2014 IL App (1st) 121545

 FIFTH DIVISION

June 13, 2014

No. 1-12-1545

BORIS SAMOYLOVICH, ) 

)

Plaintiff-Appellee, ) Appeal from the

) Circuit Court of

v. ) Cook County, Illinois. 

)

HENRY MONTESDEOCA, ) 

) No. 10 L 5328

Defendant-Appellant )

)

(City of Chicago, a Municipal Corporation, ) Honorable

Gilbert Ortiz, John Sebeck, and Edward ) Eileen M. Brewer,

Wodnicki, ) Judge Presiding.

)

Defendants). )

JUSTICE TAYLOR delivered the judgment of the court, with opinion.

Justices McBride and Palmer concurred in the judgment and opinion.

O P I N I O N

¶ 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 
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that Montesdeoca allegedly witnessed and to which Montesdeoca testified during the related

criminal proceedings. 

¶ 4 In response to Samoylovich’s claims, Montesdeoca filed a section 2-619(a)(9) motion 

asserting immunity from liability under the Act. The circuit court denied the motion and 

Montesdeoca appealed to this court. Upon this court’s initial denial of the appeal, Montesdeoca 

filed a petition for leave to appeal to the Illinois Supreme Court, which denied the petition but

entered a supervisory order remanding the appeal to this court for resolution. Samoylovich v. 

City of Chicago, No. 114802 (Ill. Nov. 28, 2012). For the reasons that follow, we find that the 

circuit court properly denied Montesdeoca’s motion. 

¶ 5 II. BACKGROUND

¶ 6 On the evening of January 6, 2008, Montesdeoca allegedly witnessed an attempted breakin of two of his neighbors’ garages. Montesdeoca had been friends with one of these neighbors, 

Detective Gilbert Ortiz of the Chicago police department, and other members of his family for 

several years. During the commotion in connection with discovering the attempted break-in, 

Montesdeoca and Detective Ortiz allegedly witnessed Samoylovich enter a get-away vehicle and 

escape the scene. Montesdeoca obtained half of the license plate number of the fleeing vehicle, 

while Detective Ortiz obtained the entire number. 

¶ 7 After running the license plate number in the Law Enforcement Agencies Data System

(LEADS), the Chicago police obtained the name “Boris Samoylovich” and an address for the

vehicle’s owner. The Chicago police then ran the name in the Illinois Citizen and Law 

Enforcement Analysis and Reporting database (ICLEAR), a system that stores data relating to 

criminal offenders in Illinois, and obtained Samoylovich’s name, photograph, and address. 

However, the addresses produced by LEADS and ICLEAR were different, a fact raising the 
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possibility that the two Boris Samoyloviches identified were not the same person, which in fact

they were not. The registered owner of the vehicle, who was identified in LEADS but not in 

ICLEAR, turned out to be an unrelated, older, deceased man whose widow had sold the car to a

neighbor on January 4, 2008. This neighbor had never seen nor did she know the Samoylovich

who is the plaintiff in the instant case.

¶ 8 Nevertheless, without looking into the ambiguity created by the different address listings, 

the Chicago police arrested Samoylovich at the home address listed in ICLEAR. However, the 

Chicago police were unable to locate the get-away vehicle. Montesdeoca and Detective Ortiz

then separately identified Samoylovich in a photo array and a lineup. No other evidence has 

been offered that connects Samoylovich to the incident other than Montesdeoca’s and Detective

Ortiz’s eyewitness statements and identifications, and there is no evidence that the Chicago 

police knew of the existence of the two Boris Samoyloviches when they arrested him.

¶ 9 By the time of the grand jury proceedings, which occurred on January 22, 2008, the 

Chicago police had become aware of the existence of the two Boris Samoyloviches through 

Valere Samoylovich, the deceased man’s son. At the grand jury, Detective John Sebeck, a 

detective who worked on the case and who is also a named defendant, testified that the Chicago 

police had believed that the older, deceased Boris Samoylovich was Samoylovich’s father. This 

belief is not documented in any record produced by the Chicago police during the investigation

nor was it confirmed by Valere Samoylovich. Later, at the criminal trial, Detective Sebeck 

claimed Samoylovich was the source of this information, though Samoylovich never confirmed 

making such an admission. The State’s Attorney subpoenaed Montesdeoca, who testified against 

Samoylovich at his criminal trial, the result of which was an acquittal.
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¶ 10 Following his acquittal, Samoylovich filed a second amended complaint on September 28, 

2011 against the city of Chicago, the officers involved, and Montesdeoca alleging malicious 

prosecution and civil conspiracy. For both counts, Samoylovich sought compensatory damages 

in excess of $50,000 to compensate him for being “publicly disgraced,” suffering “great anxiety 

and pain of body and mind,” and incurring defense costs and losses associated with being 

“hindered and prevented from attending to affairs, employment and business.”

