Court Records
Filing # 130757887 E-Filed 07/15/2021 04:41:24 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC,
Publisher of THE PALM BEACH POST,
Plaintiff,
v.
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida,
Defendants.
CASE NO.: 50-2019-CA-014681-XXXX-MB
DIVISION: AG
2 -1
RESPONSE AND MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS. LLC IN
OPPOSITION TO STATE ATTORNEY DAVE ARONBERC'S AMENDED MOTION
FOR ATI'ORNEYS' FEES UNDER FLA. STAT. & 57.105
Plaintiff, CA Florida Holdings, LL9, "Plairfr), publisher of The Palm Beach Post,
submits this Response and Memorandu
("Aronberg") November 9, 2020
[DE 50] ("Amended Motion").
denied, with prejudice.
aw in Opposition to State Attorney Dave Aronberg's
otion for Attorneys' Fees under Fla. Stat. § 57.105
reasons set forth below, the Amended Motion should be
INTRODUCTION
Amended Motion for sanctions is legally and factually insufficient to meet the
strict s13 lts of Fla. Stat. § 57.105. First, the Amended Motion fails as a matter of law because
Aronberg did not comply with the required 21-day notice period (safe harbor provision) set forth
While the Amended Motion references Fla. R. Civ. P. 1.525 in the introductory paragraph, that
Rule sets forth a deadline by which "[a]ny party seeking a judgment taxing costs, attorneys' fees,
or both shall serve a motion[,]" but does not itself provide grounds to those fees or costs. Rather,
the Amended Motion is based upon, and seeks relief of sanctions under, Fla. Stat. § 57.105.
FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK, 07/15/2021 04:41:24 PM
EFTA02733804
in Fla. Stat. § 57.105(4) prior to filing his November 9, 2020 Amended Motion, which was
materially different than, and raised new arguments and cited record evidence not included in his
first Motion for Attorneys' Fees ("First Motion") served on June 8, 2020 and filed on July 1, 2020
[DE 35]. Unlike his First Motion, which was served via email upon Plaintiff's counsel 21 days
before filing, Aronberg's Amended Motion was never served via any method of delive before it
was filed on November 9, 2020. Thus, Aronberg precluded Plaintiff from taking e of the
statutory 21-day safe harbor provision to voluntarily dismiss its then-pendi i to Aronberg (:)
before filing his Amended Motion seeking sanctions. Moreover, Aro g his November 9,
2020 Amended Motion nineteen days after Plaintiff had alrea t him from the action by
filing a notice dropping Aronberg as a party on October E 48]. Thus, at the time the
er\i
Amended Motion was filed, it was moot.
As to the merits, the Amended Motio % Fla. Stat. § 57.105 because the claim at
issue, Count I of Plaintiff's First Ame Co aint, is exactly the type of claim specifically
excepted from sanctions under Se 7 5(3Xa), as the Plaintiff's claim was presented to the
Court as a good faith argument erpretation of existing law or, at least, the establishment
of new law, as it applied aterial facts, with a reasonable expectation of success.
Further, berg, in his official capacity as the State Attorney, was a proper party
defendant. S are inappropriate under Fla. Stat. § 57.105.
BACKGROUND
On January 17, 2020, Plaintiff filed a First Amended Complaint [DE 17] ("Complaint")
against the State Attorney, Aronberg, and the Clerk of Court, Sharon Bock (now Abruzzo),
for declaratory relief (Count I) and relief under Fla. Stat. § 905.27 (Count II), seeking to obtain
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EFTA02733805
access to records from the grand jury proceeding and criminal prosecution of the late Jeffrey
Epstein, a convicted sex offender, by former State Attorney Barry ICrischer.2
On January 24, 2020, Aronberg filed an Answer to Count I and a Motion to Dismiss Count
II [DE 22]. The Clerk of Court also filed an Answer to Count I and Motion to Dismiss Count H
[DE 24]. In his Answer to Count I of the Complaint, Aronberg admitted that Plainti The Palm
Beach Post sought but Defendants "have refused to provide access to testimo utes, and
other evidence presented in 2006" in the grand jury proceeding. Aronberg 72 [DE 22].
