated: April 16, 2018 AVENATTI & ASSOCIATES, APC
15
16
By: /s/ Michael J. Avenatti
17 Michael J. Avenatti
Attorneys for Plaintiff Stephanie Clifford
18 a.k.a. Stormy Daniels a.k.a. Peggy Peterson
19
20
21
22
23
24
25
26
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Case 2:18-cv-02217-SJO-FFM Document 39-1 Filed 04/16/18 Page 1 of 25 Page ID #:769
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 STEPHANIE
16 CLIFFORD’S OPPOSITION TO
17 vs. DEFENDANTS ESSENTIAL
CONSULTANTS, LLC, DONALD J.
18 DONALD J. TRUMP a.k.a. DAVID TRUMP AND MICHAEL COHEN’S
19 DENNISON, an individual, ESSENTIAL JOINT EX PARTE APPLICATION
CONSULTANTS, LLC, a Delaware TO STAY ACTION
20 Limited Liability Company, MICHAEL
21 COHEN, an individual, and DOES 1
through 10, inclusive
22
23 Defendants.
24
25
26
27
28
DECLARATION OF MICHAEL J. AVENATTI IN SUPPORT OF PLAINTIFF STEPHANIE CLIFFORD’S

OPPOSITION TO JOINT EX PARTE APPLICATION OF DEFENDANTS’ FOR A STAY OF THIS ACTION
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 Plaintiff
5 Stephanie Clifford. I am submitting this declaration in support of Plaintiff’s Opposition
6 to the Joint Ex Parte Application of Defendants Essential Consultants, LLC, Donald J.
7 Trump, and Michael Cohen For a Stay of This Action. I have personal knowledge of the
8 information stated herein and if called to testify to the same would and could do so.
9 2. Attached hereto as Exhibit 1 is true and correct copy of a statement issued
10 by Michael Cohen on or about February 13, 2018, obtained from the internet. A portion
11 of this statement was referenced in a February 13, 2018 New York Times article titled
12 “Michael D. Cohen, Trump’s Longtime Lawyer, Says He Paid Stormy Daniels Out of His
13 Own Pocket,” which can be accessed at the following link:
14 https://www.nytimes.com/2018/02/13/us/politics/stormy-daniels-michael-cohen-
15 trump.html.
16 3. Attached hereto as Exhibit 2 is true and correct copy of a March 9, 2018
17 CNN article obtained from the internet wherein Mr. Cohen is quoted as saying: “[t]he
18 funds were taken from my home equity line and transferred internally to my LLC account
19 in the same bank.”
20 4. Attached hereto as Exhibit 3 is true and correct copy of a March 19, 2018
21 Vanity Fair article titled “’I Have Never Threatened Her in Any Way’: Michael Cohen
22 Offers His Side of the Stormy Daniels Saga,” obtained from the internet.
23 5. Attached hereto as Exhibit 4 is true and correct copy of an April 9, 2018
24 New York Times article titled “F.B.I. Raids Office of Trump’s Longtime Lawyer Michael
25 Cohen; Trump Calls It ‘Disgraceful,’” obtained from the internet.
26 6. Attached hereto as Exhibit 5 is true and correct copy of the e-mail
27 notification from the Court’s ECF system of Defendant Cohen’s April 9 filing of his
28
-1-
1 special motion to strike or in the alternative motion to dismiss Plaintiff’s First Amended
2 Complaint, including the filing of Mr. Cohen’s declaration.
3 7. Attached hereto as Exhibit 6 is true and correct copy of an April 10, 2018
4 CNN article titled “Michael Cohen to CNN: FBI was 'professional, courteous, respectful'
5 in raids, counter to Trump's depiction,” relating to a phone interview with Don Lemon,
6 obtained from the internet. The article can be accessed at the following link:
7 https://www.cnn.com/2018/04/10/politics/michael-cohen-fbi-raid/index.html.
8 I declare, under penalty of perjury and under the laws of the United States of
9 America, that the foregoing is true and correct. Executed this 16th day of April, 2018.
10
11 /s/ Michael J. Avenatti

