Motion to Dismiss Defamation on Anti Slapp

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - PROBATE DIVISION

ESTATE OF )

)

JOSEPH L. ZIARNIK ) No. 08 P 8140

)

A Disabled Person )

_________________________________________

Advocacy Guardianship Services, NFP,

as Limited Guardian of the Person

of Joseph L. Ziarnik and individually, Josh Mitzen

as Director, Advocacy Guardianship Services NFP and

individually; Devon Bank, as agent for

Joseph L. Ziarnik under Power of Attorney

for Property dated April 1, 2008, as Trustee of the

Joseph Ziarnik Trust dated April 1, 2008

and individually, and Janna Dutton, as attorney

for the Estate of Joseph Ziarnik and individually,

Plaintiffs,

vs.

Tami Goldmann

Defendant.

DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT

PURSUANT TO SECTIONS 2-615 AND 2-619 AND FOR FURTHER RELIEF UNDER

THE CITIZEN PARICIPATION ACT

Defendant Tami Goldmann respectfully move this Honorable court to Dismiss plaintiffs

amended complaint with prejudice pursuant to Sections 2-615 and 2-619 then for further relief

pursuant under Act 110, § 15 of the Illinois Code of Civil Procedure, titled the Citizen

Participation Act (“CPA”) which protects speech in the face of Strategic Lawsuits Against Public

Participation (SLAPPs).

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INTRODUCTION

1. This case focuses on constitutionally protected speech expressed by Tami Goldmann on

her Internet blog and website. In an attempt to silence Ms. Goldmann, prevent her from

disseminating information and participate in government, the Plaintiffs filed a complaint January

9, 2012 alleging multiple counts of defamation and violating a wards privacy.

2. In their complaint, the Plaintiff’s allege Ms. Goldmann defamed them after she published

online their inhumane treatment of the elderly. She witnessed the Plaintiff’s abuse, drug, isolate

and financially exploit a helpless elderly man through the use of guardianship. She kept a

journal, medical records of Mr. Ziarnik’s dangerous blood sugar readings, took photographs,

video and confiscated other evidence then set up a website and blog. She also wrote a report in

regard to Devon Bank’s abusive guardianships, participated in a public event in Washington,

D.C., and counsels’ victims of probate court. She does all this for free.

3. The Plaintiffs are asking this court to restrict Ms. Goldmann’s freedom of speech, which

is protected by the First Amendment. In her opinion, the Plaintiffs are trapping, abusing and

financially exploiting the elderly and disabled. In order to voice her concerns, she published her

personal experience then set up a blog where she could post commentary. The Plaintiffs

Amended Complaint should dismissed and further relief granted under the Citizens Participation

Act. In support of this motion, Defendant states as follows:

FACTUAL HISTORY

4. The subsequent facts are what prompted Tami Goldmann into publishing her personal

experience and opinions online. These facts also establish Ms. Goldmann’s statements on her

website, blog and any other actions in this case constitute protected activity under the “CPA”.

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Any reference to “Plaintiff” pertains to Devon Bank, Richard Block, Sally Griffin, Josh Mitzen

and Janna Dutton.

5. In 2004, Tami Goldmann became Mr. Ziarnik’s part-time caregiver and moved into his

family apartment. She called Catholic Charities, Elder Protective Services in 2007 because his

friends were putting him on a diabetic sugar high in order to financially exploit him. Elder

Protective Services insisted Mr. Ziarnik write a will.

6. Catholic Charities gave Mr. Ziarnik a list of attorneys’. Tami Goldmann called Janna

Dutton’s office and spoke to her paralegal, Pat Vader explaining that Mr. Ziarnik was reluctant

to write a will. Ms. Vader told her they could send a doctor to his home, deem him incompetent

and force him into guardianship. Ms. Goldmann declined but six months later, Mr. Ziarnik was

being exploited again. Catholic Charities insisted he write a will. Ms. Goldmann made an

appointment with Janna Dutton completely forgetting about her conversation with her paralegal.

7. At Ms. Goldmann’s request, Catholic Charities escorted Mr. Ziarnik and her to Janna

Dutton’s office at the end of January 2009 to write his will. Mr. Ziarnik requested that Tami

Goldmann be Power of Attorney over his health and Ms. Dutton refused to give her a copy, the

only proof is the attached letter. Ms. Dutton also set up a Living Trust at Devon Bank to manage

Mr. Ziarnik’s estate. See Exhibit A

8. In June 2008, Richard Block was bragging about “having free reign over the old man’s

half a million dollars” no courts to go through then spoke of how many people he owed jobs to.

Two of those people were Josh Mitzen and C&J Contracting. Ms Goldmann reported Mr.

