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

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

Publisher of THE PALO BEACH POST,

DIVISION: AG

Plaintiff,

v.

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

Defendants.

# AMENDED RESPONSE AND MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS, LLC IN OPPOSITION TO STATE ATTORNEY DAVE ARONBERG'S AMENDED MOTION FOR ATTORNEYS' FEES UNDER FLORIDA STATUTES SECTION 57.105
Plaintiff, CA Florida Holdings, LLC, 'sh.S5f 17w Palm Beach Post ("Plaintiff" or the "Newspaper") submits this Amended R d Memorandum of Law in Opposition to State Attorney Dave Aronberg's ("Aro C e i vember 9, 2020 Amended Motion for Attorneys' Fees under Florida Statutes Section 1 [DE 50) ("Amended Motion").' For the reasons set forth below, the Amended Mot uld be denied, with prejudice.

# INTRODUCTION
". November 9, 2020 Amended Motion for sanctions is legally and factually insu meet the requirements of Section 57.105, Florida Statutes.

Statutes Section 57.103.

Party JOINT

ID# J31 EV#J31

DATE ADMITTED: 9/6/2022

Case No. 2019-CA-014681

CA/Aronberg-001485

ABRUZZO CLERK
CIRCUIT COURT

FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO

• Joint Exhibit J31

While the Amended Motion references Florida Rule of Civil Procedure 1.525 in the introductory paragraph, that Rule sets forth a deadline by which "(a)ny party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion[,]" but does not itself provide grounds to those fees or costs. Rather, the Amended Motion is based upon, and seeks relief of sanctions under, Florida Statutes Section 57.105.

*First*, as a crucial threshold matter, the Amended Motion fails as a matter of law because Aronberg did not comply with the strict 21-day safe harbor notice requirement set forth in Section 57.105(4) prior to filing his November 9, 2020 Amended Motion, which was materially different than, and raised new arguments and cited record evidence not included in his first Motion for Attorneys' Fees ("First Motion") served on June 8, 2020 and filed on July 1, 2020 [DE 35]. This technical failure alone requires the denial of the Amended Motion for sanctions.

*Second*, as to the merits, the Amended Motion should be denied because Aronberg, in his official capacity as the State Attorney, was a proper party defendant. The State Attorney was undisputedly an interested party to the Newspaper's action seeking access to grand jury records, and he would have had the right to intervene in the lawsuit had he not been named in the Complaint. The State Attorney was at the very least a nominal defendant. Sanctions are inappropriate under Section 57.105.

*Third*, the Amended Motion fails under Section 57.105 because Aronberg cannot meet the burden for sanctions under the statute and cannot demonstrate that Plaintiff's claim was so devoid of merit both on the facts and the law as to be completely untenable, as required to satisfy Section 57.105(1). Rather, the claim at issue, Count 1 of Plaintiff's First Amended Complaint, is exactly the type of claim specifically excepted from sanctions under Section 57.105(3)(a), as the Plaintiff's claim was presented to the Court as a good faith argument for the interpretation of existing law or, at least, the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. In short, Plaintiff's claim was made and pursued in good faith and based on sufficient grounds, which insulates it from sanctions. Indeed, the Court's December 20, 2021 Final Judgment described Plaintiff's arguments as "sincere," "palatable and persuasive" and noted this was a case of "first impression" that "implicate[d] issues of constitutional import," in the

context of "genuine subjects of public interest and concern . . . ." *See, e.g.*, [DE 78, pp. 5, 11, 13]. Aronberg's continued position (which he has declined to withdraw) that the Plaintiff's claim was made in bad faith is squarely contradicted by the Court's Final Judgment and the record.

*Fourth*, even if Aronberg had met the technical 21-day safe harbor notice requirement and could satisfy the heavy burden under the statute, which he did not and cannot, the amount of fees sought by his counsel is not supported by Florida law. Specifically, the contingency in skim multiplier that Aronberg's counsel seeks cannot be applied where, as here, the only basis for fees is Section 57.105.

As set forth in more detail below, the Amended Motion should be denied in its entirety.

# BACKGROUND
1. On January 17, 2020, Plaintiff filed a First Amended Complaint [DE 17] ("Complaint") against State Attorney Aronberg and the Clerk and Comptroller of Palm Beach County, Florida, Sharon Bock (now Joseph Abruzzo) ("Clerk"), for declaratory relief (Count I) and relief under Florida Statutes Section 905.27 (Count II), seeking to obtain access to records from the grand jury proceeding and criminal prosecution of the late Jeffrey Epstein, a convicted sex offender, by former State Attorney Barry Krischer.

