Court Records
Filing # 131673974 E-Filed 07/29/2021 02:32:06 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. CASE NO.: 2019-CA-014681
DIVISION: AG
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants.
04MEMORANDUM OF LAW IN SUPPORT OF DEFENI DAVE ARONBERG'S
AMENDED MOTION FOR A FEES
Defendant, DAVE ARONBERG, as Sta o of Palm Beach County, Florida,
(hereinafter the "State Attorney"), by and ugh el below, hereby submits the following
Memorandum of Law in Support of Motion for Attorneys' Fees, filed November 9,
2020, ("Amended Motion"), and ' ereof states as follows:
LINE & BACKGROUND
1. On Nov 2019, Plaintiff filed its original Complaint that sought to create
a private right of Fla. Stat. § 905.27, in the interest of "furthering justice", to compel
disclosure o timony, minutes, and other evidence presented in 2006 to the Palm Beach
Coun as to Jeffrey Epstein, (the "Requested Materials").
2. On November 26, 2019, the State Attorney and his office received an engagement
letter and attorney-client contract from the undersigned counsel and his law firm and later executed
said contract. [Def.Ex.11.
FILED: PALM BEACH COUNTY. FL, ABRUZZO, CLERK, 07/29/2021 02:32:06 PM
EFTA02733874
3. On December 6, 2019, the State Attorney filed his Motion to Dismiss Plaintiff's
Complaint. Notably, this filing put Plaintiff on notice that "Despite Plaintiff's allegations to the
contrary, Defendant Aronberg is not in custody or control of the records sought and is therefore
not a proper party to this action." On December 13, 2019, the Clerk also filed a Motion to Dismiss.
4. On January 17, 2020, Plaintiff filed its First Amended Complaint, which in addition
to its original claim under § 905.27 Fla. Stat., ("Count II"), added a claim for Relief,
("Count I"), that sought an order declaring that the State Attorney and disclose the
Requested Materials so Plaintiff could use those materials for the p rming the public.
5. On January 24, 2019, the State Attorney and ch filed an Answer to
tCount I of the First Amended Complaint and a Motion t mount H ("Answer/Motion to
ASS, Dismiss). This filing by the State Attorney again n 1 tiff that:
It is significant to emphasize that d
Defendant Aronberg and the Office
Circuit are not in custody or co
Defendant Aronberg is not a p
R. Bock, as Clerk and Com
the custodian in possess'
t la iff's allegations to the contrary, irs ice
e S e Attorney for the Fifteenth Judicial
records sought herein, and therefore
to this action. In fact, Defendant, Sharon
alm Beach County, Florida, admits that it is
ocuments that are the subject of this action.
[See, Aronberg Answer/Motion smiss Count II, p. 12]
6. On J e 3„ Chief Judge Marx held a hearing on the State Attorney's and
Clerk's Motio iss Count II. [Def.Ex.21.
une 8, 2020, the Court entered its Order Granting Defendants' Motions to
Dismiss Caynt II of Plaintiff's First Amended Complaint with Prejudice ("Order"). [Def.Ex.3].
8. Immediately following the Court's Order, on June 8, 2020, the State Attorney,
through the undersigned counsel, served Plaintiff with a demand pursuant to § 57.105 Fla. Stat.,
to voluntarily dismiss/withdraw the First Amended Complaint and the claims against the State
Attorney, along with a Motion for Attorneys' Fees ("§ 57.105 Demand"). 1Def.Ex.41. As a result
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EFTA02733875
of the Order, only Count I of Plaintiff's First Amended Complaint remained, which sought
Declaratory Relief under § 86.011, Fla. Stat.
9. In serving his § 57.105 Demand on Plaintiff, the State Attorney properly put
Plaintiff on notice that he would seek sanctions by filing the § 57.105 Motion for Attorneys' Fees
if Plaintiff failed to dismiss the remainder of its First Amended Complaint within 21 days of service
of the § 57.105 Demand.
that:
10. Likewise, the State Attorney's § 57.105 Demand specifically informed Plaintiff
First and foremost, the [First Amended) Complaint is no by the material
facts necessary to establish the claims asserted neither Defendant
Aronberg, nor The Office of the State Attorney for t nth Judicial Circuit is
in custody or control of the 2006 grand jury m crisis sought therein. Simply put,
the declaratory relief sought by the Plaintiff words from my client that are
impossible for him or his office to produ ingly, Defendant Aronberg is
not a proper party to this action becau er what, he and his office do not
have possession, custody, or control e R ested Materials.
Moreover, even if the Plain
Aronberg would be unable
the requested documen
Attorney for the Fiftee
the 2006 Epstein grand
o prevail in the declaratory action, Mr.
with any court order granting disclosure of
either Mr. Aronberg nor The Office of the State
tal Circuit have possession, custody, or control of
rds.
11. On J e 231x2020, Plaintiffs counsel sent a response to the § 57.105 Demand
refusing to remainder of the First Amended Complaint as to the State Attorney.
IDef.Ex.5
12. After receiving Plaintiff's June 23, 2020, response refusing to withdraw the
remainder of the First Amended Complaint and waiting the prerequisite "21 days after service of
the motion" the State Attorney's § 57.105 Motion for Attorneys' Fees was filed with this Court on
July 1, 2020, (hereinafter "First Motion for Attorneys' Fees"). IDef.Ex.61.
3
EFTA02733876
13. Thereafter, on August 18, 2020, the State Attorney filed his Motion for Summary
Judgment, which included the Affidavit of the State Attorney ("Affidavit"), IDefix.7], and
proceeded, on October 21, 2020, to file a Motion to Set Hearing on the State Attorney's Motion
for Summary Judgment after it became clear that there would be no resolution of this matter
without the Court's intervention.
14. Nonetheless, later the same day, October 21, 2020, rather th4nletting and
participating in a hearing on the merits as to State Attorney's Motion fo mary Judgment,
Plaintiff filed its Notice of Dropping the State Attorney from the in , pursuant to Rule
1.250(6), Florida Rules of Civil Procedure. IDef.Ex.8I.
15. As the filing of Plaintiff's Notice of Dro tate Attorney operates as an
adjudication on the merits as to the State Attorn nded Motion for Attorneys' Fees,
("Amended Motion"), was filed November 9, i elude the entirety of the State Attorney's
legal fees up to that date. IDef.Ex.91.
NDUM OF LAW
I. LEGAL STANDARD
"The central p § 57.105, Fla. Stat., is, and always has been, to deter meritless
filings and thus he administration and procedure of the courts. Thus, the post-1999
version of as expanded the circumstances where fees should be awarded and the purpose
is to d less filings." v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019); See
Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 948 (Fla. 2011). Accordingly, § 57.105, Fla. Stat.
provides the following language authorizing the award of attorneys' fees as sanctions in actions
such as the present litigation:
(1) Upon the court's initiative or motion of any party, the court shall award a
reasonable attorney's fee, including prejudgment interest, to be paid to the
4
EFTA02733877
prevailing party in equal amounts by the losing party and the losing party's attorney
on any claim or defense at any time during a civil proceeding or action in which
the court finds that the losing party or the losing party's attorney knew or should
have known that a claim or defense when initially presented to the court or at any
time before trial:
(a) Was not supported by the material facts necessary to establish the
claim or defense; or
(b) Would not be supported by the application of then-existing law to
those material facts.
Fla. Stat. § 57.105 (1).
A
Hence, in addition to a motion by any party, "Section 57.105(1) d explicitly
confers upon the trial court the authority to award attorney's fees to t g party upon the
court's initiative, if the court finds that the losing party ... knew ou ave known that a claim
‘t ior defense when initially presented to the court or at any t trial . . . [wJas not supported
S eby the material facts necessary to establish the clai n e" or would not be supported by the
application of then-existing law to those ma ts. och v. , 47 So. 3d 320, 324 (Fla. 2d
DCA 2010).
Moreover, "[u]nder [§ 57. 5 )Stat.] the legislature has expressed its unequivocal
intent that where a party files a eritl claim, suit or appeal, the party who is wrongfully required
Vesto expend funds for atto ' is entitled to recoup those fees." County Conservation
Alliance v. Marti unty, 3 So. 3d 856, 857 (Fla. 1st DCA 2011) (finding that "Courts are not
at liberty to the legislative mandate that courts shall impose sanctions in cases without
founda terial fact or law. The word "shall" in § 57.105, Fla. Stat., evidences the legislative
intent to impose a mandatory penally to discourage baseless claims, by placing a price tag on
losing parties who engage in these activities. Section 57.105 expressly states courts "shall" assess
attorney's fees for bringing, or failing to dismiss, baseless claims or defenses.").
5
EFTA02733878
Additionally, "[s]ection 57.105 does not require a finding of frivolousness to justify
sanctions, but only a finding that the claim lacked a basis in fact or law" and "does not require a
party to show complete absence of a justiciable issue of fact or law." County Conservation
Alliance v. County, 73 So. 3d 856, 865 (Fla. 1st DCA 2011). However, "[w]here there is
an arguable basis in law and fact for a party's claim, a trial court may not sanction that party under
section 57.105." Minto PBLII, LLC v. 1000 Friends of Florida, Inc., 228 So. 3d 1 la. 4th
DCA 2017).
Finally, in determining an award of sanctions under § 57.1
"must be based on substantial competent evidence" and the trite 11 "t!Ist make an inquiry into
C4 ?what the losing party knew or should have known duri e -establishment process, both
SS , before and after the suit was filed." See Trust Mon , c. erlanti, 193 So. 3d 997, 1001 (Fla.
4th DCA 2016); See also Chue v. Lehman, 21 . , 891-92 (Fla. 4th DCA 2009).
0 court's findings
II. THE STATE ATTORNEY'S AMENDED MOTION IS NEITHER IN VIOLATION
OF THE 21-DAY SAFE H OR PROVISION IN FLA. STAT. § 57.105(4), NOR
WAS THE AMENDED MOTION MOOT UPON FILING.
A. The Amended oti n does not violate the 21-day safe harbor provision
because Plainti ped the State Attorney from the action prior to the filing
of the Ambrtd Motion.
"Section 05(4), Florida Statutes creates an opportunity to avoid the sanction of
attorney's fe ting a safe period for withdrawal or amendment of meritless allegations and
claims. . Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019). Specifically, the relevant
portion of the Statute states:
A motion by a party seeking sanctions under this section must be served but may
not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.
Fla. Stat. § 57.105(4). Likewise, "[t]he primary purpose of the safe harbor provision of §
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EFTA02733879
57.105(4), Fla. Stat., is to provide the recipient of a motion for an award of costs and attorneys
fees with notice and the opportunity to withdraw or abandon a frivolous claim before sanctions are
sought." MC Liberty Express, Inc. v. All Points Servs., 252 So. 3d 397, 404 (Fla. 3d DCA 2018).
Here, Plaintiff contends that the State Attorney "did not serve his Amended Motion at any
time before filing it, and thus failed to comply with the 21-day notice provision...." Def.Ex.10,
p. 6]. Plaintiff claims that for this reason alone the Amended Motion should be and cites
in support of their argument Lago v. Kame By Design, LLC, 120 So. 3d 73, DCA 2013)
(holding that "if a party files a subsequent or amended motion for i er section 57.105
and raises an argument that was not raised in the original motio n 57.105 sanctions, the
tsubsequent motion must independently comply with the -day 'safe harbor' provision
of Section 57.105(4).").
Despite Plaintiff's assertion, the ins t \ stinguishable from Lago, as the rule set
forth therein does not apply based on is a timeline of this action. In Lago, the plaintiff
served its § 57.105 demand and a g motion for attorneys' fees on June 30, 2011. After
waiting for the requisite 21 safb arbor period to pass, the plaintiff filed its motion for
attorneys' fees with the c July 29, 2011. The plaintiff then filed an amended motion for
attorneys' fees w e co rt on September 20, 2011. The court entered an order granting the
plaintiff's m' 57.105 attorneys' fees on October 25, 2011. The defendant filed a motion
for re nd on September 5, 2012, the court reheard the argument for attorneys' fees,
ultimately upholding its October 25, 2011 order. Significantly, during the September 5, 2012
rehearing, the defendant withdrew its offending motion that triggered the plaintiff's § 57.105
7
EFTA02733880
demand and motion for attorneys' fees. Eventually, on August 7, 2013, the trial court's order was
remanded by the 4th DCA based on the rule set forth above.'
Thus, in Lago, because the case was still active when the plaintiff's amended motion for
attorneys' fees was filed and was not served on the defendant in compliance with the 21-day safe
harbor provision before it was filed with the court, pursuant to § 57.105, the defendant was entitled
to notice and an opportunity to change its position and withdraw its offending motiQRb ore being
S" sanctioned.
The timeline of events in the instant action stands in stark
accordingly necessitates a different result. Here, Plaintiff was
57.105 Demand and its accompanying First Motion for A
23, 2020, Plaintiff's counsel sent a letter in response
I of the First Amended Complaint against the
'that of Lago and
the State Attorney's §
es on June 8, 2020. On June
aintiff's refusal to drop the Count
ey. After waiting for the requisite 21-
day safe harbor period to pass, the State meftFirst Motion for Attorneys' Fees was properly ,A L.....e
filed with the Court. Over 4-mon 1 er settlement negotiations failed and after the State
Attorney's Motion for Sum Ju ent was filed, Plaintiff dropped the State Attorney as a
party. IDetEx.11. Signi only after Plaintiff dropped the State Attorney as a party, and
thus had no abi ge its position, was the Amended Motion filed. Based on this fact
pattern, the e oes not apply here.
Plaintiff's decision to drop the State Attorney as a party, the Florida Rules of Civil
Procedure and the courts of Florida are clear. Because Rule 1.250 specifies that a party is dropped
"in the manner provided for voluntary dismissal in Rule 1.420(a)(1)," dropping a party therefore
I Notably, the court in Lago v. Kame By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA 2013), despite finding that the
plaintiffs amended motion for attorneys' fees was improper, the trial court was instructed to rule as to the plaintiff's
original motion for attorneys' fees as it was properly served and filed pursuant to § 57.105, Fla. Stat.
8
EFTA02733881
"operates as an adjudication on the merits." See, Siboni v. M, 52 So. 3d 779, 781 (Fla. 5th
DCA 2010); Rule 1.420(a)(1) Fla. R. Civ. P. Notably, Plaintiff admits that "the entire action,
which necessarily included Count I [of the First Amended Complaint], was dismissed as to [the
State Attorney] on October 21, 2020. [Deftx.10, p.7]. Nonetheless, as a result of dropping the
State Attorney from the case, Plaintiff not only effectively made an admission that its allegations
against the State Attorney have no basis in fact or law, but also concluded the cast the State
Attorney and thereby became the losing party in this action.
Consequently, unlike unlike the fact scenario and timeline in Lago, aintiff concluded
the instant litigation by dropping the State Attorney from tio fore the filing of the
Amended Motion, it was impossible to give Plaintiff an p to respond and withdraw its
ttfltis, Count I of the First Amended Complaint since Plai d ready done so, and therefore there1/2e
can be no violation of the 21-day safe harbor /$0 is•o t forth in Fla. Stat. § 57.105(4). c
Based on the foregoing, the State orne Amended Motion does not violate the 21-day
safe harbor provision because PI ' ' ped him from the action prior to the filing of the
Amended Motion, and therefo la' i was not prejudiced by the filing of the Amended Motion.
Accordingly, as further below, Plaintiff has exposed itself to § 57.105 attorneys' fees as
sanctions for fai • the State Attorney as a party within the 21-day safe harbor period.
B. tate Attorney's Amended Motion was not moot upon filing, but rather
÷ properly filed at the conclusion of the litigation to fully incorporate the
ntirety of the State Attorney's legal fees to date.
Oddly, Plaintiff also contends that because the State Attorney was dropped from the action
nineteen days before the State Attorney's Amended Motion was filed, the Amended Motion is
somehow moot. IDef.Ex.10]. Not only does Plaintiff fail to provide any authority in support of
this position, taking such a position lacks any logical reasoning or common sense. To be clear, the
9
EFTA02733882
State Attorney's First Motion for Attorneys' Fees was properly served and later filed pursuant to
the statutory instructions set forth in § 57.105. When Plaintiff failed to withdraw its remaining
claim against the State Attorney within the 21-day safe harbor period it exposed itself to sanctions
under the Statute despite eventually dropping the State Attorney more than 4-months after the §
57.105 Demand was made. As set forth at length above, Plaintiff's dropping of the State Attorney
as a party acted as an adjudication on the merits against Plaintiff. Thus, at that tim fe harbor
provision of § 57.105(4) no longer applied to Plaintiff because it acquiesce to Attorney's
demand, albeit late, no longer had any opportunity to respond, an le to change its
position or react to the Amended Motion as the State Attorney o er an active party in the
lawsuit.
Furthermore, the Amended Motion was not t \ time of filing because when it was i fe
it filed it incorporated the entirety of the State A ' es from the time of serving the § 57.105
s ,
S
fry
Demand through the time that the Sta tto was dropped from the case and the action
concluded. There is nothing impr the Amended Motion or any argument or authority
offered by Plaintiff that would Amended Motion moot. Likewise, amended motions for
attorneys' fees are filed • tly as a matter of course to include the entirety of fees in a lawsuit.
Here, the State ey's al legal fees were able to be calculated and submitted at the time of
filing the d Motion.
he State Attorney's First Motion for Attorneys' Fees is not insufficient and
was properly filed in accordance with the procedures set forth in § 57.105.
Plaintiff argues that the State Attorney's First Motion for Attorneys' Fees "was insufficient
under Fla. Stat. § 57.105 when filed [because] it set forth no substantive arguments as to why
Count I of the Amended Complaint was [un]supportable based on material facts in the record or
the application of existing law to those facts." [DetEx.10, p. 8]. Despite Plaintiff's contention,
10
EFTA02733883
Fla. Stat. § 57.105 has no such requirement regarding the contents of a motion for attorneys' fees
served in conjunction with a § 57.105 demand. In fact, regarding § 57.105 motions for attorneys'
fees the Statute is limited to the following language regarding the safe harbor provision:
A motion by a party seeking sanctions under this section must be served but may
not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.
Fla. Stat. § 57.105(4). Moreover, the State Attorney's June 8, 2020 § 57.105 T d specifically
sets forth the reasons why Count I of the First Amended Complaint had • in fact or law.
Likewise, the State Attorney's First Motion for Attorneys' Fees spec states that:
[O]n June 8, 2020, Plaintiff was served with a copy o
letter from the undersigned attorney, in accordance
Statute, demanding dismissal of the [First Am
prior to the filing of this Motion. In said
Plaintiff of the facts which establish that t\
support of the facts or the law.
Ar Ser[Def.Ex.6]. Accordingly, the State Atto pro ly put Plaintiff on notice that he would seek ....e
tion, together with a
tion (4) of the above
mplaint, at least 21 days
fendant's attorney advised
ended] Complaint is without
attorneys' fees as sanctions under
during the 21-day safe harbor
for Attorneys' Fees, it w
cannot be consid
In ad
eviden
‘ T the First Amended Complaint was not withdrawn
ce, regardless of the length or breadth of the First Motion
roperly within the statutory procedures set forth in § 57.105 and
crent despite Plaintiff's contention.
atnti ff asserts that "[a] motion for sanctions must be supported by the record
time it is filed" [and] "[b]ecause the First Motion was not so supported, it fails
under the [S]tatute." [DetEx.10, p. 8]. In support of this argument, Plaintiff asserts that there was
no record evidence supporting the State Attorney's statement from the § 57.105 Demand that it
was impossible for him to provide the Requested Materials because he has no possession, custody,
or control of them.
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EFTA02733884
Despite Plaintiff's argument here, Plaintiff has failed to provide any supporting authority
whatsoever and there is no statutory requirement or language in § 57.105 that supporting record
evidence must exist to properly serve a § 57.105 demand and motion for attorneys' fees. "The
central purpose of § 57.105, Fla. Stat., is, and always has been, to deter meritless filings and thus
streamline the administration and procedure of the courts." v. Bailynson, 268 So. 3d 762,
769 (Fla. 4th DCA 2019). in this vein, a § 57.105 demand and accompanying moti ttorneys'
fees can be filed at any time after a lawsuit is initiated, hence even directly to the filing
of a complaint, regardless of whether any record evidence exists at e t support of the §
57.105 demand. In fact, § 57.105(1) specifically states in perti at:
Mhe court shall award a reasonable attorney's f y claim or defense at
any time during a civil proceeding or action in h urt finds that the losing
party or the losing party's attorney knew o h d ave known that a claim or
defense when initially presented to the co (v time before trial:
(a) Was not supported by t facts necessary to establish the
claim or defense; or
(b) Would not be sup e application of then-existing law to
those material facts.
Fla. Stat. § 57.105(1).
Consequently, the foreg indicates that the State Attorney's First Motion for
Attorney's Fees, as el l?it filed, is sufficient under § 57.105 to seek sanctions from
Plaintiff for i u drop the State Attorney from the instant lawsuit within the 21-day
safe harb after being notified why its First Amended Complaint had no basis
in fact or Furthermore, as set forth at length above, despite Plaintiff's contention, the
State Attorney had no obligation to serve his Amended Motion prior to filing it with the
Court as Plaintiff had already dropped him from the case when it was filed.
12
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THE COMPETENT, SUBSTANTIAL EVIDENCE ON THE RECORD SHOWS
THAT THERE IS NO ARGUABLE BASIS IN LAW OR FACT FOR THE ISSUES
RAISED IN PLAINTIFF'S COUNT I, WHICH NOT ONLY LACK A GOOD
FAITH ARGUMENT FOR THE INTERPRETATION OF EXISTING LAW OR
ESTABLISHMENT OF A NEW LAW WITH A REASONABLE EXPECTATION
OF SUCCESS, BUT ALSO ARE NEITHER NOVEL OR COMPLEX.
In determining an award of sanctions under § 57.105, the trial court's findings "must be
based on substantial competent evidence" and the trial court "must make an inquiry o what the
losing party knew or should have known during the fact-establishment proce nth fore and
after the suit was filed." See Trust Mortg., LLC c. Ferlanti, 193 So. 3d 1 (Fla. 4th DCA
2016); See also Chile v. Lehman, 21 So. 3d 890, 891-92 (Fla. 4th DC 200 ).
Here Plaintiff relies on § 57.105(3Xa), which sets f nario where sanctions are
improper under the Statute:
3) Notwithstanding subsections (1)
awarded:
(a) Under paragraph L
defense was initially pres
extension, modificatio
new law, as it appl
ofsuccess.
Fla. Stat § 57.105(3)(a).
In support of Is posif4iofi, Plaintiff unpersuasively relies on the court's determination in MC
Liberty Expr c. II Points Servs., Inc., 252 So. 3d 397, 403 (Fla. 3d DCA 2018) (finding
that "[w] reasonably believes the factual basis for its claim exists, it is entitled to
proceed 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." Likewise,
Plaintiff asserts that "even in absence of existing supportive law, if the claim at issue was presented
as a good-faith argument for the extension or modification of existing law or the establishment of
new law, with a reasonable expectation of success, the Court cannot sanction the party or its
AS vnetary sanctions may not be
ourt determines that the claim or
court as a good faith argument for the
1 of existing law or the establishment of
aterial facts. with a reasonable expectation
13
EFTA02733886
attorney." See Key Biscayne Gateway Partners, Ltd. v. Village Council for Village of Key
Biscayne, 240 So. 3d 84, 87 (Fla. 3d DCA 2018).
A. The defense to the issuance of sanctions under § 57.105(3)(a) does not protect
Plaintiff because as applied to the material facts, Plaintiff has failed to provide
a good faith argument with a reasonable expectation of success.
Notably, Plaintiffs arguments exclude the limitation that the § 57.105(3)(a) defense only
applies to demands made under § 57.105(1)(b). Accordingly, Plaintiff's attem revent an
award of sanctions here only applies to whether Plaintiff or Plaintiff's att ew or should
have known" that the First Amended Complaint "when initially pre e court or at any
time before trial ... (b) would not be supported by the applica ' o n-existing law to those Ac bs
c )material facts necessary to establish their claim." [See, § . (b)].
