As you doubtless recall, Donald Trump offered $5 million to charity during the 2012 election campaign if President Obama published his college and passport records. Then in January of this eyar, Maher — appearing on The Tonight Show with Jay Leno — said,
[S]uppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan.
Because — well, I didn’t just make this up — the color of his hair and the color of an orange orangutan is the only two things in nature of the same color. I’m not saying it’s true, I hope it’s not true, but unless he comes up with proof, I’m willing to — I’m willing to offer five million dollars to Donald Trump if he will come — that he can donate to charity of his choice, Hair Club for Men, the Institute for Incorrigible Douchebaggery. Whatever charity –
[UPDATE: I've revised the quote so that it more accurately and fully transcribes what Maher said.] Now Trump has sued Maher, claiming that Maher’s statement was a binding offer, Trump accepted the offer, Trump provided a birth certificate showing that his father was not an orangutan, and Maher now has to pay up $5 million.
I am not a contract law expert, yet here is my quick legal analysis:
1. When a comedian, on a comedy show, offers $5 million for proof that someone isn’t the offspring of an orangutan, that is what the law calls a “joke” (or perhaps “a frolic and a banter“), and when something is obviously a joke, it has no legal effect as an offer. “When expressions are intended as a joke and are understood or would be understood by a reasonable person as being so intended, they cannot be construed as an offer and accepted to form a contract.”
2. While the law is tolerant of jokes on The Tonight Show, it isn’t so big on legal pleadings that are themselves jokes. So while I’m inclined to think that Trump is just having fun with his complaint, and doesn’t expect it to actually win, I would think that the complaint is such a clear loser that it would likely be sanctionable under Cal. Code Civ. Proc. § 128.7. The standard is that “[t]he claims, defenses, and other legal contentions” in a pleading must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”; see, e.g., Burkle v. Burkle (Cal. Ct. App. 2006), for an illustration of a California court’s conclusion that a litigant’s legal position was indeed frivolous. Now perhaps Trump is prepared to make a nonfrivolous argument why the law should be changed in this instance (“nonfrivolous argument for the … reversal of existing law” is a mushy standard, to be sure). But, unless I’m mistaken, it seems to me that the complaint does not meet the requirements of Cal. Code Civ. Proc. § 128.7 — or I’ll be a monkey’s uncle.