Samoylovich v. Montesdeoca

2014 IL App (1st) 121545FIFTH DIVISION
June 13, 2014
No. 1-12-1545
BORIS SAMOYLOVICH, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court of
v. ) Cook County, Illinois.
)
HENRY MONTESDEOCA, )
) No. 10 L 5328
Defendant-Appellant )
)
(City of Chicago, a Municipal Corporation, ) Honorable
Gilbert Ortiz, John Sebeck, and Edward ) Eileen M. Brewer,
Wodnicki, ) Judge Presiding.
)
Defendants). )
JUSTICE TAYLOR delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.
OPINION
¶1 I. INTRODUCTION
¶2 Appellant Henry Montesdeoca appeals from the circuit court’s order denying his motion
to dismiss brought under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)
(West 2012)) in which he claimed immunity pursuant to the Citizen Participation Act (735 ILCS
110/1 et seq. (West 2012)) (the Act).
¶3 The appeal arises out of a civil lawsuit filed by appellee Boris Samoylovich against the
City of Chicago, individual police officers, and Montesdeoca. Samoylovich filed the lawsuit to
seek damages for malicious prosecution and civil conspiracy following his acquittal on the
criminal charge of felony criminal damage to property in connection with an attempted burglary
No. 1-12-1545
that Montesdeoca allegedly witnessed and to which Montesdeoca testified during the related
criminal proceedings.
¶4 In response to Samoylovich’s claims, Montesdeoca filed a section 2-619(a)(9) motion
asserting immunity from liability under the Act. The circuit court denied the motion and
Montesdeoca appealed to this court. Upon this court’s initial denial of the appeal, Montesdeoca
filed a petition for leave to appeal to the Illinois Supreme Court, which denied the petition but
entered a supervisory order remanding the appeal to this court for resolution. Samoylovich v.
City of Chicago, No. 114802 (Ill. Nov. 28, 2012). For the reasons that follow, we find that the
circuit court properly denied Montesdeoca’s motion.
¶5 II. BACKGROUND
¶6 On the evening of January 6, 2008, Montesdeoca allegedly witnessed an attempted break-
in of two of his neighbors’ garages. Montesdeoca had been friends with one of these neighbors,
Detective Gilbert Ortiz of the Chicago police department, and other members of his family for
several years. During the commotion in connection with discovering the attempted break-in,
Montesdeoca and Detective Ortiz allegedly witnessed Samoylovich enter a get-away vehicle and
escape the scene. Montesdeoca obtained half of the license plate number of the fleeing vehicle,
while Detective Ortiz obtained the entire number.
¶7 After running the license plate number in the Law Enforcement Agencies Data System
(LEADS), the Chicago police obtained the name “Boris Samoylovich” and an address for the
vehicle’s owner. The Chicago police then ran the name in the Illinois Citizen and Law
Enforcement Analysis and Reporting database (ICLEAR), a system that stores data relating to
criminal offenders in Illinois, and obtained Samoylovich’s name, photograph, and address.
However, the addresses produced by LEADS and ICLEAR were different, a fact raising the
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possibility that the two Boris Samoyloviches identified were not the same person, which in fact
they were not. The registered owner of the vehicle, who was identified in LEADS but not in
ICLEAR, turned out to be an unrelated, older, deceased man whose widow had sold the car to a
neighbor on January 4, 2008. This neighbor had never seen nor did she know the Samoylovich
who is the plaintiff in the instant case.
¶8 Nevertheless, without looking into the ambiguity created by the different address listings,
the Chicago police arrested Samoylovich at the home address listed in ICLEAR. However, the
Chicago police were unable to locate the get-away vehicle. Montesdeoca and Detective Ortiz
then separately identified Samoylovich in a photo array and a lineup. No other evidence has
been offered that connects Samoylovich to the incident other than Montesdeoca’s and Detective
Ortiz’s eyewitness statements and identifications, and there is no evidence that the Chicago
police knew of the existence of the two Boris Samoyloviches when they arrested him.
¶9 By the time of the grand jury proceedings, which occurred on January 22, 2008, the
Chicago police had become aware of the existence of the two Boris Samoyloviches through
Valere Samoylovich, the deceased man’s son. At the grand jury, Detective John Sebeck, a
detective who worked on the case and who is also a named defendant, testified that the Chicago
police had believed that the older, deceased Boris Samoylovich was Samoylovich’s father. This
belief is not documented in any record produced by the Chicago police during the investigation
nor was it confirmed by Valere Samoylovich. Later, at the criminal trial, Detective Sebeck
claimed Samoylovich was the source of this information, though Samoylovich never confirmed
making such an admission. The State’s Attorney subpoenaed Montesdeoca, who testified against
Samoylovich at his criminal trial, the result of which was an acquittal.
