SAN DIEGO (CN) — Donald Trump wants to call his own selection of former Trump University students to testify in a looming trial in San Diego Federal Court, and says a motion to bar him from doing so is "unprincipled."
Trump filed a 22-page memorandum late Friday in support of being able to call former Trump University students as witnesses in Low v. Trump University, the older of two federal class-action cases against the Republican presidential nominee and his now-defunct real estate school.
The six-year-old case is scheduled to go to trial in late November following the presidential election.
Low and the other plaintiffs claim Trump scammed Trump University students out of thousands of dollars based off the claim they would learn his insider real estate secrets from instructors and mentors "handpicked" by Trump himself. But the "insider secrets" they doled out thousands for turned out to be nothing more than infomercial-quality advice, the students claim.
In his latest court filing, Trump claims a motion in limine filed by the plaintiffs seeking a blanket order from U.S. District Judge Gonzalo Curiel excluding Trump from calling any former Trump University students as witnesses, except for class representatives in the lawsuit, "unprincipled and unsupported."
Trump said he is "aware of no authority supporting such a position" and claims testimony from absent class members is routinely allowed in class trials.
The memo speaks directly to a point Trump's attorneys have alluded to in court filings and hearings in the months leading up to the trial: he wants former lead plaintiff Tarla Makaeff to take the witness stand.
Curiel allowed Makaeff to withdraw as lead plaintiff in March, leaving another class member, Sonny Low, to take over. Makaeff remains an absent class member in the Low case, as well as the other class action out of San Diego Federal Court, Cohen v. Trump. Makaeff moved to withdraw because of the "personal and professional toll" the case took on her.
Curiel is also considering a motion by Trump to decertify the class based on Makaeff's withdrawal and other changes Trump claims prejudice the defense.
Trump's attorneys argued dismissing Makaeff would undermine their discovery strategy and claimed if she were absent from testifying during the trial, it would "cripple defendant's ability to defend the case."
They now want to be able to call her to the witness stand.
"Contrary to plaintiffs' rhetoric, the court's order certifying the class and appointing Sonny Low and two others as typical representatives does not make other student testimony 'immaterial,' nor does it restrict the manner and method of proof available to defendants to defend themselves in this case. Plaintiffs misconstrue the law, and their request, if granted, would convert a search for the truth into an unfair, one-sided and indefensible process," Trump's attorney Daniel Petrocelli wrote.
Being able to call their own witnesses to testify about what they heard and saw before enrolling at Trump University and live events is vital for being able to disprove the "uniform representations" at the center of the case, the defense says.
At issue is how heavily students relied upon advertisements for Trump University which stated instructors were "handpicked" by Trump. The "university" title is also a representation the plaintiffs claim led them to believe Trump University was accredited.
Trump wants to disprove those representations were relied on "across the board" by all students who paid upwards of $35,000 to learn Trump's real estate secrets.
Trump claims his constitutional rights to dispute the plaintiffs' claims will be trampled if Curiel does not allow the jury to "consider critical testimony related to germane disputed issues."
He points to a federal rule which declares "all relevant evidence is admissible" and notes the class-certification order "does not relieve plaintiffs of their burden of proof on contested fact issues."
A lengthy list in Trump's filing noted multiple class action cases where absent class members or "opt outs" were allowed to testify as witnesses despite one party moving to exclude that testimony.
Trump does not tread lightly about the importance of former students' testimony to defending his case: proving "materiality," or the degree to which people relied on the alleged misrepresentations in Trump University's advertising and live events, will be achieved through former students' testimony.
He even gave a sneak peak of some of the witnesses he wants his attorneys to call during the trial.
One former student, Marla Rains Colic, is expected to testify about this comment she's made: "You have to be pretty thick-skulled to think TU was a university. For goodness sakes. I mean, a university is a four-year degree. I knew it was a business seminar," according to Trump.
Two other Trump University students, Mette Nielsen and Paul Canup, would reportedly testify they didn't believe the words "handpicked instructors" meant Trump was "personally meeting with and interviewing" instructors.
Trump also claims the student witnesses he plans to call will disprove the representations made were "uniform," including one student who said during their deposition they were never told Trump University was accredited and found out about the school through a pop-up advertisement online.
Students understand Trump University was using marketing to promote and sell products, Trump claims, and understood the use of the word "university" did not position Trump University among the top accredited business schools such as Wharton or UCLA.
The presidential hopeful says testimony by former students will also rebut a class-wide reliance assumption, because depositions taken of some former students has shown not all Trump University students relied on the same advertising claims in deciding to invest in a Trump University education.
But while Trump and the plaintiffs suing him can anticipate what witnesses will say during the trial, there is no way to know for certain until the time comes.
"Nobody — not defendants, not plaintiffs, not the court — can speculate what the actual evidence will be. This uncertainty alone requires the court to defer exclusion of this evidence until its relevance can be more readily determined," the filing states.
A hearing on all motions in limine is scheduled for Nov. 10.
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