Daniels’ Defamation Action Against Trump was Doomed from the Start

I have frequently warned about the path defamation claims can take, and it was illustrated once more by the kerfuffle between Donald Trump and Stormy Daniels.

Here is the pattern.

Way outside every controlling statute of limitations, a woman states she was assaulted by a man, and the man responds by going on social media or stating to the press that the assault never occurred. The woman then sues for defamation, claiming that by denying the assault, the man is calling her a liar. As a variation, the accused man sometimes comes right out and says she is lying.

It’s a tough situation for the accused. If he fails to deny the charge, then it will be assumed that it must be true, but if he does deny it, then he buys himself a defamation action. He was safe from legal action, but his words started a whole new statute of limitations on the defamation claim. This is precisely what happen when Bill Cosby denied raping various women, which lead to very different conclusions.

Defamation claims against Bill Cosby.

In one case, Katherine Mckee sued Cosby for defamation after his attorney denied to the press that Cosby had ever raped her. There, the case was dismissed and the First Circuit upheld the dismissal. That one has a weird twist, because the dismissal was based in large part on finding that Mckee was a limited public figure, and then finding that she had failed to show malice by Cosby for his attorney’s statements. It’s disconcerting that a possible victim can become a limited public figure just because she reports the offense at a time when others are reporting similar events against the same celebrity.

The case of Janice Dickinson versus Cosby followed the exact same pattern, but that case did manage to survive dismissal, because the letters by Cosby’s attorney, Marty Singer, were so unrelated to any litigation and so beyond the pale, that the court concluded Dickinson could establish a case for defamation and denied the anti-SLAPP motion.

The Trump variation.

The Trump situation is a slight variation on the theme. There is no claim of assault, and I don’t recall if he is even denying having sex with Daniels, but as to her claim that some unidentified man tried to intimidate her into silence, 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)!” Daniels’ attorney, Michael Avenatti, grabbed onto the “con job” language and used that as a basis to file a defamation action.

Here is the actual allegation from Daniels’ defamation action, to show how the attempt is made to turn the denial into defamation (Stormy Daniels’ real name is Stephanie Clifford):

17. Mr. Trump’s statement falsely attacks the veracity of Ms. Clifford’s account of the threatening incident that took place in 2011. It also operates to accuse Ms. Clifford of committing a crime under New York law, as well as the law of numerous other states, in that it effectively states that Ms. Clifford falsely accused an individual of committing a crime against her when no such crime occurred. Mr. Trump’s statement is false and defamatory. In making the statement, Mr. Trump used his national and international audience of millions of people to make a false factual statement to denigrate and attack Ms. Clifford. Mr. Trump knew that his false, disparaging statement would be read by people around the world, as well as widely reported, and that Ms. Clifford would be subjected to threats of violence, economic harm, and reputational damage as a result.

Stormy Daniels leaves court

But that defamation action by Daniels against Trump met its quick and predictable fate; it was dismissed by way of an anti-SLAPP motion. The scenario is different from the Cosby cases, because Trump’s response was so tepid (not a word that is often associated with Trump) and nonspecific.

You see, as Avenatti would have known if he’d had the simple sense to read this blog, language like “con job” is considered hyperbolic, and is too imprecise to create a verifiably false statement of fact. Without a verifiably false statement of fact, there can be no defamation. At best, the statement would be one of opinion, and therefore non-actionable. Judge S. James Otero concluded that Daniels had failed to establish a prima facie case for defamation.

The Court agrees with Mr. Trump’s argument because the tweet in question constitutes ‘rhetorical hyperbole’ normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.

The judge then offered a definition of “rhetorical hyperbole,” defining it as “extravagant exaggeration employed for rhetorical effect” and stated that Trump’s tweet displayed “an incredulous tone, suggesting that the content of his tweet was not meant to be understood as a literal statement about Plaintiff. Instead, Mr. Trump sought to use language to challenge Plaintiff’s account of her affair and the threat that she purportedly received in 2011. As the United States Supreme Court has held, a published statement that is ‘pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage’ cannot constitute a defamatory statement.”

Rookie move.

