# 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.

## CLOSING ARGUMENT OF DEFEND RONBERG
CASE NO.: 19-CA-014681

(V ASA

The matter of Defendant, DAVE ARONBERG's Att4dpd won for Attorneys' Fees, brought i pursuant to § 57.105, Florida Statutes, was heard on Sep 2 and September 8, 2022, before the Honorable Luis Delgado. Plaintiff, CA FLORID Ans N GS, LLC, Publisher of the PALM BEACH POST, appeared and was represented by n co%R. etstone, Esq., Mark F. Bideau, Esq., and Gerard Buitrago, Esq. of Greenberg Traurig. DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, appeared and w rep ed by Douglas A. Wyler of Scholz & Wyler, LLC.

# I. INTRODUCTIO
The instant 1 suit a inst the State Attorney was misguided and improper from the start. The material facts s ng Plaintiff's claim has no reasonable expectation of success in either fact or law has been o , and apparent to everyone involved in this matter — except Plaintiff and its attorneys. Specifica Mr. Aronberg's position has been consistent: neither he nor his office has possession, custody, or control of the Requested Materials and therefore the declaratory judgment sought by Plaintiff seeks materials that are impossible for the State Attorney or his office to produce and he is not a proper party to this action.

Although Mr. Aronberg's position has been continuous throughout the litigation, Plaintiff is unable to assert the same position. Despite suing Mr. Aronberg to provide access and disclose the requested

records, during the evidentiary hearing Plaintiff's witness disingenuously contended that once Mr. Aronberg said he had no objection to the Clerk releasing the records pursuant to a court order, "the Post accomplished everything that it needed from the State Attorney in the amended complaint." [2022-09-08 Transcript, 6-13]. For all intents and purposes, Plaintiff and its lawyers attempted to amend their complaint on the stand and reframe it as though it sought something entirely different from Mr. Aronberg: a voiced non-objection vs. access to and disclosure of confidential court records of which the state mey has no possession, custody, or control.

Moreover, this Court, at the conclusion of the evidentiary hearing on 8, 2022, made several requests to the parties concerning issues and case authorities it w het t ave addressed in the parties' written closing arguments and proposed judgments. One o ssues directed to Mr. Aronberg requested a discussion of Lago v. Kame By Design, LLC, 120 5 (Fla. 4th DCA 2013) (holding that "if a party files a subsequent or amended motion s ti s under section 57.105 and raises an argument that was not raised in the original moti s e n 57.105 sanctions, the subsequent motion must independently comply with the twen ne- 'safe harbor' provision of Section 57.105(4)."). Plaintiff attempts to persuade the Cou e authority of Logo that Mr. Aronberg is not entitled to § 57.105 sanctions because his A ndedl lion for Attorneys' Fees was not served before filing, and therefore allegedly failed to omply Milt the 21-day notice provision.

Because this ' ue co cems one of jurisdiction, Mr. Aronberg wishes to be abundantly clear at the outset: It mak nce whether the Court proceeds on the original Motion for Attorneys' Fees or on the Am e e n for Attorneys' Fees, and if the Court has any concerns over the efficacy of the Logo case in th atter, Mr. Aronberg encourages the Court to proceed on the original Motion for Attorneys' Fees. Such was the remedy directed by the Fourth District Court of Appeal in Lago, and such would be the simple remedy in this case, should the Court find a lack of compliance with the Amended Motion for Attorneys' Fees' 21 -day safe harbor provision. Certainly, however, Lago does not compel the Court to

{sup}`&#`x27;See Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA 2014).

disregard the Amended Motion. First, in contrast to Lago, no new arguments were raised in the Amended Motion for Attorneys' Fees that were no already raised in the original motion for section 57.105 sanctions. Lago, 120 So. 3d at 75. Although the original Motion was more condensed in its form than the Amended Motion, it clearly stated Mr. Aronberg's intention to seek attorneys' fees under § 57.105, and it discussed the 21-day safe harbor provision that commenced on June 8, 2020 with the service of the motion together with a letter demanding dismissal of the First Amended Complaint. Notably, the orig. a Motion for Attorneys' Fees expressly referenced, thereby incorporating, the June 8, 2020 , in hich the Defendant's attorney advised the Plaintiff of the facts which establish that the Fi n ed Complaint is without support in fact or law. The June 8, 2020 letter was introduced i o evi4ence at the evidentiary hearing by stipulation. This letter laid out in detail the specific reasoA c:, ronberg is entitled to attorneys' fees as a sanction under § 57.105, the same reasons argued atAcc e ,•ary hearing and in the Amended Motion.

Second, unlike Lago, the moving party ( 'I\ ot been dismissed or dropped from the case at the time his amended motion for attorneys' w led, which entitled the Lagos to a second notice and an opportunity to change their position wi w their offending motion before being sanctioned. Here, Aronbcrg as a Defendant at the time the Amended Motion for Attorneys' Fees was fil More pecifically, the timeline of events in the instant action stands in stark contrast to that of La and n essitates a different result. in contrast, Plaintiff had already

Here, P served with the State Attorney's § 57.105 Demand and its accompanying First Motion for Fees on June 8, 2020. On June 23, 2020, Plaintiff's counsel sent a letter in response indicating aintiff's refusal to drop Count I of the First Amended Complaint against the State Attorney. After waiting for the requisite 2I-day safe harbor period to pass, the State Attorney properly filed its First Motion for Attorneys' Fees. Over four months later, after settlement negotiations failed and after the State Attorney's Motion for Summary Judgment was filed, Plaintiff dropped the State Attorney as a party on October 21, 2020. Significantly, only after Plaintiff dropped the State Attorney as a party, and thus had no ability to change its position, was the Amended Motion filed. Thus, the Lago rule does not apply here and Plaintiff is unable to provide any case law or authority that fits the fact pattern of the instant case.

In short, Mr. Aronberg's § 57.105 Demand Letter and fee motions follow the proper statutory procedures and do not violate the 21-day safe harbor provision set forth in § 57.105(4) because Plaintiff dropped Mr. Aronberg as a party prior to the filing of the Amended Motion for Attorneys' Fees. The safe harbor provisions became meaningless and irrelevant once Plaintiff dropped Mr. Aronberg from its lawsuit. Plaintiff and its attorneys no longer needed notice and an opportunity to withdraw their clai declaratory relief as they had already done so by dropping Mr. Aronberg. Their instant claim to such notice is disingenuous, considering the impossibility and redundancy of droppi C nberg from the same lawsuit twice.

As further set forth below, the record evidence shows that P and its lawyers knew or should have la:own prior to filing this lawsuit that the declaratory relydc¢jrq s under 57.105(IXa), because it is unsupported by the material facts necessary to esA s is 7ind under 57.105(1Xb) because it is unsupported by the application of the law to the m ts Plaintiff and its attorneys' knew or should ha fact following Judge Marx's comm the June 3, 2020 hearing. Moreover, Plaintiff and its attorneys certainly knew or shout 'n that there were no justiciable issue of law or fact regarding their declaratory relief clai when t were served with the § 57.105 Demand Letter on June 8, 2020. fa . Alternatively, Mr. Aronberg contends that e declaratory relief claim lacks any basis in law or

The record e er demonstrates that Mr. Aronberg properly complied with § 57.105 in serving his d d filing the requisite fee motions. There was nothing improper or violative as to Mr. rsuit of attorneys' fees for defending against a claim with no basis in fact or law. Conseque Plaintiff and its attorneys have exposed themselves to sanctions under § 57.105 and Mr. Aronberg prays the Court find that he is entitled to such relief.