On June 8, 2020, the Court entered an Order Granting the Defg6Smn otions to Dismiss
Count II of Plaintiff's First Amended Complaint With Prejudi
A
did not address the merits of Count I.
S5 ., i ts On July 1, 2020, Aronberg filed his First M n g sanctions against Plaintiff under
%s „Fla. Stat. § 57.105. On June 8, 2020, prior to fi ' g • t Motion, Aronberg's attorney (Douglas S s
A. Wyler, Esq.) served via email to PI& • s co el an unfiled copy of the First Motion with an L iiie
led along with the First Motion [DE 35], which has
panying the First Motion (but not the First Motion itself)
enclosure letter. The enclosure let
no exhibits.3 The enclosure le
raalleged in conclusory fas t Aronberg did not have possession, custody, or control of the
grand jury docu sou
E . The Order specifically
t by Plaintiff. See [DE 45] at Ex. A. Importantly, however, there was
no evidence rd to confum this allegation, and the First Motion did not refute or even
2 While much of the Epstein saga is a matter of public record, the public still does not know how
former State Attorney ICrischer used the grand jury process — and the secrecy that comes with it —
to shield Epstein and his equally powerful and corrupt accomplices from the public and to justify
Epstein's lenient treatment. Access to the Epstein grand jury materials will reveal how the
instrumentality of the grand jury was used in this case, which directly implicates the integrity of
this State's criminal justice process and is unquestionably a matter of vital public concern.
3 Aronberg later attached the June 8, 2020 enclosure letter as Exhibit A to his October 14, 2020
Response to Plaintiff's Memorandum of Law in Opposition to the State Attorney's Fla. Stat.
Section 57.105 Motion ("Aronberg's October 14, 2020 Reply") [DE 45].
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EFTA02733806
address the State Attorney's ability to object to or impede attempts by the Plaintiff (or any other
third party) to seek grand jury documents, whether through the Clerk of Court or other means.
At the time of Aronberg's First Motion for sanctions, which he expressly admitted was a
"place-marker" motion to the extent he ultimately prevailed on the merits,' no motions for
summary judgment had been filed and Aronberg had not served any affidavit(s) or identified any
evidence relating to this matter or any allegations in the Complaint.
On or about August 18, 2020, Aronberg filed a Motion for Sum ry Judgment [DE 38]
and an affidavit by Aronberg [DE 39] averring that he did not have p session or control over the
Epstein grand jury materials and had no authority to demand tha Cle of Court provide access
tto the materials. This was the first record evidence re
t
lat berg's lack of possession or
qc„ control of the grand jury materials sought by The P ost. Notably, Aronberg's affidavit
1 S1' \s „still did not refute or address the State Atto a Ity to object to or otherwise impede an
attempt by Plaintiff to seek grand jury d en
On October 21, 2020, Aro 1 motion to set a hearing on his Motion for Summary
Judgment [DE 47]. On that sar datq, laintiff filed a Notice of Dropping Party as to Aronberg,
dismissing him from the 48].
On Nov
seeking sag
by
r E9, 20 0, Aronberg filed his Amended Motion for Attorneys' Fees [DE 50],
der Fla. Stat. § 57.105 against Plaintiff relating to all fees and costs incurred
r June 8, 2020. The Amended Motion, unlike his First "place-marker" Motion
filed on July I, referenced Aronberg's August 18 Motion for Summary Judgment and exhibits.
Importantly, neither Aronberg nor his attorney served a copy of the Amended Motion upon
Plaintiff or its counsel at any time prior to filing the Amended Motion on November 9.
