Is contract provision at issue in Stormy Daniels lawsuit contrary to law?

I write to follow up on Michael Leb's March 20 column on the restraining order in the legal conflict between Stephanie Clifford (aka Stormy Daniels) and President Donald J. Trump, "Did the arbitrator exceed her power in Stormy Daniels case?"

The arbitrator in her order acknowledges that it was issued ex parte without notice to the opposing party, citing the October 2016 settlement agreement as providing the authority to do so. It does. But is this contract provision contrary to law?

On the issue of an ex parte order, Section 527(c) of California's Code of Civil Procedure permits such an order only under limited circumstances:

(c) No temporary restraining order shall be granted without notice to the opposing party, unless both of the following requirements are satisfied:

(1) It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice.

(2) The applicant or the applicant's attorney certifies one of the following to the court under oath:

(A) That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made.

(B) That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them.

(C) That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.

Are private parties permitted to negotiate around the advance notice mandate of CCP Section 527(c)? And if they do, can a private party then proceed to court for enforcement, a necessary step to implement the arbitrator's action? On the latter question, probably not. CCP Section 1281.8 of California's arbitration act allows provisional relief in arbitration proceedings, but, at a minimum, it requires the application of Section 527(c) for enforcement. Here is the relevant text of Section 1281.8:

(a) As used in this section, "provisional remedy" includes the following:

....

(3) Preliminary injunctions and temporary restraining orders issued pursuant to Section 527.

.....

(b) A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief. The application shall be accompanied by a complaint or by copies of the demand for arbitration and any response thereto. If accompanied by a complaint, the application shall also be accompanied by a statement stating whether the party is or is not reserving the party's right to arbitration.

(c) A claim by the party opposing issuance of a provisional remedy, that the controversy is not subject to arbitration, shall not be grounds for denial of any provisional remedy.

(d) An application for a provisional remedy under subdivision (b) shall not operate to waive any right of arbitration which the applicant may have pursuant to a written agreement to arbitrate, if, at the same time as the application for a provisional remedy is presented, the applicant also presents to the court an application that all other proceedings in the action be stayed pending the arbitration of any issue, question, or dispute which is claimed to be arbitrable under the agreement and which is relevant to the action pursuant to which the provisional remedy is sought.

The interplay between these statutes may explain why the party securing the restraining order did not seek immediate relief in state court. Such relief could have blocked any litigation, including the lawsuit filed by Clifford a week after the order was signed. The restraining order expressly barred disclosures by Clifford in the media and in court filings.

Perhaps one reason relief was not sought in court is that the party securing the restraining order -- Essential Consultants, LLC, the corporate agent that made the $130,000 payment to Clifford -- is not clearly designated under the settlement agreement as a party capable of initiating an arbitration. Seeking court enforcement also would have risked release of the underlying documents supporting the restraining order, including reference in the materials to Michael Cohen, Trump's long-time attorney, and a side letter to the settlement that reportedly identifies Trump.

Beyond those considerations, it also is possible that applying for court enforcement of an ex parte order would have had to contend with the breadth of the order extending to free speech rights, but issued without regard to CCP Sections 527(c) and 1281.8. It is likely that such relief would be contrary to well-established California constitutional principles. At least since 1975, California law requires a good faith effort to contact an opposing party in such instances before securing the restraint that is sought. See United Farm Workers v. Superior Court, 14 Cal. 3d 902 (1975). The decision in California involved labor union picketing. It followed closely a decision of the U.S. Supreme Court concerning a temporary restraining order against a political rally promoting racial supremacy. See Carroll v. Princess Anne, 393 U.S. 175 (1968).

Now that Clifford's lawsuit has been removed to federal court, the judge in that proceeding will face several issues, among them the validity of the settlement agreement, in general, and more narrowly, the legality of the restraining order. The lawsuit contends that the no-notice order was part of a "bogus" and "defective" arbitration proceeding.