Michael J. Avenatti
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EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
Case 2:18-cv-02217-SJO-FFM Document 39-1 Filed 04/16/18 Page 10 of 25 Page ID
#:778
#:779
#:780
#:781
#:782
#:783
EXHIBIT 4
#:784
https://nyti.ms/2HljKJB
POLITICS
F.B.I. Raids Office of Trump’s Longtime

Lawyer Michael Cohen; Trump Calls It
‘Disgraceful’
By MATT APUZZO APRIL 9, 2018
WASHINGTON — The F.B.I. raided the Rockefeller Center office and Park Avenue hotel room of
President Trump’s longtime personal lawyer, Michael D. Cohen, on Monday morning, seizing
business records, emails and documents related to several topics, including a payment to a
pornographic film actress.
Mr. Trump, in an extraordinarily angry response, lashed out hours later at what a person
briefed on the matter said was an investigation into possible bank fraud by Mr. Cohen. Mr. Trump
accused his own Justice Department of perpetrating a “witch hunt” and asserted that the F.B.I.
“broke in to” Mr. Cohen’s office.
The president, who spoke at the White House before meeting with senior military
commanders about a potential missile strike on Syria, called the F.B.I. raid a “disgraceful
situation” and an “attack on our country in a true sense.”
It is not clear how the F.B.I. entered Mr. Cohen’s office, but agents had a search warrant and
typically would have presented it to office personnel to be let in. The documents identified in the
warrant date back years, according to a person briefed on the search.
The prosecutors obtained the search warrant after receiving a referral from the special
counsel in the Russia investigation, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who
called the search “completely inappropriate and unnecessary.” The search does not appear to be
directly related to Mr. Mueller’s investigation, but most likely resulted from information that he
had uncovered and gave to prosecutors in New York.
4 SEE MY OPTIONS Subscriber login
ARTI CLES REMAI NI NG
#:785
In his tirade against the F.B.I., Mr. Trump mused about the possibility that he might soon fire Mr.
Mueller. Last June, the president vented internally about wanting to fire Mr. Mueller, but was
talked out of it.
“We’ll see what may happen,” Mr. Trump said Monday. “Many people have said you should
fire him.”
The president once again railed against Jeff Sessions, the attorney general, for recusing
himself in the Russia inquiry, and blasted the F.B.I. for failing to investigate Hillary Clinton,
“where there are crimes.” He criticized Rod J. Rosenstein, the deputy attorney general, who is
overseeing the Russia investigation, and called Mr. Mueller’s team “the most biased group of
people,” who he said were mostly Democrats and some Republicans who had worked for President
Barack Obama.
“That is really now on a whole new level of unfairness,” Mr. Trump said.
Mr. Cohen’s lawyer, Stephen Ryan, confirmed the raids. “Today, the U.S. attorney’s office for
the Southern District of New York executed a series of search warrants and seized the privileged
communications between my client, Michael Cohen, and his clients,” Mr. Ryan said. “I have been
advised by federal prosecutors that the New York action is, in part, a referral by the office of
special counsel, Robert Mueller.”
Mr. Sessions appointed the United States attorney for the Southern District, Geoffrey S.
Berman, only in January. Mr. Berman is a former law partner of Rudolph W. Giuliani, a former
New York mayor and a supporter of Mr. Trump.
The payment to the pornographic film actress, Stephanie Clifford, who is known as Stormy
Daniels, is only one of many topics being investigated, according to a person briefed on the search.
The F.B.I. also seized emails, tax documents and business records, the person said. Agents raided
space Mr. Cohen uses in the Rockefeller Center office of the law firm Squire Patton Boggs, as well
as a room Mr. Cohen is staying in at the Loews Regency Hotel on Park Avenue while his apartment
is under renovation, the person said.
[Read our February 2018 profile of Michael D. Cohen]
To obtain a search warrant, prosecutors must convince a federal judge that agents are likely
to discover evidence of criminal activity.
The searches are a significant intrusion by prosecutors into the dealings of one of Mr. Trump’s
closest confidants, and they pose a dilemma for Mr. Trump. He has dismissed Mr. Mueller’s
investigation as a “witch hunt,” but these warrants were obtained by an unrelated group of