4 See Aronberg's October 14, 2020 Reply [DE 45], at 5, 13.
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The evidentiary hearing on Aronberg's Amended Motion for sanctions is set on the Court's
ten-week docket between July 26 and October 1, 2021 [DE 56].
MEMORANDUM OF LAW
1. LEGAL STANDARD
Under Section 57.105, Florida Statutes, the Court may award reasonable attorneys' fees
only if it finds that a party or its attorney knew or should have known that a claim od ense when
10 initially presented to the Court or at any time before trial was not suppo material facts
necessary to establish the claim or defense, or would not be support . ication of then-
rdsexisting law to those material facts. To award sanctions, "the tri cou t find that there were
no justiciable issues of law or fact and that the losing p y did not act in good faith
based on the representations of his or her client." Siege , 71 So. 3d 205, 211 (Fla. 2d DCA
2011) (quotation omitted).
Indeed, "[w]here there is an argu
may not sanction that party under s
Inc., 228 So. 3d 147, 149 (Fla.
gee C (> b in law and fact for a party's claim, a trial court
05." Minto PBLH, LLC v. 1000 Friends of Florida,
2017) (citing Kowallek v. Rehm, 189 So.3d 262, 263-64
(Fla. 4th DCA 2016)) ( asis added). Courts must apply Section 57.105 "with restraint to T r
ensure that it sent
effect on use
2015).
is ed purpose of discouraging baseless claims without casting a chilling
." MacAlister v. Bevis Constr., Inc., 164 So.3d 773, 776 (Fla. 2d DCA
Taking into account the amendments that broadened the statute after 1999, "Florida courts
have continued to caution that section 57.105 must be carefully applied to ensure that it serves the
purpose for which it was intended — to deter frivolous pleadings." MC Liberty Express, Inc. v. All
Points Servs., Inc., 252 So. 3d 397, 403 (Fla. 3d DCA 2018) ("Thus, an award of fees under section
57.105 requires more than the moving party succeeding in obtaining a dismissal of the action or
5
EFTA02733808
the entry of a summary judgment in its favor, . . . and a party does not need to have conclusive
evidence to prove its case at the time of filing in order to avoid sanctions. Where a party reasonably
believes the factual basis for its claim exists, it is entitled to proceed with its claims and seek to
prove those facts. If attempts to prove those facts are fruitless, that is still not cause for sanctions
where the party's initial belief was well-founded.") (internal citations omitted). Thus, a voluntary
dismissal does not automatically equate to sanctionable conduct.
Before awarding sanctions, the trial court must make "explicit fin i t "the action
was `frivolous or so devoid of merit both on the facts and the law as
. . . This burden is a heavy one." Id. (internal citations omitt
the trial court's findings "must be based on substantial co idence presented to the court
at the hearing on attorney's fees or otherwise beforei
etely untenable.'
s added). Additionally,
nd in the trial court record." Trust
Mortg., LLC v. Ferlanti, 193 So. 3d 997, 100 DCA 2016). The trial court "must make
an inquiry into what the losing party
process, both before and after suit
4th DCA 2009).
d have known during the fact-establishment
See Chue v. Lehman, 21 So. 3d 890, 891-92 (Fla.
IL ARONBERG'S DED MOTION MUST BE DENIED FOR FAILURE TO
COMPLY T 21-DAY SAFE HARBOR PROVISION IN FLA. STAT. §
57.105(4) D B CAUSE THE AMENDED MOTION WAS MOOT WHEN IT
WAS
A. BERG FAILED To SERVE 21 DAYS PRIOR TO FILING THE AMENDED
OTION ASSERTING NEW ARGUMENTS IN VIOLATION OF FLA. STAT.
