Colorado Court of Appeals – Weeks of April 11 – April 25
May, 2024 - United States of America
By: Alan Schindler, Esq. and Anna Goldman, Esq.
Coomer v. Donald J. Trump for President et. al.
Division IV, Opinion by Judge Schock; Judges Navarro and Kuhn concur.
Decision: Affirmed in part and reversed in part.
Procedure: On appeal from District Court, City and County of Denver, Judge Moses.
Factual background and district court holding:
Plaintiff, Eric Coomer, was an employee of Dominion Voting Systems, Inc, a company that provided election technology and support services during the 2020 election. After the election, certain media sources and political figures alleged that Coomer was on an “Antifa conference call” on which he said that he had “made sure” then-President Donald Trump was “not going to win” the election. Coomer denies ever being on such a call.
Following, Coomer brought this action against several entities and individuals who shared reports of his alleged statement, asserting claims for defamation, intentional infliction of emotional distress, and civil conspiracy. The defendants filed a special motion to dismiss under Colorado’s anti-SLAPP statute, section 13-20-1101, C.R.S. 2023. To survive this motion, Coomer must establish a reasonable likelihood that he will prevail on his claims. The district court found that he met this burden with respect to all claims against all defendants.
Issue: Whether the action should be dismissed under Colorado’s anti-SLAPP statute.
The division held that Coomer met his burden with respect to his claims for defamation and intentional infliction of emotional distress, concluding that each defendant made statements that could reasonably be understood to communicate that (1) Coomer asserted on a conference call that he had made sure President Trump was not going to win the election, and (2) Coomer in fact took steps to interfere with the election. Coomer also presented sufficient evidence to establish a reasonable likelihood of showing that those statements were false and were made with actual malice.
To prevail on his defamation claim, Coomer needed to prove four elements: (1) a defamatory statement concerning the plaintiff; (2) publication; (3) fault amounting to at least negligence; and (4) either actionability of the statement irrespective of special damages or the existence of special damages. Because the relevant statements involved a matter of public concern, he must prove: (1) the falsity of the statement by clear and convincing evidence, rather than by a mere preponderance; (2) by clear and convincing evidence that the speaker acted with actual malice; and (3) actual damages, even if the statement is defamatory per se.
After considering each defendant’s statements separately, the division determined that the “gist or sting” of each statement was that Coomer took steps to undermine the election results and thus each statement was defamatory. The statements implied (or, in some instances, directly stated) that Coomer engaged in criminal activity, making the statements defamatory per se. Further, Coomer showed a reasonable likelihood of proving by clear and convincing evidence that defendants’ statements were false. For example, Coomer declared that he never participated in any Antifa conference call or any similar call and that not only did he not boast about rigging election results, he had no ability to do so.
Coomer also showed a reasonable likelihood of proving by clear and convincing evidence that defendants acted with actual malice, meaning they made the statements with knowledge that they were false or with reckless disregard for whether it was true. The division held that whether the defendants had reason to believe there was no call or had reason to doubt that the speaker was Coomer, a jury could find by clear and convincing evidence that the defendants acted with reckless disregard for whether their statements were true.
The division concluded that a jury could reasonably find that Coomer suffered actual damages as a result of defendants’ statements in the form of emotional, reputational, and career harm that probably would not have occurred absent the statements.
On the other hand, Coomer presented no evidence as to a civil conspiracy between the appealing defendants to defame him or inflict emotional distress upon him, so he did not show a reasonable likelihood of prevailing on his civil conspiracy claim.
Brightstar LLC v. Rhett Jordan and Josh Ginsberg v. Peter Knobel
Division I, Opinion by Judge Gomez; Judges Jones and Harris concur.
Decision: Judgment affirmed in part and reversed in part and case remanded with directions.
Procedure: On appeal from District Court, City and County of Denver, Judge Elliff.
Factual background and district court holding:
This case originated with a business dispute between former partners of a cannabis dispensary chain, Native Roots. In arbitration, the arbitrator awarded approximately $100 million to two minority owners, Josh Ginsberg and Rhett Jordan. In doing so, the arbitrator found the majority owner of Native Roots, Brightstar LLC, liable for breaches of their operating agreement. The arbitrator also held Brightstar’s owner, Peter Knobel, liable.
Brightstar and Knobel appealed the award, and the district court vacated it, holding that the arbitrator demonstrated evident bias against Brightstar and Knobel. The district court also held that the arbitrator did not have jurisdiction over Knobel personally because he did not sign the agreement that included the arbitration provision.
Issue: Whether the $100 million arbitration award should be reinstated.
