Moon v. Liu , 2015 IL App (1st) 143606 ( 2016 )

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Appellate Court Date: 2016.01.26 14:10:44
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Chang Hyun Moon v. Kang Jun Liu, 2015 IL App (1st) 143606
Appellate Court CHANG HYUN MOON, Plaintiff-Appellant, v. KANG JUN LIU,
Caption DU SAE YI, KYUNG JA KIM, KYUNG JA PARK, SOON KYU
CHOI, KI SOOK LIU, ME HO LEE, AHN OK CHOI, IN WON JIN,
JUNG RYE PARK, IL KOOK CHUNG, CHIK JA LEE, OK SIK
SEO, EUI NAM PARK, CHUN HYO PARK, SA SOON CHUNG,
MIN KOO LEE, YONG WOON SEO, SOON GIL PARK and SAE
JUNG KIM, Defendants-Appellees.
District & No. First District, Fourth Division
Docket No. 1-14-3606
Filed October 29, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 14-L-005343; the
Review Hon. John P. Callahan, Judge, presiding.
Judgment Affirmed.
Counsel on James B. Koch and Michelle M. LaGrotta, both of Gardiner Koch
Appeal Weisberg & Wrona, of Chicago, for appellant.
W. Dan Lee, of Lee Law Offices, Ltd., of Los Angeles, California, for
appellees.
Panel PRESIDING JUSTICE McBRIDE delivered the judgment of the
court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Chang Hyun Moon, brought an action against defendants, Kang Jun Liu et al.,
alleging causes of action for defamation per quod, false light invasion of privacy, and
intentional infliction of emotional distress. The circuit court granted defendants’ motion to
dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615
(West 2010)) and dismissed plaintiff’s first amended complaint with prejudice. Plaintiff
appeals.
¶2 The record shows that on May 19, 2014, plaintiff filed a three count verified complaint
against defendants, followed by a first amended complaint filed on August 13, 2015, alleging
that defendants, members of the Lakeview Korean Presbyterian Church in Niles, Illinois, had
committed defamation per quod, false light invasion of privacy, and intentional infliction of
emotional distress against him when they signed a May 19, 2013, memorandum entitled
“Reprimand of Deacon Moon” and published it to “multiple third parties” both within and
outside of the church.
¶3 A copy of the petition, which was originally written in the Korean language, was attached
to the complaint, as well as an English translation of that document. The petition alleged that
plaintiff did “not know his duty and continue[d] to agitate the Church.” It requested that
plaintiff be “penalize[d] *** in order to help the Church recover from the disorder and
agitation [plaintiff] originally created.” The petition then listed a number of alleged instances
of misconduct, including, among other things, that plaintiff engaged in “slander” regarding the
church leaders, encouraged “backbiting” of them, and avoided worship time by hiding in the
cafeteria or smoking by the back door. The petition further alleged that plaintiff promoted a
“split in the church” and interfered with the process of electing elders. It also indicated that he
had threatened to report the details of church members’ offerings to the Internal Revenues
Service (IRS) and that he had sent a subpoena to a bank requesting all of the church’s financial
documents.
¶4 Out of these several alleged acts of misconduct, plaintiff’s complaint only specifically
objected to one: that he verbally threatened to report the details of church members’ offerings
to the IRS. Plaintiff averred that this statement was false, and that he “never threatened to
report the details of church members’ offerings to the IRS.” He alleged that this defamatory
statement “harmed [plaintiff’s] reputation within the greater Chicago area Korean community
by lowering other’s perceptions of him and deterring them from associating with him.” He
explained that,
“there are many legal and illegal immigrants *** in the greater Chicago Korean
community [who] understand that they are generally to avoid unnecessary involvement
with the federal government. The false statement, however, suggests that [plaintiff] is
willing to report greater Chicago area Korean community members he associates with
to federal authorities for perceived misconduct.”