57.105(4
Aronberg did not serve his Amended Motion at any time before filing it, and thus failed to
comply with the 21-day notice provision set forth in Fla. Stat. § 57.105(4). The Amended Motion
must be denied outright for that reason alone. Because Aronberg's Amended Motion raised
arguments not raised in his First Motion, and cited evidence not in the record at the time the First
6
EFTA02733809
Motion was filed, Aronberg was required to independently comply with the 21-day safe harbor
provision of Section 57.105(4). Logo v. Kame By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA
2013) ("We hold that if a party files a subsequent or amended motion for sanctions under section
57.105 and raises an argument that was not raised in the original motion for section 57.105
sanctions, the subsequent motion must independently comply with the twenty-on day 'safe
harbor' provision of section 57.105(4)."). His failure to do so requires denial ended
Motion. See id. IS
As the Fourth District Court of Appeal noted in Lago, "Rjo h se would allow a
party to raise a new ground for sanctions in a subsequent mo ' un section 57.105 without AV
giving the other side the opportunity to withdraw the off ' m or defense within twenty-
ctions." Id. Because Aronberg's "S tg
its ,barebones First Motion did not include the su • e uments or cite any evidence now raised ? S r
in the Amended Motion, Aronberg was u. o serve the Amended Motion at least 21 days
before filing same, in order to give i Beach Post the opportunity to withdraw the count
. The Amended Motion was filed in violation of Fla. Stat.
one days after receiving notice of the new gro
that remained against Aronber
§ 57.105(4) and must be
B. D MOTION WAS MOOT UPON FILING.
On er 9, 2020, Aronberg filed the Amended Motion seeking sanctions against
Plainti to Count I of the Complaint against him. However, the entire action, which
necessarily included Count I, was dismissed as to Aronberg on October 21, 2020, nineteen days
before Aronberg filed his Amended Motion. The Amended Motion was therefore moot at the time
it was filed on November 9, 2020 and must be denied.
7
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C. ARONBERG'S SELF-DESCRIBED "PLACE -MARKER" FIRST MOTION FOR
SANCTIONS WAS INSUFFICIENT AND DID NOT ABSOLVE ARONBERG OF THE
REQUIREMENT TO SERVE THE AMENDED MOTION PRIOR TO FILING.
Aronberg specifically admitted that his First Motion for sanctions under Fla. Stat. § 57.105
was filed as a "place-marker" to "notify Plaintiff of the State Attorney's intention to seek sanctions
should he prevail on the merits at a future substantive hearing." See Aronberg's October 14, 2020
Reply [DE 45], at 5, 13 ("The 57.105 Motion was filed . . . to further put the PI on notice
that the State Attorney would seek sanctions should he prevail on the meri lawsuit.").
The First Motion for sanctions was insufficient under Fla. Stat hen filed — it set
forth no substantive arguments as to why Count I of the Amen Co aint was insupportable
in on material facts in the record or the application of in to those facts. Rather, at the
/Sike
ord supporting the statement by
e
time the First Motion was filed, there was no evid
Aronberg's counsel that it was impossible for ifts le State Attorney's Office to provide the
documents sought in the Complaint.
Essentially, what Aronberg is "place-marker" First Motion is that if he prevailed V
in defending the lawsuit, his a ey ' ees should be awarded as sanctions against Plaintiff in his
favor.5 There is no such hanism as a "place-marker" motion for sanctions. Otherwise, any
defendant could are and conclusory "place-marker" notice of his intent to seek fees
if he ultimat i ails, and then seek fees based on later-filed evidence and arguments. A motion
for sa ust be supported by the record evidence at the time it is filed. Because the First
Motion was not so supported, it fails under the statute. Further, as explained above, service of the
First Motion did not absolve Aronberg of his obligation to serve the Amended Motion on Plaintiff
5 Aronberg's "place-marker" First Motion appeared to be based erroneously on a prevailing party
standard (see Reply, at 5, 13), which is not the applicable standard for imposing sanctions expressly
set forth in Ha. Stat. § 57.105.
8
EFTA02733811
through counsel prior to filing the Amended Motion. The First Motion cannot be a "place-marker"
for the mandated service of the Amended Motion.