2. On January 24, 2020, Aronberg filed an Answer to Count I and a Motion to Dismiss Count II ("Aronberg Answer") [DE 22].{sup}`2`

3. In his Answer to Count I of the Complaint, Aronberg admitted that Plaintiff sought but Defendants "have refused to provide access to testimony, minutes, and other evidence presented in 2006" in the grand jury proceeding. Aronberg Answer, ¶ 72 [DE 2].


{sup}`2` The same day, the Clerk also filed an Answer to Count I and Motion to Dismiss Count II [DE 24].

4. On June 8, 2020, the Court entered an Order Granting the Defendants' Motions to Dismiss Count II of Plaintiff's First Amended Complaint With Prejudice [DE 33]. The Order specifically did not address the merits of Count I.

5. On July 1, 2020, Aronberg filed his First Motion seeking sanctions against Plaintiff under Florida Statutes Section 57.105. [DE 35].

6. On June 8, 2020, prior to filing his First Motion, Aronberg's attorney (Douglas A. Wyler, Esq.) served via email to Plaintiff's counsel an unfiled copy of the First Motion with an enclosure letter. The enclosure letter was not filed along with the First Motion [DE 35], which has no exhibits.{sup}`3`

7. The June 8, 2020 enclosure letter accompanying the First Motion (but not the First Motion itself) alleged in conclusory fashion that Aronberg did not have possession, custody, or control of the grand jury documents sought by Plaintiff. See [DE 45] at Ex. A. Importantly, however, there was no evidence in the record to confirm this allegation, and the First Motion did not refute or even address the State Attorney's ability to object to or impede attempts by the Plaintiff (or any other third party) to seek grand jury documents, whether through the Clerk or other means.

8. At the time of Aronberg's First Motion for sanctions, which he expressly admitted was a "place-marker" motion to the extent he ultimately prevailed on the merits,{sup}`4` no motions for summary judgment had been filed and Aronberg had not served any affidavit(s) or identified any evidence relating to this matter or any allegations in the Complaint.


{sup}`3` Aronberg later attached the June 8, 2020 enclosure letter as Exhibit A to his October 14, 2020 Response to Plaintiff's Memorandum of Law in Opposition to the State Attorney's Fla. Stat. Section 57.105 Motion ("Aronberg's October 14, 2020 Reply") [DE 45].

{sup}`4` See Aronberg's October 14, 2020 Reply [DE 45], at 5, 13.

9. On or aboutAugusi 18, 2020; Aronberg:filed a MOtiOn for S mary Judgment [DE 38] arid. an affidavit [DE39] averring that.he did not have posgestien or centre] over the Epstein wandlury.materialsancl hadmo authority to demand that the Clerk provide access to thematerials, Thiswasthe first record evidence relating to ArOnb.erg's lack of possession Or control of the grand jury materials sought by Plaintiff. Notably, Aronberg's affidavit still did nit refute:or a dress the. State Attorney's ability to•object to or otherwise impede an aftempfby Plaintiff to nd fury documents.

10, On cictober.21, 2020, Arenberg filed a. motion te set a his Motion far Summary Judgment [1)E 47]. On that same. date, Plaintiff filed. Arenberg, disMisgilig hitt froth the case [DE 48]. moping Party as to

II; Nineteen days. after Plaintiff disrois October 21,,20 .20 rititice•dropriing Arenberg as • aSE . - • 481,tin November 9,2010, Arenberg filed his Amended Motion [DE 50], seekfirz rem the action by filing an against.Plaintiffrelating to all fees ens under Florida Statutes Section 57.105 r.r.erl by Arenberg after Julie 8, 2020,

I2. The Amended referenced Aronberg's August e.his\*First"placemarker Motion.filed omfuly 1,2020, 20 Motion.for Summary Judgment and exhibits.

13. Counsel 21 d deify like his First Motion, which was served via,ipmair upon. Plaintifts filing, Arenberg's Amerided.Motion was never served via thy inethed.ef as filed on November 9, 2020.

On August.11, 2021, Aronberg.filed an Amended Memorandum of Law in Support. ofhis Amended Motion for Attorneys' Fees [DE 74.].

