Court filing, 2020-07-30

INTHECIRCUITCOURTOFTHEFIFTEENTHJUDICIALCIRCUIT 1NANDFORPA LMBEACHCOUNTY,FLORIDA¶

CAFLORJDAHOLDINGS,LLC, PublisherofthePALMBEACHPOST,¶

DAVEARONBERG,asStateAttorneyof PahriBeachCounty,FloridaiSHARONR, BOCK,asClerkandCoMpinallerofPalm BeachCourtiy,Florida.¶

t> , DEFENDANT,DAVEARONBERG’SRESPONSE °PLAINTIFF’S MEMORANDUMOFLAW1NOPPOSITIONTOTLIESTATEATTORNEY’S FLA.STAT.SECTION57.105MOTION¶

Defendant, DAVE ARONBERG, Affney of Palm Beach County, Florida, by and through the undersigned counsel, he s Response to Plaintiff’s Memorandum of Law in Opposition to the State Attorn. . t. Section 57.105 Motion, and in support thereof’ states:¶

CASE NO.: 19-O 14681¶

CO AS¶

L REGARDLESS OF TIFF’S PURPOSE IN BRINGING THE INSTANT LAWSUIT, IT IMPOSSIBLE FOR THE STATE ATTORNEY TO PRODUCE THERECORDS PLAINTIFFDEMANDSBEPRODUCED.¶

he nor (4 From t t of this litigation the State Attorney has consistently maintained thiti neither has possession, custody or control of the Epstein grand jury materials, aterials”), sought by Plaintiff. Nonetheless, the State Attorney has no objection, and never has had any objection, to theClerk releasing the records sought by Plaintiff, as disclosUre of the Requested Materials sought herein lies solely within the providence of the Clerk pursuant. toanorderoftheCourt.¶

Party JOINT¶

Section 905.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials can only be released by the Clerk pursuant to a court order.¶

Text, context, and purpose are the ordinary tools used for disc with the overarching principle being that “judges lack the power to tory meaning, statute in a way which would extend, modify, or limit its A obvious implications. To do so would be an abrogati o \ o ‘it here, the plain language of section 905.17 is d ek iguous and, therefore, controls. See, 59 .2d 176, 182 (Fla. 2007). e an unambiguous Horowitz v. Plantation Gen. Hosp. Ltd. P’s erns or its reasonable and alive power.” Id. Accordingly,¶

The stenographic records, notes, and transcriptions made by the court reporter or stenographer shall be filed with the clerk who shall keep them in a sealed container not subject to public inspection. 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 grakrd jury for use by the grand jury or on order of the court pursuant to s. 905.27¶

tion to the Clerk producing and disclosing the an order to that effect. To be clear, however, it is Again, the State Attorney ha Requested Materials should tlipC impossible for State Attorney to.comply with the relief sought by Plaintiff in its remaining claim for declaratory relief as hedloes not possess or control the Requested Materials and is statutorily barred from any disclosure.¶

II. THE STATE ATTORNEY’S FLA. STAT. SECTION 57.105 MOTION WAS PROPERLY MADE AND IN NO WAY SEEKS TO DETER THE PALM BEACH POST FROM SERVING THE PUBLIC INTEREST.¶

To be clear, the State Attorney has no other desire than to litigate on the merits the instant lawsuit’s remaining issue of declaratory relief prior to a determination of his Fla. Stat. § 57.105 Motion for Attorneys’ Fees (“57.105 Motion”).1 Furthermore, despite Plaintiff’s disingenuous and self-aggrandizing contentions, in no way, shape, manner, or form is the State Attorney using the threat of sanctions to “suppress The Palm Beach Post’s investigative reporting” or to “avoid litigating the case on the merits” or to “deter media inquiry into the Epstein grand jury proceeding.” See, P1. Memorandum pg. 2-3.¶

