                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Garrido v. Arena, 2013 IL App (1st) 120466




Appellate Court            JOHN GARRIDO, Plaintiff-Appellant, v. JOHN ARENA, CITIZENS TO
Caption                    ELECT JOHN ARENA, CHICAGO FEDERATION OF LABOR & IUC,
                           COMCAST CORPORATION, SERVICE EMPLOYEES
                           INTERNATIONAL UNION ILLINOIS COUNCIL PAC, and UNITE
                           HERE LOCAL 1, Defendant-Appellees.



District & No.             First District, Second Division
                           Docket No. 1-12-0466


Filed                      June 18, 2013


Held                       The trial court erred in dismissing plaintiff’s defamation action based on
(Note: This syllabus       defendants’ ads against plaintiff’s candidacy for a position as an alderman
constitutes no part of     on the ground that the action was barred by the Citizen Participation Act,
the opinion of the court   since defendants failed to show that plaintiff’s claims were meritless and
but has been prepared      therefore did not meet their burden of proving that the suit was a
by the Reporter of         “SLAPP” action, but the cause was remanded for consideration of the
Decisions for the          other grounds for dismissal asserted by defendants.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-L-4012; the Hon.
Review                     Michael R. Panter, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded with directions.
Counsel on                  Lawrence Wolf Levin and Michelle M. Truesdale, both of Law Offices
Appeal                      of Lawrence Wolf Levin, of Chicago, for appellant.

                            David T. Arena, of Dimonte & Lizak, LLC, of Park Ridge, for appellees
                            John Arena and Citizens to Elect John Arena.

                            Laurence E. Gold, of Trister, Ross, Schadler & Gold, PLLC, of
                            Washington, D.C., for appellee Unite Here Local 1.

                            Michael J. Kasper, of Chicago, Michael Kreloff, of Glenview, and Sally
                            H. Saltzberg, of Lake Barrington, for appellee Service Employees
                            International Union Illinois Council PAC.

                            Douglas N. Masters, Thomas P. Jirgal, and Stacy A. Howard, all of Loeb
                            & Loeb LLP, of Chicago, for appellee Comcast Corporation.


Panel                       JUSTICE CONNORS delivered the judgment of the court, with opinion.
                            Justices Quinn and Simon concurred in the judgment and opinion.



                                              OPINION

¶1          Plaintiff John Garrido lost the 2011 aldermanic election for Chicago’s 45th Ward to
        defendant John Arena, who was backed in the campaign by the remaining defendants (with
        the exception of defendant Comcast Corporation). During the campaign, defendants
        disseminated campaign literature and advertisements that contained what plaintiff claims are
        outright lies. After losing the election, plaintiff filed this defamation lawsuit, but the circuit
        court dismissed the case under the Citizen Participation Act (735 ILCS 110/1 et seq. (West
        2010)). We reverse and remand.

¶2                                      I. BACKGROUND
¶3          In 2011, plaintiff and Arena competed in a runoff election to become alderman for the
        45th Ward. The campaign was hard fought and the election was extremely close, with Arena
        winning by only 30 votes in the official final tally. During the campaign, several
        organizations distributed campaign advertisements in support of Arena. Four of those
        organizations are defendants in this case: Service Employees International Union Illinois
        Council PAC (SEIU), Chicago Federation of Labor & UIC (CFL), Unite Here Local 1 (Local
        1), and Citizens to Elect John Arena (CEJA). The fifth, defendant Comcast Corporation, is
        the parent company of the broadcaster that carried one of SEIU’s television advertisements.