III. THE ISSUES RAISED IN COUNT I OF THE COMPLAINT WERE NOVEL AND
COMPLEX AND PRESENTED A GOOD FAITH ARGUMENT FOR THE
INTERPRETATION OF EXISTING LAW OR ESTABLISHMENT OF NEW LAW
Both counts of the Complaint raised novel and complex issues and were presented to the
Court as a good faith argument for the interpretation of existing law, or at th least, the
establishment of new law, based on the material facts.
C ixOWhere an issue is novel and complex, sanctions under Sec ' 5(a) may not be
imposed. Grove Key Marina, LLC v. Casamayor, 166 So. 3d 87 la. A 2015). Sanctions
are plainly inappropriate under the statute where, as here, h basis exists for a proposed
interpretation of the law applied to the material fac at. § 57.105(1). Moreover, even
in the absence of existing supportive law, if I at issue was presented as a good-faith
argument for the extension or modificati of e ing law or the establishment of new law, with
a reasonable expectation of succ in cannot sanction the party or its attorney. See Key
Biscayne Gateway Partners, L i age Council for Village of Key Biscayne, 240 So. 3d 84,
87 (Fla. 3d DCA 2018) rsing order of sanctions under 57.105 as good faith argument was
presented for exte on of isting law with reasonable expectation of success).
Ind St . § 57.105(3)(a) mandates that monetary sanctions shall ii be awarded
eec "the court determines that the claim or defense was initially
presented to the court as a good faith argument for the extension
modification or reversal of existing law or the establishment of new
law, as it applied to the material facts, with a reasonable expectation
of succPss. [Emphasis added.]
The claims in the Complaint presented a case of first impression. Indeed, in the motions and orders
in this action, neither this Court nor the State Attorney or the Clerk cited to any case that previously
resolved the issues presented relating to the media's implied private right of action under Ha. Stat.
9
EFTA02733812
§ 905.27 (as alleged in Count II) or for declaratory relief to obtain grand jury materials (as alleged
in Count I).6 The November 9, 2020 Amended Motion appears to relate only to Count I of the
Complaint (although, as set forth above, no count was pending against Aronberg as of October 21,
2020). While Count II alleged that The Palm Beach Post has constitutional and statutory standing
to overcome grand jury secrecy provisions "in furtherance ofjustice," Count I, in con t, did not
allege a Section 905.27 private right of action. Instead, Count I sought declarato under the
U.S. Constitution's First Amendment and the Florida Constitution's analo sions.
The Constitutional provisions and interpretive case law, alo t a. Stat. § 905.27,
provided ample grounds for this Court to direct the release of tJ ,ps grand jury materials to
The Palm Beach Post as a surrogate for the public, or ourt to conduct an in camera
examination of the same, to balance the public's ri ugh a free media with Florida's
qualified statutory interest in grand jury sec s s t in Count I. Plaintiff relied upon such ; in
authorities in its prior filings and argum in th atter to propose a good faith interpretation of
existing law in support of its d lief claim in Count I. See, e.g., First Amended
Complaint [DE 17], at 15-19; loll Opposition to Aronberg's Motion to Dismiss Count II of
the First Amended Comp E 26], at 10-20; Plaintiff's Memorandum of Law in Opposition
to Aronberg's F* olio [DE 43], at 5-7. At the very least, Plaintiff provided a good-faith
argument for he tension or modification of existing law or the establishment of new law, and
thus s not appropriate under Fla. Stat. § 57.105(3)(a).
6 As to Count II, Plaintiff presented various reasoned arguments why Section 905.27 creates a
private right of action in favor of the media on both constitutional and statutory grounds. See
Plaintiff's Opposition to Aronberg's Motion to Dismiss Count II of the First Amended Complaint,
at pp. 10-15.
