FIFTH 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

2 No. 1-12-1545

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,

, 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

5 No. 1-12-1545

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,

(citing Wright Development Group, LLC v. Walsh,

(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.,

. Statutory language must

not be viewed in isolation, but rather it must be considered holistically in light of the entire

statute (Sandholm,

) and in conjunction with other statutes addressing the

same or similar subjects. MQ Construction Co. v. Intercargo Insurance Co.,

(2000) (citing In re Application for Judgment & Sale of Delinquent Properties for the

Tax Year 1989,

(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.,

(quoting Carter,

). 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,

6 No. 1-12-1545

(citing MidAmerica Bank, FSB v. Charter One Bank, FSB,

(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,

. 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,

, ¶ 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,

(2004) (quoting Village of Lake Villa v. Bransley,

(2004)). Finally, “[t]hat which is implied in a statute is as much a part of it as that

which is expressed.” Grever,

(citing Baker v. Miller,

(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,

(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

7 No. 1-12-1545

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,

(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,

(“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,

(“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.,

(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,

)); Capeheart,

; Duracraft Corp. v. Holmes Products Corp.,

(Mass. 1998)

(“ ‘SLAPPs are by definition meritless suits.’ ” (quoting John C. Barker, Common-Law and

9 No. 1-12-1545

Statutory Solutions to the Problems of SLAPPs,

, 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,

(“[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,

(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).

10 No. 1-12-1545

¶ 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,

(“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,

)). 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,

. 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,

, 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,

). 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,

(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,

)); Garrido v. Arena,

(same) (citing Ryan,

).

¶ 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,

(citing Sandholm,

).

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

12 No. 1-12-1545

¶ 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,

(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

13 No. 1-12-1545

articulated by Sandholm and its progeny. See Hammons,

(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,

. 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.”

¶ 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’

14 No. 1-12-1545

acts are not immunized from liability under the Act.” Sandholm,

; 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,

. 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.

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,

(citing Sandholm,

). 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,

, ¶ 21 n.2 (citing Wright,

). 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,

(quoting Hammons,

). Nevertheless, the two contemporary formulations are substantive equivalents as the distribution of burdens of proof is identical between them.

15 No. 1-12-1545

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,

(same) (citing Sandholm,

). 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,

, ¶¶ 56-

57; Hammons,

(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,

16 No. 1-12-1545

retaliatory SLAPP lawsuits, as those suits have traditionally been defined” (citing Sandholm,

)).

¶ 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,

. 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.

. 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.

. 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

(“[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,

(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,

, ¶ 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,

(citing Sandholm,

). 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,

(2003), aff’d,

(2004) (citing Urbaitis v. Commonwealth Edison,

(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

18 No. 1-12-1545

asserts certain defects or defenses outside the pleadings which defeat the claim.” Sandholm,

. 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.

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,

(citing Sandholm,

). 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,

(citing Wright,

).

¶ 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,

(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,

(defamation claim

was meritless because movant demonstrated that the allegedly defamatory statement was

indisputably true); Garrido,

(concluding that plaintiff’s claim

19 No. 1-12-1545

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,

(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.”

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

(“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,

, 563 (2008))); see

also Jursich,

(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”).

20 No. 1-12-1545

¶ 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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