                                                   -2-
¶4       Plaintiff and Arena each won a plurality of the votes in the February 2011 general
     municipal election, but because neither won more than 50% of the total votes they were
     scheduled to compete in a runoff election to be held in April 2011. Arena and his supporters
     ran television advertisements and sent out direct mailings to the electorate in the hope of
     winning voters to their side. Some of the ads and mailings painted an unflattering picture of
     plaintiff.
¶5       Seven of these mailings and one television advertisement are at issue in this case. The
     ads presented two core allegations against plaintiff. First, the ads alleged that plaintiff had
     received money from a parking meter company that was involved in a highly publicized and
     much-debated privatization deal with the city of Chicago in early 2009. The ads essentially
     alleged that plaintiff had taken money from the company and insinuated that he had profited
     from the deal. For example, CFL sent out a mailer that featured plaintiff’s picture
     superimposed over a parking meter alongside the words, “We pay. Republican John Garrido
     profits.” Another ad from the same mailer contained the headline, “John Garrido Takes
     Money from Parking Meter Company. We Pay the Price.” An ad sent out by SEIU stated,
     “Republican John Garrido took money from the company that brought us the parking meter
     deal.” Another ad from CEJA claimed, “Republican John Garrido took campaign
     contributions from a firm that profited from the private parking meter deal.” The same
     allegation appeared verbatim in an ad sponsored by Local 1.
¶6       Second, the ads alleged that, if elected, plaintiff would draw two municipal pension
     checks: one for his work as alderman and another for his previous career as a Chicago police
     officer, a practice that the parties refer to as “double dipping.” The ads also implied that the
     practice was corrupt, or at least led to corruption. For example, one SEIU ad began, “If
     Republican John Garrido is elected, he will draw two city pensions–and you’ll pay for both
     of them!” The ad continued, “With scandal after scandal plaguing our city, the last thing we
     need is another double-dipping, pension padding politician on the City Council.” The other
     side of the mailer read, “After all the corruption scandals we’ve had, do we really want to
     give more tax dollars to John Garrido?” Another SEIU mailer featured the same allegations,
     with the reverse side featuring the headline “CORRUPTION,” under which it stated, “City
     Hall’s patronage and corruption take enough from us already. Do we really want to add
     another double-dipper to the mix?” Several other SEIU mailers made identical allegations.
¶7       Political considerations aside, plaintiff’s chief complaint about these allegations is that,
     in his view, they were false. According to plaintiff’s complaint, he never took any money
     from LAZ Parking, which is the primary company that was involved in the privatization deal.
     Moreover, plaintiff claims that he could not receive an aldermanic pension until he had
     served as an alderman for at least 10 years. Plaintiff sent several cease-and-desist letters to
     the various defendants asking them to stop disseminating what he considered to be false
     information, but the defendants declined to do so. After he lost the election, plaintiff filed
     this lawsuit, alleging defamation per se and per quod, as well as false light, seeking a
     minimum of $300,000 per count.
¶8       Defendants moved to dismiss, raising numerous grounds under sections 2-615 and 2-619
     of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2010)). The defendants also
     moved to dismiss under the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2010))

                                               -3-
       (the Act). After full briefing by all parties, the circuit court found that the Act barred
       plaintiff’s claims and dismissed the complaint. Plaintiff appealed.

¶9                                         II. ANALYSIS
¶ 10                                        A. Jurisdiction
¶ 11        Before reaching the merits, we must first discuss the issue of our jurisdiction over this
       case, which defendants have questioned due to a procedural irregularity in the circuit court.
       After the circuit court entered its judgment on September 16, 2011, plaintiff filed what
       purported to be a petition to vacate the judgment pursuant to section 2-1401 of the Code of
       Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Plaintiff filed his petition on October 7,
       2011, less than 30 days after the judgment. But section 2-1401 petitions can only be filed
       more than 30 days after the date of judgment, which is when the judgment becomes final. See
       In re Haley D., 2011 IL 110886, ¶ 66. Realizing his mistake, plaintiff sought leave to amend
       his motion to reflect the correct statute, which is section 2-1203 (735 ILCS 5/2-1203 (West
       2010)). The circuit court granted plaintiff’s request to amend and plaintiff filed the amended
       motion on October 31, 2011. The circuit court ultimately denied the motion in an order on
       January 11, 2012. Plaintiff twice moved to reconsider but the circuit court declined in an
       order dated February 7, 2012, and plaintiff filed his notice of appeal on February 9, 2012.
¶ 12        Defendants now contend that plaintiff’s notice of appeal was untimely because he did not
       file a proper postjudgment motion within 30 days of the judgment. See Ill. S. Ct. R. 303(a)(1)
       (eff. June 4, 2008). In defendants’ view, plaintiff’s original section 2-1401 motion was
       untimely because he filed it less than 30 days after judgment and his section 2-1203 motion
       was untimely because it was filed more than 30 days after judgment. Without a timely
       postjudgment motion, defendants argue, the time to file a notice of appeal ran 30 days after
       the September 9 judgment, making plaintiff’s notice of appeal about five months late.
¶ 13        Defendants misconstrue both the nature of plaintiff’s postjudgment filings and the
       standard by which the circuit court must evaluate postjudgment motions. Although
       defendants characterize plaintiff’s October 31 section 2-1203 motion as an improper
       “second” postjudgment motion, the record shows that it was not. Rather, the new motion
       merely corrected the relevant statutory citations in the first motion. More importantly, even
       had plaintiff not filed an amended motion, the circuit court would in any event have been
       required to evaluate plaintiff’s original October 7 motion under the correct section of the
       statute. See In re Haley D., 2011 IL 110886, ¶ 67 (“[T]he character of the pleading should
       be determined from its content, not its label. Accordingly, when analyzing a party’s request
       for relief, courts should look to what the pleading contains, not what it is called.”). The only
       important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion
       within 30 days of the judgment, which tolled the time for filing a notice of appeal until the
       circuit court resolved the motion. See Ill. S. Ct. R. 303(a)(1) (eff. June 4, 2008). The circuit
       court did so when it denied plaintiff’s postjudgment motion on January 11, and plaintiff filed
       his notice of appeal within 30 days of that order. The notice of appeal was therefore timely
       and we have jurisdiction over this case.