\Despite Plaintiff's argument that sanctions p 57.105(1)(b) are unjustified based Ac p
on the defense provided under § 57.105(3Xa • tt s argument fails as there is no arguable
basis in law that the State Attorney pro • e uested Materials. In determining an award of
sanctions under § 57.105, the trial " t t make an inquiry, into what the losing party knew or
should have known during the ishment process, both before and after the suit was filed."
See Trust Mortg., LLC c. ti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016); See also Chue v.
Lehman, 21 So. 3
began befo
both p
42 (Fla. 4th DCA 2009). Here, Plaintiff's fact-establishment process
of its original Complaint or First Amended Complaint were filed. Notably,
olved around Plaintiff's arguments for a private right of action under Fla. Stat.
§ 905.27 and whether The Palm Beach Post had constitutional and statutory standing to overcome
grand jury secrecy provisions "in furtherance of justice."
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EFTA02733887
As Plaintiff researched § 905, Fla. Stat. it would seem reasonable that Plaintiff would have
encountered § 905.17, Fla. Stat. during its fact-establishment process. Notably, regarding the
disclosure of grand jury materials, § 905.17(1) states:
The notes. records. and transcriptions are confidential and exempt from the
provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall be
released by the clerk only on request by a grand jury for use by the grand jury or
on order of the court pursuant to s. 905.27.
Accordingly, based on the clear, unambiguous statutory langua t fdith in §
57.105.17(1), only the Clerk, not the State Attorney, may release grand *u als pursuant to grand
an order of the court. Thus, it is apparent that the State Attorney d hi office lack the legal
authority to obtain and deliver the Requested Materials de
First Amended Complaint.
Regardless of whether Plaintiff actually \f ilS)e controlling provision set forth in §
905.17(1) during its fact-establishment p Pla tiff was not only on constructive notice of
said statutory provision, Plaintiff wa ly informed of this provision in several instances
be' to the State Attorney be' d as a party. Nonetheless, based on Plaintiff's own
research, statutory constructive ce, the State Attorney's affidavit, all of the pleadings and
correspondence in maMt r a§ well as through the State Attorney's office press release and social
media accoun t hief Judge Marx's statements during the June 3, 2020 hearing, Plaintiff
should ha that Count I of the Amended Complaint "would not be supported by the
applicatio f then-existing law to [the] material facts" in this action. See § 57./05(0(b).
y Plaintiff in Count I of the
B. Sanctions against Plaintiff are appropriate under § 57.105(I)(a) as Plaintiff
knew or should have known that Count I was not supported by the material
facts necessary to establish the claim or defense.
Even if Plaintiff were somehow successful in defending against sanctions based on a good
faith argument for a reasonable expectation of success pursuant to § 57.105( I )(b), sanctions would
15
EFTA02733888
still be appropriate against Plaintiff pursuant to § 57.105(a) regardless of Plaintiff's alleged "good
faith belief" or "reasonable expectation of success." Section 57.105(1Xa) states that "the court
shall award a reasonable attorney's fee ... on any claim or defense at any time during a civil
proceeding or action in which the court finds that the losing party or the losing party's attorney
knew or should have known that a claim or defense when initially presented to the court or at any
time before trial... (a) was not supported by the material facts necessary to estab
defense."
As to § 57.105(1Xa), the material facts showing that Plainti
expectation of success have been open, obvious, and apparent t
from the start. Specifically, the State Attorney's positio
A
office has possession, custody, or control of the R tesic ib
t sought by Plaintiff seeks materials that i o • le for the State Attorney or his office to s i
produce and he is not a proper party to • tion. DefEx.7, Ir§ 3-4]. Again, these material facts Xt ..?
S tomey were not only set forth in the June 8, 2020, §
e basis for the State Attorney's defense in every pleading,
claim or
negating Plaintiff's claim against
57.105 Demand Letter, but hav
a749, filing, and/or correspond * this matter.
Plaintiff
Complaint w
relief;
0 as no reasonable
involved in this matter
nsistent: neither he nor his
erials and therefore the declaratory
Id ha e known from the initiation of the case that the First Amended
pported by the material facts necessary to establish their claim for declaratory
e very least, Plaintiff should have known that its First Amended Complaint was
not supported by the material facts after Judge Marx's statements during the June 3, 2020 hearing
on Defendant's Motion to Dismiss Plaintiff's Count II. During that hearing, Chief Judge Marx
drew a bright line as to when Plaintiff knew or should have known that Count I of the Amended
Complaint had no basis in fact or law since the relief sought thereby is impossible for the State
16
EFTA02733889
Attorney to perform. Specifically, Chief Judge Marx made the following statements putting
Plaintiff on notice if they weren't already:
"I must look at the four corners of the motion, which alleges that the State Attorney,
Dave Aronberg, and the clerk 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 custody of the records." [June 8, 2020 Hearing Transcript, p. 3:18 -4:1].
c e"I think we can all agree ... that the state attorney doesn't have these reca "
8, 2020 Hearing Transcript, p. 5:17-19].
"I'm asking you, how are the clerk and the state attorney the endants?"
[June 8, 2020 Hearing Transcript, p. 8:4-6].
"I'm puzzled by the procedural posturing of this ca g the state attorney.
And, you know, I'm further stymied by the fact tj o ge in your complaint
that they have — particularly David Aronberg A)torney — that he has these
records." [June 8, 2020 Hearing Transcript,
"[O., let's run this all the way out. As s 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. Ile has no authority whatsoever to do that."
[June 8, 2020 Hearing Transcr At, p. 8:18-22].
"And the only thing we' eliltpbay about is why should the clerk and the state
attorney have to defen civ aaction when it's a [im]possibility of performance?
They — even if you were in and get a judgment against them, they cannot give
you what they do ." [June 8, 2020 Hearing Transcript, p. 10:21 — 11:1].
"I'm sim
even d
8, 20
ying *hy should these two entities have to defend this lawsuit when
ad if [you] win they can't give you what they don't have?" [June
g Transcript, p. 11:12-15].
u know, really, I want you to boil it down for me as to this — let's take it
all ye way down the road. You win. You get a judgment against the clerk and the
state attorney. I know there's other reasons why you might have filed it this way.
But I'm just simply puzzled because I do hear what the clerk and the state attorney
are saying, and that is, performance is impossible. 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 get to your records. There's ways
to get confidential records. But it isn't by suing the state attorney and the clerk."
[June 8, 2020 Hearing Transcript, p. 16:12 — 17:3].
17
EFTA02733890
"Even assuming arguendo that they have the records — we know they don't — you
were to get a judgment against them, how would you expect them to perform?"
[June 8, 2020 Hearing Transcript, p. 17:6-9].
"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 the clerk, because we all know the
state attorney doesn't have it." [June 8, 2020 Hearing Transcript, p. 17:23 — 18:2].
In fact, during the Motion to Dismiss hearing, Plaintiff's counsel, Ms. Boyagian,
acknowledged on the record the State Attorney's assertion that he does not ssession,
"My understanding is that the state attorney has asserted 0 not have
possession. It's not my understanding that the clerk has taken at p sition. So the
clerk may indeed be the — someone who does have es custody, and
control." [June 8, 2020 Hearing Transcript, p. 9:1-
custody, or control of the Requested Materials:
"Two points, your Honor: One is that, again, t d not assert in her papers
that she does not have control. That is a po 'o he State Attorney's Office
has asserted." [June 8, 2020 Hearing Tra , p.7717:10 - 13].
Consequently, following the June 3 ion to Dismiss Hearing, at the very least,
Plaintiff knew or should have known .105(1Xa) that Count I of the Amended Complaint
C rd"was not supported by the ma I necessary" to establish their claim. See Fla. Stat. §
57.105(I)(a). In fact, later the e day that Chief Judge Marx entered her Order Granting
Defendants' Motionato D mss Count II with Prejudice, the State Attorney's § 57.105 Demand
and accompo
impossibi r State Attorney being able to provide the Requested Materials. Accordingly,
the forego not only shows that § 57.105 sanctions are justified against Plaintiff, but also that
there is no arguable basis in fact that the State Attorney provide the Requested Materials.
Motion for Attorneys' Fees was served on Plaintiff explaining the
C. Plaintiffs Count I is neither novel nor complex as it merely seeks declaratory
relief and because the State Attorney's lack of possession, custody, or control
of the Requested Materials creates an impossibility of performance.
Plaintiff also argues that "Where an issue is novel and complex, sanctions under Section
18
EFTA02733891
57.105(a) may not be imposed." Grove Key Marina, LLC v. Casamayor, 166 So. 3d 879 (Fla. 3d
DCA 2015). However, despite Plaintiff's reliance on Casamayor, there is nothing in the court's
opinion that stands for the proposition that Plaintiff asserts. Nonetheless, the Fist District Court
of Appeal in County Conservation Alliance v. County, 73 So. 3d 856, 864 (Fla. 1st
DCA 2011), stated that "[w]ere we to determine that complex cases are immune from sanctions
under section 57.105, we would be abdicating our duty and violating Article II, 3 of the
Florida Constitution." Moreover, while Plaintiff's Count II may fall into c gory of being
"novel" since it sought a private right of action under § 905.27; how er, fi's Count I does
not rise to such a level as it merely seeks declaratory relief. laintiff's arguments in
tsupport of Count I have no good faith basis or reasonable of success as further set forth
below.
Here, it is apparent that Plaintiff's Co td \ aratory relief is neither novel or complex.
All of the available facts since the initia ' of th ase and thereafter have stood in stark contrast Afw)..,..,
to Plaintiff's alleged "well-found ' and "good faith" argument in support of Count I.
Oddly, in arguing for novelty a exity, Plaintiff heavily relies on its Count II for a private
right of action under § 90 a. Stat. and whether The Palm Beach Post had constitutional and
statutory standin overc me grand jury secrecy provisions "in furtherance of justice." See. 5
905.27.2 N ief Judge Marx's June 8, 2020 Order Dismissing Count II with Prejudice
ahead ed of any further argument on this matter, but nonetheless Plaintiff seems
compelled to continually attempt to raise the issue. Nonetheless, based on the dismissal with
2 Although Plaintiff makes an attempt to continually argue Count H after it was dismisscd with prejudice it is
significant to note that ""if an action asserts a theory of liability using more than one, but separate, factual scenarios
in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is
not supported by law, the sanction must be ordered." v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019).
19
EFTA02733892
prejudice of Count II, the only matter remaining before the Court is Plaintiffs Count I for
declaratory relief.
Here, Plaintiff's argument for novelty and complexity fails as to Count I, regardless of
Plaintiff's reliance on "Constitutional provisions and interpretive case law, along with Fla. Stat. §
905.27" ... "to propose a good faith interpretation of existing law in support of its declaratory relief
claim in Count I." [Def.Ex.10, p. 10]. The simple fact of the matter is that Count I her novel
or complex because Count I merely seeks declaratory relief and the S ey's lack of
possession, custody, or control creates an impossibility of performan o t I, which greatly
simplifies the determination of whether the State Attorney is li ere.
Additionally, Plaintiff was on notice and should that the State Attorney had
no possession, custody, or control of the Requeste • as of November 26, 2019, at the
i
g ym
c ,earliest, when the State Attorney's Motion to • filed in response to Plaintiff's original ( d
Complaint. That filing specifically s that espite Plaintiff's allegations to the contrary,
Defendant Aronberg is not in custo o of of the records sought and is therefore not a proper
party to this action." Beyond t ml notice, as set forth above, based on Plaintiffs own
research, statutory cons notice, the State Attorney's affidavit, all the pleadings and
correspondence i s matt as well as through the State Attorney's office press release and social
media accou ief Judge Marx's extremely significant statements, Plaintiff should have
know nt I of the Amended Complaint "(a) was not supported by the material facts
necessary to establish the claim or defense; and/or (b) would not be supported by the application
of then-existing law to those material facts." See § 57.105(1)(a) and (b). Finally, it is important
to note that in Plaintiff's Count I for declaratory relief, the court's role is not to create an
"extension, modification, or reversal of existing law or the establishment of a new law," but rather
20
EFTA02733893
providing the Requested Material
Ca)
October 21, 2020.
IV. THE RECORD
HAVE KN
THERE
WAS
is to provide an interpretation of existing law that clears up any ambiguity. Here, § 905.17(1) is
abundantly clear that only the Clerk can release grand jury materials pursuant to a court order; and,
it is likewise clear that not only has the State Attorney never had possession, custody, or control
of the Requested Materials, but he also lacks any legal authority to obtain and deliver the
Requested Materials.
Furthermore, as set forth in detail above and despite Plaintiff's contenti ere is no
arguable "good faith" basis in law and/or fact, under § 57.105(1)(a) or ) o y reasonable (:a i
expectation of success as to Plaintiff's Count I; and therefore, sa n inst Plaintiff are
appropriate under § 57.105. See, Minto PBLH, LLC v. 1000 F o orida, Inc., 228 So. 3d
147, 149 (Fla. 4th DCA 2017). Moreover, under no set d Plaintiff have a reasonable
expectation of success against the State Attorney in
i
tall)od
llat no time did the State Attorney have po u y, or control over said documents. In
fact, Plaintiff acknowledged, admitted, acqu d to the impossibility of the State Attorney
ntiff dropped the State Attorney from the action on
e sought after documents because
CE INDICATES THAT PLAINTIFF KNEW OR SHOULD
WN STATE ATTORNEY WAS NOT A PROPER PARTY, THAT
ASJS 1N FACT OR LAW AS TO COUNT I, AND THAT THERE
ONABLE EXPECTATION OF SUCCESS.
e foregoing arguments and record evidence set forth at length above, it is
apparent at no time did the State Attorney have possession, custody, or control of the
Requested Materials and has no legal authority to produce or disclose the Requested Materials.
These facts were constantly and continually communicated to Plaintiff via the State Attorney and
even through Chief Judge Marx. Further, there is no rule or authority mandating that record
evidence eixist in support of a § 57.105 demand when it is made. Thus, the State Attorney is
21
EFTA02733894
rendered an improper party in this action based on the foregoing and the impossibility of the State
Attorney producing or having the legal authority to produce the Requested Materials.
CONCLUSION
As set forth at length above, Defendant, Dave Aronberg, as State Attorney of Palm Beach
County, Florida, respectfully requests that the Court enter an order granting the State Attorney's
Amended Motion for Attorneys' Fees in its entirety and grant such other and
Court deems necessary or proper.
/s/Dou
SCH
yler
(MS
LER,LLC
as the
bs, Esq.
o.: 10249
J. Scholz, Esq.
*Bar No.: 0021261
\fouglas A. Wyler, Esq.
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-I
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted] Fax
II PIIV
Primary: [Email Redacted]
Attorneys for Defendant, Dave Aronberg
.
YYY
CERTIFICATE OF SERVICE
ERTIFY that on this 29th day of July, 2021, a copy of the foregoing has been
electronicd9y filed with the Florida E-File Portal for e-service on all parties of record herein.
/s/ Douglas A. Wyler
22
EFTA02733895
Def.Ex.#1
Def.Ex.#1
EFTA02733896
JACOBS Scaotz ac WYLER, LW.
Mt LAM COT= • CI
ASSOCIATES. PA.
barrow* I.
A WOOED UASIUTY COLIPANT Of PRDFCSSIONµ ASSOCIATIONS
ATT ORNCYS AT LAW
OATCWAT TO ARUN
PSI ITS7 CIATDVAT BLVD.. Sint EOM
Friatemorge Hicsal. FLORIDA 02004
TID.C.PHONC (Godil e01.9003
IAS NO. 1004) • -7871)
November 26, 2019
Office of the State Attorney
15th Judicial Circuit
Attn: Jeanne Howard
401 North Dixie Highway
West Palm Beach, FL 33401
Re: CA Florida Holdings, LLC v. Dave Arenberg et aL
Case No.: 2019-CA-0146BI
Dear Mrs. Howard:
RICHARD J. SCHOLZ. P.A.
RICHARD SCHOLZ
DOUGLAS A. W11.Z.R. P.A.
DOUGLAS A. WVLLR
Cos
The purpose of this letter is to confirm that Scholz & Wyk:, LEX will represent you regarding the
above-referenced matter.
Our fees will be contingent upon our success in this miner. You will not be liable or required to pay any
monies to our office unless we are successful in our' epresentation of you regarding the above-referenced
litigation and receive a court order awarding 00111ere fees.
Accordingly, should we be successful inthismatter, you agree to be billed for the time incurred in defending
this action at our current hourly rates. At this time, our current hourly rates are: $475.00/hour for senior
partners, $425.00/hour for other pacts, $375.00/hour for associate attorneys, and $125.00/hour for
paralegal time.
Furthermore, the attorneys' paid to our Finn shall be calculated by the above listed hourly rates
multiplied by the number of hours expended in defending this action or the total fee mandated and awarded
by the court order herein, whichever is greater.
By signing below, you agree to the terms as set forth above. Please return a signed and dated copy of this
letter to our office. If you have any questions or concerns, please contact our office. On behalf of the
firm, we are proud to represent you in this matter.
Sincerely,
Douglas A. Wyler, Esq.
For the Firm
at.,lcaZ Date
EFTA02733897
Def.Ex.#2
Def.Ex.#2
EFTA02733898
COPY
In the Matter Of:
CA FLORIDA HOLDINGS vs DAVE ARONBERG
,0"4"\.•
50-2019-CA-014681
HEA
June 03, 2020
( 1/4) *)
'4 415v
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coS
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
June O3, 2020
1
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-
DAVE ARONBERG,
SHARON R. BOCK,
AS)Defendant/Respondent\
7 411 °:
HEARICjORE THE HONORABLE KRISTA MARX
es
(ZOOM CONFERENCE)
Wednesday, June 3, 2020
10:08 a.m. - 10:28 a.m.
REMOTE ZOOM CONFERENCE
Port Saint Lucie, Florida
Stenographically i rted By:
SONJA M.
Court Reporter
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
June 03, 2020
2
APPEARANCES:
On behalf of the Plaintiff/Petitioner:
GREENBERG TRAURIG, P.R.
1840 Century Park East
Suite 1900
Los Angeles, California 90067
[Phone Redacted]
boyajimagtlaw.com
BY: NINA D. BOYAJIAN, ESQUIRE
On behalf of the Defendant/Respondent:
JACOB, SCHOLZ & WYLER, LLC
961687 Gateway Boulevard
Suite 2011
Fernandina Beach,
[Phone Redacted]
doug.wylerecomcast.net
BY: DOUGLAS A. WYLER, E
Florida 32034C
On behalf of the DefendanGRe ondent:
CLERK & COMPTROLLER, PALM BEACH COUNTY
P.O. Box 229
West Palm Beach, Florida 33401
[Phone Redacted]
nfingerhutreTypalmbeachclerk.com
BY: NICOLE/ R._ PINGERHUT, ESQUIRE
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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 Aronberg
and Defendant Sharon Bock for the Comptroller and the
State Attorney's motion to dismiss Count .
You're all acutely aware as theclawyers that
this is a question of law. So we're not going to be
diving into facts and the Court will not be deciding
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're all on that same page.
So, aoyagian, I'll send it to you first,
'III'. I -- of_course, we all know that the Law 101,
I must lo at the four corners of the motion, which
elle s that the State Attorney, David Aronberg, and
tlec! ,
e erk and comptroller, Sharon Bock, actually have
,lile ody 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
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
June 03, 2020
4
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 that
you're seeking from -- in Count II, specifically.
Not the dec action. We're not here on that today
what is it you hope to get, a judgment?
MS. BOYAGIAN: Thank you, y onor. Good
morning, and thank you for t lege of appearing
before this court.
The relief we are seeking is disclosure of the
grand jury records, rsuant to the Furtherance of
Justice Exceptio 05.27. And under the First
Amendment.
The pres is your Honor is aware, has a right
of access under the First Amendment as a surrogate of
the public --
HE COURT: Let me just stop you for a minute.
dike 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.
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CA FLORIDA HOLDINGS vs DAVE ARONBERG
June O3, 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 and I have been able to spend some time
with, as I said, the voluminous paperwork thAtts
provided.
But as you know, , we are h such an
extremely limited issue today, and their motion
to dismiss where they state "yo suing the wrong
people"; that the
And so, more
whether Section 905.27
action against the srat1 attorney and the clerk.
Again, I'm o assume the facts are true
(L )
that are asse the motion. Whether they are or
not -- becaus think we can all agree we're not for
sure if t ever -- that the state attorney doesn't
hav ese records. So what is it you're seeking in
C I -- not the dec action. I know you want the
Atds. I've got that. But in Count II,
cifically, 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
court has t ecords.
importa £ want you to address
you a private cause of
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
June 03,2020
6
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 AilAr
lig dirforbids an act which is to Plaintiff'
injury, the party injured should h
an action."
(::
And that's the Piezo east in the volume
of materials that we sent you
There's no question h tttldt the denial of the
FIRST AMENDMENT right t press is an injury which
gives rise to a righ a tion.
Stated anot looking at the analysis
that the Fisc calf Court looked at, there are
three factors determining whether there is a
private r of action where a statute does not
expre S ly rovide for one.
On
is whether the Plaintiff is part of the
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
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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 and
statute.
There is nothing that says we i o create
a private action, but there's certai ly nothing that
says we do not want to create ate right of
action.
What we do have is t 1994, the same time
that 905.27 was reenac statute that pertains to
the secrecy of Stat G Jury -- statewide grand
juries was also n . That provision, which is
905.395, has pb ptions for -- for revealing these
records. By contrast, the legislature intentionally
enacted 905.27 with the Furtherance of Justice
Exception. '
fNhe public through the press can't bring a
to right of action to enforce that exception or
o seek relief under that exception, that
intentionally placed exception of furthering justice
is essentially rendered hollow --
(Speaking simultaneously.)
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
June 03, 2020
8
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 there isn't a
cause of action. Clearly there is. I'm p izzled by
the procedural posturing of this case naming the
_
state attorney.
And, you know, I'm furt
that you allege in your c
particularly David Aro
that he has these reco
But I'm goingcle-assume that's true. So I'm
not telling you, you don't have a cause of action.
I'm just saying, okay, let's run this all the way
ied by the fact
that they have --
he State Attorney --
out. Let's say you win and you get a judgment
againit the State Attorney Dave Aronberg.
( What's he supposed to do with it? He can't
i'ttleethe the grand jury testimony. He has no
\nuthority 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,
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CA FLORIDA HOLDINGS vs DAVE ARONBERG
June O3, 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. --sr
,---
In any event, we would submit that the etate
attorney, even it does not have actual 'possession at
this time, it might be able to have the power to
control or direct the entity or persons who do have
control and possession to release those -- to effect
the judgment.
THE COURT: So le `me ask you this: So the
\I., clerk is the keeper c4 he record. But even if you -Th
got a judgment against-'her -- let's say you asserted
this cause of,-action and let's say you win and you
get a judgment against the clerk. The clerk cannot
release g I jury testimony to you. Only the court rd
caneirS r
o really -- all I'm saying to you is I do not
AS rstand the way this case was filed or why these
\ ate 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
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CA FLORIDA HOLDINGS vs DAVE ARONBERG
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10
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 -- I mean, I
guess what you're saying to me is, well, we want to
do discovery and we want them to say unequivocally "I
have these records" or "I don't have them."
And -- I mean, the law is aJqundantly clear.
You cannot do it without a court} termining whether,
t?in the furtherance of just.c1SIS
S
e release is
appropriate.
MS. BOYAGIAN: that is a determination
we're asking your Honor to make, and we're asking for /
an order from,yoni Court.
THE COURT: ,When we get to the merits of the
case, sure-I.t. is. But, again, you're asking me to
make .hat determination and for me to make a
determination of whether the grand jury records
should 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
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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 over, ..
they're sealed and they're turned over and they
cannot be released without court order?
So I'm not addressing the merits or whether you
have an exception or you're abli to largue that
there's an exception in the fUrtherance of justice.
We're not getting there today. I'm simply saying why
should these two entities have to defend this lawsuit
when even down the road if they win they can't give
you what they don't -have?
MS. BOYAGIAN:.' As your Honor stated, I'm not •
sure that's the case with the clerk. That was not in
their -- that issue was not stated in their papers.
