EFTA02733823

Extracted Text #

Filing # 131329589 E-Filcd 07/23/2021 05:06:18 PM 
COPY 
In the Matter Of: 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
50-2019-CA-014681 
C HEARIV 
Jun 0 
ES LIRE DEPOSITION SOLUTIONS 
800.211.DEPO (3376) 
EsquireSolutions.com 
FILED: PALM BEACH COUNTY, FL, ABRUZZO, CLERK, 07/23/2021 05:06:18 PM 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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IN THE CIRCUIT COURT 
IN AND FOR PALM BEACH COUNTY, FLORIDA 
CASE NO. : 50 -2019 -CA -014681 
CIRCUIT CIVIL DIVISION: "AG" 
CA FLORIDA HOLDINGS LLC PUBLISHER 
OF THE PALM BEACH POST, 
Plaintiff/Petitioner 
-vs-
CO 4S1A
DAVE ARONBERG, 
SHARON R. BOCK, 
Al
4
4 ; ) 
HEARING #4E<F1H: IYHONORABLE KRISTA MARX 
(ZOOM CONFERENCE) 
Wednesday, June 3, 2020 
10:08 a.m. - 10:28 a.m. 
REMOTE ZOOM CONFERENCE 
Port Saint Lucie, Florida 
Stenographically Reported By: 
SONJA M. 
Court Reporter 
ESQUIRE .w.".,m. 800.211.DEPO (3376) 
EsquireSolulions.com 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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APPEARANCES: 
On behalf of the Plaintiff/Petitioner: 
GREENBERG TRAURIG, P.A. 
1840 Century Park East 
Suite 1900 
Los Angeles, California 90067 
[Phone Redacted] 
boyajiantigtlaw.com 
BY: NINA D. BOYAJIAN, ESQUIRE 
On behalf of the Defendant/Respondent: 
JACOB, SCHOLZ & WYLER, LLC 
961687 Gateway Boulevard 
Suite 2011 
Fernandina Beach, Florida 32 4 
[Phone Redacted] 
[Email Redacted] 
BY: DOUGLAS A. WYLER, E 
On behalf of the Defenda spondent: 
CLERK & COMPTROLL M BEACH COUNTY 
P.O. Box 229 
West Palm Beac a Flotida 33401 
[Phone Redacted] 
nfingerhut@ eachclerk.com 
BY: NICOLE/it. NGERHUT, ESQUIRE 
ESQUIRE ...""... 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June O3, 2020 
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PROCEEDINGS 
* * * * * 
THE COURT: We are here today for a very 
limited purpose. I'm sure the attorneys are aware of 
that, but I just don't want there to be any 
confusion. We are here on Defendant Dave Artsuatrg 
and Defendant Sharon Bock for the Comptroi and the 
State Attorney's motion to dismiss Coun 
( You're all acutely aware as theq_awYers that 
this is a question of law. So we're'l not going to be 
diving into facts and the Court/will not be deciding N \A
the merits of this motion -this morning. We are 
simply here for the sole purpose of that motion to 
-( - dismiss. So I just wanted to make sure that we all (---
stay on track and we'lre all on that same page. 
- So, Ms. Bqegian, I'll send it to you first, 
. I - course, we all know that the Law 101, 
I must ok t the four corners of the motion, which 
alle t at the State Attorney, David Aronberg, and 
rk and comptroller, Sharon Bock, actually have 
custody and control of these grand jury proceeding. 
Whether that is true or not is not for this 
court to determine because I'm looking simply at the 
four corners of the complaint. But, not for nothing, 
I think we all know that they don't have control and 
g ESQUIRE 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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custody of the records. But I'm going to assume that 
it's correct because that's what has been alleged. 
So what I first want to hear from is the 
attorney for Florida Holdings with regard to, 
assuming arguendo, that Florida Statute 905.27 does 
create a cause of action, what relief is it 
you're seeking from -- in Count II, specif ly. 
Not the dec action. We're not here on ft  today --
what is it you hope to get, a judgmen 
MS. BOYAGIAN: Thank you, y onor. Good 
morning, and thank you for th lege of appearing 
before this court. 
The relief we are eeR1rg is disclosure of the 
grand jury records, 4 su t to the Furtherance of 
Justice Exception 5.27. And under the First 
Amendment. 