¶5 Plaintiff maintained that the statement harmed him and his children, because the “Korean
culture of ‘honor’ dictates that the consequences of offenses to the father’s honor are also
suffered by subsequent familial generations,” meaning that “because [plaintiff] is now
perceived as acting dishonorably, his children will also be presumed dishonorable.” He further
maintained that the statement caused his wife to file a petition for dissolution of marriage
against him, and as a result, he was forced to “incur attorney’s fees and the costs associated
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with participating in the divorce proceeding.” He attached a copy of the petition for dissolution
of marriage filed by his wife, Oie Za Moon, in which she stated that plaintiff:
“had issues with the church. Many members of the church appealed to a higher level of
the church complaining of [plaintiff’s] behavior. Further, the Pastor said [plaintiff]
made false statements to a higher level of the church. Some elders also accused
[plaintiff] of seeking to borrow money from them. [Plaintiff] denied this but Petitioner,
OIE ZA MOON, lost trust and respect for her husband and vice versa causing
irreconcilable differences.”
¶6 On August 19, 2014, defendants filed a motion to dismiss plaintiff’s first amended
complaint pursuant to section 2-615 of the Code, arguing, among other things, that plaintiff’s
legal fees in his divorce did not constitute special damages for purposes of defamation
per quod, that he could not prove the actual malice element to establish a claim of false light
invasion of privacy, and that he could not show that his wife’s filing for divorce was
proximately caused by the defendants’ conduct to establish his claim for intentional infliction
of emotional distress.
¶7 On October 27, 2014, the court entered a written order granting defendants’ motion to
dismiss pursuant to section 2-615 of the Code. In that order, the court concluded that plaintiff’s
“allegations of defamation per quod are fatally flawed, because he suffered no special damages
as a result of the allegedly defamatory publication.” The court rejected plaintiff’s claim that the
divorce action was caused by defendants’ allegedly defamatory statement, reasoning that
plaintiff had indicated that his wife heard about the petition from members of a different
church, but “[i]f the couple was living together at the time of publication, Plaintiff’s wife
would have learned about the petition in the church where Plaintiff was a deacon.” The court
concluded that the alleged damages were not proximately caused by the publication and that
plaintiff was “attempting to recover his unrelated divorce expenses by alleging defamation
against 20 congregants from his church.”
¶8 Regarding plaintiff’s claim for false light invasion of privacy, the court found that plaintiff
could “never satisfy the second element”: that the false light would be highly offensive to a
reasonable person. The court observed that plaintiff “has pled facts showing that the false light
is offensive to members of the Korean community with strong ties to the Korean Presbyterian
Church. However, the false light must be highly offensive to a reasonable person. There is no
special standard that applies to ethnic minorities with devout religious practices.”
¶9 Finally, the court concluded that plaintiff’s action for intentional infliction of emotional
distress also failed, because the “publication of a petition to the church hierarchy is not extreme
and outrageous conduct,” and “[p]laintiff has not pled facts to support allegations of severe
emotional distress.” The court dismissed plaintiff’s amended complaint with prejudice, and
plaintiff appealed.
¶ 10 In this court, plaintiff maintains that the court erred in dismissing his amended complaint
with prejudice, because he “adequately pled” his three causes of action, and the court failed to
construe the allegations of his complaint in the light most favorable to him.
¶ 11 A section 2-615 motion to dismiss tests the legal sufficiency of a complaint, i.e., whether
the allegations of the complaint, when construed in the light most favorable to the plaintiff,
state sufficient facts to establish a cause of action upon which relief may be granted. Green v.
Rogers, 234 Ill. 2d 478, 491 (2009). When ruling on a section 2-615 motion to dismiss, the
court must accept as true all well-pled facts in the complaint and reasonable inferences drawn
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therefrom. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). We do not,
however, take mere conclusions of law or fact contained within the challenged pleading as true
unless they are supported by specific factual allegations. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47
(1991). When reviewing an order granting a motion to dismiss pursuant to section 2-615, this
court applies de novo review (Hopewell v. Vitullo, 299 Ill. App. 3d 513, 516 (1998)), and we
may affirm the trial court’s dismissal for any reason supported by the record, regardless of the
trial court’s reasoning (Lieberman v. Budz, 356 Ill. App. 3d 932, 937 (2005)).