15. As to thePlaintiffs remaining claim against the Clerk, on April 2Z 202:1, Plaintiff filed a motion for summary judgment against the Clerk as to.Countl of the CoMplaint. PE 58].

Court's-ten-week docket between March .14 and May 20, 2 19. The evidentiaryhearingon Aronberg's Amended 4c:24; ))3lion . c.ticins is set on:the

# MEM a RANDUM
16'. The hearing on the Plaintiff motion for summary judgment against the Clerk.as to:Count'I of the Complaint took place on October 22, 2021.

17, On December 20; 2021, the Court entered an order' on r laintifFs motion for summaryjudgment. Because•the only othercount of the Complaint, Count II, had been disposed of by Orderfiled June 7, 2020 [DE 31]"the Court's December 20, 202'1. order was.a fiAime nal t\*udgment in the case ("Final Judgment!). [DE 78].

i 18. Ott.January 27, 2022, Plaiiitiffilled :a notice of appeal as t . Judgitiefft. [DE 83], C dan i

# 1. LEGAL STANDARD
Under. Section 57.105,, Florida Sta he court may award. reasonable attorneys' fees only Kit finds that &party or its atto should hayel5nown that a claim or defensewhen initially presented to the Co a time before trill was not 'atippotted by Material faCts necessary to establiSh the did fence, or would not be supported by the application of thenexisting law to•th0senta acts, to award sanctions, "the trial court mist find that there were no justiciable ' 0llziw or fact and that the losing parry's attoiney did hot act in pod faith based o WAN Of his or her client," Siegel v. M, 71 So. ad 205":211 (Fla. 2d.DCA 2011) uo on omitted)..

Indeed, "[w]here there is an arguable basis in law and fact for a party's claim, a trial court: may not sanction that: party under section 57.10.5."1S;Thuo fil31.11.1•LC v. 1900 "Figgie of Flora\*

{sup}`5` Although the Clerk had previously filed a motion to amend the Judgment on January 3, 2022 [DE 81], the Clerk withdrew the motion to amend on .January 26, 2022 [DE 89].

*Inc.*, 228 So. 3d 147, 149 (Fla. 4th DCA 2017) (citing *Kowallek v. Rehm*, 189 So. 3d 262, 263–64 (Fla. 4th DCA 2016)) (emphasis added). Courts must apply Section 57.105 “with restraint to ensure that it serves its intended purpose of discouraging baseless claims without casting a chilling effect on use of the courts.” *MacAlister v. Bevis Constr., Inc.*, 164 So. 3d 773, 776 (Fla. 2d DCA 2015).

Taking into account the amendments that broadened the statute after 1999, “Florida courts have continued to caution that section 57.105 must be carefully applied to ensure that it serves the purpose for which it was intended – to deter frivolous pleadings.” *MC Liberty Express, Inc. v. All Points Servs., Inc.*, 252 So. 3d 397, 403 (Fla. 3d DCA 2018) (“Thus, an award of fees under section 57.105 requires more than the moving party succeeding in obtaining a dismissal of the action or the entry of a summary judgment in its favor, . . . and a party does not need to have conclusive evidence to prove its case at the time of filing in order to avoid sanctions. Where a party reasonably believes the factual basis for its claim exists, it is entitled to proceed with its claims and seek to prove those facts. If attempts to prove those facts are fruitless, that is still not cause for sanctions where the party’s initial belief was well-founded.”) (internal citations omitted). Thus, a voluntary dismissal does not automatically equate to sanctionable conduct.

Before awarding sanctions, the trial court must make “explicit findings” that “the action was ‘frivolous or so devoid of merit both on the facts and the law as to be completely untenable.’ . . . This burden is a heavy one.” *Id.* (internal citations omitted) (emphasis added). Additionally, the trial court’s findings “must be based on substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record.” *Trust Morig., LLC v. Ferlanti*, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016). The trial court “must make an inquiry into what the losing party knew or should have known during the fact-establishment

process, both before and after suit was filed." *See Chue v. Lehman*, 21 So. 3d 890, 891-92 (Fla. 4th DCA 2009).{sup}`6`

**II. ARONBERG'S AMENDED MOTION MUST BE DENIED FOR FAILURE TO COMPLY WITH THE 21-DAY SAFE HARBOR PROVISION IN SECTION 57.105(4).**