# H. STATEMENT OF FACTS
1. On November 14, 2019, Plaintiff filed a Complaint against the State Attorney and Clerk seeking to create a private right of action under Fla. Stat. § 905.27, in the interest of "furthering justice", to compel disclosure of the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury, as to Jeffrey Epstein, (the "Requested Materials").

2. On November 26, 2019, the State Attorney and his office received a contingency fee engagement letter and attorney-client contract from his counsel Douglas A. Wyler and the law firm of Scholz & Wyler, LLC, which was executed by the State Attorney's office.

3. On December 6,2019, the State Attorney filed his Motion to Dismiss, whic ut Plaintiff on notice that "Defendant Aronberg is not in custody or control of the [Requeste ate J and is therefore not a proper party to this action."

4. On January 17, 2020, Plaintiff filed its First Amended Co amt, h in addition to its original claim under§ 905.27 Fla. Stat., ("Count II"), added a claim fo sought an order declaring that the State Attorney and the Clerk di Relief, ("Count I"), that lease the Requested Materials.

5. On January 24, 2020, the State Attorney Complaint and a Motion to Dismiss Count II, which.11 ' i tufted Plaintiff that: wer to Count I of the First Amended

Defendant Aronberg and the Office of a to ttorney for the Fifteenth Judicial Circuit are not in custody or control of recor sought herein, and therefore Defendant Aronberg is not a proper party to t . In fact, Defendant, Sharon R. Bock, as Clerk and Comptroller of Palm B y, Florida, admits that it is the custodian in possession of the docume subject of this action.

6. On June 3, 2020, Motions to Dismiss Count Judge Marx held a hearing on the State Attorney's and Clerk's

7. D that hearing, Judge Manes made several statements putting Plaintiff on notice of the State A 's impossibility of performance as to Plaintiff's lawsuit in its entirety. See, Ex.J13, pgs. 2

8. On June 8, 2020, the Court entered its Order Granting Defendants' Motions to Dismiss Count II of Plaintiffs First Amended Complaint with Prejudice, leaving only Plaintiff's Count I seeking declaratory relief.

9. Immediately following the Court's Order, on June 8, 2020, Plaintiff was served 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").

10. In serving his § 57.105 Demand, the State Attorney 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 the First Amended Complaint within 21 days of service of the § 57.105 De and.

specificall jic ,nn Plaintiff that: 11. The State Attorney's June 8, 2020, § 57.105 Demand

First and foremost, the Complaint is not supported by the mate establish the claims asserted because neither Defendant Aronberg, State Attorney for the Fifteenth Judicial Circuit is in custod jury materials sought therein. Simply put, the declarato seeks records from my client that are impossible Accordingly, Defendant Aronberg is not a proper what, he and his office do not have possessio materials. fct)ecessary to e Office of the of the 2006 grand tight by the Plaintiff, his office to produce. action because no matter !or control of the requested

In addition to the foregoing material fac your claims are also not supported b action for declaratory relief fails b in Section 905.27(2), Florida S the claims asserted in the Complaint, lication of current law. Specifically, your car, unambiguous statutory language found states:

When such disclosure is court pursuant to subsection (I) for use in a civil case, it may be disclosed all p tes to the case and to their attorneys and by the latter to their legal associates and yees. However the grand iury testimony afforded such persons by the cou only be used in the defense or prosecution of the civil or criminal case and for no othe u ose whatsoever.

Moreover, would I J if the Plaintiff were to prevail in the declaratory action, Mr. Aronberg to comply with any court order granting disclosure of the requested ause neither Mr. Aronberg nor The Office of the State Attorney for the dicial Circuit have possession, custody, or control of the 2006 Epstein grand rds.

12. On June 23, 2020, Plaintiffs counsel, Stephen Mendelsohn, sent a response to the § 57.105 Demand refusing to withdraw the remainder of the First Amended Complaint.

13. After receiving Plaintiff's response and waiting the requisite "21 days after service of the motion," the State Attorney's § 57.105 Motion for Attorneys' Fees was filed with the Court on July 1, 2020, ("First Motion for Attorneys' Fees").

14. On August 18, 2020, the State Attorney filed his Motion for Summary Judgment, which includes an Affidavit made by the State Attorney.

15. Mr. Aronberg's affidavit confirms that (a) neither the State Attorney nor his office is in possession, custody, or control of the Requested Materials; (b) the declaratory relief sought by Plaintiff seeks materials that are impossible for the State Attorney or his office to produce; (c) neither the State Attorney nor his office have legal authority to obtain and deliver the Request Materials; (d) the State Attorney repeatedly made these facts evident to Plaintiff and the publ' A et o through the pleadings and correspondence in this matter, but also through an office p e and the State Attorney's public social media accounts; (e) neither the State Attorney n have the authority Is after a criminal case he Requested Materials from to demand that the Clerk grant the State attorney access to grand has concluded; (f) neither the State Attorney nor his office hag "41 tli\ the Clerk's office in this or any other instance; and (g) as sole custody and possession of the Requested Materials.'

16. On October 21, 2020, Plain 'lc s Notice of Dropping the State Attorney, pursuant to Rule I.250(b), Fla.R.Civ.P.

17. On November 9, 2 Fees, ("Amended Motion"), pu nt t § 57.105, Fla. Stat., which included the entirety of the State Attorney's legal fees up to 174. tc. Ai te ler.Attorney filed his Amended Motion for Attorneys'

18. Li Ise, M . Aronberg's counsel, Mr. Wyler filed his Affidavit of Attorneys' Fees on November 0 d a Verified Affidavit of Reasonable Attorneys' Fees by Mr. Robert Winess, Esq.

19. On April 22, 2021, Plaintiff filed its Motion for Summary Judgment against the Clerk as the sole remaining Defendant in this action.

20. The hearing on Plaintiff's Motion for Summary Judgment took place October 22, 2021 and final judgment was entered in favor of the Clerk on December 20, 2021.

{sup}`2` Mr. Aronberg testified and confirmed the contents of his Affidavit during the evidentiary hearing that was held September 6,2022 and September 8,2022.

21. On April 13, 2022, Mr. Aronberg's counsel, Mr. Wyler filed his Amended & Supplemental Affidavit of Attorneys' Fees and Costs as well as Mr. Aronberg's Notice of Dropping Claim for Attorney Fee Multiplier.

22. On April 14, 2022, the Amended and Supplemental Affidavit of Reasonable Attorney's Fees and costs, verified by Mr. Robert Winess, Esq., was filed with the Court.

# III. ENTITLEMENT TO & 57.105 ATTORNEYS' FEES AS SANCTIONS
# A. Legal Standard
"The central purpose of section 57.105 is, and always has been, to deter streamline the administration and procedure of the courts. Thus, the posthas expanded the circumstances where fees should be awarded and Our supreme court has also stated that section 57.105 treat attorney's fees by creating a safe period for withdrawal or Alifilings and thus of section 57.105 sees to deter meritless filings. nity to avoid the sanction of of meritless allegations and claims." v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th Accordingly, § 57.105, Fla. Stat. provides the following language authorizing the award o att s' fees as sanctions in actions such as the present litigation:

A

- \* r.
- (1) Upon the court's init attorney's fee, including amounts by the losing part time during a civil losing party's attorn presented dcfen of at ion of any party, the court shall award a reasonable ent interest, to be paid to the prevailing party in equal the losing party's attorney on any claim or defense at any ng or action in which the court finds that the losing party or the or should have known that a claim or defense when initially courtkfr at any time before trial: s not supported by the material facts necessary to establish the claim or Would not be supported by the application of then-existing law to those

Fla. Stat. § .105(1).

