Court filing, 2021-07-23

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.¶

cos¶

MEMORANDUM OF LAW IN SUPPORT OF DEF 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 h. Motion for Attorneys’ Fees, filed November 9, 2020, (“Amended Motion”), and • ereof states as follows:¶

LINE & BACK R • UND¶

• I. On Nov 2019, Plaintiff filed its original Complaint that sought to create a private right of IjQn un’ er Fla. Stat. § 905.27, in the interest of “furthering justice”, to compel disclosure o the timony, minutes, and other evidence presented in 2006 to the Palm Beach Coun uty, 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.

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, whit in addition to its original claim under § 905.27 Fla. Stat., (“Count II”), added a claim for D 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 se o rming the public.

5. On January 24, 2019, the State Attorney and c t le ch filed an Answer to Count I of the First Amended Complaint and a Motion 1t ,m ount II (“Answer/Motion to Dismiss). This filing by the State Attorney again 111c, I tiff that:

It is significant to emphasize that d lalPubiffs allegations to the contrary, Defendant Aronberg and the Office Attorney for the Fifteenth Judicial Circuit are not in custody or co t of records sought herein, and therefore Defendant Aronberg is not a p to this action. In fact, Defendant, Sharon R. Bock, as Clerk and Com r alm Beach County, Florida, admits that it is the custodian in possess’ ocuments that are the subject of this action.¶

[See, Aronberg Answer/Motion smiss Count II, p. 12]¶

6. On Jja a 3” Chief Judge Marx held a hearing on the State Attorney’s and Clerk’s MotioCI iss Count II. [Def.Ex.2].

une 8, 2020, the Court entered its Order Granting Defendants’ Motions to Dismiss Ctfynt II of Plaintiff’s First Amended Complaint with Prejudice (“Order”). IDef.Ex.31.¶

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”). [Def.Ex.4]. As a result 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.

10. Likewise, the State Attorney’s § 57.105 Demand specifiO ed Plaintiff that:

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 fo nth Judicial Circuit is in custody or control of the 2006 grand jury mater s sought therein. Simply put, the declaratory relief sought by the Plaintiff lagsords from my client that are impossible for him or his office to produ raingly, Defendant Aronberg is not a proper party to this action beca r what, he and his office do not have possession, custody, or control e R uested Materials.¶

Moreover, even if the Plain Aronberg would be unable the requested documen Attorney for the Fiftee the 2006 Epstein grand j o prevail in the declaratory action, Mr. with any court order granting disclosure of either Mr. Aronberg nor The Office of the State ‘al Circuit have possession, custody, or control of ords.¶

11. On J e 23(2020, Plaintiff’s counsel sent a response to the § 57.105 Demand refusing to w’ e remainder of the First Amended Complaint as to the State Attorney.

[Def.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.

13. Thereafter, on August 18, 2020, the State Attorney filed his Motion for Summary Judgment, which included the Affidavit of the State Attorney (“Affidavit”), IDef.Ex.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 t tting and Judgment. , pursuant to Rule participating in a hearing on the merits as to State Attorney’s Motion fo Plaintiff filed its Notice of Dropping the State Attorney from the i 1.250(b), Florida Rules of Civil Procedure. 1Def.Ex.8].

15. As the filing of Plaintiff’s Notice of Dro SI) tate Attorney operates as an adjudication on the merits as to the State Attorne nded Motion for Attorneys’ Fees, (“Amended Motion”), was filed November 9 elude the entirety of the State Attorney’s legal fees up to that date. IDef.Ex.9].