(THE COURT: Let me ask you this, then: Do you
think, if you got a judgment and I or the court
—dbebn'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
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
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12
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 court order before the records
are unsealed.
THE COURT: Exactly. Exactly.
All right. Let me hear from Mr. Aronberg's
attorney, Mr. Wyler.
MR. WYLER: Thank you, youryHonor. May it
please the Court
THE COURT: Good morning, Sir.
MR. WYLER: Good morning.
Your Honor, I just wanted to let you know that
I spoke with counsel -for the clerk, Ms. Fingerhut, a
couple of days-libaothe this hearing, and we decided
that I would lust make the presentation for both of
of us, beings,that our arguments overlap except for
3- the pict or who this claim -- whether they have the
re/Cards /or not, which, of course, we've said we don't
yfiaVe-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
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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
into the Furthering' Justice Exception, butc'know
that's what they're using as their ba Si to get to
these. But it's our position that t clear
unambiguous statutory language, ows that this
disclosure only applies to a i or criminal case,
and that within that civi iminal
(speaking simulta
THE COURT: Ag i, ir -- I'm sorry. As I told
Plaintiff's coun el
MR. WYLE can only be used in the defense
for --
THE COURT: Okay. We're not there. We're not
discussing the merits of the case, and -- I'm not
rm, ready ito cross that bridge. I'm here for a very,
,ittery-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.
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CA FLORIDA HOLDINGS vs DAVE ARONBERG
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14
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
to that limited purpose,
MR. WYLER: No problem, your Hono
apologize.
Within the four corners of the complaint, our
tS"
I would appreciat .
position is that they failed e a cause of
action under 905.27. It de
doesn't list that there' n lement that they have
adequately pled to ass ' cause of action under
that. There's --„..., e only thing they're asking
for is records-that /we don't have.
There's Lally not much more to it, your Honor.
And we wo
dism
provide for -- it
sk that you would grant our motion to
failure to state a cause of action.
COURT: Okay. Ms. Fingerhut, are you still
e phone?
MS. FINGERHUT: Yes, your Honor.
THE COURT: Is there anything you wish to add?
MS. FINGERHUT: We agree with the state
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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 oi24445 ,
records. Acit ,
THE COURT: Okay. Thank you,
Boyagian, back to you.
MS. BOYAGIAN: Your Honor, 'I'd,like to note
that in the Butterworth case in which the Supreme
Court limited the application -905.27 by saying that a
witness can reveal hex own testimony and prohibiting
that they violate the P,*rst Amendment --
THE COURT: Say that again, please.
MS. BOYAGIAN: In the Supreme Court case, the
Butterworth case, in which the Supreme Court ruled
that 905. an't restrict a Grand Jury witness from
revgA ng her own testimony, that would be a
ion of First Amendment, in that case, the state
+ •rney 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
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HEARING
CA FLORIDA HOLDINGS vs DAVE ARONBERG
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16
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 the,Court in
such a timely fashion. I really do. And id spend
some time with it. But I want to give hatever
opportunity you want to take to cony ce me that it
he dec action --is in -- as to Count 2, again.
- whether these would be the ap 7
1
p. a`te defendants.
NI_ tAnd, you know, reall you to boil it
down for me as to this„' 's take it all the way
down the road. You
the clerk and th
I know t
filed it this
Er
You get a judgment against
attorney.
other reasons why you might have
But I'm just simply puzzled
because I ffo-hear what the clerk and the state
attorney are saying, and that is, performance is
impossible. 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
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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 assuming arguendo
they have the records -- we know they dop(i;-- you
were to get a judgment against them, id you
expect them to perform?
Honor: One is MS. BOYAGIAN: Two points
that, again, the clerk did rt in her papers
that she does not have co o That is a position
that the State Attorn ice has asserted. It is
our allegation, an se ur Honor noted, allegations
must be accepter s rue -- as true at this stage of
the proceedi s.
Second, s also our understanding that the
state attorney and the clerk intend to block access
to these records. So our allegation is that they do
have possession, custody, or control, which the clerk
Alas 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
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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
determination of whether the moving party
satisfied that there is an exception t se
C
should be released.
So, again, I ask you -- she,'1S4 in fact, the
custodian of the records -- is it -ybur opinion that
if you got a judgment sayingHclerk and comptroller
gets a judgment against -:them, that she can release
the records without tiNscourt -- without the court
weighing in, witho e court making that
determination ra cequired by law?
MS. BOYAGIAN: No, your Honor. We are asking
your Honor/to order the clerk to do that under your
disyktion.
,
HE COURT: All right.
Mr. -- Ms. Fingerhut, you wish to be heard on
that?
MS. FINGERHUT: Your Honor, our position is
that we're not trying to block access to the
records. --
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hear?
(Speaking simultaneously.)
THE COURT: Can you hear? Can the attorneys
MS. FINGERHUT: -- custodian the records and
that he cannot release the records without cou t
THE COURT: Exactly.
Al,R,/yOkay. All right. Anything further . Wyler?
MR. WYLER: No, your Honor. I co ith the
attorneys for the clerk's office that it's impossible
for us to release these records. There's no intent
to hide them or block anythini4,froM the Plaintiff.
THE COURT: Okay. Anything further,
± Ms. Fingerhut?
MS. FINGERHUT: No, your Honor.
THE COURT: And, Ms. Boyagian, anything \
further, ,7)
Il. BOYAGIAN: Nothing further, your Honor.
THE COURT: Okay. I will get an order out
quicly. Thank you, folks so much. And I'll see you
next round. Thanks a lot.
MS. BOYAGIAN: Thank you, your Honor.
MR. WYLER: Thank you, your Honor.
(The proceedings concluded at 10:28 a.m.)
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CERTIFICATE OF REPORTER
I, Sonja M. Reed, Court Reporter, certify that
I was authorized to and did stenographically report the
foregoing proceedings and that the transcript, p
through 19, is a true and complete record of
stenographic notes.
c
tDated this 3rd day of e 020.
Sonja
Court
M. Reed
Reporter
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Def.Ex.#3
Def.Ex.#3
EFTA02733921
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION AG
CASE NO. 50-2019-CA-014681-XXXX-MB
CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST,
Plaintiff/Petitioner
vs.
DAVE ARONBERG,
SHARON R BOCK,
Defendant/Respondents.
ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS COUNT II OF
71.4INTIFF'S FIRST AMENDED COMPLAINT WITH PREJUDICE
THIS CAUSE cant before the Court on Dave Aronberg, as State Attorney of Palm
Beach County's ("State Attorney") and Sharon R. Bock, as Clerk & Comptroller of Palm Beach
County's, ("Clerk") respective Motions to Dismiss Count II of CA Florida Holdings, LLC,
Publisher of the Palm Beach Post's ("The Post") Amended Complaint (DE## 22, 24). This
case is assigned to Division AG, which is
Hafele. However, the undersigned,
over the June 3, 2020 hearing on
implicate records of the PalmEteac
(17<:*\The Pos a **dirt outlet which has heavily reported on the 2006 Palm Beach County criminal
prosec f'3effrey Epstein. Through the instant civil lawsuit, The Post seeks "immediate
resided over by the Honorable Donald
ge of the Fifteenth Judicial Circuit, presided
Attorney and Clerk's Motions as the Motions
County grand jury, over which the ChiefJudge presides.
See § 905.01, Fla. Stat. (201 er careful consideration of the pleadings and the arguments
presented at the hearin yCourt grants the Motions for the following reasons.
Background
acce to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach
County grand jury" in Mr. Epstein's case and alleges that both the State Attorney and Clerk are
"in possession and/or control of [those] documents." (DE # 17, First Amended Complaint at ¶¶
3,4, and 77). Specifically, The Post seeks declaratory judgment as to its rights to obtain the
grand jury testimony in Mr. Epstein's case from the State Attorney and Clerk (Count I) as well as
Page 1 of 7
EFTA02733922
Case No. 50-2019-CA-01468I-XXXX-MB
judgment against the State Attorney and the Clerk pursuant to section 90527, Florida Statutes,
which sets forth the parameters of grand jury secrecy in Florida. (Count II). Both the State
Attorney and the Clerk move to dismiss Count II of The Post's First Amended Complaint,
arguing that that section 90527 does not create a private cause of action. (DEflli 22, 24). The
Court agrees.
Analysis
"In reviewing a motion to dismiss for failure to state a cause of action, the court must accept the
allegations of the complaint as true and construe them in the light most favora the plaintiff."
Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So. 2d 703, 704- 4t1S DCA
2006). The motion should only be granted if the moving party demo trates •t the plaintiff
cannot provide any facts that would support a cause of action. It o ws that if the cause of
action alleged is nonexistent under Florida law, dismissal)s d. Cummings v. Dawson,
444 So. 2d 565, 566 (Fla. 1st DCA 1984) (affirming
by Florida law). • •-•
Section 905.27, Florida Statutes (2019), is titled "Testimony not to be disclosed, exceptions,"
and states:
(I) A grand juror, state attorney, assistant state attorney, reporter, stenographer,
interpreter, or any other person appearing before the grand jury shall not disclose the
testimony of a witness'examined before the grand jury or other evidence received by it
except when required by a court to disclose the testimony for the purpose of:
N
of cause of action not recognized
a. Ascertaining whether it is consistent with the testimony given by the witness before
the court;
b. Determining whether the witness is guilty of perjury; or
c. Furthering justice.
(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or
communicate to any other person, or knowingly to cause or permit to be published,
broadcast, disclosed, divulged, or communicated to any other person, in any manner
whatsoever, any testimony of a witness examined before the grand jury, or the content,
gist, or import thereof, except when such testimony is or has been disclosed in a court
proceeding. When a court orders the disclosure of such testimony pursuant to subsection
(1) for me in a criminal case, it may be disclosed to the prosecuting attorney of the court
in which such criminal case is pending, and by the prosecuting attorney to his or her
assistants, legal associates, and employees, and to the defendant and the defendant's
Page 2 of 7
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Case No. 50-2019-CA-014681-XXXX-MB
attorney, and by the latter to his or her legal associates and employees. When such
disclosure is ordered by a court pursuant to subsection (I) for use in a civil case, it may be
disclosed to all parties to the case and to their attorneys and by the latter to their legal
associates and employees. However, the grand jury testimony afforded such persons by
the court can only be used in the defense or prosecution of the civil or criminal case and
for no other purpose whatsoever.
(3) Nothirg in this section shall affect the attorney-client relationship. A client shall have
the right to communicate to his or her attorney any testimony given by the client to the
grand jury, any matters involving the client discussed in the client's presence before the
grand jury, and any evidence involving the client received by or proffered to the'grand jury
in the client's presence.
(4) Persons convicted of violating this section shall be guilty of a misdemeanor of the first
degree, punishable as provided ins. 775.083, or by fine not exc $51000, or both.
(5) A violation of this section shall constitute criminal content
§ 90527, Fla. Stat. (2019).
As the State Attorney and Clerk argue concedes, section 905.27
makes no express provision for a civil suit or ci Nonetheless, The Post maintains that
it is entitled to seek the grand jury recordsian p cause of action pursuant to the "furthering
justice" exception to grand jury secreeynontained in subsection 90527(I)(c). Therefore, the
limited question for this Court's ccinsiderati on is whether a cause of action under section 905.27
should be judicially implied. ,See Marshy' v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994).
In advocating that it maintain a cause of action against the State Attorney and Clerk
under section 90527, Tbe Post urges the Court to examine three factors "(I) whether the
plaintiff is one of the class for whose special benefit the statute was enacted; (2) whether there
is any ualication, either explicit or implicit, of a legislative intent to create or deny such a
remedy, (3) whether judicial implication is consistent with the underlying purposes of the
legis ve scheme." (Plaintiff's Opposition to Defendant, Dave Aronberg, As State Attorney of
Palm Beach County, Florida's Motion to Dismiss Count II of the First Amended Complaint at
page 13 (citing Fischer v. Metcalf 543 So. 2d 785 (Fla. 3d DCA 1989)). Within these three
factors, The Post recognizes that there is no indication of legislative intent to create a cause of
action, but leans heavily on the benefit factor, arguing that the "furthering justice" exception to
Page 3 of 7
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Case No. 50-2019-CA-014681-XXXX-MB
grand jury secrecy outlined in section 905.27(I)(c) was meant to benefit the public at large, for
which the press acts as a surrogate. The Post's arguments are unpersuasive as to the discrete
issue of whether a private cause of action lies in section 905.27.
To begin with, The Post's reliance on the benefit factor is misplaced. Per the Florida
Supreme Court's 1994 opinion in Murdry, "the question of whether a statute establishes a duty to
take precautions to protect or benefit a particular class of persons is no longer determinative on
the question of whether a cause of action should be recognized?' Sorenson v. Profl
Compounding Pharmacists of W. Pa., Inc., 191 So. 3d 929 (Fla. 2d DCA 2010' citing Murthy, S y
644 So. 2d at 985). Instead, "whether a statutory cause of action should
question of legislative intent?' Horowitz v. Plantation Gen. Hosp.
182 (Fla. 2007). See also QBE Ins. Corp. v. Chalfonte Condo.
541, 551 (Fla. 2012) ("Since Murthy, we have reaffirm:
cause of action should be judicially implied is a quo
Cas. Ins. Co. v. Loftus, 276 So. 3d 849, 851 (Pla.,Ath
i y implied is a
959 So. 2d 176,
Ass'n, Inc., 94 So. 3d
e that whether a statutory
islative intent"); Universal Prop.
A 2019).
As is always the case when a courtsallerta s a legislative intent analysis, the plain
N\
language of the statute is the starting 01a -ending, point. See Horowitz, 959 So. 2d at 182.
"When the statute is clear and unambiewus, courts will not look behind the statute's plain
language for legislative intent or resort to rules of statutory construction to ascertain intent."
Loftus, 276 So. 3d at 851 (Fla.4th DCA 2019))(quoting Daniels v. Fla. Dep't of Health, 898 So.
2d 61, 64 (Ha. 2005)),7However, a single part of a statute should not be read in isolation." Id.
"Instead, 'allparts of a statute must be read together in order to achieve a consistent whole."' Id.
(quo( Fo he v. Longboat Key Beach Erosion Control Dist, 604 So. 2d 452, 455 (Fla. ing1/44by
1992
s The Post acknowledges, "there is a dearth of legislative history surrounding Section
90527 and the The Palm Beach Post was unable to locate any documents capturing any
legislative intent regarding the possibility of a private right of action." (Plaintiff's Opposition to
Defendant, Dave Aronberg, As State Attorney of Palm Beach County, Florida's Motion to
Dismiss Count 11 of the First Amended Complaint at page 14). While the lack of any legislative
Page 4 of 7
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Case No. 50-2019-CA-014681-X X X X-MB
history indicating an intent to create a private right of action is telling, it is not dispositive as the
plain language of the section 90527 is clear an unambiguous and, therefore, controls. Horowitz,
959 So, 2d at 182.
Examining the plain language of section 90527 jn its entirety which requires the Court to
look at more than just the "furthering justice" provision of section 905.27(1)(c) relied on by The
Post, it is clear that the intent of the Legislature in passing section 90527 was to limit, not
facilitate, disclosure of grand jury records. In no uncertain terns, the Legislature provided that
no "person appearing before the grand jury" may "disclose" testimony or evidence presented
except when "required by a court" under certain limited circumstances. § 90527(1), Fla. Stat. In
c — ,
solidifying that its intent was to prohibit disclosure without court perrnssion, the) Legislature
provided that disclosure without a court order is a criminal offe § 905:27(4), Fla. Stat.
Therefore, to the extent section 90527 could be read ass duty on the State Attorney
and Clerk, the duty imposed is one of secrecy, not cl* lo
In sum, there is nothing in the text of sec o1 rom which one can deduce that the
Legislature contemplated a member of the iia, nyone else for that matter, having a private
cause of action to compel the State Au y Clerk to disclose grand jury records. Seed, z e,
to the contrary, section 905.27 prohibits State Attorney and the Clerk (assuming that, as
pleaded by The Post, they have the documents) from disclosing the documents without first
being ordered to do so by the coma]. Reading section 90527 as creating a private cause of
action against the Stateorney and Clerk is, therefore, not only unsupported by the language of
section 905 ut is actually paradoxical to its plain language of the statute. As such, this Court
lacks the to construe the unambiguous language of section 90527 in a way that would
extend ss terms and create a cause of action where none exists. "To do so would be an
---
abrogation of legislative power:' Horowitz. 959 So 2d 176. 182 (quoting Nolo, v. Auld. 450 So
2d 217. 219 (Ha. 1984)1
Conclusion
Based on the foregoing, the Court finds Count 11 of The Post's First Amended Complaint
must be dismissed with prejudice as it pursues a nonexistent cause of action under section
Page 5 of 7
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Case No. 50-2019-CA-01468 I-XXXX-MB
905.27. In arriving at this conclusion, the Court does not suggest The Post has no available
mechanism to obtain a court order granting it access to the grand jury proceedings. The Court
also does not render any opinion as to whether releasing these records is appropriate for the
purpose of "furthering justice" within the meaning of section 905.27. Rather, the Court's
dismissal of Count II is necessitated by precedent and the simple fact that a civil lawsuit against
the State Attorney and Clerk under section 905.27 is not the proper mechanism for The Post to
pursue its goal.
Therefore, it is hereby
,ORDERED AND ADJUDGED that Dave Aronberg, as State Attorney of Palm Beach
County's and Sharon R. Bock, as Clerk & Comptroller of Palm Beach County's', respective
Motions to Dismiss Count 11 of CA Florida Holdings, LLC, Publisher of the Palm Beach Post's
First Amended Complaint are GRANTED and Court 11 o first Amended Complaint is
hereby DISMISSED with prejudice.
DONE AND ORDERED, in West Palm Lb, 1m Beach County, Florida this 8th day
of June, 2020.
.oionarlet.tan o 2:eiy(ty4 /
Kum Benxi Chief .39 ger
50.2019-CA•014681-XXXX-M8 06108/1020
Krista Marx
Chief Judge
DJ The Court n tes that, if there was a court order directing the State Attorney or the Clerk to
disclose records and the State Attorney or the Clerk refused, the remedy for disobeying a court order
is contempt or, in some instances, a mandamus proceedings — not a civil lawsuit.
COPIES TO:
No Address Available No E-mail Address Available
DOUGLAS A. WYLER 961687 GATEWAY BLVD
SUITE 201-I
FERNANDINA BEACH, FL
doug.wylen@comcastnet
Page 6 of 7
EFTA02733927
Case No. 50-20 19-CA-01468 I-XXX X-MB
32034
MICHAEL GRYGIEL 54 STATE STREET
6TH FLOOR
ALBANY, NY 12207
MICHAEL J. GRYGIEL No Address Available
NICOLE R. FINGERHUT POST OFFICE BOX 229
WEST PALM BEACH, FL
33401
NINA D. BOYAJIAN
NINA D. BOYAJIAN
STEPHEN A.
MENDELSOHN, ESQ
No Address Available
1840 CENTURY PARK
EAST
SUITE 1900
LOS ANGELES, CA 90067
5100 TOWN CENTER CI - [Email Redacted]
SUITE 400 [Email Redacted]
BOCA RATON, FL 3 [Email Redacted]
[Email Redacted]
[Email Redacted]
CLERK_E-
SERVICE@MYPALMBEACH
CLERKCOM
ding erhut@mypalmbeac hc lc rk
corn
[Email Redacted]
[Email Redacted]
No E-mail Address Available
Page 7 of 7
EFTA02733928
Def.Ex.#4
Def.Ex.#4
EFTA02733929
THE LAW *HINGES or
a ASSOCIATES. P.A.
ARTHUR I.
milt SCHOLZ I LLC. A ILITY COMPANY Of PROF IONAL ASSOCIATIONS
ATTORNEYS AT LAW
GATEWAY TO AmELIA
901157 GATEWAY DINO.. surre told
Frauuarona BEACS. FEOREDA 32034
TELEPHONE 4904) 261.3693
FAX NO. 0904) 261.707
June 8, 2020
VIA ELECTRONIC & U.S. MAIL
Stephen A. Mendelsohn, Esq.
Greenburg Traurig, P.A.
5100 Town Center Circle, Suite 400
Boca Raton, FL 33486
RE: CA Florida Holdings, LLC v. Dave Aronberg et
Palm Beach County, Case No.: 2019-CA 14
Dear Mr. Mendelsohn:
As you are aware our firm represents the interests r:‘;ave ronberg, as State Attorney of Palm Beach
County, Florida, in the above referenced matter. The purpose of this letter is to demand the voluntary
dismissal of your First Amended Complaint, (the "Complaint"), dated January 17, 2020. This demand
is made pursuant to section 57.105, Florida Statutes.
As you know, Section 57.105 provides:
(I) Upon the court's initiative or motion of any party, the court shall award a
. reasonable attorney's fee, including prejudgment interest, to be paid to the
prevailing party in equal amounts by the losing party and the losing party's attorney
on any claim or defense at any time during a civil proceeding or action in which
the court finds that the losing party or the losing party's attorney knew or should
. have known that a claim or defense when initially presented to the court or at any
[gine before trial:
Oa. Was not supported by the material facts necessary to establish the claim or
defense; or
b. Would not be supported by the application of then-existing law to those
material facts.
RICHARD J. SCHOLZ. P.A.
RICHARD J. SCHOLZ
DOUGLAS A. wYLER. P.A.
DOUGLAS A.wYLER
Today, Judge Marx granted, with prejudice, Defendant Aronberg's Motion to Dismiss Count II of the
Plaintiff's Complaint. Pursuant to the Court's ruling, the Plaintiff's only remaining cause of action
consists of Count I, for Declaratory Relief. Accordingly, we believe that the Complaint filed herein
and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to
establish the claims asserted, and that your claims arc not supported by the application of current law
to said material facts.
EFTA02733930
First and foremost, the Complaint is not supported by the material facts necessary to establish the
claims asserted because neither Defendant Amoberg, nor Thc Office off the State Attorney for`the
Fifteenth Judicial Circuit is in custody or control of the 2006 grand jury materials sought therein.
Simply put, the declaratory relief sought by the Plaintiff, seeks records from my client that are
impossible for him or his office to produce. Accordingly, Defendant Aronberg is not a proper party to
this action because no matter what, he and his office do not have possession, custody, or control of the
requested materials.
In addition to the foregoing material facts that negate the claims asserted in the Complaint, your claims
are also not supported by the application of current law. Specifically, your action for declaratory relief
fails based on the clear, unambiguous statutory language found in Section 905.27(2), Florida Statutes,
which states:
When such disclosure is ordered by a court pursuant to subsection (i) for use in a civil
case, it may be disclosed to all parties to the case and to their attorneys and by the latter
to their legal associates and employees. However, the grand jury testimony afforded
such persons by the court can only be used in (he defense or prV,recutfon q [the civil or
criminal case and for no other purpose whatsoever.
Moreover, even if the Plaintiff were to prevail in the decla , Mr: Arenberg would be unable
to comply with any court order granting. isclosure of l d documents because neither Mr.
Aronberg nor The Office of the State Attorney for. th Judicial Circuit have possession,
custody, or control of the 2006 Epstein grand jury Ater&
Based on the foregoing, if the Complaint is not dismissed within 21 days of the service of this letter,
the enclosed Motion for Attorney's Fees
recovery
will, be filed and we will seek as sanctions, from your client sticeu
and your firm, of the legal eases I rred in defending this frivolous action.
Please govern yourself accordin
Douglas A. Wyler, Esq.
For the Firm
Encl.: Defendant's Motion for Attorneys' Fees
+0
EFTA02733931
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.: 19-CA-014681
DEFENDANT, DAVE ARONBERG'S MOT,124 t ATTORNEY ' FEES
Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, by and
through the undersigned attorneys, moves-the t^ urt, pursuant to Florida Statutes, Section 57.105,
to award him reasonable attorneys> for e defense of Plaintiff's First Amended Complaint,
\ (the "Complaint"), and as grounds therefor, would show that on June 8, 2020, Plaintiff was served
a copy of this Motion, together with a letter from the undersigned attorney, in accordance with
subsection (4) of theabove Statute, demanding dismissal of the Complaint, at least 21 days prior
to the filing of this Motion. In said letter, Defendant's attorney advised Plaintiff of the facts which
establish that the Complaint is without support of the facts or the law.
WHEREFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's
attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion.
EFTA02733932
CERTIFICATE OF SERVICE
I hereby certify that on this day , 2020, the foregoing was electronically filed
via the Florida E-File Portal for electronic service on the parties of record herein.
& WYLER, LLC
/s/ Douglas A. Wyler
Fla. Bar /1. 8249
Arthur I. Esquire
Richard J. Scholz, Esquire
Fla. Bar No.: 0021261
Douglas A. Wyler, Esquire
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-1
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted]
jacobsscbolzlaw@comcastmet
INneys for Defendant
EFTA02733933
Def.Ex.#5
Def.Ex.#5
EFTA02733934
GT GreenbergTraurig
Stephen A. Mendelsohn
Tel [Phone Redacted]
Fax [Phone Redacted]
mendetsohnsegtlaw.com
June 23, 2020
Douglas A. Wyler
Jacob Scholz & Wyler, LLC
961687 Gateway Blvd.
Suite 201-1
Femandina Beach, Fl. 32034
Re: CA Florida Holdings, LLC v. Dave Aronberg et aL
Case No. 2019-CA-014681 C. )
Dear Mr. Wyler:
We are in receipt of your letter oflune 8,2020 with your proposed Fla. Stat. section 57.105 motion.
In your letter and your proposed motion, you assert that CA Florida Holdings, LLC. and the law
finn of Greenberg Traurig, P.A. should be liable for the attomeys' feel to be incurrcd by State
Attomey Aronberg after the date of your letter. Your letter cites to Fla. Stat. section 57.1 05(1)
(a) and (b) for support. As shown below, there is no basis for a Fla. Stat. section 57.105 motion,
and we expect that if the State Attomey vere to make such a motion, the court should deny it.
Your letter omits a citation to selion 57.105(3). Subsection 57.105(3)(a) provides that sanctions
may not be awarded where there is a "good faith argument for the extension, modification or
reversal of existing law or the establishment of new law, as it is applied to the material facts, with
a reasonable expectation of success." We have such a good faith argument.
Contrary to your analysis of Fla. Stat. section 905.27, there are actually three instances where a
court may order the release of grand jury materials. As we argue, the court may order release "in
furtherance of justice." There are kw cases in Florida reviewing this provision and its stope. It is
an open and valid question as to whether the court may order release of grand jury transcripts to
the media, under both the statute and the First Amendment to the US Constitution in furtherance
21justice, The statutory language you tite refers to instances where a person is steking grand jury
Eterfals for use in a civil or in a criminal case. In these limited situations, the statute allows for
such uses and for no other reason. I lowever the statute does not state, as you assen, that where
the media seeks grand jury materials based UpOll its constitutional standing, which the Circuit
Court acknowledgecl at the June 2, 2020 hearing includes The Palm Beach Post, that the statutory
Greenherg Traurig. P.A. I Attnrneys at Law
5100 Town Center Circle I Stile 400 I Bote Raten, Florida 33486 I T +[Phone Redacted] I F +[Phone Redacted]
Albany. Amsterdam. Atlanta. Austin. Berlin gom Raton. Boston. Chicago. Dallas. Dtiailt. Denver. Fort Lauderdale. Itouston. Lis Veps. London: los Angeles.
Meske Cut: Miami M ilen: Minneapolis. Nuh. ille. New Jersey. New York. Norrhem Virginia. Orange eanoty. Orlando. Ph0addphia. Pbomlx. &beramma°.
San Francisco. &mol: Shanghai. Silk011 Valley. Tonahaswe. Tampa. Tel Aviv:T0lon: Warsaw:Washington. D.C. West Palm Deach.Westchester Osunly.
wen.. •.wwwwescs--,..“. iss...a...wen. 'arne:~ s:..aww.s.wswuww. %ara ea...ue r•ni ag# •3 • itears•>," .C.••••,...~ser%
VNAV Sy...ccm
EFTA02733935
Correspondence to Douglas A. Wyler
June 23, 2020
Page 2
use limitation you cite applies. No reported Florida case has addressed this issue and there is a
good faith basis for our view of Fla. Stat. section 905.27
Your letter also argues that sanctions are applicable because the State Attorney has alleged that it
does not possess the Jeffrey Epstein grand jury, transcripts. This allegation is also contained in the
State Attorney's Answer. Assuming that the State Attorney does not currently have physical
possession of the Epstein grand jury materials, which has yet to be demonstrated, this does not end
the matter. The State Attorney was named as a party not simply as a custodian of grand jury
records The State Attorney was named in his official capacity as his office has "as its primary
interest the protection of its grand jury system." [Italics in original.) In re Orand Jury Proceedings,
832 F. 3d 554, 559 (1 I th Circuit 1987). In that case, the US petitioned a state judge to order the
State Attorney to turn over grand jury transcripts. The State Attorney argued against their release
citing to Fla. Stat. section 905.27. Later, a federal grand jury subpoenaed the I3roward County
State Attorney for delivery of state grand jury testimony. The froward -State Attorney advised the
federal court that it would produce the transcripts, therebytmoltrating that while it may not
have physical possession of the materials, he had legal autholity,to obtain and deliver them. It
should also be noted that the State Attorney moved to quash the subpoena arguing that it was
unlawful under Florida law and Fla. Stat. section 905.27. This case indicates that where one seeks
grand jury materials, the relevant State Attorney is anecessary party in order to protect the grand
jury that the Office of State Attorney supervised andltsmake arguments, if need be, against release
of the grand jury materials These are some of the same reasons why the State Attorney was named
in this case.
Also, assuming the State Attorney does not have physical possession of the grand jury materials,
there is nothing in Florida law that prohibits the State Attorney from requesting that the Clerk
provide copies to the State Attorney. Chapter 905, Fla. Stats. does not contain a prohibition against
a State Attorney demand, that, the Clerk grant his office access to grand jury materials, even after a
criminal case has concluded. Upon information and belief, the Clerk's office maintains a log that
tracks release of grand jury materials to the State`Attorney upon its request. Please confirm
whether the State AttOrtetr has accessed grand jury materials from the Clerk's office in, other
instances or that it has'never done so. If the Clerk has such a log, then its contents should be
discoverable,lor subject to Florida Public records laws.
GreenbergM.21one., P.A. I Attorneys at law
?NAY 0011.0301
EFTA02733936
Correspondence to Douglas A. Wyler
June 23, 2020
Page 3
For these reasons, we decline your Fla. Stat. section 57.105 demand that the case be dismissed
against the Office of the State Attorney. We expect that your demand will be withdrawn.
Thank you,
Very truly yours,
is/Stephen Mendelsohn
Stephen Mendelsohn
SAM:Is
ACTIVE 51081659v1
Greenberg Trnurig. Pat. I Attorney.; at Law
4s)
vmwgdarecom
EFTA02733937
Def.Ex.#6
Def.Ex.#6
EFTA02733938
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.: I9-C 14681 Atat ,
g
A'c,IVDEFENDANT, DAVE ARONBERG'S MOT ATTORNEYS' FEES
Defendant, DAVE ARONBERG, as State tt \t o Palm Beach County, Florida, by and Ac i6
its ,through the undersigned attorneys, moves t , rsuant to Florida Statutes, Section 57.105, tc d
to award him reasonable attorneys' or th efense of Plaintiff's First Amended Complaint,
(the "Complaint"), and as groun htte, , would show that on June 8, 2020, Plaintiff was served
( -
a copy of this Motion, together wit a letter from the undersigned attorney, in accordance with
subsection (4) of the above Statute, demanding dismissal of the Complaint, at least 21 days prior
to the filing of ts Motion. In said letter, Defendant's attorney advised Plaintiff of the facts which
establish that[ plaint is without support of the facts or the law.
WHEREFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's
attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion.
EFTA02733939
CERTIFICATE OF SERVICE
I hereby certify that on this 1st day July, 2020, the foregoing was electronically filed via
the Florida E-File Portal for electronic service on the parties of record herein.
SCHOLZ & WYLER, LLC
Is/Douglas A. {Tyler
Arthur I. = Esquire
Fla. Bar IsicT.708249
Richard J. Scholz, Esquire
Fla. Bar No.: 0021261
Douglas A. Wyler, Esquire
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-1
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted]
[Email Redacted]
t Ns,
orikys for Defendant, Dave Aronberg
EFTA02733940
Def.Ex.#7
Def.Ex.#7
EFTA02733941
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. CASE NO.: I9-CA-014681
DAVE ARONBERG, as State Attorney of
Palm Bcach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
An A4
/
Defendants. IIC
Beach County, Florida. CO
AFFIDAVIT OF DAVID ARONV
Before me, the undersigned authority personally appeCd.\httDD ARONBERG, being first duly sworn,
STATE OF FLORIDA
COUNTY OF PALM BEACH
states:
I. My name is David (Dave) Arenberg, and I am the State Attorney for the Fifteenth Judicial
Circuit/Palm Beach County, Florida, since 2013, and a Defendant in the above-captioned matter.
2. Plaintiff is seeking declaratory relief, pursuant to Ma. Stat. 905.21(1)(c) and the Court's
inherent authority, allowing Plain ti f f acce ss to the testimony, minutes, and other evidence presented in 2006
to the Palm Beach County grand jury, (the "Requested Materials"), and to use those materials for the
purpose of informing the public.
3. Despite Plaintiff's above-described action for declaratory relief, neither myself nor the
Office of the Sta‘Attorney for the Fifteenth Judicial Circuit, ("SAO"), is in control, custody, or possession
of the R Aterials.
As such, the declaratory relief sought by the Plaintiff seeks materials that are impossible
fog y office to produce.
5. To be clear, neither myself nor the SAO has the legal authority to obtain and deliver the
Requested Materials.
6. I have repeatedly made these facts evident to the Plaintiff and the public through not only
the pleadings and correspondence in this matter, but also through an office press release and my public
social media accounts.
EFTA02733942
7. Despite the contentions of Plaintiff, neither myself nor the SAO has the authority to
demand that the Clerk grant the SAO access to grand jury materials after a criminal case has concluded.
8. Moreover, during my administration, neither myself nor my office has accessed grand jury
materials from the Clerk's office in this or any other instance.
9. As provided in section 905.17(1), Florida Statutes (2020), the Clerk has sole custody and
possession of the Requested Materials, which can only be released by the Clerk pursuant to an order of the
Court.
FURTHER AFFIANT SAYETH NAUGHT.
STATE OF FLORIDA
COUNTY OF PALM BEACH
Sworn to and subscribed before me this 30
C personally known to me or has shown
•-•
+6s
B
DAVID ARONBERG
2020, by DAVID ARONBERG, who is
as personal identification.
ta Public
Notary's Stamp or S$91.0.,..,:s. cantraganiATosmove0000Enesem
#144)0 1 idaittrial 42°24tandfliell
EFTA02733943
Def.Ex.#8
Def.Ex.#8
EFTA02733944
Filing # 115383434 E-Filed 10/21/2020 04:13:35 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-01468 I -X XXX-MB
Publisher of THE PALM BEACH POST,
DIVISION: AG
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.
PLAINTIFF CA HOLDINGS, liC'S
NOTICE OF DROPPING STATE ATTORNEY, DAVE ARONBERG
Plaintiff, CA HOLDINGS, LLC, pursuant to Fla. C . Ps),1250(b), hereby notifies the parties that
it has dropped State Attorney, Dave Aronberxj t bove case.
* 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 Boulevard Suite 2000
Boca Raton, Florida 33486
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
By: /s/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsohnsOgtlaw.com
smithlegtlaw.com
FLServicelTh.gtlaw.com
EFTA02733945
By: /s/ Michael J Grwiel
MICHAEL J GRYGIEL
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
grvaielm(Thgtlaw.com
By: Isl Nina D. Bovaiian
NINA D. BOYAJIAN
(Admitted Pro Hac Vice)
1840 Century Park East, Suite 1900
Los Angeles California 90067
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
bovaiianneutlaw.com
riveraaleThetlaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 211' day of October, 2020, a true and correct copy of the
foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system, which
,..<iwill send a notice of electronic servi Ilparties of record herein cv)
ACTIVE 53317341v1
/5/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
2
EFTA02733946
Def.Ex.#9
Def.Ex.#9
EFTA02733947
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. CASE NO.: 19-C4t014681
DAVE ARONBERG, as State Attorney of
Beach County, Florida.
Defendants.
CO 'S
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
-n
DEFENDANT DAVE ARONBERC'S AMENDED NOTION FOR ATTORNEYS' FEES
Defendant, DAVE ARONBERG, as State A Palm Beach County, Florida, by and liVi
es‘i „through the undersigned counsel, hereby mov is s norable
c
Court, pursuant to Rule 1.525, Fla.
R. Civ. P. to enter an award of attome es • his favor against Plaintiff, CA FLORIDA
HOLDINGS, LLC, publisher of jhc 9tl BEACH POST, and in support thereof states the
following:
BASIS FOR AWARDING ATTORNEYS' FEES
1. On NovaMber 14, 2019, CA FLORIDA HOLD1NGS,LLC, publisher of the PALM
,
BEACH POST aintiff") filed a complaint against DAVE ARONBERG, as State Attorney of
Palm Beach Cqunty, Florida (the "State Attorney" or "Defendant Aronberg") and SHARON R.
BOCK; as Clerk and Comptroller of Palm Beach County, Florida (the "Clerk"). The basis of the
action was asking the Court to order the State Attorney and the Clerk to disclose the 2006 Jeffrey
Epstein grand jury materials, (the "Requested Materials"), pursuant to § 905.27(1) Fla. Stat.
EFTA02733948
2. On December 6, 2019, the State Attorney filed his Motion to Dismiss, then on
December 13, 2019, the Clerk also filed a Motion to Dismiss. In response, Plaintiff filed its First
Amended Complaint on January 17, 2020, which in addition to its original claim under § 905.27
Fla. Stat. (Count II) added a claim for Declaratory Relief (Count I) that sought an order declaring
that the State Attorney and the Clerk disclose the Requested Materials to Plaintiff for the purpose
of informing the public.
3. On January 24, 2019, both the State Attorney and the Clerk filed their Answer to
the First Amended Complaint and Motion to Dismiss Count II ("Answer/Motion to Dismiss).
Notably, the State Attorney's Answer/Motion to Dismiss asserted its right to attorneys' fees for
defending the action and requested such relief from the Coed.
4. On June 8, 2020, the Court entered its °Met uranting Defendants Motions to
Dismiss Count II of Plaintiff's First Amended Complaint with Prejudice ("Order").
5. Immediately following the Court's Order, on June 8, 2020, the State Attorney,
through the undersigned counsel, served Plaintiff with a demand pursuant to § 57.105 Fla. Stat.,
to voluntary dismiss/with w thkNe / \Fi 01 Amended Complaint and the claims against the State
Attorney, along with a Mo for Attorneys' Fees ("57.105 Demand"). See, Exhibit "A".
Specifically, because Court's Order only Count I of Plaintiffs Amended Complaint
remained, w ught Declaratory Relief under § 86.011, Fla. Stat.
6 ere, in properly serving his 57.105 Demand on Plaintiff, the State Attorney also
t Plaintiff on notice that he would seek sanctions by filing the 57.105 Motion for
Attorneys' Fees if Plaintiff failed to dismiss the remainder of its First Amended Complaint within
21 days of service of the 57.105 Demand and Motion for Attorneys' Fees.
2
EFTA02733949
7. On June 23, 2020, Plaintiff's counsel sent a response to the 57.105 Demand
refusing to withdraw the remainder of the First Amended Complaint. See, Exhibit "8".
8. § 57.105, Florida Statutes states the following:
A motion by a party seeking sanctions under this section must be served but may
not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial isptot
withdrawn or appropriately corrected.
9. Accordingly, after receiving Plaintiff's June 23, 2020, r tJde refusing to
withdraw the remainder of the First Amended Complaint and waitin t quisite "21 days
after service of the motion" the State Attorney's Motion for Attom es was filed with this
Court on July 1, 2020. See, Exhibit "C".
10. Thereafter, on August 18, 2020, the St filed his Motion for Summary
Judgment ("Motion") and proceeded, on Octobe I , to file a Motion to Set Hearing on the
State Attorney's Motion ("Motion to Set"),ailer t me clear that there would be no resolution
of this matter without the Court's interVention.
11. Nonetheless, latetighe same day, rather than setting and participating in a hearing
on the merits as to State Attorney's Motion, Plaintiff filed its Notice of Dropping the State Attorney
("Notice") from the instant ease. See, Exhibit "D". As a consequence of filing its Notice, Plaintiff
has effective( Made arvadmission that its allegations against the State Attorney have no basis in
fact or
An essential distinction between a notice of dropping a party and a voluntary
dismissal is that the former concludes the action as to the dropped party while the latter is generally
utilized to conclude the action in its entirety." Carter v. Lake Coati% 840 So. 2d 1153, 1155 (Fla.
5th DCA 2003).
3
EFTA02733950
13. Specifically, Plaintiff's Notice states: "Plaintiff; [sic), pursuant to Fla. R. Civ. P.
1.250(6), hereby notifies the parties that it has dropped State Attorney, Dave Aronbcrg from the
above case."
14. Rule 1.250(b), Fla. R. Civ. P. states:
(b) Dropping Parties. Panics may be dropped by an adverse party in the manner
provided for voluntary dismissal in rule 1.420(a)(1) subject to the exception stated
in that rule. If notice of lis pendens has been filed in the action against a party so
dropped, the notice of dismissal shall be recorded and cancels the notice of lis
pendens without the necessity of a court order. Parties may be dropped by order of
court on its own initiative or the motion of any party at any st f th action on
such terms as are just.
15. Rule 1.420(a)(1), Fla. R. Civ. P., Voluntary Dismissal tes:
(I) By Parties. Except in actions in which property has been seized or is in the
custody of the court, an action, a claim, or any part of an action or claim may be
dismissed by plaintiff without order of court (A) before trial by serving, or during
trial by stating on the record, a notice of dismissal at any time before a hearing on
motion for summary judgment, or if none is served or if the motion is denied, before
retirement of the jury in a case tried before a jury or before submission of a nonjury
case to the court for decision, or (13) by filing a stipulation of dismissal signed by
all current parties to the action. Unless otherwise stated in the notice or stipulation,
the dismissal is without prejudice, except that a notice of dismissal operates as an
adjudication on the merits when served by a plaint who has once dismissed in
any court an action based on or including the same claim.
16. Notably, "[R]nk 1-1.250(b) expressly incorporates the procedural aspects of Florida
Rule of Civil ProcedutlA20(a)(1) governing voluntary dismissal by providing that parties may
be dropped 'm the manner provided for voluntary dismissal in rule 1.420(a)(1) subject to the
exception stated in that rule.' Siboni 52 So. 3d 779, 780 (Fla. 5th DCA 2010).
17. Likewise, because Rule 1.250(b) specifies that a party is dropped "in the manner
provided for voluntary dismissal in Rule 1.420(a)(1), the Siboni court concluded that "the manner"
includes the same entitlement to costs and attorney's fees which would have been enjoyed had the
dismissal occurred entirely under Rule 1.420(a)(1). Id. at 781.
4
EFTA02733951
18. Accordingly, the Siboni court held that a "party dropped from litigation under rule
1.250(b) is subject to the time limitation contained in rule 1.525 governing service of a motion
seeking a judgment for costs and attorney's fees." Id.
19. Although Plaintiff filed its Notice the claims asserted by Plaintiff have been, since
the filing of its initial complaint, completely without support of the facts or the law. At their very
core, all of Plaintiff's claims arc based on the presumption that the State Attorney has the authority
to disclose the Requested Materials. Nonetheless, Section 905.17(1), Florida Statutes makes clear
that Plaintiff's Requested Materials can only be released by the Clerk pursuant-IC a court order.
The stenographic records, notes, and transcriptions Ede by the &nut reporter or
stenographer shall be filed with the clerk who shall keep them in a scaled container
not subject to public inspection. The notes, r ords, and transcriptions are
confidential and exempt from the provisions o 9.07a) and s. 24(a), Art I of
the State' Constitution and shall be released only on request by a grand
jury for use by the grand jury or on ordermf the urt pursuant to s. 905.27.
Section 905.17(1), Florida Statutes (2020).
20. The State Attorney objettion to the Clerk producing and disclosing the
Requested Materials should the Court grant an order to that effect, however, it is impossible for
the State Attorney to comply with the relief sought by Plaintiff in its remaining claim for
declaratory relief as he does not possess or control the Requested Materials and is statutorily barred
from any disclosure.
21. Although the State Attorney was prepared to make his argument to the Court,
Plaintiff decided instead to drop him as a party. Despite Plaintiff's decision, the Florida Rules of
Civil rocedure and the above authorities make clear that because Rule 1.250 specifies that a party
is dropped "in the manner provided for voluntary dismissal in Rule 1.420(a)(1)," it therefore
"operates as an adjudication on the merits." See, Siboni v.IM, 52 So. 3d 779, 781 (FM. 5th
DCA 2010); Rule 1.420(a)(I) Fla. R. Civ. P.
5
EFTA02733952
22. Consequently, the filing of Plaintiff's Notice triggered Rule 1.525, Fla. R. Civ. P.
and therefore:
Under [§ 57.105], the legislature has expressed its unequivocal intent that where a
party files a meritless claim, suit or appeal, the party who is wrongfully required to
expend funds for attorneys' fees is entitled to recoup those fees.
=County Conservation Alliance v. =County, 73 So. 3d 856, 857 (Fla. 1st DCA 2011)
(finding that "Courts are not at liberty to disregard the legislative mandate that courts shell impose
sanctions in cases without foundation in material fact or law. The word "shall" in § 57.105, Fla.
Stat., evidences the legislative intent to impose a mandatory penalty to-discourage baseless claims,
by placing a price tag on losing parties who engage in these activities. Section 57.105 expressly
states courts "shall" assess attorney's fees for bringing, r failing to dismiss, baseless claims or
defenses.").
23. In fact, "Section 57.105(1) cloak explicitly confers upon the trial court the
authority to award attorney's fees to the prevailing party upon the court's initiative, if `the court
finds that the losing party .. . knew or should have known that a claim or defense when initially
presented to the court or at any time /before trial. . . [w]as not supported by the material facts
necessary to establish the clairgflor defense." v. S 47 So. 3d 320, 324 (Fla. 2d DCA
2010).
24. simple fact of the matter is that Plaintiff failed to withdraw its Amended
Comp i st the State Attorney within the 21-day period provided for in section 57.105(4),
iland re the State Attorney was permitted to file his 57.105 Motion for Attorneys' Fees as
sanctions.
25. Furthermore, based on the impossible nature of Plaintiff's demand of the State
Attorney, it was proper to demand withdrawal of Plaintiff's remaining claim for declaratory relief
6
EFTA02733953
and serve the 57.105 Motion for Attorneys' Fees due to Plaintiff's claim lacking any basis in fact
or law. Again, neither the State Attorney nor his office has possession, custody or control of the
Requested Materials. Likewise, the State Attorney has no objection, and never has had any
objection, to the Clerk releasing the records sought by Plaintiff, as disclosure of the Requested
Materials sought by Plaintiff lies solely within the providence of the Clerk pursuant to an order of
the Court.
26. Consequently, the State Attorney is entitled to recover is reasonable
attorneys' fees in defending this suit by virtue of 57.105, Florida Stark
REASONABLENESS AND AMOUNT OF ATTORNEYS' FEES
27. From the service of the 57.105 Demand to the date of this motion, the attorneys for
the State Attorney have rendered 42.2 hours of legal services for a total amount of S18,275.00 in
defending this action. See time sheets detailing: the amount of hours by each timekeeper, the
,— 'N
\.. timekeeper's hourly rate, and a descriptiOn\of th tasks done during those times, on attached
Exhibit "E". Of that amount, the _undcAigned has been paid $0.00 as the engagement with the
State Attorney is on a pure contingeherfee basis. The undersigned expects to incur an additional
4.0 hours at $425.00 an hour in preparing for and attending the hearing on attorneys' fees. Thus,
the total amount of hourly attorneys' fees the State Attorney is seeking is 46.2 hours for a total of
$19,975.00. further set forth below, the State Attorney also seeks a multiplier of 2.0, which
when p kes the grand total attorneys' fees as sanctions sought herein $39,950.00.
