Court Opinions: Colorado Court of Appeals Opinions for Aug. 3

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Rosenblum v. Budd et al.

The Colorado Court of Appeals unanimously affirmed a judgment in part, reversed in part and remanded a case involving Colorado’s anti-SLAPP statute. SLAPP stands for strategic lawsuits against public participation.

In this anti-SLAPP case, Eric Budd and Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes and Boulder Progressives (the BPO defendants) appealed a district court’s denial of their special motions to dismiss the complaint of Steven Rosenblum for misappropriation, defamation and civil conspiracy.

Rosenblum, a Boulder resident and a member of Safer Boulder, a community group organized around public safety and housing issues, ran for Boulder City Council in 2021. Boulder Progressives, or BPO, is an advocacy group that adopted opposing stances on homelessness and public safety. All the defendants either were or remain members of BPO. 

As a basis for his claims against the BPO defendants and Budd, Rosenblum alleged the following facts.

In September 2020, an unidentified John Doe published screenshots of comments made by members of Safer Boulder on a blog called Safer Leaks. Doe apparently had access to Safer Boulder’s internal Slack channel and publicized distasteful comments contained therein, according to the opinion.

Rosenblum denied moderating the Slack channel and claimed many comments were made before he was added to the channel. Rosenblum admitted to making some of the Slack channel comments published on the Safer Leaks blog, stating: “I stand by things I said and I would say them again.”

The Safer Leaks blog contained links to subpages with separate profiles dedicated to certain Safer Boulder members. One of the pages was dedicated to Rosenblum and attributed to him comments from an anonymous Reddit account called /u/AurochForDinner. 

According to the appeals court opinion, Rosenblum has no connection to the /u/AurochForDinner account and didn’t make the statements falsely attributed to him.

On July 20, 2021, Rosenblum participated in a filmed interview with several community organizations regarding his candidacy for city council. During the interview, Budd questioned Rosenblum’s connection to Safer Boulder and the leaked comments. Rosenblum denied writing the Reddit comments. During the discussion Budd said, “I agree that Reddit account is not you.”

Budd later explained, in making the foregoing admission, he was trying to gain Rosenblum’s trust and get more information from him about the Slack comments, notwithstanding his claimed subjective belief Rosenblum could be /u/AurochForDinner. 

The record revealed Budd initiated an email exchange with Doe, the creator of Safer Leaks blog, almost two weeks earlier on July 8, 2021, asking whether Doe could bring forward sufficient evidence for the claim Rosenblum was /u/AurochForDinner. 

According to the appeals court opinion, shortly after the interview, a Twitter account in Rosenblum’s name was created and Budd doesn’t deny creating the impersonation account. A link to the Safer Leaks blog was put in the account’s bio. 

Rosenblum also found an impersonation Instagram account in his name and website under the domain that linked directly to the Safer Leaks blog. 

On Aug. 5, 2021, Doe responded to Budd’s July 8 inquiry, regarding the assumed connection between Rosenblum and /u/AurochForDinner, saying the attribution was based on “many coincidences.” Doe agreed to conduct additional research on the connection and asked Budd if he had any relevant information. 

Budd replied: “I don’t have much to *invalidate* the connection. Although I also don’t see anything direct that links the two, and that makes me uncomfortable since the Reddit account is much more aggressive and toxic than what I’ve seen from [Rosenblum] that can be directly attributed. Of course [Rosenblum] denied the Reddit account directly to me when I asked him.”

On Aug. 11, 2021, the BPO defendants circulated a letter opposing Rosenblum’s candidacy via email and blog. The letter contained a link to the Safer Leaks blog, copied several leaked screenshots from the blog and provided analysis for Rosenblum’s fitness for office. 

The letter contained the disclaimer about /u/AurochForDinner’s Reddit comments: “It’s important to note that the site linked above contains some screenshots from a Reddit account that Boulder Progressives agrees is not Steven Rosenblum. However, the content of the leaked Slack chats . . . is what the focus of this writing is about. It’s up to the public to determine whether or not Steven Rosenblum wrote these Slack posts . . . whether he stands by them, and if a candidate with such positions should be elected to city council.”

