Garrido v. Arena , 993 N.E.2d 488 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Garrido v. Arena, 2013 IL App (1st) 120466
Appellate Court JOHN GARRIDO, Plaintiff-Appellant, v. JOHN ARENA, CITIZENS TO
Caption ELECT JOHN ARENA, CHICAGO FEDERATION OF LABOR & IUC,
COMCAST CORPORATION, SERVICE EMPLOYEES
INTERNATIONAL UNION ILLINOIS COUNCIL PAC, and UNITE
HERE LOCAL 1, Defendant-Appellees.
District & No. First District, Second Division
Docket No. 1-12-0466
Filed June 18, 2013
Held The trial court erred in dismissing plaintiff’s defamation action based on
(Note: This syllabus defendants’ ads against plaintiff’s candidacy for a position as an alderman
constitutes no part of on the ground that the action was barred by the Citizen Participation Act,
the opinion of the court since defendants failed to show that plaintiff’s claims were meritless and
but has been prepared therefore did not meet their burden of proving that the suit was a
by the Reporter of “SLAPP” action, but the cause was remanded for consideration of the
Decisions for the other grounds for dismissal asserted by defendants.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-4012; the Hon.
Review Michael R. Panter, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Lawrence Wolf Levin and Michelle M. Truesdale, both of Law Offices
Appeal of Lawrence Wolf Levin, of Chicago, for appellant.
David T. Arena, of Dimonte & Lizak, LLC, of Park Ridge, for appellees
John Arena and Citizens to Elect John Arena.
Laurence E. Gold, of Trister, Ross, Schadler & Gold, PLLC, of
Washington, D.C., for appellee Unite Here Local 1.
Michael J. Kasper, of Chicago, Michael Kreloff, of Glenview, and Sally
H. Saltzberg, of Lake Barrington, for appellee Service Employees
International Union Illinois Council PAC.
Douglas N. Masters, Thomas P. Jirgal, and Stacy A. Howard, all of Loeb
& Loeb LLP, of Chicago, for appellee Comcast Corporation.
Panel JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Quinn and Simon concurred in the judgment and opinion.
OPINION
¶1 Plaintiff John Garrido lost the 2011 aldermanic election for Chicago’s 45th Ward to
defendant John Arena, who was backed in the campaign by the remaining defendants (with
the exception of defendant Comcast Corporation). During the campaign, defendants
disseminated campaign literature and advertisements that contained what plaintiff claims are
outright lies. After losing the election, plaintiff filed this defamation lawsuit, but the circuit
court dismissed the case under the Citizen Participation Act (735 ILCS 110/1 et seq. (West
2010)). We reverse and remand.
¶2 I. BACKGROUND
¶3 In 2011, plaintiff and Arena competed in a runoff election to become alderman for the
45th Ward. The campaign was hard fought and the election was extremely close, with Arena
winning by only 30 votes in the official final tally. During the campaign, several
organizations distributed campaign advertisements in support of Arena. Four of those
organizations are defendants in this case: Service Employees International Union Illinois
Council PAC (SEIU), Chicago Federation of Labor & UIC (CFL), Unite Here Local 1 (Local
1), and Citizens to Elect John Arena (CEJA). The fifth, defendant Comcast Corporation, is
the parent company of the broadcaster that carried one of SEIU’s television advertisements.
-2-
¶4 Plaintiff and Arena each won a plurality of the votes in the February 2011 general
municipal election, but because neither won more than 50% of the total votes they were
scheduled to compete in a runoff election to be held in April 2011. Arena and his supporters
ran television advertisements and sent out direct mailings to the electorate in the hope of
winning voters to their side. Some of the ads and mailings painted an unflattering picture of
plaintiff.