Block’s unprofessional behavior to Janna Dutton three days after he transferred Mr. Ziarnik’s

money to Devon Bank in June.

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9. The day after Devon Bank transferred Mr. Ziarnik’s money in June 2008, Ms. Goldmann

reported the trustees to Elder Protective Services for abusing the elderly. She reported Devon

Bank abusive several times in 2008. Ms. Sherry, the elder abuse investigator, helped get money

for Mr. Ziarnik’s basic necessities the day after they became trustee, an ATM card issued and an

accounting of his assets three months after because Devon Bank refused to give him a copy. The

trustees liquidated all Mr. Ziarnik’s assets and hired a lot of people without asking. Ms. Sherry

also tried to get a copy of his will but it took another six months to get it mailed to his family in

Germany.

10. Mr. Ziarnik fired Josh Mitzen after his second visit in June 2008 when Mr. Mitzen was

overheard on the phone denying one of his clients’ food and water. He stated that he went to

court and got an order to put his client to death. Mr. Ziarnik dismissed his services, Devon Bank

was notified and Mr. Mitzen stopped visiting.

11. Home Instead Caregiving Agency was hired in August 2008 for Mr. Ziarnik’s weekend

care, which later became full-time. After their involvement, Mr. Ziarnik’s health immediately

declined and his diabetes got out of control. His dangerous blood sugar levels are well

documented by Mr. Ziarnik’s physician’s nurse, Tami Goldmann then several months later by

the nurse at JASC (Japanese American Service Committee), Mr. Ziarnik’s adult daycare.

12. On September 17 2008, Janna Dutton went to Mr. Ziarnik’s daycare with several court

documents revoking his current Power of Attorney and assigning her colleague, Josh Mitzen

temporary and full guardian. She forced Mr. Ziarnik to sign then ordered him a competency test

while on a diabetic sugar high. Tami Goldmann spoke to the daycare director at JASC. Neither

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the director nor her staff met Ms. Dutton or the Plaintiffs prior to this day and were unaware of

why Mr. Ziarnik was being forced into guardianship with a stranger. See Exhibit B

13. Mr. Ziarnik requested Ms. Goldmann take him to court in January 2009 in order to

postpone the guardianship hearing for his sister to fly in from Germany.

14. Mr. Ziarnik’s sister flew in February 2009. Janna Dutton stopped by Mr. Ziarnik’s

apartment and he asked her to assign Ms. Goldmann his guardian. She refused; stating that being

a guardian was a job for a paid professional and insisted on Josh Mitzen. Mr. Ziarnik’s sister and

translator also tried to talk to her about assigning a family member and Ms. Dutton became rude

and openly hostile.

15. Tami Goldmann reported Josh Mitzen and Home Instead Caregiving Agency to Elder

Protective Services for abuse and neglect of the elderly in March 2009. They ordered Mr.

Mitzen to take better care of his client, control his diet and monitor his blood sugar.

16. In April 2009, Tami Goldmann wrote Janna Dutton a letter describing the abusive

situation she set up for her client. Similar to what’s written online in A Story of Elder Abuse

https://sites.google.com/site/jospehludwigziarnik/ Ms. Dutton visited Mr. Ziarnik at his daycare

shortly thereafter and told him that she was evicting Ms. Goldmann. See Exhibit C

17. In September 2009, a junkman threw out the contents of Mr. Ziarnik’s basement. His

rare Polish book collection, his correspondence between his sisters, mother and other family

members in Europe, old family photographs, the furniture Mr. Ziarnik was storing for friends,

etc.

18. On June 23, 2010, Tami Goldmann published a website A Story of Elder Abuse

describing her personal experience with the Plaintiffs. On or about the same date, she also

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published her personal opinions on her Blog https://jospehludwigziarnik.blogspot.com. She is

attempting to warn others of the Plaintiffs use of guardianship in order to abuse and financially

exploit the elderly and disabled. See Exhibit D

19. July 6, 2010, Janna Dutton read her website. See Exhibit E

20. From November 2010 to February 2011 - Tami Goldmann conducted further research

into Devon Bank by copying eighteen of their guardianships at the Circuit Court of Cook County

– Probate Division. She summarized each victim and wrote a report mailing that to State and

Federal Government in April 2011. See Exhibit F

21. Tami Goldmann was notified that Sally Griffin was no longer employed at Devon Bank

in May 2011. A press release issued September 19, 2011 by Associated Banc-Corp announced

“hiring or promotion of seven senior leaders” of which Ms. Griffin was mentioned. Evidently,

Ms. Griffin is unaffected by what Ms. Goldmann published online and her request of

compensatory and punitive damages should be dismissed with prejudice. See Exhibit G

22. In June 2011, Tami Goldmann flew to Washington, D.C. with NOTEGA (National

Organization To End Guardianship Abuse) where she met with 40-50 others from 17 states and

gave a speech at the Rayburn Building in front of Health and Human Services, The American

Bar Association – Division on Aging, The National Council on Aging, an Aide from Senator

Mark Rubio, Senator Barbara Boxer, Senator John Cornyn and Congressman Ted Poe, a 20/20

Producer, Hearst Publishing and several other organizations. Her speech addressed the Plaintiffs

abuse and financial exploitation of Mr. Ziarnik and the eighteen other victims she researched.

