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Rivero v. Farach

Florida Court of Appeals, Third District

May 16, 2018

Marcus Rivero, Petitioner,
v.
Oscar Farach, et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-16680 Jose M. Rodriguez, Judge.

          Law Offices of George W. Wickhorst, P.A., and George W. Wickhorst, III, for petitioner.

          Farrell Patel Jomarron & Lopez, and Jesmany Jomarron and Rachel A. Canfield, for respondents.

          Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

          PER CURIAM.

         Marcus Rivero seeks a writ of certiorari quashing orders denying his motion to determine a court record as confidential and his motion for reconsideration. For the reasons which follow, we deny the petition.

         I. Facts

         This case originated with Rivero's claims for defamation and injunctive relief due to an anonymous online blog posting of a negative comment on a public website. The post contained Rivero's mugshot from a previously-sealed criminal proceeding. Rivero claims that Oscar Farach was the author of the comment, and that Farach's hired counsel improperly threatened to serve a litigation hold letter, attaching the anonymous comment, to more than one hundred potential witnesses. After one witness confirmed receipt of the letter, Rivero filed a second amended complaint naming Farach, as well as Farach's attorney and law firm, as defendants.

         The defendants moved to dismiss the complaint for failure to state a cause of action, including Rivero's failure to attach a copy of the alleged defamatory statement to the complaint. The trial court granted the motion, but permitted Rivero to file a third amended complaint attaching the allegedly defamatory online blog post.

         Complying with the trial court's order, Rivero attached, as an exhibit, a screenshot of the online blog post, while also filing a motion to determine the confidentiality of the attachment. The trial court denied the motion, concluding that the attached exhibit was not a court record subject to Florida Rule of Judicial Administration 2.420. After the denial of a motion for reconsideration, Rivero sought certiorari here.

         II. Requirements for Certiorari Relief

         To obtain certiorari relief, the petitioner must establish the following three elements: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004). With respect to the first element, a trial court's ruling departs from the essential requirements of the law when it violates a "clearly ...


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