¶5 Seven of these mailings and one television advertisement are at issue in this case. The
ads presented two core allegations against plaintiff. First, the ads alleged that plaintiff had
received money from a parking meter company that was involved in a highly publicized and
much-debated privatization deal with the city of Chicago in early 2009. The ads essentially
alleged that plaintiff had taken money from the company and insinuated that he had profited
from the deal. For example, CFL sent out a mailer that featured plaintiff’s picture
superimposed over a parking meter alongside the words, “We pay. Republican John Garrido
profits.” Another ad from the same mailer contained the headline, “John Garrido Takes
Money from Parking Meter Company. We Pay the Price.” An ad sent out by SEIU stated,
“Republican John Garrido took money from the company that brought us the parking meter
deal.” Another ad from CEJA claimed, “Republican John Garrido took campaign
contributions from a firm that profited from the private parking meter deal.” The same
allegation appeared verbatim in an ad sponsored by Local 1.
¶6 Second, the ads alleged that, if elected, plaintiff would draw two municipal pension
checks: one for his work as alderman and another for his previous career as a Chicago police
officer, a practice that the parties refer to as “double dipping.” The ads also implied that the
practice was corrupt, or at least led to corruption. For example, one SEIU ad began, “If
Republican John Garrido is elected, he will draw two city pensions–and you’ll pay for both
of them!” The ad continued, “With scandal after scandal plaguing our city, the last thing we
need is another double-dipping, pension padding politician on the City Council.” The other
side of the mailer read, “After all the corruption scandals we’ve had, do we really want to
give more tax dollars to John Garrido?” Another SEIU mailer featured the same allegations,
with the reverse side featuring the headline “CORRUPTION,” under which it stated, “City
Hall’s patronage and corruption take enough from us already. Do we really want to add
another double-dipper to the mix?” Several other SEIU mailers made identical allegations.
¶7 Political considerations aside, plaintiff’s chief complaint about these allegations is that,
in his view, they were false. According to plaintiff’s complaint, he never took any money
from LAZ Parking, which is the primary company that was involved in the privatization deal.
Moreover, plaintiff claims that he could not receive an aldermanic pension until he had
served as an alderman for at least 10 years. Plaintiff sent several cease-and-desist letters to
the various defendants asking them to stop disseminating what he considered to be false
information, but the defendants declined to do so. After he lost the election, plaintiff filed
this lawsuit, alleging defamation per se and per quod, as well as false light, seeking a
minimum of $300,000 per count.
¶8 Defendants moved to dismiss, raising numerous grounds under sections 2-615 and 2-619
of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2010)). The defendants also
moved to dismiss under the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2010))
-3-
(the Act). After full briefing by all parties, the circuit court found that the Act barred
plaintiff’s claims and dismissed the complaint. Plaintiff appealed.
¶9 II. ANALYSIS
¶ 10 A. Jurisdiction
¶ 11 Before reaching the merits, we must first discuss the issue of our jurisdiction over this
case, which defendants have questioned due to a procedural irregularity in the circuit court.
After the circuit court entered its judgment on September 16, 2011, plaintiff filed what
purported to be a petition to vacate the judgment pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Plaintiff filed his petition on October 7,
2011, less than 30 days after the judgment. But section 2-1401 petitions can only be filed
more than 30 days after the date of judgment, which is when the judgment becomes final. See
In re Haley D., 2011 IL 110886, ¶ 66. Realizing his mistake, plaintiff sought leave to amend
his motion to reflect the correct statute, which is section 2-1203 (735 ILCS 5/2-1203 (West
2010)). The circuit court granted plaintiff’s request to amend and plaintiff filed the amended
motion on October 31, 2011. The circuit court ultimately denied the motion in an order on
January 11, 2012. Plaintiff twice moved to reconsider but the circuit court declined in an
order dated February 7, 2012, and plaintiff filed his notice of appeal on February 9, 2012.
¶ 12 Defendants now contend that plaintiff’s notice of appeal was untimely because he did not
file a proper postjudgment motion within 30 days of the judgment. See Ill. S. Ct. R. 303(a)(1)
(eff. June 4, 2008). In defendants’ view, plaintiff’s original section 2-1401 motion was
untimely because he filed it less than 30 days after judgment and his section 2-1203 motion
was untimely because it was filed more than 30 days after judgment. Without a timely
postjudgment motion, defendants argue, the time to file a notice of appeal ran 30 days after
the September 9 judgment, making plaintiff’s notice of appeal about five months late.
