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Filing # 191873166 E-Filed 02/13/2024 03:17:36 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
BETH SAFFER, et al.,
Plaintiffs, Case No.: 50-2023-CA-015733
v.
SANDRA KLIMAS, et al.
Defendants.
______________________________________/
OPPOSITION TO MOTION FOR SANCTIONS AND TO PROHIBIT
PLAINTIFFS AND THEIR LAWYERS FROM CERTAIN FORMS OF SPEECH
COME NOW, Plaintiffs BETH SAFFER and ARTHUR ROBINS, individually and on behalf
of all others similarly situated (“Plaintiffs”), by and through the undersigned counsel, and hereby
respectfully file their opposition the motion by Defendants for sanctions and to prohibit Plaintiffs’
lawyers from certain forms of speech (“speech and sanctions motion” or “motion”). This opposition
is only applicable in the event the speech and sanctions motion is not stricken pursuant to Plaintiffs’
emergency motion to strike and for sanctions, filed concurrently herewith. As grounds for this motion,
Plaintiffs state as follows:
PRELIMINARY STATEMENT
To the extent the Court does not immediately strike Defendants’ scandalous speech and
sanctions motions for the reasons set forth in Plaintiffs’ emergency motion to strike, filed concurrently
herewith, or directs the filing to be sealed, the Klimas Defendants’ motion should be denied pursuant
1
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 02/13/2024 03:17:36 PM
to an overwhelming number of judicial decisions that hold that barring speech and awarding sanctions
for said speech is impermissible.1
ARGUMENT
I. The Defendants’ Claims Of Harassment Are Frivolous
In their motion, the Klimas Defendants allege to have been harassed based on one paragraph
from the improperly published and docketed email from Mr. Botwin to those seeking his advice. The
Defendants' Motion is unsupported by any declarations, evidence or even an explanation of how it
is that the harassment allegedly happened or did in fact happen. In the Declaration of Arthur Robins,
filed concurrently herewith in connection with Plaintiffs’ motion to disqualify, Plaintiffs provide
evidence regarding the origin and context of the challenged paragraph. In the same filings, Plaintiffs
provide extensive declaratory evidence from three other affiants regarding the fact that it is the Klimas
Defendants – not Elad Botwin talking to his own clients or those seeking his counsel – who are
engaging in threats and harassment in this litigation. Indeed, Plaintiff Beth Saffer, an 80-year old
retired school teacher who is but five feet tall, told this Court months ago that Defendant Anthony
DiGennaro openly threatened her. Neither DiGennaro nor counsel for the Klimas Defendants has ever
denied this fact, directly or indirectly, let alone under penalty of perjury. Curiously, now it is
Defendants who purport to feel threatened.
Furthermore, in addition to failing to file any evidence to the effect that anyone allegedly feels
harassed or threatened by Mr. Botwin, his clients, or those seeking his advice, the Klimas Defendants
cite to no case law of any kind supporting their proposition that sanctions or the silencing of their
opponents are the correct and permissible legal remedies for a lawyer’s protected speech and opinion.
1
Plaintiffs wish to underscore the inherent error of any court adjudicating a motion which is
based upon a document clearly marked attorney-client privileged, a dispute over which has never been
ruled upon, and which was never parsed, evaluated or otherwise ordered stricken, let alone partially
or fully redacted in accordance with the overwhelming authorities cited in Plaintiffs’ Motions (to
strike, for sanctions, and for disqualification), filed concurrently herewith.
2
Accordingly, though Defendants’ motion is clearly an improper tactic and should be denied
out of hand, to the extent this Court is in any way inclined to even consider the unprecedented
remedies Defendants seek or render an opinion as to a communication that is absolutely privileged,
Plaintiffs respectfully request an evidentiary hearing, during which the Court can take testimony,
credibility, bias, and make any informed decision about the merits of Defendants’ motion (or lack
thereof). 2
II. Mr. Botwin’s Statements Are Absolutely Immune Under the Litigation Privilege.
Although the subject email is neither wrong, unethical, nor even controversial, Plaintiffs now
address the hypothetical question of whether Mr. Botwin may be held to pay money civilly with
respect to anything contained in the mail. As an initial matter, the content of the December 29, 2023
email is obviously focused on the case at bar and the surrounding disputes arising therefrom. As a
result, a literally overwhelming number of courts – including controlling authority in Florida – hold
that neither Botwin nor his law firm SMGQ may be held civilly liable in any way, shape or form for
what they may decide to say: particularly to persons who the undisputed evidence shows sought out
their counsel. This is the case even if Mr. Botwin’s email had been defamatory, which it clearly and
as a matter of law was not. See, Sexton v. Carnival Corp., 504 F. Supp. 3d 1359, 1366 (S.D. Fla.
