IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-AG 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.

# RESPONSE IN OPPOSITION TO STATE MOTION TO ALTER OR AMEND O1W FOR ATTORNEYS' FEES UNDER Y DAVE ARONBERG'S G THE AMENDED MOTION STATUTES SECTION 57.105
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Plaintiff, CA FLORIDA HOLDINGS, L the Publisher of The Palm Beach Post ("The gef Post"), submits this Response and Memorandum in Opposition to State Attorney Dave Aronberg's ("State Attorney" or "Mr. Aron rg") Peibruary I, 2023 Motion to Alter or Amend Order Denying the Amended Motion fo 7. 4"rn, eys' Fees under Florida Statutes Section 57.105 ("Motion to Alter"). For the S ns sedforth below, the Motion to Alter should be denied.

# INTRODUCTION
e Attorney's Motion to alter should be denied. There is no reason to alter or amend the Court's January 31, 2023 Order Denying the Amended Motion for Attorneys' Fees Under Florida Statutes Section 57.105 (the "Order). The Court correctly determined that the State Attorney sought relief at the September 6 and 8, 2022 evidentiary hearing (the "Hearing") based upon both his July I, 2020 self-described "place-marker" Motion for Section 57.105 Attorneys' Fees (the "First Motion"), which he expressly incorporated into his November 9, 2020 Amended Motion for Section 57.105 Attorneys' Fees (the "Amended Motion"), as well as the Amended Motion. The Court's Order properly disposed of both motions, even though the State Attorney had fused them together such that the Amended Motion superseded his First Motion. As the docket reflected two motions, it was appropriate for the Order to expressly dispose of both motions. Thus, the Court correctly held: "Accordingly, the July 1, 2020 Motion for Attorneys' Fees is DENIED."

# ARGUMENT
The July I, 2020 Motion for Attorneys' Fees—which the State A to as a "place-marker" motion—was expressly incorporated into a Attorney's Amended Motion for Fees filed on November 9 ,2 made clear that the State Attorney always intended to flu c4) ed motion supplementing his The'Sic t Motion (an 11-page motion with ate Attorney's barebones argument from two-page enclosure letter into the Amended Ex. "A". The Amended Motion also sought fees red by the First Motion. See id. at 7 and Ex. "F". Further, gued that his Amended Motion related back to the First Motion f the Amended Motion could be cured by utilizing the First Motion's e.g., Hrg. Tr. at 15:2-11, 18:2-12. The Amended Motion was the only motion orney set for hearing, and reset several times, before (and after) the December 20, self referred ed by the State self-described "place-marker" First Motion. exhibits, totaling 59 pages) expressly incorpo his one-page First Motion and its Motion. See Amended Motion, including those for the time pe the State Attorney inco such that the noti 57.105 notic that th ate Attorney's filings 2021 Final Judgment. See Hrg. Tr. at 128: 1-4. These and other facts set forth herein demonstrate that the "place-marker' First Motion was superseded by the Amended Motion and the State Attorney abandoned the First Motion upon the filing of his Amended Motion. See, e.g., Gannon v. Cackler, 281 So. 3d 587, 596 (Fla. 2d DCA 2019) ("When a party files an amended brief in this court, we regard the amended filing as a new and separate document and disregard the old one."); Hayes v. State, 59 So. 3d 384, 385 (Fla. 4th DCA 2011) ("The amended motion superseded the original one."). Once incorporating the arguments contained in the First Motion with the new arguments set forth in the Amended Motion, the State Attorney was required to provide a new safe harbor notice, and his failure to do so was fatal to "both" motions. Thus, it was entiiely correct for the Court to deny both motions as it did in the Order.

Despite the State Attorney's statement in the Motion to Alter that . Motion "was n C a never heard by the Court," the arguments set forth in the First Moti fried over into the Amended Motion) were argued by the parties, heard by the CoV th nng, and addressed in the parties' written closing arguments. Even though it w n v operly noticed for hearing by e State Attorney's counsel argued ded Motion, and in the alternative to his we would ask Your Honor, in the alternative, the State Attorney, during the Hearing on Septembe that the First Motion be considered, as a part Amended Motion. See Hrg. Tr. at 18: 2 (" ... that you would rule on our on for attorneys' fees if it came down to it because, in the end, the arguments are the me, d the real difference in the filing of the amended motion for attorneys' fees is that 1Z0' ded the final tabulation of my firm's fees, as well as affidavits .. . of fees and an a vit of sonable fees from our expert"); see also State Attorney Aronberg's Written Clos ment at 2. And over the objection of The Post, the Court heard the matters raised rst Motion, incorporated into the Amended Motion. Thus, the State Attorney conceded that the arguments contained in the First Motion were included in the Amended Motion argued by the parties and denied by the Court.

To protect its rights, The Post, over objection, defended against the issues raised by the "place-marker" First Motion and the Amended Motion at the Hearing. See generally Hrg. Tr. at 26 -31; see also Hrg. Tr. at 28:15 - 29:7 ("So the first place-marker motion, Exhibit 14, it's — the motion itself is one page. There's an enclosure letter that came with it, and it's two pages. So three pages total. The motion itself says nothing except we're going to prevail, and this is your notice, we want fees. But the enclosure letter says, along the lines I believe Mr. Wyler said this in his opening, that the defendant Aronberg nor the office of the state attorney is in custody o control of the 2006 grand jury materials sought therein. However, the first motion corn failed to address the main reason why the state attorney was a parr to the lass suit, c use it could object to the clerk providing the grand jury records....") (emph is ad ?