Rather, the State Attorney was properly and entirely within his rights to d hridune 8, 2020, Fla. Stat. § 57.105 Demand Lcttcr and inform Plaintiff of his be t e Amended Complaint and its sole remaining count for declaratory relief has n act or law. See, Exhibit “A”. “Under the statute, the legislature has expressed Via ’ uivoeal intent that where a party files a meritless claim, suit or appeal, the party wh <, s Ily required to expend funds for attorneys’ fees is entitled to recoup those f ASV!lf County Conservation Alliance v. County, 73 So. 3d 856, 857 (Fla. 1st D (finding that “Courts are not at liberty to disregard the legislative mandate that co sha pose sanctions in cases without foundation in material fact or law. The word “s kin 57.105, Fla. Stat., evidences the legislative intent to (“A” impose a mandatory penalty to,discou ge 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 ( f \ ding s to miss, baseless claims or defenses.”). In fact,¶

Secr (1) clearly and explicitly confers upon the trial court the authority to aw d attarney’s fees to the prevailing party upon the court’s initiative, if ‘the court c .1 fine-thatithe losing party … knew or should have known that a claim or defense \ -When initially presented to the court or at any time before trial … [w]as not supported by the material facts necessary to establish the claim or defense.¶

This Court’s June 8, 2020, Order Granting Defendant? Motions to Dismiss Count 11 of Plaintiff’s First Amended Complaint with Prejudice (“Order”) did not address Plaintiff’s Count I for Declaratory Relief. Notably, the State Attorney’s § 57.105 Demand Letter and its accompanying proposed Motion for Attorney’s Fees was served on Plaintiff later in the day of June 8, 2020, after the Court issued its Order.¶

v. , 47 So. 3d 320, 324 (Fla. 2d DCA 2010).¶

Notably, “[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.” County Conservation Alliance v. County, 73 So. 3d 856, 865 (Ha. 1st DCA 2011). Moreover,¶

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a Iasi’ clear chance to withdraw a frivolous claim or defense within the scope of subsection (I) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the panics police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.¶

Vanderpol v. Frengut, 932 So. 2d 1251 (Fla. 4th DCA 2006) (fi hafEecausc the plaintiff had withdrawn his motion, the defendants were not permitt eci % their motion for attorney’s fees). or present to the trial court¶

Thus, in properly serving his 57.105 demancLon Plaintiff, the State Attorney also properly put Plaintiff on notice that he would seek.sanctiotteby filing the 57.105 Motion for Attorneys’ fees ‘1” — if Plaintiff failed to dismiss its Amended Complaint within 21 days of service of the 57.105 \ demand letter and motion forattorncys fees. The course of action taken by the State Attorney actually tracks the specific_ language set forth in the Statute, to wit:¶

A motion by a patty seeking sanctions under this section must be served but may not be fil$,with or presented to the court unless, within 21 days after service of the motion,Ite challenged paper, claim, defense, contention, allegation, or denial _ is lint withdrawn or appropriately corrected.¶

SectiOn-57105(4), Florida Statutes (2020).¶

Accordingly, after receiving Plaintiff’s June 23, 2020, response refusing to the withdraw the remainder of the Amended Complaint and waiting the prerequisite “21 days after service of the motion” the State Attorney’s Motion for Attorneys’ Fees was filed with this Court on July 1, 2020. See, Exhibit B. Nothing improper was done by the State Attorney in availing himself of the¶

law set forth in § 57.105 given the circumstances of the instant lawsuit arid the State Attorney’s intention to establish that Plaintiff’s claim for declaratory relief has no basis in fact or law.¶

Here, regardless of Plaintiff’s assertions that the State Attorney is “using the threat of sanctions to avoid litigating the case on its merits,” the simple fact of the matter is that Plaintiff failed to withdraw its Amended Complaint against the State Attorney within the 21-4ay period Adie ! provided for in section 57.105(4), thus the State Attorney was permitted to file h. .10 otion for Attorneys’ Fees as sanctions. Again, the filing of the 57.105 Motion fof Alto- ‘s fees was filed as a matter of course and a place-marker to further notify Plaintiff of the State Attorney’s I’L/ r intention to seek sanctions should he prevail on the merits at a substantive hearing.¶

III. REGARDLESS OF THE “JUSTICE” PROVISION FLA. STAT. SECTION 905.27, FLA. STAT. SECTION 905.17(1) MAKES CLEAR THAT ONLY THE CLERK SHALL RELEASE GRAND JURY RECORDS LIKE THOSE SOUGHT HEREIN.¶