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¶ 10 Following his acquittal, Samoylovich filed a second amended complaint on September 28,
2011 against the city of Chicago, the officers involved, and Montesdeoca alleging malicious
prosecution and civil conspiracy. For both counts, Samoylovich sought compensatory damages
in excess of $50,000 to compensate him for being “publicly disgraced,” suffering “great anxiety
and pain of body and mind,” and incurring defense costs and losses associated with being
“hindered and prevented from attending to affairs, employment and business.”
¶ 11 On October 19, 2011, Montesdeoca filed a section 2-619(a)(9) motion to dismiss
invoking the protections of the Act, which provides immunity for a defendant who has been
victimized by a strategic lawsuit against public participation in government or the proper
exercising of the defendant’s first amendment rights (a SLAPP). On December 14, 2011, the
circuit court entered an order ruling that the Act was applicable to the case and permitting limited
discovery to commence pursuant to the Act. However, on January 20, 2012, the Illinois
Supreme Court issued its opinion in Sandholm v. Kuecker, 2012 IL 111443, a landmark case
refining the proper analytical framework under the Act, and the circuit court immediately
directed the parties to submit additional briefs to assess the impact of the decision on the facts of
the present case.
¶ 12 On May 2, 2012, after considering the briefing and evidentiary submissions, the circuit
court reversed its initial decision and held that the Act did not apply to the present case. To
support its ruling, the circuit court provided the following reasoning:
“[T]his is clearly not a SLAPP suit, and I am denying Defendant’s motion to
dismiss. Illinois law requires that the case be meritless and be brought solely for
the purpose of retaliating against the Defendant for his activities in participating
in government. This clearly isn’t the case in this case. *** I would be doing a
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great disservice to the state of the law to actually grant this motion, and it would
be clearly wrong. This wasn’t a hard one. This was actually pretty darn easy.”
¶ 13 Following the circuit court’s ruling, Montesdeoca filed a petition for leave to appeal to
this court, which we denied on July 17, 2012. On November 28, 2012, Montesdeoca then filed a
petition for leave to appeal to the Illinois Supreme Court, which denied the petition but entered a
supervisory order directing this court to vacate its order and “to allow the appeal with
particularized consideration as to each defendant.”
¶ 14 III. ANALYSIS
¶ 15 On appeal, Montesdeoca contends that the circuit court contravened the Act and the
concomitant Illinois case law when it denied his motion to dismiss Samoylovich’s complaint.
Specifically, he argues that reading in the requirements that a SLAPP, as contemplated by the
Act, be meritless and brought for the sole purpose of retaliation fails to comport with the plain
text of the statute, which lacks this precise phrasing. Montesdeoca supplements this argument by
claiming that reading in these requirements both renders the Act superfluous and imposes
burdens on a defendant that defeat the purpose of the Act. In addition to attacking the circuit
court’s ruling on statutory textual grounds, he also claims that the circuit court’s ruling is
contrary to the body of Illinois case law that construes the Act. Finally, and in the alternative,
Montesdeoca argues that the circuit court failed to consider the case individually against him
according to the instructions contained in the Illinois Supreme Court’s supervisory order.
¶ 16 Samoylovich responds that the circuit court’s ruling is entirely consistent with the plain
meaning of the statute and that the court properly followed the analytic framework delineated by
the Act and accompanying Illinois case law. In support of his response, Samoylovich counters
that Illinois law does require a SLAPP to be meritless and brought solely for the purpose of
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retaliation if it is dismissed under the Act. Samoylovich also argues that the circuit court’s ruling
does not render the Act superfluous nor does it place any undue limitations on Montesdeoca.
¶ 17 A. Standard of Review
¶ 18 Because the circuit court based its denial of Montesdeoca’s motion on its interpretation
and application of the Act, a question of law exists and a de novo standard of review applies.
Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 13
(citing Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 634 (2010)).
¶ 19 B. The Circuit Court’s Ruling Does Not Contravene the Act
¶ 20 The standards of statutory interpretation are firmly entrenched in Illinois. When
construing a statute, the paramount rule of statutory interpretation directs courts “to ascertain and
give effect to the intent of the legislature, the language of the statute being the best indicator of
such intent.” Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37. Statutory language must
not be viewed in isolation, but rather it must be considered holistically in light of the entire
statute (Sandholm, 2012 IL 111443, ¶ 41) and in conjunction with other statutes addressing the
same or similar subjects. MQ Construction Co. v. Intercargo Insurance Co., 318 Ill. App. 3d
673, 681 (2000) (citing In re Application for Judgment & Sale of Delinquent Properties for the
Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995)). Furthermore, Illinois courts should read statutes
in a manner such that “no term is rendered ‘meaningless or superfluous.’ ” NAB Bank v. LaSalle
Bank, N.A., 2013 IL App (1st) 121147, ¶ 10 (quoting Carter, 2012 IL 113204, ¶ 37). In addition,
absent any textual ambiguities in a statute, courts should “not depart from that language by
reading into the statute exceptions, limitations, or conditions that conflict with the legislature’s
expressed intent.” 800 South Wells Commercial, LLC v. Horwood Marcus & Berk Chartered,
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No. 1-12-1545
2013 IL App (1st) 123660, ¶ 12 (citing MidAmerica Bank, FSB v. Charter One Bank, FSB, 232
Ill. 2d 560, 565-66 (2009)).