¶ 11 On October 19, 2011, Montesdeoca filed a section 2-619(a)(9) motion to dismiss 

invoking the protections of the Act, which provides immunity for a defendant who has been 

victimized by a strategic lawsuit against public participation in government or the proper 

exercising of the defendant’s first amendment rights (a SLAPP). On December 14, 2011, the 

circuit court entered an order ruling that the Act was applicable to the case and permitting limited 

discovery to commence pursuant to the Act. However, on January 20, 2012, the Illinois 

Supreme Court issued its opinion in Sandholm v. Kuecker, 2012 IL 111443, a landmark case 

refining the proper analytical framework under the Act, and the circuit court immediately 

directed the parties to submit additional briefs to assess the impact of the decision on the facts of 

the present case. 

¶ 12 On May 2, 2012, after considering the briefing and evidentiary submissions, the circuit 

court reversed its initial decision and held that the Act did not apply to the present case. To 

support its ruling, the circuit court provided the following reasoning: 

“[T]his is clearly not a SLAPP suit, and I am denying Defendant’s motion to 

dismiss. Illinois law requires that the case be meritless and be brought solely for 

the purpose of retaliating against the Defendant for his activities in participating 

in government. This clearly isn’t the case in this case. *** I would be doing a 
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great disservice to the state of the law to actually grant this motion, and it would 

be clearly wrong. This wasn’t a hard one. This was actually pretty darn easy.”

¶ 13 Following the circuit court’s ruling, Montesdeoca filed a petition for leave to appeal to 

this court, which we denied on July 17, 2012. On November 28, 2012, Montesdeoca then filed a 

petition for leave to appeal to the Illinois Supreme Court, which denied the petition but entered a 

supervisory order directing this court to vacate its order and “to allow the appeal with 

particularized consideration as to each defendant.” 

¶ 14 III. ANALYSIS

¶ 15 On appeal, Montesdeoca contends that the circuit court contravened the Act and the 

concomitant Illinois case law when it denied his motion to dismiss Samoylovich’s complaint. 

Specifically, he argues that reading in the requirements that a SLAPP, as contemplated by the 

Act, be meritless and brought for the sole purpose of retaliation fails to comport with the plain 

text of the statute, which lacks this precise phrasing. Montesdeoca supplements this argument by 

claiming that reading in these requirements both renders the Act superfluous and imposes 

burdens on a defendant that defeat the purpose of the Act. In addition to attacking the circuit 

court’s ruling on statutory textual grounds, he also claims that the circuit court’s ruling is 

contrary to the body of Illinois case law that construes the Act. Finally, and in the alternative, 

Montesdeoca argues that the circuit court failed to consider the case individually against him 

according to the instructions contained in the Illinois Supreme Court’s supervisory order.

¶ 16 Samoylovich responds that the circuit court’s ruling is entirely consistent with the plain 

meaning of the statute and that the court properly followed the analytic framework delineated by 

the Act and accompanying Illinois case law. In support of his response, Samoylovich counters 

that Illinois law does require a SLAPP to be meritless and brought solely for the purpose of 
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retaliation if it is dismissed under the Act. Samoylovich also argues that the circuit court’s ruling

does not render the Act superfluous nor does it place any undue limitations on Montesdeoca.

¶ 17 A. Standard of Review

¶ 18 Because the circuit court based its denial of Montesdeoca’s motion on its interpretation 

and application of the Act, a question of law exists and a de novo standard of review applies. 

Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 13 

(citing Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 634 (2010)).

¶ 19 B. The Circuit Court’s Ruling Does Not Contravene the Act

¶ 20 The standards of statutory interpretation are firmly entrenched in Illinois. When 

construing a statute, the paramount rule of statutory interpretation directs courts “to ascertain and 

give effect to the intent of the legislature, the language of the statute being the best indicator of 

such intent.” Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37. Statutory language must 

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

statute (Sandholm, 2012 IL 111443, ¶ 41) and in conjunction with other statutes addressing the 

same or similar subjects. MQ Construction Co. v. Intercargo Insurance Co., 318 Ill. App. 3d 

673, 681 (2000) (citing In re Application for Judgment & Sale of Delinquent Properties for the

Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995)). Furthermore, Illinois courts should read statutes 

in a manner such that “no term is rendered ‘meaningless or superfluous.’ ” NAB Bank v. LaSalle 

Bank, N.A., 2013 IL App (1st) 121147, ¶ 10 (quoting Carter, 2012 IL 113204, ¶ 37). In addition, 

absent any textual ambiguities in a statute, courts should “not depart from that language by 

reading into the statute exceptions, limitations, or conditions that conflict with the legislature’s 

expressed intent.” 800 South Wells Commercial, LLC v. Horwood Marcus & Berk Chartered, 
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2013 IL App (1st) 123660, ¶ 12 (citing MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 

Ill. 2d 560, 565-66 (2009)).

