Opinion
No. 1-19-0602
06-30-2020
NICOLE BASILE, Plaintiff-Appellee, v. PROMETHEUS GLOBAL MEDIA, LLC, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 17 L 009521 Honorable Daniel T. Gillespie, Judge, presiding. JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶ 1 Held: The circuit court properly denied defendant's motion to dismiss pursuant to California's anti-SLAPP statute where plaintiff pled a prima facie case of defamation. ¶ 2 This appeal involves the application of the anti-SLAPP statutes of Illinois and California. The term "SLAPP," an acronym for "Strategic Lawsuit Against Public Participation," refers to a lawsuit aimed at preventing citizens from exercising their political rights or at punishing them for having done so. Sandholm v. Kuecker, 2012 IL 111443, ¶ 33. The goal of a plaintiff in a SLAPP is not to win the litigation, but rather to chill the speech of the defendant and others through the delay, expense, and distraction associated with defending against a lawsuit. Id. ¶ 34. Thus, although SLAPPs are meritless by definition, SLAPP plaintiffs nevertheless accomplish their goals through the ancillary effects of the lawsuits themselves. Id. ¶ 3 Recognizing that existing safeguards against SLAPPs were inadequate to protect defendants from these ancillary effects, many states, including Illinois and California, have enacted special anti-SLAPP statutes. While anti-SLAPP statutes vary from state to state, they typically provide a mechanism for early dismissal and the award of attorney's fees to a successful defendant. ¶ 4 Here, plaintiff-appellee, Nicole Basile, filed a complaint against defendant-appellant, Prometheus Global Media, LLC, alleging defamation per se, defamation per quod, and false light invasion of privacy. Defendant filed a motion to dismiss the complaint, citing California's anti-SLAPP statue. In response, plaintiff argued that Illinois' anti-SLAPP statute, not California's, applied to this case. The circuit court denied the motion to dismiss, reasoning that it did not need to decide which statute applied because defendant was not entitled to relief under either state's law. We granted defendant leave to appeal that decision, and we now affirm.
¶ 5 I. BACKGROUND
¶ 6 Plaintiff is an Illinois resident who formerly lived and worked in Los Angeles, California as a payroll accountant in the television and film industries. Defendant is a Delaware limited liability company with its principal place of business in New York. The Hollywood Reporter, which is wholly owned and published by defendant, is a Los Angeles-based magazine and website that focuses on the television, film, and entertainment industries. ¶ 7 In December 2014, an article entitled "Sony Hack: Studio Security Points to Inside Job" appeared in print edition of The Hollywood Reporter and on the magazine's website. The article concerns the highly publicized November 2014 cyber attack in which hackers obtained and leaked confidential data from Sony Pictures Entertainment (Sony), including unreleased films and personal information of Sony employees. This article is the subject of plaintiff's complaint. ¶ 8 After the subheadline that "North Korea might hate a new movie, but studio sources lean toward an ex-employee scenario ***," the article briefly recounts the background of the attack, what information was stolen, and what measures Sony and other studios have taken to enhance their cyber security in its wake. The article then continues with a critical transition paragraph:
"Now the question of who is behind the attack has become a chilling Hollywood whodunit. While the hackers have identified themselves only as Guardians of Peace, emails pointing journalists to allegedly stolen files posted on a site called Pastebin came from a sender named 'Nicole Basile.' A woman by that name is credited on IMDb as an accountant on the studio's 2012 hit film The Amazing Spider-Man , and her LinkedIn page says she worked at Sony for one year in 2011. Basile couldn't be reached for comment and the studio declined to confirm if she works or has worked there." ¶ 9 The article next explains the "[i]nitial speculation" that the hack was perpetrated by the North Korean government in retaliation for an upcoming Sony film involving a CIA plot to assassinate North Korean leader Kim Jong-un. However, the following sentence states, "Inside the studio, though, sources say there is little evidence that North Korea is behind the attack." The article then quotes a cyber security expert who also found it "hard to believe that North Korea [was] the perpetrator," and instead "theorize[d] an employee or ex-employee with administrative access privileges [was] a more likely suspect." The expert reasoned that an outside hacker would have needed months to find such sensitive information within the Sony network and would not have used "such things as Hushmail, Dropbox, and Facebook" because those sites track user information and cooperate with law enforcement. After quoting the expert, the article asserted that the "possibility of a disgruntled employee wreaking havoc is very real," as Sony had laid off hundreds of employees in the year preceding the attack. The article then concluded by detailing the potential financial impact of the leaked films and by noting that Sony was working with the FBI to investigate the attack as a criminal matter.