Despite Plaintiff’s assertion, the Stat\Attritney has never taken the position that this Court’s June 8, 2020, Order held that Picas claims are without any merit. Rather, the State Attorney has consistently taken=then Ition that the Order merely dispenses, with prejudice, Plaintiff’s Count 11 and that ilny oilier discussion pertaining to that claim is immaterial and irrelevant to the remaini Claim - for declaratory relief.2¶

• Again, SeCtIon 905.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials - can only b4 relealed by the Clerk pursuant to a court order. To wit:

stenographer shall be filed with the clerk who shall keep them in a sealed container titenographic records, notes, and transcriptions made by the court reporter or not subject to public inspection. 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 Mall be released by the clerk only on request by a grand jut),for use by the grand jury or on order of the court pursuant to s. 905.27.¶

{sup}2 Specifically, Plaintiff’s remaining Count I for Declaratory Relief seeks a court order declaring that the State Attorney provide copies of the Requested Materials to The Palm Beach Post for the purpose of informing the public. See, Prs Amended Complaint pg. 20-21.¶

As stated previously, neither the State Attorney nor his office has possession, custody or control of the Requested Materials. Likewise, the State Attorney has no objection, and never has had any objection, to the Clerk releasing the records sought by Plaintiff, as disclosure of the Requested Materials sought by Plaintiff lies solely within the providence of the Clerk pjtrsuant to an order of the Court. ,-----,¶

\J Thus, based on the impossible nature of Plaintiff’s demand of the StateSorney, it was iii , ,— _ i l proper to demand withdrawal of Plaintiff’s remaining claim for declaratory relief and serve the N_---, 57.105 Motion for Attorneys’ Fees due to Plaintiff’s claim/ lacking any basis in fact or law. Regardless of whether the “justice” provision of § 905.27 a eenAdjudicated, Plaintiff’s Count II was dismissed with prejudice and its remaining t r claratory relief has no basis in fact ’ or law because the State Attorney does not ha l t i t uested Materials and § 905.17(1), Florida Statutes explicitly requires that only the 9Igrk sh elease grand jury materials like the Requested Materials and only pursuant to a¶

IV. THE STATE ATTORNE 1 FLA. STAT. SECTION 57.105 MOTION IS RELATED ONLY TO PLAINTIFF’S CLAIM FOR DECLARATORY RELIEF AS THIS COURT DISMISSED WITH PREJUDICE COUNT II, REGARDLESS OF ANY NOVELTY OR COMPLEXITY.¶

Although is Court unambiguously dismissed with prejudice Count II of the Amended Complai tjrlainnff oddly acts as though Count II is alive and able to be further argued before this Cout ldditionally, Plaintiff either disingenuously or unawaredly argues that the fees sought herein “should not be awarded unless there is ‘a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous … and so clearly devoid of merit both on the facts and law as to be completely untenable.’ Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (Fla. 1987).” Rather than the old standard cited by Plaintiff, the amended version of Fla. Stat. § 57.105 “does not require a finding of frivolousness to justify sanctions, but:only a finding that the claim lacked a basis in material facts or then-existing law.” County Conservation Alliance¶

v. County, 73 So. 3d 856, 858 (Fla. 1st DCA 2011). See, Long v. AvMed, Inc., 14 So. 3d 1264, 1265 (Fla. 1st DCA 2009) (noting section 57.105 does not require a party to show complete absence of a justiciable issue of fact or law).¶

The court in v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019)rpslovidesfurther insight and guidance regarding 57.105 sanctions as it explained:¶

The central purpose of § 57.105, Fla. Stat., is, and always as , to deter meritless filings and thus streamline the administration and pro urSof the courts. Thus, the post-1999 version of § 57.105 has expanded the circumstances where fees should be awarded and the purpose is to deter meritless filings. [The Florida Supreme Court] has also stated that § 57.105 creates an opportunity to avoid the sanction of attorney’s fees by creating a safe period for withdrawal or amendment of meritless allegations and claims. Therefore; it appears that [The Florida Supreme Court] has viewed even individual allegations as part of what § 57.105(1) seeks to deter. By “individual allegations,” we are referring to a series of allegations framing a theory of liability based on a factual Nenaric that is not supported by law.¶

