December 17, 2018

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California Lawsuit Against President Trump Raises Issue Of Consent

Earlier this week, Stepanie Clifford, aka Stormy Daniels, filed a lawsuit against President Donald Trump in the Superior Court for the County of Los Angeles.  Clifford v. Trump, L.A. Super. Ct. Case No. BC 696568 (filed Mar. 6, 2018).  The complaint asks the court to declare that the two agreements attached as exhibits "do not exist" because Mr. Trump never signed the agreements nor did he provide "any other valid consideration".  The agreements at issue are a confidential settlement agreement and a side letter.

The allegation about a lack of signature might seem to suggest a statute of frauds argument.  The statute of frauds is a defense to enforcement available to a party to be charged with performance.  Thus, if A signs a contract, the fact that B has not signed is not a defense available to A in a suit by B to enforce the contract against A because A is the party to be charged.

The Four Essentials

Ms. Cliffor, in contrast, is arguing that no contract was formed.  Under the California Civil Code, the existence of a contract requires:

  • Parties capable of contracting;
  • Their consent;
  • A lawful object; and,
  • A sufficient cause or consideration.

Cal. Civ. Code § 1550.  If Ms. Clifford is to prevail, therefore, she must convince the court that one of these four essentials is wanting from the agreements.  

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...