¶ 13 Defendants misconstrue both the nature of plaintiff’s postjudgment filings and the
standard by which the circuit court must evaluate postjudgment motions. Although
defendants characterize plaintiff’s October 31 section 2-1203 motion as an improper
“second” postjudgment motion, the record shows that it was not. Rather, the new motion
merely corrected the relevant statutory citations in the first motion. More importantly, even
had plaintiff not filed an amended motion, the circuit court would in any event have been
required to evaluate plaintiff’s original October 7 motion under the correct section of the
statute. See In re Haley D., 2011 IL 110886, ¶ 67 (“[T]he character of the pleading should
be determined from its content, not its label. Accordingly, when analyzing a party’s request
for relief, courts should look to what the pleading contains, not what it is called.”). The only
important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion
within 30 days of the judgment, which tolled the time for filing a notice of appeal until the
circuit court resolved the motion. See Ill. S. Ct. R. 303(a)(1) (eff. June 4, 2008). The circuit
court did so when it denied plaintiff’s postjudgment motion on January 11, and plaintiff filed
his notice of appeal within 30 days of that order. The notice of appeal was therefore timely
and we have jurisdiction over this case.
-4-
¶ 14 B. Citizen Participation Act
¶ 15 The primary question in this case is whether the Act bars plaintiff’s claims against
defendants. The Act is designed to protect defendants from what are termed “Strategic
Lawsuits Against Public Participation” (SLAPPs), which are “meritless lawsuit[s] utilized
to retaliate against a party for attempting to participate in government by exercising first
amendment rights such as the right to free speech or the right to petition.” Chicago Regional
Council of Carpenters v. Jursich, 2013 IL App (1st) 113279, ¶ 15. “A SLAPP plaintiff’s goal
is achieved not by success on the merits but by forcing defendants to expend funds on
attorney fees and litigation costs, thus discouraging them from pursuing their protests.” Id.
To combat SLAPPs, the Act provides for expedited discovery and hearings on motions to
dismiss a case under the Act and awards of attorney fees and costs for successful movants.
See 735 ILCS 110/20, 25 (West 2010). A motion to dismiss a complaint based on immunity
under the Act is generally brought under section 2-619(a)(9) of the Code of Civil Procedure
(735 ILCS 5/2-619(a)(9) (West 2010)). See Sandholm v. Kuecker, 2012 IL 111443, ¶ 54.
¶ 16 SLAPPs are, however, very hard to distinguish from ordinary lawsuits. See Sandholm,
2012 IL 111443, ¶ 35 (“SLAPPs masquerade as ordinary lawsuits and may include myriad
causes of action, including defamation, interference with contractual rights or prospective
economic advantage, and malicious prosecution.” (Internal quotation marks omitted.)). There
is a three-step analysis for determining whether a claim is in fact a SLAPP and should be
dismissed under the Act:
“(1) the movant’s acts were in furtherance of his right to petition, speak, associate, or
otherwise participate in government to obtain favorable government action; (2) the
nonmovant’s claims are solely based on, related to, or in response to the movant’s acts
in furtherance of his constitutional rights; and (3) the nonmovant fails to produce clear
and convincing evidence that the movant’s acts were not genuinely aimed at solely
procuring favorable government action.” Jursich, 2013 IL App (1st) 113279, ¶ 17.
The movant bears the burden of proof under the first two prongs of the test, after which the
burden shifts to the nonmovant. See Ryan v. Fox Television Stations, Inc., 2012 IL App (1st)
120005, ¶¶ 21, 30.
¶ 17 The first prong of the analysis is the most straightforward. Cf., e.g., Ryan, 2012 IL App
(1st) 120005, ¶ 19 (televised investigatory news report); Hammons v. Society of Permanent
Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 22 (Internet message-board posting).