\ \7 v. Bailynson, 268 So. 3d 762, 769 (Fla.,4th DCA 2019). Taking this into account further y7 detracts from the plausibility of— s position, even despite its argument that the issues contained in Count II were “nLe1Ad complex.” Despite Plaintiff’s argument that “[w]here an issue is novel and comp ctions under section 57.105 may not be imposed” and that even though Count dismissed with prejudice it was brought in good faith, these arguments do not rise to s t 1 as to overcome the reality that Plaintiff’s Count I for declaratory relief has no basi r law because it is impossible for the State Attorney to comply with its demand.¶

Further, the Bailynson court provides guidance here as well by explaining that the State Attorney’s 57.105 claim does not have to apply to Plaintiff’s entire action to succeed:¶

Unlike the prior version [of section 57.105], the current version of the statute does not apply only to an entire action, but now applies to any claim or defense. (emphasis added). Because the statute refers to “any claim or defense,” it does not require that the entire action be unsupported by material facts or the application of then-existing case law.¶

v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019). Thus, “the revised statute expanded the number of circumstances in which fees should be awarded” and “if an action asserts a theory of liability using more than one, but separate, factual scenarios in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it isimitported S by law, the sanction must be ordered.” Id.¶

unt 11 not only Thus, notwithstanding any of Plaintiff’s assertions regarding was dismissed with prejudice, but the issues pertaining to it are irrele 57.105 Motion regarding the lack of any basis in fact or law a itt declaratory relief. the State Attorney’s iff’s remaining request for¶

V. REGARDLESS OF PLAINTIFF’S CONSTITUTIONAL ARGUMENTS, ONLY THE CLERK, NOT THE STATE ATTORNEY, IS STATUTORILY AUTHORIZED TO RELEASE THE GRAND JURY RECORDS SOUGHT HEREIN.¶

To be clear, in no way does the State Attorney assume, as Plaintiff suggests, that this Court’s Order extinguishes a er frivolous Plaintiff’s Count I for Declaratory Relief. Rather, as the State Attomey’s 7,105 demand letter clearly states, Plaintiff’s claim for declaratory relief has no basis in factor law.¶

Moreover, regardless of Plaintiff’s continual attempts to revive and make arguments under its Count In it was dismissed with prejudice and Plaintiff is consequently foreclosed from litigating the issuts-therein. Thus, despite any constitutional or other argument under Count 11, the facts and law remain the same: only the Clerk, not the State Attorney, is statutorily authorized to release the Requested Materials herein.¶

Again, Section 905.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials can only be released by the Clerk pursuant to a court order.¶

The stenographic records, notes, and transcriptions made by the court reporter or stenographer shall be filed with the clerk who shall keep them in a sealed container not subject to public inspection. The notes, records, and transcriptions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art 1 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.¶

Likewise, it bears repeating, neither the State Attorney nor his office h ssession, custody or control of the Requested Materials; and, the State Attorney has no of n, and never has had any objection, to the Clerk releasing the records sought by Pla sclosure of the Requested Materials sought by Plaintiff lies solely within the provider o to Clerk pursuant to an order of the Court. Thus, based on the impossible * nature s lawsuit against the State Attorney, it was proper to demand withdrawal of Plain ta’ ’ , nmg claim for declaratory relief and serve the 57.105 Motion for Attorneys’ fees\ I ntiff’s claim lacking any basis in fact or law.¶

VI. THE STATE ATTORNEY EVER TAKEN A POSITION AGAINST DISCLOSING THE RE LIGHT BY PLAINTIFF, BUT RATHER HAS CONSISTENTLY A T NEITHER HE NOR HIS OFFICE HAS CUSTODY, CONT OL, XX POSSESSION OF THE RECORDS AND THAT UNDER FLA. STAT. ION 905.17(1) ONLY THE CLERK SHALL RELEASE THE RECORD&AND ONLY PURSUANT TO A COURT ORDER.¶

Oddly, P1 S’ iff r es that the State Attorney has made an unswom claim that he does not possess the est Materials, when his Affidavit, filed along with his Motion for Summary Judgmen ust 18, 2020, clearly provides the following sworn statements:¶

• 1. My name is David (Dave) Aronberg, and I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County, Florida, since 2013, and a Defendant in the above-captioned matter.
• 2. Plaintiff is seeking declaratory relief, pursuant to Fla. Stat. 905.21(1)(c) and the Court’s inherent authority, allowing Plaintiff access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury, (the “Requested Materials”), and to use those materials for the purpose of informing the public.