                                                 -4-
¶ 14                                B. Citizen Participation Act
¶ 15       The primary question in this case is whether the Act bars plaintiff’s claims against
       defendants. The Act is designed to protect defendants from what are termed “Strategic
       Lawsuits Against Public Participation” (SLAPPs), which are “meritless lawsuit[s] utilized
       to retaliate against a party for attempting to participate in government by exercising first
       amendment rights such as the right to free speech or the right to petition.” Chicago Regional
       Council of Carpenters v. Jursich, 2013 IL App (1st) 113279, ¶ 15. “A SLAPP plaintiff’s goal
       is achieved not by success on the merits but by forcing defendants to expend funds on
       attorney fees and litigation costs, thus discouraging them from pursuing their protests.” Id.
       To combat SLAPPs, the Act provides for expedited discovery and hearings on motions to
       dismiss a case under the Act and awards of attorney fees and costs for successful movants.
       See 735 ILCS 110/20, 25 (West 2010). A motion to dismiss a complaint based on immunity
       under the Act is generally brought under section 2-619(a)(9) of the Code of Civil Procedure
       (735 ILCS 5/2-619(a)(9) (West 2010)). See Sandholm v. Kuecker, 2012 IL 111443, ¶ 54.
¶ 16       SLAPPs are, however, very hard to distinguish from ordinary lawsuits. See Sandholm,
       2012 IL 111443, ¶ 35 (“SLAPPs masquerade as ordinary lawsuits and may include myriad
       causes of action, including defamation, interference with contractual rights or prospective
       economic advantage, and malicious prosecution.” (Internal quotation marks omitted.)). There
       is a three-step analysis for determining whether a claim is in fact a SLAPP and should be
       dismissed under the Act:
           “(1) the movant’s acts were in furtherance of his right to petition, speak, associate, or
           otherwise participate in government to obtain favorable government action; (2) the
           nonmovant’s claims are solely based on, related to, or in response to the movant’s acts
           in furtherance of his constitutional rights; and (3) the nonmovant fails to produce clear
           and convincing evidence that the movant’s acts were not genuinely aimed at solely
           procuring favorable government action.” Jursich, 2013 IL App (1st) 113279, ¶ 17.
       The movant bears the burden of proof under the first two prongs of the test, after which the
       burden shifts to the nonmovant. See Ryan v. Fox Television Stations, Inc., 2012 IL App (1st)
       120005, ¶¶ 21, 30.
¶ 17       The first prong of the analysis is the most straightforward. Cf., e.g., Ryan, 2012 IL App
       (1st) 120005, ¶ 19 (televised investigatory news report); Hammons v. Society of Permanent
       Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 22 (Internet message-board posting).
       In fact, the parties here agree that defendants’ actions were in furtherance of their first
       amendment rights to “petition, speak, associate, or otherwise participate in government”
       because the ads and mailers were an attempt to communicate with potential voters in a
       political election. The Act itself defines “government” to include a “public authority
       including the electorate.” 735 ILCS 110/10 (West 2010). We have no trouble concluding that
       defendants’ ads and mailers are a protected activity under the Act.
¶ 18       As we have noted in previous cases, however, merely because a defendant’s activity is
       protected by the Act does not automatically mean that a plaintiff’s claims must be dismissed
       under the Act. See Ryan, 2012 IL App (1st) 120005, ¶ 20. In order to carry their burden under
       the second prong, defendants “must affirmatively demonstrate that the [plaintiff’s] claim is


