24CA1091 Martinez v Martinez 10-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1091 Douglas County District Court No. 23CV30787 Honorable Gary M. Kramer, Judge
Luis Martinez,
Plaintiff-Appellant,
v.
Tarah Martinez,
Defendant-Appellee.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE MOULTRIE J. Jones and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 30, 2025
Gardner Legal Services, LLC, Matthew R. Gardner, Linton Wright, Boulder, Colorado, for Plaintiff-Appellant
Forbes Law Group, LLC, Peter C. Forbes, Denver, Colorado; Petrash Law, PLLC, Michael Petrash, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiff, Luis Martinez (Luis), appeals the district court’s entry
of judgment dismissing his malicious prosecution complaint against
defendant, Tarah Martinez (Tarah).1 We affirm the judgment and
remand to the district court for further proceedings.
I. Factual Background
¶2 In January 2021, the parties were married but had started
discussions about dissolving their marriage. The parties got into an
argument after Tarah sent Luis a proposal for the division of their
marital assets. The argument started in the bedroom of their home
before continuing into the living room, where their two-year-old
daughter was present. The parties had a video camera in their
living room, which is referred to throughout the record as a “puppy
cam,” so their interaction was audio- and video-recorded (puppy
cam video).
¶3 While in the living room, Luis yelled at the parties’ daughter,
“Your mother is trying to take my money.” Tarah told Luis to “stop”
and said that she would record him. When Tarah pulled out her
phone to record the interaction, Luis said, “OK, do it,” and then he
1 Because the parties share the same last name, we refer to them by
their first names. No disrespect is intended.
1 attempted to grab Tarah’s phone out of her hands, causing her to
drop her phone. Tarah responded by telling Luis, “Are you kidding
me?” and “Don’t f***ing touch me.” The parties’ dog was also
present in the living room and began barking erratically. The
puppy cam video showed Luis swing his hand at the dog, to which
Tarah told Luis, “Don’t you touch [the dog].” Luis then got within
inches of Tarah’s face and repeatedly asked her, “What are you
going to do?” called Tarah a vulgar name, and acted like he was
going to hit the dog.
¶4 After this incident (the incident), Tarah took her daughter and
the dog to a neighbor’s house and called 911. Two sheriff’s
deputies arrived at the neighbor’s house and took Tarah’s
statement about the incident. Tarah’s statement was captured on
both deputies’ body worn cameras.
¶5 In her statement to the deputies, Tarah said that Luis slapped
her cell phone out of her hand and hit the dog. She said she was
mostly scared when Luis knocked the phone out of her hand. In
addition to telling the deputies about the incident, Tarah showed
them the puppy cam video and, while watching the video, said that
2 Luis didn’t hit the dog.2 Shortly thereafter, Luis arrived at the
neighbor’s house and spoke to the deputies outside. Luis denied
hitting Tarah’s phone out of her hands. But the deputies told him
there was a video of the incident that showed otherwise and then
arrested him.
¶6 Luis was cited3 for criminally negligent child abuse, under
section 18-6-401(7)(b)(II), C.R.S. 2021,4 and harassment, under
section 18-9-111(1), C.R.S. 2025. Both offenses were charged as
acts of domestic violence under section 18-6-800.3, C.R.S. 2025.
The prosecution dismissed the child abuse charge before trial, and
a jury found Luis not guilty of harassment.
2 It’s unclear from the video whether Luis hit the dog. 3 The criminal summons and complaint, which was filed in Douglas
County Court Case No. 21M13, doesn’t appear in the record. However, we take judicial notice of the court records in that case because it is the case from which Luis’s malicious prosecution claim arises. See Harriman v. Cabela’s Inc., 2016 COA 43, ¶ 64 (noting that appellate courts “can ‘take judicial notice of the contents of court records in a related proceeding’” (quoting People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004))). 4 Section 18-6-401(7)(b)(II), C.R.S. 2021, which previously classified
child abuse as a class 3 misdemeanor, was amended after Luis was charged; it is now a class 2 misdemeanor. See Ch. 462, sec. 260, § 18-6-401(7)(b)(II), 2021 Colo. Sess. Laws 3192.
