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Late Monday, Donald Trump demanded that Stormy Daniels’ defamation lawsuit against him be moved from New York to California. Given all the legal wrangling so far in L’Affaire Stormy, it’s tempting to shrug off this venue-changing bid as a boring procedural gambit that’s not nearly as important as, say, the recent revelation that Trump is on tape discussing payment to keep an alleged affair silent. That said, Trump’s filing is noteworthy for a couple of reasons. It’s far from certain Trump will be successful in his latest motion. Regardless, the president is strongly suggesting for the first time that he wants to force testimony from his arch-nemesis, Michael Avenatti.
But let’s rewind.
On behalf of Daniels, Avenatti has brought several legal actions against Trump. The earliest lawsuit was filed in March in response to an arbitration demand that his side made over an alleged breach of a so-called “hush agreement.” The porn star challenges the validity of a deal that obligates her silence about an affair. Unfortunately for Daniels, the case has been paused due to the criminal investigation into Trump’s one-time personal attorney, Michael Cohen.
The more recent defamation lawsuit concerns a comment that Trump made after Avenatti released a sketch of a man who allegedly threatened Daniels into remaining silent back in 2011. Trump tweeted, “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”
This defamation case is not paused. Cohen is not a co-defendant. And it’s taking place in New York, where a different judge ruled earlier this year that Trump isn’t immune from facing a defamation claim while in office.
Now Trump is looking to move the case, and in doing so, his attorney Charles Harder is attempting a bit of a double-step.
Harder is arguing that the claim for defamation is “closely related” to her other claims seeking to invalidate the non-disclosure agreement. Harder further argues that the defamation suit “falls squarely within the same arbitration provision in the Settlement Agreement at issue in the First California Action,” never mind that the purpose of that agreement seems to be to ensure her silence, not his. Nevertheless, Harder attempts to draw the defamation claim within the ambit of the enforceability of the hush agreement by positing the “substantial risk of duplicative litigation and inconsistent rulings” and contending that everything arises out of a dispute about whether Daniels is a liar.
Harder tells the New York judge that Avenatti is “engaged in forum shopping” to avoid having the lawsuit paused by the California judge. He’s contending that Daniels expressly agreed to have disputes adjudicated in California, Nevada or Arizona and is also looking to take advantage of the “first-filed” rule — which generally gives advantage to the forum of the first lawsuit.
But keep in mind that it’s hardly certain that a New York judge will see her hush obligations as sufficiently intertwined to his allegedly defamatory tweet.
Trump’s motion to transfer also goes into the issue of convenience. It’s here where Harder starts talking about potential testifying witnesses. Neither Trump nor Daniels are residents of California (although Trump’s attorney attempts to convince the judge that the porn star “resides in Los Angeles, at least part of the time”).
So who else?
There’s Daniels’ former attorney Keith Davidson, former manager Gina Rodriguez, and her business partner, Anthony Kotzev. All are based in California, and according to the motion, “all may have information that refutes Plaintiff’s assertions relating to the formation, execution and performance of the Settlement Agreement; the 2011 Alleged Incident; and/or the sketch of the alleged perpetrator of the 2011 Alleged Incident.”
Then, of course, there’s Avenatti, who works from Newport Beach, California.
According to the motion, “It is anticipated that Mr. Avenatti will testify regarding the preparation of the sketch of the alleged perpetrator of the Alleged 2011 Incident (he apparently oversaw preparation of the sketch), along with his numerous television appearances discussing the circumstances surrounding its creation.”
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