Later that day, Better Boulder, an organization Budd was a member of, held a meeting to discuss whether it would endorse Rosenblum’s candidacy. Budd raised the BPO letter at the meeting and Better Boulder decided not to endorse Rosenblum. Haynes, a BPO defendant, sent a letter to the local chapter of the Sierra Club shortly before it met to discuss endorsing Rosenblum — the chapter also decided not to endorse him.

On Aug. 17, 2021, about a week after the BPO defendants circulated their letter, Doe removed comments made about /u/AurochForDinner from the Safer Leaks blog, explaining Doe was no longer “confident in the connection” between the anonymous Reddit user and Rosenblum as Doe emailed the same to Budd.

Rosenblum lost the election by less than one percentage point.

In September 2021, Rosenblum filed a complaint alleging Budd and Doe defamed him and misappropriated his name and likeness. Rosenblum also alleged all the defendants engaged in a civil conspiracy against him. The BPO defendants filed a special motion to dismiss under Colorado anti-SLAPP statute — 13-20-1101. Budd also filed a motion to dismiss under the anti-SLAPP statute. 

After a Feb. 1, 2022 hearing on the anti-SLAPP motions, the district court denied the special motions to dismiss after finding: the anti-SLAPP statute applied to the conduct; and Rosenblum established a reasonable probability he could prove each claim by clear and convincing evidence at trial. 

The BPO defendants and Budd appealed the court’s denial of their special motions to dismiss. 

The appeals court concluded Rosenblum established a reasonable probability of success at trial on his misappropriation and defamation claims against Budd, but failed to do so on his civil conspiracy claim against Budd and the BPO defendants. 

The appeals court found a partially prevailing defendant on an anti-SLAPP motion filed pursuant to 13-20-1101(3)(a) needs to be considered a prevailing party for purposes of attorney fees and costs, unless the results of the partially successful motion were so insignificant the defendant didn’t achieve any practical benefit from bringing the motion. 

Under Colorado Appellate Rule 39.1 the appeals court remanded for the district court to determine whether Budd was a partially prevailing defendant, to what extent Budd’s partial appellate success, if any, warrant an apportionment of fees and the reasonableness of his appellate fees. 

The appeals court also concluded Rosenblum failed to establish reasonable probability of success at trial against the BPO defendants and instructed the district court to award them appellate attorney fees and costs. 

The judgment was affirmed in part, reversed in part and the case was remanded for further proceedings. 

King Soopers Inc. v. Industrial Claim Appeals Office of the State of Colorado, et al.

The Colorado Court of Appeals unanimously affirmed an order in a workers’ compensation action.

According to the appeals court opinion, in August 2021 Michael Waters, when performing his job duties as an assistant manager for King Soopers, was walking in the back area of the store carrying cardboard to a cardboard baler. When walking, Waters felt a “pop” in his right knee, falling to the ground. 

A security camera’s video recording of the incident shows after Waters took several steps, his right leg appeared to flex laterally and he fell. The area where Waters was working was dry, unobstructed and free of debris and prior to that date, Waters had no injuries, symptoms or treatments involving that knee, according to the appeals court opinion.

Waters saw Dr. Lori Long Miller the following day, using crutches and reporting he was unable to bear weight on his right leg. Miller noted swelling, tenderness and limited range of motion, among other things. 

Miller ordered magnetic resonance imaging which revealed an acute medial meniscal tear, as well as a possible posterior cruciate ligament sprain or reactive edema, moderate joint effusion and tricompartmental osteoarthritis. After the injury, Waters was able to work light duty for about a month. When his condition didn’t improve, Waters underwent arthroscopic partial medial meniscectomy surgery in September 2021. After recovery, Waters was cleared to resume work activities without restriction, and he returned to work in November 2021.

King Soopers and its insurer filed a notice of contest as Waters responded with an application for hearing. In January 2022, King Soopers requested Waters undergo an independent medical examination by a physiatrist, Dr. Lawrence Lesnak. Lesnak viewed the video of the incident and examined Waters. In his IME report, Lesnak concluded there was no industrial causation of the injury. 