3. Despite Plaintiff’s above-described action for declaratory relief, neither myself nor the Office of the State Attorney for the Fifteenth Judicial Circuit, (“SAO”), is in control, custody, or possession of the Requested Materials.

4. As such, the declaratory relief sought by the Plaintiff seeks materials that are impossible for me or my office to produce.

5. To be clear, neither myself nor the SAO has the legal authority to obtain and deliver the Requested Materials.

6. I have repeatedly made these facts evident to the Plaintiff and the public through not only the pleadings and correspondence in this matter, but through an office press release and my public social media accounts.

7. Despite the contentions of Plaintiff, neither myself nor the the authority to demand that the Clerk grant the SAO access to gmndj als after a criminal case has concluded.

8. Moreover, during my administration, neither my office has araegssid grand jury materials from the Clerk’s office ’ any other instance.

9. As provided in section 905.17(1), Flori• tes 020), the Clerk has sole custody and possession of the Requested which can only be released by the Clerk pursuant to an order of the

See, Exhibit “C”. Clearly, the matter presently bef rt is the determination of the State Attorney’s Motion for Summary Judgment, uld he prevail on said Motion a hearing should be scheduled on the 57.105 Moti or meys’ Fees. Regardless, the State Attorney is of the belief that Plaintiff is unabl r its declaratory relief claim against him as Plaintiff’s claim has no basis in fact or I ass orth at length above.¶

Also, despite th ear, concise, and unambiguous language of Section 905.17(1), Florida Statutes, which st tha and jury materials “shall be released by the Clerk only … on order of the Court,” empts to argue that the State Attorney may still have the ability to “access” grand j als and that therefore he is a necessary party to this action. To be clear, there is a great inction between the ability to “access” and the ability to “disclose” grand jury materials. Nonetheless, the State Attorney swore in his Affidavit that “during my administration, neither myself nor my office has accessed grand jury materials from the Clerk’s office in this or any other instance.” See, Exhibit “C” ¶ 8. Again, even assuming that the State Attorney had the ability to¶

access the Requested Materials, he is foreclosed from making any disclostire pursuant to Section 905.17(1), Florida Statutes, as only the Clerk shall release grand jury materials pursuant to a court order.¶

Based on the foregoing, it is clear that Plaintiff indeed has a valid claim against the Clerk to seek disclosure of the Requested Materials, and for that reason the Clerk has declined to move for 57.105 sanctions. Unlike Plaintiff’s case against the Clerk, however, thcrarguments and authority set forth above make clear that it is impossible for the State AttOrn0i, o his office to produce the Requested Materials demanded by the Plaintiff. This raponale -stain illustrates the lack of any basis in fact or law as to Plaintiff’s claim for declaratory—relief and provides justification for the sanctions sought by the State Attorney should he prevail on the merits of this controversy.¶

VII. THE STATE ATTORNEY’S 57.105 MOTION IS NOT PREMATURE, BUT A HEARING OR RULING ON SAID MOTION PRIOR TO A SUBSTANTIVE HEARING ON THE STATE ATTORNEY’S MOTION FOR SUMMARY JUDGMENT WOULD BE PREMATURE.¶

Simply put, Plaintiff’s argu “the State Attorney’s Motion is admittedly premature” is nothing more th uous stretch of the imagination. To be clear, the State Attorney never made such an sion, but rather has consistently argued that “it would be premature to have an at fee hearing when there is no prevailing party and no substantive hearings held s’ c e motion for fees was filed.” See, Pt’s Memorandum, Exhibit “A”. Plaintiff apparen y his statement as an admission on the part of the State Attorney, which it clearly was n it the 57.105 Motion was not premature and the State Attorney was entirely within his rights to file said Motion based on the statutory instructions set forth in § 57.105(4), Florida. Statutes.¶