Although not mentioned in the original article, a follow-up article, which is not the subject of plaintiff's claims, indicates that the hackers used the e-mail address "nicole.basile@hushmail.com."
¶ 10 A. The Federal Suit
¶ 11 On November 11, 2015, plaintiff filed a complaint against defendant in the U.S. District Court for the Northern District of Illinois, alleging that the article constituted defamation per se and false light invasion of privacy. In particular, plaintiff claimed that the article portrayed her as responsible for the cyber attack through its "overall meaning" and three false and defamatory statements: (1) that her name was the only alias used by the hackers, (2) that she was a former Sony employee, and (3) that she had "disappeared" and could not be found for comment despite reasonable efforts. ¶ 12 In a written order dated December 7, 2016, the district court granted defendant's motion for judgment on the pleadings and dismissed the complaint. Applying Illinois defamation law, the district court found that the article could not reasonably be construed as imputing criminal activity to plaintiff because it "recognize[d] that the identity of the actual perpetrators are unknown," explained that any of a number of laid-off former Sony employees might be responsible, and did not accuse plaintiff of sending the e-mail to journalists. The district court also found that the article did not disparage plaintiff's ability to perform her job, and was therefore not defamatory per se. The district court further stated that, even if the article had been defamatory per se, plaintiff would still not have been entitled to relief because the article was capable of a reasonable innocent construction. Finally, the court rejected plaintiff's false light claim because it was based on the same statements as her defamation claim. ¶ 13 On appeal, however, it was discovered that complete diversity did not exist between the parties because one of defendant's members was a citizen of Illinois. Accordingly, the Seventh Circuit remanded to the District Court with instructions to dismiss the case for lack of jurisdiction.
Plaintiff's federal complaint also named the article's authors as defendants. However, the district court dismissed the authors for lack of personal jurisdiction, plaintiff did not name them in her state court complaint, and they are not parties to this appeal.
¶ 14 B. The State Suit
¶ 15 On October 20, 2017, plaintiff filed the instant complaint in the Circuit Court of Cook County pursuant to section 5/13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 2016)), which allows a plaintiff to commence a new action in the circuit court within a year of a dismissal in a district court for lack of jurisdiction. The state court complaint mirrored the federal court complaint with respect to the claims of defamation per se and false light invasion of privacy, but also added a claim of defamation per quod based on plaintiff's contentions that the article was defamatory on its face and that she suffered special damages in the form of lost income and business opportunities as a result. ¶ 16 Defendant filed a motion to dismiss the complaint pursuant to section 2-615 of the Code, arguing that the article was "not defamatory as a matter of law" and was capable of a reasonable innocent construction. Defendant further contended that plaintiff's claim of defamation per quod should also be dismissed because she did not allege special damages with sufficient particularity. Lastly, defendant maintained that plaintiff's false light claim failed because it was based on the same nonactionable statements as her defamation claims. ¶ 17 In response, plaintiff argued that the article was defamatory per se because it conveyed that a disgruntled ex-Sony-employee was the hacker while mentioning only her—by name—as an ex-employee connected to the stolen data. Plaintiff also maintained that her claim of defamation per quod remained viable because the article was defamatory on its face and she pled special damages. ¶ 18 Following a hearing, the circuit court denied defendant's section 2-615 motion. In so ruling, the court stated that the mention of plaintiff's name in relation to the stolen information was "the punch line" of the article and was "arguably colorfully a defamatory statement" that amounted to defamation per se. With respect to the plaintiff's claim of defamation per quod, the court reiterated that the article was defamatory on its face and also found that plaintiff adequately pled special damages where she alleged, in the court's words, an "inability to get hired in [the film industry] and lost wages as a result." ¶ 19 Defendant next filed a motion to dismiss the complaint pursuant to section 2-619 of the Code, arguing that California's anti-SLAPP statute (Cal. Proc. Code § 425.61(b)(1); 735 ILCS 110/15 (West 2016)), was "an affirmative matter which warrants dismissal of the Complaint with prejudice as a matter of law." Specifically, defendant contended that California's anti-SLAPP statute should apply to this case because, as the article was primarily researched, written, edited, and published out of The Hollywood Reporter's Los Angeles office, California had the most significant contacts and strongest interest in having its anti-SLAPP law applied. Defendant further asserted that it was entitled to an early dismissal under California's anti-SLAPP statute because plaintiff was unable to show a reasonable probability of success on the merits. In particular, defendant maintained that plaintiff's claims were destined to fail under Illinois defamation law because the article was not defamatory and capable of a reasonable innocent construction. ¶ 20 Plaintiff responded that Illinois' anti-SLAPP statute, the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2016)), should apply because the case was brought in an Illinois court, her reputational injury was "largely realized