2020) (holding defamatory statements occurring during the course of a judicial proceeding are
immune); Wausau Underwriters Ins. Co. v. Danfoss, LLC, 2015 WL 9094201, No. 2:14-CV-14420
at *17 (S.D. Fla. Dec. 16, 2015) (“statements made in the course of legal proceedings are absolutely
privileged if pertinent to the litigation”); Sims v. Unation, LLC, 292 F. Supp. 3d 1286, 1301 (M.D.
Fla. 2018) (“Under the Illinois litigation privilege, anything said or written in the course of a legal
proceeding is protected, as long as the communication pertains to the litigation. Id. ”); Amadou v.
It is respectfully submitted that, in the unlikely event this would occur, Plaintiffs are entitled
2
to—and will seek—a protective order so as to prevent improper disclosure of any privileged and
confidential information.
3
Hawkins Parnell, 445 F. App'x 157, 3 (11th Cir. 2011) (statements of an attorney are protected by
“absolute privilege” if they are relevant to the subject matter of the litigation); Arko Plumbing Corp.
v. Rudd, 230 So. 3d 520, 524 (Fla. 3d DCA 2017) (collecting cases, including holdings applying the
privilege to “letters sent by a law firm to defendants in foreclosure cases that falsely represented the
amount of money the defendants owed for title searching services”) (citing Echevarria, McCalla,
Raymer, Barrett & Frappier v. Cole , 950 So.2d 380, 384 (Fla. 2007)); LatAm Investments, LLC v.
Holland & Knight, LLP, 88 So. 3d 240, 244 (Fla. 3d DCA 2011) (“Accordingly, we find that Holland
& Knight's actions, which occurred during and were related to the judicial “proceedings” in the federal
lawsuit, were protected by the litigation privilege.”)
The words of the Florida Supreme Court are particularly appropriate in the circumstances of
this case: “[W]e find that absolute immunity must be afforded to any act occurring during the course
of a judicial proceeding, regardless of whether the act involves a defamatory statement or other
tortious behavior …, so long as the act has some relation to the proceeding.” Levin, Middlebrooks,
Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994). It is
undisputed that the December 29, 2023 email complained of by the Klimas Defendants occurred after
the start of this litigation. As the Florida Supreme Court instructed in Echevarria, “[a]bsolute
immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long
as the act has some relation to the proceeding." 950 So.2d at 384 (emphasis added).
Naturally, the courts have also held that the absolute privilege afforded litigants and their
lawyers cannot be circumvented by seeking sanctions instead of filing a formal lawsuit. As stated by
the New Jersey Supreme Court: "If the policy, which in defamation actions affords an absolute
privilege or immunity to statements made in judicial and quasi-judicial proceedings, is really to mean
anything then we must not permit its circumvention by affording an almost equally unrestricted
action under a different label." Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d
4
889, 895 (1955) (emphasis added) (holding also that “litigation privilege bars any action based on a
motion for sanctions”). A similar holding based on the reasoning of New Jersey’s Supreme Court is
appropriate in the case at bar.
The foregoing rule of law is deeply rooted in American jurisprudence. See, Restat. 2d of Torts,
§ 586 ("An attorney at law is absolutely privileged to publish defamatory matter concerning another
in communications preliminary to a proposed judicial proceeding, or in the institution of, or during
the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some
relation to the proceeding"). Although the communication must be pertinent to the litigation, it need
not pertain to the specific issues involved in the litigation. Skopp v. First Federal Savings, 189 Ill.
App. 3d 440 (1989).
Accordingly, even if the subject statement about Defendant Rob Thom’s goings on inside of
the community were to have been defamatory or false (which they were not), Mr. Botwin cannot be
held liable for raising the questions contained in his email based on the facts set forth in the operative
complaint on file—to say otherwise would be frivolous.
