ROBERT MAZUR, INDIVIDUALLY; KYC SOLUTIONS, INC.; PENGUIN RANDOM HOUSE, LLC; LITTLE, BROWN AND COMPANY, INC.; GOOD FILM, LTD.; BROAD GREEN PICTURES, LLC; INFILTRATOR PRODUCTIONS LIMITED; ELLEN BORWN FURMAN; BRAD FURMAN; YUL VAZQUEZ; AND GOOD FILM PRODUCTIONS U.S., INC., Petitioners,
FRANCISCO JAVIER OSPINA BARAYA, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petitions for Writs of Certiorari to the Circuit Court for
Pinellas County; Cynthia J. Newton, Judge.
D. Thomas, Carol Jean LoCicero, and Mark R. Caramanica of
Thomas & LoCicero, P.L.; Laura R. Handman of Davis Wright
Tremaine LLP, Washington, DC; and Geoffrey S. Brounell of
Davis Wright Tremaine LLP, New York, NY, for Petitioners
Robert Mazur, individually; KYC Solutions, Inc.; Penguin
Random House, LLC; and Little, Brown and Company, Inc.
Gregory W. Kehoe of Greenberg Traurig, P.A., Tampa, for
Petitioner KYC Solutions, Inc.
M. Steele of Alison M. Steele, P.A., St. Petersburg; and
Louis P. Petrich of Leopold, Petrich & Smith, P.C., Los
Angeles, CA, for Petitioners Good Film Pictures, LLC; Broad
Green Pictures, LLC; Infiltrator Productions Limited; Ellen
Brown Furman; Brad Furman, Yul Vazquez; Good Film Productions
U.S., Inc.; Robert Mazur, and KYC Solutions, Inc.
Polenberg, Yasin Daneshfar, and Andrew Polenberg of Becker
& Poliakoff, Ft. Lauderdale, for Respondent.
KHOUZAM, CHIEF JUDGE.
Javier Ospina Baraya filed a defamation suit against Penguin
Random House LLC, Hachette Book Group, Inc., Robert
"Bob" Mazur, and Mazur's company, KYC
Solutions, Inc. (collectively, the "Book
Defendants") as well as Good Film, Ltd., Broad Green
Pictures, LLC, Infiltrator Productions Limited, Ellen Brown
Furman, Brad Furman, Yul Vazquez, and Good Film Productions
U.S., Inc. (collectively, the "Movie
Defendants"). Baraya alleged that he had been falsely
portrayed as a money launderer and integral member of Pablo
Escobar's criminal operations in Mazur's nonfiction
book The Infiltrator as well as the movie based on
the book. The Book Defendants and the Movie Defendants filed
motions to dismiss, arguing Baraya had failed to provide them
with presuit notice as required by section 770.01, Florida
Statutes (2018). Apparently agreeing with Baraya's
position that section 770.01 does not apply here, the circuit
court denied the motions. The Defendants filed in this court
petitions for writs of certiorari seeking to quash the orders
denying the motions to dismiss. "The denial of a motion
to dismiss for failure to provide the presuit notice required
by section 770.01 is a proper subject for certiorari
review." Zelinka v. Americare Healthscan, Inc.,
763 So.2d 1173, 1173 n.1 (Fla. 4th DCA 2000). However, we are
constrained to deny the petitions because Florida courts have
interpreted section 770.01 to apply only to news media, i.e.,
scope of review on a petition for writ of certiorari is very
narrow. "[T]he departure from the essential requirements
of the law necessary for the issuance of a writ of certiorari
is something more than a simple legal error."
Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889
(Fla. 2003). "A district court should exercise its
discretion to grant certiorari review only when
there has been a violation of a clearly established principle
of law resulting in a miscarriage of justice."
Id. Mere disagreement with the circuit court's
interpretation of applicable law is an improper basis for
certiorari review. Ivey v. Allstate Ins. Co., 774
So.2d 679, 683 (Fla. 2000). Where an issue is debatable and
there is no case law on point, there is no clearly
established principle of law for the lower court to depart
from and a petition for writ of certiorari cannot be granted.
See Sjuts v. State, 754 So.2d 781, 783-84 (Fla. 2d
DCA 2000); Wolf Creek Land Dev., Inc. v. Masterpiece
Homes, Inc., 942 So.2d 995, 997 (Fla. 5th DCA 2006).
Petitioners/Defendants argue that the circuit court violated
clearly established principles of law by either
misinterpreting or misapplying section 770.01, which provides
770.01. Notice condition precedent to action or
prosecution for libel or slander
Before any civil action is brought for publication or
broadcast, in a newspaper, periodical, or other medium, of a
libel or slander, the plaintiff shall, at least 5 days before
instituting such action, serve notice in writing on the
defendant, specifying the article or broadcast and the
statements therein which he or she alleges to be false and
Petitioners/Defendants argue that this statute applies here
because books and movies constitute "other medium."
And because Baraya failed to give presuit notice as required
by the statute, they argue that Baraya's suit should be
dismissed. Although the circuit court did not set forth any
specific findings, it rejected the
Petitioners/Defendants' argument, apparently agreeing
with Baraya's position that section 770.01 does not apply
to books or movies and that the Petitioners/Defendants are
"non-media defendants" for purposes of the statute.
courts have consistently interpreted section 770.01 to apply
only to news media, i.e., the press. "In its original
form, section 770.01 applied only to newspapers and
periodicals." Zelinka, 763 So.2d at 1174.
"In 1976, the statute was amended to include reference
to 'broadcasts' in addition to 'publications'
and to 'other mediums' in addition to newspapers and
periodicals." Id. Even after the 1976
amendment, Florida courts have relied on the Florida Supreme
Court's decision in Ross v. Gore, 48 So.2d 412
(Fla. 1950), for guidance on the parameters of the statutory
language in section 770.01. This is because, at the time of
the amendment, "the legislature was aware of
Ross since it is presumed to be cognizant of the
judicial construction of a statute when contemplating changes
in the statute." Bridges v. Williamson, 449
So.2d 400, 401 (Fla. 2d DCA 1984). "Further, because the
legislature enacted only minor amendments to the statute,