in Illinois," and both parties were citizens of Illinois. Plaintiff also argued that, even if the California anti-SLAPP statute was applicable, her complaint would still survive dismissal because the court had already determined that she pled a prima facie case of defamation by denying defendant's section 2-615 motion. ¶ 21 At a hearing on the section 2-619 motion, the court instructed defendant to provide additional briefing as to whether there was a conflict of law between the California and Illinois anti-SLAPP statutes. In its supplemental brief, defendant argued that a choice of law analysis was required because the California statute was "much broader in scope" than its Illinois counterpart. In particular, defendant noted that California's statute applies to all speech "in connection with a public issue," whereas Illinois' statute applies only to speech aimed at procuring a favorable governmental action, result, or outcome. See Cal. Proc. Code § 425.61(b)(1) (West 2016); 735 ILCS 110/15 (West 2016). ¶ 22 In response, plaintiff argued that the court should apply the Illinois statute because "California's anti-SLAPP law is plainly procedural, and not substantive." Specifically, plaintiff contended that the California statute merely provided a procedural mechanism through which the case could be dismissed at an early stage if it was meritless as a matter of substantive Illinois defamation law. ¶ 23 After receiving the supplemental briefing, the circuit court ruled that it need not conduct a choice of law analysis because "under either statute, [d]efendant's 2-619 motion must be denied." The court explained that defendant could not prevail under Illinois' anti-SLAPP statute because the article was not related to defendant's participation in government and could not reasonably be construed as nondefamatory. In line with its ruling on defendant's section 2-615 motion, the court stated that "the only reasonable interpretation an ordinary reader could be left with is that plaintiff participated in the cyber-attack" because the article claimed that (1) the attack was "likely committed by an ex-employee," (2) plaintiff was an ex-employee, and (3) the stolen information "emanated from Nicole Basile." Similarly, the court further held that, although the article was the kind of speech covered by the "broader" California anti-SLAPP statute, that statute would not entitle defendant to an early dismissal because plaintiff had established a prima facie case of defamation and a reasonable probability of success on the merits. Accordingly, the court denied defendant's motion to dismiss without proceeding any further with a choice of law analysis. Over plaintiff's objection, this court granted defendant's petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(9) (eff. Nov. 1, 2017).
¶ 24 II. ANALYSIS
¶ 25 A. Jurisdiction
¶ 26 We first note that although defendant filed for leave to appeal under Rule 306(a)(9), which applies only to "order[s] of the circuit denying a motion to dispose under the Citizen Participation Act," the heart of defendant's section 2-619 motion was that California's anti-SLAPP statute (not Illinois') applies to the present case. Defendant maintains this position on appeal, and recognizes that its section 2-619 motion was a "motion to dismiss pursuant to California's anti-SLAPP Act." Even so, defendant asserts that review under Rule 306(a)(9) is proper because the circuit court denied the motion at least in part based on its analysis of Illinois' anti-SLAPP statute. Thus, in accordance with the scope of Rule 306(a)(9), defendant contends that the first issue this court must decide is "whether the Circuit Court incorrectly decided that Illinois law and the Illinois [anti-SLAPP statue] control the instant case." ¶ 27 A review of the record reveals that the the circuit court did not explicitly rule that Illinois' anti-SLAPP statute applied. Rather, the court did not conduct a choice of law analysis at all because it determined that defendant's motion would be denied under either anti-SLAPP statue. See Townsend v. Sears, Roebuck, & Co., 227 Ill. 2d 147, 155 (2007) ("A choice-of-law determination is required only when a difference in law will make a difference in the outcome."). However, we agree with defendant that we have jurisdiction over this appeal because the court's partial reliance on the Illinois anti-SLAPP statute brought its ruling into the ambit of Rule 306(a)(9). We will therefore consider the merits of defendant's arguments.
¶ 28 B. Choice of Law Principles
¶ 29 When deciding choice of law issues, a court generally applies the choice of law rules of the forum state. Townsend, 227 Ill. 2d at 155. In Illinois, this usually means that the rights and liabilities for a particular issue are governed by the law of the state with the most significant relationship to the occurrence and the parties. Denton v. Universal Am-Can, Ltd., 2015 IL App (1st) 132905, ¶ 8. However, before evaluating the respective interests of the relevant states, the first step is to isolate the issues and determine whether there is a genuine conflict between the laws. Townsend, 227 Ill. 2d at 155. This means that there must be an actual, rather than potential, conflict between state laws as applied in a particular case. Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty Company, 2014 IL 116389, ¶ 25. Thus, a choice of law determination is required only if the difference between states' laws would make a difference in the outcome of the case. Id. ¶ 14. A circuit court's decision on a choice of law issue is reviewed de novo. Townsend, 227 2d. at 154. ¶ 30 Because we agree with the circuit court that defendant's section 2-619 motion should be denied under either relevant anti-SLAPP statute, we also agree that a choice of law analysis is unnecessary. To explain this conclusion, we will analyze plaintiff's claims under both the Illinois and California ant-SLAPP statutes.