                                                -5-
       a SLAPP within the meaning of the Act, that is, that the claim is meritless and was filed in
       retaliation against the [defendants’] protected activities in order to deter the [defendants]
       from further engaging in those activities.” Id. ¶ 21; see also Jursich, 2013 IL App (1st)
       113279, ¶ 20.
¶ 19        How to prove that a claim is “meritless” and “retaliatory” for the purpose of the Act is
       the central question in this case. The Act itself does not expressly contain this requirement,
       and the second prong of the test originated in Sandholm, which did not define these terms.
       See generally Ryan, 2012 IL App (1st) 120005, ¶¶ 20-21 (discussing Sandholm). Cases since
       Sandholm, however, have examined the issue and provide some guidance. A claim is not
       “meritless,” for example, merely because the complaint is subject to dismissal under section
       2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). See Ryan, 2012 IL
       App (1st) 120005, ¶ 22 (noting that Sandholm made clear that immunity based on the Act
       is an affirmative matter that is properly brought under section 2-619 rather than section 2-
       615); see also Hammons, 2012 IL App (1st) 102644, ¶ 21. However, a claim is “meritless”
       if a movant disproves some essential element of the nonmovant’s claim. See, e.g., Wright
       Development Group, LLC v. Walsh, 238 Ill. 2d 620, 638 (2010) (plaintiff’s defamation claim
       was meritless because defendant showed that allegedly defamatory statement was actually
       true); see also Ryan, 2012 IL App (1st) 120005, ¶ 29 (discussing Wright).
¶ 20        This is an important distinction that warrants discussion. The term “meritless” is often
       used loosely to describe any unsuccessful legal claim or theory, but in the context of a
       SLAPP it is a term of art and means something more. A SLAPP is not intended to make an
       injured plaintiff whole, but is instead meant only to hurt the defendant through “delay,
       expense, and distraction.” Sandholm, 2012 IL 111443, ¶ 44; see also Ryan, 2012 IL App (1st)
       120005, ¶ 13 (“[T]he defendants in such cases can be financially devastated by the costs of
       defending the suit or deterred into silence by the threat of the enormous monetary damages
       demanded by the plaintiffs.”). The Act is expressly designed to bar only those lawsuits that
       try to abuse the justice system by bringing unfounded claims in retaliation against defendants
       who legitimately exercise their first amendment rights, while simultaneously preserving the
       right of individuals to file lawsuits for real injuries. See 735 ILCS 110/5 (West 2010). Yet
       it is impossible to determine whether a lawsuit is a SLAPP based solely on the face of the
       complaint because, when considering a motion to dismiss under section 2-615, we must
       presume that all well-pled facts in the complaint are true. Indeed, section 2-615 is concerned
       only with the legal sufficiency of the complaint’s allegations (see, e.g., Country Mutual
       Insurance Co. v. Olsak, 391 Ill. App. 3d 295, 301-02 (2009)), not with the factual question
       of whether the lawsuit was filed for the improper purpose of retaliating against a defendant
       for exercising some first amendment right.
¶ 21        This need to examine facts outside of the complaint is why the supreme court has
       specified that a motion to dismiss under the Act must be brought under section 2-619(a)(9)
       rather than section 2-615. See Sandholm, 2012 IL 111443, ¶ 54. The practical effect of this
       requirement is that a claim that may be legally insufficient under section 2-615 cannot be
       considered “meritless” for the purpose of the Act because a motion under section 2-619(a)(9)
       necessarily concedes the legal sufficiency of that same claim. See id. ¶ 55.
¶ 22        In this case, most of defendants’ argument that plaintiff’s claim is meritless is based on