III. Silencing Mr. Botwin Violates His Right To Speak and Deprive Plaintiffs of Their
Right to Counsel.
While, for the reasons argued in Plaintiffs’ Motion to Strike and in throughout this response,
this Court should not consider any matter based upon Mr. Botwin’s December 29, 2023 email,
clearly marked attorney client privileged, for the reasons set forth in Plaintiffs’ Emergency Motion
to Strike and for Sanctions and Plaintiff’s Motion for Disqualification, any order restricting what
Mr. Botwin may do and how he may use his words when rendering legal advice would be contrary
to law and unconstitutional.
Indeed, understanding how deeply engrained in our country’s fabric the rights to free speech,
to counsel, and absolute immunity in litigation are, the Florida Supreme Court has clearly instructed
5
that placing muzzles on our citizenry is unlawful. Nodar v. Galbreath, 462 So. 2d 803, 808 (Fla. 1985)
(“We believe, however, that the constitutionally protected right to discuss, comment upon, criticize,
and debate, indeed, the freedom to speak on any and all matters is extended not only to the organized
media but to all persons.”) (emphasis added). Accordingly, this Court should reject the Klimas
Defendants’ invitation to rewrite the law or carve out an exception to existing law on the right to
counsel by sanctioning and restricting speech by a licensed lawyer to those contacting him for legal
counsel.
IV. Regardless Of the Foregoing, Mr. Botwin’s Opinions Are Not Sanctionable.
The Klimas Defendants’ angst is that Mr. Botwin expressed his opinion in an email to Florida
homeowners that people searching for the truth wish to inquire and exercise their judgment as to the
character and veracity of their assertion made by Defendant Rob Thom. There is no call to harass Mr.
Thom, to threaten him, to do violence to him, and no mention of other Defendants. Such an expression
of opinion is neither new nor controversial. The matters of the egregious surcharges and shady land
leads undertaken by the board are directly pled with specificity in the Complaint and in the First
Amended Complaint: it is no surprise that Mr. Botwin believes and advocates these facts. His decision
to advocate for his clients is nothing that could possibly be held to be sanctionable. Indeed, courts
have held that precisely such expressions of opinion can never be subject to sanctions even if they are
made outside the absolute litigation privilege. See, e.g., Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012)
(An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or
implying actual facts capable of being proved true or false.”) (citing Milkovich v. Lorain Journal, 497
U.S. 1 (1990)).
Considering longstanding law that opinions are neither actionable nor even controversial, this
Court cannot be asked to regulate or sanction statements by a licensed lawyer suggesting that members
of the community may want to investigate “the kind of person Thom is and whether you are all in
6
good hands with Thom running the community … ,” especially given the matters alleged in the
operative pleadings. See, December 29, 2023 email. While the Klimas Defendants may expected to
be critical or take umbrage regarding Mr. Botwin’s statements in the email about Mr. Thom’s
involvement with the exorbitant and unwarranted surcharges and his conflict of interest at the time of
the unapproved sale to the developer, Defendants’ Motion is not the proper vehicle to address his
bruised ego. Nevertheless, if this Court wishes to hold an evidentiary hearing at which Plaintiffs will
demonstrate, through testimony and other evidence, the absolute truth of these and other instances of
wrongdoing by Thom, Plaintiffs are prepared to do so.
CONCLUSION
WHEREFORE, if not immediately stricken, the speech and sanctions motion should be denied
out of hand.
DATED this 13th day of February, 2024
Respectfully submitted,
SANCHEZ-MEDINA, GONZALEZ, QUESADA,
LAGE, GOMEZ & MACHADO LLP
GUSTAVO D. LAGE, ESQ.
Attorneys for Plaintiffs
201 Alhambra Circle Suite 1205
Coral Gables, Florida 33134
glage@smgqlaw.com
Tel: 305-377-1000
By: /S/
GUSTAVO D. LAGE, ESQ.
Florida Bar No. 972551
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via e-filing,
which will deliver electronic copies of this filing to the designated e-mail addresses for all counsel of
record pursuant to Fla. R. Jud. Admin. 2.516, and we also certify a true and correct copy of the
foregoing was furnished via e-mail, on this 13th day of February, 2024, to: KEVIN YOMBOR, ESQ.,
and LABEED A. CHOUDRY, ESQ., Kaufman Dolowich, LLP, Attorneys for Defendants, 100 SE
3rd Avenue, Suite 1500, Ft. Lauderdale, FL 33301 (kyombor@kaufmandolowich.com;
tbell@kaufmandolowich.com; Labeed.choudhry@kaufmandolowich.com;
sfranchi@kaufmandolowich.com).