The division concluded that the award should be reinstated, but the arbitrator erred in holding Knobel personally liable for the award. The division disagreed with the district court’s conclusion that the arbitrator’s conduct and rulings were enough to prove bias. Looking at the arbitrator’s conduct and rulings in the context of the hearing, the division concluded that the arbitrator was not demonstrating bias but was instead trying to keep the hearing moving in the interest of time.
The division did however agree with the district court’s holding that the arbitrator did not have jurisdiction over Knobel, reasoning that there was not enough evidence to pierce the corporate veil in this instance. Brightstar was not merely an alter ego of Knobel despite the fact that he was the sole member. The plaintiffs pointed to the fact that Knobel kept some Native Roots real estate assets on his personal balance sheet, but the division noted that this did not support piercing the veil because it reflected his interactions with Native Roots, not Brightstar. Further, Brightstar was not thinly capitalized, as evidenced by its loan of $50 million to Native Roots.
The division also held for the first time that service of pleading by email to a party’s attorney is valid if the attorney has listed their email address on a previous filing.
Wenzell v. United Servs. Auto. Ass’n
Division II, Opinion by Judge Fox; Judges Schutz and Moultrie concur.
Decision: Reversed and remanded with directions.
Procedure: On appeal from El Paso County District Court, Judge Marla Prudek.
Factual background and district court holding:
In 2017, the plaintiff, Anthony Wenzell, was involved in a car accident. He settled with the at-fault driver’s insurance company for $100,000. He then sought additional recovery from State Farm and USAA. Wenzell had a $1 million coverage limit on his policy with State Farm and was covered by his brother’s USAA policy with a $300,000 limit.
Wenzell sued State Farm and USAA to recover additional benefits, claiming that the insurers violated state law by unreasonably denying or delaying his request for coverage. USAA argued that its policy would not be triggered until State Farm exhausted its’ policy limit so it could not have violated the law. State Farm argued that it did not act unreasonably because Wenzell was injured in a prior accident that raised concerns over which accident caused Wenzell’s claimed injuries. Both insurers also argued that Wenzell failed to cooperate because he did not provide them with medical record release authorizations. Wenzell responded by claiming that the insurers were precluded from raising a noncooperation defense because they did not meet the requirements of C.R.S. Section 10-3-1118, which requires an insurer to meet certain requirements in its request for information from an insured person.
The district court granted summary judgment for the insurers, finding that Wenzell failed to cooperate with the insurers, and that USAA did not have an independent duty to evaluate Wenzell’s claim until State Farm’s policy limits were exhausted, as USAA was a secondary insurer.
Issue: Whether the insurers met the requirements to bring the noncooperation defense.
The division held that the insurers did not meet the statutory requirements before asserting the noncooperation defense and USAA must conduct a claim investigation into Wenzell’s claim. The insurers did not meet the requirements of Section 10-3-1118 because they did not request Wenzell’s records formally and in writing, even though they had a year to do so. Additionally, the USAA policy did not require the exhaustion of the State Farm policy, so USAA had an independent duty to conduct a claim investigation.
Woodall v. Godfrey
Division VI, Opinion by Judge Lum; Judges Welling and Yun concur.
Decision: Reversed and remanded.
Procedure: On appeal from Douglas County District Court, Judge Andrew C. Baum.
Factual background and district court holding:
Plaintiff, James Woodall, experienced a mental health crisis that caused police officers to come to his home. When Office Luke Godfrey arrived on the scene, Woodall was standing in the street with a knife. Godfrey fired a nonlethal weapon at Woodall, and another office shot Woodall with a rifle four times. Woodall survived but suffered serious injuries. As a result, Woodall brought civil rights claims for use of excessive force and violation of due process under C.R.S. Section 13-21-131.
Godfrey filed a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, which the district court granted on the grounds that Woodall failed to allege that Godfrey’s actions “[were] grossly disproportionate to the need for action; [were] inspired by malice rather than merely carelessness; or demonstrated unwise, excessive zeal amounting to an abuse of official power that shocks the conscience.”
Issue: Whether the “objective reasonableness” standard should be used to evaluate an excessive force claim under C.R.S. Section 13-21-131.
The division reversed the district court’s dismissal of the action, holding that the “objective reasonableness” standard laid out in Graham v. Connor, 490 US 386, 395 (1989) is the proper standard to apply in evaluating an excessive force claim under C.R.S. Section 13-21-131. Under this standard, a plaintiff alleging a violation of civil rights must establish (1) that the use of force was objectively unreasonable and (2) a cause in fact between the conduct complained of and the constitutional deprivation.
Here, the district court dismissed the action based on factors that are not required by the Graham standard, such as that the actions were inspired by malice, were grossly disproportionate, and shocked the conscience. Further, the division ruled that, accepting Woodall’s factual allegations are true, he plausibly alleged the elements of an excessive force claim.
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