¶ 21 However, “[l]egislative intent may be ascertained not only by examining the statutory 

language, but [also] by considering the reason and necessity for the law, the evils to be remedied, 

and the objects and purposes to be obtained.” Carter, 2012 IL 113204, ¶ 37. Moreover, courts 

should not permit “formality to trump substance where the result would be contrary to the 

purposes for which the statute was enacted and lead to consequences which the legislature could 

not have intended.” Township of Jubilee v. State, 2011 IL 111447, ¶ 35. To that end, “ ‘[c]ourts 

must avoid reading statutory language either too literally or too broadly’ ” when striving to 

effectuate legislative intent. Grever v. Board of Trustees of the Illinois Municipal Retirement

Fund, 353 Ill. App. 3d 263, 266 (2004) (quoting Village of Lake Villa v. Bransley, 348 Ill. App. 

3d 280, 284 (2004)). Finally, “[t]hat which is implied in a statute is as much a part of it as that 

which is expressed.” Grever, 353 Ill. App. 3d at 267 (citing Baker v. Miller, 159 Ill. 2d 249, 260 

(1994)). These implications may include judicially created tests that are read into statutory text

or conclusions gleaned from them. See Health Professionals, Ltd. v. Johnson, 339 Ill. App. 3d 

1021, 1038 (2003) (noting that the judicially created “rule of reason” test should be applied

under the Illinois Antitrust Act to determine whether the statutory standard, “unreasonably 

restrain trade or commerce,” has been violated despite no statutory mention of that test (internal 

quotation marks omitted)). 

¶ 22 Section 5 of the Act describes the public policy objectives that motivated the legislature 

to pass the Act. In this section, the legislature expressed alarm at the “disturbing increase in 

lawsuits termed ‘Strategic Lawsuits Against Public Participation’ in government or ‘SLAPPs’ as 

they are popularly called” and framed the Act as the legislative response to curb the deleterious 
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effects of SLAPP abuses. 735 ILCS 110/5 (West 2012). To determine whether a lawsuit 

qualifies as a SLAPP, thus activating the Act’s protective mechanisms, the legislature articulated 

a test, the first part of which is contained in section 15 of the Act: 

“This Act applies to any motion to dispose of a claim in a judicial proceeding on 

the grounds that the claim is based on, relates to, or is in response to any act or 

acts of the moving party in furtherance of the moving party’s rights of petition, 

speech, association, or to otherwise participate in government.” 735 ILCS 110/15 

(West 2012). 

Illinois courts have construed this passage as the first prong of a structured analytical framework, 

with the burden borne by the movant defendant. See, e.g., Sandholm, 2012 IL 111443, ¶ 56

(discussed below).

¶ 23 Montesdeoca argues that the circuit court ignored the text of the Act when it denied his 

motion on the basis that “Illinois law requires that the case be meritless and be brought solely for 

the purpose of retaliating against the Defendant for his activities in participating in government.” 

He claims that because the phrase “meritless” or “brought solely for the purpose of retaliating” 

does not explicitly appear in the text of the Act, the court erred when it denied him the 

protections afforded under the Act using these phrases to explain its reasoning. 

¶ 24 This court disagrees with Montesdeoca because he ignores the implicit subtext upon 

which the Act stands and which informs the Act’s understanding of what it means for a lawsuit 

to be a SLAPP. Rather than constructing a new definition of SLAPPs, the Act builds upon the 

existing, widely accepted, common law understanding. See 735 ILCS 110/5 (West 2012)

(identifying SLAPPs for the purposes of the Act as “ ‘Strategic Lawsuits Against Public 

Participation’ in government, or ‘SLAPPs’ as they are popularly called” (emphasis added)). In 
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Sandholm, the Illinois Supreme Court unambiguously acknowledged the Act’s reliance upon this 

common law understanding of SLAPPs. See Sandholm, 2012 IL 111443, ¶ 42 (“Looking at the 

statute in its entirety, it is clear that the legislation is aimed at discouraging and eliminating 

meritless, retaliatory SLAPPs, as they traditionally have been defined” (emphasis added)). 

Naturally, this interpretation, that the Act contemplates SLAPPs in their traditional, common law 

sense, has reverberated throughout the Illinois appellate districts. See, e.g., Capeheart v. Terrell, 

2013 IL App (1st) 122517, ¶ 12 (“Thus, as Sandholm explains, the Act only applies to meritless, 

retaliatory SLAPP lawsuits, as those suits have traditionally been defined.” (emphasis added));

Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶¶ 13-14 (recognizing that the 

legislature passed the Act to neutralize the pernicious effects of “[t]he traditional SLAPP 

paradigm” on defendants who have properly exercised their first amendment rights or their right 

to petition or participate in government).

¶ 25 The question then remains: what is the traditional, common law definition of a SLAPP? 

