Agrusa v. L'Oréal USA Products, Inc.

2020 IL App (1st) 180656-U

• Court: Appellate Court of Illinois
• Decided: December 31, 2020
• Docket: 1-18-0656
• Status: Unpublished

Opinion

2020 IL App (1st) 180656-U No. 1-18-0656 December 31, 2020

FIRST DIVISION

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).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Appeal from the Circuit Court SEBASTIAN AGRUSA, ) Of Cook County. ) Plaintiff-Appellant, ) ) No. 15 L 63077 v. ) ) The Honorable L’OREAL USA PRODUCTS, INC., ) Kathy M. Flanagan, ) Judge Presiding. Defendant-Appellee. )

PRESIDING JUSTICE WALKER delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: Trial Court did not err when it dismissed plaintiff’s claim for malicious prosecution where plaintiff failed to allege facts to state all elements of the claim.

¶2 Plaintiff Sebastian J. Agrusa filed an eight-count Fourth Amended Complaint against

various fashion and beauty companies, including defendant L’Oréal USA Products, Inc.

(“L’Oréal”), sounding in malicious prosecution and intentional infliction of emotional distress. No. 1-18-0656

The intentional infliction of emotional distress claim was dismissed by the trial court and is

not the subject of this appeal. The trial court dismissed the plaintiff’s claims sounding in

malicious prosecution with prejudice pursuant to 735 ILCS 5/2-615 (“2-615”) for failing to

state a claim. Plaintiff now appeals a portion of the trial court’s order claiming the trial court

erred in granting L’Oréal’s 2-615 motion to dismiss with respect to the malicious prosecution

claim. For the following reasons, we affirm.

¶3 BACKGROUND

¶4 Plaintiff filed his initial complaint on or about October 27, 2015. Defendant L’Oréal was

served and filed its timely appearance on September 21, 2016. However, by the time defendant

appeared, plaintiff had amended his complaint, and defendant moved to join a joint motion to

dismiss with numerous defendants Chanel, Burberry, Coach, and Coty. On October 21, 2016,

defendant’s motion to join the joint motion to dismiss was granted. However, plaintiff was

granted leave to file a Second Amended Complaint before the joint motion to dismiss was

heard.

¶5 Plaintiff filed his Second Amended Complaint on or about December 20, 2016. The Second

Amended Complaint contained one count sounding in malicious prosecution against L’Oréal,

Chanel, Burberry, Coach, and Coty. A round of motions to dismiss, pursuant to 735 ILCS 5/2-

615 (“2-615”), were filed by the defendants. On April 14, 2017, the trial court dismissed the

Second Amended Complaint, noting that the single count against multiple defendants violated

rule 735 ILCS 5/2-603. The trial court stated, “the pleading is wholly conclusory and devoid

of the specific, relevant facts necessary to state each element of the malicious prosecution

claim.” Additionally, the court noted, “[w]hile it may not be possible for the plaintiff to

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properly state a cause of action against these defendants, the court will allow him one more

opportunity to attempt to do so.”

¶6 Plaintiff subsequently filed his Third Amended Complaint on May 3, 2017. The first count

was again a single count of malicious prosecution against all defendants. The second and third

counts claimed malicious prosecution and a new claim of intentional infliction of emotional

distress against defendant L’Oréal. On May 24, 2017, defendant again filed a 2-615 motion to

dismiss, arguing that plaintiff’s complaint failed to adequately allege a lack of probable cause

and malice. The trial court again granted the defendants’ motions to dismiss, dismissing the

first count sounding in malicious prosecution against all defendants with prejudice. In ruling

on the malicious prosecution claims, the court stated the separate counts sounding in malicious

prosecution against each defendant,

“are also conclusory and devoid of the specific, relevant facts necessary to state

each element of the malicious prosecution claims, especially with respect to the

absence of probable cause and the presence of malice. It does not appear likely

that the plaintiff will be able to properly state a cause of action against these

defendants sounding in malicious prosecution, however, the Court will allow him

a last and final opportunity to do so.”