**A. ARONBERG FAILED TO SERVE 21 DAYS PRIOR TO FILING THE AMENDED MOTION ASSERTING NEW ARGUMENTS, IN VIOLATION OF SECTION 57.105(4).**

Aronberg's Amended Motion failed to comply with the 21-day notice provision set forth in Florida Statutes Section 57.105(4) and, as a result, the Amended Motion must be denied outright. Aronberg's Amended Motion raised arguments not raised in his First Motion, and cited evidence not in the record at the time the First Motion was filed, thus Aronberg was required to independently comply with the 21-day safe harbor provision of Section 57.105(4) as to the Amended Motion. *See Lago v. Kame By Design, LLC*, 120 So. 3d 73, 75. (Fla. 4th DCA 2013) ("We hold that if a party files a subsequent or amended motion for sanctions under section 57.105 and raises an argument that was not raised in the original motion for section 57.105 sanctions, the subsequent motion must independently comply with the twenty-one-day 'safe harbor' provision of section 57.105(4).").

Thus, Aronberg's failure to serve the Amended Motion on Plaintiff at any time prior to filing it, alone, requires denial of the Amended Motion. *See id.* As the Fourth District Court of Appeal noted in *Lago*, "[t]o hold otherwise would allow a party to raise a new ground for sanctions in a subsequent motion under section 57.105 without giving the other side the opportunity to withdraw the offending claim or defense within twenty-one days after receiving notice of the new


{sup}`6` There is at least one instance where Florida Epstein grand jury materials have been disclosed, though who did so, when and how they were disclosed is not presently known. The United States Department of Justice acknowledges that Florida Epstein grand jury materials are in its possession. *See* Plaintiff's Motion for Summary Judgment, ¶ 76 [DE 58].

ground for sanctions." 120 So. 3d at 75; see also Akre y,...Eskrle of Albe by Benrenhafer, 239 So.. 3d 192; 195, n.2 (Fla. 5th DCA 2018) (court could not consider amended motion for section 57305 fees because it raised additional grotingh for sanctions not raised in the defendant's prior motion for' fees and there was "no indication that [defendant] complied with the twenty-one-day 'safe harbor' provision of section 57.105(4)") (citing Lago, 120 So. 3d at 75); Garcia, 147So. 34 569, 572 (Fla, 3d DCA 2014) (also citing Logo, and denying motion for 57,105 fees on other gttrunds and limi[ing] it significant" that the defendant's Moll 05 .fees did not allege qualified immtmity—the defense which was successful on tly s a grounds for entitlement to an award of fees).

BecauSt Atonbett'S barebones Firat Motion did n sub,atitive itiguritents riot cite any evidence later raised in the .Amended erg was required to serve the Amended Motion at least 21 dayabefdre filing • e, "rder I0.give,Plaintiff the opportunity towithdrivrthe count that remained against Count 1). The Amended Motion was filed'in violation a Section St 105(4) and sjtoul e.. ied.

# & THE COURT-BECAUSE IT THE ACTION. ONSIDER THE AMENDED MOTION FOR SANCTIONS AFTER ARONBERG WAS DISMISSED AS A PARTY FROM
Con Novem Arpnberg filed the Mended Motion seeking SattiQRS against Plaintiff rela ' • t. `.unt I of the Complaint against. hint. However, the entire action, which necesgt Count I, was dismissed as. to. Aronberg on October 21, 2020; nineieea days before onbergilled his Amended Motion. [DE 48, 50]. Because, at the time Aronberg filed the Amended Motion, Aronberg had already been disthissed as a party, the:Court does not have. jurisdiction over and cannot consider the ;later-fled:Amended Motion, Se'i Sidiw•ca v. Olympus Ins. Ca, 276 So. 3'tl 987, 989 (Fla. 3d DCA 2019) {"Because entitlentein to fees was premised upon emotion for sanctions filed after the voluntary dismissal, and it is well-established that 'a

trial court hascontinuingjurisdiction:toc.onsidera.secfion 57.105 motion for sanctions only where the motion for sanction was filed with the court before a voluntary, dismissal, we ate constrained to reverse and remand" the trial court's award of fees under section 57:105) (quoting largo, 129 So. 3d at 74, where the, court stated that "[bjecause appellee's: second motion for section 57.105 sanctions did not comply with the twenty-one-day `safe harbor' provision of section 5 ..105(4), the trial court erred in granting. that motion."); see also: Mpg y: Bank of itiy.., )21 . . , 23, 42 (Fla. ' 2073') (in light of the:21-day safe harbor provision under Fed. It. Civ..P iAfjlC.h is."heatly identicar by and interpreted as Fla. Stat, § 57.105(4), the motion TO .t issue must be submitted 'prior to dismissal of the claim for the court to have , as the safe harbor pitivitiettallOwithe patty to withdraw-the offendingpleacl

Plaintiff's. prior dismissal of Aronberg as a 5 that the Court dpes not have jurisdiction to consider the later-filed Amended 4i4 c . . or sanctions. As a result, the Amended Motion should be denied.