3 II. Procedural Background
¶7 After his acquittal, Luis filed the underlying civil complaint
against Tarah. The complaint included a claim for malicious
prosecution based on Luis’s assertion that the criminal charges
resulted from Tarah’s false statements to law enforcement. Tarah
filed a special motion to dismiss the complaint under section
13-20-1101, C.R.S. 2025, Colorado’s anti-SLAPP5 statute, arguing
that her report of the incident to law enforcement was a protected
activity as contemplated by the statute. She further argued that,
because she reasonably and in good faith believed Luis had
committed the acts for which he was ultimately charged at the time
she made the statements, her statements were made with “probable
cause,” and Luis therefore couldn’t establish a reasonable likelihood
of success on his malicious prosecution claim.
¶8 Tarah attached several exhibits to the special motion to
dismiss, including the puppy cam video, the body camera videos
5 “SLAPP” stands for “strategic lawsuit against public participation.”
Coomer v. Salem Media of Colo., Inc., 2025 COA 2, ¶ 3 n.1 (quoting Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 1 n.1).
4 from each of the deputies, and the video she took with her cell
phone during the incident.
¶9 In his response to the special motion to dismiss, Luis
conceded that Tarah’s report to law enforcement was a protected
activity under the anti-SLAPP statute but disputed whether
probable cause existed for her statements. He attached to his
response an unsworn declaration detailing his version of the
incident, which, unsurprisingly, contradicted Tarah’s version.
¶ 10 Citing a division of this court’s decision in L.S.S. v. S.A.P.,
2022 COA 123, ¶¶ 23-24, Luis argued that the court was required
to accept his allegations and evidence as true in resolving the
special motion to dismiss. He asserted that, pursuant to L.S.S., the
court should employ a summary judgment-like procedure to
evaluate the motion and should dismiss his complaint only if
Tarah’s evidence defeated his accepted-as-true allegations and
evidence as a matter of law. And he argued it was “clear” that,
applying the standard announced in L.S.S., he had established a
reasonable likelihood of success in proving his malicious
prosecution claim because Tarah didn’t have probable cause to
believe he had actually committed — rather than merely attempted
5 to commit — harassment or child abuse as acts of domestic
violence. Accordingly, he argued the court should deny the special
motion to dismiss.
¶ 11 The court held an evidentiary hearing as required by the
anti-SLAPP statute. See § 13-20-1101(5) (requiring that a special
motion to dismiss to be set for a hearing “not more than twenty-
eight days after the service of the motion” unless the court’s docket
conditions necessitate a later hearing). During the hearing, the
court considered the video exhibits that Tarah had attached to her
special motion to dismiss. The court concluded that Luis hadn’t
established a reasonable likelihood of prevailing on his malicious
prosecution claim because he hadn’t shown that Tarah lacked
probable cause to believe that he committed harassment, child
abuse, and domestic violence. After applying the standard set forth
in L.S.S., the court dismissed his complaint.
6 ¶ 12 Luis now appeals, arguing6 that the court erred by granting
Tarah’s special motion to dismiss because Tarah lacked probable
cause for the accusations giving rise to the charges in his criminal
case. He asserts that he can establish that he is reasonably likely
to prevail on his malicious prosecution claim. For the reasons
discussed below, we aren’t persuaded.
