IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

           IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR
           MIAMI-DADE COUNTY , FLORIDA

                                       CASE No :  10-60547 CA 24




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THIRD AMENDED COMPLAINT FOR DAMAGES

(JURY  TRIAL  DEMANDED)

Plaintiffs, CARLOS VICARlA,  ("VICARlA") and MARCELO  CATURLA ("CATURLA"), by and through undersigned counsel, hereby bring this action against Defendant TIMOTHY   SUERETH,  who   is  doing   business  as  SOUTH   BAY   CLUB   OVERSIGHT, ("SBCO") and who is also known  by the following aliases: Larry Beacon, Jeff Swanson, James Baker,  Susan  Brenner  and  Barbara  Haskings  and  Defendant  SOUTH  BAY  CLUB CONDOMINIUM ASSOCIATION, INC., ("SOUTH BAY") and state the following:

INTRODUCTION :

  

1.        Defendant SUERETH  harbors an apparent resentment  against  Plaintiffs because of differences in opinion with respect to the governance of the South  Bay Club Condominium.

With  intent  to  cause  irreparable  harm,  Defendant  TIMOTHY  SUERETH   has  launched  a campaign of harassment  through  publishing  an online "blog"  and  sending  emails  containing outrageous  and  defamatory   statements   against  Plaintiffs  VICARIA   and  CATURLA.  The statements  published  by Defendant  are shocking and outrageous  including  but not limited to statements that Plaintiff VICARlA  was convicted of a felony for sexual  battery on a child, that he  is  a  sexual  predator  and  pedophile.  Defendant  also  makes  outrageous  and  defamatory statements about CATURLA  stating  that he is a convicted criminal  guilty  of sex crimes and implies that he is also a pedophile. These shocking statements are false and have been fabricated by  Defendant  SUERETH  against  Plaintiffs.  Despite  knowing  that  the  statements  are  false, Defendant emailed the defamatory  statements  to Plaintiff VICARIA's place of employment  in order to cause him harm. Defendant  SUERETH has orchestrated his harm by using a series of pseudonyms. Lastly, Defendant has posted and mischaracterized documents  on various internet websites, tagging the documents  with Plaintiffs'  names along with the terms "sexual  predator" and "pedophile"  in order  to cast  Plaintiffs  further his defamation.  Further,  Defendant  posted copies of the defamatory statements  along  with pictures of the Plaintiffs  in the neighborhood where  Plaintiffs  live  in  order  to  further  harass them.  The  admitted   goal  of  Defendant's harassment is to drive Plaintiffs from their building and wrongfully deprive them of their home.

2.     Defendant  SOUTH   BAY  is  the  association  governing   the  South  Bay  Club property and has a duty to protect its residents from harassment. At the time that Defendant SUERETH  published  the defamatory  statements  against  Plaintiffs,  Defendant  SOUTH  BAY knew that the statements were not true. Defendant SOUTH BAY was negligent  in its failure to act to protect Plaintiffs and allowed  a hostile environment within the building to thrive against 

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Plaintiffs. Defendant  SOUTH  BAY's  negligence  in  failing  to  protect  Plaintiffs  acted  to legitimize the defamatory statements made by SUERETH.

3.        Plaintiffs  seek  damages  against  Defendant  SUERETH  for   Libel  Per  Se, Defamation by Implication and for Intentional Infliction of Emotional Distress. Plaintiff VICARlA seeks damages against Defendant for Defamation by Implication. Both Plaintiffs seek injunctive relief against Defendant SUERETH's continued harmful actions. Both Plaintiffs seek damages against Defendant SOUTH BAY for Negligence and Defamation by Implication.

 

JURISDICTION AND VENUE

4.        This is an  action in damages in excess of the court's  minimal jurisdictional amount of$15,000.00. 

5.        Venue is proper in Miami-Dade County, Florida as Defendant SUERETH resides in this venue, Defendant SOUTH BAY operates solely in this venue and a substantial part ofthe events or omissions giving rise to Plaintiffs' claims occurred in Miami-Dade County.

 

THE PARTIES TO THIS ACTION

6.       Plaintiff  VICARIA is  an  individual and  a  resident  of  Miami-Dade  County. Plaintiff is a former board member for the South Bay Club Condominium Association, Inc. (the "Association"). 7.        Plaintiff, CATURLA, is an individual and a resident of Miami-Dade  County. Plaintiff CATURLA is a resident owner of a condominium unit at the South Bay Club Condominium Building. 

8.       Defendant  SUERETH conducts  business  as  SBCO,  an  unincorporated organization located in Miami-Dade County Florida. Defendant's SBCO purports to be an ad- hoc committee formed by current or former members of the Association to provide "information' to owners of condominium units at the South Bay Club Condominium on 800 West Ave, Miami Beach, FL ("Condominium Building"). Defendant SUERETH owns and operates a blog entitled "South Bay Club Oversight".  