Moreover, despite Plaintiff’s false contentions, the State Attorney’s 57.105 Motion is not based on his Motion to Dismiss Count II of the Amended Complaint. As discussed at length above,¶

the 57.105 Motion is based solely on the reality that Plaintiff’s Count 1 for Declaratory Relief is not grounded in fact or law. Because Plaintiff failed to voluntarily dismiss the remainder of its Amended Complaint, i.e., Count I for Declaratory Relief, the State Attorney filed its 57.105 Motion for Attorneys’ Fees as authorized, and discussed supra, by § 57.105, Fla. Stat. Nonetheless, Plaintiff has purposely misconstrued the filing order of the 57.105 MotiOn and the Motion for Summary Judgment and falsely asserts that the State Attorney “aeknowledg4that his motion is not ripe.” See, PI ‘s Memorandum pg. 9.¶

Rather, the State Attorney agrees that the Motion for Sununtry Judgment must first be resolved prior to resolving the 57.105 Motion, but the filing of the State Attorneys’ 57.105 Motion is not unripe merely because it was filed prior to his Motion for Summary Judgment. Not only is ’/ the State Attorney authorized to file the 57.105 Motion based specifically on statutory instruction, the Florida Courts and the Florida Rules of Ci if Procedure also support this position. To wit, Fla. R. Civ. P. 1.525, Motions for Costs and ’ Fees, 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, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action _as to that party.¶

Florida Rules of Civil Proeehere, 1.525. As provide above, the Florida Rules of Civil Procedure speak only to tb/Aling deadline for Attorneys’ Fees Motions and are otherwise silent as to any other restriction on filing such motions.¶

—This-also significant to point out the manner in which Plaintiff has purposely misconstrued the very language of § 57.105 by omitting the language that hurts its position. Despite, Plaintiff’s claims that “57.105 (1)(a)-(b) examines a claim or defense ‘when initially presented to the court’, Plaintiff declined to include the remainder of the statutory language, which states “or at any time before trial.” Clearly, the State Attorney is authorized to pursue sanctions under § 57.105 at any¶

time before trial due, as he has, regarding the lack of any basis in fact or law as to Plaintiff’s claim for declaratory relief.¶

Again, the State Attorney was authorized to file the 57.105 Motion because he did not file it with the court until after the prerequisite statutory timeline was satisfied. The 57.105 Motion was filed with the Court to further put the Plaintiff on notice that the State Attorney uld seek sanctions should he prevail on the merits of the lawsuit. Just because the 5 .on for Attorneys’ fees was filed prior to the State Attorney’s Motion for Su nt does not necessitate a hearing or ruling on the 57.105 Motion prior to a hearing n the ton for Summary Judgment. Scc, v. , 47 So. 3d 320, 325 (Fla. 2d D 10) finding that “a court is typically faced with the decision to impose sanctions for iv p u tgation only after the parties’ respective positions have been presented to the courts \ a s stantive hearing.”). Likewise, it 4 \ would be far removed from the interests ofjudieia o y to require a hearing on a place-marker 57.105 Motion for Attorneys’ fees as tion or to a hearing on the Motion for Summary Judgment.¶

WHEREFORE, DA ARRONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests tI t a ir substantive hearing on the merits take place along with the determination of a prevai g party before any hearing or ruling on fees or sanctions herein.¶

CERTIFICATE OF SERVICE¶

I ‘HEREBY CERTIFY that on this 14th day of October, 2020, a copy of the foregoing has been electronically filed with the Florida E-File Portal for e-service on all parties of record herein.¶

Is/ Douglas A. Wyler¶

Arthur I. Esq. Fla. Bar No.: 10249 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@comcast.net¶

Attorneys for Defendant, Dave A n rg, and General Counsellor the nor’ ring¶

Attorney’s Association¶

EXHIBIT “A”¶

NOTA CERTIFIED COPY¶

EXHIBIT “A”¶

SCHOLZ 8c WYLER, LLC.¶

THE LAP. OFFCES or IL ASSOCIATES. PA. ARTHUR I.¶

A LIMITED LIASIUTY COMPANY OF PROFESSIONAL ASSOCIATIONS¶

ATTORNEYS AT LAW¶

GATEWAY TO AMEUA¶

001087 GATEWAY BLVD.. SUITE 2017¶

FERNANDINA BEACH. FLORIDA 32034¶

TELEPHONE (904) 261-3693¶

rAx NO. (904) 261-7679¶

June 8, 2020¶

VIA ELECTRONIC & U.S. MAIL¶

Stephen A. Mendelsohn, Esq. Greenburg Traurig, P.A. 5100 Town Center Circle, Suite 400 Boca Raton, FL 33486¶