III. Applicable Legal Principles
A. The Probable Cause Element of Malicious Prosecution
¶ 13 The tort of malicious prosecution provides a plaintiff with a
remedy when “a person knowingly initiates baseless litigation,”
including baseless criminal prosecution. Schnelle v. Cantafio, 2024
COA 17, ¶ 12 (quoting Parks v. Edward Dale Parrish LLC, 2019 COA
6 Luis also argues that the court erred by violating the party
presentation principle when it considered elements other than the probable cause element of malicious prosecution and subsequently concluded that he also couldn’t prevail in demonstrating those elements. Because we conclude that Luis hasn’t demonstrated a reasonable likelihood of prevailing on the probable cause element of malicious prosecution, his claim necessarily fails, and we don’t consider the additional arguments he raises on appeal. See Montgomery Ward & Co. v. Pherson, 272 P.2d 643, 645 (Colo. 1954) (“The existence of probable cause is alone sufficient to relieve a defendant of a charge of malicious prosecution.”); see also Sedgwick Props. Dev. Corp. v. Hinds, 2019 COA 102, ¶ 31 (noting that an appellate court should exercise judicial restraint by not deciding more than is necessary).
7 19, ¶ 11 n.3), aff’d, 2025 CO 39. A plaintiff must establish, in
relevant part, that the defendant lacked probable cause to bring the
prior action in order to prevail on a malicious prosecution claim.7
See Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007).
¶ 14 “Probable cause requires that the defendant believed ‘in good
faith . . . in the [wrongful conduct] of the [plaintiff in the underlying
action], and that such belief [was] reasonable and prudent.’”
Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 27 (alterations in
original) (quoting Montgomery Ward & Co. v. Pherson, 272 P.2d 643,
646 (Colo. 1954)). Factors informing whether a defendant’s belief
was reasonable, prudent, and in good faith may include (1) the
extent of the defendant’s knowledge of or involvement in the
circumstances of the underlying action; (2) whether there is any
indication that the defendant was aware of the applicable legal
standards or that the plaintiff’s conduct might be prosecutable
criminal conduct; and (3) whether the defendant provided law
7 A plaintiff in a malicious prosecution case must establish the
following elements: (1) the defendant contributed to bringing a prior legal proceeding against the plaintiff; (2) the prior legal proceeding ended in the plaintiff’s favor; (3) the absence of probable cause for the prior action; (4) defendant’s malice; and (5) damages. Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007).
8 enforcement with a complete, honest, and fair statement of facts.
See Salazar, ¶¶ 28-30.
¶ 15 A plaintiff’s acquittal in a prior criminal prosecution isn’t
dispositive of whether the defendant had probable cause to believe
that the plaintiff committed the acts underlying the prior criminal
prosecution. See Pherson, 272 P.2d at 646 (concluding that a
defendant in a suit based on malicious prosecution “may have
probable cause for the filing of the charges even though subsequent
events may prove such charges to be erroneous”).
B. Harassment, Child Abuse, and Domestic Violence
¶ 16 A person commits harassment under section 18-9-111(1)(a) if,
“with intent to harass, annoy, or alarm another person,” he strikes
or otherwise touches or physically contacts the other person.
¶ 17 A person commits criminally negligent child abuse when, as
relevant here, he permits a child “to be unreasonably placed in a
situation that poses a threat of injury to the child’s life or health”
but no injuries occur to the child. § 18-6-401(1)(a), (7)(b)(II), C.R.S.
2021.
¶ 18 When a law enforcement officer completes a summons and
complaint alleging criminal acts, the officer must indicate on the
9 face of the document “whether the facts forming the basis of the
alleged criminal act[s], if proven, could constitute domestic
violence.” § 18-6-801.6, C.R.S. 2025. Domestic violence is defined
in relevant part as “an act or threatened act of violence upon” a
spouse or other person with whom the actor shares an intimate
relationship. § 18-6-800.3(1)-(2). It includes any crime against a
person or property (including an animal), when the actor uses the
act or threatened act of violence as a method of coercion,
punishment, intimidation, or revenge. § 18-6-800.3(1).
C. Colorado’s Anti-SLAPP Statute and Interpretive Case Law
¶ 19 The General Assembly enacted the anti-SLAPP statute to
“encourage and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the
same time, to protect the rights of persons to file meritorious
lawsuits for demonstrable injury.” § 13-20-1101(1)(b).