DUM OF LAW¶

I. LEGAL STANDARD¶

“The central p § 57.105, Fla. Stat., is, and always has been, to deter meritless filings and thustine 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:¶

• (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 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).¶

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 p g party upon the court’s initiative, if the court fords that the losing party … knew ou ave known that a claim or defense when initially presented to the court or at any ‘tt trial … [w]as not supported fif by the material facts necessary to establish the clai e”or would not be supported by the application of then-existing law to those mate . och v. ,47 So. 3d 320, 324 (Fla. 2d DCA 2010).¶

Moreover, “[u]nder [§ 57. intent that where a party files a eritl claim, suit or appeal, the party who is wrongfully required to expend funds for atto is entitled to recoup those fees.” County Conservation Alliance v. Marti guy 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 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, or failing to dismiss, baseless claims or defenses.”). * tat.] the legislature has expressed its unequivocal¶

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 arty under section 57.105.” Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 So. 3d 1 la. 4th AS’ DCA 2017).¶

Finally, in determining an award of sanctions under § 57.1 0 court’s findings “must be based on substantial competent evidence” and the tria c) r make an inquiry into what the losing party knew or should have known dun t p?e -establishment process, both before and after the suit was filed.” See Trust Mort , S c. / erlanti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016); See also Chue v. Lehman, 21 ? S . D , 891-92 (Fla. 4th DCA 2009).¶

H. THE STATE ATTORNEY’S OF THE 21-DAY SAFE WAS THE AMENDED MOTION IS NEITHER IN VIOLATION ()VISION IN FLA. STAT. § 57.105(4), NOR OOT 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 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 §¶

57.105(4), Fla. Stat., is to provide the recipient of a motion for an award of costs and attorney’s 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 t n er section 57.105 and raises an argument that was not raised in the original motio n 57.105 sanctions, the t subsequent motion must independently comply with the ay ‘safe harbor’ provision of Section 57.105(4).”).¶

Despite Plaintiff’s assertion, the ins forth therein does not apply based on is istinguishable from Lago, as the rule set timeline of this action. In Lago, the plaintiff served its § 57.105 demand and g motion for attorneys’ fees on June 30, 2011. After waiting for the requisite 21 arbor period to pass, the plaintiff filed its motion for attorneys’ fees with the July 29, 2011. The plaintiff then filed an amended motion for attorneys’ fees w 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 d 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¶

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 mot AS” sanctioned. re being¶

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 A 23, 2020, Plaintiffs counsel sent a letter in response i I of the First Amended Complaint against the teik ,, rney. After waiting for the requisite 21 day safe harbor period to pass, the State me S First Motion for Attorneys’ Fees was properly filed with the Court. Over 4-mon I er settlement negotiations failed and after the State Attorney’s Motion for Su party. PetEx.81. Signi thus had no abi • pattern, the e does not apply here. ‘that of Lago and the State Attorney’s § s on June 8, 2020. On June aintift’s refusal to drop the Count ent was filed, Plaintiff dropped the State Attorney as a only after Plaintiff dropped the State Attorney as a party, and ge its position, was the Amended Motion filed. Based on this fact¶

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 1A20(aX1),” 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 plaintiff’s 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.¶

“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. [Def.Ex.I 0, 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. iS¶

Consequently, unlike the fact scenario and timeline in Lago, aintiff concluded the instant litigation by dropping the State Attorney from t tio fore the filing of the Amended Motion, it was impossible to give Plaintiff an p to respond and withdraw its Count I of the First Amended Complaint since Plai ready done so, and therefore there can be no violation of the 21-day safe harbor c*o forth in Fla. Stat. § 57.105(4).¶

Based on the foregoing, the State me Amended Motion does not violate the 21-day safe harbor provision because PI ’ i ped him from the action prior to the filing of the Amended Motion, and therefo 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 fail’ the State Attorney as a party within the 21-day safe harbor period.¶

B. State 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 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 time11ft fe harbor provision of § 57.105(4) no longer applied to Plaintiff because it acquiesc te Attorney’s demand, albeit late, no longer had any opportunity to respond, an position or react to the Amended Motion as the State Attorney o er an active party in the lawsuit. le to change its¶