¶7 On August 30, 2017, plaintiff filed an eight-count Fourth Amended Complaint against the

various companies, including defendant L’Oréal, sounding in malicious prosecution and

intentional infliction of emotional distress. The intentional infliction of emotional distress

claim was dismissed by the trial court and is not an issue on appeal.

¶8 Plaintiff’s Fourth Amended Complaint alleges that on October 27, 2013, Greg Koleniak

(“Koleniak”) was an agent of defendant L’Oréal and represented to the Cook County Sheriff’s

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Police Department that plaintiff was engaged in selling counterfeit fragrances at the Maxwell

Street Market. He further alleges that Koleniak “requested, directed, and pressured the officer

to arrest plaintiff” and “Such actions by Koleniak amounted to advice and cooperation.”

¶9 The Fourth Amended Complaint states that plaintiff was arrested on October 27, 2013 “at

the instigation of the defendant’s employee and wrongfully incarcerated.” A criminal trial was

then conducted “at the continued instigation of the defendant” on August 13, 2014.

¶ 10 The Fourth Amended Complaint then notes testimony elicited at the criminal trial, stating

that the Investigating Cook County Sheriff testified:

“he did not see plaintiff conduct any transaction, did not know who the booth

plaintiff was allegedly selling perfume at was in fact licensed to, and did not

himself determine that the products were perfumes/colognes bearing the

counterfeit trademarks of the defendant – instead, he relied upon the defendant’s

Agent, Kolniak (sic), and his purported observations of purchase and his expert

opinion as to the products in this regard.”

¶ 11 On August 13, 2014, the criminal proceedings were terminated in favor of plaintiff as

Plaintiff was found not guilty.

¶ 12 Plaintiff further alleges in the Fourth Amended Complaint that there was an absence of

probable cause in the prosecution of the plaintiff:

“There was an absence of probable cause in the prosecution of the plaintiff. The

defendant and Kolniak (sic) not see (sic) plaintiff conduct any transaction, did not

know who the booth plaintiff was allegedly selling perfume at was in fact licensed

to, and did not determine or wrongfully determined that the products were

perfumes/colognes bearing the counterfeit trademarks of the defendants. Due to

4 No. 1-18-0656

the above mistakes/errors, defendant and Kolniak (sic) were grossly negligent in

swearing under oath, as complainant, that the plaintiff committed the offense of

counterfeiting trademarks in that he knowingly possessed with the intent to sell

perfumes/colognes bearing the counterfeit trademarks of the defendant with the

intent that they would be sold for profit without the permission of the trademark

owner to do so.”

¶ 13 The Fourth Amended Complaint then alleges, “[d]efendant acted with malice in continuing

prosecution through to trial.”

¶ 14 Finally, plaintiff’s Fourth Amended Complaint alleges that he suffered “neurological

disorders and became sick, lame and disabled” and that he “will remain sick, lame and disabled

for a long period of time.” He also alleges that he began to experience “anxiety, depression,

stress, slurred speech, lack of sleep, tension headaches, among other complaints” as a result of

his criminal prosecution.

¶ 15 Defendants filed a 2-615 motion to dismiss the Fourth Amended Complaint. Plaintiff filed

a reply arguing that he plead adequate facts to defeat the defendants' 2-615 motions.

¶ 16 The trial court again dismissed the plaintiff’s claims sounding in malicious prosecution

with prejudice, stating, “each of the counts sounding in malicious prosecution against

defendants L’Oréal, Burberry, and Coach, remain conclusory and continue to be devoid of the

specific, relevant facts necessary to state each element of the malicious prosecution claims,

especially with respect to the absence of probable cause and the presence of malice.”

¶ 17 On January 12, 2018, plaintiff filed a motion to reconsider and a proposed Fifth Amended

Complaint which stated a single claim of malicious prosecution against defendant L’Oréal

only. In denying the motion to reconsider, the trial court stated, “the plaintiff effectively

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concedes that the prior pleading was factually insufficient, and instead maintains that there was

an exhibit to that pleading that suggested a lack of probable cause. However, the plaintiff did

not plead the necessary facts to allege probable cause or malice and there is no indication that

said exhibit was referenced in the Fourth Amended Complaint provided with the motion[.]”