¶ 20 If a plaintiff brings a lawsuit against a defendant based on the
defendant’s exercise of rights protected by the anti-SLAPP statute,
the defendant may file a special motion to dismiss.
§ 13-20-1101(3)(a). In considering a special motion to dismiss, the
10 district court “make[s] an early assessment about the merits of
claims brought in response to a defendant’s petitioning or speech
activity.” Salazar, ¶ 12. A district court makes this early
assessment by first determining whether the defendant’s action that
is the subject of the plaintiff’s cause of action was in furtherance of
the defendant’s constitutional right of petition or free speech in
connection with a public issue. § 13-20-1101(3)(a).
¶ 21 If the defendant makes this threshold showing, then the
burden shifts to the plaintiff to establish that there is a reasonable
likelihood that he will prevail on the claim. Id.; see Salazar, ¶ 21.
To determine whether a plaintiff has established a reasonable
likelihood of prevailing on the claim, the district court “shall
consider the pleadings and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.”
§ 13-20-1101(3)(b). While the anti-SLAPP statute doesn’t define
“reasonable likelihood,” we treat this phrase as synonymous with
“reasonable probability.” Salazar, ¶ 23; see Dallman v. Ritter, 225
P.3d 610, 621 (Colo. 2010) (noting that analyzing whether a request
for relief has a “reasonable probability” of success on the merits
“requires the court to substantively evaluate the issues as it would
11 during trial”). The court’s determination of whether a plaintiff has a
reasonable likelihood of prevailing on a claim is only a preliminary
determination and is neither admissible nor binding on later stages
of the proceeding. See § 13-20-1101(3)(c).
¶ 22 However, there is a split among divisions of this court
regarding how a court (in the first instance or on review) should
consider the pleadings and any supporting or opposing evidence to
make a preliminary determination of whether a plaintiff has a
reasonable likelihood of prevailing on the claim.
¶ 23 We characterize the split as follows: Does a court accept a
plaintiff’s evidence as true, which can be rebutted only by
information from the defendant that defeats the plaintiff’s claim as
a matter of law, or does a court assess a plaintiff’s evidence, by
considering all of the information and evidence presented to it from
either party, without affording special weight to the plaintiff’s
evidence? Compare L.S.S., ¶¶ 22-24 (concluding that a court
“accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law” (citation omitted)), and Coomer v. Donald
J. Trump for President, Inc., 2024 COA 35, ¶ 63 (same), and
12 Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 26 (same),
and Gonzales v. Hushen, 2023 COA 87, ¶ 21 (same), rev’d on other
grounds, 2025 CO 37, with Salazar, ¶¶ 20-21 (reasoning that,
because a court’s consideration of a special motion to dismiss
determines whether there is sufficient evidence for a case to
proceed, a court “neither simply accept[s] the truth of the
[plaintiff’s] allegations nor make[s] an ultimate determination of
their truth,” but rather “assess[es] whether the allegations and
defenses are such that it is reasonably likely that a jury would find
for the plaintiff”), and Coomer v. Salem Media of Colo., Inc., 2025
COA 2, ¶ 124 (Tow, J., specially concurring) (noting that if a court is
prohibited from weighing any evidence by accepting as true a
plaintiff’s evidence — even preliminarily — then the court isn’t
making any determination at all), and Jogan Health, LLC v. Scripps
Media, Inc., 2025 COA 4, ¶¶ 63-65, 74, 76 (Berger, J., specially
concurring) (opining that decisions purporting to apply the
analytical framework announced in L.S.S. have in fact weighed
evidence).
¶ 24 Because of the unique circumstances presented in this case,
we need not choose one analytical framework over the other. As we
13 explain below, even applying the more plaintiff-friendly approach
set forth in L.S.S. — under which we accept as true Luis’s
evidence — Tarah’s audio and video evidence documenting the
relevant events overcomes Luis’s evidence as a matter of law.