Thus, "(s)ection 57.105(1) clearly and explicitly confers upon the trial court the authority to award attorney's fees to the prevailing party upon the courts 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.. . twists 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. v. M, 47 So. 3d 320, 324 (Fla. 2d DCA 2010).

Moreover, "[u]nder [§ 57.105, Fla. Stat.] 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 "[c]ourts are not at liberty to disreg legislative mandate that courts shall impose sanctions in cases without foundation in material c r law e word 'shall' in § 57.105, Fla. Stat., evidences the legislative intent to impose a mandat to discourage baseless claims, by placing a price tag on losing parties who engage th vities." (Quoting Albritton v. Ferrera, 913 So. 2d 5, 8-9 (Fla. 1st DCA 2005 "section 57.105 expressly states courts 'shall' assess attorney's fees for bringing to dismiss, baseless claims or defenses.") Id.

Finally, in determining an award of san e(Sns yu lef § 57.105, the trial court's findings "must be based on substantial competent evidence" e tri 1 court "must make an inquiry into what the losing party knew or should have known du -establishment process, both before and after the suit was filed." See Trust Mortg., LLC c. 193 So. 3d 997, 1001 (Fla. 4th DCA 2016). (Emphasis added).

# B. Sanctions against Plaintiff and its attorneys are appropriate under § 57.105(1)(a) as they knew or should have known that the declaratory relief claim was not supported by material facts necessary to establish it.
First m st, the record testimony, exhibits, and authorities show that sanctions under § 57.105( i. ified against Plaintiff and its attorneys as there is no arguable basis in fact to establish that the Stat Attorney provide the grand jury records he was sued to produce.

Here, Plaintiff and its attorneys had a due diligence obligation to determine the operative facts and law prior to this lawsuit being filed, and therefore knew or should have known from the outset that Mr. Aronberg was not a proper party to this action. Despite their due diligence obligation, throughout the litigation Plaintiff was informed numerous times that Mr. Aronberg was an improper party to the lawsuit

because not only is it impossible for him to produce the requested records as he has no possession, custody, or control over them, but also because the statutes that govern the disclosure of grand jury records clearly and unambiguously do not grant such authority or power to the State Attorney.

The material facts showing that Plaintiff's claim has no reasonable expectation of success against the State Attorney have been open, obvious, and apparent to everyone involved in this matter from the start. Specifically, Mr. Aronberg's position has been consistent: neither he nor his office has po or control of the Requested Materials and therefore the declaratory relief sought by P that are impossible for the State Attorney or his office to produce, and he is not a Again, these material facts negating Plaintiff's claim against the State At ,custody, materials y to this action. re not only set forth in the June 8, 2020, § 57.105 Demand Letter, but have been the basis f iitato Attorney's defense in every pleading, filing, and/or correspondence in this matter. Mr. Ar his first Motion to Dismiss and the Motion to Dismiss C and a Twitter post pinned to the top of his account t Letter. Notably, Plaintiff even admitted in i possession of the requested records. [E ifically made these assertions in as in a press release from his office,' Sr2 2020 the press release, and his § 57.105 Demand to , Memorandum of Law that the Clerk is in Aronberg-000262).

Plaintiff and its attorneys, eir initial research, knew or should have known prior to suing Mr. Aronberg that he is not roper rty. Likewise, Plaintiff and its attorneys knew or should have known this ultimate fact and t then remaining claim for declaratory relief was unsupported by the material facts necessary to es llowing the June 3, 2020 Motion to Dismiss hearing before Judge Marx. And at the very and its attorney's certainly knew or should have known that their claim lacked any basis in fa or law once they were served with the § 57.105 Demand Letter on June 8, 2020.

During the June 3, 2020 hearing, Judge Marx drew a bright line as to when Plaintiff and its attorneys knew or should have known that Plaintiff's entire lawsuit against Mr. Aronberg had no basis in fact or law

{sup}`3` Plaintiff to this day has never informed its readers that the State Attorney issued a press release that announced the creation a web portal with all the public records related to the case. Plaintiff also ignored Mr. Aronberg's statement in the press release that "I have never seen or had access to the Epstein Grand Jury transcripts, as the State Attorney's office has never possessed them."

since the relief sought by Plaintiff 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:

"... not for nothing, I think we all know that they don't have control and custody of the records." [June 3, 2020 Hearing Transcript, p. 3:18 — 4: I].

"I think we can all agree ... that the state attorney doesn't have these records." [June 3, 2020 Hearing Transcript, p. 5:17-19].

"I'm asking you, how are the clerk and the state attorney the proper defendants?" [ e 3, 2020 Hearing Transcript, p. 8:4-6].

"I'm puzzled by the procedural posturing of this case naming the state you know, I'm further stymied by the fact that you allege in your co have—particularly David Aronberg the State Attorney — that he has 3, 2020 Hearing Transcript, p. 8:8-14]. . And, t t they 5." [June

"[ma let's run this all the way out. Let's say you win a the State Attorney Dave Aronberg. What's he suppo the grand jury testimony. He has no authority wh Hearing Transcript, p. 8:18-22]. t a judgment against it? He can't release o that." [June 3, 2020

"And the only thing we're here today about i have to defend a civil action when it's a you were to win and get a judgment a have." [June 3, 2020 Hearing Tran ou d the clerk and the state attorney ity of performance? They — even if 'they cannot give you what they don't :21 — 11:1].

"I'm simply saying why sho down the road if [you] w Hearing Transcript, p. I entities have to defend this lawsuit when even give you what they don't have?" [June 3, 2020

"And, you know, ally, I nt you to boil it down for me as to this — let's take it all the way down the road. in. You get a judgment against the clerk and the state attorney. I know th ' othe reasons why you might have filed it this way. But I'm just simply puzzled se I d hear what the clerk and the state attorney are saying, and that is, perfo possible. They don't have the records and cannot — absolutely. There's not inc of wiggle room — that they could release the records even if you got a t is solely a determination for the court. I, frankly, think, you know, there's get to your records. There's ways to get confidential records. But it isn't by the state attorney and the clerk." [June 3, 2020 Hearing Transcript, p. 16:12 — 17. ].

"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 3, 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 3, 2020 Hearing Transcript, p. 17:23 — 18:2].

Notably, despite the clear, unambiguous message sent by Judge Marx to Plaintiff and its counsel, Plaintiff's witness, when questioned about Judge Manes statements regarding Mr. Aronberg's impossibility of performance, attempted to pass off her comments as non-authoritative:

Mr. Mendelsohn: I took her statements as complete dicta since they were not before her as a question on the motion to dismiss. I did not know what personal knowledge sh had of what the state attorney's possession or non-possession was. So I did not cr t as being anything but a dicta statement from her.

[2022-09-06 Transcript, 164:8-13].