Montesdeoca claims that multiple definitions abound and vary widely, thus negating the absence

of merit and the lack of a retaliatory nature as essential features. However, a close inspection of 

the sources comprising the foundation of Illinois jurisprudence on the subject reveals that, while 

descriptions of the characteristics and effects of SLAPPs may vary somewhat, sources 

overwhelmingly define SLAPPS as meritless and retaliatory. See, e.g., id. ¶ 21 (explaining that 

for the purposes of the Act, a SLAPP claim is one that is “meritless and was filed in retaliation 

against the movant’s protected activities in order to deter the movant from further engaging in 

those activities” (citing Sandholm, 2012 IL 111443, ¶ 57)); Capeheart, 2013 IL App (1st) 

122517, ¶ 12; Duracraft Corp. v. Holmes Products Corp., 691 N.E. 2d 935, 941 (Mass. 1998) 

(“ ‘SLAPPs are by definition meritless suits.’ ” (quoting John C. Barker, Common-Law and 
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Statutory Solutions to the Problems of SLAPPs, 26 Loy. L.A. L. Rev. 395, 396 (1993))); 

Penelope Canan & George W. Pring, Strategic Lawsuits Against Public Participation, 35 Soc. 

Probs. 506, 506-07 (1988) (“[i]t is this political retaliation, through the law, that distinguishes 

SLAPPs from” other types of lawsuits). Even cases that do not expressly define SLAPPs in their 

analyses rely on these terms to define the central objective of the Act. See Wright, 238 Ill. 2d at 

633 (“[t]he purpose of the Act is to give relief, including monetary relief, to citizens who have 

been victimized by meritless, retaliatory SLAPP lawsuits”). 

¶ 26 With an understanding that the Act relies on this common law definition of SLAPPs, 

Sandholm formulated a test from sections 15 and 20 of the Act that determines whether a given 

lawsuit is a meritless and retaliatory, and thus a SLAPP for the purposes of the Act. Sandholm

reformulated the movant’s burden under the test in the following terms:

“In light of the clear legislative intent expressed in the statute to subject only 

meritless, retaliatory SLAPP suits to dismissal, we construe the phrase ‘based on, 

relates to, or is in response to’ in section 15 to mean solely based on, relating to, 

or in response to ‘any act or acts of the moving party in furtherance of the moving 

party’s rights of petition, speech, association, or to otherwise participate in 

government.’ ” (Emphasis in original.) Sandholm, 2012 IL 111443, ¶ 45

(quoting 735 ILCS 110/15 (West 2008)).

Requiring the movant to demonstrate that plaintiff’s lawsuit was solely “ ‘based on, relate[d] to, 

or [] in response to’ [their protected acts] *** allows a court to identify meritless SLAPP suits 

subject to the Act” (id. ¶ 48) to achieve the statutory goal of “discouraging and eliminating 

meritless, retaliatory SLAPPs, as they have traditionally been defined” (id. ¶ 42).
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¶ 27 Courts in this jurisdiction have applied the Sandholm standard to hold that where a 

defendant fails to show that a plaintiff’s suit is meritless and retaliatory, the defendant is not 

entitled to have the suit dismissed under the Act. For example, in Ryan, the court held that the 

method for proving that plaintiff’s lawsuit was a SLAPP under the Act was to establish that it 

was meritless and retaliatory through the Sandholm test. Ryan, 2012 IL App (1st) 120005, ¶ 21

(“To satisfy its burden under this prong of the test, a movant must affirmatively demonstrate that 

the nonmovant’s claim is a SLAPP within the meaning of the Act, that is, that the claim is 

meritless and was filed in retaliation against the movant’s protected activities ***” (citing 

Sandholm, 2012 IL 111443, ¶ 45)). The Ryan plaintiff, a circuit court judge, brought a 

defamation suit against Fox Television Stations for airing an investigative report stating that 

plaintiff left work early and went home on a number of days. Ryan, 2012 IL App (1st) 120005,

¶¶ 1, 5. In reviewing defendants’ motion to dismiss under the Act, the court found that 

plaintiff’s claim was not meritless, insofar as defendants could not show that the report was 

substantially true. Id. ¶¶ 26-29. Thus, defendants did not carry their burden under the Act and 

the trial court was right to deny their motion to dismiss. Id. ¶ 30.

¶ 28 Similarly, in Capeheart, 2013 IL App (1st) 122517, the court also affirmed the denial of 

defendant’s motion to dismiss under the Act where defendant failed to show that the lawsuit at 

issue was meritless and retaliatory. In Capeheart, plaintiff brought a defamation suit against 

defendant for falsely alleging that a student had filed a stalking complaint against her. Id. ¶¶ 3-4. 