An Affidavit of Attorneys' Fees is attached hereto as Exhibit "F", which details
and brcaks down the attorneys' fees sought herein.
7
EFTA02733954
29. The State Attorney would offer the following facts and arguments as they relate to
the factors promulgated in Rule 4-1.5 of the Rules Regulating the Florida Bar and Florida Patient's
Compensation Fund v. M, 472 So. 2d 1145 (Fla. 1985):
Factor Facts and Arguments Al
(A) the time and labor
required, the novelty,
complexity, and difficulty
of the questions involved,
and the skill requisite to
perform the legal service
properly
The time involved by counsel was substantial, consumkg nearly
75 hours of legal work. Moreover, the issues in controversy were
novel and complex in that Plaintiff sought to create a new private
statutory cause of action under Florida Statute § 905.27, implicated
several 1st Amendment issues, and further sought declaratory
relief pursuant to said Statute. Finally, this litigation has been
ongoing for nearly a year and required s el and knowledge in these
areas of the law. \,)••.,"
(B) the likelihood that the
acceptance of the
particular employment
will preclude other
employment by the lawyer
Because of the amount of tithe iniolved in this litigation and
considering the relative small size of the firm representing the State
Attorney, the undersigned attorneys were forced to turn away or
delay representing other clients especially during critical stages of
the litigation, due to time required in the instant matter.
(C) the fee, or rate of fee,
customarily charged in the
locality for legal services
of a comparable or similar
nature
The base fees consisting of $425.00/hour for Mr. Wyler's services
and $475.00/hour for Mr. services are reasonable for
lawyers in their respective communities possessing equal
experience and skill.
(O) the significance of, or
amount involved in, the
subject matter of the
representation, and the
results obtained "I i,44„,
The outcome of this case is of great public significance to the State
Florida as it pertains to the disclosure of grand jury records and
the le of the State Attorney concerning such disclosure. Here,
results obtained were the maximum sought by Defendant
Aronberg as he was dismissed from the case, albeit not within the
time constraints of the safe-harbor provision within § 57.105, Fla.
Stat.
(E) the timAtations
imposed by the client or
by the circumstances and,
as between attorney and
client, any additional or
special time demands or
requests of the attorney by
the client
There were not any extraordinary limitations imposed by the client,
however, Defendant Aronberg expected and received zealous
representation, with the desire that the case be dispensed of quickly
and efficiently.
(F) the nature and length
of the professional
relationship with the client
As general counsel for the FPAA the undersigned counsel has
represented Defendant Aronberg since the beginning of his tenure
as State Attorney in civil matters throughout the State of Florida as
well as matters before the Florida Legislature.
8
EFTA02733955
(G) the experience,
reputation, diligence, and
ability of the lawyer or
lawyers performing the
service and the skill,
expertise, or efficiency of
effort reflected in the
actual providing of such
services
(H) whether the fee is
fixed or contingent, and, if
fixed as to the amount or
rate, then whether the
client's ability to pay
rested to any significant
degree on the outcome of
the representation.
This representation required experience in a field available to few
lawyers, which included defending the State Attorney from claims
of a media entity and lawyers from multiple states regarding the
release of information with a nationwide interest. Accordingly, the
undersigned counsel conducted the representation with skill and
efficiency wherein Defendant Aronberg was dismissed from the
action prior to any hearing on the merits before the court.
The fee arrangement herein was entirely contingent; wherein
obtaining a fee was conditioned upon prevailing nod-0litnining an Accs?;order awarding fees.
JUSTIFICATION FOR MULTIPLIER
30. Defendant Aronberg was able to proceed with this litigation only if counsel would
receive a court order awarding contingency based attorneys' fees upon achievement of a successful
7— \ - ;\ . outcome in this case. See, Exhibit "G". Given th‘land the fact that counsel risked a total of 74.8
hours of work for no pay, of w hours is subject to the 57.105 Demand, Defendant
Aronberg submits that multiplier would be appropriate in this case. Based upon the hours
expended, the hourly rates anda2.0 multiplier, Defendant Aronberg respectfully requests an award
of attorneys'
(
fees as sanctions as stated herein.
31. ' h C4c regard to the application of a multiplier, the court must analyze the three
factory s in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990):
whether the relevant market requires a contingency fee multiplier to obtain
mpetent counsel; (2) whether the attorney was able to mitigate the risk of
nonpayment in any way; and (3) whether any of the factors set forth in are
applicable, especially the amount involved, the results obtained, and the type o fee
arrangement between the attorney and his client.
See, Citizens Prop. Lis. Corp. v. Pulloquinga, 183 So. 3d 1134 (Ha. 3d DCA 2015).
9
EFTA02733956
32. Here, as to the first factor there was no other counsel in the relevant market who
would agree to represent Defendant Aronberg under the contingency fee agreement needed due to
the financial situation of the Office of the State Attorney as a public entity funded entirely by the
taxpayers of the State of Florida. Although "Risk Mitigation" within the Florida Department of
Financial Services and the Office of the Attorney General indeed represent the State Attorney in
l, ,,,
k
some instances, this case was not picked up by either and Defendant Aronber 4,12Thicneeding
representation by other, private counsel. Although the undersigned coon 's law firm arc
General Counsel for the Florida Prosecuting Attorneys' Association; the j AN') the instant
matter did not fall within the scope of representation for the FPAA th required a separate
engagement between Defendant Aronberg and the understgned counsel. Accordingly, the
undersigned counsel and his law firm agreed to represent Defendant Aronberg on a contingency
fee basis and to try the case to final judgment considering that there was no other counsel willing
to represent Defendant Aronberg on such4ferck
33. With respect to the O rs to be considered in applying a multiplier as set
forth in Quanstront, here Dc end berg was unable to mitigate against non-payment of fees
because as a purely taxpaye ypded entity, the Office of State Attorney had no other means by
which to pay the undersigned counsel. Additionally, Defendant Aronberg meets each of the
individual Rowe factors as set forth in the table located above on pages 8-9. Accordingly, based
on the fdregoing the application of a multiplier herein is proper. In this vein, the court set
guidelines for the size of a multiplier, as follows:
Based on our review of the decisions of other jurisdictions and commentaries on
the subject, we conclude that in contingent fee cases, the lodestar figure calculated
by the court is entitled to enhancement by an appropriate contingency risk
multiplier in the range from 1.5 to 3. When the trial court determines that success
was more likely than not at the outset, the multiplier should be 1.5; when the
likelihood of success was approximately even at the outset, the multiplier should
10
EFTA02733957
be 2; and, when success was unlikely at the time the case was initiated, the
multiplier should be in the range of 2.5 to 3.
Florida Patient's Compensation Fund v. M, 472 So. 2d 1145 (Fla. 1985).
34. Additionally, the Quarts from court confirmed and modified the approach, as
follows:
However, we find that the multiplier in should be modified as follows: If the
trial court determines that success was more likely than not at the outset, it may
apply a multiplier of I to 1.5; if the trial court determines that the likelihood of
sucrrss was approximately even at the outset, the trial judge may apply a multiplier
of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset
of the case, it may apply a multiplier of 2.0 to 2.5. Accordingly, our Rowe decision
is modified to allow a multiplier from I to 2.5.
Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 24 S28, -834 (Fla. 1990). Thus, based
upon all of the foregoing factors, Defendant Aronberg respectfully submits that a multiplier of 2.0
is appropriate for this representation.
CERTIFICATION OF GOOD FAITH EFFORT TO RESOLVE
The undersigned certifies that ,a good faith effort was made to resolve the issues raised in
this motion by agreement of the(PartieS./ The parties were unable to resolve by agreement the
issues of entitlement to fees or the amount of fees.
WHEREFORFs, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, prays that this Honorable Court will enter an Order awarding Defendant Aronberg
his reasonable, attorneys' fees with a multiplier of 2.0 against the Plaintiff, CA FLORIDA
HOLth LC, publisher of the PALM BEACH POST, in the amount of $39,950.00.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of November, 2020, a copy of the foregoing
Defendant, Dave Aronberg's Amended Motion for Attorneys' Fees has been electronically filed
with the Florida E-File Portal for e-service on all parties of record herein.
11
EFTA02733958
SCHOLZ & WYLER, LLC
Is/ Douglas A. Wyler
Arthur!. Esq.
Ha. Bar No.: 10249
Richard J. Scholz, Esq.
Fla. Bar No.: 0021261
Douglas A. Wyler, Esq.
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-1
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted] Fax
Primary: [Email Redacted]
Attorneys for Defdu, Dave Aronberg
AS ?
12
EFTA02733959
EXHIBIT "A"
EXHIBIT "A"
EFTA02733960
Friday, September 18, 2020 at 11:09:24 Eastern Daylight Time
Subject: SERVICE OF COURT DOCUMENT; CASE NO. 2019-CA-014681; CA FLORIDA HOLDINGS, LLC V.
DAVE ARONBERG ET AL.
Date: Monday, June 8, 2020 at 3:58:58 PM Eastern Daylight Time
From: Douglas Wyler
. To: '[Email Redacted]', [Email Redacted], [Email Redacted], [Email Redacted],
[Email Redacted], [Email Redacted]
Attachments: 2020-06-08 Aronberg 57.105 Demand and Motion for Attorneys' Fees.pdf
Please see attached and below in this matter.
Court: Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Bedeteeitty,
Florida
Case No: Case No. 2020-CA-014681
Plaintiff: CA Florida Holdings, LLC
O SDefendant: Dave Aronberg
Title of Documents
Served:
• Fla. Stat. § 57.105 Demand Letter
• Defendant, Dave Aronberg's Motion Fees
Sender's Name and
Telephone Number:
Douglas Wyler
([Phone Redacted]
Sincerely,
ki iiWyler, Esq.
Scholz & Wyler, LLC
961687 Gateway Blvd., STE 201.1
Fernandina Beach, FL 32034
[Phone Redacted]
[Phone Redacted] (fax)
tosigalerOcomcast.net
Please be advised that this e-mail y files transmitted with it are confidential attorney-client
communication or may otherwise be privileged or confidential and are intended solely for the Individual or
entity to whom they are addressed. If you are not the intended recipient, please do not read, copy or
retransmit this communication but destroy it Immediately. Any unauthOrized dissemination, distribution or
copying of this coMffiction is strictly prohibited.
Page 1 of I
EFTA02733961
SCHOLZ & WYLER, LLC.
m il LAW OFFICES Ot
AS
ARTHUR I.
A LIMA I L DILITY COMPANY OF PROFESSIONAL ASSOCIATIONS
ATTORNEYS AT LAW
GATEWAY TO AMELIA
SOISS7 GATEWAY BLVD.. SUITE 201I
FERNANDWA BEAM FLORID' A. 32034
TELEPHONE (1104Y 2031,3693
'ixNO.([Phone Redacted]
June 8, 2020
VIA ELECTRONIC & U.S. MAIL
Stephen A. Mendelsohn, Esq.
Greenburg Traurig, P.A.
5100 Town Center Circle, Suite 400
Boca Raton, FL 33486
6rRE: CA Florida Holdings, LLC v. Dave Aronberg et
Palm Beach County, Case No.: 2019-CA- 14
Dear Mr. Mendelsohn:
As you are aware our firm represents the interests‘ptve ronberg, as State Attorney of Palm Beach
County, Florida, in the above referenced matter. The purpose of this letter is to demand the voluntary
dismissal of your First Amended Complaint, (the "Complaint"), dated January 17, 2020. This demand
is made pursuant to section 57.105, Florida Statutes.
RICHARD 4. SCHOLZ. P.A.
RICHARD J. SCHOLZ
DOUGLAS A. WYLER. P.A.
DOUGLAS A. WYLZR
As you know, Section 57.105 provides:
(I) Upon the courts initiative or motion of any party, the court shall award • a
reasonable attorney's fee, including prejudgment interest, to be paid to the
prevailing party in equal amounts by the losing party and the losing party's attorney
on any claim or defense at anytime during a civil proceeding or action in which
the court finds that the losing party or the losing party's attorney knew or should
have known that a claim or defense when initially presented to the court or at any
time before trial:
a. Was not supported by the material facts necessary to establish the claim or
defense; or
b. Would not be supported by the application of then-existing law to those
material facts.
Today, Judge Marx granted, with prejudice, Defendant Aronberg's Motion to Dismiss Count II of the
Plaintiff's Complaint. Pursuant to the Court's ruling, the Plaintiff's only remaining cause of action
consists of Count I, for Declaratory Relief. Accordingly, we believe that the Complaint filed herein
and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to
establish the claims asserted, and that your claims are not supported by the application of current law
to said material facts.
EFTA02733962
First and foremost, the Complaint is not supported by the material facts necessary to establish the
claims asserted because neither Defendant Aronberg, nor The Office of the State Attorney for the
Fifteenth Judicial Circuit is in custody or control of the 2006 grand jury materials sought therein.
Simply put, the declaratory relief sought by the Plaintiff, seeks records from my client that are
impossible for him or his office to produce. Accordingly, Defendant Aronberg is not a proper party to
this action because no matter what, he and his office do not have possession, custody, or control of the
requested materials.
In addition to the foregoing material facts that negate the claims asserted in the Complaint, your claims
are also not supported by the application of current law. Specifically, your action for declaratory relief
fails based on the clear, unambiguous statutory language found in Section 905.27(2), Florida Statutes,
which states:
When such disclosure is ordered by a court pursuant to subsection (I) for use in a civil
case, it may be disclosed to all parties to the case and to their attorneys and by the latter
to their legal associates and employees. However the grand 'ury testimony afforded 4 48.O)
such persons by the court can only be used in the defense or p securon of the civil or
crIndnal case and for no other purpose whatsoever.
Moreover, even if the Plaintiff were to prevail in the decla
to comply with any court order granting disclosure of t
Aronberg nor The Office of the State Attorney for the
custody, or control of the 2006 Epstein grand jury records._
, Mr. Aronberg would be unable
d documents because neither Mr.
th Judicial Circuit have possession,
Based on the foregoing, if the Complaint is not dismissed within 21 days of the service of this letter,
the enclosed Motion for Attorney's Fees will be filed and we will seek as sanctions, from your client
and your firm, recovery of the legal eases incurred in defending this frivolous action.
Please govern yourself accordin
Douglas A. Wylcr, Esq.
For the Firm
End.: Defendant's Motion for Attorneys' Fees
EFTA02733963
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants.
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. CASE NO.: 19-CA-O14681
CO
ct)DEFENDANT, DAVE ARONBERG'S MOTION R ATTORNEYS' FEES \ \`. /
Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, by and
. / through the undersigned attorneys, moves the Court, pursuant to Florida Statutes, Section 57.105,
to award him reasonable attorneyefees for the defense of Plaintiff's First Amended Complaint,
- —
(the "Complaint"), and as grounds therefor, would show that on June 8, 2020, Plaintiff was served
a copy of this Motion, together with a letter from the undersigned attorney, in accordance with
subsection (4) of the above Statute, demanding dismissal of the Complaint, at least 21 days prior
to the filing of this Motion. In said letter, Defendant's attorney advised Plaintiff of the facts which
establish that the Complaint is without support of the facts or the law.
WHEREFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's
attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion.
EFTA02733964
CERTIFICATE OF SERVICE
I hereby certify that on this day , 2020, the foregoing was electronically filed
via the Florida E-File Portal for electronic service on the parties of record herein.
SCHOLZ & WYLER, LLC
/s/ Douglas A. Wyler
Arthur I.= Esquire
Fla. Bar No.: 108249
Richard J. Scholz, Esquire
Ha. Bar No.: 0021261
Douglas A. Wyler, Esquire
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-I
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted]
[Email Redacted]
l imeys for Defendant
EFTA02733965
EXHIBIT "B"
Cog
EXHIBIT "B"
EFTA02733966
GT GreenbergTraurig
Stephen A. Mendelsohn
Tel [Phone Redacted]
Fax [Phone Redacted]
me ride IsohnsHigtlaw, corn
June 23, 2020
Douglas A. Wyler
Jacob Scholz & Wyler, LLC
961687 Gateway Blvd.
Suite 2014
Femandina Beach, Fl. 32034
Re: CA Florida Holdings, LLC v. Dave Aronberg et al.
Case No. 2019-CA-014681
Dear Mr. Wyler:
A Cos
We are in receipt of your letter of June 8, 2020 with y rd Fla. Stat. section 57.105 motion.
In your letter and your proposed motion, you Florida Holdings, LW and the law
firm of Greenberg Traurig, P.A. should be Iii e attorneys' fees to be incurred by State
Attorney Aronberg after the date of your le u etter cites to Fla. Stat. sections 57.105(1)
(a) and (b) for support. As shown below, is basis for a Fla. Stat. section 57.105 motion,
and we expect that if the State Attomglcre to ake such a motion, the court should deny it.
Your letter omits a citation to
may not be awarded where
reversal of existing law or
a reasonable expectation of s
5(3). Subsection 57.105(3Xa) provides that sanctions
good faith argument for the extension, modification or
ment of new law, as it is applied to the material facts, with
We have such a good faith argument.
Contrary to your anal la. Stat. section 905.27, there are actually three instances where a
court may orde a rel of grand jury materials. As we argue, the court may order release "in
furtherance J ce." There are few cases in Florida reviewing this provision and its scope. It is
an open id tion as to whether the court may order release of grand jury transcripts to
the m i both the statute and the First Amendment to the US Constitution in furtherance
of juste tatutory language you cite refers to instances where a person is seeking grand jury
m r use in a civil or in a criminal case. In these limited situations, the statute allows for
such s and for no other reason. However, the statute does not state, as you assert, that where
the media seeks grand jury materials based upon its constitutional standing, which the Circuit
Court acknowledged at the June 2, 2020 hearing includes The Palm Beach Post, that the statutory
Greenberg Trourig. P.A. I Attorneys at law
5100 Town Center Cada I Suite 400 I Boca Raton, Florida 33486 I T[Phone Redacted] I F +[Phone Redacted]
Albany. Amsterdam. Atlanta. Austin. Berlin: Boos Raton. Boston. Ctkago. Dallas. Delaware. Denver. Fort Lauderdale. Houston. las Vega London: Los Angeles.
Mexico City: Miami. Milan: Minneapolis. Nashville. New Jersey. New York. Northern Virginia. Orange County. Orlando. Philadelphia. Pheenis_ Sacra mento.
Son Francisco. Seoul`. Shanghai. Silicon Wiley.Tellahassee. Tampa. Tel Joie:Takeo: Warsaw: Washington, D.C. West Palm Beach.Westehester County.
ester .6.4.01 Hp. rons gen 'o....grwioa4M4•IICQuit.0"M'Am•Voari.i....., 04,1rytha Vlago•sra -Ow.0•Ste r....1
www.0tbw.Com
EFTA02733967
Correspondence to Douglas A. Wyler
June 23, 2020
Page 2
use limitation you cite applies. No reported Florida case has addressed this issue and there •is a
good faith basis for our view of Fla. Stat. section 905.27
Your letter also argues that sanctions arc applicable because the State Attorney has alleged that it
does not possess the Jeffrey Epstein grand jury transcripts. This allegation is also contained in the
State Attorney's Answer. Assuming that the State Attorney does not currently have physical
possession of the Epstein grand jury materials, which has yet to be demonstrated, this dOes not end
the matter. The State Attorney was named as a party not simply as a custodian of grand jury
records. The State Attorney was named in his official capacity as his office has "as its primary
interest the protection of its grand jury system." [Italics in original.] In re ()rand Jury Proceedings,
832 F. 3d 554, 559 (1 l' h Circuit 1987). In that case, the US petitioned a state judge to order the
State Attorney to turn over grand jury transcripts. The State Attorney argued against their release
citing to Fla. Stat. section 905.27. Later, a federal grand jury subpoenaed the Broward County
State Attorney for delivery of state grand jury testimony. The Broward State Attorney advised the
federal court that it would produce the transcripts, thereby demonstrating that while it may not
have physical possession of the materials, he had legal, atithority to obtain and deliver them. It
should also be noted that the State Attorney moved to quash the subpoena arguing that it was
unlawful under Florida law and Fla. Stat. section 905.27. This case indicates that where one seeks
grand jury materials, the relevant State Attorney is a necessary party in order to protect the grand
jury that the Office of State Attorney supervised and to make arguments, if need be, against release
of the grand jury materials. These are some of the same reasons why the State Attorney was named
in this case.
Also, assuming the State Attorney does not have physical possession of the grand jury materials,
there is nothing in Florida law that prohibits the State Attorney from requesting that the Clerk
provide copies to the State Attorney. Chapter 905, Fla. Stats. does not contain a prohibition against
a State Attorney demand that the Clerk grant his office access to grand jury materials, even after a
criminal case has concluded. Upon information and belief, the Clerk's office maintains a log that
tracks release of grand jury materials to the State Attorney upon its request. Please confirm
whether the State Attorney has accessed grand jury materials from the Clerk's office in other
instances or that it has'never done so. If the Clerk has such a log, then its contents should be
discoverable, or bject to Florida Public records laws.
Greenberg Traurig, P.A. 1 Attorneys at raw
www.gasvcom
EFTA02733968
Correspondence to Douglas A. Wyler
June 23, 2020
Page 3
For these reasons, we decline your Fla. Stat. section 57.105 demand that the case be dismissed
against the Office of the State Attorney. We expect that your demand will be withdrawn.
Thank you,
Very truly yours,
/s/Stephen Mendelsohn
Stephen Mendelsohn
SAM:Is
ACTIVE51001659v1
Greenberg11"mila, P.A.I Attorneys at taw
04
wwwutlaw.com
EFTA02733969
EXHIBIT "C"
+6s
EXHIBIT "C"
EFTA02733970
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. CASE NO.: 19-CA-014681
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants.
DEFENDANT, DAVE ARONBERG'S MOTIONT
CO
ATTORNEYS' FEES
Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, by and
through the undersigned attorneys, moves the Court, pursuant to Florida Statutes, Section 57.105,
to award him reasonable attorneys' frees for the defense of Plaintiff's First Amended Complaint,
(the "Complaint"), and as grout¢e refix, would show that on June 8, 2020, Plaintiff was served
a copy of this Motion, tog er with a letter from the undersigned attorney, in accordance with
subsection (4) of the 's *bps! Statute, demanding dismissal of the Complaint, at least 21 days prior
to the filing of this Motion. In said letter, Defendant's attorney advised Plaintiff of the facts which
establish that the Complaint is without support of the facts or the law.
WHEREFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's
attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion.
EFTA02733971
CERTIFICATE OF SERVICE
I hereby certify that on this 1st day July, 2020, the foregoing was electronically filed via
the Florida E-File Portal for electronic service on the parties of record herein.
~SCHOLZ & WYLER, LLC
Zs/ Douglas A. Wyler
hur I.
Ha. Bar Bar N.18249
Art
Richard J. Scholz, Esquire
Fla. Bar No.: 0021261
Douglas A. Wyler, Esquire
Ma. Bar No.: 119979
961687 Gateway Blvd., Suite 201-1
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted]
[Email Redacted]
to eys for Defendant, Dave Aronberg
EFTA02733972
EXHIBIT "D"
cos
EXHIBIT "D"
EFTA02733973
Filing 115383434 E-Filed 10/21/2020 04:13:35 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-XXXX-MB
Publisher of THE PALM BEACH POST,
DIVISION: AG
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.
PLAINTIFF CA HOLDINGS, LLC'S
NOTICE OF DROPPING STATE ATT N Y DAVE ARONBERG
Plaintiff, CA HOLDINGS, LLC, pursuant to Fla. . -ti . 0(b), hereby notifies the parties that ASIlic
it has dropped State Attorney, Dave Aronberg fttryn above case.