The press, as your Honor is aware, has a right 
of acce, under the First Amendment as a surrogate of 
the 
COURT: Let me just stop you for a minute. 
like you to answer my specific question. 
So I am not particularly convinced -- and I'd 
like for you to address that. So we're not going to 
dive into facts or the press's standing because 
that's not something we're here to discuss today. 
ESQUIRE ""mo""..m 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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And I have read the voluminous paperwork --
I've received paperwork as -- and -- five-minute ago 
from some of the other parties. But I deeply 
appreciate the fact that you sent this to me so much 
in advance 
with, as I said, the voluminous paperwork tb was 
provided. 
But as you know, , we are h r such an 
extremely limited issue today, and t t their motion 
to dismiss where they state "yo uing the wrong 
people"; that the court has ecords. 
And so, more importa want you to address 
whether Section 905.27~giv you a private cause of 
and I have been able to spend some time 
action against the to attorney and the clerk. 
Again, I'm o assume the facts are true 
that are asser d n the motion. Whether they are or 
not -- becau,eti think we can all agree we're not for 
sure if/they'rever -- that the state attorney doesn't 
have th se records. So what is it you're seeking in 
I -- not the dec action. I know you want the 
records. I've got that. But in Count II, 
specifically, what do you -- what's the relief you're 
seeking and, more importantly, how under this statute 
do you get to assert a private action -- a private 
cause of action against the state attorney and the 
Pg ESQUIRE ."m.".0." 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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clerk? 
MS. BOYAGIAN: Your Honor, we are aware, of 
course, that there is no expressed private right of 
action, 905.27. But that does not end the inquiry. 
As the Florida Supreme Court stated: 
"Where a statute like 905.27 
Ellq:,forbids an act which is to Plaintiff'  A
injury, the party injured should a 
an action." 
And that's the Piezo 
of materials that we sent you 
There's no question h t the denial of the 
FIRST AMENDMENT right t ress is an injury which 
gives rise to a righ f tion. 
Stated anoth , looking at the analysis 
that the Fische Mtcalf Court looked at, there are 
three facto 'n determining whether there is a 
47 4Vprivate gh of action where a statute does not 
expr 
I; r
rovide for one. 
is whether the Plaintiff is part of the 
clabs for which the statute is intended to protect; 
second is a legislative history; and the third is the 
underlying purposes of the statutory scheme. 
The first factor I already addressed, that the 
press is part of the class that the statute is 
in the volume 
ESQUIRE m"rn.".w." 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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intended to benefit, being the surrogate of the 
public and exercising its first amendment right 
The second issue of legislative history and the 
purpose -- statutory purpose are somewhat related. 
We were unable to find much legislative history on 
this issue of a private right of action undeCh
statute. 
There is nothing that says we in 'o create 
a private action, but there's certai othing that 
says we do not want to create a >=te right of 
action. 
What we do have is t 
that 905.27 was reenac 
the secrecy of Stat ra d Jury -- statewide grand 
juries was also d. That provision, which is 
905.395, has n sex eptions for -- for revealing these 
records. B trast, the legislature intentionally 
enacte 05 7 with the Furtherance of Justice 
Exce 
S(1994, the same time 
statute that pertains to 
the public through the press can't bring a 
private right of action to enforce that exception or 
relief under that exception, that to seek 
intentionally placed exception of furthering justice 
is essentially rendered hollow --
(Speaking simultaneously. ) 
ESQUIRE 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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THE COURT: Okay. Pause for a minute. 
I don't think anybody is saying that there 
isn't a cause of action or that the press doesn't 
have standing. That's not what I'm asking you. I'm 
asking you, how are the clerk and the state attorney 
the proper defendants? 
So, you know, nowhere have I said th n't a 
cause of action. Clearly there is. zzled by 
the procedural posturing of this casing the 
state attorney. 
4S, And, you know, I'm furt ied by the fact 
that you allege in your co a nt that they have --
particularly David Aro he State Attorney --
that he has these r rds. 
But I'm goi ssume that's true. So I'm 
not telling yo Q don't have a cause of action. 