                                                -6-
       perceived pleading deficiencies in the complaint. For example, defendants contend that
       plaintiff’s alleged failure to adequately allege damages with particularity in support of his
       defamation per quod claim proves that his claim is meritless and retaliatory. See, e.g.,
       Naleway v. Agnich, 386 Ill. App. 3d 635, 638-39 (2008) (“In an action for defamation per
       quod, the plaintiff must plead and prove actual damages in order to recover.”). Similarly,
       defendants contend that the allegedly defamatory statements do not fall into any of the
       recognized categories for defamation per se. See id. at 639 (listing the five types of statement
       that are defamatory per se). But by seeking to dismiss plaintiff’s complaint pursuant to the
       Act under section 2-619(a)(9), defendants have conceded that plaintiff’s complaint is legally
       sufficient. They accordingly cannot rely on these alleged pleading defects in order to carry
       their burden of proving that this case is a SLAPP.
¶ 23       But the situation is different when an essential element of the plaintiff’s claim is
       affirmatively disproven because this shows the claim is factually baseless. In Wright, for
       example, the defendant showed that the allegedly defamatory statement was actually true.
       See Wright, 238 Ill. 2d at 638. Because falsity is an essential element of defamation, this was
       the key factor that the supreme court relied on in determining that the plaintiff’s defamation
       claim was meritless. See Ryan, 2012 IL App (1st) 120005, ¶ 29 (discussing Wright).
¶ 24       Here, however, defendants effectively concede that the statements regarding double
       dipping are not actually true. Indeed, it would be hard to argue otherwise, given that the
       record clearly establishes that while plaintiff could theoretically receive both an aldermanic
       pension as well as his police pension at some point in the future, he would not even be
       eligible for an aldermanic pension until he had served as alderman for 10 years, an event that
       is not only speculative but that would be contingent on plaintiff winning at least two
       additional four-year terms as alderman. This is a far cry from the mailers’ assertion that “[i]f
       [plaintiff] is elected, he will draw two city pensions.” The record also provides no support
       for defendants’ contention that the statements about the parking-meter deal are actually true.
       There is no evidence that plaintiff received campaign contributions from either LAZ Parking,
       which is the company responsible for the privatization deal, nor any evidence that he
       personally profited from the deal. Instead, defendants point to two $500 campaign
       contributions that plaintiff received from Juan Gaytan, who is the owner of a company called
       Monterrey Security, which was hired as a subcontractor to LAZ Parking. Yet the ads and
       mailers claimed that plaintiff “took money from the company that brought us the parking
       meter deal,” and that he “took campaign contributions from a firm that profited from the
       private parking meter deal.” Neither of these statements is actually true, given that the only
       campaign contributions that defendants have identified were individual contributions from
       Gaytan rather than corporate contributions from LAZ Parking or even Monterrey. Moreover,
       defendants have provided no evidence at all for the mailers’ assertion that plaintiff profited
       from the parking-meter deal.
¶ 25       Even though defendants cannot show that the statements are actually true, they argue that
       the statements are nonetheless protected by several affirmative defenses. Defendants contend
       that they cannot be liable in this case because the statements were substantially true or are