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 Boulevard Suite 2000
Boca Raton, Florida 33486
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
By: /s/ Steuhen A. Mendelsohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsolinstininlaw.com
sm jib itavlaw.com
ILServiceriPutlaw.com
EFTA02733974
By: /s/ Michael JGrveiel
MICHAEL .1 GRYGIEL
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
[Email Redacted]
By: /s/ Nina D. Bovaiian
NINA D. BOYAJIAN
(Admitted Pro Hac Vice)
1840 Century Park East, Suite 1900
Los Angeles California 90067
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
bovaiianneetlaw.com -
rivemakihatlaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21' Nber, 2020, a true and correct copy of the
foregoing has been filed with the Clerk of ng the State of Florida e-filing system, which
will send a notice of electronic services all p tes of record herein
os)
(
O
S °
ACTOVE6331730v1
/s/ &when A. Mendelsohn
STEPHEN A..MENDELSOHN
2
EFTA02733975
EXHIBIT "E"
Cog
EXHIBIT "E"
EFTA02733976
1.1 Scholz & Wyler, LLC
Gateway Blvd., Suite 2011
Femandina Beach, FL 32034
United States
[Phone Redacted]
Dave Aronberg
Aronberg (SAO15) adv. CA Florida Holdings, LLC
Time Entries
Scholz & Wyler, LLC
Balance $32,440.00
Invoice # 00307
Invoice Date ANdvember 6, 2020
Payment Ter
Due Date
Date EE Activity Description Rate Hours Line Total
11/2612019 DW Review Initial review of summons and complain. $425.00 1.5 $637.50
,11/26/2019 DW Review Reviewed motion for pro luc *a and Judge
Haft*? order graiging $425.00 0.2 $85.00
11/26/2019 DW Teleconference Teleconference ve/ Client, re: response to lawsuit $425.00 0.5 $212.50
11/26/2019 OW Draft Draftedengeopment letter and sent to client $425.00 0.3 $127.50
11/26/2019 DW Review Reviewed 150 circuil local rules $425.00 1.0 $425.00
11/26/2019 AU Review Mitlal review of complaint $475.00 1.0 $475.00
11/26/2019 AU Meeting %Wog w/ DAW to discuss lawsuit and strategy $475.00 0.5 $237.50
112612019 OW Meeting T Meeting w/ AIJ to discuss lawsuit and strategy $425.00 0.5 $212.50
11/26/2019 AU Teleconference Teleconference w/ Client, re: response to lawsuit $475.00 0.5 $237.50
12/02/2019 OW Resergch &
Preparation Research and prep for Motion to dismiss $425.00 2.0 $850.00
12/02/2019 13W,,,,, Draft 1st Draft motion to dismiss $425.00 1.0 $425.00
12102/2019 WIt1/41/41/4C Teleconference w/ Giant, draft motion to Teleconference re: d mo
dismiss $425.00 0.5 $212.50
12/02/2019 AIJ Review Reviewed 1s1 Drell MTDismiss $475.00 0.3 $142.50
12/02/2019 AU Teleconference $47500 Teleconference w/ diem, re: draft motion to
dismiss
0.5 $237.50
12/03/2019 AU Meeting Meeting w/ DAW, re: motion to dismiss $475.00 0.2 $95.00
12/03/2019 DW Meeting Meeting w/ AU, re: MTDismiss 9.2 $85.00
12/06/2019 DW Draft Completed final draft of motion to dismiss; filed with
Court $425.00 0.7 $297.50
12/06/2019 DW Teleconference Spoke w/ client, re: final draft of motion to dismiss $425.00 0.5 $212.50
EFTA02733977
12/06/2019 DW Teleconference Spoke with Clerk's attorney, re: response $425.00 0.5 $212.50
12/06/2019 AU Review Reviewed final draft MTDismiss $475.00 0.2 $95.00
12/06/2019 AU Review Reviewed Clerk's MTDismiss $475.00 02 $95.00
12/13/2019 DW Review Reviewed Clerk's Motion to Dismiss $425.00 0.5 $212.50
01/16/2020 DW Review Reviewed Order Setting Hearing on Defendants'
MTDismiss 5425.00 0.1 $42.50
01/16/2020 OW Review Reviewed motion for pro hac vice $425.00 0.1 $42.50
01/17/2020 DW Review Reviewed Prs Amended Complaint $425.00 1.0 $425.00
01/17/2020 OW Teleconference Spoke with client, re: Amended Complaint $425.00 0.5 $212.50
01/17/2020 OW Review Reviewed Pl's notice of filing $425.00 "I, 0.1 542.50
01/20/2020 AU Review Reviewed Pt's Am. Gomel $475.00 --." 0.3 , $142.50
01/21/2020 OW Review Reviewed Judge Marx's Order Cancelling
MTDismiss Hearing $425.00 \* 0.1 $42.50
01/21/2020 DW Review Reviewed Fts Objection to Defendants' MTDismiss - $425.00' 0.2 $85.00
01/21/2020 DW Teleconference Spoke with client, re: Amended complaint 5425.00 0.5 $212.50
01212020 AIJ Meeting Meeting w/ DAW, to: response to Am. CoropE-% $475.00 0.2 $95.00
0121/2020 OW Meeting • 7 Meeting w/ AU, re: response to Am.900 (4k „II $425.00 0.2 $85.00
01/22/2020 OW Review Reviewed Order granting pro hat Mee aanissitM $425.00 0.1 $42.50
01/22/2020 OW Research & Draft Researched and drafted response lki Amended
Complaint $425.00 1.0 $425.00
01/23/2020 OW Teleconference Spoke with Clerk's attorney, reresporise to
amended complaink\ .."4,,,,, $425.00 0.2 $85.00
01/24/2020 OW Various Competed Areswer/MTOismiss Amended / ,
Complaint; Illed With Court; sent oopy to Client $425.00 1.0 $425.00
01/24/2020 DW Draft Drafted apt find Notice of Unavailability $425.00 0.4 $170.00
01/24/2020 AIJ Review ReViewedgeld Answer/MTDismiss $475.00 0.2 $95.00
01/27/2020 OW Review Reviewed Clerk's Answer/MTDismiss $425.00 0.3 $127.50
0203/2020 OW Review /
Reviewed Order setting hearing on Deis'
MTDismiss $425.00 0.1 $42.50
02/03/2020 OW -4ference i Spoke w/ client, re: order setting MTDismiss
hearing for March 24, 2020 $425.00 0.5 $212.50
03/13/2020 DWOew Reviewed PFs Opposition to Arenberg MTDismiss
& Clerk's MTDismiss $425.00 1.5 $637.50
03/1 3/2020+ Review Reviewed Pl's Opposition to Arenberg MTDismiss
& Clerk's MTDismiss $475.00 0.7 $332.50
03/16/2020 OW Teleconference Reviewed email from RI's counsel, re: motion to
continue hearing $425.00 0.1 $42.50
03/18/2020 DW Review Reviewed Pl's unopposed motion for continuance $425.00 0.1 $42.50
03118/2020 OW E-mail Emais w/ Clerk's counsel, re: Pt's request to
continue hearing $425.00 0.2 $85.00
[Phone Redacted] OW E-mail Reviewed email from PI, re: agreed order &
responded $425.00 0.1 $42.50
03/20/2020 OW Review Reviewed Court's agreed order continuing hearing $425.00 0.1 $42.50
EFTA02733978
04/21/2020 DW Review
Reviewed order rescheduling hearing on Dots'
MTDismiss $425.00 0.1 $42.50
04/21/2020 OW Teleconference Spoke w/ client, re: order rescheduling MTOismiss
hearing for June 3, 2020 $42500 0.3 $127.50
04/21/2020 AU Review Reviewed Order rescheduling MTDIsmiss hearing $475.00 0.1 $47.50
0922/2020 OW Review Reviewed order setting Zoom hearing, re:
MTDismiss $425.00 0.1 $42.50
0922/2020 DW Teleconference Spoke w/ client, re: hearing will be via Zoom $425.00 0.2 585.00
05/27/2020 DW Review Reviewed Clerics filing: change of atty of record $425.00 0.1 $42.50
05/27/2020 OW Teleconference Spoke with Clerk's new counsel, Nicole Fingerhut $425.00 -I, 0.2 $85.00
05/28/2020 DW E-mai Reviewed Firs email, re: cases and authorities for
AnDismiss hearing; responded $425.00
-1C4ir
0.1 $42.50
0529/2020 DW Preparation Began oral argument prep for 6/8 MTOismiss
hearing 1.0 $425.00
06/01/2020 DW E-mail responded
Reviewed email from Judge Marx's JA and ( $425.00
r'
0.1 $42.50
0602/2020 DW Various Reviewed Prs 500+ page binder, re: Ann
prepped for hearing $425.00 3.0 $1,275.00
06/02/2020 DW E-mail Drafted and sent email to dent, reLMN,„healled
tomorrow -‘ X )
$425.00 0.1 $42.50
06/03/2020 DW Attend Hearing Prepped for and attended isafO is_heltring via
Zoom i, V
$425.00 1.5 5637.50
06/03/2020 DW Teleconference Spoke w/ Client, redebrtelMtinsmIss hewing $425.00 0.5 $212.50
06/03/2020 DW E-mal Emalled courtesy copies of Arenberg's Answer and
MTDismisslo Judge Marx $425.00 0.1 $42.50
06/03/2020 DW E-mall Reviewed response from Client and replied $425.00 0.1 $42.50
0503/2020 AU Attend Hearing AllendectMTDisniiss hearing via Zoom $475.00 1.0 5475.00
06/03/2020 AU Review Reviews:folder granting MTOismiss w/ prejudice $475.00 0.3 $142.50
0608/2020 DW Review
,...-
Reiliewed Court's Order Granting Defendants
MTOismiss Count II w/ Prejudice $425.00 0.5 $212.50
06/08/2020 DW Vi c t all'illShared order w/ Client and spoke w/, re: result and
plan going forward, re: 57.105 $425.00 0.5 $212.50
06/08/2020Aran‘ ._ s
Researched § 57.105 Fla. Stat.; dratted 57.105
demand letter and proposed motion for attorneys'
feesJsanctions; Sewed Prs counsel with demand
letter and proposed motion.
$425.00 2.0 $650.00
0608/2020 kU Meeting Meeting w/ DAW, re: Order & 57.105 $475.00 0.3 $142.50
06/08/2020 OW Meeting Meeting w/ AU, re: Order & 57.105 $425.00 0.3 $127.50
0608/2020 AU Review Reviewed 57.105 demand and proposed motion for
sanction $475.00 0.2 $95.00
06/10/2020 DW Various Reviewed notice of change of attorney, re: Clerk;
called and spoke w/ new counsel Cynthia Guerra • $425.00 0.3 $127.50
06/23/2020 DW Various
Reviewed Prs feller refusing to voluntarily dismiss
amended complaint despite 57.105 demand: called
and spoke w/ client, re: Prs refusal & next steps
$425.00 1.0 $425.00
EFTA02733979
06/23/2020 DW E-mad Sent client copy of Pt's letter refusing to dismiss
complaint $425.00 0.1 $42.50
08/23/2020 AU Review Reviewed Pt's letter refusing to dismiss Count VArn.
Comet. $475.00 0.1 $47.50
07/01/2020 DW Various
Spoke w/ client, re: fling of 57.105 motion for
fees/sanctions: filed motion for attorneys' fees based on P1% failure to voluntarily dismiss
amended complaint count 1
$425.00 0.5 $212.50
07/02/2020 DW E-mad Email to client, re: affidavit and summary judgment $425.00 0.1 $42.50
07,08/2020 DW Teleconference Discussed w/ Client drafting and filing Motion for
Summary Judgment and MSJ evidence $425.00 0.7 $297.50
07/0812020 AU Teleconference Discussed w/ Client drafting and filing Motion for
Summary Judgment and MSJ evidence $475.03 _„I
:
0.7 - _- - ), $332.50
07/10/2020 DW Draft Created 1st draft of Arenberg Affidavit; shared w/
client $425.00 ..- 1.0 $425.00
07/10/2020 AU Various Reviewed draft affdavit and discussed w/ DAW _r._ $475.08 0.3 $142.50
07/10t2020 DW Meeting Discussed draft affidavit w/ AU II $425.00 0.2 $85.00
07/13/2020 DW Review Reviewed Pt's Request to Produce, re: Clerk, -(425.00 0.1 $42.50
07/13/2020 DW Teleconference Spoke w/ Clerk's counsel, re: Request to Produce ' $425.00 0.2 $85.00
07/27/2020 DW Review Reviewed Prs Amended Request to Produce. re:
Cleric 5425.00 0.1 $42.50
07/27/2020 DW Teleconference Pry
w/ Clerk's counsel, n: Amended Request to
ce
$425.00 0.1 $42.50
07/28/2020 DW Draft Revised AronberptdaviN, ' $425.00 0.5 $212.50
07/29/2020 OW Draft Finalized Arenberg Aadvit and sent to dent
'--;4
$425.00 0.5 $212.50
07/29/2020 DW Research 8
Preparation
Research Motion for Summary ...L. Judgmen2.t $425.00 1.0 $425.00
07/30/2020 DW Various ReceivUekei4uted Arenberg Affidavit $425.00 0.1 $4250
07/30/2020 OW Draft Began drafting Motion for Summary Judgment $425.00 2.0 3850.00
08/05/2020 DW Draft Continued dralting Motion for Summary Judgment $425.00 1.0 $425.00
08/07/2020 DW i„ Review Reviewed email from Plaintiff allempling to set
hearing on 57.105 motion for fees/sanctions 3425.00 0.1 $42.50
08/10/2020 OW imall Sent responsive email to Pt's counsel $425.00 0.1 $42.50
08117/2020 DW( ii taatting Discussed draft MSJ w/ AU $425.00 0.2 $85.00
08/17/2020 A÷ Vadous Reviewed draft MSJ and met w/ DAW to discuss $475.00 0.5 5237.50
08/18/2020 W Draft Finalized Motion for Summary Judgment; filed w/
court along with Arenberg affidavit $425.00 2.0 $850.00
08/27/2020 DW Teleconference Spoke w/ Clerk's counsel, re: request to produce $425.00 0.1 $42.50
09/01/2020 OW Various Reviewed Prs email and accepted conference call
invite for 9/2/20 $425.00 0.1 $42.50
09/02/2020 OW Review Reviewed Cleric's response to request for
production $425.00 0.2 $85.00
09/02/2020 OW Teleconference
Spoke w/ Fts counsel. re: dispute as to whether
MSJ should be heard before 57.105 fee motion or
vis versa - cal was unsuccessful
$425.00 0.5 $212.50
EFTA02733980
09/02/2020 AU Meeting Discussed w/ DAW phone call w/ Prs counsel $475.00 0.2 - $95.00
OfW2/202O DW Meeting Discussed w/ AU phone cal w/ Prs counsel $425.00 0.2 $85.00
09/18/2020 DW E-mail
Reviewed email from Pt's counsel requested
Aronbem to withdraw sanctions motion w/o
prejudice
$425.00 0.1 $42.50
09/17/2020 OW Meeting Discussed w/AIJ fling motion for CMC 5425.00 0.1 $42.50
09/17/2020 AU Meeting Discussed w/ DAW filing motion for CMC $475.00 0.1 547.50
09/18/2020 OW Various Drafted and filed motion to sot case management
conference; re: MSJ 1st or Fee hearing 1st $425.00 0.5 $212.50
09/18/2020 OW E-mall
Responded to Ks 9/16/20 email and refused to
vrithdraw 57.105 motion; provided copy of motion to
set CMC and available dates for hearing
$425.00 _0.1 $42.50
09/18/2020 DW E-mail Reviewed Ks email insisting that 57.105 motion be {
$425.00 withdrawn
-.;
0.1 $42.50
09/18/2020 DW E-mail
Replied to Pt's counsel that the 57.105 motion for
sanctions will not be withdrawn and asking for Ii.Iresponse, re: CMC
(I.
"-A" $425.00" 0.1 $42.50
09/18/2020 DW E-mail Sent client copy of email exchange w/ Pi's c el;
,mss
$425.00 0.5 $212.50 called and spoke w/ Client
09/22/2020 OW Various Drafted and filed Notice of Hearing orn0/1 :let ,.. '7 up Court Call; spoke w/ client, re; hearing dale $425.00 0.7 $297.50
10/02/2020 OW Review Reviewed P1% Memo of Law opposing ArOnberg's
57.105 motion for lees/sanctions $425.00 0.7 5297.50
10/02/2020 DW Review Reviewed Pr b s ResponseArdIberg's request to
schedule 57.105 motion fakes alter MS.1 $425.00 0.5 $212.50
10/02/2020 AIJ Review Reviewed Pytiii1emo of Law opposing 57.105
motion 1_ $475.00 0.5 • $237.50
10/022020 AU Review Reviewed Prs Response to Aronberg's request to
schedule 57.505 motion after MSJ $475.00 0.4 5190.00
10/12/2020 DW Research Research caselaw 8 statutes, ro: response to Pt's
Memo of Law $425.00 1.0 $425.00
10/13/2020 DW Research 8
Analyze
ConUnbed researching caselaw, re: response to
Pl's memo of law $425.00 1.0 $425.00
10/13/2020 OW RS Created 1st draft of Response to Prs Memo of Law
and shared w/ Client $425.00 d.O $1,700.00
10/13/2020 Me ' Discussed w/ AU caselaw and draft response to
memo $425.0O 0.5 $212.50
10/13/2020 Various Reviewed draft MSJ, discussed draft w/ DAW and
casetaw $475.00 0.7 $332.50
10/14/2020 DW Draft Rnalzed and filed Response to Prs Memo of Law $425.00 1.0 $425.00
10/14/2020 OW Telephone Spoke w/ client, re: memo of law $425.00 0.2 $85.00
10/14/2020 OW Telephone Spoke w/ client again. re: response to memo of law $425.00 OA $42.50
10/15/2020 OW Attend Hearing $425.00 •
Attended hearing, re: Motion to Set CMC; called
client to discuss . . . 1.5 $6$7$0
10/15/2020 DW Various Reviewed email and letter from PI, re: settlement.
Sent copy to Client and called to discuss. $425.00 0.5 $212.50
EFTA02733981
10/15/2020 DW Telephone Spoke w/ Prs counsel, re: settlement $425.00 0.1 $42.50
10/15/2020 DW Telephone Spoke w/ client, re: Prs settlement proposal $425.00 0.2 $85.00
10/15/2020 AU Various Attended hearing, re: motion to set CMC;
discussed w/ client
5475.00 1.0 ' • $475.00
10/15/2020 AU Various
• Discussed Prs settlement proposal w/ DAW and
then w/ Client $475.00 0.4 $190.00
10/15/2020 DW Meeting Discussed Pts settlement proposal yr/ AU $425.00 0.2 585.00
10/16/2020 DW Various Drafted and shared proposed order w/ Prs counsel $425.00 0.5 $212.50
1016/2020 OW Telephone Spoke w/ Prs counsel, re: settlement $425.00 0.2 $85.00
1 0/ 1612 02 0 DW Telephone Spoke w/dient, re: PIS settlement proposal $425.00 0.5
40.2
$212.50
10/18/2020 DW Meeting Discussed Pis settlement proposal w/ AU $425.00 $85.00
1.0/16/2020 AU Meeting Discussed Prs settlement proposal w/ DAW $$475.t
.s t
0.2 $95.00
10/19/2020 DW Various Uploaded proposed order, re: CMC for Judge
Hafele . il (125 0.1 $42.50
10/19/2020 DW Telephone Spoke w/ client, re: Prs settlement proposal C at1/4 $425.00 0.2 $85.00
10/19/2020 DW Telephone Spoke w/ Prs counsel, re: settlement $425.00 0.1 $42.50
10/19/2020 AU Meeting Discussed Prs settlement proposal yr/ D 5475.00 0.2 $95.00
10/192020 OW Meeting Discussed Prs settlement propos / $425.00 0.2 $85.00
10/20/2020 DW Various Reviewed email from PI, re: n t
to Client and called to ss $425.00 0.5 $212.50
1020/2020 OW Telephone Spoke w/ client, re: Ore $425.00 0.4 $170.00
10/20/2020 OW Telephone Spoke w/ Prs counsel, re: settlement 5425.00 0.1 $42.50
10/20/2020 OW Telephone Spoke w/ alert, re: settlement $425.00 0.1 $42.50
1020/2020 DW Meeting Discussed Ph settlement proposal w/ AU $425.00 0.2 $85.00
1020/2020 AU Meeting Discussed Pre settlement proposal w/ DAW $475.00 0.2 $95.00
10/21/2020 DW Various
k
Drafted and riled Motion to Sot Hearing on
Aronberg MSJ; drafted proposed order granting
mo0on to set; checked court availability; emailed
Prs counsel, re: choose date for hearing .
$425.00 1.0 $425.00
10/21/2020 DW R Ci Reviewed Order, re: CMC unnecessary $425.00 0.1 $42.50
1041/2020 DW felePhone Spoke yr/client, to: media response $425.00 0.2 $85.00
1021/2020 OlNdi Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 OW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 , OW Telephone Spoke w/ client, to: media response $425.00 0.1 $42.50
10/21/2020 OW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10.21/2020 DW E-mail Sent email w/ Arenberg statement to media $425.00 0.1 $42.50
1021/2020 AIJ Meeting Discussed media response w/ DAW $475.00 0.3 5142.50
1021/2020 OW Meeting Discussed media response w/ AU $425.00 0.3 $127.50
10/22/2020 OW Various
Reviewed Prs Notice of Dropping Arenberg as
party; spoke w/ Client ark: AIJ, re: notice and next
steps
3425.00 0.5 5212.50
EFTA02733982
Reviewed Pl's Notice of Dropping Aronberg as
10/22/2020 Various party; spoke w/ Client and DAW, re: notice and next
steps
$475.00 0.5 $237.50
Totals: 74.8 $32,440.00
Time Entry Sub•Total: $32,440.00
Sub-Total: $32,440.00
Total: $32,440.00
Amount Paid: $0.00
Balance Duet 532,440.00
Arbeett„
EFTA02733983
EXHIBIT "F"
EXHIBIT "F"
EFTA02733984
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.
YAFFIDAVIT OF ATTORNE . t FE
CASE NO.: I9-CA-.01468 I
STAT
COUNTY OF NASSAU
'S S C)
E OF FLORIDA
BEFORE ME, the undersigned au red Douglas A. Wyler, Esq., who, after
being first duly sworn, deposes and say/
I. Affiant is a pa OBS, SCHOLZ & WYLER, LLC, counsel for
Defendant, DAVE ARONBEft '.ate Attorney of Palm Beach County, Florida, ("Aronberg"),
as well as general counseft&orida Prosecuting Attorneys Association, ("FPAA"), and makes
this Affidavit of h rsonal knowledge.
, 52. Affiant is licensed to practice law in the Sufic of Florida, is an active member of
O3arthe good standing and has engaged in the practice of law in the State of Florida since
207
As detailed herein, the services rendered by Affiant and his firm pertain to Affiant's
demand letter and motion for attorneys' fees sent to Plaintiff's counsel pursuant to § 57.105,
Florida Statutes, on June 8, 2020, in defending against Count I of Plaintiff's Amended Complaint
EFTA02733985
and Plaintiff's October 21, 2020 Notice of Dropping State Attorney, Dave Aronberg from the
above-captioned lawsuit. See, Exhibits "A" and "B" attached hereto.
4. The total time Affiant's law firm has expended services rendered to date is 74.8
hours, however, from the date of Defendant Aronberg's 57.105 demand, Affiant's law firm has
expended a total of 42.2 hours. Of the 42.2 hours expended since Defendant Aronberg's 57.105
demand was served, the Affiant
5. Of the 42.2 hours expended since Defendant Aronberg' 7
od
15: 1emand was C
served, the total time Affiant has expended services rendered to dat n at the rate of
i
$425.00 per hour. Likewise, the total time Affiant's law partner, A has expended
services rendered to date is 6.8 hours at the rate of $475. r.
6. Accordingly, since Defendant Aron ' demand was served, Defendant
Aronberg's counsel, SCHOLZ & W
ipc ,of $18,275.00, in conjunction with the d nse
Z .,Statutes. See, Exhibit "C" attacheC to.