¶ 21 However, “[l]egislative intent may be ascertained not only by examining the statutory
language, but [also] by considering the reason and necessity for the law, the evils to be remedied,
and the objects and purposes to be obtained.” Carter, 2012 IL 113204, ¶ 37. Moreover, courts
should not permit “formality to trump substance where the result would be contrary to the
purposes for which the statute was enacted and lead to consequences which the legislature could
not have intended.” Township of Jubilee v. State, 2011 IL 111447, ¶ 35. To that end, “ ‘[c]ourts
must avoid reading statutory language either too literally or too broadly’ ” when striving to
effectuate legislative intent. Grever v. Board of Trustees of the Illinois Municipal Retirement
Fund, 353 Ill. App. 3d 263, 266 (2004) (quoting Village of Lake Villa v. Bransley, 348 Ill. App.
3d 280, 284 (2004)). Finally, “[t]hat which is implied in a statute is as much a part of it as that
which is expressed.” Grever, 353 Ill. App. 3d at 267 (citing Baker v. Miller, 159 Ill. 2d 249, 260
(1994)). These implications may include judicially created tests that are read into statutory text
or conclusions gleaned from them. See Health Professionals, Ltd. v. Johnson, 339 Ill. App. 3d
1021, 1038 (2003) (noting that the judicially created “rule of reason” test should be applied
under the Illinois Antitrust Act to determine whether the statutory standard, “unreasonably
restrain trade or commerce,” has been violated despite no statutory mention of that test (internal
quotation marks omitted)).
¶ 22 Section 5 of the Act describes the public policy objectives that motivated the legislature
to pass the Act. In this section, the legislature expressed alarm at the “disturbing increase in
lawsuits termed ‘Strategic Lawsuits Against Public Participation’ in government or ‘SLAPPs’ as
they are popularly called” and framed the Act as the legislative response to curb the deleterious
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effects of SLAPP abuses. 735 ILCS 110/5 (West 2012). To determine whether a lawsuit
qualifies as a SLAPP, thus activating the Act’s protective mechanisms, the legislature articulated
a test, the first part of which is contained in section 15 of the Act:
“This Act applies to any motion to dispose of a claim in a judicial proceeding on
the grounds that the claim is based on, relates to, or is in response to any act or
acts of the moving party in furtherance of the moving party’s rights of petition,
speech, association, or to otherwise participate in government.” 735 ILCS 110/15
(West 2012).
Illinois courts have construed this passage as the first prong of a structured analytical framework,
with the burden borne by the movant defendant. See, e.g., Sandholm, 2012 IL 111443, ¶ 56
(discussed below).
¶ 23 Montesdeoca argues that the circuit court ignored the text of the Act when it denied his
motion on the basis that “Illinois law requires that the case be meritless and be brought solely for
the purpose of retaliating against the Defendant for his activities in participating in government.”
He claims that because the phrase “meritless” or “brought solely for the purpose of retaliating”
does not explicitly appear in the text of the Act, the court erred when it denied him the
protections afforded under the Act using these phrases to explain its reasoning.
¶ 24 This court disagrees with Montesdeoca because he ignores the implicit subtext upon
which the Act stands and which informs the Act’s understanding of what it means for a lawsuit
to be a SLAPP. Rather than constructing a new definition of SLAPPs, the Act builds upon the
existing, widely accepted, common law understanding. See 735 ILCS 110/5 (West 2012)
(identifying SLAPPs for the purposes of the Act as “ ‘Strategic Lawsuits Against Public
Participation’ in government, or ‘SLAPPs’ as they are popularly called” (emphasis added)). In
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Sandholm, the Illinois Supreme Court unambiguously acknowledged the Act’s reliance upon this
common law understanding of SLAPPs. See Sandholm, 2012 IL 111443, ¶ 42 (“Looking at the
statute in its entirety, it is clear that the legislation is aimed at discouraging and eliminating
meritless, retaliatory SLAPPs, as they traditionally have been defined” (emphasis added)).