The trial court dismissed plaintiff’s claims against defendant under the Act, but the Capeheart

court reversed the dismissal, explaining that “as Sandholm explains, the Act only applies to 

meritless, retaliatory SLAPP lawsuits, as those suits have traditionally been defined.” Id. ¶ 12

(citing Sandholm, 2012 IL 111443, ¶¶ 51-53). The court further stated, “Under these facts, we 
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cannot necessarily infer that the plaintiff’s suit was meritless, retaliatory, or intended to prevent 

[defendant] from exercising his constitutional rights. Accordingly, we find that [defendant] did 

not meet his burden of establishing that the plaintiff's suit constituted a SLAPP suit.” Id. ¶ 17.

¶ 29 The position articulated in Sandholm and applied in Ryan and in Capeheart is now firmly 

established in Illinois law. See, e.g., Chicago Regional Council of Carpenters v. Jursich, 2013 

IL App (1st) 113279, ¶ 20 (holding that in order to meet its burden under the Sandholm test, “the 

defendants were required to demonstrate affirmatively that [the plaintiff’s] suit was retaliatory 

and meritless” (citing Ryan, 2012 IL App (1st) 120005, ¶ 21)); Garrido v. Arena, 2013 IL App 

(1st) 120466, ¶ 18 (same) (citing Ryan, 2012 IL App (1st) 120005, ¶ 21).

¶ 30 In the present case, the circuit court’s reasoning was in harmony with the wellestablished interpretation of the Act: that, under Sandholm, dismissal is not proper where 

defendant cannot show that a claim is a meritless, retaliatory SLAPP as contemplated by the Act. 

See Ryan, 2012 IL App (1st) 120005, ¶ 21 (citing Sandholm, 2012 IL 111443, ¶¶ 33-34, 57). 

While the circuit court did not explicitly reference the precise language of the Act, Montesdeoca 

has not presented any evidence establishing that the circuit court failed to consider the statutory 

text as interpreted by Illinois case law when it concluded that Samoylovich’s claims were neither

meritless nor retaliatory within the meaning of the Act. Rather than placing a new burden on 

Montesdeoca or frustrating the purpose of the Act, as Montesdeoca also claims, the circuit

court’s statement that Samoylovich’s claims were neither meritless nor retaliatory constituted a 

legal conclusion that Montesdeoca failed to meet his burden under the Act. Accordingly, the 

circuit court’s ruling is not contrary to the plain meaning of the Act.

¶ 31 C. The Circuit Court’s Interpretation Does Not Render the Entire Act Superfluous
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¶ 32 In support of his argument that the circuit court’s ruling violates the plain meaning of the 

Act’s text, Montesdeoca also asserts that by requiring him to demonstrate that Samoylovich’s 

claims are meritless and retaliatory, the circuit court negates the Act’s legal significance because 

there are other procedural mechanisms aimed at terminating such claims. We disagree.

¶ 33 Affirming the circuit court’s ruling does not render the Act duplicative of other 

dispositive mechanisms such as summary judgment, motions to dismiss, and motions under 

Illinois Supreme Court Rule 137. See 735 ILCS 5/2-615, 2-619, 2-619.1, 2-1005 (West 2012); 

Ill. S. Ct. R. 137 (eff. July 1, 2013). Unlike these procedural devices, the Act exists for the very 

narrow purpose of “bar[ring] only those lawsuits that try to abuse the justice system by bringing 

unfounded claims in retaliation against defendants who legitimately exercise their first 

amendment rights [or their rights to participate in government], while simultaneously preserving 

the right of individuals to file lawsuits for real injuries.” Garrido, 2013 IL App (1st) 120466, 

¶ 20 (citing 735 ILCS 110/5 (West 2010)). To achieve this end, the Act provides an expedited 

procedure for reviewing a defendant’s motion. 735 ILCS 110/20(a) (West 2012) (hearings and 

decisions on motions must occur within ninety days). In addition, while a court considers a 

motion brought under the Act, discovery is suspended with the narrow exception, granted only 

with leave of court, of discovery on the issue of a defendant’s potential immunity. 735 ILCS 

110/20(b) (West 2012). Furthermore, parties are entitled to expedited appeals from orders 

denying the motion or from a circuit court’s failure to decide the motion within the allotted 

ninety days. 735 ILCS 110/20(a) (West 2012). Finally, upon dismissal, a defendant may collect 

attorney fees for expenses in connection with the motion. 735 ILCS 110/25 (West 2012). 

Illinois courts have distinguished the Act from other procedural mechanisms upon these 

technical characteristics alone and without even referencing the unique analytical framework 
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articulated by Sandholm and its progeny. See Hammons, 2012 IL App (1st) 102644, ¶ 21 

(describing the procedural mechanics and focus of the Act to distinguish it from other dispositive 

procedural devices). Thus, even under the standard articulated in Sandholm and its progeny and 

applied by the trial court, motions to dismiss under the Act remain distinct from the other 

dispositive mechanisms listed by Montesdeoca.

