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VOA Sunset Housing LP v. D’Angelo.

2024 COA 61. No. 23CA0458. Action Involving Exercise of Constitutional Rights—Anti-SLAPP Statute—County Courts—Forcible Entry and Detainer Action—Court of Appeals Jurisdiction.

May 30, 2024

VOA Sunset Housing LP (the landlord) brought a forcible entry and detainer (FED) action against D’Angelo, a tenant. The landlord sought to evict D’Angelo from his federally subsidized apartment for various reasons, some of which implicate potentially protected rights to free speech and to petition, such as posting statements on Facebook about alleged drug activities, distressed conditions, and employee misconduct at the property. D’Angelo filed a special motion to dismiss under Colorado’s anti-SLAPP (strategic lawsuits against public participation) statute, CRS § 13-20-1101. The county court reasoned that the anti-SLAPP statute doesn’t apply in FED actions and that the landlord’s claim is based on a breach of contract rather than free speech or petitioning rights, so it denied the motion. D’Angelo immediately appealed to the court of appeals and requested a stay of the trial, which the county court also denied. While this appeal was pending, the county court entered judgment for possession in favor of the landlord on grounds unrelated to the Facebook posts. D’Angelo appealed that judgment to the district court and obtained a stay of the judgment during that appeal. The district court then reversed the judgment, and the county court on remand scheduled a new trial, which the court stayed.

On appeal, the court noted that county court rulings are typically subject to review by district courts and to certiorari review by the Colorado Supreme Court. However, the anti-SLAPP statute doesn’t preclude special motions to dismiss from being filed in county courts, and it expressly provides that the appeal of a ruling on such motion is to the court of appeals. Accordingly, the court determined that the anti-SLAPP statute applies in county court proceedings and in FED proceedings, as long as the actions arise from protected speech or petitioning in connection with a public issue. Further, the anti-SLAPP statute allows parties to file special motions to dismiss in county courts and in FED proceedings, and it confers jurisdiction on the court of appeals to review rulings on such motions.

On the merits, D’Angelo argued that the county court erred by not conducting the two-part analysis required by the anti-SLAPP statute. A court considering a special motion to dismiss must determine (1) whether the defendant made a threshold showing that the conduct underlying the plaintiff’s claim arises from an act in furtherance of the defendant’s petition or free speech rights in connection with a public issue, and is thus within the scope of the anti-SLAPP statute, and, if so, (2) whether the plaintiff has established a reasonable likelihood of prevailing on the claim based on the pleadings and affidavits. Whether an action falls within the anti-SLAPP statute’s scope doesn’t depend on the type of claim pleaded but on the conduct underlying the claim. Here, the county court did not conduct the two-step analysis because it concluded that the anti-SLAPP statute doesn’t apply to this case. In addition, the county court prematurely denied the special motion to dismiss without giving the landlord an opportunity to offer sufficient evidence to support a likelihood of success on its claim. Accordingly, the county court erred in assessing the special motion to dismiss.

The order denying the motion was reversed and the case was remanded with directions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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