Ms. Goldmann described the Plaintiffs attempt to exhaust estates as quickly as possible using

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excuses to bill their clients. Ms. Goldmann also met with Staffers’ from Senator Mark Kirk,

Senator Dick Durbin and Congressman Mike Quigley’s offices. See Exhibit H

23. On the advice of Senator Mark Kirk, Tami Goldmann sent her report in regard to Devon

Banks abusive guardianships in July 2011 to Honorable Timothy C. Evans, Chief Judge and the

Cook County Probate Court Judiciary along with a lengthy letter describing how the Plaintiffs

use their courthouse to trap the elderly and disabled into guardianship only to profit.

See Exhibit F

24. Tami Goldmann spoke to Congressman Quigley about the “Plaintiffs”. The photo of her

talking to his staffer was in his September 2011 newsletter. See Exhibit I

25. Senator Klobuchar and Franken introduced new federal legislation in September 2011.

They left the hearing open for one week to allow others to submit testimony. Tami Goldmann

submitted hers along with the report she did on Devon Banks Guardianships.

See Exhibit J and B

26. On February 27, 2012, the Plaintiffs served Tami Goldmann with a lawsuit citing

multiple counts of both defamation and Violation of a Wards Privacy.

27. On May 1, 2012, the Plaintiffs amended their complaint to include Interference with

Prospective Economic Advantage and False Light.

DESCRIPTION OF TAMI GOLDMANN’S WEBSITE AND BLOG

28. A Story of Elder Abuse has 56 pages; the Plaintiffs are pointing out sentences on twenty

and taking the meaning out of context. The Defendants blogspot has around 110 posts

https://jospehludwigziarnik.blogspot.com, about 25 are dedicated to the “Plaintiffs”, and they’re

mentioned in 12 others. In the past twenty-one months, the Defendant also reported other issues

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of public concern in regard to the abuse and financial exploitation of the elderly and disabled.

More than 70 blog posts that have nothing directly to do with the “Plaintiffs” but everything to

do with how they conduct business. For example:

29. The “Elder Justice Act” which is designed to provide federal resources to prevent, detect,

treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and

exploitation.

30. The Guardian Accountability Office which released reports of the lack of oversight in

regard to fiduciaries and court-appointed guardians, their estimates of elder abuse cases being

reported and their financial impact elder abuse has on state and federal government. Also, the

GAO used fictitious identities, one who was deceased, and the other with bad credit to prove the

ease of guardianship certification in Illinois.

31. New legislation, S.1744 – Guardian Accountability and Senior Protection Act introduced

by Senator Klobuchar and Franken – MN.

32. HALT – Guardianship Abuse, written by Carlos-Ramos Mrosovsky of Harvard Law

School and HALT – Citizen’s Legal Guide. HALT has published the most informative,

compelling and comprehensive articles describing abuse and financial exploitation by guardians

and their attorneys.

33. Mickey Rooney’s own horrifying experience and testimony before Congress being held

captive, threatened, isolated and financially exploited by his stepson which is very similar, if not

identical to what Mr. Ziarnik is suffering and many others all over the country.

34. Various other posts in regard to elder and financial abuse.

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ARGUMENT

35. Defendant seeks to dismiss the Plaintiffs Amended Complaint in its entirety. The

Plaintiffs claims of defamation can be dismissed pursuant to Section 2-615 of the Illinois Code

of Civil Procedure because the allegations are legally insufficient. Also, pursuant to Section 2-

619(a)(9). Specifically, the Defendant contends the affirmative defenses of truth, opinion,

innocent construction and statute of limitations warrant dismissal of the Plaintiff’s amended

complaint in its entirety.

36. The Defendant is unable to answer the complaint concisely because it encompasses

numerous courses of action or counts without setting forth each count individually and that is not

in accordance with 735 ILCS 5/2-603(a)(b).