¶ 12 We first turn to defendant’s argument that the court erred in dismissing his claim for
defamation per quod. A statement is considered defamatory “if it tends to cause such harm to
the reputation of another that it lowers that person in the eyes of the community or deters third
persons from associating with him.” Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10
(1992) (citing Restatement (Second) of Torts § 559 (1977)). Statements may be considered
defamatory per se or per quod. Id. Statements are defamatory per se when the defamatory
character of the statement is apparent on its face, that is, the statement is so obviously harmful
to the plaintiff that damages may be presumed. Id. In Illinois, courts have recognized four
categories of statements that are considered defamatory per se: (1) words that impute
commission of a crime; (2) words that impute infection with a loathsome communicable
disease; (3) words that impute an inability to perform or want of integrity in the discharge of
duties of office or employment; and (4) words that prejudice a party, or impute a lack of ability,
in his or her trade, profession or business. Id.
¶ 13 Here, the allegedly defamatory statement at issue is the allegation in defendants’
memorandum that plaintiff had been “threatening verbally to report the details of church
member’s [sic] offerings to the IRS.” Plaintiff acknowledges that this statement does not fit
within the categories of defamatory per se statements and instead contends that it qualifies as
defamation per quod, which applies in situations where the defamatory character of the
statement is not apparent on its face but extrinsic facts explain its injurious meaning. Id.
Specifically, plaintiff points to the following “extrinsic facts” alleged in his first amended
complaint: “that the Korean culture is one of honor; that the Korean community in the Greater
Chicago area generally avoids any unnecessary involvement with the federal government
because many in the community are undocumented; that reporting to the IRS or otherwise
having unnecessary involvement with the federal government is considered dishonorable; that
[plaintiff’s] dishonor would also be suffered on [sic] his children; that others will view
[plaintiff] as cooperative with the federal government and avoid him; and that [plaintiff’s] wife
lost trust and respect for him.” He alleges that these facts, “when viewed in the light most
favorable to [plaintiff], are sufficient to establish the injurious meaning.”
¶ 14 Even if we were to accept plaintiff’s contention that these “facts” could establish the
injurious nature of the defendants’ statement, we conclude that plaintiff’s defamation per quod
claim must fail. While damages are presumed in cases of defamation per se, a plaintiff
pursuing a claim of defamation per quod must allege that he suffered special damages, or
“actual damage of a pecuniary nature,” as a result of the defamatory statement. Bryson, 174 Ill.
2d at 87-88.
¶ 15 Here, plaintiff contends that he showed the required special damages, where his wife
“specifically referenced defendants’ defamatory memorandum” in her divorce petition as a
reason for her divorce, and he “incurred attorneys’ fees and costs stemming from the divorce.”
We disagree.
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¶ 16 In the petition for dissolution of marriage, plaintiff’s wife generally referenced the fact that
plaintiff had “issues with the church” and that members of the church had “complain[ed] of
[plaintiff’s] behavior.” She specifically stated that she heard that plaintiff made “false
statements to a higher level of the church” and that he had been “accused *** of seeking to
borrow money” from the elders. However, nowhere in her petition did she specifically
reference the defendants’ memorandum, or the allegedly defamatory statement here: that
plaintiff threatened to report members’ offerings to the IRS. It is clear that plaintiff and the
church had a variety of issues as the memorandum listed a number of alleged acts of
misconduct, only one of which plaintiff has now challenged as defamatory. Without any facts
which would support a finding that plaintiff’s wife’s filing was caused specifically by the
allegedly defamatory statement at issue here, we can find no causal connection between the
statement and plaintiff’s purported special damages. In other words, there is nothing in the
record which would allow a trier of fact to infer that plaintiff’s wife filed for divorce because
defendants’ claimed that plaintiff threatened to turn in church members to the IRS, rather than
any of plaintiff’s other “issues” with the church or alleged misconduct. See Maag v. Illinois
Coalition for Jobs, Growth & Prosperity, 368 Ill. App. 3d 844, 853 (2006) (affirming the
dismissal of the plaintiff judge’s defamation per quod claim under section 2-615 of the Code,
where the allegations that the defendants’ negative campaign flyer caused him to lose a
retention election, thereby losing the related salary and benefits, was “ ‘far too speculative and
uncertain to entertain’ as special damages” (quoting Aycock v. Padgett, 516 S.E.2d 907, 910
(N.C. Ct. App. 1999))). As such, we conclude that plaintiff failed to state a claim for
defamation per quod, and the dismissal of his claim was proper.