Naturally, this interpretation, that the Act contemplates SLAPPs in their traditional, common law
sense, has reverberated throughout the Illinois appellate districts. See, e.g., Capeheart v. Terrell,
2013 IL App (1st) 122517, ¶ 12 (“Thus, as Sandholm explains, the Act only applies to meritless,
retaliatory SLAPP lawsuits, as those suits have traditionally been defined.” (emphasis added));
Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶¶ 13-14 (recognizing that the
legislature passed the Act to neutralize the pernicious effects of “[t]he traditional SLAPP
paradigm” on defendants who have properly exercised their first amendment rights or their right
to petition or participate in government).
¶ 25 The question then remains: what is the traditional, common law definition of a SLAPP?
Montesdeoca claims that multiple definitions abound and vary widely, thus negating the absence
of merit and the lack of a retaliatory nature as essential features. However, a close inspection of
the sources comprising the foundation of Illinois jurisprudence on the subject reveals that, while
descriptions of the characteristics and effects of SLAPPs may vary somewhat, sources
overwhelmingly define SLAPPS as meritless and retaliatory. See, e.g., id. ¶ 21 (explaining that
for the purposes of the Act, a SLAPP claim is one that is “meritless and was filed in retaliation
against the movant’s protected activities in order to deter the movant from further engaging in
those activities” (citing Sandholm, 2012 IL 111443, ¶ 57)); Capeheart, 2013 IL App (1st)
122517, ¶ 12; Duracraft Corp. v. Holmes Products Corp., 691 N.E. 2d 935, 941 (Mass. 1998)
(“ ‘SLAPPs are by definition meritless suits.’ ” (quoting John C. Barker, Common-Law and
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Statutory Solutions to the Problems of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993)));
Penelope Canan & George W. Pring, Strategic Lawsuits Against Public Participation, 35 Soc.
Probs. 506, 506-07 (1988) (“[i]t is this political retaliation, through the law, that distinguishes
SLAPPs from” other types of lawsuits). Even cases that do not expressly define SLAPPs in their
analyses rely on these terms to define the central objective of the Act. See Wright, 238 Ill. 2d at
633 (“[t]he purpose of the Act is to give relief, including monetary relief, to citizens who have
been victimized by meritless, retaliatory SLAPP lawsuits”).
¶ 26 With an understanding that the Act relies on this common law definition of SLAPPs,
Sandholm formulated a test from sections 15 and 20 of the Act that determines whether a given
lawsuit is a meritless and retaliatory, and thus a SLAPP for the purposes of the Act. Sandholm
reformulated the movant’s burden under the test in the following terms:
“In light of the clear legislative intent expressed in the statute to subject only
meritless, retaliatory SLAPP suits to dismissal, we construe the phrase ‘based on,
relates to, or is in response to’ in section 15 to mean solely based on, relating to,
or in response to ‘any act or acts of the moving party in furtherance of the moving
party’s rights of petition, speech, association, or to otherwise participate in
government.’ ” (Emphasis in original.) Sandholm, 2012 IL 111443, ¶ 45
(quoting 735 ILCS 110/15 (West 2008)).
Requiring the movant to demonstrate that plaintiff’s lawsuit was solely “ ‘based on, relate[d] to,
or [] in response to’ [their protected acts] *** allows a court to identify meritless SLAPP suits
subject to the Act” (id. ¶ 48) to achieve the statutory goal of “discouraging and eliminating
meritless, retaliatory SLAPPs, as they have traditionally been defined” (id. ¶ 42).
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¶ 27 Courts in this jurisdiction have applied the Sandholm standard to hold that where a
defendant fails to show that a plaintiff’s suit is meritless and retaliatory, the defendant is not
entitled to have the suit dismissed under the Act. For example, in Ryan, the court held that the
method for proving that plaintiff’s lawsuit was a SLAPP under the Act was to establish that it
was meritless and retaliatory through the Sandholm test. Ryan, 2012 IL App (1st) 120005, ¶ 21
(“To satisfy its burden under this prong of the test, a movant must affirmatively demonstrate that
the nonmovant’s claim is a SLAPP within the meaning of the Act, that is, that the claim is
meritless and was filed in retaliation against the movant’s protected activities ***” (citing
Sandholm, 2012 IL 111443, ¶ 45)). The Ryan plaintiff, a circuit court judge, brought a
defamation suit against Fox Television Stations for airing an investigative report stating that
plaintiff left work early and went home on a number of days. Ryan, 2012 IL App (1st) 120005,
¶¶ 1, 5. In reviewing defendants’ motion to dismiss under the Act, the court found that
plaintiff’s claim was not meritless, insofar as defendants could not show that the report was
substantially true. Id. ¶¶ 26-29. Thus, defendants did not carry their burden under the Act and
the trial court was right to deny their motion to dismiss. Id. ¶ 30.