37. A defamation claim can either be per se or per quod. Defamation per se statements are

ones that “are thought to be so obviously and materially harmful to the plaintiff that injury to

[his] reputation may be presumed.” Bryson v. News American Publications, Inc., 174 Ill. 2d 87

(1996). Illinois law recognizes five categories of defamatory per se statements: (1) those that

impute the commission of a criminal offense; (2) those that impute infection with a loathsome

communicable disease; (3) those that impute an inability to perform or want of integrity in the

discharge of duties of office or employment; (4) those that prejudice a party or impute lack of

ability in the party’s profession or business; and (5) those that impute adultery or fornication. Id,

at 88-89.

38. Alternatively, a defamation per quod statement is a defamatory statement that does not fit

into a per se category, but can still be established to cause damage to the Plaintiff’s reputation.

See Bryson at 103. Statements expressing mere opinions or commentary do not constitute

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defamation. See id. Indeed, Illinois courts have repeatedly dismissed defamation claims at the

pleading stage to protect an individual’s ability to express opinions, level criticism, and

participate in debate. See, e.g., Seith v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124 (1st Dist.

2007) (affirming dismissal under Section 2-615). The statements made at issue in this case are

not defamatory and accordingly this case should be dismissed with prejudice.

39. The Defendant published her opinions in regard to Devon Bank and the Plaintiffs

mistreatment of the elderly. She uses rhetorical hyperbole and editorial speculation to express

her outrage. Because all of the allegedly defamatory statements in the Plaintiffs Amended

Complaint are non-actionable opinions, Defendant cannot, as a matter of law, be held liable for

the defamation. Accordingly, this Court should dismiss Plaintiffs Amended Complaint in its

entirety.

This Court Should Dismiss Count I of Plaintiffs Amended Complaint because Defendants

Statements are merely Non-Actionable Opinions and are Not Stating Facts

40. The U.S. Supreme Court has confirmed that defendants in defamation suits receive First

Amendment protection for their statements if they cannot reasonably be construed to be stating

actual facts. See Milkovich v. Lorain Journal Co., 497 U.S. 19 (1990). Even statements that fall

into a per se libel category can be protected under the First Amendment. Barakat v. Matz, 208

Ill. App. 3d 662, 667 (1st Dist. 1995). To determine if an allegedly defamatory statement has a

factual implication, courts in Illinois review three considerations: (1) whether the statement has a

“precise and readily understood meaning” and is not “overly loose, figurative, rhetorical, or

hyperbolic language,” (2) whether the context or forum in which the statement is made lends

itself to the credibility of the statement, and (3) whether a fact finder would be able to objectively

determine the statement’s veracity. Hopewell v Vitullo, 299 Ill App. 3d 513, 518-519 (1st Dist.

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1998). If the statement does not present or imply facts about the plaintiff, then it is a non-

actionable opinion and cannot provide a basis for a defamation claim. See id. In this case,

consideration of these three factors shows that Defendants alleged defamatory statements are

merely non-actionable opinions.

a) Defendants’ statements are non-actionable opinions because they were

hyperbolic and amounted to mere ridicule.

41. First, the court must consider whether the allegedly defamatory statement has a “precise

and readily understood meaning.” Id. The use of exaggerative or hyperbolic language, or

language intended to be mere ridicule or abuse are not defamatory. Id. For instance, in Horowitz

v. Baker, the court found that the defendants’ reference to the plaintiff’s purchase of bricks as

“sleazy,” “cheap,” “secret,” and “ripped off” amounted to non-actionable opinion. 168 Ill App.

3d 603, 606 (3rd

Dist. 1988). The Appellate Court found that dismissal was proper, agreeing

with the lower court that the statements were no more than “rhetorical hyperbole.” Id. At 609.

42. Here, in the Defendants’ Internet publishing’s, she uses hyperbolic and figurative words

and phrases like “crooked,” “scam,” “abusing their positions,” “ransacking estates” and other

statements that are without the required “precise and readily understood meaning[s].” See

Hopewell at 519. Her rhetorical speculation “How can she possibly get up and look herself in

the mirror every morning knowing that she’s cheating and abusing an elderly Senior Citizen?” or

“It might be in regard to the amount of money she’s making at the expense of her clients, who

knows?” cannot even be considered a statement of fact as well as the rest of the editorial on the

Defendants website and blog.

43. All of the statements listed in the Plaintiffs Amended Complaint are either speculation or

rhetorical hyperbole. None of these statements can be considered as being a statement of fact

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with a “precise and readily understood meaning.” As a result, the statements are non-actionable

opinion and this court should dismiss Plaintiffs Complaint in its entirety.

b) Defendants’ statements are nonactionable opinions because they were made

in a context of a subjective forum and no reasonable person would trust them

to be assertions of fact.