¶ 34 D. The Circuit Court’s Ruling is Consistent With Illinois SLAPP Case Law

¶ 35 In addition to his statutory argument, Montesdeoca claims that the circuit court’s ruling is 

inconsistent with the analytic framework articulated in Sandholm and applied by other courts 

when deciding motions to dismiss under the Act. Further, he asserts that those cases where the 

court seemed to emphasize meritless and retaliatory language were wrongly decided, and that the 

same judicial outcome would have resulted without those courts’ reliance on those terms. We 

disagree with Montesdeoca’s characterization of Sandholm and the resulting case law and find 

that the circuit court’s ruling is consistent with this case law, which has been correctly decided. 

¶ 36 In Sandholm, the Illinois Supreme Court was asked to determine whether the Act barred a 

lawsuit to recover for intentional torts based on allegedly defamatory statements made by 

defendants about a high school basketball coach that were published in a local newspaper. 

Sandholm, 2012 IL 111443, ¶¶ 1, 18-19. In reversing the dismissal of the plaintiff’s complaint 

by the lower courts, the supreme court outlined the proper analytic framework for determining 

whether the Act bars a given claim. First, a defendant must satisfy an “initial burden of proving 

that plaintiff’s lawsuit was solely ‘based on, relate[d] to, or in response to’ their acts in 

furtherance of their rights of petition, speech or association, or to participate in government.” Id.

¶ 56 (quoting 735 ILCS 110/15 (West 2008)). After a defendant satisfies this prong of the test, 

the burden shifts to the plaintiff “to provide clear and convincing evidence that [the] defendants’ 
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acts are not immunized from liability under the Act.” Sandholm, 2012 IL 111443, ¶ 56; see 735 

ILCS 110/20(c) (West 2012).1 

¶ 37 The court also noted that the Act was not intended to protect those who commit tortious 

acts while engaging in a protected activity. Sandholm, 2012 IL 111443, ¶ 45. In those instances, 

the plaintiff’s lawsuit is not solely based on the defendant’s proper exercising of its rights, but 

rather the lawsuit constitutes a legitimate attempt to seek redress for an injury. Id. The 

Sandholm court reversed the dismissal of plaintiff’s defamation claim when defendants failed to 

meet their burden under the test because they could not show that plaintiff’s defamation claim

was based solely on the defendants’ non-tortious petitioning activities. Id. at ¶ 57. As a result, 

the court concluded that the Act did not apply because the lawsuit was not a meritless, retaliatory 

SLAPP; instead, the plaintiff’s goal in the lawsuit was simply to obtain relief for the personal 

damages he allegedly suffered. Id. 

¶ 38 In the present case, the circuit court properly followed the analytic framework articulated 

in Sandholm. Although it initially determined that the Act was applicable to Samoylovich’s 

lawsuit, the circuit court recognized that the refinements promulgated by Sandholm had the 

 

1 While Sandholm bifurcated the test into these two prongs, some subsequent courts have 

trifurcated the analysis into the following prongs: (1) defendant must prove that its acts were in 

furtherance of their right to petition, speak or associate, or otherwise participate in government to 

obtain favorable government action; (2) defendant must prove that plaintiff’s claims are solely 

based on, related to, or in response to the defendant’s acts; and (3) plaintiff must produce clear 

and convincing evidence that the defendant’s were not genuinely aimed at solely procuring 

favorable government action. E.g. Hammons, 2012 IL App (1st) 102644, ¶ 18 (citing Sandholm, 

2012 IL 111443, ¶¶ 53-57). The reason for this organizational difference is that, prior to 

Sandholm, courts required the movant to meet the diminished burden of demonstrating “only that 

it had engaged in protected activity,” a burden which corresponds to the first of the three modern 

prongs. Ryan, 2012 IL App (1st) 120005, ¶ 21 n.2 (citing Wright, 238 Ill. 2d at 635-36). 

Sandholm added the additional requirement demanding that a defendant also show that plaintiff’s 

claims are “ ‘solely based on, related to, or in response to the defendant[’s]’ ” furtherance of its 

protected acts. Ryan, 2012 IL App (1st) 120005, ¶ 18 (quoting Hammons, 2012 IL App (1st) 

102644, ¶ 18). Nevertheless, the two contemporary formulations are substantive equivalents as 

the distribution of burdens of proof is identical between them.
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potential to alter its conclusion. After it requested additional briefing from the parties as to the 

effects of Sandholm on Samoylovich’s claims, the circuit court reversed its decision and held

that the Act did not apply to bar the claims. In support of the reversal, the circuit court

acknowledged the addition to the defendant’s burden under Sandholm: a defendant must 

establish that the claims are “solely based on, relating to, or in response to” a defendant’s 

protected activities. Id. ¶ 45. Noting the effects of Samoylovich’s allegations that Montesdeoca 

lied during the investigation and criminal trial, the circuit court reviewed the evidentiary 

submissions and determined Montesdeoca had not met this additional burden. This ruling was in 

harmony with the Sandholm analytic framework. See id. (holding that a plaintiff’s claims are not 

solely based on, related to, or in response to defendants’ otherwise protected activities when 

