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Mazur v. Baraya

Florida Court of Appeals, Second District

July 10, 2019

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,
v.
FRANCISCO JAVIER OSPINA BARAYA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Petitions for Writs of Certiorari to the Circuit Court for Pinellas County; Cynthia J. Newton, Judge.

          Gregg 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.

          Alison 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.

          Jon Polenberg, Yasin Daneshfar, and Andrew Polenberg of Becker & Poliakoff, Ft. Lauderdale, for Respondent.

          KHOUZAM, CHIEF JUDGE.

         Francisco 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").[1] 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., the press.

         Our 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).

         The Petitioners/Defendants argue that the circuit court violated clearly established principles of law by either misinterpreting or misapplying section 770.01, which provides as follows:

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 defamatory.

         The 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.

         Florida 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, consistent ...


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