# C. ARONBERG'S SELF D "PLACE-MARKER" FIRST MOTION FOR SANCTIONS WAS I NT AND Dm 1401' ABSOLVE ARONBERG OF THE RBOUIREMENT 0 THE AMENDED MOTION PRIOR To FILINQ
Aronberg, specifi cally a hied that his First Minion for sanctions under Florida Statutes Section 57.195 w filed. place-marker" to "notify Plaintiff of the State.Attorney's•intotton to seek sailed s id he prevail on the merits at a future substantive hearing" See.Aronberg'S Octob .Reply [DE 45), of 5,13 rite 57,105 MOlton. was Merl, further put the. Plaint' on notice that the State Attorney would seek:sanctions should he prevail on the merits of the lawsuit.").

The First Motion for sanctions was insufficient under Section: 57:1 1 05 when filed — it set forth nosubstantive arguments as to why Count I of the Amended Complint was. insupportable based on material facts in the record or the:application of existing-law to those facts. Rather, at the:

time the First Motion was filed, there was no evidence in the record supporting the statement by Aronberg's counsel that it was impossible for him or the State Attorney's Office to provide the documents sought in the Complaint.

Essentially, what Aronberg argued in his "place-marker" First Motion is that if he prevailed in defending the lawsuit, his attorneys' fees should be awarded as sanctions against Plaintiff in his favor.{sup}`7` There is no such mechanism as a "place-marker" motion for sanctions. Otherwise, any defendant could file a threadbare and conclusory "place-marker" notice of his intent to seek fees if he ultimately prevails, and then seek fees based on *later-filed* evidence and arguments. A motion for sanctions must be supported by the record evidence at the time it is filed. Because the First Motion was not so supported, it fails under the statute. Further, as explained above, service of the First Motion did not absolve Aronberg of his obligation to serve the Amended Motion on Plaintiff through counsel prior to filing the Amended Motion. The First Motion cannot be a "place-marker" for the mandated service of the Amended Motion under Section 57.105(4).

# III. STATE ATTORNEY ARONBERG WAS A PROPER PARTY.
The material facts in the record at all times supported Plaintiff's claim against Aronberg. When Count I was filed, and throughout the litigation prior to Aronberg's dismissal, Plaintiff had a good faith basis for understanding that the State Attorney's Office had either access to, control over, or the ability to impinge, prevent, or thwart Plaintiff's attempts to obtain public access to the Epstein grand jury materials. *See, e.g., Ferlanti*, 193 So. 3d at 1000 (reversing trial court's award of 57.105 fees for naming husband as defendant in mortgage foreclosure proceeding, even though husband was never a signatory to mortgage or note and plaintiff made no such allegations, but:


{sup}`7` Aronberg's "place-marker" First Motion appeared to be based erroneously on a prevailing party standard (see Reply, at 5, 13), which is not the applicable standard for imposing sanctions expressly set forth in Section 57.105.

there was at leasisome triable set of:facts:under which .defendant couldbave been liable); see also Gtoise.Key Morioak.LIC v CataMayot, 166 So. Id 879, 885-86 (Fla. 3d ?CA 2015.) (affirming, denial of section 57;105 motion for fees even though lesaees. prevailed in:defeating the county's claim against them for unpaid takes, as the law at issue was a complicated matter, the county "simply covered its bases," and the county's position'that it could take remedial action a ainst the lessees evert after it became dear that the city, not the lessees, owed the taxes, "whit , [was] hot completely unteaSoilible.").