IV. Standard of Review
¶ 25 We review de novo a district court’s ruling on a special motion
to dismiss. Salazar, ¶ 21; see also Archangel Diamond Corp. v.
Lukoil, 123 P.3d 1187, 1195 (Colo. 2005) (“We review the
documentary evidence de novo.”).
V. Analysis
¶ 26 Luis doesn’t dispute that his malicious prosecution claim
arises out of Tarah’s petitioning activity or speech in connection
with a public issue. Thus, we only address the second step of the
anti-SLAPP analysis — whether Luis has demonstrated a
reasonable likelihood of success on his malicious prosecution claim
by showing that Tarah’s statements to law enforcement lacked
probable cause to support the conclusion that he had committed
harassment, child abuse, or domestic violence.
14 A. Luis Failed to Demonstrate that Tarah Lacked Probable Cause to Believe He Committed Harassment
¶ 27 Luis argues that Tarah lacked probable cause to believe that
he committed harassment because, as he alleged in his response to
the special motion to dismiss, he didn’t make physical contact with
Tarah.
¶ 28 Luis’s evidence is his unsworn declaration. See
§ 13-20-1101(3)(b) (stating that a “court shall consider the
pleadings and supporting and opposing affidavits” in its resolution
of a special motion to dismiss); §§ 13-27-101 to -108, C.R.S. 2025
(the Uniform Unsworn Declarations Act); see also Spiremedia Inc. v.
Wozniak, 2020 COA 10, ¶ 27 (noting that an unsworn declaration
that complies with article 27 of title 13 satisfies sworn affidavit
15 requirement).8 In it, he acknowledges trying to take Tarah’s phone
from her but asserts that she falsely told the deputies that he
“slapped the phone out of her hand.” Luis claims that he was
uncomfortable with being recorded, which is why he attempted to
take the phone from Tarah’s hands. He also alleges that Tarah
pulled the phone away from him and dropped it. He further argues
that even if he did touch Tarah, the video evidence isn’t “objectively
clear” enough to support the conclusion that he touched Tarah with
the intent to harass, annoy, or alarm her.
¶ 29 We disagree with Luis’s characterization of the evidence.
8 Section 13-27-106, C.R.S. 2025, of the Uniform Unsworn
Declarations Act provides that an unsworn declaration must, to qualify as a sworn declaration, be in substantially the form shown in that section. The declaration shown in that section says, “I declare under penalty of perjury under the law of Colorado that the foregoing is true and correct.” Luis’s declaration says the foregoing is true and correct to the best of his “knowledge, information, and belief.” It is questionable whether that qualifier renders the declaration compliant with section 13-27-106. See Unifoods, S.A. de C.V. v. Magallanes, 329 A.3d 256, 265 n.14, 275-78 (Conn. App. Ct. 2024) (a declaration made on “information and belief” doesn’t comply with the statute); see also Fed. Deposit Ins. Corp. v. Roldan Fonseca, 795 F.2d 1102, 1106 (1st Cir. 1986) (an affidavit made on knowledge, information, and belief isn’t competent evidence for summary judgment purposes). Nonetheless, we will assume that Luis’s declaration complies with the statute.
16 ¶ 30 Even though Luis alleges that he was uncomfortable with
Tarah recording him, immediately after she pulled out her phone
and told him that she was going to record him, he told her, “OK, do
it.” Mere seconds after saying that, he lunged toward Tarah to take
her phone. And the puppy cam video is objectively clear that Luis
made physical contact with Tarah in his attempt to take her phone
from her. This is further supported by Tarah telling Luis not to
touch her and the audio and video from Tarah’s phone, which was
recording as the phone fell to the floor.