7. Affiant expects to into additional 4.0 hours at $425.00 an hour in preparing for
/ and attending the hearing on attorneys' fees. Thus, the total amount of hourly attorneys' fees the
State Attorney is seeking is 46.2 hours for a total of $19,975.00. Additionally, the State Attorney
seeks a multiplier of 2.0, which when applied makes the grand total attorneys' fees sought herein
$39,95. 0.00.
÷, t this th day of November, 2020.
FURTHER AFFIANT SAYETH NOT.
LDC, has rendered services in the amount
instant action pursuant to § 57.105, Florida
Douglas Wyler, Esq., Fla. B No. 119979
EFTA02733986
STATE OF FLORIDA
COUNTY OF NASSAU
The foregoing instrument was acknowledged before me this 9th day of November, 2020,
by Dou s A. Wyler, Esquire, who is personally known to me and who did take an oath.
Signa 3.f otary Public — State of Florida
4-årarL R. "Tact:son Name typed, printed or stamped
AM.
41"XiN Eden R
te‘ Notary EuPik • te FlorWe
.1 Commission e GC 354/141
"oe e‘./ My (omm. Expires Ain 1 r, 202)
Raided through 'titbit& Notary Min.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of November, 2020, a copy of the foregoing has
been electronically filed with the Florida E-File Portal or e-service on all parties of record herein. Ass
4 BS SCHOLZ & WYLER, LLC
\ Douglas A. Wyler
Arthur I. Esq.
Fla. Bar No.: 10249
Richard J. Scholz, Esq.
Fla. Bar No.: 0021261
C 961687 Gateway Blvd., Suite 201-I
Fernandina Beach, Florida 32034
111.1.1"
([Phone Redacted]
([Phone Redacted] Fax
Primary: [Email Redacted]
Anomeys for Defendant. Dave Aronberg
EFTA02733987
EXHIBIT "A"
EXHIBIT "A"
EFTA02733988
Friday, September 18, 2020 at 11:09:24 Eastern Daylight Time
Subject SERVICE OF COURT DOCUMENT; CASE NO. 2019-CA-014681; CA FLORIDA HOLDINGS, LLC V.
DAVE ARONBERG ET AL.
Date: Monday, June 8, 2020 at 3:58:58 PM Eastern Daylight Time
From: Douglas Wyler
To: '[Email Redacted], [Email Redacted], [Email Redacted], [Email Redacted],
[Email Redacted], [Email Redacted]
Attachments: 2020-06-08 Aronberg 57.105 Demand and Motion for Attorneys' Fees.pdf
Court:
Case No:
Plaintiff:
Defendant:
Title of Documents
Served:
Sender's Name and
Telephone Number:
Sincerely,
Florida
Case No. 2020-CA-014681
CA Florida Holdings, LLC
Dave Aronberg
Circuit Court of the Fifteenth Judicial Circuit, In and for Palm Beach County,
a • Fla. Stat. § 57.105 Demand Letter
• Defendant, Dave Aronberg's Motion r Att Fees
Douglas Wyler
([Phone Redacted]
Doug Wyler, Esq.
Scholz & Wyler, LLC
961687 Gateway Blvd., STE 201-I
Fernandina Beach, FL 32034
[Phone Redacted]
[Phone Redacted] (fax)
Please be advised that this e- ail a files transmitted with it are confidential attorney-client
communication or may otherwise be privileged or confidential and are intended solely for the individual or
entity to whom they are addressed. If you are not the Intended recipient, please do not read, copy or
retransmit this communication but destroy it immediately. Any unauthorized dissemination, distribution or
copying of this communication Is strictly prohibited.
Page 1 of 1
EFTA02733989
m il LAY. Or/CCs oe
• ASSOCIATES. P.A.
AR "'UR
a SCHOLZ 8c WYLER, LW.
IUTY COMPANY Or PROFESSIONAL ASSOCIATIONS
ATTORNEYS AT LAW
GATEWAY TO AMELIA
90 INF GATEWAY SLIM- SUITE ROI 4
FERNS-NOMA Bract ElonmAsoo,34,
TELEPHONE 190.0 Z61•3693
FAX NO. (004) Eel -7870
June 8, 2020
VIA ELECTRONIC & U.S. MAIL
Stephen A. Mendelsohn, Esq.
Greenburg Traurig, P.A.
5100 Town Center Circle, Suite 400
Boca Raton, FL 33486
RE: CA Florida Holdings, LLC v. Dave Aronbe
Palm Beach County, Case No.: 2019-CA-0
Dear Mr. Mendelsohn:
As you are aware our firm represents the interests_4Dnt ronberg, as State Attorney of Palm Beach
County. Florida, in the above referenced matter. The purpose of this letter is to demand the voluntary
dismissal of your First Amended Complaint, (the "Complaint"), dated January 17, 2020. This demand
is made pursuant to'section 57.105, Florida Statutes.
RICHARD J. SCHOLZ. P.A.
RCN...RDJ. SCHOLZ
DOUGLAS A. WYLER. P.A.
DOUGLASA.RYLES
As you know, Section 57.105 provides:
(I) Upon the court's initiative or motion of any party, the court shall award a
reasonable attorney's fee. including prejudgment interest, to be paid to the
prevailing party in equal amounts by the losing party and the losing party's attorney
on ony claim or defense at any time during a civil proceeding or action in which
the court finds that the losing party or the losing party's attorney knew or should
have known that a claim or defense when initially presented to the court or at any
[me before trial:
a. Was not supported by the material facts necessary to establish the claim or
defense; or
Would not be supported by the application of then-existing law to those
material facts.
, Judge Marx granted, with prejudice. Defendant Aronberg's Motion to Dismiss Count II of the
Plaintiff's Complaint. Pursuant to the Court's ruling, the Plaintiff's only remaining cause of action
consists of Count I, for Declaratory Relief. Accordingly, we believe that the Complaint filed herein
and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to
establish the claims asserted, and that your claims are not supported by the application of current law
to said material facts.
EFTA02733990
First and foremost, the Complaint is not supported by the material facts necessary to establish the
claims asserted because neither Defendant Aronberg, nor The Office of the State Attorney for the
Fifteenth Judicial Circuit is in custody or control of the 2006 grand jury materials sought therein.
Simply put, the declaratory relief sought by the Plaintiff, seeks records from my client that are
impossible for him or his office to produce. Accordingly, Defendant Arenberg is not a proper party to
this action because no matter what, he and his office do not have possession, custody, or control of the
requested materials.
In addition to the foregoing material facts that negate the claims asserted in the Complaint, your claims
are also not supported by the application of current law. Specifically, your action for declaratory relief
fails based on the clear, unambiguous statutory language found in Section 905.27(2), Florida Statutes,
which states:
When such disclosure is ordered by a court pursuant to subsection (I) for use in a civil
case, it may be disclosed to all parties to the case and to their attorneys and by the latter
to their legal associates and employees. However, the Brand inry tallowy afforded
such persons by the court can only be used in the defense or prosecution of the civil or
criminal case and for no other nuroose whatsoever.
Moreover, even if the Plaintiff were to prevail in the declaratoryaction, Mr. Arenberg would be unable
to comply with any court order granting disclosure of the requested documents because neither Mr.
Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession,
custody, or control of the 2006 Epstein grand jury records. /
Based on the foregoing, if the Complaint is not dismissed within 21 days of the service of this letter,
the enclosed Motion for Attorney's Fees will bc filed and ue will seek as sanctions, from your client
and your firm, recovery of the legal expenses incurred in defending this frivolous action.
Please govern yourself accordingly
bet -A —
Douglas A. Wyler, Esq.
For the Firm
Encl.: Defendanee Motion for Attorneys' Fees
+6\
EFTA02733991
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.: 19-C4-O14681
0 -, DEFENDANT, DAVE ARONBERG'S MOTION FOR ATTORNEYS' FEES
Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, by and
through the undersigned attorneys, moves the Court, pursuant to Florida Statutes, Section 57.105,
to award him reasonable attorneys' fees for the defense of Plaintiffs First Amended Complaint,
(the "Complaint"), and as gro
a copy of this Motion, to
subsection (4) of the a
, would show that on June 8,2020, Plaintiff was served
a letter from the undersigned attorney, in accordance with
e, demanding dismissal of the Complaint, at least 21 days prior
to the filing of tilt ion. In said letter, Defendant's attorney advised Plaintiff of the facts which
establish that the Cornplaint is without support of the facts or the law.
WHEREFORE, Defendant, DAVE ARONBERG. as State Attorney of Palm Beach
County,_Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's
attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion.
EFTA02733992
CERTIFICATE OF SERVICE
I hereby certify that on this day 2020, the foregoing was electronically filed
via the Florida E-File Portal for electronic service on the parties of record herein.
SCHOLZ & WYLER, LLC
/s/ Douglas A. Wy/er
Arthur
Fla. Bar No.: 108249
Richard J. Scholz, Esquire
Fla. Bar No.: 0021261
Douglas A. Wyler, Esquire
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-I
Fernandina Beach, Florida 32034
(904) 26i -3693
([Phone Redacted]
[Email Redacted]
sfor Defendant
EFTA02733993
EXHIBIT "B"
EXHIBIT "B"
EFTA02733994
Filing # 115383434 E-Filed 10421/2020 04:13:35 PM
CA FLORIDA HOLDINGS, LW,
Publisher of THEPALMBEICHPOST,
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.
N THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 50-2019-CA-01468I-XXXX-MB
DIVISION: AG .
• Cli)
PLAINTIFF CA HOLDING al it iA6
NOTICE OF DROPPING STATE ATTORNEY. DAVE ARONBERG
Plaintiff; CA HOLDINGS, LW, pursuant to Fla. R. Civ. P. 1250(6), hereby notifies the parties that
it has dropped State Attorney, Dave Aronberg from the above case.
(
S.,
4cipespeetfully submitted, tite
GREENBERG TRAURIG, P.A.
Attorneys for CA Florida Holdings, LW, Publisher
of The Palm Beach Post
Stephen A. Mendelsohn. Esq.
401 East Las Olas Boulevard Suite 2000
Boca Raton, Florida 33486
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
By: A/Strohm A. Alemlekohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsolmseirtlaw.com
smitlikalutlaw,emn
FlaServiccOutlaw.com
EFTA02733995
By: 1st Michael J Grwiel
MICHAEL J GRYGIEL
(Admitted Pro Hoc Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
grvgielmeRtlaw.com
By: Isi Nino I). &wilco
NINA D. BOYAJIAN
(Admitted Pro Hoc Vice)
1840 Century Park East, Suit
Los Angeles California 90
Telephone: (310)586-77W
Facsimile: ([Phone Redacted]
bmaiiannegllawcom •
rivemalegtlaw,com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2I' day orO\ ctober, 2020, a true and correct copy of the
foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system, which
will send a notice of electronic service fOr Sanies of record herein'
533I734Ivl
/s/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
2
EFTA02733996
EXHIBIT "C"
EXHIBIT "C"
EFTA02733997
IFFIScholz & Wyler, LLC
Gateway Blvd., Suite 2011
Fernandina Beach, FL 32034
United States
[Phone Redacted]
Dave Aronberg
Aronberg (SAO15) adv. CA Florida Holdings, LLC
Time Entries
=Scholz & Wyler, LLC
Balance
Invoice it
Invoice Date
Payment Term
Due Date
$32,440.00
00307
lzvember 6, 2020
Date EE Activity Description 7 Rate Hours Lino Total
11/26/2019 OW Review Initial review of summons and 5425.00 1.5 $637.50
11/26/2019 OW Review Reviewed motion for pro hao-vloo Judge
Hafelci order granting
$425.00 02 585.00
11/28/2019 DW" Teleconference Teleconference yr/Client, rr response to lawsuit $425.00 0.5 $212.50
1128/2019 OW Draft Drafted engegement labor and sent to client $425.00 0.3 $127.50
1128/2019 OW Review Reviewed 16th eitiiit local rules $425.00 1.0 $425.00
11/26/2019 AIJ Review Inlet reiiiiek• of complaint $475.00 1.0 $475.00
11/2612019 AU Meeting Meeting4/ DAW le discuss lawsuit end strategy $475.00 0.5 $237.50
11/26/2019 DW Meeting Meeting w/ AU to discuss lawsuit arid strategy $425.00 0.5 $212.50
11/262:019 AU Teleconference Teleconference w/ Client. re: response lo lawsuit $475.00 0.5 5237.50
12/022019 DW Research t ' Preparatiod - Research onoprep for Motion to dismiss $425.00 2.0 $850.00
12/02/2019 CM DIM 1st Draft motion to dismiss 5425.00 1.0 $425.00
12/0212019 OW Teleconference Teleconference w/ Client. re: draft motion to
dismiss •
$425.00 0.5 $212.50
12/022019 Al) Review Reviewed 1st Draft MTOismiss $475.00 0.3 $142.50
12/02/2019 .- AU Teleconference Teleconfenance w/ client. re: draft motion to
dismiss 5475.00 0.5 $237.50
12/03/2019 AU . Meeting Meeting vot DAW. re: motion to dismiss $475.00 0.2 $95.00
12/03/2019 OW Meeting Meeting w/ AU. re: MTDismiss $425.00 0.2 $85.00
12/06/2019 OW Draft Completed final draft of motion to cksmiss; filed with
Court $425.00 0.7 $297.50
12/06/2019 OW Teleconference Spoke w/ teen. re: final draft of motion lo dismiss $425.00 0.5 $21250
EFTA02733998
12/06/2019 DW Teleconference Spoke with Defies attorney, re: response $425.00 0.5 $212.50
12/062019 AU Review Reviewed fusel draft MThismiss $475.00 0.2 $95.00
12/06/2019 AU Review Reviewed Clerk's MTDismiss $475.00 0.2 $95.00
12/13/2019 OW Review Reviewed Clerk's Motion to Dismiss $425.00 0.5 $212.50
01/162020 DW Review ReviTDiewed
m
Order Selling Hearing on Defendants'
M s iss 5425.00 0.1 $42.50
01/18/2020 OW Review Reviewed motion for pro Mc vice $42500 0.1 $42.50
01/17/2020 DW Review Reviewed PCs Amended Complaint $425.00 1.0 $425.00
01/17/2020 DW Teleconference Spoke with client, re: Amended Complaint $425.00 0.5 $212.50
01/17/2020 DW Review Reviewed PI's notice of filing $425.00 '„ 0.1 $42.50
01/20/2020 AU Review Reviewed Pis Am. Comp& $475.00 • 0.3 $142.50
01/2172020 DW Review Reviewed Judge Marx's Order Gemming
MTDIsmiss Hearing $42500 0.1 14250
01121/2020 OW Review Reviewed Pis Othection to Defendants' MTOismIss $425.00 0.2 $85.00
01121/2020 DW Teleconference Spoke with client, re: Amended complaint • $425..00 0.5 $212.50
01/21/2020 AU Meeting Meeting svi DAW, re: response to Am. C,ompL $475.00 0.2 $95.00
01212020 OW Meeting Meeting w/ AU, re: response to Am. Cott. $425.00 0.2 $85.00
01/22/2020 OW Review Reviewed Order granting pro hat irks admission $425.00 0.1 $42.50
01/22/2020 OW Research & Draft Researched and drafted response to Amended
Complaint $425.00 1.0 $425.00
01/23/2020 DW Teleconference Spoke with Clerk's Safe: resPonse to
amended complaint \ ‘.1,-- $425.00 0.2 $85.00
0124/2020 OW Various Completed AlwirrMTDICAss Amended
Complain ed withCiourt: sent copy to Clem $425.00 1.0 $425.00
01/24/2020 DW Draft Oraftedapdakid_Notice of Unavailability $425.00 0.4 $170.00
01242020 AU Review *Teed final Answer/MTDismiss 5475.00 0.2 $95.00
01/27/2020 OW Review Revieleredtledis AnsworMaDismiss $425.00 0.3 $12750
02/03/2020 DW Review Reviewed Order setting hearing on Oafs'
MTOistniss 5425.00 0.1 $42.50
024372020 OW '• ----- _ Teloconfirente: ic
Spoke wl client. re: order setting MInsmiss
hearing (or March 24. 2020 $42500 0.5 $212.50
03113/2020 OW
...-
Review Reviewed Pit Opposition to Arenberg MTDismiss
& Clerk's MTDIsmiss $425.00 1.5 $637.50
03/13/2020 AU Review Reviewed Pt's Opposition to Arenberg MTOismiss
& Clerk's MTDismIss $475.00 0.7 $33250
03/16/2020 OW Teleconference Reviewed email from Pis counsel, re: motion to
continue hearing 5425.00 at $42.50
03/18/2020 OW Review Reviewed Pfs unopposed motion for continuance 5425.00 0.1 $42.50
03718/2020 OW E-mall Emats w/ Gimlet counsel, re: Pt's reallost to
continue twnring $425.00 0.2 $85.00
03/19/2020 DW E-mail Reviewed email from PI, re: agreed order &
responded $425.00 0.1 $4250
03/20/2020 OW Review Reviewed Court's agreed order oors5nuing hearing • • $425.00 0.1 • $42.50
EFTA02733999
04/21/2020 OW Review
Reviewed order rescheduling hearing on Dors'
MTDismiss $425.00 0.1 542.50
04/21/2020 DW Teleconference Spoke whdient, re: order rescheduling MTDismiss
hearing for June 3, 2020 $425.00 0.3 5127.50
04/21/2020 AU Review Reviewed Order resehediding MThistnIss bearing $475.00 0.1 $47.50
05/22/2020 DW Review Reviewed order setting Zoom hearing. re:
MTDismiss $425.00 0.1 542.50
05/222020 DW Teleconference Spoke w/ client, re: hearing will be via Zoom $425.00 0.2 $85.00
05/27/2020 DW Review Reviewed Clerk's filing: change of atty of record . $425.00 0.1 $42.50
05/27/2020 OW Teleconference Spoke with Clerk's new counsel. *ode Fingerhu1 $425.00 02 $85.C3
0528/2020 OW E-mall Reviewed Pt's email, re: cases and authorities for
kfTtimiss hearing; responded $425.1 542.50
05/29/2020 OW Pmparation Began oral argument prep for 6/8 MTDismiss
hearing
"
1.0 $425.00
06101/2020 DW Email Reviewed email from Judge Mares JA and
responded 0.1 $42.50
06/02/2020 DW Vari Reviewed Prs 500v ae binder re: MTD s & $425 .00
Prepped for hearing 3.0 $1275.00
06/02/2020 OW E-mail Dratted and sent email to client, re' TO
tomorrow
$425.00 0.1 $42.50
013/03/2020 DW Attend Hearing Prepped for and attended via
Zoom $425.00 1.5 5637.50
06/03/2020 OW Teleconference Spoke w/ Cheat, re: debrief MTDismiss hearing $425.00 0.5 5212.50
06/03/2020 OW Email Emailed courtesy copies of Aronberg's Answer and
MTDismiss to Judge Marx $425.00 0.1 $42.50
00103/2020' OW Emal Reviewed response from Client and replied $425.00 0.1 $42.50
06/032020 AU Attend Hearing Attended MTDismiss hearing via Zoom $475.00 1.0 $475.00
06/0312020 AU Review Reviewed order granting MT Dismiss wf prejudice $475.00 0.3 $142.50
08/082020 DW Review ng DefendantsReviewed Courts Order Granti
TOismiss Count II wf Prejudice 5425,00 0.5 $212.50
08/06/2020 DW v . ami t y, Shared order w/ Client and spoke wr, re result and
plan going forward, re: 57.105 •
$420.00 0.5 $212.50
06/082020 DW
•
tut fees/sanctions;
'
Researched § 57.105 Fla. Stat.; drafted 57.10$
demand letter and proposed motion for attorneys'
Served Pt's counsel with demand
letter and proposed motion.
$425.00 2.0 $850.00
06/08/2020 AU Meeting Meeting ve/ DAW, re: Order & 57.105 . $475.00 0.3 $142.50
06/062020 DW Meeting Meeting w/ AL.I. re:Order & 57.105 $425.00 0.3 $127.50
06/0812020 AU Review Reviewed 57.105 demand and proposed motor for
sanction $475.00 0.2 595.00
05/10/2020 OW Various $425.00 Reviewed notice of change of attorney, re: Clerk:
called and spoke w/ new counsel Cynthia Guerra 0.3 $127.50
06123/2020 OW Various
Reviewed Pt's letter refusing to vokinlari lir dismiss
amended complaint despite 57.105 demand; called
and spoke wl dent, re: Its refusal 8 next steps
$425.00 1.0 $425.00
EFTA02734000
06/232020 OW E•mai dlsSent dent copy of Pl's tenet refusing to niss
complaYff
$425.00 0.1 $42.50
06/23/2020 AU Review Reviewed Prs letter refusing to &miss Count I/Am.
Comet. 5475.00 0.1 $47.50
07/01/2020 DW Various
Spoke vr/ client. re: filing of 57.105 motion for
fees/sanctions: tied motion for attorneys' fees
based on PCs failure to voluntarily dismiss
amended complaint count 1
$425.00 0.5 6212-50
07/02/2020 OW Ems Email to client, re: affidavit and summary judgment $425.00 0.1 $42.50
07/08/2020 DW Teleconference Dismissed w/ Client drafting and fang Motion for.
Summary Judgment and MS.1 evidence $425.00 0.7 $297.50
07/08/2020 Al.) Teleconference Discussed w/ Client drafting and Peng Widen for
Summary Judgment and MSJ evidence $475.00 .7 $332.50
07/10/2020 DW Draft Created 1st draft of Arenberg Aff Smelt shared w/
client $425.00 1.0 $425.00
07/10/2020 Al.) Various Reviewed draft affidavd and discussed w/ DAW $475.00 ) 0.3 $142.50
07/102020 DW Meeting Discussed draft affidavit w/ AU I.! $42500 02 $85.00
07/13/2020 DW Review Reviewed Ks Request to Produce, re: Clerk — .4425.00Oh. 0.1 $42.50
07/13/2020 DW Teleconference Spoke w/ Clerk's counsel, re: Request lqtroduati $425.00 0.2 $85.00
07/27/2020 OW Review °iie0 lors Amended Request Pr uabigtzf
Clef% 3425.00 0.1 $42.50
07/27/2020 DW Teleconference Spoke Yr/Civic% counsel. re Amended Request to
Produce $425.00 0.1 $42.50
07/28/2020 OW Draft Revised Arenberg affidavit $425.00 0.5 $212.50
0729/2020 DW Draft Finalized Arenberg Affidavit and sent to client $425.00 0.5 $21250
07/29/2020 DW Research &
Preparation
Research and prep lorMotion kw Summary
Judgment ; _
$425.00 1.0 $425.00
07/302020 DW Various Received executed Arenberg Affidavit $425.00 0.1 $4250
07/302020 OW Draft Began drafting Motion for Summary Judgment $425.00 2.0 . $850.00
08/05/2020 OW Draft Continued drafting Motion for Summary Judgment $425.00 1.0 $425.00
08/07/2020 OW Review Reviewed email from Plaintiff attempting to set
hearing on 57.105 motion toe fees/sanctions $425.00 0.1 $42.50
08/10/2020 DW Email Sent responsive email to FTs counsel $425.00 0.1 $42.50
08/17/2020 OW , Wang Discussed draft MSJ w/ Al.) $425.00 02 $85.00
08/17/2020 AU Various Reviewed draft MSJ and met WI DAW to discuss 5475.00 0.5 $237.50
08/18/2020 OW ; Draft Finakzed Motion for Summary Judgment; filed w/
court along with Arenberg affidavit $425.00 2.0 $850.00
0827/2020 DW Teleconference Spoke w/ CAM's counsel, re: request to produce 5425.00 0.1 $42.50
09'01/2020 DW Various Reviewed Prs email and accepted conference call
Invite for 9/2/20 $425.00 0.1 $42.50
09/022020 OW Review Reviewed Clerics response to request ler
production $425.00 0.2 $85.00
09/02/2020 OW Teleconference
Spoke wl lots counsel. re: dispute as to whether
MSJ should be heard before 57.105 fee motion ot .
iiii Versa.- con ai t'snitiaisituu
. $425.00 0.5 $212.50.