                                                 -7-
       conditionally privileged under the first amendment,1 both of which are affirmative defenses.2
       See Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 371 (1996) (“A
       defendant bears the burden of establishing the ‘substantial truth’ of his assertions ***.”);
       Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 870 (1995) (“Privilege is regarded
       as an affirmative defense ***.”). Defendants contend that because they are immune from
       liability due to these defenses, plaintiff’s claim is therefore meritless.
¶ 26       This argument squarely raises an issue that we left unsettled in Ryan: does an adequately
       proven affirmative defense render a claim “meritless” within the meaning of the Act? See
       Ryan, 2012 IL App (1st) 120005, ¶ 28 n.4. For the sake of argument, let us assume that
       defendants can prove that the allegedly defamatory statements are conditionally privileged
       because they are constitutionally protected under the first amendment. What does that say
       about the validity of plaintiff’s claim? A successful affirmative defense merely “avoid[s] the
       legal effect of or defeat[s] the cause of action set forth in the complaint.” 735 ILCS 5/2-
       613(d) (West 2010). In fact, “[t]he defense of privilege rests upon the idea ‘that conduct
       which otherwise would be actionable is to escape liability because the defendant is acting in
       furtherance of some interest of social importance, which is entitled to protection even at the
       expense of uncompensated harm to the plaintiff’s reputation.’ ” (Emphasis added.) Krueger
       v. Lewis, 342 Ill. App. 3d 467, 473 (2003) (quoting Prosser and Keeton on Torts § 114, at
       815 (W. Page Keeton et al. eds. 5th ed. 1984)). This is true of affirmative defenses in
       general, which evolved from the common-law plea of confession and avoidance and “which,
       as the term indicates, confessed the validity of the plaintiff’s prima facie case but asserted
       new matter which avoided its legal effect.” (Emphases added.) (Internal quotation marks
       omitted.) Roy v. Coyne, 259 Ill. App. 3d 269, 281 (1994).


               1
                Defendants actually raise two separate arguments in their briefs, contending that they are
       immune from liability because (1) plaintiff is a public figure and he failed to adequately allege
       malice in the complaint, or alternatively (2) the statements were constitutionally protected opinion.
       Both of these contentions are merely aspects of the same qualified privilege under the first
       amendment. See generally Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381
       (2008) (constitutional privilege); Naleway, 386 Ill. App. 3d at 639-40 (affirmative defenses to
       defamation).
               2
                 There is a quirk of defamation law that it is important to be aware of here. Most cases state
       that one of the elements of a defamation claim is that “the defendant made an unprivileged
       publication of that [defamatory] statement to a third party.” (Emphasis added.) Solaia Technology,
       LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). But this is misleading. Because
       privilege is an affirmative defense, “there is no need for a plaintiff to plead facts showing that a
       communication is not privileged in order to properly allege a cause of action for defamation.” Quinn,
       276 Ill. App. 3d at 870; see also Restatement (Second) of Torts § 613(2) (1977) (defendant has “the
       burden of proving, when the issue is properly raised, the presence of the circumstances necessary
       for the existence of a privilege to publish the defamatory communication”). Thus, although
       publication to a third party is an essential element of a prima facie defamation claim, lack of
       privilege is not because the plaintiff must prove lack of privilege only in the event that the defendant
       raises that particular affirmative defense.

                                                     -8-
¶ 27       The emphasized language above is crucial because it means that an affirmative defense
       does not prove that a plaintiff’s claim is meritless, but instead merely allows a defendant to
       avoid the legal consequences of a real injury to the plaintiff. Yet when determining whether
       a particular claim is a SLAPP, our analysis must remain focused only on the validity of the
       plaintiff’s claim (see Sandholm, 2012 IL 111443, ¶ 53), not whether a defendant can escape
       liability for an otherwise meritorious claim by proving an affirmative defense. A real injury
       that the law provides a legal remedy for cannot be considered meritless, so we cannot
       presume that a successful affirmative defense renders a claim for such an injury “meritless”
       within the meaning of the Act. Thus, even if defendants can prove that the allegedly
       defamatory statements at issue in this case are substantially true or are constitutionally
       privileged, they still cannot carry their burden of showing that plaintiff’s claim is meritless.
¶ 28       With that in mind, the only remaining way for defendants to prove that plaintiff’s claim
       is meritless within the meaning of the Act is by disproving some essential element of
       plaintiff’s prima facie case.3 See Ryan, 2012 IL App (1st) 120005, ¶ 29. To establish a prima
       facie defamation claim, a plaintiff must show that a defendant publicized a false statement