9.       Knowing that his actions were libelous, Defendant SUERETH hid behind a series of fictitious names including but not limited to James Baker ("Baker"), Larry Beacon ("Beacon") and Jeff Swanson ("Swanson"). Under these fake names, Defendant purported to be separate owners of condominium units at the Condominium Building and concerned citizens. There are no unit owners at the Condominium Building identified by these names.

9.      Defendant SUERETH hid behind a series of additional fictitious names when harassing and threatening Plaintiff VICARlA at his place of employment. The fake names used by SUERETH included but are not limited to Susan Brenner ("Brenner") and Barbara Haskings ("Haskings"). Using these fake names, Defendant purported to be "concerned citizens" threatening VICARIA's employer so that he would be terminated. 

10.     Defendant SOUTH BAY is the condominium association governing the South Bay Club Condominium Building where Plaintiffs reside. At all times material, the Defendant SOUTH BAY was controlled by two successive boards: the 2010 Board of Directors and the 2011 Board of Directors. The 2010 Board of Directors included Dianne Thome, the spouse of Defendant SUERETH.

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FACTUAL ALLEGATIONS

12.       Plaintiff VICARIA served on the Board of Directors for the Association from

January 2009 through December 2009.

13.      Plaintiffs VICARIA and CATURLA both ran for a position on the Board of

Directors during the December 2009 elections and were not elected.

14.      During PlaintiffVICARIA's tenure on the Association Board in 2009, he and his partner CATURLA, for whatever reason, became the target of Defendant's contempt. 

15.      At some point between November and December of2009, Defendant SUERETH created a blog through the Google owned free blog creation and hosting service: Blogspot.com. The public blog created by Defendant was titled "South Bay Club Oversight".   The URL Defendant created for the blog was http://SBCOversight.blogspot.com ("SBCO Blog"). Defendant specifically chose the term "SBCOversight" as part of the URL. 

16.      In preparation for the creation of the creation of the South Bay Club Oversight Blog, Defendant registered the domain: w                                        ww.SBCOversight.com. This domain was purchased on November 5, 2009 through DomainsbyProxy.com to mask Defendant's identity. 

17.       As of the date of this Second Amended Complaint, the SBCO Blog has a total of

four posted entries.

18.      The first entry is dated December 2, 2009 and is in essence a heavily opinionated diatribe regarding certain candidates for the 2009 Association Board, including Plaintiff CATURLA. 

19.      The second entry is dated January 19, 2010 and is another sprawling narrative criticizing members of the 2009 Association Board, which included Plaintiff VICARIA. Plaintiffs are also directly named and criticized in this second entry. Further, this entry articulates support for the current 2010 Association Board on which Defendant SUERETH's wife served as a director. 

20.        The third  entry  to the SBCO  Blog is dated October  24,  2010  and  is entitled "South  Bay  Club  Predator  Alert".  This  October  24,  2010  entry  contains  a  picture  of  both Plaintiffs with the statement "SBC  Sexual Predator Alert" under the photo.  The photograph of Plaintiffs is a screen capture from a video shot by Defendant SUERETH.   This Blog entry goes on to state that Plaintiff VICARlA  is a "convicted sexual predator"; that Plaintiff "pled guilty to sexual battery on a male, minor child"; and that VICARlA is "not registered as a sexual offender in FL, as mandated by law". Defendant SUERETH states that "Carlos  Vicaria was convicted of Lewd & Lascivious Battery and Indecent Exposure in 2001- A FELONY in Florida."

21.       The entcy also affrrmatively states that Plaintiff is "leering at them [children] from the  pool  deck,  and  from  his  balcony."  The  entry  is  designated  as  having  been  written  or submitted  by Defendant SUERETH's alias Swanson. The statements  made in this entry about Plaintiff VICARlA  are all entirely untrue and have been fabricated  by Defendant  with the sole purpose of causing harm to Plaintiff. A copy of the SBCO Blog containing  the referenced blog entries is attached hereto as Exhibit A. 

22.        On  October  24,  2010,  the  same  date  as  the  third  blog  posting,  Defendant

uploaded and thereby published, three documents for public view in order to impart credibility to the false statements in the October 24, 2010 SBCO Blog. The documents  were published on the webswww.Scribd.com ("Scribd  Documents"). Links to the Scribd Documents  were attached to the October 24, 2010 SBCO Blog post.it

23. The first Scribd Document is nothing more than a reposting of the October 24,

2010 SBCO Blog post and is entitled "SBC Sexual Predator Alert". The tag 1 for the Scribd entry created by Defendant refers to this document as "SEXUAL OFFENDER ALERT- CARLOS VICARIA". PlaintiffCATURLA's name is also tagged with this document. As of the date ofthe frrst Complaint, this document had been viewed 197 times. As of the date of this Amended Complaint, this document has been viewed 314 times.