Mr. Mendelsohn's response is unpersuasive. Black's Law Dicti C h) es "Dictum," (Pl. Dicta), as: "(I) A statement of opinion or belief considered authoritative beca the dignity of the person making it. (2) A familiar rule; a maxim." It was improper for A Judge Mane Marx's and not give them any credit as e comments should have been held in high esteem and (lit ct e to Plaintiff and its attorneys. It is also e the s in tements notifying Plaintiff and its attorneys of anes notification should have carried more weight 'nt they were clearly informed by the Court that no matter significant that Judge Marx went out her way to Mr. Aronberg's impossibility of perfonna with Plaintiff and its attorneys beca sohn and Plaintiff to disregard e Chief Judge at the time and her what, even if they were to someh wi the lawsuit, the State Attorney would not be able to access and turn over the requested mat mate

Accordin yen gh Plaintiff and its attorneys were informed of Mr. Aronberg's impossibility of performan to udge Manes statements, they were undoubtedly on notice of this material fact follow' e 3, 2020 hearing. Thus, upon being served with Mr. Aronberg's § 57.105 Demand Letter on June 8, 2 20, Plaintiff and its attorneys knew or should have known that Mr. Aronberg was improper party to the action and that their remaining claim for declaratory relief was unsupported by the material facts necessary to establish it.

Notably, Mr. Mendelsohn admitted in his testimony that he and Plaintiff were unsure of who to sue, when he said: "I wanted to see, you know, who to sue, to be honest with you, in this case." [2022-0906 Transcript, 110: 4-5].° Even after detailing at length the hundreds of hours Plaintiff's attorneys' apparently researched who to sue and how to bring this case, Plaintiff and its attorneys knew or should have known, based on the relevant authorities and information available to them, that Mr. Aronberg was never a proper party to this lawsuit. Plaintiff and its attorneys knew or should have known this if not prior to the lawsuit being filed, then definitely when they were served with the 57.105 Demand Letter. [2022-09-08 Transcript, 149:6-10].

Of additional importance regarding Plaintiff and its attorneys' decision to r. nberg to release the 2006 Jam Epstein grand jury records, is Mr. Mendelsohn's reli• re Grand Jury Proceedings, 832 F.2d 554 (I I d' Cir. 1987). Mr. Mendelsohn testified th he specifically relied on this case with regard to the state attorney necessarily being a party. 4c, -09-08 Transcript, 111:18-23]. Importantly, however, the state attorney was never sued to pand ntial records in In re Grand Jury official to produce what they do not have and hav cnSmriii,r to produce. Consequently, Plaintiff and its attorneys' research was flawed. They knew sho have known through their research that suing the State Attorney was not the proper aven plishing what they sought. If Plaintiff had just followed ey rely, there would be no lawsuit and no § 57.105 Demand. There is no factual scenari wherein r. Aronberg could comply with what he was sued for and despite being notified of this t n rous times, Plaintiff and its attorneys persisted with their action against Mr. Aronberg beyo fler being served with the § 57.105 Demand. Proceedings. Rather, the state attorney was subpoenaed ic the lead of the party in the case u edly different from suing an elected

Al cance here is Plaintiff and Mr. Mendelsohn's attempt to pivot their argument and move the alposts from what they demanded in the First Amended Complaint, which alleged that Mr. Aronberg "is in possession and/or control of documents that are subject of this action" [CA/Aronberg-

The Palm Beach Post wrote an article dated September 8, 2022, which notably included the above quote and further corroborates Mr. Aronberg's allegations of Plaintiff's bad faith since Plaintiff and its attorneys should have known who to sue before improperly suing Mr. Aronberg..

000117], and sought disclosure and public access from him as to the requested records for the purpose of informing the public. [CA/Aronberg-000136].

Despite suing Mr. Aronberg to provide access and disclose the requested records, Mr. Mendelsohn disingenuously asserted that once Mr. Aronberg said he had no objection to the Clerk releasing the records pursuant to a court order, "the Post accomplished everything that it needed from the State Attorney in the amended complaint." [2022-09-08 Transcript, 6-13]. For all intents and purposes, Plainti attempted to amend their complaint on the stand and reframe it as though it sou different from Mr. Aronberg: a voiced non-objection vs. access to and disclo records of which the state attorney has no possession, custody, or control. its lawyers g entirely fidential court

There is nothing in the First Amended Complaint that Pia' show the Court that all they sued Mr. Aronberg for was to "n basis for filing the present lawsuit against the State At State Attorney merely to force him to announ Constitutional officer is a bewildering clai Mr. Aronberg has never had control o the release of the documents has imps ing fro the State Attorney in any of its pleadings. has never demanded such a its attorneys can point to and s is nowhere close to a proper laintiff to now assert that it sued the d not object to a decision of a separate considering Plaintiff was repeatedly informed that ments. As such, Mr. Aronberg's lack of "objection" to pon its possible disclosure by the Clerk. This is why Plaintiff

hn stated that Mr. Aronberg "originally voiced objection, then he changed it Further, Mr. ndel to neutrality." [ Transcript, 200:10-11]. Again, Mr. Mendelsohn is disingenuous, as he is basing this "voice tie " on the legal position asserted in the State Attorney's Motion to Dismiss, but fully ignored Aronberg's consistent position that he has never had possession, custody or control of the grand jury records. Nonetheless, Mr. Aronberg's ostensible "change to neutrality" was not a change of position because it has always been impossible for Mr. Aronberg to perform as to Plaintiff's declaratory relief claim?

s Notably, Black's Law Dictionary defines "Declaratory Judgment" as "a binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement." Accordingly, Plaintiff's

Based on the foregoing, it is apparent that the record testimony, exhibits, and authorities show that sanctions under § 57.105(1)(a) are justified against Plaintiff and its attorneys as there is no arguable basis in fact to establish that the State Attorney provide the grand jury records he was sued to produce. Thus, sanctions against Plaintiff and its attorneys are appropriate under § 57.105(1Xa), as they knew or should have known that Count I was not supported by the material facts necessary to establish their claim for declaratory relief.

# C. Sanctions against Plaintiff and its attorneys are appropriate and 7.1 1Xb) as they knew or should have known that the declaratory relief clyipl not supported by the application of the law to the material facts.
Not only is it actually impossible for Mr. Aronberg to produce th because he has no possession, custody, or control over them; it Aronberg to produce the requested grand jury records bee disclosure of grand jury records clearly and unambiguo attorney. Accordingly, the record testimony, ? e S i a ted grand jury records, ise legally impossible for Mr. tutes and rules that govern the nt such authority or power to the state authorities show that sanctions under § 57.105(1)(b) are also justified against Plaint' d ttorneys since there is no arguable basis in law to establish that the State Attorney was e provide the grand jury records he was sued to produce. Here, as before, Plaintiff and its ew or should have known through their initial research that their declaratory relief clai was uns pported by the application of the law to the material facts.

Text, context d se are the ordinary tools used for discerning statutory meaning, with the overarching pri "that judges lack the power to construe an unambiguous statute in a way which would ext or limit its express terms or its reasonable and obvious implications. To do so would be an abro Lion of legislative power." Horowitz v. Plantation Gen. Hasp. Ltd. P 'ship, 959 So. 2d 176, 182 (Fla. 2007). Here, the plain language of sections 905.17 and 905.27(2) is clear and unambiguous and, therefore, controls. Tellingly, when Mr. Mendelsohn was asked whether clear, unambiguous statutory language is controlling, he dodged the question. [2022-09-08 Transcript, 155:23 — 156:8].

declaratory relief claim also has no basis in fact or law as a declaratory judgment in its favor would only establish its rights, not enforcement of releasing the requested records.