I'm just sag, okay, let's run this all the way 
out. Let's say you win and you get a judgment 
against the State Attorney Dave Aronberg. 
'‘ What's he supposed to do with it? He can't 
release the grand jury testimony. He has no 
authority whatsoever to do that. 
MS. BOYAGIAN: Well, your Honor, as you stated, 
this is a motion to dismiss stage, and we are 
entitled to discovery on the issue of possession, 
ESQUIRE ""m.".." 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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custody, and control. My understanding is that the 
state attorney has asserted that he does not have 
possession. It's not my understanding that the clerk 
has taken that position. So the clerk may indeed be 
the -- someone who does have possession, custody, and 
control. AlA r
In any event, we would submit that t state 
attorney, even it does not have actua ession at 
4:iip this time, it might be able to have e ower to 
control or direct the entity or 44..ns who do have 
control and possession to rele hose -- to effect 
the judgment. Aca r 
THE COURT: So le me sk you this: So the 
clerk is the keeper o f the record. But even if you 
got a judgment her -- let's say you asserted 
this cause of il IC= and let's say you win and you 
get a judgm4n against the clerk. The clerk cannot 
\talcrrelease ran jury testimony to you. Only the court 
can`. ) 
really -- all I'm saying to you is I do not 
understand the way this case was filed or why these 
are the defendants because it's impossible for them 
to perform. 
I mean, I'm going to assume, based on your 
motion, again, that they do have the records. But we 
ESQUIRE nm."„Lo." 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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all know -- everyone in the room knows they do not --
that only the court -- they're -- they're with a 
court interpreting. And only the court can release 
the records. 
So if you get a judgment against either the 
state attorney or the clerk, they cannot -- Tpan, I 
49 Ir 
guess what you're saying to me is, well, w a to 
do discovery and we want them to say 
have these records" or "I don't have 
And -- I mean, the law is a ntly clear. 
You cannot do it without a co ermining whether, 
in the furtherance of just 
appropriate. 
he release is 
cally "I 
N, 
MS. B0YAGIAN: And that is a determination 
we're asking yourB ioncir to make, and we're asking for zi 
an order from ybur court 
THE COURT: When we get to the merits of the 
case, sure it is. But, again, you're asking me to 
make 
it
and for me to make a 
d t ation of whether the grand jury records 
sho ld be released. And the only thing we're here 
today about is why should the clerk and the state 
attorney have to defend a civil action when it's a 
possibility of performance? They -- even if you were 
to win and get a judgment against them, they cannot 
ESQUIRE .".."wm. 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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give you what they don't have. 
So -- I mean, it's as simply as this: Are 
you -- you just want to engage in some discovery for 
them to absolutely assert, particularly, the state 
attorney, "I don't have these records"; look to the 
rules that say the moment the grand jury's 
they're sealed and they're turned over an 
cannot be released without court orde 
So I'm not addressing the merit o whether you 
have an exception or you're abl - rgue that 
there's an exception in the u h rance of justice. 
We're not getting there t I m simply saying why 
should these two entiA t ve to defend this lawsuit 
when even down the d ' they win they can't give 
you what they do 
MS. BOYAG 
e? 
As your Honor stated, I'm not 
sure that's`; he case with the clerk. That was not in 
their - that issue was not stated in their papers. 
0URT: Let me ask you this, then: Do you 
if you got a judgment and I or the court 
doesn't make the determination that the grand jury 
records should be released, that the clerk would be 
able to perform? 
Would they be able to say "here you go"? I 
mean, could the clerk just make that unilateral 
t ESQUIRE ""rn."..0" 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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decision "I'm going to release the records, sealed 
confidential records"? 
Does she have any authority to do that? 
MS. BOYAGIAN: My understanding, your Honor, is 
that 905.27 requires a 
are unsealed. 
THE COURT: 
All right. Let me hear from Mr. ArSg's 
attorney, Mr. Wyler. 
MR. WYLER: Thank you, your May it 
please the Court 
THE COURT: Good morn 
MR. WYLER: Good 
Your Honor, I w kited to let you know that 
I spoke with co •r the clerk, Ms. Fingerhut, a 
couple of days of e this hearing, and we decided 
that I woul ' k st make the presentation for both of 
dill:of us, ,ing hat our arguments overlap except for 
the 
Exactly. Exactly. 
court order before the records 
46"
who this claim -- whether they have the 
or not, which, of course, we've said we don't 
haves custody of the records. 