¶ 31 C. Illinois' anti-SLAPP statute
¶ 32 Illinois' anti-SLAPP statute, the Citizen Participation Act (735 ILCS 110/1 et seq. (West 2016)) creates a substantive immunity for a defendant's acts "in furtherance of their right to petition, speak, associate, or otherwise participate in government to obtain a favorable government action," if the plaintiff's claims are "solely based on, related to, or in response to" those acts. To prevail on a motion to dismiss under the Illinois statute, the defendant must therefore show that (1) the challenged speech was in furtherance of their right to petition, speak, associate, or otherwise participate in government to procure a favorable government outcome, and (2) the plaintiff's suit is solely based on or in retaliation for the defendant's exercise of one of those rights. Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644, ¶ 18. If the plaintiff's suit is a genuine attempt to recover damages for the alleged defamation, then the suit is not based solely on the exercise of the defendant's rights and therefore cannot be dismissed under Illinois' anti-SLAPP statute. Sandholm v. Kuecker, 2012 IL 111443, ¶ 45. ¶ 33 Although defendant's brief lists "whether the Circuit Court *** erred *** by denying the motion [to dismiss] under the Illinois CPA" as the second issue presented for appeal, nowhere else does defendant argue that the complaint should have been dismissed pursuant to Illinois' anti-SLAPP statute. Instead, defendant acknowledges later in its brief that it "would not be able to avail itself of the protections afforded under the narrower Illinois CPA." We agree, as there is no basis to believe that defendant published the article in an attempt to obtain a favorable government action, or that plaintiff is not at least in part genuinely seeking damages for the harm the article allegedly caused to her career. Thus, the circuit court did not err in determining that plaintiff's complaint would not be dismissed under the Illinois anti-SLAPP statute. ¶ 34 Our analysis now turns to whether plaintiff's complaint would be dismissed under California's anti-SLAPP statue.
¶ 35 D. Mechanics of California's anti-SLAPP statute
¶ 36 While Illinois' anti-SLAPP statute requires the defendant's speech be connected to participation in government, California's anti-SLAPP statue applies more broadly to any act of free speech "in connection with a public issue." Cal. Civ. Proc. § 425.16 (West 2016). However, rather than create a substantive immunity for certain kinds of speech, the California statute "only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (emphasis in original) Baral v. Schnitt, 376 P.3d 604, 608 (2016); see also Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 728, 737 (2003) (California's anti-SLAPP statute "is a procedural device for screening out meritless claims" rather than a "substantive rule of law that grants absolute immunity from tort liability***"). Under the California statute, suits based on covered speech are subject to a special motion to strike unless the plaintiff establishes "a probability" that they will prevail on their claims. Cal. Civ. Proc. § 425.16 (West 2016). ¶ 37 Evaluating a motion to strike under the California statute involves a two-step process. First, the court must determine whether the defendant has made the threshold showing that the challenged speech was connected to a public issue. Equilon Enterprises v. Consumer Cause, Inc., 52 P.3d 685, 694 (2002). If the defendant has made such a showing, then the court must decide whether the plaintiff has demonstrated a reasonable probability of success on the merits. Id. The second step is a "summary-judgment-like procedure" in which a plaintiff need only establish "minimal merit," and dismissal is warranted only if no reasonable jury could find for the plaintiff. Mindy's Cosmetics, Inc. v. Dakar, 611 F.3d 590, 598-99 (9th Cir. 2010); see also Navellier v. Sletten, 52 P. 3d 703, 713 (2002) (this step is often called the "minimal merit prong"). To establish "minimal merit" the plaintiff must simply state and substantiate a legally sufficient claim. Jarrow, 74 P.3d at 746. Put another way, a plaintiff survives early dismissal under California's anti-SLAPP statute where they show that their complaint is both legally sufficient and supported by a prima facie showing of facts sufficient to sustain a favorable judgment if accepted as true by the jury. Mindys Cosmetics, 611 F.3d at 599.