While The Post raised procedural arguments precludi precludi e Motion, The Post, by Closing Argument. See Hrg. Tr. at 26-31; Written st ment of The Palm Beach Post at necessity, defended against the merits of the First Motio t ri e Hearing and in its Written Stir 5-9, 10-17; id. at 8 ("The barebones 'place o n fails to meet the high burden of section 57.105. The Court must look at the sub ce, o ack thereof, of that motion, as of that moment in the timeline, to determine whet a me the State Attorney met his burden of showing the claim was frivolous or, in othe at the Post knew or should have known at that time there was no longer any justici 1 im. . . . There was only one purported basis for sanctions stated in the first 'pia otion (technically, in the enclosure letter to that one-page motion) regarding th tory relief claim in Count I—the argument that the State Attorney did not have or custody of the Epstein grand jury materials. Did that argument alone end the matter as to the State Attorney? No. Did that argument alone make the State Attorney's joinder in this case so frivolous as to be completely untenable? Absolutely not.") (internal citations omitted).

The Post also noted and argued that the "place-marker" First Motion was filed months before Mr. Aronberg's fundamental change of his legal position such that he no longer objected to the Clerk's production of Epstein grand jury records if ordered by the Court, as Mr. Aronberg first stated in a reply brief in support of his First Motion on October 14, 2020. See Written Closing Argument of The Palm Beach Post at 9; Hrg. Tr. at 29:14 — 31:6 ("So clearly there's ew stuff in the amended motion for fees. But Mr. Wyler said they said the same arguments. Ttr t -- That's not true. The amended motion clearly makes new arguments not in the firs rker motion. It also references new documents, like the state attorney's motion for udgment and Mr. Aronberg's affidavit, both which were filed in August of 20 V ? rtantly, the amended motion also raises new positions. . . . As you will see in Cee lev ce, the position that the state attorney had, [`]no objection['], or, [`]never had a S b vra ti to the clerk producing grand jury materials[',] was new, and you'll hear from G s Sic n it g urig attorney Stephen Mendelsohn that this is exactly the position that the Post tryi to get and Mr. Mendelsohn was trying to get from the state attorney. And you'll June 23rd, 2020, letter Mr. Mendelsohn wrote to the state attorney, he said the state is named here because they are a party that is tasked with protection of the grand j tem. You have the right to object to the release of grand jury materials. That's you' here. And, once we had this notice right here of saying they don't object, we di him. So he first said on the record, on October 14th, 1 have no objection to the p f the Epstein grand jury materials. We dismissed him October 2 O.").

Faced with the denial of his only pending motion for fees (the Amended Motion), the State Attorney's Motion to Alter is an improper attempt to use a procedural sleight of hand to reargue his superseded First Motion. The State Attorney never considered the First Motion as anything other than a "place-marker" that was intended to be and was superseded by the Amended Motion. And once that happened, the State Attorney's failure to provide the requisite safe harbor notice mandated that both motions be denied. The State Attorney now seeks to reargue matters expressly argued during the Hearing, which in any event were barred by the failure to provide the required safe harbor. The Court should deny the State Attorney's attempt to reargue the Hearing and obtain a second bite at the apple.

The State Attorneys' Motion to Alter is an attempt to have it both w9 The State Attorney's filings and arguments to the Court demonstrate that he conside i 7.105 motions to be unitary, such that the First Motion became part of and was s by the Amended Motion. Now, faced with an Order that denied his motions o failure to comply with the notice requirements of 57.105, he argues that his F is somehow a separate and distinct motion from his Amended Motion. This oald reject the State Attorneys' new attempt to split his motions. The Order is coret4Afd d not be amended or altered.

# ION
Based on the foregoing, th rney's Motion to Alter or Amend the Order should be denied.

Respectfully submitted,

/s/ Lauren Whetstone

LAUREN WHETSTONE

Florida Bar No. 45192

MARK F. BIDEAU

Florida Bar No. 564044

GREENBERG TRAURIG, P.A.

777 South Flagler Drive, Suite 300 East

West Palm Beach, FL 33401

Tel.: 561.650.7900

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STEPHEN A. MENDELSOHN
Florida Bar No. 849324
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MICHAEL J. GRYGIEL
(Admitted *Pro Hac Vice*)

54 State Street, 6th Floor
Albany, NY 12207
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NINA D. BOYAJIAN
(Admitted *Pro Hac Vice*)

1840 Century Park East, Suite 1900
Los Angeles, CA 90067
Tel.: 310.586.7700
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*Counsel for Plaintiff CA Florida Holdings,
LLC, Publisher of The Palm Beach Post*

**CERTIFICATE OF SERVICE**

**I HEREBY CERTIFY** that a true and accurate copy of the foregoing has been electronically filed with the Florida E-File Portal for e-service on all parties of record herein on February 16, 2023.

/s/ Lauren Whetstone
Lauren Whetstone, Esq.