In fact, the parties here agree that defendants’ actions were in furtherance of their first
amendment rights to “petition, speak, associate, or otherwise participate in government”
because the ads and mailers were an attempt to communicate with potential voters in a
political election. The Act itself defines “government” to include a “public authority
including the electorate.” 735 ILCS 110/10 (West 2010). We have no trouble concluding that
defendants’ ads and mailers are a protected activity under the Act.
¶ 18 As we have noted in previous cases, however, merely because a defendant’s activity is
protected by the Act does not automatically mean that a plaintiff’s claims must be dismissed
under the Act. See Ryan, 2012 IL App (1st) 120005, ¶ 20. In order to carry their burden under
the second prong, defendants “must affirmatively demonstrate that the [plaintiff’s] claim is
-5-
a SLAPP within the meaning of the Act, that is, that the claim is meritless and was filed in
retaliation against the [defendants’] protected activities in order to deter the [defendants]
from further engaging in those activities.” Id. ¶ 21; see also Jursich, 2013 IL App (1st)
113279, ¶ 20.
¶ 19 How to prove that a claim is “meritless” and “retaliatory” for the purpose of the Act is
the central question in this case. The Act itself does not expressly contain this requirement,
and the second prong of the test originated in Sandholm, which did not define these terms.
See generally Ryan, 2012 IL App (1st) 120005, ¶¶ 20-21 (discussing Sandholm). Cases since
Sandholm, however, have examined the issue and provide some guidance. A claim is not
“meritless,” for example, merely because the complaint is subject to dismissal under section
2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). See Ryan, 2012 IL
App (1st) 120005, ¶ 22 (noting that Sandholm made clear that immunity based on the Act
is an affirmative matter that is properly brought under section 2-619 rather than section 2-
615); see also Hammons, 2012 IL App (1st) 102644, ¶ 21. However, a claim is “meritless”
if a movant disproves some essential element of the nonmovant’s claim. See, e.g., Wright
Development Group, LLC v. Walsh, 238 Ill. 2d 620, 638 (2010) (plaintiff’s defamation claim
was meritless because defendant showed that allegedly defamatory statement was actually
true); see also Ryan, 2012 IL App (1st) 120005, ¶ 29 (discussing Wright).
¶ 20 This is an important distinction that warrants discussion. The term “meritless” is often
used loosely to describe any unsuccessful legal claim or theory, but in the context of a
SLAPP it is a term of art and means something more. A SLAPP is not intended to make an
injured plaintiff whole, but is instead meant only to hurt the defendant through “delay,
expense, and distraction.” Sandholm, 2012 IL 111443, ¶ 44; see also Ryan, 2012 IL App (1st)
120005, ¶ 13 (“[T]he defendants in such cases can be financially devastated by the costs of
defending the suit or deterred into silence by the threat of the enormous monetary damages
demanded by the plaintiffs.”). The Act is expressly designed to bar only those lawsuits that
try to abuse the justice system by bringing unfounded claims in retaliation against defendants
who legitimately exercise their first amendment rights, while simultaneously preserving the
right of individuals to file lawsuits for real injuries. See 735 ILCS 110/5 (West 2010). Yet
it is impossible to determine whether a lawsuit is a SLAPP based solely on the face of the
complaint because, when considering a motion to dismiss under section 2-615, we must
presume that all well-pled facts in the complaint are true. Indeed, section 2-615 is concerned
only with the legal sufficiency of the complaint’s allegations (see, e.g., Country Mutual
Insurance Co. v. Olsak, 391 Ill. App. 3d 295, 301-02 (2009)), not with the factual question
of whether the lawsuit was filed for the improper purpose of retaliating against a defendant
for exercising some first amendment right.
¶ 21 This need to examine facts outside of the complaint is why the supreme court has
specified that a motion to dismiss under the Act must be brought under section 2-619(a)(9)
rather than section 2-615. See Sandholm, 2012 IL 111443, ¶ 54. The practical effect of this
requirement is that a claim that may be legally insufficient under section 2-615 cannot be
considered “meritless” for the purpose of the Act because a motion under section 2-619(a)(9)
necessarily concedes the legal sufficiency of that same claim. See id. ¶ 55.