Furthermore, the Amended Motion was not \ t time of filing because when it was i c ites filed it incorporated the entirety of the State i tirls’ , from the time of serving the § 57.105 Demand through the time that the Sta si ttoe was dropped from the case and the action concluded. There is nothing impr r b the Amended Motion or any argument or authority offered by Plaintiff that would ak Amended Motion moot. Likewise, amended motions for attorneys’ fees are filed c u tly as a matter of course to include the entirety of fees in a lawsuit. Here, the State ey’s tal legal fees were able to be calculated and submitted at the time of filing the 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.” [Def.Ex.10, p. 8]. Despite Plaintiff’s contention,¶

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 D d s cifically 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 accordan Statute, demanding dismissal of the [First Am prior to the filing of this Motion. In sai Plaintiff of the facts which establish that t support of the facts or the law. tion, together with a tion (4) of the above mplaint, at least 21 days fendant’s attorney advised ended] Complaint is without¶

[Def.Ex.6]. Accordingly, the State Atto Az ‘r?SIC amepro, rly put Plaintiff on notice that he would seek attorneys’ fees as sanctions under during the 21-day safe harbor for Attorneys’ Fees, it cannot be consid f 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 cient despite Plaintiff’s contention.¶

In ad eviden aintiff 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.” IDef.Ex.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.¶

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 o. 3d 762, 769 (Fla. 4th DCA 2019). In this vein, a § 57.105 demand and accompanying mot’ ttorneys’ fees can be filed at any time after a lawsuit is initiated, hence even directly e to the filing of a complaint, regardless of whether any record evidence exists at e r support of the § 57.105 demand. In fact, § 57.105(1) specifically states in perti9s%p at:¶

[T]he cowl shall award a reasonable attorney’s f y claim or defense at pny time during a civil proceeding or action in ourt finds that the losing party or the losing party’s attorney knew o ave known that a claim or defense when initially presented to the co t 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 indicatcs that the State Attorney’s First Motion for Attorney’s Fees, as rve an filed, is sufficient under § 57.105 to seek sanctions from Plaintiff for i drop the State Attorney from the instant lawsuit within the 21-day safe hart n after being notified why its First Amended Complaint had no basis in fact or . Furthermore, as set forth at length above, despite Plaintiffs contention, the State Attorney had no obligation to serve his Amended Motion prior to filing it with the Cowl as Plaintiff had already dropped him from the case when it was filed.¶

III. 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 inqui losing party knew or should have known during the fact-establishment pro after the suit was filed.” See Trust Mortg.. LLC c. Ferlanti, 193 So. 3d 2016); See also Chue v. Lehman, 21 So. 3d 890, 891-92 (Fla. 4th DC o what the th before and I (Fla. 4th DCA¶

Here Plaintiff relies on § 57.105(3Xa), which sets f improper under the Statute: enario where sanctions arc¶

• 3. Notwithstanding subsections awarded:
  • (a) Under paragraph defense was initially pres extension, modificatio new law, as it applt pf success.
• (1) , nTonetary sanctions may not be urt 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

Fla. Stat. § 57.105(3)(a).¶

In support of pooh, Plaintiff unpersuasively relies on the court’s determination in MC Liberty Expr c. 11 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 w 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 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, Plaintiff’s arguments exclude the limitation that the § 57.105(3Xa) d fense only applies to demands made under § 57.105(1)(6). Accordingly, Plaintiff’s attem revent an award of sanctions here only applies to whether Plaintiff or Plaintiff’s a ew or should have known” that the First Amended Complaint “when initially p n e court or at any time before trial … (b) would not be supported by the applic • o n-existing law to those material facts necessary to establish their claim.” [See, OA.¶

Despite Plaintiff’s argument that sanctions p 57.105(1)(b) are unjustified based on the defense provided under § 57.105(3)(a h s argument fails as there is no arguable basis in law that the State Attorney pm ’ …” e ested Materials. In determining an award of sanctions under § 57.105, the trial ” r t make an inquiry into what the losing party knew or should have known during the ishmentprocess, both before and after the suit was filed.” See Tntst Mortg., LLC c. ti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016); See also Chue v. Lehman, 21 So. 3 -92 (Fla. 4th DCA 2009). Here, Plaintiff’s fact-establishment process began befo o its original Complaint or First Amended Complaint were filed. Notably, both p volved 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.”¶