44. Next, the statements must be considered in the context or forum in which they were made

to see if the context or forum lends to the credibility of the statement. Hopewell at 519. For a

defamation suit, either per se or per quod, a written statement is to be considered in its context,

with words and implications read with their most natural and obvious meaning. Chapski v.

Copley Press, 92 Ill 2d 344, 352 (1982).

45. The context of the publication itself will often play a role in determining if the average

reader will take the writing to be fact or opinion. Specifically, courts addressing defamation

cases based on online blogs have noted that blogs are known for their personal, subjective, and

mere opinion-based postings. In Doe v. Cahill, defendant posted derogatory comments on his

blog about plaintiff’s mental state and incapacity in his current job. 884 A.2d 451, 454 (Del.

2005). In finding that “no reasonable person could have interpreted these statements as being

anything but opinions,” the court discussed how blogs and chat rooms are widely known to be

“normally and inherently unreliable” sources of information. Id. at 467. Other jurisdictions

investigating the link between blogs and defamation cases have interpreted blogs the same way.

See, e.g., Hagaman v. Angel, 2005 WL 1390360 at *6 (N.J. Super. Ct. Law Div. 2005)

46. The material in the present case was posted on a personal website and blog which, as

noted in Cahill, are well-known subjective forums that are inherently unreliable as a source of

factual information. The blog and websites purpose was to report abuse, isolation and financial

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exploitation of an elderly man which is well noted on both websites. The Defendant states, “This

is my story as his caregiver.” The entire website is built around Defendant’s personal experience

and is a clear representation of only one party’s side of the story. Under Hopewell, courts must

consider whether, in the context of the statement, a reasonable person would find the published

statements credible. Here, a reasonable person is already likely to anticipate that they will be

reading a subjective and opinion-based website and blog, just as one would when reading the

political flyers in at issue in Arrington and the editorial letters in the Wampler case. The fact that

the website and blog have a singular purpose – to be against private paid guardians and their

attorney abusing and financially exploiting the elderly through Cook County Probate Court –

only lends itself further to the fact that both website and blog are not to be relied upon for

objective, factual information. As a result, the statements at issue should be considered non-

actionable opinion and this Court should dismiss Plaintiffs Amended Complaint in its entirety.

c) Defendants’ statements are non-actionable opinions because they are not

objectively verifiable.

47. Finally, for an allegedly defamatory statement to be actionable, a fact-finder must be

able to objectively determine the statement’s veracity. Hopewell at 519. When a statement is

made with no reference to facts and is intended to be a pure demonstration of opinion with no

verifiable or quantifiable question of fact involved, it represents a non-actionable opinion and is

protected under the First Amendment. See Sullivan v. Conway, 157 F.3d 092, 1097 (7th

Cir.

1998). In Sullivan, the defendant, in a public forum, stated that the plaintiff was “a very poor

lawyer.” Id. at 1094. Judge Posner, writing for the Seventh Circuit and applying Illinois law,

found that the words stated a pure opinion that could be evaluated neither by a judge nor jury,

and fell into the protected realm of non-actionable opinions. Id. at 1097.

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48. Corresponding with Sullivan, whether or not Plaintiffs’ actions are “crooked,” “criminal,”

or “abusive,” and whether or not they “ransack estates,” “showered Ludwig’s money on their

employees,” or “abuse their positions” are pure opinions that, as Judge Posner noted, are far

beyond the evaluation of judge or jury. Sullivan at 1094. Likewise, defendants allegedly

defamatory statement that “She [Janna Dutton] did nothing to protect her client from being

financially exploited, abused and neglected” is purely within the realm of speculation and cannot

be considered a statement of fact, much less a verifiable statement of fact. Finally, it would be

impossible for a fact-finder to determine how one measures whether a business wants to “result

to criminal behavior,” by “abusing their positions, their patrons with their own money, hiring

their friends only to ransack estates” and “financially exploit you until the day you die” much

less determine whose “crooked,” “abusive” or “on the take.” Of the alleged defamatory

statements listed in the Plaintiff’s Complaint, none are verifiable statements.

49. Defendant’s blog and online website represent completely opinion-based publications. It

is obvious to any viewer that the site is subjective and biased, that the statements made are done

so with colorful and hyperbolic language, and that information contained in these statements is

not to be taken as credible. Under the laws of this jurisdiction, these statements fall into a

protected category of non-actionable opinions and Defendant cannot, as a matter of law, be

found liable for defamation per quod or per se.

50. Further, that Count I sets forth merely conclusions and not any facts so that the Defendant

is unable to plead thereto.

51. The Plaintiffs are not entitled to the relief prayed for in that Plaintiffs can adequately be

compensated by money damages and not entitled to any equitable relief.