¶ 18 The court also addressed the proposed Fifth Amended Complaint, ruling that the proposed

complaint still failed to allege sufficient facts to “allege that the defendant, through its agent,

was not possessed of a state of facts that would lead a person of ordinary caution and prudence

to believe, or to entertain an honest and strong suspicion, that plaintiff committed the offense

charged, nor do the facts alleged evince gross negligence.”

¶ 19 Plaintiff now appeals claiming that the trial court erred in granting L’Oréal’s 2-615 motion

to dismiss with respect to the malicious prosecution claim contained in plaintiff’s Fourth

Amended Complaint.

¶ 20 ANALYSIS

¶ 21 On appeal, plaintiff argues that the trial court erred in granting L’Oréal’s 2-615 motion to

dismiss with respect to the malicious prosecution claim contained in plaintiff’s Fourth

Amended Complaint because the compliant states a claim and sufficiently pleads the elements

of malice and the absence of probable cause.

¶ 22 In determining the legal sufficiency of a complaint under section 2-615, all well-plead facts

are taken as true and reasonable inferences from those facts are drawn in favor of the plaintiff.

735 ILCS 5/2-615 (West 2020); Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490 (1996). It

must then be determined whether the allegations in the complaint, when interpreted in the light

most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief

may be granted. Connick, 174 Ill. 2d at 490. Since plaintiff chose to amend each previously

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dismissed complaint, any error regarding their dismissal is waived, and we consider only the

sufficiency of the fourth and final amended complaint. See Foxcroft Townhome Owners Ass’n

v. Hoffman Rosner Corp., 96 Ill. 2d 150, 155 (1983).

¶ 23 Illinois is a fact-pleading jurisdiction, and while the plaintiff is not required to set forth

evidence in the complaint, the plaintiff must allege facts sufficient to bring a claim within a

legally recognized cause of action, not merely conclusions. See Marshall v. Burger King Corp.,

222 Ill. 2d 422, 429-30 (2006). A cause of action will not be dismissed on the pleadings unless

it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover.

Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). Our review of a trial court’s decision on a

section 2-615 motion to dismiss is de novo because the question of whether a complaint states

a cause of action is one of law. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d

112, 116 (1993).

¶ 24 Suits for malicious prosecution are not favored in Illinois. Joiner v. Benton Community

Bank, 82 Ill. 2d 40, 44 (1980). Public policy favors the exposure of crime, and citizens'

cooperation with knowledge thereof is essential to effective implementation of that policy. Id.

Citizens acting in good faith who have probable cause to believe crimes have been committed

should not be deterred from reporting them by the fear of unfounded suits by those they have

accused. Id. at 44-45.

¶ 25 To establish a malicious prosecution action, plaintiff must allege facts showing: (1) the

commencement or continuation of an original or civil judicial proceeding by the defendant; (2)

the termination of the proceeding in favor of the plaintiff, (3) the absence of probable cause

for such proceeding, (4) the presence of malice on the part of the defendant, and (5) damages

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resulting to the plaintiff. Swick v. Liautaud, 169 Ill. 2d 504, 512. The absence of any one

element bars a plaintiff from pursuing the claim. Id.

¶ 26 The trial court granted defendants section 2-615 motion to dismiss, stating that each of

plaintiff’s claims sounding in malicious prosecution lacked the relevant facts necessary to state

each element of the malicious prosecution claims, “especially with respect to absence of

probable cause and the presence of malice.” We agree.