By: /S/
GUSTAVO D. LAGE, ESQ.
Florida Bar No. 972551
8
Preview
Filing # 191873166 E-Filed 02/13/2024 03:17:36 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA BETH SAFFER, et al., Plaintiffs, Case No.: 50-2023-CA-015733 v. SANDRA KLIMAS, et al. Defendants. ______________________________________/ OPPOSITION TO MOTION FOR SANCTIONS AND TO PROHIBIT PLAINTIFFS AND THEIR LAWYERS FROM CERTAIN FORMS OF SPEECH COME NOW, Plaintiffs BETH SAFFER and ARTHUR ROBINS, individually and on behalf of all others similarly situated (“Plaintiffs”), by and through the undersigned counsel, and hereby respectfully file their opposition the motion by Defendants for sanctions and to prohibit Plaintiffs’ lawyers from certain forms of speech (“speech and sanctions motion” or “motion”). This opposition is only applicable in the event the speech and sanctions motion is not stricken pursuant to Plaintiffs’ emergency motion to strike and for sanctions, filed concurrently herewith. As grounds for this motion, Plaintiffs state as follows: PRELIMINARY STATEMENT To the extent the Court does not immediately strike Defendants’ scandalous speech and sanctions motions for the reasons set forth in Plaintiffs’ emergency motion to strike, filed concurrently herewith, or directs the filing to be sealed, the Klimas Defendants’ motion should be denied pursuant 1 FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 02/13/2024 03:17:36 PM to an overwhelming number of judicial decisions that hold that barring speech and awarding sanctions for said speech is impermissible.1 ARGUMENT I. The Defendants’ Claims Of Harassment Are Frivolous In their motion, the Klimas Defendants allege to have been harassed based on one paragraph from the improperly published and docketed email from Mr. Botwin to those seeking his advice. The Defendants' Motion is unsupported by any declarations, evidence or even an explanation of how it is that the harassment allegedly happened or did in fact happen. In the Declaration of Arthur Robins, filed concurrently herewith in connection with Plaintiffs’ motion to disqualify, Plaintiffs provide evidence regarding the origin and context of the challenged paragraph. In the same filings, Plaintiffs provide extensive declaratory evidence from three other affiants regarding the fact that it is the Klimas Defendants – not Elad Botwin talking to his own clients or those seeking his counsel – who are engaging in threats and harassment in this litigation. Indeed, Plaintiff Beth Saffer, an 80-year old retired school teacher who is but five feet tall, told this Court months ago that Defendant Anthony DiGennaro openly threatened her. Neither DiGennaro nor counsel for the Klimas Defendants has ever denied this fact, directly or indirectly, let alone under penalty of perjury. Curiously, now it is Defendants who purport to feel threatened. Furthermore, in addition to failing to file any evidence to the effect that anyone allegedly feels harassed or threatened by Mr. Botwin, his clients, or those seeking his advice, the Klimas Defendants cite to no case law of any kind supporting their proposition that sanctions or the silencing of their opponents are the correct and permissible legal remedies for a lawyer’s protected speech and opinion. 1 Plaintiffs wish to underscore the inherent error of any court adjudicating a motion which is based upon a document clearly marked attorney-client privileged, a dispute over which has never been ruled upon, and which was never parsed, evaluated or otherwise ordered stricken, let alone partially or fully redacted in accordance with the overwhelming authorities cited in Plaintiffs’ Motions (to strike, for sanctions, and for disqualification), filed concurrently herewith. 2 Accordingly, though Defendants’ motion is clearly an improper tactic and should be denied out of hand, to the extent this Court is in any way inclined to even consider the unprecedented remedies Defendants seek or render an opinion as to a communication that is absolutely privileged, Plaintiffs respectfully request an evidentiary hearing, during which the Court can take testimony, credibility, bias, and make any informed decision about the merits of Defendants’ motion (or lack thereof). 