RE: CA Florida Holdings, LLC v. Dave Aronberg et al. Palm Beach County, Case No.: 2019-CA-014681

¶

Dear Mr. Mendelsohn:¶

RICHARD J. SCHOLZ. RA. WC HMO J. SCHOLZ¶

DOUGLAS A. WY LES. RA. DOUGLAS A. WYLER¶

As you are aware our firm represents the interests of Dave Aronberg, as State Attorney of Palm Beach County, Florida, in the above referenced otter. The purpose of this letter is to demand the voluntary dismissal of your First Amended Complaint,’ (the “Complaint”), dated January 17, 2020. This demand is made pursuant to section 57.105, FloridaStatutes.¶

As you know, Section 57.105 provides:¶

• (I) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing patty 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 find§ that the losing party or the losing party’s attorney knew or should has4 \known that a claim or defense when initially presented to the court or at any fore trial: Was not supported by the material facts necessary to establish the claim or defense; or
  • b. Would not be supported by the application of then-existing law to those material facts.

Today, Judge Marx granted, with prejudice, Defendant Aronberg’s Motion to Dismiss Count II of the Plaintiff’s Complaint. Pursuant to the Court’s ruling, the Plaintiff’s only remaining cause of action consists of Count I, for Declaratory Relief. Accordingly, we believe that the Complaint filed herein and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to establish the claims asserted, and that your claims are not supported by the application of current law to said material facts.¶

First and foremost, the Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg, nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the 2006 grand jury materials sought therein. Simply put, the declaratory relief sought by the Plaintiff, seeks records from my client that are impossible for him or his office to produce. Accordingly, Defendant Aronberg is not a proper party to this action because no matter what, he and his office do not have possession, custody, or control of the requested materials.¶

In addition to the foregoing material facts that negate the claims asserted in the Complaint, your claims arc also not supported by the application of current law. Specifically, your action for declaratory relief fails based on the clear, unambiguous statutory language found in Section 905.27(2), Florida Statutes, which states:¶

When such disclosure is ordered by a court pursuant to subsection (1)cfor 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 jiffy 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.¶

Moreover, even if the Plaintiff were to prevail in the declaratory action, Mr. Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr. Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession, custody, or control of the 2006 Epstein grand jury records.¶

Based on the foregoing, if the Complaint is not dismissed within 21 days of the service of this letter, the enclosed Motion for Attorney’s Fees will be flied and we will seek as sanctions, from your client ;7-4e . and your firm, recovery of the legal expen s incurred in defending this frivolous action.¶

Please govern yourself accordingly\¶

A-¶

Douglas A. Wyler, Esq.Il ik,,i For the Firm¶

Encl.: Defen otion for Attorneys’ Fees¶

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,¶

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida.¶

CASE NO.: 19- . -914681¶

. Act e¶

CO¶

DEFENDANT, DAVE ARONBERG’S MOTION FOR ATTORNEYS’ FEES¶

Defendant, DAVE ARONBERG, as S \ e rn of Palm Beach County, Florida, by and through the undersigned attorneys, move Cou pursuant to Florida Statutes, Section 57.105, to award him reasonable attorneys’ e defense of Plaintiff’s First Amended Complaint, (the “Complaint”), and as groun or, would show that on June 8, 2020, Plaintiff was served a copy of this Motion, toge with a letter from the undersigned attorney, in accordance with subsection (4) of the a atute, demanding dismissal of the Complaint, at least 21 days prior to the filing o Motion. In said letter, Defendant’s attorney advised Plaintiff of the facts which establych Complaint is without support of the facts or the law.¶

REFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff’s attorneys to pay said Defendant’s attorneys’ fees incurred herein after service of this. Motion.¶