¶ 28 Similarly, in Capeheart, 2013 IL App (1st) 122517, the court also affirmed the denial of
defendant’s motion to dismiss under the Act where defendant failed to show that the lawsuit at
issue was meritless and retaliatory. In Capeheart, plaintiff brought a defamation suit against
defendant for falsely alleging that a student had filed a stalking complaint against her. Id. ¶¶ 3-4.
The trial court dismissed plaintiff’s claims against defendant under the Act, but the Capeheart
court reversed the dismissal, explaining that “as Sandholm explains, the Act only applies to
meritless, retaliatory SLAPP lawsuits, as those suits have traditionally been defined.” Id. ¶ 12
(citing Sandholm, 2012 IL 111443, ¶¶ 51-53). The court further stated, “Under these facts, we
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cannot necessarily infer that the plaintiff’s suit was meritless, retaliatory, or intended to prevent
[defendant] from exercising his constitutional rights. Accordingly, we find that [defendant] did
not meet his burden of establishing that the plaintiff's suit constituted a SLAPP suit.” Id. ¶ 17.
¶ 29 The position articulated in Sandholm and applied in Ryan and in Capeheart is now firmly
established in Illinois law. See, e.g., Chicago Regional Council of Carpenters v. Jursich, 2013
IL App (1st) 113279, ¶ 20 (holding that in order to meet its burden under the Sandholm test, “the
defendants were required to demonstrate affirmatively that [the plaintiff’s] suit was retaliatory
and meritless” (citing Ryan, 2012 IL App (1st) 120005, ¶ 21)); Garrido v. Arena, 2013 IL App
(1st) 120466, ¶ 18 (same) (citing Ryan, 2012 IL App (1st) 120005, ¶ 21).
¶ 30 In the present case, the circuit court’s reasoning was in harmony with the well-
established interpretation of the Act: that, under Sandholm, dismissal is not proper where
defendant cannot show that a claim is a meritless, retaliatory SLAPP as contemplated by the Act.
See Ryan, 2012 IL App (1st) 120005, ¶ 21 (citing Sandholm, 2012 IL 111443, ¶¶ 33-34, 57).
While the circuit court did not explicitly reference the precise language of the Act, Montesdeoca
has not presented any evidence establishing that the circuit court failed to consider the statutory
text as interpreted by Illinois case law when it concluded that Samoylovich’s claims were neither
meritless nor retaliatory within the meaning of the Act. Rather than placing a new burden on
Montesdeoca or frustrating the purpose of the Act, as Montesdeoca also claims, the circuit
court’s statement that Samoylovich’s claims were neither meritless nor retaliatory constituted a
legal conclusion that Montesdeoca failed to meet his burden under the Act. Accordingly, the
circuit court’s ruling is not contrary to the plain meaning of the Act.
¶ 31 C. The Circuit Court’s Interpretation Does Not Render the Entire Act Superfluous
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¶ 32 In support of his argument that the circuit court’s ruling violates the plain meaning of the
Act’s text, Montesdeoca also asserts that by requiring him to demonstrate that Samoylovich’s
claims are meritless and retaliatory, the circuit court negates the Act’s legal significance because
there are other procedural mechanisms aimed at terminating such claims. We disagree.
¶ 33 Affirming the circuit court’s ruling does not render the Act duplicative of other
dispositive mechanisms such as summary judgment, motions to dismiss, and motions under
Illinois Supreme Court Rule 137. See 735 ILCS 5/2-615, 2-619, 2-619.1, 2-1005 (West 2012);
Ill. S. Ct. R. 137 (eff. July 1, 2013). Unlike these procedural devices, the Act exists for the very
narrow purpose of “bar[ring] 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 [or their rights to participate in government], while simultaneously preserving
the right of individuals to file lawsuits for real injuries.” Garrido, 2013 IL App (1st) 120466,
¶ 20 (citing 735 ILCS 110/5 (West 2010)). To achieve this end, the Act provides an expedited
procedure for reviewing a defendant’s motion. 735 ILCS 110/20(a) (West 2012) (hearings and
decisions on motions must occur within ninety days). In addition, while a court considers a
motion brought under the Act, discovery is suspended with the narrow exception, granted only
with leave of court, of discovery on the issue of a defendant’s potential immunity. 735 ILCS
110/20(b) (West 2012). Furthermore, parties are entitled to expedited appeals from orders
denying the motion or from a circuit court’s failure to decide the motion within the allotted
ninety days. 735 ILCS 110/20(a) (West 2012). Finally, upon dismissal, a defendant may collect
attorney fees for expenses in connection with the motion. 735 ILCS 110/25 (West 2012).