2 II. Mr. Botwin’s Statements Are Absolutely Immune Under the Litigation Privilege. Although the subject email is neither wrong, unethical, nor even controversial, Plaintiffs now address the hypothetical question of whether Mr. Botwin may be held to pay money civilly with respect to anything contained in the mail. As an initial matter, the content of the December 29, 2023 email is obviously focused on the case at bar and the surrounding disputes arising therefrom. As a result, a literally overwhelming number of courts – including controlling authority in Florida – hold that neither Botwin nor his law firm SMGQ may be held civilly liable in any way, shape or form for what they may decide to say: particularly to persons who the undisputed evidence shows sought out their counsel. This is the case even if Mr. Botwin’s email had been defamatory, which it clearly and as a matter of law was not. See, Sexton v. Carnival Corp., 504 F. Supp. 3d 1359, 1366 (S.D. Fla. 2020) (holding defamatory statements occurring during the course of a judicial proceeding are immune); Wausau Underwriters Ins. Co. v. Danfoss, LLC, 2015 WL 9094201, No. 2:14-CV-14420 at *17 (S.D. Fla. Dec. 16, 2015) (“statements made in the course of legal proceedings are absolutely privileged if pertinent to the litigation”); Sims v. Unation, LLC, 292 F. Supp. 3d 1286, 1301 (M.D. Fla. 2018) (“Under the Illinois litigation privilege, anything said or written in the course of a legal proceeding is protected, as long as the communication pertains to the litigation. Id. ”); Amadou v. It is respectfully submitted that, in the unlikely event this would occur, Plaintiffs are entitled 2 to—and will seek—a protective order so as to prevent improper disclosure of any privileged and confidential information. 3 Hawkins Parnell, 445 F. App'x 157, 3 (11th Cir. 2011) (statements of an attorney are protected by “absolute privilege” if they are relevant to the subject matter of the litigation); Arko Plumbing Corp. v. Rudd, 230 So. 3d 520, 524 (Fla. 3d DCA 2017) (collecting cases, including holdings applying the privilege to “letters sent by a law firm to defendants in foreclosure cases that falsely represented the amount of money the defendants owed for title searching services”) (citing Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole , 950 So.2d 380, 384 (Fla. 2007)); LatAm Investments, LLC v. Holland & Knight, LLP, 88 So. 3d 240, 244 (Fla. 3d DCA 2011) (“Accordingly, we find that Holland & Knight's actions, which occurred during and were related to the judicial “proceedings” in the federal lawsuit, were protected by the litigation privilege.”) The words of the Florida Supreme Court are particularly appropriate in the circumstances of this case: “[W]e find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior …, so long as the act has some relation to the proceeding.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994). It is undisputed that the December 29, 2023 email complained of by the Klimas Defendants occurred after the start of this litigation. As the Florida Supreme Court instructed in Echevarria, “[a]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding." 950 So.2d at 384 (emphasis added). Naturally, the courts have also held that the absolute privilege afforded litigants and their lawyers cannot be circumvented by seeking sanctions instead of filing a formal lawsuit. As stated by the New Jersey Supreme Court: "If the policy, which in defamation actions affords an absolute privilege or immunity to statements made in judicial and quasi-judicial proceedings, is really to mean anything then we must not permit its circumvention by affording an almost equally unrestricted action under a different label." Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d 4 889, 895 (1955) (emphasis added) (holding also that “litigation privilege bars any action based on a motion for sanctions”). A similar holding based on the reasoning of New Jersey’s Supreme Court is appropriate in the case at bar. The foregoing rule of law is deeply rooted in American jurisprudence. See, Restat. 2d of Torts, § 586 ("An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding"). Although the communication must be pertinent to the litigation, it need not pertain to the specific issues involved in the litigation. Skopp v. First Federal Savings, 189 Ill. App. 3d 440 (1989). Accordingly, even if the subject statement about Defendant Rob Thom’s goings on inside of the community were to have been defamatory or false (which they were not), Mr. Botwin cannot be held liable for raising the questions contained in his email based on the facts set forth in the operative complaint on file—to say otherwise would be frivolous. III. Silencing Mr. Botwin Violates His Right To Speak and Deprive Plaintiffs of Their Right to Counsel. While, for the reasons argued in Plaintiffs’ Motion to Strike and in