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’ t i als pursuant to 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 dem y Plaintiff in Count I of the First Amended Complaint.¶

Regardless of whether Plaintiff actually f controlling provision set forth in § 905.17(1) during its fact-establishment p Plaintiff was not only on constructive notice of said statutory provision, Plaintiff wa y informed of this provision in several instances prior to the State Attorney be* research, statutory constructive ce, the State Attorney’s affidavit, all of the pleadings and as a party. Nonetheless, based on Plaintiff’s own correspondence in media accoun ief Judge Manes statements during the June 3, 2020 hearing, Plaintiff should ha that Count 1 of the Amended Complaint “would not be supported by the applicatio f then-existing law to [the] material facts” in this action. See § 57.105(1)(b). well as through the State Attorney’s office press release and social¶

B. Sanctions against Plaintiff are appropriate under § 57.105(1)(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(1)(6), sanctions would 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 ill 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.” claim or¶

As to § 57.105(1Xa), the material facts showing that Plaint’ expectation of success have been open, obvious, and apparent involved in this matter from the start. Specifically, the State Attorney’s positio onsistent: neither he nor his office has possession, custody, or control of the Re V i’gb erials and therefore the declaratory relief sought by Plaintiff seeks materials that s i iS o , • le for the State Attorney or his office to produce and he is not a proper party to tILr • asetion Def.Ex.7,14113-4]. Again, these material facts negating Plaintiff’s claim against S torney were not only set forth in the June 8, 2020, § 57.105 Demand Letter, but hay e basis for the State Attorney’s defense in every pleading, filing, and/or correspond 474, ’ this matter. Oas no reasonable¶

Plaintiff Id ha e known from the initiation of the case that the First Amended Complaint w no pported by the material facts necessary to establish their claim for declaratory relief; 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 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].¶

“I think we can all agree … that the state attorney doesn’t have these r egec” e[ 8, 2020 Hearing Transcript, p. 5:17-19].¶

“I’m asking you, how are the clerk and the state attorney the ro endants?” [June 8, 2020 Hearing Transcript, p. 8:4-6].¶

“I’m puzzled by the procedural posturing of this c g the state attorney. And, you know, I’m further stymied by the fact t o ge in your complaint that they have — particularly David Aronberg rney — that he has these records.” [June 8, 2020 Hearing Transcript,¶

“[O]■, let’s run this all the way out. s you win and you get a judgment against the State Attorney Dave at’s he supposed to do with it? He can’t release the grand jury testi as no authority whatsoever to do that.” [June 8, 2020 Hearing Transc -22].¶

“And the only thing we’ attorney have to defen They — even if you were you what they do y about is why should the clerk and the state etion when it’s a [im]possibility of performance? in and get a judgment against them, they cannot give .” [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. 1 I:12-15].¶

u know, really, I want you to boil it down for me as to this — let’s take it all e 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].¶

“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, custody, or control of the Requested Materials:¶

“My understanding is that the state attorney has asserted 0 not have possession. It’s not my understanding that the clerk has taken at sition. So the clerk may indeed be the — someone who does have es , custody, and control.” [June 8, 2020 Hearing Transcript, p. 9:1-6¶

“Two points, your Honor: One is that, again, t %Ic t, not assert in her papers that she does not have control. That is a po • •ci he State Attorney’s Office has asserted.” [June 8, 2020 Hearing Tra p. 7:10 - 13].¶

Consequently, following the June 3 tion to Dismiss Hearing, at the very least, Plaintiff knew or should have known .105(I)(a) that Count I of the Amended Complaint “was not supported by the ma I necessary” to establish their claim. See Fla. Stat. § 57.105(1)(a). In fact, later theCd e day that Chief Judge Marx entered her Order Granting Defendants’ Motio to D Count II with Prejudice, the State Attorney’s § 57.105 Demand and accom • Motion for Attorneys’ Fees was served on Plaintiff explaining the impossibi i 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.¶