Illinois courts have distinguished the Act from other procedural mechanisms upon these
technical characteristics alone and without even referencing the unique analytical framework
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articulated by Sandholm and its progeny. See Hammons, 2012 IL App (1st) 102644, ¶ 21
(describing the procedural mechanics and focus of the Act to distinguish it from other dispositive
procedural devices). Thus, even under the standard articulated in Sandholm and its progeny and
applied by the trial court, motions to dismiss under the Act remain distinct from the other
dispositive mechanisms listed by Montesdeoca.
¶ 34 D. The Circuit Court’s Ruling is Consistent With Illinois SLAPP Case Law
¶ 35 In addition to his statutory argument, Montesdeoca claims that the circuit court’s ruling is
inconsistent with the analytic framework articulated in Sandholm and applied by other courts
when deciding motions to dismiss under the Act. Further, he asserts that those cases where the
court seemed to emphasize meritless and retaliatory language were wrongly decided, and that the
same judicial outcome would have resulted without those courts’ reliance on those terms. We
disagree with Montesdeoca’s characterization of Sandholm and the resulting case law and find
that the circuit court’s ruling is consistent with this case law, which has been correctly decided.
¶ 36 In Sandholm, the Illinois Supreme Court was asked to determine whether the Act barred a
lawsuit to recover for intentional torts based on allegedly defamatory statements made by
defendants about a high school basketball coach that were published in a local newspaper.
Sandholm, 2012 IL 111443, ¶¶ 1, 18-19. In reversing the dismissal of the plaintiff’s complaint
by the lower courts, the supreme court outlined the proper analytic framework for determining
whether the Act bars a given claim. First, a defendant must satisfy an “initial burden of proving
that plaintiff’s lawsuit was solely ‘based on, relate[d] to, or in response to’ their acts in
furtherance of their rights of petition, speech or association, or to participate in government.” Id.
¶ 56 (quoting 735 ILCS 110/15 (West 2008)). After a defendant satisfies this prong of the test,
the burden shifts to the plaintiff “to provide clear and convincing evidence that [the] defendants’
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acts are not immunized from liability under the Act.” Sandholm, 2012 IL 111443, ¶ 56; see 735
ILCS 110/20(c) (West 2012).1
¶ 37 The court also noted that the Act was not intended to protect those who commit tortious
acts while engaging in a protected activity. Sandholm, 2012 IL 111443, ¶ 45. In those instances,
the plaintiff’s lawsuit is not solely based on the defendant’s proper exercising of its rights, but
rather the lawsuit constitutes a legitimate attempt to seek redress for an injury. Id. The
Sandholm court reversed the dismissal of plaintiff’s defamation claim when defendants failed to
meet their burden under the test because they could not show that plaintiff’s defamation claim
was based solely on the defendants’ non-tortious petitioning activities. Id. at ¶ 57. As a result,
the court concluded that the Act did not apply because the lawsuit was not a meritless, retaliatory
SLAPP; instead, the plaintiff’s goal in the lawsuit was simply to obtain relief for the personal
damages he allegedly suffered. Id.
¶ 38 In the present case, the circuit court properly followed the analytic framework articulated
in Sandholm. Although it initially determined that the Act was applicable to Samoylovich’s
lawsuit, the circuit court recognized that the refinements promulgated by Sandholm had the
1
While Sandholm bifurcated the test into these two prongs, some subsequent courts have
trifurcated the analysis into the following prongs: (1) defendant must prove that its acts were in
furtherance of their right to petition, speak or associate, or otherwise participate in government to
obtain favorable government action; (2) defendant must prove that plaintiff’s claims are solely
based on, related to, or in response to the defendant’s acts; and (3) plaintiff must produce clear
and convincing evidence that the defendant’s were not genuinely aimed at solely procuring
favorable government action. E.g. Hammons, 2012 IL App (1st) 102644, ¶ 18 (citing Sandholm,
2012 IL 111443, ¶¶ 53-57). The reason for this organizational difference is that, prior to
Sandholm, courts required the movant to meet the diminished burden of demonstrating “only that
it had engaged in protected activity,” a burden which corresponds to the first of the three modern
prongs. Ryan, 2012 IL App (1st) 120005, ¶ 21 n.2 (citing Wright, 238 Ill. 2d at 635-36).
Sandholm added the additional requirement demanding that a defendant also show that plaintiff’s
claims are “ ‘solely based on, related to, or in response to the defendant[’s]’ ” furtherance of its
protected acts. Ryan, 2012 IL App (1st) 120005, ¶ 18 (quoting Hammons, 2012 IL App (1st)
102644, ¶ 18). Nevertheless, the two contemporary formulations are substantive equivalents as
the distribution of burdens of proof is identical between them.