throughout this response, this Court should not consider any matter based upon Mr. Botwin’s December 29, 2023 email, clearly marked attorney client privileged, for the reasons set forth in Plaintiffs’ Emergency Motion to Strike and for Sanctions and Plaintiff’s Motion for Disqualification, any order restricting what Mr. Botwin may do and how he may use his words when rendering legal advice would be contrary to law and unconstitutional. Indeed, understanding how deeply engrained in our country’s fabric the rights to free speech, to counsel, and absolute immunity in litigation are, the Florida Supreme Court has clearly instructed 5 that placing muzzles on our citizenry is unlawful. Nodar v. Galbreath, 462 So. 2d 803, 808 (Fla. 1985) (“We believe, however, that the constitutionally protected right to discuss, comment upon, criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to the organized media but to all persons.”) (emphasis added). Accordingly, this Court should reject the Klimas Defendants’ invitation to rewrite the law or carve out an exception to existing law on the right to counsel by sanctioning and restricting speech by a licensed lawyer to those contacting him for legal counsel. IV. Regardless Of the Foregoing, Mr. Botwin’s Opinions Are Not Sanctionable. The Klimas Defendants’ angst is that Mr. Botwin expressed his opinion in an email to Florida homeowners that people searching for the truth wish to inquire and exercise their judgment as to the character and veracity of their assertion made by Defendant Rob Thom. There is no call to harass Mr. Thom, to threaten him, to do violence to him, and no mention of other Defendants. Such an expression of opinion is neither new nor controversial. The matters of the egregious surcharges and shady land leads undertaken by the board are directly pled with specificity in the Complaint and in the First Amended Complaint: it is no surprise that Mr. Botwin believes and advocates these facts. His decision to advocate for his clients is nothing that could possibly be held to be sanctionable. Indeed, courts have held that precisely such expressions of opinion can never be subject to sanctions even if they are made outside the absolute litigation privilege. See, e.g., Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012) (An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.”) (citing Milkovich v. Lorain Journal, 497 U.S. 1 (1990)). Considering longstanding law that opinions are neither actionable nor even controversial, this Court cannot be asked to regulate or sanction statements by a licensed lawyer suggesting that members of the community may want to investigate “the kind of person Thom is and whether you are all in 6 good hands with Thom running the community … ,” especially given the matters alleged in the operative pleadings. See, December 29, 2023 email. While the Klimas Defendants may expected to be critical or take umbrage regarding Mr. Botwin’s statements in the email about Mr. Thom’s involvement with the exorbitant and unwarranted surcharges and his conflict of interest at the time of the unapproved sale to the developer, Defendants’ Motion is not the proper vehicle to address his bruised ego. Nevertheless, if this Court wishes to hold an evidentiary hearing at which Plaintiffs will demonstrate, through testimony and other evidence, the absolute truth of these and other instances of wrongdoing by Thom, Plaintiffs are prepared to do so. CONCLUSION WHEREFORE, if not immediately stricken, the speech and sanctions motion should be denied out of hand. DATED this 13th day of February, 2024 Respectfully submitted, SANCHEZ-MEDINA, GONZALEZ, QUESADA, LAGE, GOMEZ & MACHADO LLP GUSTAVO D. LAGE, ESQ. Attorneys for Plaintiffs 201 Alhambra Circle Suite 1205 Coral Gables, Florida 33134 glage@smgqlaw.com Tel: 305-377-1000 By: /S/ GUSTAVO D. LAGE, ESQ. Florida Bar No. 972551 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via e-filing, which will deliver electronic copies of this filing to the designated e-mail addresses for all counsel of record pursuant to Fla. R. Jud. Admin. 2.516, and we also certify a true and correct copy of the foregoing was furnished via e-mail, on this 13th day of February, 2024, to: KEVIN YOMBOR, ESQ., and LABEED A. CHOUDRY, ESQ., Kaufman Dolowich, LLP, Attorneys for Defendants, 100 SE 3rd Avenue, Suite 1500, Ft. Lauderdale, FL 33301 (kyombor@kaufmandolowich.com; tbell@kaufmandolowich.com; Labeed.choudhry@kaufmandolowich.com; sfranchi@kaufmandolowich.com). By: /S/ GUSTAVO D. LAGE, ESQ. Florida Bar No. 972551 8