C. Plaintiff’s 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¶

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 accerts. 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 fro sanctions under section 57.105, we would be abdicating our duty and violating Article g 3 of the Florida Constitution.” Moreover, while Plaintiff’s Count II may fall int gory of being “novel” since it sought a private right of action under § 905.27; how er, P afiff’s Count I does not rise to such a level as it merely seeks declaratory relief. R laintiff’s arguments in support of Count I have no good faith basis or reasonable toa of success as further set forth below.¶

Here, it is apparent that Plaintiff’s Co td \Iaratory relief is neither novel or complex. All of the available facts since the initia co• li amie of th ase and thereafter have stood in stark contrast to Plaintiff’s alleged “well-found • and “good faith” argument in support of Count 1. Oddly, in arguing for novelty a co 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 overt me grand jury secrecy provisions “in furtherance of justice.” See. C 905.27.2 N tef Judge Marx’s June 8, 2020 Order Dismissing Count II with Prejudice alrcad d 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¶

{sup}2 Although Plaintiff makes an attempt to continually argue Count II after it was dismissed with prejudice it is significant to note that 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).¶

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 decl tory relief claim in Count I.” [Def.Ex.10, p. 10]. The simple fact of the matter is that Count I er 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 e¶

Additionally, Plaintiff was on notice and shouldhould that the State Attorney had no possession, custody, or control of the Requeste g ra • as of November 26, 2019, at the earliest, when the State Attorney’s Motion to S S d• filed in response to Plaintiff’s original Complaint. That filing specifically s that espite Plaintiff’s allegations to the contrary, Defendant Aronberg is not in cust of of the records sought and is therefore not a proper party to this action.” Beyond utl notice, as set forth above, based on Plaintiff’s own research, statutory const notice, the State Attorney’s affidavit, all the pleadings and correspondence i s ma r 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 kno unt 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 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 y reasonable expectation of success as to Plaintiff’s Count I; and therefore, sa appropriate under § 57.105. See, Minto PBLH, LLC v. 1000 Fr’ o7T7orida, Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017). Moreover, under no set c d Plaintiff have a reasonable expectation of success against the State Attorney in ic to at no time did the State Attorney have poss c cc u dy, or control over said documents. In fact, Plaintiff acknowledged, admitted, acqu ed to the impossibility of the State Attorney providing the Requested Material ‘ntiff dropped the State Attorney from the action on C.) October 21, 2020. inst Plaintiff are e sought after documents because¶

IV. THE RECORD CE INDICATES THAT PLAINTIFF KNEW OR SHOULD HAVE KN WN STATE ATTORNEY WAS NOT A PROPER PARTY, THAT THERE ASIS IN FACT OR LAW AS TO COUNT I, AND THAT THERE WAS ONABLE EXPECTATION OF SUCCESS.¶

e foregoing arguments and record evidence set forth at length above, it is apparent t 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 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. n eS as the¶

C.)¶

/s/Dou yler¶

SCH LER,LLC¶

bs, Esq.¶

{sup}Ni rouglar asA.w No.: 0y012erl2E6s1q. No.: 10249¶

J. Scholz, Esq.¶

Ac ci .e Fla. Bar No.: 119979¶

961687 Gateway Blvd., Suite 201-1¶

Fernandina Beach, Florida 32034¶

(904) 261-3693¶

(904) 261-7879 Fax¶

Primary: jacobsscholzlaw@comcast.nct¶

Attorneys for Defendant, Dave Aronberg¶

( S. ?1*.CERTIFICATE OF SERVICE¶

ERTIFY that on this 23rd day of July, 2021, a copy of the foregoing has been electroniciijy filed with the Florida E-File Portal for e-service on all parties of record herein.¶

/s/ Douglas A. Wyler¶