Waters testified at an evidentiary hearing before an administrative law judge in February 2022. Lesnak didn’t testify, but the ALJ admitted his IME report. The ALJ noted King Soopers had scheduled Lesnak’s deposition for early March and agreed to keep the record open and subsequently admit the deposition as evidence in lieu of testimony. According to the appeals court opinion, the only issue at this hearing was compensability, with the parties stipulating to the amount of benefits if the injury was deemed compensable. 

Waters testified his job was very physical and involved moving displays and stocking shelves. On the date of the injury, he’d been at work for about six hours and was moving pallets of material from one point to another. Waters testified the pallets weighed several hundred pounds and he had difficulty moving one of the pallets. Waters broke down a display, put the cardboard on a pallet and took the pallet to the back room and when Waters was walking with the cardboard to the cardboard baler, his knee popped and he fell. Waters also testified he’d never had any issues, injuries or treatments involving his right knee and, up to that day, it felt fine.

During cross-examination, Waters testified he didn’t recall any twisting of the knee before it popped and he didn’t step on anything. When asked if he “abruptly turned or anything like that,” he replied, “I do that all day, but I don’t remember.” Waters said the cardboard was pretty thick, but he didn’t know how much it weighed. At the end of the hearing, the ALJ asked the parties to submit written position papers and left the hearing open for the admission of Lesnak’s deposition.

In the deposition, Lesnak testified that, after reviewing the video and the MRI and examining Waters, he concluded degenerative changes caused the knee injury. Specifically, Lesnak opined “any meniscus tear was present prior” to the incident at work and, during the incident, “a flap of the meniscus got caught between the femur and tibia when his knee flexed.” Lesnak also said degeneration caused the pop and carrying the cardboard didn’t contribute to the injury.  

During the deposition, Lesnak was asked if he agreed there was no indication Waters was having any knee issues leading up to his injury.

Lesnak said, “Well, I’m not sure what to say about that. I look at his gait and I see how he has a very exaggerated kind of bowlegged gait with his right knee, which clearly indicates chronic pathology involving the right knee. I mean, it is just not in alignment and not walking correctly. He did not seem to have any type of gait antalgia, meaning obvious signs of pain, when he was walking. But his gait was not normal.”

The ALJ after receiving the deposition and position papers and reviewing all the testimony and evidence, determined the knee injury was compensable. The ALJ found Lesnak’s deposition testimony contradicted his IME report. 

The ALJ also found “the video evidence of the Claimant’s injury shows no more than three visible steps, and only one step in which the Claimant’s gait could reasonably be seen. The ALJ finds Dr. Lesnak’s opinion that the Claimant’s right leg gait ‘clearly indicates chronic pathology involving the right knee’ to lack credibility, given that the video demonstrates only one step in which Claimant’s right knee appeared to bow outward. The ALJ finds Dr. Lesnak’s opinion that Claimant’s MRI and gait were indicative of a pre-existing meniscal tear, flap or extrusion that caught in his knee joint to be speculative and unpersuasive.” 

The ALJ determined Waters was engaging in an employment function when the injury occurred. The ALJ applied the “but for” test from the 2014 Colorado Supreme Court decision City of Brighton v. Rodriguez and found that, but for his employment, Waters wouldn’t have been walking when and where he was walking when the injury occurred. The ALJ concluded Waters established by a preponderance of the evidence that he sustained a compensable injury to his right knee in August 2021.

King Soopers appealed the ALJ’s determination to the Industrial Claim Appeals Office. According to the appeals court opinion, the panel affirmed the ALJ’s decision because substantial evidence in the record supported it. King Soopers appealed. 

In the case, the Colorado Court of Appeals addressed the following question: “Does an employee meet the burden of proof to obtain compensation for an on-the-job injury when the facts of record show that the cause of the injury is unknown, but not due to a preexisting condition or other personal risk?”

The appeals court answered it “yes” and affirmed the panel’s order. 

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