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potential to alter its conclusion. After it requested additional briefing from the parties as to the
effects of Sandholm on Samoylovich’s claims, the circuit court reversed its decision and held
that the Act did not apply to bar the claims. In support of the reversal, the circuit court
acknowledged the addition to the defendant’s burden under Sandholm: a defendant must
establish that the claims are “solely based on, relating to, or in response to” a defendant’s
protected activities. Id. ¶ 45. Noting the effects of Samoylovich’s allegations that Montesdeoca
lied during the investigation and criminal trial, the circuit court reviewed the evidentiary
submissions and determined Montesdeoca had not met this additional burden. This ruling was in
harmony with the Sandholm analytic framework. See id. (holding that a plaintiff’s claims are not
solely based on, related to, or in response to defendants’ otherwise protected activities when
“plaintiff files suit genuinely seeking relief for damages” arising from the “tortious acts of
defendants” committed while engaged in those activities); see also, e.g., Capeheart, 2013 IL App
(1st) 122517, ¶ 16 (same) (citing Sandholm, 2012 IL 111443, ¶ 57). Accordingly, the circuit
court’s conclusion that Samoylovich’s lawsuit was not meritless or brought solely for the
purpose of retaliation comports with Sandholm.
¶ 39 Montesdeoca mischaracterizes other cases he cites as wrongly decided or as support for
the assertion that being meritless or retaliatory are not requirements under the Act. As already
established, a lawsuit is not meritless or retaliatory for the purposes of the Act when a defendant
fails to meet its burden under the Sandholm framework. See Sandholm, 2012 IL 111443, ¶¶ 56-
57; Hammons, 2012 IL App (1st) 102644, ¶ 18 (explaining that when defendants fail to
demonstrate that plaintiffs’ claims are “solely based on, related to, or in response to the
defendants’ ‘acts,’ ” the burden does not shift because such lawsuits are not “meritless,
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retaliatory SLAPP lawsuits, as those suits have traditionally been defined” (citing Sandholm,
2012 IL 111443, ¶¶ 42, 44-45, 47, 51, 53)).
¶ 40 Likewise, the circuit court’s ruling does not conflict with the outcomes of other SLAPP
cases. For instance, in Wright, which was decided before Sandholm, our supreme court found
that a defendant met his burden under the then-complete analytic framework when the gravamen
of the plaintiff’s defamation claim centered around allegedly defamatory statements made to the
press in an alderman’s office. Wright, 238 Ill. 2d at 635-36. The court reasoned that the
statements were in furtherance of the defendant’s right to speech, association, and petition or
otherwise participate in government because the Act’s protections extend to political expression
directed at the electorate in addition to public officials. Id. at 636. Unlike the present case, the
outcome in Wright turned on the plaintiff’s burden. The court determined that the plaintiff did
not meet its burden because it failed to rebut the defendant’s testimony that proved that the
allegedly defamatory statements were true. Id. at 637-38. As a result, by dismissing the lawsuit
under the Act, the Wright court implicitly concluded that plaintiff’s suit was a meritless,
retaliatory SLAPP. See id. at 633 (“[t]he purpose of the Act is to give relief, including monetary
relief, to citizens who have been victimized by meritless, retaliatory SLAPP lawsuits”).
Furthermore, cases like Ryan and Hammons also demonstrate that being meritless and retaliatory
are prerequisites for a lawsuit to be considered a SLAPP and thus dismissible under the Act. See
Ryan, 2012 IL App (1st) 120005, ¶¶ 20-21 (articulating the Sandholm test and equating the
satisfaction of this test with “affirmatively demonstrat[ing] that the nonmovant’s claim is a
SLAPP within the meaning of the Act, that is, that the claim is meritless and was filed in
retaliation against the movant’s protected activities”); Hammons, 2012 IL App (1st) 102644, ¶ 18
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(describing the Sandholm test as having the effect that, “[i]n other words, the Act only applies to
meritless, retaliatory SLAPP lawsuits, as those suits have traditionally been defined”).
¶ 41 E. The Circuit Court’s Ruling Comports With the Supreme Court’s Supervisory Order
¶ 42 In the alternative to the above, Montesdeoca argues that the circuit court erred by not
making particularized findings with respect to the merits of Samoylovich’s claims as they relate
to Montesdeoca individually. In sole support of this argument, Montesdeoca references the
Act’s ability to dispose of all or particular claims against all or particular defendants. However,
Montesdeoca fatally overlooks the differing standards governing motions to dismiss under
sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2012)).
¶ 43 At the outset, it is important to note that nothing in the supreme court’s supervisory order
requires an analysis other than what is habitually required under the Act. The order merely
directs this court “to allow the appeal with particularized consideration as to each defendant.”
By analyzing Montesdeoca’s motion under the Act, this court is giving “particularized
consideration” to his attempt to employ the Act’s protections to dismiss the claims Samoylovich
brought against him.
¶ 44 A defendant must bring a motion to dismiss under the Act through section 2-619(a)(9).