CERTIFICATE OF SERVICE¶

I hereby certify that on this day , 2020, the foregoing was electronically filed vii the Florida E-File Portal for electronic service on the parties of record herein.¶

is/Douglas A. Wyler¶

Arthur I. ME, Esquire Fla. Bar No.: 108249 Richard J. Scholz, E Fla. Bar No.: 00212 Douglas A. Wyl Fla. Bar No.: 11 961687 Ga wa ., Suite 2014 Feman h, Florida 32034 (904) 26 9 zlaw@comcast.net¶

norneys for Defendant¶

Gs’¶

EXHIBIT “B”¶

NOTA CERTIFIED COPY¶

EXHIBIT “B”¶

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,¶

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida.¶

DEFENDANT, DAVE ARONBERG’S MOTIO 0* ATTORNEYS’ FEES¶

CASE NO.: 19-CA-014681¶

C 0 4.88C¶

Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, by and through the undersigned attorneys, moves dr to award him reasonable attorneys’ f (the “Complaint”), and as grou a copy of this Motion, togeth subsection (4) of the abar Statute, demanding dismissal of the Complaint, at least 21 days prior to the filing of tkiiMotion. In said letter, Defendant’s attorney advised Plaintiff of the facts which ( Thk establisI tljt the Complaint is without support of the facts or the law. N••_ ourt;4pursuant to Florida Statutes, Section 57.105, e defense of Plaintiff’s First Amended Complaint, , would show that on June 8, 2020, Plaintiff was served a letter from the undersigned attorney, in accordance with¶

REFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff’s attorneys to pay said Defendant’s attorneys’ fees incurred herein after service of this Motion.¶

CERTIFICATE OF SERVICE¶

I hereby certify that on this 1st day July, 2020, the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein.¶

/s/ Douglas A. Wyler¶

Arthur I. ,824Esquire Richard J. Scholz, Esq Ha. Bar No.: 10 9 Fla. Bar No.: 0021261 Douglas A. Wyler,-tq Fla. Bar No.: 119979 961687 Gateway Blvd., Suite 201-1 Fernandina Beaah, Florida 32034 (904) 261-36939 (904)261-7879 jacobsscholzlaw@comcastnet¶

(s\ rneys for Defendant, Dave Aronberg¶

EXHIBIT “C”¶

EXHIBIT “C”¶

A Co’s-¶

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

CA FLORIDA HOLDINGS, LLC, Publisher of the PALM BEACH POST,¶

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida.¶

STATE OF FLORIDA COUNTY OF PALM BEACH¶

AFFIDAVIT OF DAVID ARO¶

Before me, the undersigned authority personally apes:a:FDA\ID ARONBERG, being first duly sworn, states:¶

CASE NO.: 9-CA-014681¶

CO S¶

• I. My name is David (Dave) Aronberg, and I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County, Florida, since 2013, and a Defendant in the above-captioned matter.
• 2. Plaintiff is seeking dearatory relief, pursuant to Fla. Stat. 905.21(1)(c) and the Court’s inherent authority, allowing Plaintiffitthcesa to the testimony, minutes, and other evidence presented in {sup}2006 to the Palm Beach County gran d jury, (the “Requested Materials”), and to use those materials for the purpose of informing the public.
• 3. Despitefraintiffs above-described action for declaratory relief, neither myself nor the Office of the State Ana-acy {sup}l for the Fifteenth Judicial Circuit, (“SAO”), is in control, custody, or possession of the Re_quistectblaterials. {sup}I4. As such, the declaratory relief sought by the Plaintiff seeks materials that are impossible for rite, or’my office to produce.
• 5. To be clear, neither myself nor the SAO has the legal authority to obtain and deliver the Requested Materials.
• 6. I have repeatedly made these facts evident to the Plaintiff and the public through hot only the pleadings and correspondence in this matter, but also through an office press release and my public social media accounts.

1. 7. Despite the contentions of Plaintiff, neither myself nor the SAO has the authority to demand that the Clerk grant the SAO access to grand jury materials after a criminal case has concluded.
2. 8. Moreover, during my administration, neither myself nor my office has accessed grand jury materials from the Clerk’s office in this or any other instance.
3. 9. As provided in section 905.17(1), Florida Statutes (2020), the Clerk has sole custody and possession of the Requested Materials, which can only be released by the Clerk pursuant to an order of the Court.

FURTHER AFFIANT SAYETH NAUGHT.¶

STATE OF FLORIDA COUNTY OF PALM BEACH¶

Sworn to and subscribed before me this 30{sup}th day of July, 2020, by DAVID ARONBERG, who is personally known to me or has shown _____ as personal identification.¶