But, nonetheless, our arguments overlap. The 
Plaintiff is attempting to assert a cause of action 
under Section 905.27. That statute settled testimony 
not to be disclosed exceptions. So it's just 
ESQUIRE sot.. 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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explaining exceptions to the disclosure of the grand 
jury testimony. 
Our position is that it doesn't set forth a 
cause of action and that it's impossible for us to 
perform what they're asking. 
I know you said you didn't really want get 
into the Furthering Justice Exception, but know 
that's what they're using as their haw • get to 
these. But it's our position that t ear 
unambiguous statutory language, ows that this 
disclosure only applies to a 1 or criminal case, 
and that within that civillc iminal 
(Speaking simulta 
THE COURT: Ag -- I'm sorry. As I told 
Plaintiff's cou 
MR. WYLER(S can only be used in the defense 
for 
T COURT: Okay. We're not there. We're not 
disc ingrthe merits of the case, and -- I'm not 
o cross that bridge. I'm here for a very, 
very limited hearing today. 
So just as I stopped Plaintiff's counsel from 
arguing the merits of the case and whether or not the 
Furtherance of Justice Exception will apply in this 
instance, we're not even there yet. 
ESQUIRE ""rn."."." 800.211.DEPO (3376) 
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CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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I'm only here for the purpose of determining 
whether or not the clerk and state attorney should be 
dismissed. And I am bound by the four corners of the 
document, which assert that you do have control and 
custody over it. 
So if you'll fashion your argument with ard 
to that limited purpose, 
MR. WYLER: No problem, your Hono . 
apologize. 
Within the four corners of complaint, our 
position is that they failed e a cause of 
action under 905.27. It d t provide for -- it 
doesn't list that thered lement that they have 
cause of action under 
that. There's -- 1 only thing they're asking he 
adequately pled to rt 
4 1 7.- 
eI would appreciat . 
a 
for is records ha we don't have. 
There' eally not much more to it, your Honor. 
And we ldlask that you would grant our motion to 
failure to state a cause of action. 
NHE COURT: Okay. Ms. Fingerhut, are you still 
on e phone? 
MS. FINGERHUT: Yes, your Honor. 
THE COURT: Is there anything you wish to add? 
MS. FINGERHUT: We agree with the state 
ESQUIRE ."rn."..." 800.211.DEPO (3376) 
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CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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attorney's position, and we also agree with what the 
Court has said, that the plain language of the 
statute, a cause of action doesn't exist. And we 
really cannot we'll be defending something without 
the four corners. We're simply involved in this 
action because the clerk is the custodian of_ the 
records. 
THE COURT: Okay. Thank you, 
Boyagian, back to you. 
MS. BOYAGIAN: Your Honor ike to note 
that in the Butterworth case i w ich the Supreme 
Court limited the applic 5.27 by saying that a 
witness can reveal her wn estimony and prohibiting 
that they violate Fi st Amendment --
THE COURT: at again, please. 
MS. BOYAG In the Supreme Court case, the 
Butterworth e, in which the Supreme Court ruled 
that 9 .27 can't restrict a Grand Jury witness from 
reveal g er own testimony, that would be a 
on of First Amendment, in that case, the state 
attorney was, in fact, a party. 
THE COURT: Well, I assume the state attorney 
that was present -- I mean, I don't find that that's 
close to what we're talking about here, and that's 
whether or not -- I mean, as we know, this was in 
ESQUIRE ""mm".w.. 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
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2006. Certainly Dave Aronberg wasn't even the state 
attorney then. But this is about the release of 
records. 
I want to give you ample opportunity -- and 
again, I sincerely appreciate that all of the case 
law and the way that it was presented to theSz 1ct in 
such a timely fashion. I really do. And lq,d spend 
some time with it. But I want to give hatever 
opportunity you want to take to convi me that it 
is in -- as to Count 2, again. N t he dec action --
whether these would be the ap a. to defendants. 