EFTA02734001
09/022020 AU Meeting Discussed w/ DAW phone call w/ P13 counsel $475.00 0.2 395.00
09/02/2020 DW Meeting Discussed w/ AU phone cal vil PM counsel $425.00 0.2 $85.00
09/I 8/2020 DW E-mail
Reviewed email from Ms counsel requested
Arenberg to withdraw sanctions motion w/o
prejudice
3425.00 0.1 $42.50
09/17/2020 OW Meeting Discussed w/ AU filing motion for CMC 342500 01 $42.50
09/17/2020 AU' Meeting Discussed w/ OAW ring motion for CMG $475.00 0.1 $47.50
09/18/2020 DW Various Drafted and filed motion to set case management
conference; re: MSJ 1st on Fee hearing let 5425.00 0.5 $212.50
091113/2020 DW E-mail
Responded to Prs 9/18/20 email and refused lo
withdraw 57.105 motion; provided copy of motion lo
set CMC and available dates for hewing
$425.00 4_1 0.1
--•;\
$42.50
09/18/2020 OW Small Reviewed Ks email insistirg lhat 57.105 motion be
withdrawn $425.4 1> 0.1
S
$42.50
09/18/2020 OW E-mail
Replied to PM counsel that the 57.105 motion for
sanctions will not be withetravm and asking for
response, re: CMC i
"- I"- 5.00 0.1 $42.50
09/182020 DW Email client copy of email exchange w/ PM counsel,'
called called and spoke weClient
-S\
;2.--_ 25.0o 05 S212.50
09/22/2020 DW Venous Drafted and filed Notice of Hearing 94 1
up Court Cal; spoke w/ client, reKlitariog d
E925.00 0.7 5227.50
10/022020 DW Review Reviewed Pfs Memo 01 Law (xposing Arenberg'S „.,
57.105 motion for fees/sanctions $425.00 0.7 $297.50
10102/2020 DW Review Reviewed PIM Response le Aronbetia request to
Scheckie 57.105 motion lot fees after MSJ • $425.00 0.5 3212.50
1602/2020 AU Review 3475.00 Reviewed Prd Memo of Law opposing 57.105
motion _ __ 0.5 5237.50
10/02/2020 AU Review Reviewed Ma Response to Aronborg's request to
schedule 57.105 motion after MSJ $475.00 0.4 $190.00
10/12/2020 OW Research Lee .
Research easelaw 8 statutes, re: response to PM
mo et Law $425.00 1.0 $425.00
10/13/2020 OW Research 8
Analyz
Conti
memo of
nued researching caselaw, re: response to
s law $425.00 1.0 $425.00
10/13/2020 DW Draft Created 1st draft ol Response to Pre Memo el Law
and shared w/ Client 3425.00 4.0 $1,700.00
10/13/2020
/
Met, Meets Discussed w/ AU caselaw and draft response to
memo 3425.00 0.5 $212.50
i
10/13/2020 1. AU ! Various Reviewed draft MSJ. discussed draft wr DAW and
caselaw $475.00 0.7 $332.50
10/102020- - OW Draft Finalized and filed Response to Pfs Memo of Law $425.00 1.0 3425.00
10/14/2020- OW Telephone Spoke wr clam, to: memo of law $425.00 02 $85.00
10/14/2020 OW Telephone Spoke w/ client again, re: response to memo ol law 3425.00 0.1 $42.50
10/15/2020 OW Attend Hewing Attended hearing, re: Motion lo Set CMC; caved
Meet to discuss 3425.00 1.5 $837.50
16/5/2020 OW Various Reviewed email and letter from PI, to: settlement.
Sent copy to Client and called to 6scuss. $425.00 0.5 $212.50
EFTA02734002
10/192020 DW Telephone Spoke w/ Prs counsel, re: settlement $425.00 0.1 $42.50
10/15/2020 DW Telephone Spoke w/ dent. re: Prs settlement proposal $425.00 0.2 $85.00
10/152020 AU Various Attended hearing, re: motion to set CMC;
(massed w/ client
$475.00 1.0 5475.00
10/15/2020 AU Valais Discussed Prs settlement proposal vet DAW and
then w/ Client $475.00 0.4 $190.00
10/1572020 OW Meeting Discussed Pis settlement proposal wr AU $425.00 0.2 $85.00
10/162020. OW Various Drafted and shared proposed order w/ Prs counsel $425.00 0.5 $212.50
10/18/2020 DW Telephone Spoke vd Prs counsel, re: settlement $425.00 0.2 $85.00
10/16e2020 DW Telephone Spoke wil client. re: Prs settlement proposal 5425.00 All' 0.5
At;
$212.50
10/16/2020 DW Meeting Discussed Prs settlement proposal w/ AU $425.00 02 $85.00
10/16/2020 AU Meeting Discussed Ks settlement proposal w/ DAW 5475.00 0 2 $95.00
10/19/2020 DW Various Uploaded proposed order. re: CMC (or Judge
Hefei° $425.00 0.1 $42.50
10/19/2020 DW Telephone Spoke w/ client, re: Prs settlement proposal $425.00 0.2 $85.00
10/19/2020 DW Telephone Spoke wl Pts counsel. re: settlement --.±- 4425.00 0.1 $42.50
10/19/2020 AU Meeting Discussed PCs settlement proposal w/ OR.. '.%), $475.00 0.2 $95.00
10192020 OW Meeting Discussed Prs settlement proposelaviAti\\,./ $425.00 0.2 585.00
10/20/2020 DW Various Reviewed omak from PI, re: seperilettE szt copy
to Client and called to cisceess \ \\,- $425.00 0.5 $212.50
10/20/2020 DW Telephone
. ,
Spoke w/ client re: SetdellIMPC ' $425.00 0.4 $170.00
10/20/2020 OW Telephone Spoke w/ Pla counsel re: settlement $425.00 0.1 $42.50
1020/2020 OW Telephone Spoke iv/ °heti ansettlement $425.00 0.1 $42.50
10/20/2020 DW Meeting Discussed Pis settlement proposal w/ AU $425.00 0.2 $85.00
10/202020 AU Meeting Discussed Ks settlement proposal w/ DAW $475.00 0.2 $95.00
10/21/2020 DW Various
_
piked an° Red Motion lo Set Hearing on
AronbergUSJ: drafted proposed order warthog
motion to set; checked court availabifity; smoked
Pricounsel, re: choose dale for hearing
$425.00 1.0 $425.00
1021/2020 DW Review hial Reviewed Order, re: CMC umecessary $425.00 0.1 $42.50
1021/2020 DW Teletlhor18/ Spoke wlelient, to: media response $425.00 0.2 $85.00
10/21/2020 OW Telephone' Spoke wr Hien', re: media response $425.00 0.1 $42.50
10/21/2020 OW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
1021/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
1021/2020 \• OW Telephone Spoke w/ client, re: meta response $425.00 0.1 $42.50
10212020 OW &mak Sent email w/ Arenberg slatement to moos 5425.00 0.1 $42.50
10/2112020 AU Meeting Discussed media response w/ DAW 5415.00 0.3 $142.50
10/21/2020 OW Meeting Discussed media response w/ AU $425.00 0.3 $127.50
10/22/2020 OW Various
Reviewed Prs Notice of Dropping Aronberg as
party: spoke wr Ckent and AU. re: notice end next
steps
$425.00 0.5
•
$21250
EFTA02734003
Reviewed Pre Motto ol Dropping Aronberg as
10/22/2020 AU Various party; spoke w/ Client and DAW, re: notice and next
steps
$475.00 6.5 $237.50
Totals: 74.0 $32,µ0A0
Time Entry Sub-Total: $32.040.00
Sub•Totei: $32,440.00
Total: $32,440.00
Amount Pald: • $0.00
Balance Due: $32,440.00
EFTA02734004
EXHIBIT "G"
EXHIBIT '"G"
EFTA02734005
A.-.I.
r ra t Or
PA.
HITHUTI I.
November 26, 2019
ME SCHOLZ & WYLER, LLC. MUTT COMPANY Or PROM...ORAL ASSOC.ATIONS
ATTORNCYS AT LAW
OATCWAY TO AlICLJA
46 1467 GATEWAY a O . SUITE LW -I
Office of the State Attorney
15th Judicial Circuit
Attn: Jeanne Howard
401 North Dixie Highway
West Palm Beach, FL 33401
hanannixa Seem FLORIDA 00004
TCLEPHOHC 100410 CII-0600
PAX Na (0040 ROI., D7SI
Re: CA Florida Holdings, LLC v. Dave Aronberg et al.
Case No.: 2019-CA-014681
Dear Mrs. Howard:
The purpose of this letter is to confirm that ...Schott & W.yler, LLC will represent you regarding the
above-referenced matter.
RICHARD,/. SCHOLZ. P.A.
ISCHARPO SCHCAS
DOUGLAS A. WIII.CR. P.A.
004Jan A Ant*
Our fees will be contingent upon our success in this matter. You will not be liable or required to pay any
monies to our office unless we arc successful in our'representation of you regarding the above-referenced
litigation and receive a court order awarding attorneys' fees.
Accordingly, should we be successful la thin: after, you agree to be billed for the time incurred in defending
this action at our current hourly rates. At this time, our current hourly rates are: $475.00/hour for senior
partners, $425.00/hour for other partners. $375.00/hour for associate attorneys, and $125.00/hour for
paralegal time.
Furthermore, the attorneys' fees paid to our finn shall be calculated by the above listed hourly rates
multiplied by the number of hours expended in defending this action or the total fee mandated and awarded
by the court order herein, whichever is greater.
By signing below, you agree to the terms as set forth above. Please return a signed and dated copy of this
letter to our office. If you have any questions or concerns, please contact our office. On behalf of the
firm, we are proud to represent you in this matter.
Sincerely,
464 — kj h
Douglas A. Wyler, Esq.
For the Firm
Date
EFTA02734006
Def.Ex.#10
EFTA02734007
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-X XXX-MB
DIVISION: AG
O4
RESPONSE AND MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS, LLC IN
OPPOSITION TO STATE ATTORNEY DAVE ARONBERG'S AMENDED MOTION
FOR ATTORNEYS' FEES UNDER FLA. STAT. 4 57.105
Plaintiff, CA Florida Holdings, L ("tiff"), publisher of The Palm Beach Post,
submits this Response and Memorand f La n Opposition to State Attorney Dave Aronberg's i t..?
("Aronberg") November 9, 202 en Motion for Attorneys' Fees under Fla. Stat. § 57.105
(DE 50) ("Amended Motio
denied, with prejudic
e reasons set forth below, the Amended Motion should be
INTRODUCTION
einhebAmended Motion for sanctions is legally and factually insufficient to meet the ciar
strict s ds' of Fla. Stat. § 57.105. First, the Amended Motion fails as a matter of law because
Aron g did not comply with the required 2I -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.
1
EFTA02734008
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 Motionl 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 delivery before it
was filed on November 9, 2020. Thus, Aronberg precluded Plaintiff from taking advaniage of the
statutory 21-day safe harbor provision to voluntarily dismiss its then-pending Claim as to Aronberg
before filing his Amended Motion seeking sanctions. Moreover, Aronberg filed his November 9,
2020 Amended Motion nineteen days after Plaintiff had already dismissed him fr om the action by
filing a notice dropping Aronberg as a party on October 21, 2020 IDE 48]. Thus, at the time the
Amended Motion was filed, it was moot.
As to the merits, the Amended Motion ft er Fla. Stat. § 57.105 because the claim at
issue, Count I of Plaintiff's First MI ded Complaint, is exactly the type of claim specifically
excepted from sanctions under Section 57.105(3)(a), as the Plaintiff's claim was presented to the
Court as a good faith argument for the, interpretation of existing law or, at least, the establishment
of new law, as it applied to the material facts, with a reasonable expectation of success.
Further, Aronberg, in his official capacity as the State Attorney, was a proper party
hit
defendant. Strnctions are inappropriate under Fla. Stat. § 57.105.
BACKGROUND
Orr 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
2
EFTA02734009
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 Krischer.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 II
[DE 24]. In his Answer to Count I of the Complaint, Aronberg admitted that Plaintiff, The Palm
Beach Post sought but Defendants "have refused to provide access to testimony, minutes, and
other evidence presented in 2006" in the grand jury proceeding. Aronberg Answer, ¶ 72 [DE 22].
On June 8, 2020, the Court entered an Order Granting the Def ndanls' Motions to Dismiss
Count II of Plaintiff's First Amended Complaint With Prejudice The Order specifically
did not address the merits of Count I.
On July I, 2020, Aronberg filed his First Motion seeking sanctions against Plaintiff under
Fla. Stat. § 57.105. On June 8, 2020, prior to filing his First Motion, Aronberg's attorney (Douglas
A. Wyler, Esq.) served via email to Plaintiff's counsel an unified copy of the First Motion with an
enclosure letter. The enclosure lette( filed along with the First Motion [DE 35], which has
no exhibits.3 The enclosure etter panying the First Motion (but not the First Motion itself) L alleged in conclusory fashio - Aronberg did not have possession, custody, or control of the
grand jury documents t by Plaintiff. See [DE 45] at Ex. A. Importantly, however, there was
no evidence record to confirm this allegation, and the First Motion did not refute or even
2 whi ch of the Epstein saga is a matter of public record, the public still does not know how
former State Attorney Krischer 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].
3
EFTA02734010
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 udgment [DE 38]
and an affidavit by Aronberg [DE 39] averring that he did not have s control over the
Epstein grand jury materials and had no authority to demand that e 4Court provide access
to the materials. This was the first record evidence relay berg's lack of possession or
control of the grand jury materials sought by The P ost. Notably, Aronberg's affidavit
still did not refute or address the State Atto bility to object to or otherwise impede an
attempt by Plaintiff to seek grand jury documents.
On October 21, 2020, Aronberg filed a motion to set a hearing on his Motion for Summary
Judgment [DE 47]. On that same date, Plaintiff filed a Notice of Dropping Party as to Aronberg,
dismissing him from the case [DE148].
On November 9,1020, Aronberg filed his Amended Motion for Attorneys' Fees [DE 50],
seeking sanctions under Fla. Stat. § 57.105 against Plaintiff relating to all fees and costs incurred
by Aronberg after June 8, 2020. The Amended Motion, unlike his First "place-marker" Motion
filed oh July 1, 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.
See Aronberg's October 14, 2020 Reply [DE 45], at 5, 13.
4
EFTA02734011
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
I. 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 or 'defense when
initially presented to the Court or at any time before trial was not supported by material facts
necessary to establish the claim or defense, or would not be supported by the application of then-
existing law to those material facts. To award sanctions, "the trial co t find that there were
no justiciable issues of law or fact and that the losing pa ey did not act in good faith
based on the representations of his or her client." Sieg v. , I So. 3d 205, 211 (Ha. 2d DCA
2011) (quotation omitted).
Indeed, "[w]here there is an argued, as1 law and fact for a party's claim, a trial court
may not sanction that party under sec 05." Minto PBLH, LLC v. 1000 Friends of Florida,
Inc., 228 So. 3d 147, 149 (Ha. 017) (citing Kowallek v. Reim, 189 So.3d 262, 263-64
(Fla. 4th DCA 2016)) (em sis dded). Courts must apply Section 57.105 "with restraint to
ensure that it serves its intended purpose of discouraging baseless claims without casting a chilling
effect on use iof he courts." MacAlister v. Bevis Constr., Inc., 164 So.3d 773, 776 (Fla. 2d DCA
2015).
- _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
EFTA02734012
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 /indite that "the action
was `frivolous or so devoid of merit both on the facts and the law as *tgampletely untenable.'
. . . Thisburden is a heavy one." ki. (internal citations omitted em hasi)s added). Additionally,
the trial court's findings "must be based on substantial co idence presented to the court
thr at the hearing on attorney's fees or otherwise before c nd in the trial court record." Trust
4 , tAlong., LLC v. Ferlanti, 193 So. 3d 997, 100 4th CA 2016). The trial court "must make
an inquiry into what the losing party kn sholSld have known during the fact-establishment
process, both before and after suitw"r edv See Chue v. Lehman, 21 So. 3d 890, 891-92 (Fla.
4th DCA 2009).
II. ARONBERG'S AMENDED MOTION MUST BE DENIED FOR FAILURE TO
COMPLY WITH THE 21-DAY SAFE HARBOR PROVISION IN FLA. STAT. §
57.105(4) AND BECAUSE THE AMENDED MOTION WAS MOOT WHEN IT
WAS FILED
ARONRERG FAILED To SERVE 21 DAYS PRIOR To FILING THE AMENDED
MOTION ASSERTING NEW ARGUMENTS, IN VIOLATION OF FLA. STAT. §
7.105(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
EFTA02734013
Motion was filed, Aronberg was required to independently comply with the 21-day safe harbor
provision of Section 57.105(4). Lago 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-one-day `safe
harbor' provision of section 57.105(4)."). His failure to do so requires denial of the Amended
Motion. See Id.
As the Fourth District Court of Appeal noted in Logo, "(t]o hold otherwise would allow a
party to raise a new ground for sanctions in a subsequent motion under section 57.105 without
giving the other side the opportunity to withdraw the offending claim or defense within twenty-
one days after receiving notice of the new ground for sanctions." Id. Because Aronberg's
barebones First Motion did not include the substan e argutnents or cite any evidence now raised
in the Amended Motion, Aronberg was 4iLed t8 serve the Amended Motion at least 21 days
before filing same, in order to give The, at Beach Post the opportunity to withdraw the count
that remained against Aronberg (Count I). The Amended Motion was filed in violation of Fla. Stat.
§ 57.105(4) and must be denied.
B. Tita AMENDED MOTION WAS MOOT UPON FILING.
On November 9, 2020, Aronberg filed the Amended Motion seeking sanctions against
Plaintiff relating 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
EFTA02734014
C. ARONBERG'S SELF-DESCRIBED "PLACE-MARKER" FIRST MOTION FOR
SANCTIONS WAS INSUFFICIENT AND DID NOT ABSOLVE ARONBERG OF TIIE
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 Plaintiffion notice
that the State Attorney would seek sanctions should he prevail on the merits of the'lawsuit.").
The First Motion for sanctions was insufficient under Fla. Stat,§ 57./05 when filed — it set
forth no substantive arguments as to why Count 1 of the Amended Complaint was insupportable
based on material facts in the record or the application of existing latv to those facts. Rather, at the
time the First Motion was filed, there was no evidence ' erecord supporting the statement by
Aronberg's counsel that it was impossible for him or the State Attorney's Office to provide the
documents sought in the Complaint.
Essentially, what Aronberg a s "place-marker" First Motion is that if he prevailed
in defending the lawsuit, his atto es should be awarded as sanctions against Plaintiff in his pi
favor.' There is no such milrrniSm as a "place-marker" motion for sanctions. Otherwise, any
defendant could file a threadbare and conclusory "place-marker" notice of his intent to seek fees
if he ultimately prevails, and then seek fees based on later-filed evidence and arguments.•A motion
for sanctions must 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
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 Fla. Stat. § 57.105.
8
EFTA02734015
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 the Voglleast, the
Where an issue is novel and complex, sanctions under Sec (a) may not be
establishment of new law, based on the material facts.
imposed. Grove Key Marina, LLC v. Casamayor, 166 So. 3d 879 (F1 d,DCA 2015). Sanctions
are plainly inappropriate under the statute where, as here, a goocluht h basis exists for a proposed
interpretation of the law applied to the material facts. See Fla. Stat. § 57.105(1). Moreover, even
in the absence of existing supportive law, if the claim at issue was presented as a good-faith
argument for the extension or modification of existing law or the establishment of new law, with
a reasonable expectation of success, the Court cannot sanction the party or its attorney. See Key
Biscayne Gateway Partners, Ltd Viyage Council for Village of Key Biscayne, 240 So. 3d 84,
87 (Fla. 3d DCA 2018) (reversing order of sanctions under 57.105 as good faith argument was
presented for extension of existing law with reasonable expectation of success).
Indeeft monetary N a. Stat. § 57.105(3)(a) mandates that sanctions shall = be awarded ‘i ii,,,
f t e court determines that the claim or defense was initially
resented to the court as a good faith argument for the extension
modification, or reversal of existimi law pr the establishment of new
law, as it applied to the material facts, with a reasonable expectation
of success. [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 Fla. Stat.
9
EFTA02734016
§ 905.27 (as alleged in Count II) or for declaratory relief to obtain grand jury materials (as alleged
in Count 0.6 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 contrast, did not
allege a Section 905.27 private right of action. Instead, Count 1 sought declaratory refiefunder the 7
U.S. Constitution's First Amendment and the Florida Constitution's analogous provisions.
The Constitutional provisions and interpretive case law, along MI Fla. Stat. § 905.27,
provided ample grounds for this Court to direct the release of the Epstein grand jury materials to
The Palm Beach Post as a surrogate for the public, or require the Court to conduct an in camera
examination of the same, to balance the public's right to know through a free media with Florida's
qualified statutory interest in grand jury secrecy, as sought in Count I. Plaintiff relied upon such
authorities in its prior filings and arguments in this matter to propose a good faith interpretation of
existing law in support of its declaratory relief claim in Count I. See, e.g., First Amended
Complaint [DE 17], at 15-19; .Plaintiff's' Opposition to Aronberg's Motion to Dismiss Count II of
the First Amended Complaint [DE 26], at 10-20; Plaintiff's Memorandum of Law in Opposition
to Aronberg's First Motion [DE 43], at 5-7. At the very least, Plaintiff provided a good-faith
argument for xtension or modification of existing law or the establishment of new law, and
thus •..Sons 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
EFTA02734017
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. I05 fees for naming husband as defendant in mortgage foreclosure proceeding,
even though husband was never a signatory to mortgage or note and plaintiff made no such
allegations, but there was at least some triable set of facts under which defendant could have been
liable). The Amended Motion for sanctions should be denied based on the explicit provisions of
Fla. Stat. §§ 57.105(1)(a)-(b) and (3).
IV. STATE ATTORNEY ARONBERG WAS A PROPER PARTY
While Aronberg alleged in the enclosure letter to his First Motion that his office did not
have physical possession of the Epstein grand jury materials, he nevertheless argued in that same
letter, relying on Section 905.27, that the_Cl- - erk should not produce them. By taking a position
\
against disclosure, Aronberg, effect,' asserted his right to the secrecy of the Epstein grand jury
materials. Stated another way, Aronberg claimed the statutory right for the State Attorney's Office
to prevent access to ttm Epstein grand jury materials, a position which actually supported the
propriety of naming him, in his official capacity, as a party defendant in this action.
As State Attorney, Aronberg was not named in this action solely as a custodian of the grand
jury records. 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
11
EFTA02734018
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' , rida law
does not prohibit his office from requesting the Epstein grand jury ma the Clerk.
Indeed, as the State Attorney is well aware, Florida Statutes Chapter/905 tot bar any State
Attorney from accessing grand jury materials, even after a defen s been convicted and
sentenced.
CONCLUSI
AS
Based on the foregoing, Plaintiff, CA Florida Hol ings, LLC, respectfully requests that the
Court deny State Attorney Dave Aronbe mended Motion for Attorneys' Fees in its entirety,
and grant such other and further re ourt deems necessary or proper.
Respectfully submitted, C
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: ([Phone Redacted]
Facsimile: ([Phone Redacted]
By: is/Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsolinsraztlaw.com
smithl(Thgtlaw.com
Fl ,Servicethlgtlaw.com
By: lsl Michael &Wel
12
EFTA02734019
MICHAEL J. GRYGIEL
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
nvaielmestlaw.com
By: Is/ Nina D. Bovajian
NINA D. BOYAJIAN
(Admitted Pro Hac Vice)
1840 Century Park East, Ste. 19
Los Angeles, California 9
Telephone: (310) 586-770
Facsimile: (310) 586—
bc) idianne tlaw.co
riveraal(d)gtlaw.com
CERTIFICATE OF SE",
..).' ..i.. I HEREBY CERTIFY that on this IS' day of My, 2trzl, a true and correct copy of the
foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system,
which will send a notice of electronic service_ or ail parties of record herein,
+ok
3/Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
13
EFTA02734020