               3
                  We have noticed an interesting procedural analogy that is worth mentioning, though we will
       not analyze it in depth here because other deficiencies in defendants’ motion are sufficient to sustain
       our judgment. Because Sandholm requires us to focus solely on the validity of the plaintiff’s claim,
       “meritless” and “retaliatory” in the context of SLAPPs may mean something akin to the analytical
       standard for imposing sanctions under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). Under
       that rule, a pleading is sanctionable if it is not “well grounded in fact” or warranted by existing law
       or a good-faith argument for the extension, modification, or reversal of existing law,” and is
       “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
       increase in the cost of litigation.” Ill. S. Ct. R. 137 (eff. Feb. 1, 1994); cf. also People v. Hodges, 234
       Ill. 2d 1, 11-17 (2009) (analyzing a comparable standard that applies to first-stage postconviction
       petitions). The purpose of Rule 137 is also very similar to that of the Act:
                “The purpose of the rule is to prevent abuse of the judicial process by penalizing claimants
                who bring vexatious and harassing actions based upon unsupported allegations of fact or
                law. It is not intended to simply penalize litigants for the lack of success; rather, its aim is
                to restrict litigants who plead frivolous or false matters without any basis in law.” (Emphasis
                added.) Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074
                (1995).
       Of course, there are distinct differences between how Rule 137 and the Act are applied. Rule 137
       applies to all legal actions but the Act applies only to actions that involve first amendment activities.
       Moreover, even if a litigant can prove that the other party violated Rule 137, the circuit court has
       discretion over whether to impose sanctions for the violation. See id. In contrast, if a litigant proves
       that the other party’s claim is a SLAPP and the other party fails to carry its own burden, then the
       circuit court must dismiss the claim and impose the penalties specified in the Act. See 735 ILCS
       110/20(c), 25 (West 2010). The two motions therefore serve slightly different purposes and have
       slightly different procedures. Still, the analytical framework for evaluating a motion for Rule 137
       sanctions may be useful for evaluating whether a claim is meritless and retaliatory under the Act.
       We take no position on that question one way or the other in this case, but it may be a useful line of
       inquiry in future cases given the current paucity of case law interpreting Sandholm’s analytical
       framework for motions brought under the Act.

                                                      -9-
       that damaged the plaintiff’s reputation. See Maxon v. Ottawa Publishing Co., 402 Ill. App.
       3d 704, 715 (2010). Damages are presumed if the statement was defamatory per se. See id.
       In this case, plaintiff has pled both defamation per se and per quod. Yet defendants concede
       the publication element, and they have offered no affirmative evidence showing that the
       statements were either actually true or did not damage plaintiff’s reputation. Regarding the
       damages element, defendants merely argue that the complaint did not allege sufficient facts
       to support damages (in the case of defamation per quod), or that the statements are not
       defamatory per se. But these arguments implicate only the sufficiency of plaintiff’s
       complaint, which defendants have conceded for the purpose of a motion to dismiss under
       section 2-619(a)(9).
¶ 29       The same is true of plaintiff’s false light claim. The elements for a false light claim are
       that “(1) the plaintiff[ ] [was] placed in a false light before the public as a result of the
       defendants’ actions; (2) the false light in which the plaintiff[ ] [was] placed would be highly
       offensive to a reasonable person; and (3) the defendants acted with actual malice, that is, with
       knowledge that the statements were false or with reckless disregard for whether the
       statements were true or false.” Kirchner v. Greene, 294 Ill. App. 3d 672, 682 (1998). But
       defendants do not offer any evidence showing that any of these elements cannot be met.
       Instead, they only assert that the claim must fail because plaintiff’s defamation claims are
       insufficient, or they quibble with whether the complaint alleges sufficient facts. Neither
       argument is sufficient to carry their burden under the Act.
¶ 30       Defendants have therefore not demonstrated that plaintiff’s claims are meritless and thus
       have not carried their burden of proving that his lawsuit is a SLAPP. The circuit court was
       therefore incorrect4 to dismiss the complaint under the Act. Based on this finding, we need
       not consider whether defendants have shown that plaintiff’s lawsuit was retaliatory, nor
       whether plaintiff has met his own burden to show that defendants’ actions “were not
       genuinely aimed at solely procuring favorable government action.”
¶ 31       The circuit court dismissed this case based only on its finding that the Act barred
       plaintiff’s claims. Defendants raised a number of other grounds to dismiss the complaint
       under sections 2-615 and 2-619, but the circuit court did not reach any of these alternatives.
       With one exception, which we discuss below, we therefore remand this case for
       consideration of the remainder of defendants’ motions to dismiss.