Specifically, Florida Statutes, § 905.27(2), which governs the exceptions to disclosure of grand jury records, states:

When such disclosure is ordered by a court pursuant to subsection (1) 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. (Emphasis added).

Mr. Aronberg asserted his position of impossibility of performance under the law as appli facts based on the plain language of § 905.27. In fact, Mr. Aronberg made argumen Plaintiff and Plaintiff's counsel in his original Motion to Dismiss, the Motion 57.105 Demand Letter, and the Motion for Summary Judgment. the material statute to Count 2, the §

Mr. Mendelsohn even confirmed that he and his firm r Aronberg anyway. [2022-09-08 Transcript, 155:11-13; 160:15 requested materials were not being sought in connection Transcript, 15-18]. 5.17 and 905.27, but sued Mr. endelsohn also admitted that the ing criminal or civil case. [2022-09-08

Further, this same argument was ulf (SI\ tely ized in Judge Hafele's Final Judgment in favor of the Clerk since the Plaintiff admitt 'd seek to use the requested materials in the defense or fically, the Final Judgment in favor of the Clerk states: prosecution of a civil or criminal

Ex.J30. Again, Plaintiff admittedly was attempting to gain access to the requested records for public disclosure purposes that had no connection to a pending criminal or civil case. Section 905.27(2) clearly

In interpreting a st ute, the curt must respect the role of the legislature, the legislative process, and the Ian f the statute. "'A court's function is to interpret statutes as they are written rve ect to each word in the statute."' State v. Sampaia, 291 So. 3d 120, 125 (Fla. 4 A 2 0) (quoting Fla. Dept of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 32 Ia. 2001). "[W]hen legislation is clear 'our task is to apply the text, not impro it. ' Kaplan v. Epstein, 219 So. 3d 932, 933 (Fla. 4th DCA 2017) (quoting Pa Flare v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989). "It is our uty to interpret the law as given us by the people in the Constitution or by the slature. We are not permitted to substitute judicial cerebration for law or that which we tank the law should be and command that it be enforced." in re investigation of Circuit Judge of Eleventh Judicial Circuit of Florida, 93 So. 2d 601, 608 (Fla. 1957). "As courts, we should never forget that in construing acts of the legislature, we are concerned only with the power of the legislature to enact the law. Our peculiar social and economic views have no place in such a consideration." Tyson v. Lanier, 156 So. 2d 833, 838 (Fla. 1963).

and unambiguously states that disclosure of records like those requested here "can only be used in the defense or prosecution of the civil or criminal case and for no oilier purpose vdiatsoever." Accordingly, based on Plaintiff's attorneys' research and experience they knew or should have known that the declaratory relief claim was unsupported by the application of the law to the material facts.

Moreover, Florida Statutes § 905.17 states the following:

The notes, records, and transcriptions are confidential and exempt from the prov s of s. 119.07(1) and s. 24(a), Art 1 of the State Constitution and shall be released b rk only on request by a grand jury for use by the grand jut,' or on order of the c to s. 905.27. (Emphasis added).

Mr. Mendelsohn admits to being aware of this statutory provision in his respect C od ed Mr. Aronberg, the State Attorney anyway. [2022-09-08 Transcript, 155:11-13; 160:15-16 . etheless, here, the plain language of sections 905.17 and 905.27(2) is clear and unambigu Plaintiff and its attorneys knew or should have known If itial research that their declaratory relief claim was not supported by the application of V 'IC\* to t material facts. erefore, controls. Accordingly,

In addition to the foregoing, prior to ft have known the proper legal mechanism Florida Rules of General Practice an he suit Plaintiff and its attorneys knew or should ing the grand jury records they seek: Rule 2.420(j), dministration, which only requires the filing of a "motion" seeking disclosure. Here, the evid e s ws Plaintiff and its lawyers failed to follow the proper procedure in requesting the records so Iry • his case as detailed at length in Judge Hafele's Final Judgment in favor of the Clerk. Nola all Pla ntiff had to do was file a Motion Seeking Disclosure in the underlying case and serve the ereto. That underlying case is State of Florida v. Jeffrey Epstein, Case No. 2006- CF-94 rt er Mr. Aronberg nor his office is a party thereto. Furthermore, when asked whether he was famili ith the foregoing rule prior to filing this lawsuit, Mr. Mendelsohn responded "absolutely." [2022-09-08 Transcript 183:22 - 184:1]. Consequently, prior to filing the instant lawsuit Plaintiff and its attorneys knew or should have known that their declaratory relief claim against the State Attorney was unsupported by the application of the law to the material facts.

Finally, the above legal arguments, which have been presented to Plaintiff and its lawyers several times, including Mr. Aronberg's 57.105 demand letter, show that it is legally impossible for Mr. Aronberg to produce the requested grand jury records because the statutes and rules that govern the disclosure of grand jury records clearly and unambiguously do not grant such authority or power to the State Attorney. Accordingly, the record testimony, exhibits, and authorities demonstrate that sanctions under § 57.105( I )(b) are justified against Plaintiff and its attorneys, as there is no arguable basis in law to establi Attorney provide the grand jury records he was sued to produce. Here, as before, Pla" knew or should have known through their initial research that their declaratory re by the application of the law to the material facts. at the State attorneys as unsupported

# D. Mr. Aronberg's Amended Motion for Attorney does not violate the 21-da) safe harbor provision because Plaintiff drop prior to the filing of the Amended Motion. e Attorney from the action
"Section 57.105(4), Florida Statutes creates an by creating a safe period for withdrawal or ame Bailynson, 268 So. 3d 762, 769 (Fla. 4th DC o avoid the sanction of attorney's fees eritless allegations and claims." v. ifically, the relevant portion of the Statute states:

A motion by a party seeking filed with or presented to o th c challenged paper, claim, efens , appropriately corrected. der this section must be served but may not be , within 21 days after service of the motion, the ontention, allegation, or denial is not withdrawn or

Fla. Stat. § 57.105(4).

Likewise, e pririary purpose of the safe harbor provision of § 57.105(4), Fla. Stat., is to provide the to with Points Serv, f a motion for an award of costs and attorney's fees with notice and the opportunity ;don a frivolous claim before sanctions are sought." MC Liberty Express, Inc. v. A!! 252 So. 3d 397, 404 (Fla. 3d DCA 2018). (Emphasis added).

Here, Plaintiff contends that the State Attorney failed to serve his Amended Motion at any time before filing it, and therefore failed to comply with the 21-day notice provision. Plaintiff claims that for this reason alone the Amended Motion should be denied and cites in support of its argument Lego v. Kame By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA 2013) (holding 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 21-day 'safe harbor' provision of Section 57.105(4).").

The instant case, however, is distinguishable from Lago. In Lago, the moving party (Kame) had not been dismissed or dropped from the case at the time his amended motion for attorneys' fees was filed, so the Lagos still had an opportunity to change their position and Kame was thus required o ve a second safe-harbor notice. In Logo, the case was still active when the plaintiff filed its otion for attorneys' fees, which meant that the defendant was entitled to notice and an y to change its position and withdraw its offending motion before being sanctioned.

