By: Alan Schindler, Esq., Anna Goldman, Esq., Brittany Fria *, and Hanna Woods *
Wright v. Tegna
Division VI, Opinion by Judge Taubman, Judges Freyre and Schutz concur.
Decision : Judgment reversed and remanded for further proceedings consistent with the opinion.
Procedure : On appeal from Elbert County District Court, Judge Kramer.
Factual background and district court holding :
The defendants, collectively “9News”, planned to cover a pro-police organization’s “Patriot Muster” rally and an “Antifa Soup Drive” counterdemonstration in Denver’s Civic Center Park in October 2020. Given the history of clashes between these groups, 9News sought to hire a security guard to protect its employees covering the events. 9News hired an independent contractor, Pinkerton, to provide security services. Pinkerton then hired Isborn Security Services, LLC. Isborn hired Matthew Dolloff, primarily as a “crowd control” independent contractor. On the day of the rally and counterdemonstration, Dolloff accompanied 9News producer Zachary Newman. Dolloff was armed.
The plaintiff, Wright, attended the “Patriot Muster” rally with his friend, Keltner. As they were leaving, the two got into an altercation with Elliot, a counterdemonstrator. The altercation quickly escalated when Keltner pulled a can of pepper spray from his pocket. 9News producer Newman recorded this conflict on his phone. Keltner asked Newman to stop recording and then reached for Newman’s phone. When Dolloff stepped in front of Newman, Keltner slapped Dolloff and sprayed him with pepper spray. Dolloff shot and killed Keltner. Wright was standing near Keltner when he was shot.
Wright brought nine claims for negligent infliction of emotional distress against Elliot, Dolloff, Isborn, Pinkerton, and 9News.
In response, 9News filed a special motion to dismiss under Colorado’s anti-SLAPP statute, section 13-20-1101. 9News argued that the claims must be dismissed because Wright failed to provide admissible evidence to establish a reasonable likelihood of prevailing on the claims. In contrast, Wright contended that the court may rely on the allegations of his complaint, even if they are rebutted by affidavits or other evidence presented by 9News.
Issue : What is the quality and quantity of evidence a plaintiff must present in order to “establish[]…a reasonable likelihood that the plaintiff will prevail on the claim,” the second prong in the court’s assessment of an anti-SLAPP motion to dismiss?
In evaluating an anti-SLAPP motion to dismiss, the court must determine whether the defendant has shown, 1) that the conduct underlying the plaintiff’s claim “arises from an act ‘in furtherance of the [defendant’s] right of petition or free speech…in connection with a public issue.’” (quoting 13-20-1101(3)(a)). If the defendant meets that threshold, 2) “[the] court…reviews the pleadings and affidavits and determines whether the plaintiff has established a reasonable likelihood [of] prevail[ing] on the claim.” Id.
The district court determined that the anti-SLAPP statute applied, finding that 9News was engaged in newsgathering during the altercation “because it took place directly following the rally and appeared to be a continuation of the rally, because it was in a public place, and because it involved allegations and cross-allegations of racism.” While the anti-SLAPP statute applied, the district court ultimately denied the dismissal of Wright’s claims against 9News: 1) for direct negligent infliction of emotional distress under the theory of negligent hiring, retention, and/or supervision of a security claim, and 2) 9News’s vicarious liability for the security guard’s negligent infliction of Wright’s alleged emotional distress.
A division of the Colorado Court of Appeals reversed the district court’s findings as to Wright’s first claim, holding that Wright failed to establish a reasonable likelihood that 9News was directly negligent in the hiring, retention, and/or supervision of Dolhoff. The division affirmed the district court in all other respects.
As to the anti-SLAPP motion, the division of the court of appeals held that, “while a plaintiff need not support every allegation by affidavit or tendering ‘admissible evidence,’ a defendant will generally prevail when the defendant proffers evidence, such as affidavits, that refutes the plaintiff’s unsupported allegations.” The court remanded for further proceedings consistent with this standard.
Freed v. Bonfire Ent. LLC
Division II, Opinion by Judge Fox; Judges Grove and Sullivan concur
Decision: Affirmed in part and reversed in part
Procedure: On appeal from District Court, Chaffee County, Judge Vise
Factual Background and District Court Holding
In January 2022, concert promoter Bonfire filed an application with the Board of County Commissioners of Chaffee County (BOCC) to hold a music festival at Meadows Farm. The BOCC subsequently issued a permit for the festival and determined that a noise exemption set forth in Colorado’s Noise Abatement Act, section 25-12-103(11), C.R.S. 2023, applied to the event. As such, the BOCC permitted noise levels at the festival that exceeded the residential limit.
In response, the plaintiffs—a group of property owners residing near Meadows Farm—filed a complaint against Bonfire asserting statutory nuisance, common law nuisance, and conspiracy to commit nuisance. They also sought a declaratory judgment and injunctive relief against Bonfire and the BOCC. The plaintiffs stated that the BOCC had granted similar permits in the past for concerts at Meadows Farm, and these events harmed their quality of life and enjoyment of their properties. Bonfire’s festival, they argued, would be no different.
In April 2023, several months after the music festival occurred, the district court dismissed the complaint. The court first determined that it lacked subject matter jurisdiction because the plaintiffs failed to seek a timely review of the permit under C.R.C.P. 106(a)(4), which requires a complaint against a governmental body to be filed within twenty-eight days. The court then concluded that even if it had jurisdiction, the claims would fail because, according to the court, section 25-12-103(11) exempts “permittees of political subdivisions from complying with the Noise Abatement Act’s limits when they hold . . . concerts or music festivals, even if the property is only used by a private, for-profit entity.”
Issues: (1) whether the district court erred in determining it lacked subject matter jurisdiction, and (2) whether the district court erred in its interpretation of section 25-12-103(11).
A division of the Colorado Court of Appeals affirmed the district court’s conclusion that it lacked subject matter jurisdiction over the declaratory judgment claim against the BOCC, but reversed its determination that it lacked jurisdiction over the claims against Bonfire. The division agreed that the complaint against the BOCC constituted an untimely request for judicial review of a governmental body’s quasi-judicial action under Rule 106(a)(4). The complaint against Bonfire, however, did not fall within the purview of the Rule because Bonfire is a private entity, not a governmental body. Accordingly, the Rule did not deprive the district court of subject matter jurisdiction over the claims against that party.
Turning to the issue of statutory interpretation, the division held that the noise exemption set forth in section 25-12-103(11) does not apply to a private entity’s event simply because the entity obtained a noise permit from a governmental body. Rather, in accordance with the General Assembly’s intent in enacting the Noise Abatement Act, the exemption applies to property that the state, political subdivisions, and other nonprofit entities use to hold a qualifying event. In other words, the property subject to the noise permit must be used by the entities permitted by statute, and Bonfire was not such an entity. Holding otherwise would prevent a plaintiff from seeking relief for a loud event against any private actor who leases property from the government, which would effectively “cause the exemption to swallow the rule.”
*Not attorneys; Ms. Fria and Ms. Woods are Colorado office summer associates with Greenspoon Marder’s Litigation practice.