¶ 22 In this case, most of defendants’ argument that plaintiff’s claim is meritless is based on
-6-
perceived pleading deficiencies in the complaint. For example, defendants contend that
plaintiff’s alleged failure to adequately allege damages with particularity in support of his
defamation per quod claim proves that his claim is meritless and retaliatory. See, e.g.,
Naleway v. Agnich, 386 Ill. App. 3d 635, 638-39 (2008) (“In an action for defamation per
quod, the plaintiff must plead and prove actual damages in order to recover.”). Similarly,
defendants contend that the allegedly defamatory statements do not fall into any of the
recognized categories for defamation per se. See id. at 639 (listing the five types of statement
that are defamatory per se). But by seeking to dismiss plaintiff’s complaint pursuant to the
Act under section 2-619(a)(9), defendants have conceded that plaintiff’s complaint is legally
sufficient. They accordingly cannot rely on these alleged pleading defects in order to carry
their burden of proving that this case is a SLAPP.
¶ 23 But the situation is different when an essential element of the plaintiff’s claim is
affirmatively disproven because this shows the claim is factually baseless. In Wright, for
example, the defendant showed that the allegedly defamatory statement was actually true.
See Wright, 238 Ill. 2d at 638. Because falsity is an essential element of defamation, this was
the key factor that the supreme court relied on in determining that the plaintiff’s defamation
claim was meritless. See Ryan, 2012 IL App (1st) 120005, ¶ 29 (discussing Wright).
¶ 24 Here, however, defendants effectively concede that the statements regarding double
dipping are not actually true. Indeed, it would be hard to argue otherwise, given that the
record clearly establishes that while plaintiff could theoretically receive both an aldermanic
pension as well as his police pension at some point in the future, he would not even be
eligible for an aldermanic pension until he had served as alderman for 10 years, an event that
is not only speculative but that would be contingent on plaintiff winning at least two
additional four-year terms as alderman. This is a far cry from the mailers’ assertion that “[i]f
[plaintiff] is elected, he will draw two city pensions.” The record also provides no support
for defendants’ contention that the statements about the parking-meter deal are actually true.
There is no evidence that plaintiff received campaign contributions from either LAZ Parking,
which is the company responsible for the privatization deal, nor any evidence that he
personally profited from the deal. Instead, defendants point to two $500 campaign
contributions that plaintiff received from Juan Gaytan, who is the owner of a company called
Monterrey Security, which was hired as a subcontractor to LAZ Parking. Yet the ads and
mailers claimed that plaintiff “took money from the company that brought us the parking
meter deal,” and that he “took campaign contributions from a firm that profited from the
private parking meter deal.” Neither of these statements is actually true, given that the only
campaign contributions that defendants have identified were individual contributions from
Gaytan rather than corporate contributions from LAZ Parking or even Monterrey. Moreover,
defendants have provided no evidence at all for the mailers’ assertion that plaintiff profited
from the parking-meter deal.
¶ 25 Even though defendants cannot show that the statements are actually true, they argue that
the statements are nonetheless protected by several affirmative defenses. Defendants contend
that they cannot be liable in this case because the statements were substantially true or are
-7-
conditionally privileged under the first amendment,1 both of which are affirmative defenses.2
See Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 371 (1996) (“A
defendant bears the burden of establishing the ‘substantial truth’ of his assertions ***.”);
Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 870 (1995) (“Privilege is regarded
as an affirmative defense ***.”). Defendants contend that because they are immune from
liability due to these defenses, plaintiff’s claim is therefore meritless.