¶ 32                          C. Personal Jurisdiction Over Comcast
¶ 33       Because the circuit court did not rule on the alternative grounds raised in defendants’
       motions to dismiss, we think it is appropriate to remand this case so that the circuit court can
       consider and rule on each of those issues in the first instance. But there is one issue regarding
       defendant Comcast that, in the interests of judicial efficiency, we will resolve now. See Ill.


               4
               Although the circuit court’s judgment was incorrect, it is important to note that the circuit
       court made its ruling before the supreme court issued Sandholm and changed the analysis for
       dismissal under the Act. The circuit court’s memorandum order was in all other respects an excellent
       and well-reasoned application of the law as it stood before Sandholm.

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       S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994).
¶ 34        In its original motion to dismiss before the circuit court and again on appeal, Comcast
       argued that the circuit court did not have personal jurisdiction over Comcast. See 735 ILCS
       5/2-301 (West 2010). The circuit court did not reach this issue, choosing instead to defer
       adjudication on personal jurisdiction until after resolving the SLAPP portion of the motions
       to dismiss. In its motion, Comcast noted that, contrary to the complaint’s allegations,
       Comcast was not licensed to do business in Illinois, which was plaintiff’s sole basis for
       asserting long-arm jurisdiction over Comcast. Indeed, it appears that plaintiff has sued the
       wrong corporate entity. Comcast Corporation is merely a national holding company that does
       not do any business in Illinois. According to Comcast, the actual corporations that are
       responsible for delivery of cable advertisements in the target market for the election are
       Comcast of Florida/Illinois/Michigan, Inc., and Comcast Spotlight, LLC, both of which are
       subsidiaries of Comcast and are, in fact, Illinois entities.
¶ 35        A court cannot exercise personal jurisdiction over a parent corporate entity when the sole
       basis of jurisdiction is that a subsidiary of the parent does business in Illinois. See Palen v.
       Daewoo Motor Co., 358 Ill. App. 3d 649, 660 (2005). While it is possible to exercise
       personal jurisdiction over a foreign corporation that “is, in effect, doing business through its
       subsidiary due to the high amount of control exhibited over its subsidiary” (id.), that is not
       what plaintiff has alleged in this case. Instead, the sole basis in the complaint for jurisdiction
       over Comcast is that Comcast is “authorized to do business in the State of Illinois with a
       registered office in Chicago, Cook County, Illinois.” That is indisputably false, as Comcast
       pointed out in its motion and as can be easily confirmed via the Secretary of State’s corporate
       registration database. See Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App.
       3d 935, 938 (1998) (noting that “records from the Illinois Secretary of State’s office *** are
       public records that this court may take judicial notice of”). This would ordinarily be a factual
       dispute that must be resolved by the circuit court during a hearing on the motion (see 735
       ILCS 5/2-301(a), (d) (West 2010)), but plaintiff did not bother to address this issue in his
       response to Comcast’s motion to dismiss below, nor did he address it when Comcast
       mentioned it on appeal. Plaintiff has therefore conceded the point. See Ill. S. Ct. R. 341(h)(7)
       (eff. July 1, 2008).
¶ 36        Although the circuit court did not resolve this issue, “we may affirm the judgment of the
       trial court on any basis in the record, regardless of whether the trial court relied upon that
       basis or whether the trial court’s reasoning was correct.” Alpha School Bus Co. v. Wagner,
       391 Ill. App. 3d 722, 734 (2009). There is no jurisdictional basis for including Comcast in
       this case on remand, so we affirm the circuit court’s dismissal of the complaint as to
       Comcast.

¶ 37                                  III. CONCLUSION
¶ 38       We reverse the circuit court’s order dismissing the complaint as barred by the Citizen
       Participation Act (735 ILCS 110/1 et seq. (West 2010)), and we remand for consideration
       of the remainder of the grounds raised in defendants’ motions to dismiss. As to defendant
       Comcast only, we affirm the judgment of dismissal on the alternate ground of lack of


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       personal jurisdiction.

¶ 39      Affirmed in part and reversed in part; cause remanded with directions.




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