¶ 17 We next consider plaintiff’s false light invasion of privacy claims. To sustain a cause of
action for false light invasion of privacy, a plaintiff must allege that: (1) he was placed in a
false light before the public as a result of the defendant’s actions; (2) the false light would be
highly offensive to a reasonable person; and (3) the defendant acted with actual malice.
Kurczaba v. Pollock, 318 Ill. App. 3d 686, 696 (2000). Additionally, if a false light invasion of
privacy claim is based on statements that are not defamatory per se, a plaintiff must allege that
he suffered special damages. Schaffer v. Zekman, 196 Ill. App. 3d 727, 736 (1990).
¶ 18 Plaintiff’s false light invasion of privacy claim is premised on the same allegedly false
statement which formed the basis of his defamation claim–a statement which plaintiff
acknowledges does not constitute defamation per se. Because we previously held that
plaintiff’s purported special damages were insufficient to support his defamation per quod
count, we likewise conclude that they do not support a claim for false light invasion of privacy.
¶ 19 Moreover, we note that in plaintiff’s first amended complaint, he pleaded only that the
statement would have been “highly offensive to a reasonable person in the greater Chicago
area Korean community.” The circuit court dismissed this count, reasoning that it requires that
the false light is highly offensive to a reasonable person, and “[t]here is no special standard
that applies to ethnic minorities with devout religious practices.” We agree.
¶ 20 At best, plaintiff appears to allege that as a member of “the greater Chicago area Korean
community,” he was hypersensitive to an accusation which would not otherwise offend a
person who is not a part of that community. However, our supreme court has cautioned that
false facts that offend a hypersensitive individual will not satisfy the reasonable person
element of false light invasion of privacy. Lovgren v. Citizens First National Bank of
Princeton, 126 Ill. 2d 411, 420 (1989). For a statement to be highly offensive, a defendant must
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have known that a plaintiff, as a reasonable person, would have been justified in the eyes of
the community in feeling seriously offended and aggrieved by the publicity. Id.
¶ 21 In this respect, we find Bitsie v. Walston, 515 P.2d 659 (N.M. Ct. App. 1970), from the
New Mexico Court of Appeals, instructive. In that case, the plaintiff, a Navajo child, brought
an action for invasion of privacy through her father in relation to the use of her photograph in
an article referencing cerebral palsy. Plaintiff claimed that the use of her picture in the news
story was offensive based on traditional Navajo beliefs, because it “ ‘wished her harm’ ” and
meant that she would “have bad luck later in life.” Id. at 662. The New Mexico Court of
Appeals concluded that, while there was evidence that “the newspaper story was offensive to
traditional Navajos,” the court could not “as a matter of law, equate an offense to persons
holding such a belief with an offense to persons of ordinary sensibilities.” Id. The court then
affirmed the directed verdict for the defendants on the plaintiff’s invasion of privacy claim.
¶ 22 Similarly, in this case, the facts pled by plaintiff relate only to why the defendants’
allegedly false statement would be considered offensive within “the greater Chicago area
Korean community.” Plaintiff, however, alleged no facts showing that the false light would
have been offensive to a reasonable person, and, in the absence of any such facts, plaintiff’s
false light invasion of privacy claim was properly dismissed.
¶ 23 Finally, we turn to plaintiff’s claim of intentional infliction of emotional distress. In order
to state a cause of action for intentional infliction of emotional distress, a plaintiff must
adequately allege that: (1) the defendant’s conduct was extreme and outrageous; (2) the
defendant either intended to inflict severe emotional distress or knew that there was a high
probability that its conduct would do so; and (3) the defendant’s conduct actually caused
severe emotional distress. McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988). If the complaint fails to
make a sufficient showing of any one of the three elements, it fails as a matter of law.