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This Court Should Dismiss Count II of Plaintiffs Amended Complaint for Failure to State

Claim Upon Which Relief Can be Granted

52. The Defendant adopts and realleges herein all the arguments previously set forth in Count

I and asserts and sets forth same as to Count II.

53. Plaintiffs fail to state claims in Count II in which Plaintiffs allege interference with

prospective economic advantage. To sufficiently state such a claim, a plaintiff must allege: (a) a

reasonable expectancy of entering into a valid business relationship; (b) the defendant's

knowledge of such expectancy; (c) an intentional and unjustifiable interference by defendant

with the third-party that induced or caused a breach or termination of the expectancy; (d) damage

to the plaintiff resulting from defendant's alleged interference. Anderson v. Vanden Dorpel, 172

Ill.2d at 406-407. This includes an allegation that the defendant engaged in specific action

against the party with whom the plaintiffs expected to do business. Schuler v. Abbott

Laboratories, 265 Ill. App. 3d 991, 994 (Ill. App. 1993). Moreover, the plaintiffs must allege a

business expectancy with a specific third party and not merely allege a general expectation of

future business. Id. The plaintiffs must furthermore plead, and eventually prove, purposeful

interference that connotes impropriety. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460, 485

(1998). Indeed, there will be no liability for interference with a prospective contractual relation

where the defendant merely conveys truthful information. Cromeens, Holloman, Sibert, Inc. v.

AB Volvo, 349 F.3d 376, 399 (7th Cir. 2003) (citing Soderland Bros. v. Carrier Corp. 278 Ill.

App. 3d 606, 620 (Ill. App. 1995)).

54. Here, the Plaintiffs have failed to allege any specific third parties with whom it expected

to enter a valid business relationship. Plaintiffs have further failed to allege Defendants’

knowledge of any such expectancies. Id. Rather, the Plaintiffs merely state “members of the

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public who are considering entering into a business relationship.” This is insufficient. See

Schuler, 265 Ill. App. 3d at 994; Anderson, 172 Ill.2d at 407-408. In addition, Plaintiffs have

failed to allege that the Defendant intentionally and unjustifiably interfered with any third party

that induced or caused a breach or termination of an expectant business relationship. Because of

this, the Plaintiffs cannot sufficiently allege that conduct caused damage arising from a specific

failed expectancy. Thus, nearly every element of this claim (if not all) has been insufficiently

plead. See id. Therefore, Plaintiff's claims for Interference with Prospective Economic

Advantage in Count II should be dismissed.

55. Further, that Count II sets forth merely conclusions and not any facts so that the

Defendant is unable to plead thereto.



This Court should Dismiss Count III of the Plaintiffs Amended Complaint for Failure to

meet Illinois Law Requirements

57. The Defendant adopts and realleges herein all the arguments previously set forth in Count

I and II and asserts and sets forth same as to Count III.

58. The Illinois First District Appellate Court held that to state a cause of action for false

light invasion of privacy, the plaintiff must prove that: (1) the plaintiff was placed in a false light

before the public as a result of the defendant's actions; (2) the false light in which the plaintiff

was placed would be highly offensive to a reasonable person; and (3) the defendant 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. Brennan v. Kadner, 351 Ill.App.3d 963, 971 (1st

Dist. 2004).

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59. For purposes of establishing a cause of action for false light invasion of privacy, Illinois

courts have adopted the “actual malice ” rule. Dubinsky v. United Airlines Master Executive

Council, 303 Ill.App.3d 317, 330 (1st Dist. 1999). Actual malice has been defined by the Illinois

Supreme Court as “knowledge that the statements made by a defendant were false or that such

statements were made with reckless disregard as to their truth or falsity.” Poulos v. Lutheran

Social Services of Illinois, Inc., 312 Ill.App.3d 731, 741 (1st Dist. 2000). To sustain a cause of

action for false light, the plaintiff must prove actual malice by clear and convincing evidence.

60. It’s the Defendant’s belief that abusing wealthy elderly and disabled citizen’s through

guardianship in order to profit is cruel and she said as much on her personal website and blog.

Personal opinions are protected under the Constitution. Being offended by someone’s opinion is

not enough to be held liable for a false light claim and therefore, this Court should dismiss Count

III in its entirety.

61. Further, that Count III sets forth merely conclusions and not any facts so that the




This Court Should Dismiss Count IV of the Plaintiff’s Amended Complaint because it does

not set forth a Cause of Action.

63. The Defendant adopts and realleges herein all the arguments previously set forth re:

Count I, Count II, Count III and asserts and sets forth same as to Count IV.