“plaintiff files suit genuinely seeking relief for damages” arising from the “tortious acts of 

defendants” committed while engaged in those activities); see also, e.g., Capeheart, 2013 IL App 

(1st) 122517, ¶ 16 (same) (citing Sandholm, 2012 IL 111443, ¶ 57). Accordingly, the circuit 

court’s conclusion that Samoylovich’s lawsuit was not meritless or brought solely for the 

purpose of retaliation comports with Sandholm. 

¶ 39 Montesdeoca mischaracterizes other cases he cites as wrongly decided or as support for 

the assertion that being meritless or retaliatory are not requirements under the Act. As already 

established, a lawsuit is not meritless or retaliatory for the purposes of the Act when a defendant 

fails to meet its burden under the Sandholm framework. See Sandholm, 2012 IL 111443, ¶¶ 56-

57; Hammons, 2012 IL App (1st) 102644, ¶ 18 (explaining that when defendants fail to 

demonstrate that plaintiffs’ claims are “solely based on, related to, or in response to the 

defendants’ ‘acts,’ ” the burden does not shift because such lawsuits are not “meritless, 
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retaliatory SLAPP lawsuits, as those suits have traditionally been defined” (citing Sandholm, 

2012 IL 111443, ¶¶ 42, 44-45, 47, 51, 53)).

¶ 40 Likewise, the circuit court’s ruling does not conflict with the outcomes of other SLAPP 

cases. For instance, in Wright, which was decided before Sandholm, our supreme court found 

that a defendant met his burden under the then-complete analytic framework when the gravamen 

of the plaintiff’s defamation claim centered around allegedly defamatory statements made to the 

press in an alderman’s office. Wright, 238 Ill. 2d at 635-36. The court reasoned that the 

statements were in furtherance of the defendant’s right to speech, association, and petition or 

otherwise participate in government because the Act’s protections extend to political expression 

directed at the electorate in addition to public officials. Id. at 636. Unlike the present case, the 

outcome in Wright turned on the plaintiff’s burden. The court determined that the plaintiff did 

not meet its burden because it failed to rebut the defendant’s testimony that proved that the 

allegedly defamatory statements were true. Id. at 637-38. As a result, by dismissing the lawsuit

under the Act, the Wright court implicitly concluded that plaintiff’s suit was a meritless, 

retaliatory SLAPP. See id. at 633 (“[t]he purpose of the Act is to give relief, including monetary 

relief, to citizens who have been victimized by meritless, retaliatory SLAPP lawsuits”). 

Furthermore, cases like Ryan and Hammons also demonstrate that being meritless and retaliatory 

are prerequisites for a lawsuit to be considered a SLAPP and thus dismissible under the Act. See 

Ryan, 2012 IL App (1st) 120005, ¶¶ 20-21 (articulating the Sandholm test and equating the 

satisfaction of this test with “affirmatively demonstrat[ing] that the nonmovant’s claim is a 

SLAPP within the meaning of the Act, that is, that the claim is meritless and was filed in 

retaliation against the movant’s protected activities”); Hammons, 2012 IL App (1st) 102644, ¶ 18 
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(describing the Sandholm test as having the effect that, “[i]n other words, the Act only applies to 

meritless, retaliatory SLAPP lawsuits, as those suits have traditionally been defined”). 

¶ 41 E. The Circuit Court’s Ruling Comports With the Supreme Court’s Supervisory Order

¶ 42 In the alternative to the above, Montesdeoca argues that the circuit court erred by not 

making particularized findings with respect to the merits of Samoylovich’s claims as they relate 

to Montesdeoca individually. In sole support of this argument, Montesdeoca references the 

Act’s ability to dispose of all or particular claims against all or particular defendants. However, 

Montesdeoca fatally overlooks the differing standards governing motions to dismiss under 

sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2012)). 

¶ 43 At the outset, it is important to note that nothing in the supreme court’s supervisory order 

requires an analysis other than what is habitually required under the Act. The order merely 

directs this court “to allow the appeal with particularized consideration as to each defendant.” 

By analyzing Montesdeoca’s motion under the Act, this court is giving “particularized 

consideration” to his attempt to employ the Act’s protections to dismiss the claims Samoylovich 

brought against him.

¶ 44 A defendant must bring a motion to dismiss under the Act through section 2-619(a)(9). 