prosecutors. The searches required prior consultation with senior members of Mr. Trump’s own
Justice Department.
#:786
Mr. Trump and Mr. Cohen, however, regarded the searches as an effort by Mr. Mueller to use
New York’s prosecutors as his proxy, according to two people close to the men.
The searches open a new front for the Justice Department in its scrutiny of Mr. Trump and
his associates: His longtime lawyer is being investigated in Manhattan; his son-in-law, Jared
Kushner, is facing scrutiny by prosecutors in Brooklyn; his former campaign chairman is under
indictment; his former national security adviser has pleaded guilty to lying; and a pair of former
campaign aides are cooperating with Mr. Mueller. Mr. Mueller, meanwhile, wants to interview
Mr. Trump about possible obstruction of justice.
It is not clear what Mr. Mueller saw that made him refer the matter to other prosecutors. But
the searches show that Mr. Mueller does not believe that he has the authority to investigate all
manner of allegations against everyone in Mr. Trump’s orbit. That is significant because lawyers
for Paul Manafort, a campaign chairman for Mr. Trump who was indicted on money laundering,
tax and foreign lobbying charges, have challenged Mr. Mueller’s mandate as overly broad.
Mr. Cohen is a longtime lawyer and fixer who, in a decade at Mr. Trump’s side, has served as
a reliable attack dog against real or perceived threats to him. His activities have been scrutinized
as part of Mr. Mueller’s investigation into Russian interference in the 2016 presidential election.
Mr. Cohen recently paid $130,000 to Ms. Clifford, who said she had a sexual encounter with
Mr. Trump. Ms. Clifford has said she was paid before the 2016 election to buy her silence. She is
challenging a nondisclosure agreement she signed barring her from discussing the matter.
The search is an aggressive move for the Justice Department, which normally relies on grand
jury subpoenas to obtain records from people who are represented by lawyers and are cooperating
with authorities. Search warrants are more often used in cases in which prosecutors do not trust
people to preserve or turn over the records themselves. Justice Department rules require
prosecutors to first consider less intrusive alternatives before seeking records from lawyers.
The searches of Mr. Cohen’s documents hark back to the pre-dawn F.B.I. raid of Mr.
Manafort’s home. Those documents helped underpin Mr. Manafort’s indictment last fall.
Mr. Ryan said Mr. Cohen has cooperated with the authorities and turned over thousands of
documents to congressional investigators looking into Russian election meddling.
The seized records include communications between Mr. Trump and Mr. Cohen, which
would most likely require a special team of agents to review because conversations between
lawyers and clients are protected from scrutiny in most instances.
Though Mr. Mueller’s team did not initiate the search, if prosecutors in Manhattan uncover
information related to Mr. Mueller’s investigation, they can share that information with his team.
#:787
A Long Island native, Mr. Cohen began his career as a personal injury lawyer and taxi fleet
manager. He joined the Trump Organization in 2006. He attracted attention in the Russia
investigation after emails showed that a business associate of Mr. Trump, Felix Sater, pitched Mr.
Cohen on a lucrative real estate deal in Russia.
The deal was supposed to be a Trump Tower in Moscow, and Mr. Sater boasted to Mr. Cohen
that the tower would get Mr. Trump elected president. “Our boy can become president of the USA
and we can engineer it,” Mr. Sater wrote. “I will get all of Putin’s team to buy in on this, I will
manage this process.” But the emails obtained by The New York Times show no response from Mr.
Cohen, who told congressional investigators that he regarded Mr. Sater’s talk as puffery.
It is not clear how significantly prosecutors view the payment to Ms. Clifford. Mr. Trump has
denied knowing about it. And Mr. Cohen has said he paid Ms. Clifford out of his own money.
Asked last week why Mr. Cohen made the payment, Mr. Trump replied: “You’ll have to ask
Michael Cohen. Michael is my attorney, and you’ll have to ask Michael Cohen.”
Maggie Haberman contributed reporting from New York, and Michael D. Shear from Washington.
A version of this article appears in print on April 10, 2018, on Page A1 of the New York edition with the headline: Scrutiny for
Trump’s Allies As Trail of Money Widens.
© 2018 The New York Times Company