¶ 31 After Luis’s physical contact with Tarah, his actions included
getting within inches of Tarah’s face and repeatedly asking her,
“What are you going to do?” and calling her a vulgar name. There is
no information in the record indicating that Tarah was aware of the
legal standards that might cause Luis to be charged with
harassment. Additionally, when the puppy cam video revealed a
potential discrepancy in Tarah’s recitation of the incident
concerning contact with the dog, she immediately retracted the
accusation concerning such contact that she had previously made
to the deputies.
17 ¶ 32 Thus, the puppy cam video rebuts Luis’s claim that Tarah
didn’t have a reasonably prudent, good faith belief that Luis
touched her with the intent to harass, annoy, or alarm her. See
Salazar, ¶ 27; L.S.S., ¶ 18. Accordingly, Luis failed to establish that
Tarah lacked probable cause to believe that he committed
harassment; thus, he has necessarily failed to establish a
reasonable likelihood of prevailing on his malicious prosecution
claim for the harassment charge. See Pherson, 272 P.2d at 645
(“The existence of probable cause is alone sufficient to relieve a
defendant of a charge of malicious prosecution.”).
B. Luis Failed to Demonstrate that Tarah Lacked Probable Cause to Believe He Committed Child Abuse
¶ 33 Luis argues the child abuse charge wasn’t supported by
probable cause because, except for one statement he made to the
parties’ daughter, his actions weren’t directed at her and they didn’t
pose a threat of injury to her. Luis doesn’t dispute that Tarah’s
knowledge was limited to the facts that served as the basis for the
criminal complaint. See Salazar, ¶¶ 28-30. Nor does Luis argue
that Tarah was aware of the applicable legal standard for negligent
child abuse. See id. Rather, Luis argues that Tarah didn’t provide
18 a “full, fair, and honest statement of facts” before the deputies
viewed the puppy cam video, which he asserts influenced the
deputies’ decision to make a warrantless arrest.
¶ 34 Luis asserts that Tarah’s statement of facts wasn’t full, fair,
and honest because she told the arresting deputy that he yelled and
screamed at their daughter, slapped the phone out of her hands,
and hit the parties’ dog. We disagree.
¶ 35 The puppy cam video definitively shows Luis yelling at the
parties’ daughter and making physical contact with Tarah in the
child’s presence. And Tarah retracted her initial, potentially
inaccurate accusation that Luis hit the parties’ dog. Other than his
bald assertion that Tarah’s statements somehow influenced the
deputies, Luis presents no evidence suggesting that her statement
impacted the deputies’ decision to arrest him. To the extent the
deputies did rely on Tarah’s statement to inform their decision to
make a warrantless arrest of Luis, there is no indication that they
relied on any inaccuracies that Tarah’s statements may have
contained. To the contrary, one of the deputies’ body camera videos
shows that, after Luis’s arrest, one deputy told Tarah that
19 [a judge] is going to read [the deputies’] arrest report and . . . [the judge is] going to say, “yes”, a crime occurred or, “no”, a crime didn’t [occur]. It’s . . . going to be “yes” a crime occurred . . . . You’ve got video footage and that’s . . . really what we’re going on here.
Thus, the deputies were able to reach their own conclusions about
whether Luis committed child abuse without necessarily relying on
Tarah’s statement.
¶ 36 Accordingly, we reject Luis’s assertion that Tarah lacked
probable cause to believe he committed child abuse, and we in turn
conclude that Luis failed to establish a reasonable likelihood of
prevailing on his malicious prosecution claim for the child abuse
charge. Pherson, 272 P.2d at 645.
C. Luis Failed to Demonstrate that Tarah Lacked Probable Cause to Believe He Committed Domestic Violence
¶ 37 We initially note that domestic violence is not a standalone
crime. People v. Disher, 224 P.3d 254, 256 (Colo. 2010). Rather,
when a court determines that a defendant has committed a crime
that meets the statutory definition of “domestic violence,” the
defendant is exposed to additional sentencing requirements. See id.