Garrido, 2013 IL App (1st) 120466, ¶ 21 (citing Sandholm, 2012 IL 111443, ¶ 54). While the
key question when deciding a section 2-615 motion to dismiss is “whether the plaintiff has
alleged sufficient facts which, if proved, would entitle the plaintiff to relief,” the standard for
deciding a 2-619(a) motion is different. Doe v. Chicago Board of Education, 339 Ill. App. 3d
848, 853 (2003), aff’d, 213 Ill. 2d 19 (2004) (citing Urbaitis v. Commonwealth Edison, 143 Ill.
2d 458, 475 (1991)). Instead of attacking the plaintiff’s complaint or prima facie case, “[a]
motion to dismiss under section 2-619(a) admits the legal sufficiency of the plaintiff’s claim but
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asserts certain defects or defenses outside the pleadings which defeat the claim.” Sandholm,
2012 IL 111443, ¶ 55. Courts should construe the pleadings and supporting documents in the
light most favorable to the nonmovant, accept all well-pleaded facts in plaintiff’s complaint, and
draw all reasonable inferences in the plaintiff’s favor. Id. Therefore, “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.” Garrido, 2013 IL App (1st) 120466, ¶ 21 (citing Sandholm, 2012 IL 111443,
¶ 55). However, if, under the second prong of the Sandholm analysis, a movant affirmatively
“disproves some essential element of the nonmovant’s claim,” the claim is meritless for the
purposes of the Act “because this shows the claim is factually baseless.” Garrido, 2013 IL App
(1st) 120466, ¶¶ 19, 23 (citing Wright, 238 Ill. 2d at 638).
¶ 45 Montesdeoca essentially argues that Samoylovich has not alleged sufficient facts to
support his claims for malicious prosecution and civil conspiracy. However, these are the
precise types of arguments that Montesdeoca has ceded by bringing a section 2-619(a)(9) motion
to dismiss. See Garrido, 2013 IL App (1st) 120466, ¶¶ 20, 22 (holding that a movant under the
Act could not challenge the adequacy of plaintiff’s allegations for damages or whether allegedly
defamatory statements fell under a recognized category of defamation per se when the standard
under section 2-619(a)(9) required the movant to concede the legal sufficiency of the complaint).
Even if his attacks raise issues for a trier of fact to resolve, Montesdeoca cannot prevail in this
motion because he has only undermined the factual support for Samoylovich’s claims without
affirmatively disproving any essential element. See Wright, 238 Ill. 2d at 638 (defamation claim
was meritless because movant demonstrated that the allegedly defamatory statement was
indisputably true); Garrido, 2013 IL App (1st) 120466, ¶ 24 (concluding that plaintiff’s claim
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was not meritless under the Act because defendant was unable to affirmatively disprove any
essential element of plaintiff’s defamation claim).
¶ 46 As a final argument, Montesdeoca points to what he asserts is Samoylovich’s
unsubstantiated, excessive damages request as proof that Samoylovich’s lawsuit against him is a
retaliatory SLAPP. It is true that some courts have recognized that extraordinarily high damages
coupled with a complete lack of any supporting substantiation may indicate that a claim is
brought for retaliatory purposes and thus constitutes a SLAPP. See, e.g., Hytel Group, Inc. v.
Butler, 405 Ill. App. 3d 113, 126 (2010). However, these cases have consistently required an
extraordinarily high amount of damages claimed, in the millions, which is an amount far greater
than that claimed by Samoylovich. For instance, in Butler, this court dismissed plaintiff’s
lawsuit under the Act in part because it determined that plaintiff’s unsubstantiated damages
totaling $4 million were intended “to strike fear into the defendant rather than being a good-faith
estimate of the extent of the injury sustained.” Id. However, the requested damages that the
Hytel court found odious were 8,000% higher than the minimum request for compensatory
damages at issue in the present case. Accordingly, the damages in this case do not rise to the
extraordinary high level of damages courts have recognized as indicating that a given lawsuit is a
retaliatory SLAPP. See id. (“a complaint seeking compensatory damages in the millions is one
hallmark of a SLAPP” (citing Mark J. Sobczak, SLAPPed in Illinois: The Scope and
Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 563 (2008))); see
also Jursich, 2013 IL App (1st) 113279, ¶ 29 (denying movant’s motion to dismiss under the Act
when, “rather than millions in damages, [claimant] *** sought an unspecified amount in
compensatory damages and exemplary damages”).
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¶ 47 IV. CONCLUSION
¶ 48 Montesdeoca failed to meet his burden or demonstrate that Samoylovich’s lawsuit against
him for malicious prosecution and civil conspiracy is a meritless, retaliatory SLAPP within the
meaning of the Act. The judgment of the circuit court of Cook County is affirmed.
¶ 49 Affirmed.
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