¶ 27 In his Fourth Amended Complaint, plaintiff alleges that there was an absence of probable

cause in the prosecution of the plaintiff:

“There was an absence of probable cause in the prosecution of the plaintiff. The

defendant and Kolniak (sic) not see (sic) plaintiff conduct any transaction, did not

know who the booth plaintiff was allegedly selling perfume at was in fact licensed

to, and did not determine or wrongfully determined that the products were

perfumes/colognes bearing the counterfeit trademarks of the defendants. Due to

the above mistakes/errors, defendant and Kolniak (sic) were grossly negligent in

swearing under oath, as complainant, that the plaintiff committed the offense of

counterfeiting trademarks in that he knowingly possessed with the intent to sell

perfumes/colognes bearing the counterfeit trademarks of the defendant with the

intent that they would be sold for profit without the permission of the trademark

¶ 28 These allegations do not adequately plead an absence of probable cause in the prosecution

of the plaintiff. In a malicious prosecution case involving criminal proceedings, probable cause

has been defined as a state of facts that would lead a person of ordinary caution and prudence

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to believe or entertain an honest and strong suspicion that the person arrested committed the

offense charged. Howard v. Firmand, 378 Ill. App. 3d 147, 149 (2007).

¶ 29 Here, plaintiff does not sufficiently allege facts that demonstrate Koleniak lacked a state of

facts that would lead a person of ordinary caution and prudence to entertain an honest and

strong suspicion. He also does not plead sufficient facts demonstrating why the alleged

mistakes made by Koleniak were grossly negligent and not of good faith.

¶ 30 Plaintiff argues that he has sufficiently alleged facts demonstrating an absence of probable

cause and relies on Bianchi v. McQueen, 2016 IL App (2d) 150646 in his opening brief. In

Bianchi, the court held that for purposes of a section 2-615 motion to dismiss, the plaintiffs’

complaint alleged sufficient facts to establish that defendants lacked probable cause for the

indictment. Id. at P73. The plaintiffs alleged that defendants fabricated witnesses’ statements

and other evidence and that the grand jury’s decision to indict plaintiffs was based solely upon

the fabricated evidence and false testimony. Id. at P76. The court reasoned that the existence

of probable cause is determined by looking at what the defendants knew when a criminal

complaint was issued and not at an earlier time. Id. at P6. Thus, because the defendants used

false evidence, manufactured witness statements, and concealed exculpatory information, they

knew that the charges were not supported by probable cause. Plaintiff urges this court to apply

similar reasoning and “[look] to what the defendants knew.” However, defendant argues that

Bianchi is distinguishable from this case because the conduct therein was intentional. We agree

with the defendant.

¶ 31 In Bianchi, the defendants could not have had an honest belief that the plaintiff committed

the crime because the plaintiff’s indictment was based on fabricated evidence and testimony

that defendant knew to be false. In the case sub judice, plaintiff does not allege facts

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demonstrating that his indictment was based solely on information Koleniak knew or intended

to be false when the criminal complaint was issued. Plaintiff alleges that Koleniak’s

mistakes/errors were grossly negligent but does not allege facts demonstrating that Koleniak

lacked a state of facts that would lead a person of ordinary caution to entertain an honest and

strong suspicion. Therefore, plaintiff has not sufficiently alleged facts demonstrating the

absence of probable cause.

¶ 32 Plaintiff also argues that he has adequately alleged malice. Plaintiff’s Fourth Amended

Complaint states, “[d]efendants acted with malice in continuing the case through to trial.”

Plaintiff also argues that the absence of probable cause shows malice. In the context of a

malicious prosecution claim, malice is the commencement of a criminal proceeding for a

purpose other than to bring a party justice. Szczesniak v. CJC Auto Parts, Inc., 2014 IL App

(2d) 130636, P19. Here, plaintiff has not adequately alleged facts demonstrating the absence

of probable cause or facts that demonstrate that his criminal proceedings were brought for a

purpose other than to bring a party justice. Thus, plaintiff has not adequately alleged a lack of

probable cause or the presence of malice in his Fourth Amended Complaint.

¶ 33 Therefore, we hold that the trial court did not err in granting defendant’s section 2-615

motion to dismiss with respect to the malicious prosecution claim contained in plaintiff’s

Fourth Amended Complaint.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the section 2-615 motion to dismiss in favor of defendant is

affirmed.

¶ 36 Affirmed.