#:788
EXHIBIT 5
#:789
Judy K. Regnier
From: cacd_ecfmail@cacd.uscourts.gov
Sent: Monday, April 09, 2018 3:08 PM
To: ecfnef@cacd.uscourts.gov
Subject: Activity in Case 2:18-cv-02217-SJO-FFM Stephanie Clifford v. Donald J. Trump et al
Motion to Strike
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing
The following transaction was entered by Blakely, Brent on 4/9/2018 at 3:08 PM PDT and filed on 4/9/2018
Case Name: Stephanie Clifford v. Donald J. Trump et al
Case Number: 2:18-cv-02217-SJO-FFM
Filer: Michael Cohen
Document Number: 31
Docket Text:
NOTICE OF MOTION AND MOTION to Strike Plaintiff's First Amended Complaint Amended
Complaint/Petition[14] filed by Defendant Michael Cohen. Motion set for hearing on 5/7/2018 at
10:00 AM before Judge S. James Otero. (Attachments: # (1) Declaration Brent H. Blakely, # (2)
Declaration Michael D. Cohen) (Attorney Brent H Blakely added to party Michael
Cohen(pty:dft)) (Blakely, Brent)
2:18-cv-02217-SJO-FFM Notice has been electronically mailed to:
Brent H Blakely bblakely@blakelylawgroup.com, jcovington@blakelylawgroup.com,

mlawal@blakelylawgroup.com
Charles J Harder charder@harderllp.com, mmoreno@harderllp.com, rstonerock@harderllp.com,

sfrackman@harderllp.com
Michael J Avenatti mavenatti@eaganavenatti.com, aibrahim@eaganavenatti.com,

jarden@eaganavenatti.com, jregnier@eaganavenatti.com, mavenatti@eoalaw.com, tgray@eaganavenatti.com
1
#:790
Ryan J Stonerock rstonerock@harderllp.com, mmoreno@harderllp.com
2:18-cv-02217-SJO-FFM Notice has been delivered by First Class U. S. Mail or by other means BY THE
FILER to :
The following document(s) are associated with this transaction:
Document description:Main Document

Original filename:C:\fakepath\Anti-SLAPP Motion (2).pdf
Electronic document Stamp:
[STAMP cacdStamp_ID=1020290914 [Date=4/9/2018] [FileNumber=25334828-0]
[623fe1606ac18f711162c4ce2575dd2ede2451e76449432644d1da803ce611eb3d20
27f950a35f975212782b5f4dda506bc62ba66e55d3cf89c4283a58687196]]
Document description:Declaration Brent H. Blakely
Original filename:C:\fakepath\BHB-Decl.pdf
[c368f8395e9abdcaf12e93e380d6845205f9aae6511a9967fdbd3706b76c5f5c6217
8f46865cf32b3eba2e41cf02658b2696ade07ef948187cb7dcfc8e7ce0e7]]
Document description:Declaration Michael D. Cohen
Original filename:C:\fakepath\Mr. Cohen Decl.pdf
[bab2952086a1ba9f1731e40569f5ffbff9aba30e2be10976549afb2a0b49aa975e9c
845fcca2b725805087a27b1b3170527613e0276cf0211ac761649e0ad650]]
2
#:791
EXHIBIT 6
#:792
Michael Cohen to CNN: FBI was 'professional,

courteous, respectful' in raids, counter to Trump's
depiction
By Don Lemon, Anchor
Updated 6:19 PM ET, Tue April 10, 2018
New York (CNN) — In his first comments since the FBI raid on his home and o ce, Michael Cohen said the FBI agents "were extremely
professional, courteous and respectful."
The comments contrast with President Donald Trump who complained Monday that agents "broke into the o ce of one of my
personal attorneys."
"I am unhappy to have my personal residence and o ce raided. But I will tell you that members of the FBI that conducted the search
and seizure were all extremely professional, courteous and respectful. And I thanked them at the conclusion," Cohen said in a phone
conversation on Tuesday with CNN.
Asked if he was worried, Cohen said; "I would be lying to you if I told that I am not. Do I need this in my life? No. Do I want to be
involved in this? No."
The raid was "upsetting to say the least," he added.
Related Article: Republicans say Mueller