Regardless, a plaintiff may still establish a claim for malicious
prosecution if the facts in the underlying criminal action didn’t
20 amount to a criminal offense. See Pherson, 272 P.2d at 646; see
also Walford v. Blinder, Robinson & Co., 793 P.2d 620, 623 (Colo.
App. 1990) (“[T]he focus of an inquiry on whether a particular
proceeding may support a malicious prosecution action is whether
[the prior proceeding] caused the kind of damages that the
[malicious prosecution] action is designed to redress.”); Climax
Dairy Co. v. Mulder, 242 P. 666, 670 (Colo. 1925) (concluding that,
because the defendants had probable cause for commencing the
prior proceeding, they were not liable for malicious prosecution
despite the charge in the prior proceeding not amounting to a
crime).
¶ 38 Luis argues that Tarah didn’t have probable cause to believe
that he committed domestic violence because (1) he didn’t make
physical contact with her; (2) he was acquitted in the criminal case;
and (3) “the mere act of reaching for someone else’s phone” doesn’t
constitute an act of domestic violence. We reject his arguments for
two reasons.9
9 Because Luis’s physical contact with Tarah is sufficient to support
Tarah’s reasonable, good faith belief that Luis committed domestic violence, we don’t address his additional argument that his actions toward the dog didn’t amount to domestic violence.
21 ¶ 39 First, as previously established, the evidence supports the
conclusion that Luis made physical contact with Tarah when he
tried to take her phone out of her hands. We reject his argument
that the puppy cam video is “sufficiently ambiguous” to show
otherwise.
¶ 40 Second, Luis’s acquittal in the criminal case is in no way
dispositive of whether Tarah lacked probable cause to believe that
he committed domestic violence. Pherson, 272 P.2d at 645-46. The
standard for achieving a criminal conviction is significantly higher
than the probable cause standard in a malicious prosecution
action. Compare § 13-25-127, C.R.S. 2025 (“[T]he burden of proof
in any civil action shall be by a preponderance of the evidence.”),
with § 18-1-402, C.R.S. 2025 (the burden of proof in a criminal case
is proof “beyond a reasonable doubt”).
¶ 41 Luis thus also failed to demonstrate that Tarah lacked
probable cause to believe he committed domestic violence, and, as a
result, his malicious prosecution claim fails.
22 VI. Tarah’s Request for Attorney Fees and Costs
¶ 42 Tarah requests an award of all her attorney fees and costs
under section 13-20-1101(4)(a) and C.A.R. 39.1. In his briefing,
Luis didn’t address or oppose Tarah’s request.
¶ 43 If a defendant prevails on her special motion to dismiss, then
section 13-20-1101(4)(a) entitles her to recover her attorney fees
and costs. And C.A.R. 39.1 governs a party’s entitlement to
appellate attorney fees. See C.A.R. 39.1 (“In its discretion, the
appellate court may determine entitlement to and the amount of an
award of attorney fees for the appeal or may remand those
determinations to the lower court . . . .”).
¶ 44 Tarah has prevailed on her special motion to dismiss, so we
grant her request for reasonable district court and appellate
attorney fees and costs under section 13-20-1101(4)(a). See S. Colo.
Orthopaedic Clinic Sports Med. & Arthritis Surgeons, P.C. v.
Weinstein, 2014 COA 171, ¶¶ 19-21 (concluding that public policy
requires trial courts to consider whether requested attorney fees
and costs are reasonable even when fee-shifting language suggests
awarding “all” fees).
23 ¶ 45 Because the district court is in a better position than we are to
determine the reasonable attorney fees and costs that Tarah has
incurred, both in the district court and upon appeal, we remand the
case for further proceedings on that issue. See Stauffer v.
Stegemann, 165 P.3d 713, 719 (Colo. App. 2006); C.A.R. 39.1.
VII. Disposition
¶ 46 The judgment is affirmed. The case is remanded to the district
court with directions to determine the amount of Tarah’s reasonable
attorney fees, consistent with this opinion.
JUDGE J. JONES and JUDGE GRAHAM concur.