24.     The next two Scribd Documents are printouts of old Miami-Dade county misdemeanor infractions by Plaintiff VICARIA in 2001 and 1988 respectively. It is critical to note that neither infraction involves any sexual conduct with a minor nor are they a verification of any of the statements made in the SBCO Blog. It is apparent that Defendant posted Plaintiff VICAR1A's prior misdemeanor infractions to mislead and implicate that the statements in Defendant's SBCO Blog are verified. 

25.      A fourth Scribd document was posted on December 9, 2010. This document is a copy of a letter that Defendant SUERETH sent to VICARIA's employer threatening to publicly demonstrate unless VICARlA is terminated. Defendant SUERETH sent this letter to VICARlA's employer under the fake name BRENNER. A composite of all of the Scribd Documents is attached hereto as Exhibit B. 

26.       One of the Scribd Documents involving a Miami-Dade County misdemeanor in

2001 is entitled "CARLOS VICARIA- PEDOPHILE DOCUMENT."   Defendant purposely mischaracterized the Document in order to mislead and deceive the reader and to imply that Plaintiff is a pedophile. Plaintiff CATURLA's name is also tagged with this document with the intent to imply that CATURLA is a pedophile.

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27.      The purpose of tagging Plaintiffs' names with the Scribd Documents as well as the tenns "sexual predator" and "pedophile" is for identification as well as search engine optimization purposes. In fact when doing an online Google  search of Plaintiffs' names, the Scribd Documents are in the top 5 results for both Plaintiffs. A copy of the search engine results is attached as composite Exhibit C.

28.      Within weeks of the initial October 24,2010 posting, the text of the original entry was edited by Defendant to add additional false statements, including:

LEWD OR LASCIVIOUS BATIERY - A person who:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or

(b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.

The additional statement furthers the falsehood that Plaintiff VICARIA engaged in sexual activity with a person under 16 or engaged in sadomasochistic abuse, bestiality or prostitution. Again, Defendant knew that these salacious statements published about Plaintiff VICARlA were entirely false and were published to cause severe emotional harm and damage to his reputation. A copy of the amended October 24,2010 blog entry is attached hereto as Exhibit D.

29.      The  additions  to  October  24,  2010  blog  entry  also  included  a  statement identifying PlaintiffVICARIA's employer and stated that as part of his job, PlaintiffVICARIA provides tours for school children at his place of employment. With this statement, Defendants

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seek to have the reader to conclude that a sexual predator has access to schoolchildren as part of his employment.

30.       A written comment was also added to the October 24, 2010 entry affirmatively stating that Plaintiff CATURLA "also has a sex crime offense, in another state." Defendant SUERETH authored the comment under the name Baker and further asserts that both Plaintiffs are "interested in having sex with young children." 

31.      Defendant  SUERETH  knew  that  the  published  statements  made  about  both Plaintiffs were entirely false. Defendant orchestrated the SBCO Blog and published the statements with the intent to cause Plaintiffs severe emotional distress and to defame Plaintiffs reputation in the building. 

32.      Defendants list Plaintiffs by name, provide a photograph and publish their home address while inciting a call to action to Condominium Building residents and the general public welcoming them to act out against Plaintiffs. 

33.      Shortly after the email from October 24, 2010 email and blog from Defendant SUERETH, Defendant SOUTH BAY sought the opinion of the Florida Department of Law Enforcement ("FDLE") as to whether PlaintiffVICARIA  was a Sexual Predator or a convicted felon. 

34.      On October 26, 2010, Defendant SOUTH BAY received a written opinion from the FDLE that PlaintiffVICARIA  was not a felon and was "convicted of municipal codes only" and was not a sexual predator nor a sexual offender subject to public registry. As such, two days after Defendant SUERETH began the proliferation of the defamatory statements against Plaintiff and begin his campaign of harassment, Defendant SOUTH BAY was aware that the statements were false and did nothing. 

36.      On October 27, 2010, Belkis Puns, a director of Defendant SOUTH BAY, responded to Defendant SUERETH's email on behalf of Defendant SOUTH BAY. In that correspondence, Defendant SOUTH BAY states that Plaintiff"Vicaria is damaging the quality of living in our building." Defendant SOUTH BAY discusses getting  rid of  Plaintiff Vicaria. Defendant SOUTH BAY tells Defendant SUERETH that it has asked the SOUTH BAY attorney to "take the strongest measures possible to keep our children safe" from Plaintiff.