And, you know, really nt you to boil it 1 
eC
SS. down for me as to this -4t- tt s take it all the way 
/N\down the road. You win. You get a judgment against 
the clerk and the4p-ae attorney. 
c__ '\/' I know the1ce's 'other reasons why you might have 
filed it t4s,way. But I'm just simply puzzled y ---7 
because/ f do tear what the clerk and the state 
atto 
( \ 
e saying, and that is, performance is 
1 They don't have the records and 
cannot -- absolutely. There's not even an inch of 
wiggle room -- that they could release the records 
even if you got a judgment. It is solely a 
determination for the court. 
I, frankly, think, you know, there's ways to 
ESQUIRE ."m."mm" 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
17 
get to your records. There's ways to get 
confidential records. But it isn't by suing the 
state attorney and the clerk. 
So I just want to hear your last final argument 
on how Count II, the appropriate defendants are the 
clerk and the state attorney. Even assumingz_aiguendo 
they have the records -- we know they don -- you 
were to get a judgment against them, ho%would you 
expect them to perform? 
MS. BOYAGIAN: Two points Honor: One is 
that, again, the clerk did n ert in her papers 
that she does not have co That is a position 
that the State Attorne ice has asserted. It is 
our allegation, and o r Honor noted, allegations 
must be accepted as true at this stage of 
the proceeding 
Second is also our understanding that the 
state attorney and the clerk intend to block access 
to these records. So our allegation is that they do 
OSsession, custody, or control, which the clerk 
has not denied; and second, that they are trying to 
block access to the records --
THE COURT: What do you mean? What do you 
mean? They're not trying to block it. They're 
saying that despite the fact -- let's just talk about 
ESQUIRE MPOMMNSOWTOMS 
800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
18 
the clerk, because we all know the state attorney 
doesn't have it. 
So the clerk is the custodian of records. 
That's her main job. There's no doubt about it. We 
all know that. But we also know, unequivocally -- 
unequivocally, only the court can make the  4
determination of whether the moving party 
satisfied that there is an exception ese 
should be released. 
So, again, I ask you -- in fact, the 
custodian of the records -- our opinion that 
if you got a judgment say rk and comptroller 
gets a judgment agains that she can release 
the records without urt -- without the court 
weighing in, with e court making that 
determination 
MS. BO IAN: 
your Ho or tl' order the clerk to do that under your 
(1S" disc 'o
COURT: All right. 
Mr. -- Ms. Fingerhut, you wish to be heard on 
that? 
ired by law? 
No, your Honor. We are asking 
MS. FINGERHUT: Your Honor, our position is 
that we're not trying to block access to the 
records -- 
ESQUIRE ."rnm".." 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
19 
(Speaking simultaneously.) 
THE COURT: Can you hear? Can the attorneys 
hear? 
MS. FINGERHUT: -- custodian the records and 
that he cannot release the records without court --
THE COURT: Exactly. Alik 
iR d/rOkay. All right. Anything further . Wyler? 
MR. WYLER: No, your Honor. I c ith the 
attorneys for the clerk's office that 's impossible 
for us to release these records. re's no intent 
to hide them or block anythi m the Plaintiff. 
THE COURT: Okay. further, 
Ms. Fingerhut? 
MS. 
THE 
further, 
quac 
N. 
next 
FINGERHUT: 
COURT: 
our Honor. 
s. Boyagian, anything 
BO IAN: Nothing further, your Honor. 
COURT : Okay. I will get an order out 
hank you, folks so much. And I'll see you 
round. Thanks a lot. 
MS. BOYAGIAN: Thank you, your Honor. 
MR. WYLER: Thank you, your Honor. 
(The proceedings concluded at 10:28 a.m.) 
ESQUIRE ."." " 800.211.DEPO (3376) 
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HEARING 
CA FLORIDA HOLDINGS vs DAVE ARONBERG 
June 03, 2020 
20 
CERTIFICATE OF REPORTER 
I, Sonja M. M, Court Reporter, certify that 
I was authorized to and did stenographically report the 
foregoing proceedings and that the transcript, gases 1 
through 19, is a true and complete record of 
stenographic notes. 5:)
Dated this 3rd day of 4( Q020. 
(<4
Sonja M. 
Court Reporter 
ESQUIRE ""m."."." 800.211.DEPO (3376) 
EsquireSolutions.com 
EFTA02733844