¶ 38 E. Application of California's anti-SLAPP statue
¶ 39 Here, there is no dispute that the article is protected under the California statue because the Sony hack was an issue of public interest. As such, the only issue before us is whether plaintiff can demonstrate a reasonable probability of success by meeting her burden of "minimal merit." Defendant argues that plaintiff has failed to establish minimal merit for any of her claims. According to defendant, plaintiff's claims are meritless with regard to (1) defamation per se because the article did not accuse her of a crime and is capable of a reasonable innocent construction, (2) defamation per quod because the article was not defamatory and plaintiff did not adequately plead special damages, and (3) false light invasion of privacy because it is based on the same statements as her defamation claims. Because the application of California's anti-SLAPP statue would require us to evaluate plaintiff's claims for minimal merit, we examine each of them in turn. ¶ 40 But first we note that, although the parties dispute which state's anti-SLAPP statute applies to the present case, they do not dispute that Illinois' substantive defamation law controls plaintiff's claims. We agree. Illinois follows the doctrine of depecage, which is the practice of "cutting up a case into individual issues, each subject to a separate choice of law analysis." Townsend, 227 Ill. 2d at 161. Whether a statement is defamatory is distinct from the issue of whether that statement is privileged. Chi v. Loyola University Medical Center, 787 F. Supp. 2d 797, 803 (2011) (applying Arizona's defamation law and Illinois' anti-SLAPP statute); Global Relief Foundation v. New York Times Co., 2002 WL 31045394, at *10 (N.D. Ill. Sept. 11, 2002) (applying Illinois' defamation law and California's anti-SLAPP statute). Illinois courts apply a strong presumption that the law of the state where the injury occurred governs the substantive issues of the case. Townsend, 227 Ill. 2d at 166 (2007). In cases of defamation, this is usually the state in which the plaintiff is domiciled. See Kamelgard v. Macura, 585 F. 3d 334, 341-42 (7th Cir. 2009) (collecting cases). ¶ 41 Here, although plaintiff arguably felt the brunt of her pecuniary losses in California—where she was based at the time of the article and where she was allegedly blackballed from the television and film industries—she now feels the reputational harm most acutely in Illinois, where she lives, works, and presumably maintains most of her personal and business relationships. Id. Thus, we agree with the parties that the defamation law of Illinois, as plaintiff's home state, applies.
According to an affidavit submitted by plaintiff, she lived and worked in Los Angeles for "most of [the] time" between September 2008 and December 2014, but temporarily stayed in other states when working on films being shot elsewhere. She was working on a film in New Mexico when the article was published, and permanently moved back to Illinois shortly thereafter when she was no longer able to find work on any film or television projects.
¶ 42 1. Defamation per se
¶ 43 As an initial matter, defendant contends that the circuit court erred in rejecting its argument that plaintiff was a limited public figure on the issue of the Sony hack. For purposes of defamation law, a plaintiff may be either a private figure or a public figure. Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill. 2d 381, 394 (2008). If a plaintiff is a public figure, they cannot recover against a media defendant unless they prove actual malice, i.e. that the defendant published the defamatory statements while knowing they were false or with the reckless disregard for their truth. Hardiman v. Aslam, 2019 IL App (1st) 173196, ¶ 6. There are two types of public figures. First, a general public figure is an individual who has "achieve[d] such pervasive fame or notoriety" that they are a public figure in all contexts. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Second, an individual may become a limited public figure on a specific issue if he "injects himself or is drawn into a particular public controversy." Id. Whether a plaintiff is a public figure is a question of law subject to de novo review. Jacobson v. CBS Broadcasting, Inc., 2014 IL App (1st) 132480, ¶ 28. ¶ 44 Here, defendant did not raise the issue of whether plaintiff was a public figure until the circuit court-ordered supplemental briefing on its section 2-619 motion. In its supplemental brief, defendant merely listed the standard for determining whether an individual is a limited public figure and flatly concluded that "[p]laintiff satisfies this [sic] criteria ***." In her response, plaintiff argued that she was not a limited public figure because she had committed no voluntary act which thrust her into the Sony hack controversy. In its reply brief, defendant acknowledged that plaintiff "may have been drawn into the public controversy unwillingly," but contended that she became a limited public figure once the real hackers used her name to e-mail journalists about the stolen information. Stating that defendant's argument was "specious" and could be "glanced over without much consideration," the circuit court ruled that plaintiff was not a limited public figure because she only gained notoriety after defendant published her name. ¶ 45 As defendant noted in its supplemental briefing below, Illinois courts have adopted the