¶ 26 This argument squarely raises an issue that we left unsettled in Ryan: does an adequately
proven affirmative defense render a claim “meritless” within the meaning of the Act? See
Ryan, 2012 IL App (1st) 120005, ¶ 28 n.4. For the sake of argument, let us assume that
defendants can prove that the allegedly defamatory statements are conditionally privileged
because they are constitutionally protected under the first amendment. What does that say
about the validity of plaintiff’s claim? A successful affirmative defense merely “avoid[s] the
legal effect of or defeat[s] the cause of action set forth in the complaint.” 735 ILCS 5/2-
613(d) (West 2010). In fact, “[t]he defense of privilege rests upon the idea ‘that conduct
which otherwise would be actionable is to escape liability because the defendant is acting in
furtherance of some interest of social importance, which is entitled to protection even at the
expense of uncompensated harm to the plaintiff’s reputation.’ ” (Emphasis added.) Krueger
v. Lewis, 342 Ill. App. 3d 467, 473 (2003) (quoting Prosser and Keeton on Torts § 114, at
815 (W. Page Keeton et al. eds. 5th ed. 1984)). This is true of affirmative defenses in
general, which evolved from the common-law plea of confession and avoidance and “which,
as the term indicates, confessed the validity of the plaintiff’s prima facie case but asserted
new matter which avoided its legal effect.” (Emphases added.) (Internal quotation marks
omitted.) Roy v. Coyne, 259 Ill. App. 3d 269, 281 (1994).
1
Defendants actually raise two separate arguments in their briefs, contending that they are
immune from liability because (1) plaintiff is a public figure and he failed to adequately allege
malice in the complaint, or alternatively (2) the statements were constitutionally protected opinion.
Both of these contentions are merely aspects of the same qualified privilege under the first
amendment. See generally Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381
(2008) (constitutional privilege); Naleway, 386 Ill. App. 3d at 639-40 (affirmative defenses to
defamation).
2
There is a quirk of defamation law that it is important to be aware of here. Most cases state
that one of the elements of a defamation claim is that “the defendant made an unprivileged
publication of that [defamatory] statement to a third party.” (Emphasis added.) Solaia Technology,
LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). But this is misleading. Because
privilege is an affirmative defense, “there is no need for a plaintiff to plead facts showing that a
communication is not privileged in order to properly allege a cause of action for defamation.” Quinn,
276 Ill. App. 3d at 870; see also Restatement (Second) of Torts § 613(2) (1977) (defendant has “the
burden of proving, when the issue is properly raised, the presence of the circumstances necessary
for the existence of a privilege to publish the defamatory communication”). Thus, although
publication to a third party is an essential element of a prima facie defamation claim, lack of
privilege is not because the plaintiff must prove lack of privilege only in the event that the defendant
raises that particular affirmative defense.
-8-
¶ 27 The emphasized language above is crucial because it means that an affirmative defense
does not prove that a plaintiff’s claim is meritless, but instead merely allows a defendant to
avoid the legal consequences of a real injury to the plaintiff. Yet when determining whether
a particular claim is a SLAPP, our analysis must remain focused only on the validity of the
plaintiff’s claim (see Sandholm, 2012 IL 111443, ¶ 53), not whether a defendant can escape
liability for an otherwise meritorious claim by proving an affirmative defense. A real injury
that the law provides a legal remedy for cannot be considered meritless, so we cannot
presume that a successful affirmative defense renders a claim for such an injury “meritless”
within the meaning of the Act. Thus, even if defendants can prove that the allegedly
defamatory statements at issue in this case are substantially true or are constitutionally
privileged, they still cannot carry their burden of showing that plaintiff’s claim is meritless.