Nowhere in. the record did Arenberg ever refute his office's abil to or otherWise impede attempts by. the Newspaper to seek grand, jury materials. Win oriberg's August 18, 2020 affidavit filed with his MOtiori for Summary. Jud that he did not have possession or control over the. Epstein gravnd jury ffidavinves ;notably silent as to whether the State Attorney could or would to tervene in or objed to theNewspaper's attempts to obtain the:Epstein grand jury m e (DEIS, 391 On October 21, 2020, when Arenberg tjted a metier'. to set a bee gtion for Summa r); ludgmers, Plaintiff made the strategic decision w dismiss A party from the action, despite it still having:a:substantial good faith basis to keep Aronb the case even at that point. See OE• 47, 48].g

As S.tate A rney rdnbergwasnot.narnedin this action:solely asalcustodian of the grand jury records e was a defendant in his official capacity because his office has "as its

It is.alsdworth noting that While Aronbergalleged in:theJune 8,2020 enclosure letter to his First Motion that his office. did not have physical possession of the Epstein grand jury materials, he nevertheless argued in that same letter, relying on Section 905.27, that lho. Clerk Should not. produce them. By taking a position against disclosure, Arenberg., in effect, Asserted his right to the. secrecy &the .E0stein grand jury materials. Stated another way, Aronberg claimed the statutory right for the State Attorney's Office to-prevent apcessto the Epstein grand July materials, a position which actually supported the' ropriety of naming hiro,,in his official capacity, as a party defendant in this action.

*primary* interest the protection of its grand jury system." *In re Grand Jury Proceedings*, 832 F. 2d 554, 559 (11th Cir. 1987) (italics in original). In that case, the federal government petitioned a Florida State Attorney to turn over state grand jury transcripts. In opposition, the Broward County State Attorney argued against their release, citing to Section 905.27. Later, a federal grand jury served a subpoena upon the same State Attorney seeking grand jury transcripts. The State Attorney advised the federal court that he would produce the transcripts, thereby demonstrating that irrespective of physical possession, he had legal authority to obtain and deliver them pursuant to the subpoena. For these same reasons, State Attorney Aronberg, in his official capacity, was a necessary party, at the very least as a nominal defendant.

Plaintiff had a legitimate and good faith basis to name Aronberg in his capacity as the State Attorney as a party defendant and to include him in the lawsuit. As the public official charged with protecting the grand jury process, the State Attorney was a necessary party, and he would have had the right to intervene as a defendant even if he was not named as a party in the Complaint. As the Court noted in the Final Judgment, the State Attorney had been dismissed and "there have been no attempts to intervene in this case to take a position against disclosure" of the grand jury materials. *See* [DE 78, pp. 2-3].

Further, even assuming the State Attorney did not have physical possession, Florida law does not prohibit his office from requesting the Epstein grand jury materials from the Clerk. Indeed, as the State Attorney is well aware, Florida Statutes Chapter 905 does not bar any State Attorney from accessing grand jury materials, even after a defendant has been convicted and sentenced.

# W. THE ISSUES RAISED IN copNT I OF THE COMPLAINT WERE A MATTER OF FIRST IMPRESSION, WERE NOVEL AND COMPLEX AND PRESENTED A GOOD FAITH ARGUMENT FOR THE INTERPRETATION OF EXISTING LAW OR .ESTABLISHMENT OF NEW LAW; THUS SANCTIONS ARE NOT APPROPRIATE.
# A. ARONBERG CANNOT SATISFY THE. REOUMEMENTS OF SECTION 57.10SM.
Sanctions are plainly inappropriate under Section 51,105(1) where, as here, a ood faith basis exists for a proposed interpretation of the law' pplied to the material facts § 57,105(1). Nothing in the record supports ArOnberg's position that the Ne declaratory relief in Count I lacked good faith and was unsupported contrary; even the Court's Final Judgment described the. Newspape "sifidere," "palatable and persuasive," arid noted that theN case law from other jurisdictions, See, eg" [DE 78], arguments to advance its more expansive cons' several passages from state and federal Newspaper's vibrant and sincere ar Stat s claim for law,,' to the ments as "strong," position was supported.by ("The Newspaper makes strong. ."); p: 9 ("The Newspaper. provides ..y p. 11 ("the court acknowledges the The Court went so far as to "commen[d) both parties' attorneys for their exert o and' written presentations." Id at p. 13.

Moreover, the Court no . .1,hs was a case of "first impression?" which "imPlicate[0] issues of. constitutional import trig the historic tension. between grand jury secrecy and the First. Amendinent," cititext of "genuine.subjects &public intertstand concern:" Id. at:p. 5. There.