¶ 24 Here, plaintiff makes bald assertions that defendants’ conduct was “extreme and
outrageous” and that defendants “intended to inflict severe emotional distress or *** knew that
there was a high probability that their conduct would do so.” Illinois is a fact pleading
jurisdiction, and a pleading which merely paraphrases the elements of a cause of action in
conclusory terms is not sufficient. Welsh v. Commonwealth Edison Co., 306 Ill. App. 3d 148,
155 (1999) (citing Knox College v. Celotex Corp., 88 Ill. 2d 407, 423-27 (1981)). Moreover,
because claims alleging intentional infliction of emotional distress can be easily made, this
court has indicated that such claims must be “specific, and detailed beyond what is normally
considered permissible in pleading a tort action.” McCaskill v. Barr, 92 Ill. App. 3d 157, 158
(1980). Because plaintiff has not provided any facts which would support his claims, his
assertions as to these two elements are mere conclusions, which are insufficient to preclude
dismissal. Doe v. Calumet City, 161 Ill. 2d 375, 385 (1994) (“mere conclusions of law or fact
unsupported by specific factual allegations in a complaint are disregarded on a motion to
dismiss”), abrogated on other grounds by DeSmet v. County of Rock Island, 219 Ill. 2d 497,
518 (2006).
¶ 25 Moreover, we do not find defendants’ conduct in signing a petition which included an
allegation that plaintiff had threatened to report church members to the IRS to be extreme and
outrageous. Whether conduct is extreme and outrageous is evaluated on an objective standard
based on all of the facts and circumstances. McGrath, 126 Ill. 2d at 90. Liability does not
extend to “mere insults, indignities, threats, annoyances, petty oppressions or trivialities”
(Public Finance Corp. v. Davis, 66 Ill. 2d 85, 89-90 (1976)), and the infliction of such
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emotional distress as fright, horror, grief, shame, humiliation and worry is not sufficient to give
rise to a cause of action (Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 38 (1997)).
¶ 26 As our supreme court has explained, liability for intentional infliction of emotional distress
only arises in circumstances where the defendant’s conduct is “ ‘so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency.’ ” Public Finance
Corp., 66 Ill. 2d at 90 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
¶ 27 This element sets a high bar for the type of conduct which will create liability, and courts
have found that conduct far more egregious than that which is alleged to have been committed
by defendants’ in this case, to not be extreme and outrageous. See, e.g., Khan v. American
Airlines, 266 Ill. App. 3d 726 (1994) (affirming dismissal of intentional infliction of emotional
distress claim over the plaintiff’s allegations that defendants knowingly sold a stolen airline
ticket to him, causing him to be arrested and charged with theft, despite being aware that he
was en route to his father’s funeral), abrogated on other grounds by Velez v. Avis Rent A Car
System, Inc., 308 Ill. App. 3d 923, 928 (1999); Public Finance Corp., 66 Ill. 2d at 94-95
(affirming dismissal of the plaintiff’s complaint alleging that the defendant creditor called her
and visited her home several times weekly over a seven-month period, called her at her
daughter’s hospital bed, induced her to write a check by promising that it would not be
processed, and then informed one of her acquaintances that she was writing bad checks);
Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 120 (1996) (affirming dismissal
over the plaintiff doctor’s allegations that the defendants engaged in a “ ‘five year campaign of
harassment and intimidation’ ” by falsely claiming that he was incompetent, revoking his
privileges, and constantly berating him in front of hospital staff); cf. McGrath, 126 Ill. 2d at
91-93 (intentional infliction of emotional distress was sufficiently alleged where the complaint
alleged that the defendants, officers and board members of major financial institutions,
attempted to defraud the plaintiff, an unsavvy investor, out of millions of dollars of real estate);
Pavilon v. Kaferly, 204 Ill. App. 3d 235, 245-46 (1990) (there was sufficient evidence to
support a finding that the defendant employer intentionally inflicted emotional distress on the
plaintiff employee, where he engaged in a cumulative pattern of pressuring his employee for
dates, offered to pay for sexual favors, engaged in harassing behaviors after she was fired, and
threatened to rape and kill her).
¶ 28 Because plaintiff in this case failed to provide any factual allegations which would allow a
finding that defendants’ conduct was extreme and outrageous, or that they intended or knew
that there was a high probability that their conduct would inflict severe emotional distress, we
uphold the trial court’s conclusion that he failed to state a cause of action for intentional
infliction of emotional distress.
¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 30 Affirmed.
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