Avenatti’s decision to bring the defamation action was a rookie move. He hates Trump, and no doubt thought that bringing the defamation action would be one more way to get in his face. In reality, it gives Trump a win against Daniels (although her declaratory relief action still remains), and now makes Daniels responsible for (no doubt) significant attorney fees.

It also exposes Avenatti to a malpractice claim by Daniels, should she decide she is not happy with this result. In my opinion, the fact that this defamation claim would not survive an anti-SLAPP motion was so apparent that it was below the standard of care to pursue it. As a result, Daniels is now on the hook for probably no less than $50,000 in attorney fees to Trump. [Update: $293,000!] Daniels works in the adult film industry, and according to an article by CNBC, likely makes around $1,000 per sex scene. I have to believe that Daniels won’t keep Avenatti around much longer. [Update: March 12, 2019 — Avenatti no longer represents Daniels.]

Stormy Daniels with Michael Avenatti

Avenatti did not take the loss well. Like a kid in the school yard who loses at tether-ball and cries, “yeah, well no one likes you,” Avenatti responded with an equally mature tweet, stating, “@realDonaldTrump – tens of millions of Americans are tired of your fraud, lies, and corruption. They are equally tired of your attacks on women, especially the ones who you have had sex with while cheating on your wives. We (and the UN) are laughing AT YOU, not with you.”

For their parts, Trump referred to Daniels as “Horseface” and Daniels implied that he has a “tiny” penis. It’s all very classy.

As to Avenatti’s tweet, in reality, at least for today, he is the one receiving the laughter. But remember, this is not the end of the legal claims by Daniels against Trump. This originated from the non-disclosure agreement she signed and is now seeking to invalidate, and ¶ 8.2 of that agreement contains an attorney fees provision. If she ultimately prevails on that action, Avenatti could have the last laugh, at least as regards attorney fees. [Au contraire mon frere! See March 7, 2019 update below and article here.]

[UPDATE: Oct. 22, 2018] Not a great week for Michael Avenatti. A week after his very public and foolish loss in Daniels v. Trump, a judge ordered him to pay $4.85 million to a former lawyer from his office — a lawyer he had claimed actually owed him money. Avenatti’s firm had already been ordered to pay $10 million to the attorney, but with today’s ruling, Avenatti was made personally liable for $4.85 million. It represented a loss within a loss, because Avenatti had sought removal of the action to Federal Court, but the court denied the motion, concluding that the motion had no merit and was designed only to delay the ruling.

Within hours of that ruling, another judge found in favor of Avenatti’s landlord, ordering the eviction of Avenatti and his staff from Avenatti’s law offices in Fashion Island in Newport Beach, California. According to the complaint, Avenatti’s firm has not paid rent for four months.

A copy of the complaint by Jason Frank against Avenatti can be found here.

[UPDATE: March 7, 2019] Trump’s attorney, Charles J. Harder, was kind enough to send me an email with the latest news about the case. Remember, the case by Daniels (Clifford) contained the defamation claim, which was stricken, and the declaratory relief action, whereby Daniels was seeking a determination that the ‘hush” contract was unenforceable. Today, the court threw out that claim as well.

On the one hand, this is kind of a “push” for Trump, but on the other it is a major win. It is a push because it leads to the result Daniels was supposedly seeking. She wanted out of the hush agreement, and Trump basically argued that since he was not seeking to enforce the agreement, and since Daniels had been ignoring the agreement in any event, the entire case was moot. The court agreed, and that was the basis for the dismissal. But on the other hand, Trump still prevailed on the case, thereby depriving Avenatti of any attorney fees. I had said that Avenatti might get the last laugh if he could prevail on the claim and then seek attorney fees, but there is no joy in Mudville — Avenatti has struck out. I wrote about this latest turn here.

[UPDATE: March 25, 2019] Michael Avenatti was arrested for extortion, and faces up to 97 years in prison. He allegedly threatened to hold a news conference if shoe company Nike didn’t pay his client, an AAU basketball coach in California who alleged the company was paying families of high school prospects, and hire Avenatti to conduct an internal investigation of the company.

One Response to “Daniels’ Defamation Action Against Trump was Doomed from the Start”

  • Darren Chaker:

    Great post about recent SLAPP law updates and the popular cases making news. Keep up the good work, your site is always enjoyable.

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Aaron Morris, Attorney
Aaron Morris
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