The timeline of events in the instant action stands in stark to that of Lago and necessitates a different result. Here, Plaintiff was served with the S ey's § 57.105 Demand and its accompanying First Motion for Attorneys' Fees on June June 23, 2020, Plaintiffs counsel sent a letter in response indicating Plaintiff's refusalto of the First Amended Complaint against the State Attorney. After waiting for the requisi e harbor period to pass, the State Attorney properly filed its First Motion for Attorneys' F ur months later, after settlement negotiations failed and after the State Attorney's Motion r Su Judgment was filed, Plaintiff dropped the State Attorney as a party on October 21, 202 Signi r ntly, only after Plaintiff dropped the State Attorney as a party, and thus had no ability to ang its position, was the Amended Motion filed. Thus, the Lago rule does not apply here and ti nable to provide any case law or authority that fits the fact pattern of the instant case.

in, because Mr. Arenberg had already been dropped as a party when his Amended Motion for Attorneys' Fees was filed, the safe harbor provision became meaningless and irrelevant as Plaintiff and its attorneys no longer needed notice and an opportunity to withdraw their claim for declaratory relief, as they had already done so. In this instance, the safe harbor provision was moot upon Plaintiffs dropping of Mr. Arenberg as a party and no additional 21-day safe harbor period was necessary.

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 "operates as an adjudication on the merits." See, Siboni v. M, 52 So. 3d 779, 781 (Fla. 5ih DCA 2010); Rule 1.420(aX1) 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. [DelEx.10, p.7]. As a result of dropping the State Attorney from the case, Plaintiff not only effectively made an admission that its allegations against the State Attom 4y ye ., no basis in fact or law, but also concluded the case as to the State Attorney and thereby beca losi g party in this action.

Consequently, unlike the fact scenario and timeline in Lago, becaus Plaint] concluded the instant litigation by dropping the State Attorney from the action before the impossible to give Plaintiff an opportunity to respond and Plaintiff had already done so, and therefore there can f the Amended Motion, it was declaratory relief claim since n of the 21-day safe harbor provision set forth in Fla. Stat. § 57.105(4). As stated earli se of the 21-day safe harbor provision of § 57.105(4) is to give the recipient a chance t ang urse and drop the movant from the lawsuit, IMC Liberty Express, 252 So. 3d at 404, b p ose is moot when the recipient has already dismissed its claim. After waiting four months o fin rop the State Attorney from its lawsuit, Plaintiff is Dying to avoid sanctions by someho claimin at it should have been given an extra 21 days to dismiss the State Attorney after the law it wa r ver. Plaintiff's argument turns Lago's on its head and makes no legal sense.

Based a oing, the State Attorney's Amended Motion does not violate the 21-day safe harbor pro use Plaintiff dropped him from the action prior to the filing of the Amended Motion, and there Plaintiff was not prejudiced by the filing of the Amended Motion. Accordingly, as further set forth below, Plaintiff has exposed itself to § 57.105 attorneys' fees as sanctions for failing to drop the State Attorney as a party within the 21-day safe harbor period.

# E. Mr. Aronberg's Amended Motion for Attorneys' Fees did not raise additional or new legal arguments pertaining to the entitlement of fees.
In any event, unlike the movant in Logo, Mr. Aronberg's Amended Motion for Attorneys' Fees did not raise new or additional legal arguments pertaining to the entitlement to fees. Specifically, although the original Motion for Attorneys' Fees was more condensed in its form than the Amended Motion, it nonetheless stated Mr. Aronberg's intention to seek attorneys' fees under § 57.105, and it disc the 21 day safe harbor provision that commenced on June 8, 2020 with the service of the motion er with the §57.105 Demand Letter to dismiss the First Amended Complaint and its remaini ifhp:i) for declaratory relief.

Notably, the original Motion for Attorneys' Fees expressly referen CaAd thereby incorporated, the June 8, 2020 § 57.105 Demand Letter in which the unde nsel advised Plaintiff and its attorneys of the facts that establish that the declaratory re hi ' \c without support of the facts or the law. The Demand Letter was introduced into evide NI, "ct e e e identiary hearing by stipulation and laid out in detail the specific reasons Mr. Aronberg • tit! o attorneys' fees as a sanction under § 57.105, which are the same reasons argued at the a earing and in the Amended Motion.

Plaintiff's counsel indisput' this correspondence, and in fact filed a letter dated June 23, 2020, disputing the assertion , refusing to withdraw the declaratory relief claim against Mr. Aronberg, and insisting inst Mr. Aronberg withdraw his § 57.105 demand. The Amended Motion for Attorneys' F ply in ludes the procedural events in this case which had not yet occurred at the time the origi on ad been filed, and discusses the reasonableness of attorneys' fees incurred from the dat rvice of the § 57.105 demand to the filing of the Amended Motion. To be clear, the Amended M tion does not include any new or additional grounds for an award of attorneys' fees and based on the foregoing was not improperly filed.

Also, in thoroughly researching the relevant authorities, there does not appear to be any case law requiring a motion for attorneys' fees under § 57.105 to be pled with specificity in such a manner to preclude relief if pleading requirements are not met. Likewise, Mr. Aronberg's fee motions comply with Rule 1.525, Florida Rules of Civil Procedure, which states: "Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment." Mr. Aronberg clearly complied with the Statutes and Rules as he filed his original Motion for Attorney's fees on July I, 2020, more than 21 days after serving his §57.105 Demand Letter, and he filed his Amended Motion for Attorneys' Fees on November 9, 2020, which was within 30 days of being dropped as a party on October 21, 2020. Thus, even if the Court were to find the Amended Motion to be improper, it can ti proceed on the original Motion for Attorneys' Fees. In fact, despite finding that the plaintiff's ded otion for attorneys' fees was improper in Lago, the appellate court instructed the trial to the plaintiff's original motion for attorneys' fees, since it was properly served and filed ttsuagt to § 57.105, Fla. Stat. Lago, 120 So. 3d at 75.

Accordingly, the foregoing shows that notice intent of r provision was satisfied based on the timing of Mr. Aronberg's § 57.105 Demand Le i ee motions. Thus, the only remaining requirement pertains to the sufficiency of the evid ed at the evidentiary hearing.

# F. S7.105(3Xa) Defense is Ina
Plaintiffs reliance on § 57.lfl 3 s a defense to Mr. Aronberg's attorney fee claim is inapplicable. Specifically, § 57.1

- 3) Notwithstandi subsec ns (1) and (2), monetary sanctions may not be awarded:
- (a) Under pare Xb) if the court determines that the claim or defense was initially preset ed to e court as a good faith argument for the extension, modification, or reversal of ling la or the establishment of new law, as it applied to the material facts, with a xpectation of success.

Plaintiff a ist the language of the statute in two different ways to suit its argument. First, Plaintiff toils entirely to recognize that the 57.105(3Xa) defense applies only to claims made under 57.105(1)(b). Here, Mr. Aronberg asserted his claim for 57.105 sanctions under both sections (1Xa) and (I)(b), so none of Plaintiff's attempts at trying to establish good faith have any effect on Mr. Aronberg's assertion under § 57.105(1Xa) — that Plaintiff's declaratory relief claim fails because it is unsupported by the material facts necessary to establish it.