¶ 28 With that in mind, the only remaining way for defendants to prove that plaintiff’s claim
is meritless within the meaning of the Act is by disproving some essential element of
plaintiff’s prima facie case.3 See Ryan, 2012 IL App (1st) 120005, ¶ 29. To establish a prima
facie defamation claim, a plaintiff must show that a defendant publicized a false statement
3
We have noticed an interesting procedural analogy that is worth mentioning, though we will
not analyze it in depth here because other deficiencies in defendants’ motion are sufficient to sustain
our judgment. Because Sandholm requires us to focus solely on the validity of the plaintiff’s claim,
“meritless” and “retaliatory” in the context of SLAPPs may mean something akin to the analytical
standard for imposing sanctions under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). Under
that rule, a pleading is sanctionable if it is not “well grounded in fact” or warranted by existing law
or a good-faith argument for the extension, modification, or reversal of existing law,” and is
“interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” Ill. S. Ct. R. 137 (eff. Feb. 1, 1994); cf. also People v. Hodges, 234
Ill. 2d 1, 11-17 (2009) (analyzing a comparable standard that applies to first-stage postconviction
petitions). The purpose of Rule 137 is also very similar to that of the Act:
“The purpose of the rule is to prevent abuse of the judicial process by penalizing claimants
who bring vexatious and harassing actions based upon unsupported allegations of fact or
law. It is not intended to simply penalize litigants for the lack of success; rather, its aim is
to restrict litigants who plead frivolous or false matters without any basis in law.” (Emphasis
added.) Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074
(1995).
Of course, there are distinct differences between how Rule 137 and the Act are applied. Rule 137
applies to all legal actions but the Act applies only to actions that involve first amendment activities.
Moreover, even if a litigant can prove that the other party violated Rule 137, the circuit court has
discretion over whether to impose sanctions for the violation. See id. In contrast, if a litigant proves
that the other party’s claim is a SLAPP and the other party fails to carry its own burden, then the
circuit court must dismiss the claim and impose the penalties specified in the Act. See 735 ILCS
110/20(c), 25 (West 2010). The two motions therefore serve slightly different purposes and have
slightly different procedures. Still, the analytical framework for evaluating a motion for Rule 137
sanctions may be useful for evaluating whether a claim is meritless and retaliatory under the Act.
We take no position on that question one way or the other in this case, but it may be a useful line of
inquiry in future cases given the current paucity of case law interpreting Sandholm’s analytical
framework for motions brought under the Act.
-9-
that damaged the plaintiff’s reputation. See Maxon v. Ottawa Publishing Co., 402 Ill. App.
3d 704, 715 (2010). Damages are presumed if the statement was defamatory per se. See id.
In this case, plaintiff has pled both defamation per se and per quod. Yet defendants concede
the publication element, and they have offered no affirmative evidence showing that the
statements were either actually true or did not damage plaintiff’s reputation. Regarding the
damages element, defendants merely argue that the complaint did not allege sufficient facts
to support damages (in the case of defamation per quod), or that the statements are not
defamatory per se. But these arguments implicate only the sufficiency of plaintiff’s
complaint, which defendants have conceded for the purpose of a motion to dismiss under
section 2-619(a)(9).
¶ 29 The same is true of plaintiff’s false light claim. The elements for a false light claim are
that “(1) the plaintiff[ ] [was] placed in a false light before the public as a result of the
defendants’ actions; (2) the false light in which the plaintiff[ ] [was] placed would be highly
offensive to a reasonable person; and (3) the defendants acted with actual malice, that is, with
knowledge that the statements were false or with reckless disregard for whether the
statements were true or false.” Kirchner v. Greene, 294 Ill. App. 3d 672, 682 (1998). But
defendants do not offer any evidence showing that any of these elements cannot be met.
Instead, they only assert that the claim must fail because plaintiff’s defamation claims are
insufficient, or they quibble with whether the complaint alleges sufficient facts. Neither
argument is sufficient to carry their burden under the Act.
¶ 30 Defendants have therefore not demonstrated that plaintiff’s claims are meritless and thus
have not carried their burden of proving that his lawsuit is a SLAPP. The circuit court was
therefore incorrect4 to dismiss the complaint under the Act. Based on this finding, we need
not consider whether defendants have shown that plaintiff’s lawsuit was retaliatory, nor
whether plaintiff has met his own burden to show that defendants’ actions “were not
genuinely aimed at solely procuring favorable government action.”
¶ 31 The circuit court dismissed this case based only on its finding that the Act barred
plaintiff’s claims. Defendants raised a number of other grounds to dismiss the complaint
under sections 2-615 and 2-619, but the circuit court did not reach any of these alternatives.
With one exception, which we discuss below, we therefore remand this case for
consideration of the remainder of defendants’ motions to dismiss.