37.      Within days of posting the false statements on the SBCO Blog and Scribd, Defendants began a more targeted campaign of harassment against Plaintiff VICARIA. In particular, Defendant drafted an email containing the false and salacious statements regarding PlaintiffVICARIA and sent the email to Plaintiffs supervisor at work as well as his professional colleagues. The email linked to the SBCO Blog and the Scribd Documents. The purpose of the email was to pressure VICARIA's employer into terminating him on false circumstances and unfounded accusations.

38.      To further his campaign of harassment and intimidation, Defendant SUERETH sent an email containing emailed Defendant SOUTH BAY in response to the FDLE report, even though Defendant SUERETH wasn't a member of the South Bay board of directors and should not have been privy to Defendant SOUTH BAY's investigation. In his October 27, 2010 email, SUERETH ignores the FDLE report and affirmatively states that Plaintiff is guilty of Florida Statutes §800.04 - Lewd and Lascivious battery of a child. Defendant SUERETH complains to Defendant SOUTH BAY that Plaintiff must be removed  the contents of the SBCO Blog to all residents and owners in the Condominium  Building. The  email  contained  links  to  the  actual  SBCO  Blog  and  Scribd Documents. The purpose of the emails to residents and owners was to damage Plaintiff's
reputation as well as harass and intimidate Plaintiffs in their own home.

39.      On November 25, 2010 (Thanksgiving Day), Defendant canvassed Plaintiffs' neighborhood with a "Sexual Predator Alert" flyer. This flyer identifies Plaintiffs as boyfriends and identifies PlaintiffVICARIA as a Sexual Predator. The flyer included SUERETH's photo of Plaintiffs and instructed the reader  (in caps) to "CALL THE POLICE" if Plaintiff is seen. This Sexual Predator Alert flyer was posted on telephone poles and retail establishments within a 5- block radius of Plaintiffs' home. The purpose of the flyer was to harass and intimidate Plaintiffs. Further, the flyer wrongly portrayed Plaintiff VICARlA as a sexual predator. Lastly the flyer in its design implicated that Plaintiff was a wanted fugitive requiring immediate police action if seen. A copy of the Sexual Predator Alert Flyer is attached hereto as Exhibit E. 

40.       On November 29, 2010 Defendant SOUTH BAY, through Belkis Puns, emailed the building manager Judy Storck about the Flyers. Defendant SOUTH BAY states that the flyers are "hurting our property values as few individuals will want to rent or purchase in the building if  a  pedifile  [sic]  lives  in  it".  In  this  correspondence Defendant  SOUTH  BAY recognizes the "additional damage being done to Caturla and Vicaria in the dissemination of information."

41.       On December 4, 2010, Defendant created another sprawling entry for the SBCO Blog. Included in this entry, Defendant posted an 18-minute video of himself ranting about the South Bay Club. Under his fake blog posting name, Defendant commended himself as a "fearless resident" for posting his own video. Further, in this blog post Defendant again attacks Plaintiff VICARIA referring to him a "sex offender" that "snuck" into the building and gives tours at work to kids. A copy of the December 4, 2010 entry is attached hereto as Exhibit F. fake name HASKINOS. Defendant pretended to be a co-worker of Plaintiff with the intent of harassing and further causing fear to Plaintiff. A copy of the email is attached as Exhibit G.  

43.      Defendant SUERETH uses free @gmail.com, @hotmail.com and @yahoo.com email accounts for all of his fake identities.

44.      Defendant SUERETH is aware of the damage that accusing someone of being a felon, sexual predator or pedophile has in our society. Such accusations can immediately cause the accused to be demonized and ostracized. Defendant's statements in the SBCO Blog, Scribd Documents and emails go well beyond mere accusations. Defendant makes affirmative statements of fact about Plaintiffs.  The powerful nature of the subject matter is precisely why Defendant chose to fabricate and publish these statements about Plaintiffs. Defendant SUERETH sought maximum damage and effect. 

45.      Defendant SOUTH  BAY  definitively  knew  within  two  days  of  the  initial statements by SUERETH that the statements were not true. Defendant SOUTH BAY did nothing to correct the statements or protect Plaintiffs from the continuing harassment by SUERETH. 

46.       Defendant SOUTH BAY did however as a board, send out a written statement to all residents that allegations against another resident, Jerry Babij, were untrue. The allegations that were made against Babij were circulating in conjunction with the untrue accusations made against Plaintiffs. 

47.      Further, rather than dispel the untrue allegations against the Plaintiffs like with Babij, Defendant SOUTH BAY leveraged the allegations as an opportunity to further harass Plaintiffs in threatening to kick them out of the building.

 

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