Moreover, Plaintiff attempts to add a word that is nowhere found in the statute: "interpretation."

Plaintiff argues that its declaratory relief claim was presented to the Court as "a good faith argument for the interpretation of existing law or at least, the establishment of a new law." Nonetheless, the 57.105(3Xa) defense only applies to claims arguing for the "extension, modification, or reversal of existing law or the establishment of a new law...." Here, Plaintiff's claim for declaratory relief only sought interpretation of § 905.27, not an extension, modification, or reversal of the Statute. Plaintiff's only claim that sought to create a "new law" was its Count 2, which was dismissed with prejudice and is not part of Mr. A for sanctions. rg's claim

Plaintiff's argument that sanctions pursuant to §57.105(1)(b) are unjustifi also fails because there is no arguable basis in law that the State Attome "S§ 57.105(3Xa) provide the Requested Materials. [See, I.C., supra.]. In determining an award of sanctio § 57.105, the trial court "must make an inquiry into what the losing party knew or should have gthefact-establishmentprocess, both before and after the suit was filed." See Trust Mon erlanti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016); See also Chue v. Lehman, 21 So. 3d (Fla. 4th DCA 2009). Here, Plaintiff's factestablishment process began before either of it rigi omplaint or First Amended Complaint were filed. Both of Plaintiff's pleadings revolved 905.27 and whether it had const "in furtherance of justice."' ments for a private right of action under Fla. Stat. § 'statutory standing to overcome grand jury secrecy provisions

Nonetheless, rida w regarding the disclosure of grand jury materials, § 905.17(1), states:

and transcri i tions are con :dentin! and exempt from the provisions I) and s. 24(a), Art. I of the State Constitution and shall be released by the request by a grand jury for use by the grand jury or on order of the court t to s. 905.27. (Emphasis added.)

Acc Singly, based on the clear, unambiguous statutory language set forth in § 57.105.17(1), only the Clerk, not the State Attorney, may release grand jury materials pursuant to an order of the court. Thus,

{sup}`7` Significantly, any and all arguments offered by Plaintiff regarding the "furtherance of justice" exception set forth in § 905.27, Florida Statutes is moot since Count 2 was dismissed with prejudice and is not the subject of Plaintiff's remaining claim for declaratory relief, Mr. Aronberg's § 57.105 Demand Letter or the Amended Motion for Attorneys' Fees.

it was easily apparent that the State Attorney and his office lack the legal authority to obtain and deliver the Requested Materials demanded by Plaintiff in Count I of the First Amended Complaint.

As set forth at length above, the clear, unambiguous statutory language in §§ 905.17 and 905.27(2), Fla. Stat., and Plaintiff's admissions that it had researched these provisions prior to suing Mr. Aronberg indicate that Plaintiff and its attorneys knew or should have known through their initial research that their declaratory relief claim was unsupported by the application of the law to the material fac gardless of whether Plaintiff actually knew of the controlling provision set forth in § 905.1 dun its factestablishment process, Plaintiff was not only on constructive notice of said s ision, but was specifically informed of this provision in several instances prior to the Sta Atto ey being dropped as a party. Based on Plaintiff's own research, statutory constructive noti ate Attorney's affidavit, all of the pleadings and correspondence in this matter as well as th to Attorney's office press release and social media accounts, and Chief Judge Marx's sta g the June 3, 2020 hearing, Plaintiff knew or should have known that Count I of the omplaint "would not be supported by the application of then-existing law to [the] mat fac ' 'n this action. See § 57.105(1)(b).

Furthermore, as set forth in d r and despite Plaintiff's contentions, there is no arguable "good faith" basis in law and/or f tun 57.105(1)(a) or (b), or any reasonable expectation of success as to Plaintiff's Count I; an herefore, sanctions against Plaintiff arc appropriate under § 57.105. See Minto PBLH, LLC v. 1000 F 'ends orida, Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017). Moreover, under no set of facts d' have a reasonable expectation of success against the State Attorney in obtaining the sought ents because at no time did the State Attorney have possession, custody, or control over said uments. In fact, Plaintiff acknowledged, admitted, and acquiesced to the impossibility of the State Attorney providing the Requested Materials when Plaintiff dropped the State Attorney from the action on October 21, 2020.

# G. Finding of Frivolousness Not a Factor
"Section 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). As set forth above, it is clear that Plaintiff's declaratory relief claim fails under § 57.105(1Xa) because it is unsupported by the material facts necessary to establish it, and under § 57.105(IXb) because it is unsupported by the application of the law to the material facts. In fact, although neither the word "frivolous" nor any of its derivatives are found in the Statute, Plaintiff's claim for declaratory relief is nothing more than a frivolous claim.

In determining an award of sanctions under § 57.105, the trial court's findi ust based on substantial competent evidence" and the trial court "must make an inquiry into I ing party knew or should have known during the fact-establishment process, both before a aft a suit was filed." See Trust Mortg., LLC v. Ferlanti, 193 So. 3d 997, 1001 (Fla. 4th 016). In this vein, although frivolousness is not required but is nonetheless present here, eatherby Assocs. v. Ballack, 783 So. 2d 1138 (Fla. 4ih DCA 2001) can be helpful to the Co n e fining the timing of when the sanctions against Plaintiff and its attorneys began to accrue Al cc sanctions are appropriate against Plaintiff's attorneys.

As to the first issue, although aAljby court's analysis revolves around frivolousness, defined as lacking any justiciable issues o law o ct, it applied the following 2-prong analysis: "First, the court must determine whether t suit w frivolous when initially filed. If it was not, then the court must determine whether th uit e frivolous after the suit was filed."

Here, guidance of Weatherby, substantial competent evidence was introduced to the Court sho aintiff and its counsel knew or should have known prior to filing the instant lawsuit that there re no justiciable issues of law or fact. As previously discussed, under § 57.105(1)(a) Plaintiff and its attorneys through their initial research should have known prior to suing Mr. Aronberg that he is not a proper party and should never have been sued by Plaintiff because he has no access, custody or control of the requested records and his performance is impossible.

Likewise, Plaintiff and its attorneys knew or should have known this ultimate fact and that their remaining claim for declaratory relief was unsupported by the material facts necessary to establish it following the June 3, 2020 Motion to Dismiss hearing before Judge Marx. During that hearing, Judge Marx drew a bright line as to when Plaintiff and its attorneys knew or should have known that Plaintiff's entire lawsuit against Mr. Aronberg had no basis in fact or law since the relief sought by Plaintiff is impossible for the State Attorney to perform. At the very least, however, Plaintiff and its attorneys definitely knew or should have known that there were no justiciable issue of law or fact regarding their declaratory relief claim when they were served with the § 57.105 Demand Letter on June 8, 2020. In fact, at no ti e s Plaintiff produced any evidence whatsoever to support its claim, since it is patently impossib th fa wally and legally, for Mr. Aronberg to produce the records he was sued to produce.

Likewise, under § 57.105(1Xb) Plaintiff and its attorneys knew or s uld h ve known through their initial research that their declaratory relief claim was unsupport application of the law to the material facts. As set forth above, the record testimony, exhib orities show that sanctions under § 57.105(1)(b) are also justified against Plaintiff and its to establish that the State Attorney provide the I jeords he was sued to produce, pursuant to §§ 905.27(2) and 905.17, Florida Statutes, as w R 2.420 of the Rules of Judicial Administration. se there is no arguable basis in law

As to the second issue of whet ns are appropriate against Plaintiff's attorneys as well as Plaintiff, the Weatherby court stat

When assessing attorney's that there were no j not act in g faith against a losing party's attorney, the trial court must find e issues of law or fact and that the losing party's attorney did on the representations of his or her client.