¶ 32 C. Personal Jurisdiction Over Comcast
¶ 33 Because the circuit court did not rule on the alternative grounds raised in defendants’
motions to dismiss, we think it is appropriate to remand this case so that the circuit court can
consider and rule on each of those issues in the first instance. But there is one issue regarding
defendant Comcast that, in the interests of judicial efficiency, we will resolve now. See Ill.
4
Although the circuit court’s judgment was incorrect, it is important to note that the circuit
court made its ruling before the supreme court issued Sandholm and changed the analysis for
dismissal under the Act. The circuit court’s memorandum order was in all other respects an excellent
and well-reasoned application of the law as it stood before Sandholm.
-10-
S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994).
¶ 34 In its original motion to dismiss before the circuit court and again on appeal, Comcast
argued that the circuit court did not have personal jurisdiction over Comcast. See 735 ILCS
5/2-301 (West 2010). The circuit court did not reach this issue, choosing instead to defer
adjudication on personal jurisdiction until after resolving the SLAPP portion of the motions
to dismiss. In its motion, Comcast noted that, contrary to the complaint’s allegations,
Comcast was not licensed to do business in Illinois, which was plaintiff’s sole basis for
asserting long-arm jurisdiction over Comcast. Indeed, it appears that plaintiff has sued the
wrong corporate entity. Comcast Corporation is merely a national holding company that does
not do any business in Illinois. According to Comcast, the actual corporations that are
responsible for delivery of cable advertisements in the target market for the election are
Comcast of Florida/Illinois/Michigan, Inc., and Comcast Spotlight, LLC, both of which are
subsidiaries of Comcast and are, in fact, Illinois entities.
¶ 35 A court cannot exercise personal jurisdiction over a parent corporate entity when the sole
basis of jurisdiction is that a subsidiary of the parent does business in Illinois. See Palen v.
Daewoo Motor Co., 358 Ill. App. 3d 649, 660 (2005). While it is possible to exercise
personal jurisdiction over a foreign corporation that “is, in effect, doing business through its
subsidiary due to the high amount of control exhibited over its subsidiary” (id.), that is not
what plaintiff has alleged in this case. Instead, the sole basis in the complaint for jurisdiction
over Comcast is that Comcast is “authorized to do business in the State of Illinois with a
registered office in Chicago, Cook County, Illinois.” That is indisputably false, as Comcast
pointed out in its motion and as can be easily confirmed via the Secretary of State’s corporate
registration database. See Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App.
3d 935, 938 (1998) (noting that “records from the Illinois Secretary of State’s office *** are
public records that this court may take judicial notice of”). This would ordinarily be a factual
dispute that must be resolved by the circuit court during a hearing on the motion (see 735
ILCS 5/2-301(a), (d) (West 2010)), but plaintiff did not bother to address this issue in his
response to Comcast’s motion to dismiss below, nor did he address it when Comcast
mentioned it on appeal. Plaintiff has therefore conceded the point. See Ill. S. Ct. R. 341(h)(7)
(eff. July 1, 2008).
¶ 36 Although the circuit court did not resolve this issue, “we may affirm the judgment of the
trial court on any basis in the record, regardless of whether the trial court relied upon that
basis or whether the trial court’s reasoning was correct.” Alpha School Bus Co. v. Wagner,
391 Ill. App. 3d 722, 734 (2009). There is no jurisdictional basis for including Comcast in
this case on remand, so we affirm the circuit court’s dismissal of the complaint as to
Comcast.
¶ 37 III. CONCLUSION
¶ 38 We reverse the circuit court’s order dismissing the complaint as barred by the Citizen
Participation Act (735 ILCS 110/1 et seq. (West 2010)), and we remand for consideration
of the remainder of the grounds raised in defendants’ motions to dismiss. As to defendant
Comcast only, we affirm the judgment of dismissal on the alternate ground of lack of
-11-
personal jurisdiction.
¶ 39 Affirmed in part and reversed in part; cause remanded with directions.
-12-