64. The Complaint does not set forth a cause of action of the wards privacy in that the ward

does not set forth elements necessary to plead a proper Complaint. (1) An authorized intrusion

or prying into the plaintiff’s seclusion; (2) the intrusion must be offensive or objectionable to a

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reasonable person; (3) the matter upon which the intrusion occurs must be private; and (4) the

intrusion causes anguish and suffering. Mucklow, 176 Ill.App.3d at 893-894. The Ward has not

complied in his pleadings within the necessary four elements. Specifically, the Ward has not

satisfied the first element thereby not complying with elements 2, 3 and 4.

65. Further, that Count IV sets forth merely conclusions and not any facts so that the




This Court Should Dismiss the Plaintiffs Amended Complaint in regard to “A Story of

Elder Abuse” for failure to bring actions within the Statute of Limitations

67. Illinois has a one-year statute of limitations for defamation. See 735 ILCS 5/13-201.

The Plaintiff’s filed this case on January 9, 2012 challenging certain statements made on the

Defendants website and blog more than one year prior to the date of filing. In particular, A Story

of Elder Abuse website that the Defendant published on June 23, 2010 and finished publishing

the bulk of it on October 6, 2010. The Defendant also removed a few paragraphs written after

January 9, 2011 as a good faith gesture. Janna Dutton read her site on July 6, 2010. Illinois also

adopted the Single Publication Rule. See 740 ILCS 165/1 (2008). The statute of limitations for

libel begins to run when a defamatory statement is first published on the Internet. Not when new

content is added. The subsequent distribution of existing copies of an original publication

neither creates a new cause of action nor tolls the applicable statute. Founding Church of

Scientology of Washington, D.C. v. American Medical Ass’n, 60 Ill.App.3d at 479 (1978).

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68. Consequently, the Plaintiffs Amended Complaint in regard to defamation and violation of

a wards privacy must be dismissed in regard to Defendants website, A Story of Elder Abuse

because it was not commenced by the time limited by law. 740 ILCS 165/1 See Exhibit D and E

This Court should award Defendant further relief under the Citizens Participation Act

69. The Illinois anti-SLAPP statute, the Citizen Participation Act, allows a movant to swiftly

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 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 “Acts

in furtherance of the constitutional rights to petition, speech, association, or to otherwise

participate in government are immune from liability, regardless of intent or purpose, except

when not genuinely aimed at procuring favorable government action, result or outcome. Id.

70. Any motion brought pursuant to the Illinois Citizen Participation Act must be ruled upon

within 90 days of filing. 735 ILCS 110/20(a). Upon filing a motion to dismiss under this Act,

the burden rests on the Plaintiffs to “produce clear and convincing evidence” the acts of the

Defendant “are not immunized from, or are not in furtherance of acts immunized from, liability

by this Act.” 735 ILCS 110/20(c) The Act “shall be construed liberally to effectuate its

purposes and intent fully.” 735 ILCS 110/30(b)

71. There is no doubt that the Plaintiffs targeting the wealthy elderly and disabled then

abusing, trapping, isolating and financially exploiting them through the use of guardianship is a

governmental matter of public concern. To succeed on her CPA motion to dismiss, Defendant

needs to demonstrate that her blog and website were genuinely aimed at procuring favorable

government action. Even if the Defendant statements are defamatory, injure Plaintiffs business

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or invade a wards privacy (claims which Ms. Goldmann vehemently denies), she is still entitled

to a broad statutory immunity for her actions. The Act disregards Defendants’ intent or purpose

as long as her main objective is to engage in a matter of public concern.

72. To the extent that the Defendants actions might constitute protected acts, the “sham

exception” applies and recently introduced in Illinois:

Applying the doctrine and its sham exception to the facts of this case requires the

court to first consider whether objective persons could have reasonably expected

to procure a favorable government outcome […] through a public campaign like

defendants' campaign against plaintiff. If the answer to that question is "yes," then

the court need not consider the subjective intent of defendants' conduct. If the

answer is "no," then the court would consider whether defendants' subjective

intent was not to achieve a government outcome that may interfere with plaintiff

but rather to interfere with plaintiff by using the governmental process itself.

Sandholm v. Kuecker, 405 Ill. App. 3d 835 (2 Dist. 2010).

73. Aside from what’s previously stated, the Defendant is not profiting in any way by setting

up a website, blog, court watching, counseling victims of probate court, flying to Washington or

speaking at public events. More examples of why this is a SLAPP:

74. In June 2010, when the Defendant set up her blog, she provided a brief description of

herself on her Blogger Profile

“I was forced into becoming an Elder Abuse advocate after watching the trustees

from Devon Bank (Richard Block and Sally Griffin) hire Josh Mitzen (paid

guardian) to drug a little old man in order to steal his entire estate and person. I

am now working on new legislation and reform.” (Emphasis added.)