§ 57.501(1), Fl: . Here, based on the testimony of Mr. Mendelsohn, it is apparent that Plaintiff was relyin n a rneys to determine any justiciable issues of law or fact and that Plaintiff's attorneys were not ing on representations of their client in determining Mr. Aronberg's capacity for access, custody, and control of the requested documents. Plaintiff argued that it wanted access to the grand jury records for purposes of public disclosure and relied on its attorneys to accomplish that goal. Accordingly, there is no good faith defense to apply on the part of Plaintiff's attorneys as there is no record evidence that their actions were made in good faith based on representations of their client; therefore, sanctions are appropriate against both Plaintiff and their attorneys.

# H. Conclusion as to Entitlement
Despite Plaintiff's arguments to the contrary, the record evidence shows that Plaintiff and its lawyers knew or should have known prior to filing this lawsuit that the declaratory relief claim fails under 57.105(1Xa), because it is unsupported by the material facts necessary to establish it; and under 57.105(IXb) because it is unsupported by the application of the law to the material facts. Alternatively, Mr. Aronberg contends that Plaintiff and its attorneys' knew or should have known the d tory relief claim lacks any basis in law or fact following Judge Marx's comments during the 20 hearing. Moreover, Plaintiff and its attorneys certainly knew or should have known that no justiciable issue of law or fact regarding their declaratory relief claim when they re sefved with the § 57.105 Demand Letter on June 8, 2020.

Moreover, as set forth above, Mr. Aronberg's § 1 nd Letter follows the proper procedures and does not violate the 21-day safe harbor use Plaintiff dropped Mr. Aronberg as a party prior to the filing of the Amended Motio eys' Fees. Further, Plaintiff's §57.105(3)(a) defense is wholly inapplicable to Mr. Mon s c under § 57.105(1Xa) and likewise does not apply to Mr. Aronberg's § 57.I05(1)(b) clai si ce intiff's claim for declaratory relief is not a claim for the extension, modification, or reve 1 of g mg law or the establishment of new law with a reasonable expectation of success.

Rather, the rd e ence shows that Mr. Aronberg properly complied with § 57.105 in serving his demand let d g the requisite fee motions. There was nothing improper or violative as to Mr. Aronberg' f attorneys' fees for defending against a claim with no basis in fact or law. Conseque , Plaintiff and its attorneys have exposed themselves to sanctions under § 57.105 and Mr. Aronberg prays the Court find that he is entitled to such relief.

# IV. REASONABLENESS OF REQUESTED FEES & COSTS
As discussed at length above, Mr. Aronberg is entitled to attorneys' fees and costs as sanctions against Plaintiff under § 57.105, Florida Statutes because Plaintiff's claim for declaratory relief fails for having no basis in fact or law.

At the direction of Judge Hafele, the panics agreed that should the Court find Mr. Aronberg entitled to attorneys' fees as sanctions, expert witnesses would be waived as to the reasonableness phase of the hearing. Likewise, Plaintiff has stipulated to the undersigned counsel's hourly rate of \$425.00/hour.

Here, the record evidence as to reasonableness of the sanctions sought by Mr. Aronberg consists of: (1) the invoice of the undersigned counsel's law firm regarding this matter [Ex.J32]; (2) the undersigned's Amended & Supplemental Affidavit of Attorneys' Fees & Costs [Ex.J3 and (3) the Amended and Supplemental Affidavit of Reasonable Attorneys' Fees and Costs b yl t R Winess, Esq.

sought by Mr. Aronberg total \$61,840.00. Significantly, although the above-referenced invoice totals \$69,41 f.50 iq fees, it is important to note that the above-referenced affidavits certify fees sought only as Ac i 8, 2020, the date Plaintiff was served with Mr. Aronberg's § 57.105 Demand Letter, forwa rrliS, , , e total amount of attorneys' fees

Plaintiff's Bench Memo Regarding Atto item attorneys' fees sought by Mr. Aronberg fees for Travel Time in the amount of \$ of Florida disagree when sanction 'J\ ections takes issue with several of the linesanctions. Specifically, Plaintiff contends that the not compensable. Despite their contention, the courts , as here:

Although travel ti e is generally not compensable, travel time may be awarded as part of a sanction under c rcumstances, such as where a party was aware that his actions could result ' unn ssary litigation." Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co So. 3 858, 862 (Fla. 4th DCA 2014); See Eve's Garden, Inc. v. Upshaw & Ups In 01 So. 2d 976, 979 (Fla. 2d DCA 2001) (affirming award of attorney's fees el time and concluding that "travel time may be awarded when fees are a sanction"); See also Graham v. R.J. Tobacco Co., 2017 U.S. Dist. 1838 (11th Cir. Fla., Nov. 17, 2017) (finding that attorney travel time is ble where attorney's fees are sought as sanctions).

Additionally, Plaintiff contests several of the fees sought as "Administrative Entries"; however, a review of the contested entries clearly shows that while some may be classified as "clerical" or "ministerial," several cannot. Accordingly, proper and compensable time entries were made on 07/01/2020, 08/18/2020, 10/14/2020, 11/09/2020, 07/23/2021, 07/29/2021, and 08/21/2021, which total \$4,462.50, and should be included in any fee award to Mr. Aronberg.

Plaintiff also contests "Relation Back" time entries in the amount of 527,540.00. Here, Plaintiff attempts to recalculate the fees sought by Mr. Aronberg to begin on October 14, 2020, the date of Mr. Aronberg's Response to Plaintiff's Memorandum of Law in Opposition to First Motion for Attorneys' Fees. As stated above, Plaintiff and its attorneys knew or should have known that their declaratory relief claim had no basis in fact or law from the initiation of this lawsuit or at the very least as of service of Mr. Aronberg's § 57.105 Demand Letter on June 8, 2020. Similarly, Plaintiff's argument i t alternative starts the attorney fee clock on July I, 2020, which also fails for the aforemention n As to the remainder of the fees contested by Plaintiff, Mr. Aronberg and the unders sel leave their determination to the learned hands of the Court.

C

# V. CONCLUSION
Based on the foregoing, Defendant, DAVE ARO , tate Attorney of Palm Beach County, Florida, respectfully requests the Court en granting his Amended Motion for Attorneys' Fees as well as such other and fun the Court deems just or proper.

# CERT AT F SERVICE
I HEREBY CERTIFY that o pik i 6 ) y of October, 2022, a copy of the foregoing was been electronically filed with the Florid -Fi b ortal for e-service on all parties of record herein.

SCHOLZ & WYLER, LLC

Is/ Douglas A. Wyler

Arthur I. Esq. Fla. Bar No.: 108249 Richard J. Scholz, Esq. Fla. Bar No.: 0021261 Douglas A. Wyler, Esq. Fla. Bar No.: 119979 961687 Gateway Blvd., Suite 201-I Fernandina Beach, Florida 32034 (904) 261-3693 (904) 261-7879 Fax Primary: jacobsscholzlaw(gcomeast.net