Garrido v. Arena

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.

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¶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))

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(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.

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¶ 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

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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

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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

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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.

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¶ 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.

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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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