doesn't need more protections, but warn
against firing him
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Cohen did not fault the FBI agents who conducted the raid at his#:793
house, o ce and a hotel where he is temporarily staying.
Cohen would not comment further on the raid, but acknowledged the raids and attention have had an impact on his family. He wants
the investigation to be over and continues to say everything he did in regards to paying Stormy Daniels for the non-disclosure
agreement was perfectly legal.
He said that he is very loyal to Trump but after what happened on Monday, he'd rethink how he handled the payments to Daniels
because of the impact on his family.
Preet Bharara: 'The likelihood that Michael

Cohen is going to be charged…
Carrie Underwood will do something

astounding Sunday night
Comey paints unsparing portrait of Trump

in devastating tell-all book
The weird world of hotel Do Not Disturb

signs

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Case 2:18-cv-02217-SJO-FFM Document 39 Filed 04/16/18 Page 1 of 27 Page ID #:742

1 AVENATTI & ASSOCIATES, APC

5 Attorneys for Plaintiff Stephanie Clifford

8 UNITED STATES DISTRICT COURT

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

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ JOINT EX PARTE APPLICATION TO STAY ACTION

4 II. FACTUAL BACKGROUND.................................................................................... 2

5 III. LEGAL STANDARD ............................................................................................... 4

11 a) Mr. Cohen Has Failed to Meet His Burden. ............................... 5

22 B. The Five Keating/Molinaro Factors Do Not Require a Stay ........................ 15

27 3. The Conservation of Judicial Resources Weighs

4. The Interests of Non-Parties Does Not Weigh in

28 Estate of Morad v. City of Long Beach,

Fed. Sav. & Loan Ins. Corp. v. Molinaro,

Mitchell v. United States,

18 S.E.C. v. Dresser Indus., Inc.,

20 S.E.C. v. Glob. Express Capital Real Estate Inv. Fund, I, LLC,

22 Sanrio, Inc. v. Ronnie Home Textile Inc.,

27 Sw. Marine, Inc. v. Triple A Mach. Shop, Inc.,

Taylor, Bean & Whitaker Mortg. Corp. v. Triduanum Fin., Inc.,

1 2. Mr. Cohen Has Waived Any Fifth Amendment Protections as to

1 No witness enjoys that right.”)4

1 1. The Prejudice to Plaintiff and Her Interest in Proceeding

1 2. The Purported Burden on Defendant Does Not Require a Stay

2 The second factor is the consideration of any prejudice to a defendant likely to be

15 substantially diminished.” Id. (citing Keating, 45 F.3d at 325).

19 privilege on an issue-by-issue basis throughout the proceedings, giving him the

26 Action proceeding, other than Defendants’ “Fifth Amendment concerns…”). 5

1 Defendants cannot establish otherwise. Instead, they advance a conclusory

1 AVENATTI & ASSOCIATES, APC

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

DECLARATION OF MICHAEL J. AVENATTI IN SUPPORT OF PLAINTIFF STEPHANIE CLIFFORD’S

1 DECLARATION OF MICHAEL J. AVENATTI

11 /s/ Michael J. Avenatti

F.B.I. Raids Office of Trump’s Longtime

[Read our February 2018 profile of Michael D. Cohen]

© 2018 The New York Times Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Notice of Electronic Filing

2:18-cv-02217-SJO-FFM Notice has been electronically mailed to:

Brent H Blakely bblakely@blakelylawgroup.com, jcovington@blakelylawgroup.com,

Charles J Harder charder@harderllp.com, mmoreno@harderllp.com, rstonerock@harderllp.com,

Michael J Avenatti mavenatti@eaganavenatti.com, aibrahim@eaganavenatti.com,

The following document(s) are associated with this transaction:

Document description:Main Document

Michael Cohen to CNN: FBI was 'professional,

The raid was "upsetting to say the least," he added.

Related Article: Republicans say Mueller

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Activate Fareed's Brieﬁng

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Preet Bharara: 'The likelihood that Michael

Carrie Underwood will do something

Comey paints unsparing portrait of Trump

The weird world of hotel Do Not Disturb

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