three-part test first articulated in Waldbaum v. Fairchild Publications, Inc., 627 F. 2d 1287 (D.C. Cir. 1980), to determine whether a plaintiff is a limited public figure. First, there must be a public controversy, meaning an issue under debate that impacts at least some portion of the general public in an appreciable way. Jacobson, 2014 IL App (1st) 132480, ¶ 31. "Second, the plaintiff must have undertaken some voluntary act seeking to influence the resolution of the issues involved." Id. Third, and finally, the allegedly defamatory statements must be related to the plaintiff's participation in the controversy. Id. Even assuming that the Sony hack qualified as a public controversy, it is clear that plaintiff did not voluntarily inject herself into the public discussion surrounding the attack. Although defendant observes that plaintiff participated in an interview for a follow-up article in The Hollywood Reporter, she only did so in an attempt to clear her name after the original article. See Hutchinson v. Proxmire, 443 U.S. 111, 134-35 (1979) (the plaintiff must have been a public figure prior to the defamatory statements). ¶ 46 Acknowledging that plaintiff did not voluntarily enter the Sony hack controversy, defendant emphasizes that the United States Supreme Court has stated that an individual can also become a limited public figure without a voluntary act if they are "drawn into a particular public controversy." See Gertz, 418 U.S. at 351. However, Gertz made clear that, while "[h]ypothetically" possible, "the instances of truly involuntary public figures must be exceedingly rare." Id. at 344. This is not one of those rare cases. Although defendant contends that plaintiff's name was known to an unspecified "large number of individuals" within law enforcement and various media outlets that received the e-mails about the stolen data, plaintiff's name was not widely known by the public until it was published in The Hollywood Reporter. As the circuit court recognized, defendant cannot seek the protection of the actual malice standard where its own conduct is what thrust plaintiff's name into the public discussion. Hutchinson, 443 U.S. at 112-13. Accordingly, the circuit court did not err in rejecting defendant's argument that plaintiff was a limited public figure. ¶ 47 Having determined that plaintiff was not a limited public figure, we now turn to whether plaintiff has plead a case of defamation under the standards applicable to a private figure. To state a claim of defamation in Illinois, a plaintiff must show that (1) the defendant made a false statement about the plaintiff, (2) the defendant made an unprivileged publication of that statement to a third party, and (3) the publication caused damages. Hadley v. Doe, 2015 IL 118000, ¶ 30. Actionable statements can be either defamatory per se or defamatory per quod. Hardman, 2019 IL App (1st) 173196, ¶ 4. Statements are defamatory per se if they "falsely charge the plaintiff with misconduct or incapacity in words so obviously and naturally harmful that they are actionable without proof of special damages." Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402, 414 (1988). Illinois courts recognize just five categories of statements that constitute defamation per se: (1) words that impute the plaintiff has committed a crime, (2) words that impute the plaintiff has a loathsome communicable disease, (3) words that impute the plaintiff lacks integrity in performing their employment duties, (4) words that impute that the plaintiff lacks ability or otherwise prejudices them in their profession, and (5) words that impute the plaintiff has committed adultery. Hardman, 2019 IL App (1st) 173196, ¶ 4. ¶ 48 Even where a statement falls within one or more categories of defamation per se, the statement is not actionable if it is capable of a reasonable innocent construction. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 90 (1996). When evaluating an allegedly defamatory statement under the innocent construction rule, courts must interpret the challenged words in context and according to their natural and obvious meanings. Antonacci v. Seyfarth Shaw, LLP, 2015 IL App (1st) 142372, ¶ 24. Although a court must assign an innocent meaning to challenged statements if reasonable to do so, courts also "should not strain to see an inoffensive gloss" on a statement where the defendant "clearly intended and unmistakably conveyed a defamatory meaning." Green v. Rogers, 234 Ill. 2d 478, 463 (2009). Nor should courts " 'espouse a naïveté unwarranted under the circumstances' " or accept an unnatural innocent meaning where a defamatory meaning is far more reasonable. Tuite v. Corbitt, 224 Ill. 2d 490, 504 (2006) (quoting Bryson, 174 Ill. 2d at 94. Whether a statement is capable of a reasonable innocent construction is a question of law which we review de novo. Bryson, 174 Ill. 2d at 90. ¶ 49 Defendant contends that the article is capable of a reasonable innocent construction in that it merely identified several possible suspects—including North Korea, a current Sony employee, or an ex-Sony employee—and stated that the culprits remained unknown. In support of its position that "the [a]rticle explicitly states that no one knows who was behind the attack" (emphasis in original), defendant relies on the fact that the article refers to the case as a "chilling Hollywood whodunnit." However, Webster's New Twentieth Century Dictionary (2d unabridged ed.) defines the term "whodunnit" as "a mystery novel, play, etc. in which a crime is solved at the end *** using clues scattered throughout the story." True to that form, the article sets the scene by explaining the widespread belief that North Korea was the perpetrator, but then conveys that the culprit was actually a disgruntled ex-Sony-employee. The article next reveals and singles out plaintiff as an ex-Sony-employee whose name was on an e-mail containing information about the hack that only a perpetrator would know. The article also supports its ex-employee theory through studio sources and a cyber security expert, who essentially debunk the idea that North Korea was behind the attack and concur that a studio insider was responsible. Thus, we agree with the circuit court that any reasonable reader would interpret the article as suggesting that plaintiff was involved in the cyber attack. As such, the article imputed criminal activity to plaintiff and was therefore defamatory per se. ¶ 50 Citing extensive case law, defendant argues that the circuit court "ignored" Illinois precedent holding that statements are not defamatory per se if they merely report that a plaintiff has been accused of a crime or was the subject of an ongoing investigation. See, e.g., Kapotas v. Better Government Ass'n, 2015 IL App (1st) 140534, ¶ 51 (explaining that such statements are not actionable per se because they do not fairly impute that the plaintiff actually committed a crime). However, this is not a case where the alleged defamation merely reported that the plaintiff had been investigated or arrested. Instead, as noted, the clear thrust of the article from the perspective of a reasonable reader was that plaintiff had actually been involved in the attack. Consequently, the circuit court did not err in denying defendant's motion to dismiss.
Plaintiff's discovery responses disclosed the names of FBI agents who contacted her regarding the cyber attack, but nothing in the record indicates how many journalists received the e-mail bearing plaintiff's name.
¶ 51 2. Defamation per quod
¶ 52 Defendant also contends that the circuit court erred by not dismissing plaintiff's claims of defamation per quod. Even where a challenged statement does not fall within one of the five recognized categories of defamation per se, a plaintiff may still plead a claim of defamation per quod by alleging that the challenged statement is either (1) defamatory on its face, or (2) proven defamatory through extrinsic evidence. Tunca v. Painter, 2012 IL App (1st) 093384, ¶ 41. Under either theory of defamation per quod, the plaintiff must also allege special damages, meaning specific pecuniary and reputational losses that resulted from the defamatory statement. Id. ¶ 53 Here, plaintiff maintains that she pled a case of defamation per quod because the article was defamatory on its face. Defendant, on the other hand, argues that the article was not defamatory and that plaintiff failed to plead special damages with sufficient specificity. ¶ 54 Initially, we note that, while defendant also filed an unsuccessful motion to dismiss under section 2-615 of the Code, it did not appeal that ruling. Instead, this appeal concerns only defendant's motion to dismiss under section 2-619. Our supreme court has stated that a "motion to dismiss based on the immunity conferred by the [Illinois anti-SLAPP] Act" is appropriately raised under section 2-619. Sandholm, 2012 IL 111443, ¶ 54 (citing Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 641 (2010) (Freeman, J. specially concurring, joined by Thomas and Burke, JJ). This is so because the conditional immunity for government-related speech created by Illinois' anti-SLAPP statute is potentially an "affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2016); Sandholm, 2012 IL 111443, ¶ 54. Moreover, a defendant will almost certainly need to point to facts outside the complaint to show that the plaintiff brought suit for purely retaliatory purposes. Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 21. ¶ 55 However, as we have previously explained, defendant's 2-619 motion was based not on the immunity conferred by Illinois' anti-SLAPP statute, but on the provisions of California's anti-SLAPP statute. Unlike the Illinois statute, the California statute (1) explicitly creates a special motion to strike a SLAPP, and (2) does not require proof of a plaintiff's subjective intent in filing suit. City of Cotati v. Cashman, 52 P. 3d 695, 699 (2002). Although a special motion to strike was therefore perhaps the more appropriate filing, defendant's choice of a section 2-619 motion also seems applicable insofar as the California anti-SLAPP statute may still be an "affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2016). ¶ 56 This procedural note is important because the movant in a section 2-619 motion concedes the legal sufficiency of the complaint. Sandholm, 2012 IL 111443, ¶ 55. A court considering a section 2-619 motion must also accept all well-pleaded facts in the complaint as true, and must construe the pleadings and supporting documents in the light most favorable to the nonmovant. Id. ¶ 57 Defendant's challenges to the count of defamation per se, which centered on application of the innocent construction rule, were reviewable in the section 2-619 context. See Bryson, 174 Ill. 2d at 91-92. However, defendant cannot rely on the innocent construction rule against plaintiff's claim of defamation per quod because the rule does not apply