10
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Moreover, the material facts in the record at all times supported Plaintiff's claim against
Aronberg. When Count I was filed, and throughout the litigation prior to Aronberg's dismissal,
Plaintiff had a good faith basis for understanding that the State Attorney's Office had either access
to, control over, or the ability to impinge, prevent, or thwart Plaintiff's attempts to obtain public
access to the Epstein grand jury materials. See, e.g., Ferlanti, 193 So. 3d at 1000 (reversing trial
court's award of 57.105 fees for naming husband as defendant in mortgage foreclos ceeding,
even though husband was never a signatory to mortgage or note and ' r ade no such
allegations, but there was at least some triable set of facts under whic could have been
liable). The Amended Motion for sanctions should be denied one explicit provisions of
Fla. Stat. §§ 57.105(1)(a)-(b) and (3).
IV. STATE ATTORNEY ARONBERG WAS WHER PARTY
While Aronberg alleged in the enclos his First Motion that his office did not
have physical possession of the Epstein d j materials, he nevertheless argued in that same
letter, relying on Section 905.27, t e erk should not produce them. By taking a position
ff~against disclosure, Aronberg, i serted his right to the secrecy of the Epstein grand jury
materials. Stated another I Aronberg claimed the statutory right for the State Attorney's Office t s,
to prevent access he E tein grand jury materials, a position which actually supported the
propriety of in his official capacity, as a party defendant in this action.
ttomey, Aronberg was not named in this action solely as a custodian of the grand
jury recordI. Rather, he was a defendant in his official capacity as his office has "as its primary
interest the protection of its grand jury system." In re Grand Jury Proceedings, 832 F. 2d 554, 559
(11th Cir. 1987) (italics in original). In that case, the federal government petitioned a Florida State
Attorney to turn over state grand jury transcripts. In opposition, the Broward State Attorney argued
against their release, citing to Section 905.27. Later, a federal grand jury served a subpoena upon
II
EFTA02733814
the same State Attorney seeking grand jury transcripts. The State Attorney advised the federal
court that he would produce the transcripts, thereby demonstrating that irrespective of physical
possession, he had legal authority to obtain and deliver them pursuant to the subpoena. For these
same reasons, State Attorney Aronberg, in his official capacity, was a necessary party, at the very
least as a nominal defendant.
Further, even assuming the State Attorney did not have physical possess orida law
does not prohibit his office from requesting the Epstein grand jury Eterials m the Clerk.
Indeed, as the State Attorney is well aware, Florida Statutes Chapt does)not bar any State
Attorney from accessing grand jury materials, even after a d dan as been convicted and A4c)
sentenced.
N I S ?
Based on the foregoing, Plaintiff, CA F 'Ss , dings, LLC, respectfully requests that the S i
Court deny State Attorney Dave Aron Am ded Motion for Attorneys' Fees in its entirety,
and grant such other and further re urt deems necessary or proper.
Respectfully submitted,
GREENBERG TRAURIG, P.A.
Attorneys for CA Florida Holdings, LLC,
Publisher of The Palm Beach Post
Stephen A. Mendelsohn, Esq.
401 East Las Olas Blvd., Ste. 2000
Fort Lauderdale, Florida 33301
Telephone: (954) 768—8225
Facsimile: ([Phone Redacted]
By: /s/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsohnsiggtlaw.corn
smithlQgtlaw.com
[Email Redacted]
By: /s/ Michael J Grygiel
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EFTA02733815
MICHAEL J. GRYGIEL
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
grnielmQgtlaw.com
By: /s/ Nina D. Bovajian
NINA
Los Angeles, California 900
1840 Century Park East, Ste. 14 8C
D. BOYAJIAN
(Admitted Pro Hac Vice)
Telephone: (310) 586-77.01
Facsimile: (310)
[Email Redacted]
riveraalna.etlaw
CERTIFICATE OF SES. I
lii;„I HEREBY CERTIFY that on this 15th da f i V21, a true and correct copy of the
foregoing has been filed with the Clerk of th mg the State of Florida e-filing system,
which will send a notice of electronic segue fo 1 parties of record herein.
CAS's/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
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