Garrido, 2013 IL App (1st) 120466, ¶ 21 (citing Sandholm, 2012 IL 111443, ¶ 54). While the 

key question when deciding a section 2-615 motion to dismiss is “whether the plaintiff has 

alleged sufficient facts which, if proved, would entitle the plaintiff to relief,” the standard for

deciding a 2-619(a) motion is different. Doe v. Chicago Board of Education, 339 Ill. App. 3d 

848, 853 (2003), aff’d, 213 Ill. 2d 19 (2004) (citing Urbaitis v. Commonwealth Edison, 143 Ill. 

2d 458, 475 (1991)). Instead of attacking the plaintiff’s complaint or prima facie case, “[a] 

motion to dismiss under section 2-619(a) admits the legal sufficiency of the plaintiff’s claim but 
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asserts certain defects or defenses outside the pleadings which defeat the claim.” Sandholm, 

2012 IL 111443, ¶ 55. Courts should construe the pleadings and supporting documents in the 

light most favorable to the nonmovant, accept all well-pleaded facts in plaintiff’s complaint, and 

draw all reasonable inferences in the plaintiff’s favor. Id. Therefore, “a claim that may be 

legally insufficient under section 2-615 cannot be considered ‘meritless’ for the purpose of the 

Act because a motion under section 2-619(a)(9) necessarily concedes the legal sufficiency of that 

same claim.” Garrido, 2013 IL App (1st) 120466, ¶ 21 (citing Sandholm, 2012 IL 111443, 

¶ 55). However, if, under the second prong of the Sandholm analysis, a movant affirmatively 

“disproves some essential element of the nonmovant’s claim,” the claim is meritless for the 

purposes of the Act “because this shows the claim is factually baseless.” Garrido, 2013 IL App 

(1st) 120466, ¶¶ 19, 23 (citing Wright, 238 Ill. 2d at 638).

¶ 45 Montesdeoca essentially argues that Samoylovich has not alleged sufficient facts to 

support his claims for malicious prosecution and civil conspiracy. However, these are the 

precise types of arguments that Montesdeoca has ceded by bringing a section 2-619(a)(9) motion 

to dismiss. See Garrido, 2013 IL App (1st) 120466, ¶¶ 20, 22 (holding that a movant under the 

Act could not challenge the adequacy of plaintiff’s allegations for damages or whether allegedly 

defamatory statements fell under a recognized category of defamation per se when the standard 

under section 2-619(a)(9) required the movant to concede the legal sufficiency of the complaint). 

Even if his attacks raise issues for a trier of fact to resolve, Montesdeoca cannot prevail in this 

motion because he has only undermined the factual support for Samoylovich’s claims without

affirmatively disproving any essential element. See Wright, 238 Ill. 2d at 638 (defamation claim 

was meritless because movant demonstrated that the allegedly defamatory statement was 

indisputably true); Garrido, 2013 IL App (1st) 120466, ¶ 24 (concluding that plaintiff’s claim 
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was not meritless under the Act because defendant was unable to affirmatively disprove any 

essential element of plaintiff’s defamation claim). 

¶ 46 As a final argument, Montesdeoca points to what he asserts is Samoylovich’s 

unsubstantiated, excessive damages request as proof that Samoylovich’s lawsuit against him is a 

retaliatory SLAPP. It is true that some courts have recognized that extraordinarily high damages 

coupled with a complete lack of any supporting substantiation may indicate that a claim is 

brought for retaliatory purposes and thus constitutes a SLAPP. See, e.g., Hytel Group, Inc. v. 

Butler, 405 Ill. App. 3d 113, 126 (2010). However, these cases have consistently required an 

extraordinarily high amount of damages claimed, in the millions, which is an amount far greater 

than that claimed by Samoylovich. For instance, in Butler, this court dismissed plaintiff’s 

lawsuit under the Act in part because it determined that plaintiff’s unsubstantiated damages 

totaling $4 million were intended “to strike fear into the defendant rather than being a good-faith 

estimate of the extent of the injury sustained.” Id. However, the requested damages that the 

Hytel court found odious were 8,000% higher than the minimum request for compensatory

damages at issue in the present case. Accordingly, the damages in this case do not rise to the 

extraordinary high level of damages courts have recognized as indicating that a given lawsuit is a 

retaliatory SLAPP. See id. (“a complaint seeking compensatory damages in the millions is one 

hallmark of a SLAPP” (citing Mark J. Sobczak, SLAPPed in Illinois: The Scope and 

Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 563 (2008))); see 

also Jursich, 2013 IL App (1st) 113279, ¶ 29 (denying movant’s motion to dismiss under the Act 

when, “rather than millions in damages, [claimant] *** sought an unspecified amount in 

compensatory damages and exemplary damages”).
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¶ 47 IV. CONCLUSION

¶ 48 Montesdeoca failed to meet his burden or demonstrate that Samoylovich’s lawsuit against 

him for malicious prosecution and civil conspiracy is a meritless, retaliatory SLAPP within the 

meaning of the Act. The judgment of the circuit court of Cook County is affirmed. 

¶ 49 Affirmed.