to per quod claims. Id. at 91. Instead, defendant attacks the per quod count by contending that plaintiff has not pled (1) any statement that is defamatory on its face or (2) special damages with sufficient particularity. The problem with these arguments is that they implicate only the sufficiency of the complaint itself, which defendant has conceded by filing a section 2-619 motion. For instance, in Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 28, we held that the defendants could not argue that the challenged statements were not defamatory per se or that the plaintiff had not pled special damages with adequate specificity where the defendants had moved to dismiss under section 2-619 based on Illinois' anti-SLAPP statute. The same is true here—defendant has conceded the sufficiency of the complaint, and cannot now argue that plaintiff has failed to plead elements of her case. ¶ 58 Furthermore, even if defendant had not conceded the sufficiency of plaintiff's complaint, we would still find dismissal of the per quod claim unwarranted. Defendant's arguments as to why the article was not defamatory on its face are virtually identical to those we have already rejected in finding the article defamatory per se and not capable of a reasonable innocent construction. In short, the article clearly and unmistakably conveyed that plaintiff was the ex-Sony-employee responsible for the cyber attack. Thus, the article is defamatory on its face. ¶ 59 Plaintiff has also sufficiently pled special damages. In contrast to the general damages presumed in a case of defamation per se, special damages are actual pecuniary or reputational losses that must be plead with particularity. Hill v. Schmidt, 2012 IL App (5th) 110324, ¶ 25. General allegations of economic loss or emotional distress are insufficient to state a claim of defamation per quod. Id. Although there is "no precise definition" of what constitutes special damages, a specific allegation that a third party has stopped doing business with the plaintiff satisfies the particularity requirement. Tunca, 2012 IL App (1st) 093384, ¶ 60. A plaintiff also pleads special damages by specifically alleging the dollar amount of revenue lost as a result of the alleged defamation. Id. ¶ 60 Here, plaintiff's complaint alleged that her earnings had increased throughout her time in the television and film industries to a peak of $83,107 in 2014. However, since no studio would hire her after the article was published, her earnings plummeted to $11,813 in 2015. Although her income has since increased to $44, 827 in 2016 and $60, 287 in 2017, plaintiff estimated that the article will result in a total loss of more than $1.4 million over the course of her career. Thus, plaintiff has alleged both that studios refuse to do business with her since the article and that she has lost or will lose specific sums as a result. See Action Repair, Inc. v. American Broadcasting Companies, Inc., 776 F.2d 143, 149 (7th Cir. 1985) (citing Continental Nut Co. v. Robert L. Berner Co., 345 F.3d 395 (7th Cir. 1965) (specific figures of gross sales from before and after the allegedly defamatory publication sufficient to plead special damages). While she will have to prove these damages at trial, she has stated enough here to survive dismissal of her complaint.
According to plaintiff, this number does not include an additional $14,774 in unemployment benefits she received in 2015. --------
¶ 61 3. False Light
¶ 62 In its section 2-615 motion to dismiss, which again is not the subject of this appeal, defendant argued that plaintiff's false light claim should also be dismissed because it was based on the same statements that defendant contended were not defamatory. See Seith v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124, 139 (rejecting a false light claim because it was based on the plaintiff's unsuccessful claim of defamation per se). As the circuit court rejected defendant's challenges to the defamation claims, the court also declined to dismiss the false light claim in ruling on the section 2-615 motion. Defendant seemingly invoked the same argument in its section 2-619 motion, though the section 2-619 motion (and defendant's reply to plaintiff's response) only mentions the false light claim by baldly asserting that it "fail[s] as a matter of law since [p]laintiff cannot avoid the innocent construction of the statement[s] at issue." Defendant's counsel did not mention the false light claim in either hearing on the 2-619 motion, and the circuit court did not specifically address the claim in denying the motion. ¶ 63 On appeal, defendant again argues that plaintiff's false light claim should be dismissed only because the defamation claims should also have been dismissed. However, as the circuit court properly refused to dismiss the defamation claims, there is no basis on which to dismiss the false light claim. In any event, defendant has also conceded this argument for purposes of a section 2-619 motion. Garrido, 2013 IL App (1st) 120466, ¶ 29.
¶ 64 III. Conclusion
¶ 65 In sum, plaintiff's complaint satisfies the minimal showing of a likelihood of success as required by California's anti-SLAPP statute. Moreover, the parties are correct that defendant would not be entitled to dismissal based on Illinois' anti-SLAPP statute. The circuit court therefore did not err in denying defendant's section 2-619 motion. ¶ 66 Consequently, the judgment of the circuit court is affirmed. ¶ 67 Affirmed.