See Exhibit K

75. “Typically, though not always, the Plaintiffs in SLAPPs have more substantial resources

at their disposal with which to prosecute their claims than the defendant have available to

counter them. Economically strong Plaintiffs are thus in a position to absorb the costs associated

with protracted litigation in a manner not usually available to the prospective defendants. This

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effect is only exacerbated by the often exorbitant damages sought in SLAPP suits.” See

SLAPPed at 564. The lawsuit against the Defendant primarily addresses the concerns of Devon

Bank, Richard Block, Sally Griffin, Josh Mitzen and Janna Dutton. The cost of their lawsuit is

being billed to the Estate of Joseph L. Ziarnik. Therefore, the Plaintiffs profit by filing suit. See

Exhibit L

76. The Plaintiff’s intention in filing these types of suits is not necessarily to prevail on the

claim, but to silence speech–often on matters of public importance–through the threat of

damages and litigation expenses. Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 119 (2nd

Dist. 2010). The Plaintiffs state, “Ms. Goldmann is unemployed, and, receives Social Security

benefits as her source of income” (Def. Compl. 6) yet, they’re suing her for 100K each. Even if

the Plaintiffs won this lawsuit, they know the Defendant wouldn’t be able to pay.

77. “It is important to recognize that SLAPP filers are not all malicious, any more than

SLAPP targets are all well intentioned. The parties' subjective motives - bad faith, intent,

frivolousness, intimidation, or even rightness or wrongness on the merits - are irrelevant. The

only critical issue is whether protected expressive activity triggered the suit, and is therefore at

risk.” (Emphasis added.) See firstamendment.org/slapp.html. July 6, 2010 was the first time

Janna Dutton was aware the Defendant published online. On December 8, 2011, the Defendant

wrote the blog post, Devon Bank Trust Department - Putting Them Out of Business where she

summarized other blog posts and described the full extent of her public participation and

government activity in three paragraphs. The first two from her post.

“I’ve been diligently working on letting the entire world know this bank is

financially exploiting their elderly and disabled clients through guardianships. I

Xeroxed their court files, wrote a 33-page report describing (in detail) financial

abuse to 19 of their clients (in seven years), mailed it to every State and Federal

agency I could think of, spoke to all those agencies (absolutely lovely people),

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Senator Kirk ordered a Federal investigation (along with everyone else in DC), I

walked my adopted victims up Capitol Hill, spoke to all our legislators about the

problem, sent it to the probate court judges and Chief Judge (because Devon Bank

was hiding their 2011 court records from me) then I put it on Congressional record a

few months ago. Devon Bank, Janna Dutton and Josh Mitzen made history. I even

set up a blog on the victims’ behalf.

Last week, one of the probate court judges refused to approve

Devon Bank’s fees. She said they charged way too much to manage an estate.” Id.

78. Janna Dutton started printing the Defendants’ website and blog for this lawsuit on

December 13, 2011. Five days after that post was published. This was one of two blog posts

Ms. Dutton printed out that day, the rest after. See Exhibit M and Preliminary Injunction Exhibit

C, Document 34.

__________

79. The custom and usage of the legal profession is such that filings of pleadings are printed

on one side of the page. Not both sides as the present complaint.

CONCLUSION

80. In this case, the Defendant was so traumatized by the Plaintiffs trapping a wealthy elderly

man that she set up a website and blog to describe her opinions and voice her outrage. It is her

contention and belief that the Plaintiffs business practices are dishonest and they take advantage

of our most vulnerable citizens though guardianship.

81. There is no doubt the Plaintiffs lawsuit is “based on, relates to, or is in response to” Ms.

Goldmann’s government activism and online public participation. 735 ILCS 110/15 Her blog

and website are genuinely aimed at producing favorable decision by state and local government

with respect to abuse and financial exploitation of the elderly and disabled through guardianship.

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Therefore, her Internet activities are immune from liability under the “CPA,” and the Plaintiffs

suit must be dismissed with prejudice.

WHEREFORE, Defendant respectfully requests this Court to:

I. Suspend discovery for 90 days pending a ruling on this motion;

II. Dismiss Plaintiffs Amended Complaint with prejudice

III. Award Defendant her costs and attorneys fees in connection with this motion, and

IV. Grant additional relief this Court deems appropriate and just under the

circumstances.

May 17, 2012 Respectfully submitted,

Tami Goldmann

By:___________________

Her attorney

Edwin J. Belz

4407 N. Elston Avenue

Chicago, IL 60630

773.282.9129

773.282.9811 (fax)

Cook County Attorney # 25663

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Documents

Motion to Dismiss Defamation on Anti Slapp