                                  Illinois Official Reports

                                          Appellate Court



                      Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545



Appellate Court              BORIS SAMOYLOVICH, Plaintiff-Appellee, v. HENRY
Caption                      MONTESDEOCA, Defendant-Appellant (The City of Chicago, a
                             Municipal Corporation; Gilbert Ortiz, John Sebeck, and Edward
                             Wodnicki, Defendants).



District & No.               First District, Fifth Division
                             Docket No. 1-12-1545


Filed                        June 13, 2014


Held                         The trial court properly denied defendant’s motion to dismiss
(Note: This syllabus         plaintiff’s action seeking damages for malicious prosecution and civil
constitutes no part of the   conspiracy on the ground that the action was barred by the Citizen
opinion of the court but     Participation Act, commonly referred to as the SLAPP Act, since the
has been prepared by the     action was filed after plaintiff was acquitted of a criminal charge of
Reporter of Decisions        felony criminal damage to property in connection with an attempted
for the convenience of       burglary that defendant allegedly witnessed and testified about at
the reader.)                 plaintiff’s criminal proceedings, and defendant failed to show that the
                             action was a meritless action filed in retaliation for defendant’s
                             protected activities.




Decision Under               Appeal from the Circuit Court of Cook County, No. 10-L-5328; the
Review                       Hon. Eileen M. Brewer, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Douglas F. McMeyer, Hartwell P. Morse III, Rachel C. Casey, and
     Appeal                   Fredric E. Roth V, all of Husch Blackwell, LLP, of Chicago, for
                              appellant.



                              Jeffrey A. Garbutt, of Chepov & Scott, LLC, of Chicago, for appellee.


     Panel                    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 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) (supervisory order). 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


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       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
       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.
¶ 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.

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¶ 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 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 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)).




                                                   -4-
¶ 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, 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 of Illinois, 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 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,

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               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 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 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,

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       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).
¶ 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, ¶ 57)). 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 cannot necessarily infer that the plaintiff’s suit was meritless,
       retaliatory, or intended to prevent [defendant] from exercising his constitutional rights.

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       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
¶ 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).

                                                   -8-
       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 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’ acts are not immunized from liability under the Act.”
       Sandholm, 2012 IL 111443, ¶ 56; see 735 ILCS 110/20(c) (West 2012).1

           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

                                                        -9-
¶ 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.
       ¶ 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
       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. (Emphasis in original.) 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, 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

       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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       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 (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 asserts certain defects or defenses outside the pleadings which defeat the claim.”
       Sandholm, 2012 IL 111443, ¶ 55. Courts should construe the pleadings and supporting

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       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 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


                                                   - 12 -
       damages”).

¶ 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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