{sup}`.9` ovember 9, 2020 Amended. Motion appears to relate only to C. T ot the Compl t (although, as set forth above,'no count was pending against Aronberg as of October 21, 2020). While Count ll alleged that the Newspaper has constitutional and statutory standing to dverecime grand jury seared)? provisions "in furtherance of justice," Count I, in contrast, did not allege .a Section 905.27 private right of action. Instead, Count I soughtdeclaratory relietunderthe U.S. Constitution's First Amendment and the Florida Constitution's analogous provisions. As to Count 11, Plai Oft presented various reasoned arguments why Section 905.27 creates a private right of action in favor of the media on both constitutional and statutory grounds. See Plaintiff's Opposition.to Aronberg'sMotion to Dismiss Count IT ofthe First. Amende,d Complaint; [DE 26] at pp. 10-15.

is no basiafor Aronberg'soisition thatPlaintiffs claim was devoid ormen I both on,the facts and law as to be completely untenable, in this case of first impression involving important constitutional issues. See MC Liberty Express:, 252 So. id at 403. Where a claini presents- novel and complex issues, such as here, sanctions under Section 57.105(1) are notappropriate. See Grove Key Marina, ac v. Casamayor, 166 So. id 870, 885-860a. id DOA 2015). Requestin a ruling, on an issue of fist impression, by its very nature; is a good-faith effort to inte extend existing Ittiv—and is riot baseless or unsupported. It is Arattberg's °satin sanctions, not Plaintiffs claim, that is baseless. csCed tpreviously resolved tion seeking

Unlike the State. Attorney or the Clerk, who did not cite to the issues presented relating to the media's implied privat Section 905,27 (as alleged in Count II) or fOr declare alleged in Coufit.1), Plaintiff cited federal ca granted disclosure of grand jury materials upon such authorities in its prior fit. arid interpretive case law, aloe the Court to directihe release o ti oh under: Florida Statutes o obtain grand juiy materials (as state court cases in. which the. courts ose sought here. Plaintiff appropriately relied matter to argue that the Constitulianal provisions da Statutes Section 905.27, proVided ample grounds.for pstein grand jury. materiels to the Newspaper as a surrogate for the public, or t ui th Courtto conduct gmin camera examination crthe same, to balance thepOblit'S w thrOtigh a free media With Florida's qualified statutory. interestia grand. rY \$ e.g., First Amended Complaint [DE 17], at 15-19; Plaintiffs Opposition to: Aronbe 's Motion to Dismiss Count II of the Fink Amended Complaint '(DE 26], at 10-20; Plaintiffs Memorandum of Law iii Opposition to AtonbereS First Motion [DE 43], at 5-7.. In short, Plaintiff proposed a good faith interpretation of existing law in support of its declaratory relief claint in Count I.

# B. THE EXCEPTION FROM SANCTIONS UNDER SECTION 57.105(3)(A) APPLIES HERE.
Even in the absence of supportive law properly relied upon by.Plaintiff? `lain award of fees pursuant to section 57.105 is inappropriate when, a party makes. a good-faith, effort to change an existing rule Of law," and in such a tircuinstande; Section 57;105(3)0 provides an explicit exceprion from sanctions. See ■v. **6Q2 So. 2ct 044, 646 (Fla, 20 DCA 1999 al court abused its discretion in awarding fees against plaintiff's attorney who SwOrd in• davi hat he filed a subsequent action in a good-faith effort to change: the law re ht doctrine: of interspousal immunity tO argue the courtshould create an exception to ne); Key Biscayne Gateway Fanners, Ltd. v. Village Councillor Village of Key B 24ao. Sd 84, 8.7 (Fla. 3d DCA 2018) (reversing order of sanctions under 57.105. argument was presented.for extension of existing law with reasonable expecta**

**Spetifically,, Section 57.105(3,)(a) ni N -a e o, monetary sanctions shall not be awarded.**

**if the court determines presented to the cou modification, or re tnt, as it appli of success the claim or defense was initially faith argument for the extension toil law or the establishment of new erial facts, widta reasonable expectation**

**Fla. Stat. § 57.105(3Xa) hasis added).**

**At then east, P miff provided it good-faith argument for theextension or Modification of existing establishment of new law, and thus sanctions are not appropriate under Secti )(a). Seq. also Final Judgment, pp.** 12-13 ( (Perhaps the circumstances presented above wi induce the Legi Mature to amend section 905\_27 to, grant the courts additional authority or leeway on unjcitic cases such as this one, . Until that time, this court is bound by the fundamental doctrines of statutory construction; separation of powers an according to het law as it exists today."). stare decisis to rule

The Amended Motion for sanctions should be denied based on ih express provisions of Settion.57.105(1 )-0) and the exception.set forth in Section 51.105(3)(a).

# Y. THE AMOUNT OF FEES SOUGHT, INCLUDING A ,MULTIPLIER, IS NOT APPROPRIATE.
No amount offees may be awarded as sanctions under Section 57 105. Even assuming, arguendo, that Aronberg somehow met the technical 21-day safe harbor notice requi ent and could satisfy the heavy burden 'under Section 57.105(1); which he did hot can t,. the contingency tisk multiplier sought by his counsel terabit be applied as a in I

The State Attorney's counsel, Douglas A. Yityler, Est;, was swam to a retainer 84N:elle n, which is attached as Exhibit 0 to The Amend eAcy' n [PE 50]. The retainer agreement proVided that fees would be paid to Mr. Wyler d • only jlanomeys' fees were 1, attfcc G-("YOU will not be liable or required to pay any monies to Our office s a c pr a successful in our representation of you in the above-referenced.litigation.and r e a c rt order awarding attorneys' fees."). 'However, Arenberg.did. not me a countercl other affirmative claims seeking monetary damages in the litigation. And the cau s otaF Oti. in the Plaintiff's complaints (for. declaratory judgment and for relief under C r 905, Florida Statutes) did not provide any basis for an award of attorneys' fees shi g of fees fora prevailing party. Thus, the only basis for attorney's' fees was throu lc: , 'on under Section 57.105, Florida Statutes. awarded: (0 tbe State Attorney Pnra.uant to a coo

It ,settled under Florida law that a contingency risk multiplier., as sought by Aronberr s counsel here, cannot be applied where the only bags for fees it•S'anctions under Section .57,165, See, e.g., Sworn v. Southern Rainbow Corp., 601 So., 24 107, 108 (Ilk 3d DCA 1992) t (11,1jhen a case is so patently frivolous art° cause counsel to represent hi or her client for a:fee that is solely contingent upon a section. 57.105 recovery, it. cannot fealontibly be. treated as.

involving a risk that would support a multiplier.”) (citing *Transflorida Bank v. [REDACTED]*, 576 So. 2d 752, 754 (Fla. 4th DCA 1991)); *see also* [REDACTED] v. *Merkle*, 646 So. 2d 289, 290 (Fla. 2d DCA 1994) (holding it was error to apply a contingency risk multiplier to an award of fees based on Section 57.105, and reversing as to the amount of the multiplier); *see also Wolfe v. Nazaire*, 758 So. 2d 730, 733 (Fla. 4th DCA 2000) (reversing and remanding trial court’s award of fees where court did not explain its reasons for award using a multiplier, as the court is required to state the ground on which it justifies the enhancement or reduction of fees).

The multiplier sought by Aronberg’s counsel cannot be awarded as a matter of law. Beyond that, Plaintiff objects to any and all amounts of fees sought by Aronberg’s counsel and requires strict proof of the reasonableness of those fees at the evidentiary hearing. No fees are appropriate under Section 57.105.

# CONCLUSION
Based on the foregoing, Plaintiff, CA Florida Holdings, LLC, publisher of *The Palm Beach Post*, respectfully requests that the Court deny State Attorney Dave Aronberg’s Amended Motion for Attorneys’ Fees in its entirety, with prejudice, and grant such other and further relief as the Court deems necessary or proper.

Respectfully submitted,

*Attorneys for CA Florida Holdings, LLC,*
*Publisher of The Palm Beach Post*

*/s/ Lauren Whetstone*

LAUREN WHETSTONE

Florida Bar No. 45192

MARK F. BIDEAU

Florida Bar No. 564044


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. GRYGHEL
(Admitted *Pro Hac Vice*)
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NINA D. BOYAJIAN
(Admitted *Pro Hac Vice*)
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# CERTIFICATE OF SERVICE
**I HEREBY CERTIFY** that on this 24{sup}`th` day of February, 2022, a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system, which will send a notice of electronic service for all parties of record herein.

*/s/ Lauren Whetstone, Esq.*
Lauren Whetstone, Esq.