HomeMy WebLinkAbout2018CV220 - Stacy Lynne V. Noah Beals, Senior Planner, And Jeremy Call - 019 - Defendant Call's Reply In Support Of Motion To DismissDISTRICT COURT, LARIMER COUNTY,
STATE OF COLORADO
201 LaPorte Ave.
Fort Collins, CO 80521
▲COURT USE ONLY▲
Plaintiff: STACY LYNNE
v.
Defendants:
NOAH BEALS, Senior Planner, City of Fort Collins, in
his individual and official capacity
JEREMY CALL, Senior Associate – Logan Simpson
Design, Contractor for the City of Fort Collins, in his
individual and official capacity
Attorney for Plaintiff:
Theresa L. Corrada, #22301
Benezra & Culver, P.C.
633 17th Street, Suite 1450
Denver, CO 80202
(303) 716-0254 phone
(303) 716-0327 fax
tlcorrada@bc-law.com
Case No: 18CV220
Div./Ctrm: 3C
DEFENDANT CALL’S REPLY IN SUPPORT OF MOTION TO DISMISS
Defendant Jeremy Call, by and through undersigned counsel, submits the
following Reply in Support of his Motion to Dismiss.
DATE FILED: February 1, 2019 5:26 PM
FILING ID: 2256B0F18BBB8
CASE NUMBER: 2018CV220
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Substantial Truth
In his Motion to Dismiss, Call argues that the statement attributed to him (that
Lynne was on a “misinformation campaign”) cannot support a defamation claim
because the allegations set out in the Complaint show that the gist of the statement was
true. In cases involving matters of public concern,
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the plaintiff has a heightened burden
and must prove a statement’s falsity by clear and convincing evidence. Lockett v.
Garrett, 1 P.3d 206, 210 (Colo.App. 1999). Lynne’s Complaint contains no plausible
“clear and convincing” basis for concluding that Call’s statement that Lynne was on a
“misinformation campaign” was materially false.
On page 5 of the Objection,
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Lynne argues that she has shown Call’s statement
was false through her allegations that she is “explicitly meticulous in the accurate
dissemination of information.” But this argument disregards the fact that one can tell the
technical truth about something and still misinform. The Complaint establishes that
Lynne told multiple business owners that “votes” were taken at the meeting about the
revisions to the sign code. The statement was technically true, in that the presenters
had apparently used the word “vote” to refer to an informal clicker poll. But Lynne’s
“true” statement nevertheless misinformed the business owners by leading them to
believe the City was moving forward on proposed amendments without their
involvement.
1
On page 10, Lynne admits that the alleged defamation related to a matter of
public concern.
2
Plaintiff’s Objection contains pages of irrelevant material, including a purported
transcript of a phone call with an insurance adjuster, praise of the concept of due
process, and an argument about sovereign immunity. Because this material is irrelevant
and unrelated to any argument Call made in his Motion, it will not be addressed here.
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In ruling on a C.R.C.P. 12(b)(5) motion to dismiss, the meaning of allegedly
defamatory words is a matter of law left to the court—not a factual allegation to which it
must defer. Accordingly, the Court is not required to accept Lynne’s interpretation of
Call’s statement to mean that she was lying. See Fry v. Lee, 2013 COA 100, ¶ 29.
Therefore, Ms. Lynne’s allegation that everything she told the business owners
was true does not provide a clear and convincing basis for concluding that Call’s
statement was substantially false. A statement of opinion relating to matters of public
concern which does not contain a provably false factual connotation, or which cannot
reasonably be interpreted as stating actual facts about an individual, receives full
constitutional protection. Lockett v. Garrett, 1 P.3d 206, 210 (Colo.App. 1999).
Lack of Actual Malice
Lynne agrees that the defamation she alleges pertains to a matter of public
concern, and that she must prove that the defendant published the defamatory
statement with actual malice (see Objection, p. 10). Diversified Mgmt., Inc. v. Denver
Post, Inc., 653 P.2d 1103, 1106 (Colo.1982). However, Lynne points to no factual
allegations in her Complaint that would establish, with convincing clarity, that Call had a
high degree of awareness that the statements he made were probably false. Id. at
1108-1109; DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
Lynne’s bald assertions that Call’s lies were “intentional” and “malicious” and that
he “conspired” with City actors to lie about her are unavailing. See Vickery v. Evelyn V.
Trumble Living Tr., 277 P.3d 864, 869 (Colo. App. 2011) (The Court must disregard
speculative and conclusory statements.). Likewise, conclusory allegations that Call
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acted with actual malice must be disregarded. Fry v. Lee, 2013 COA 100, ¶ 57. Since
Lynne is unable to point to any factual allegation in her complaint that, if proven, would
establish actual malice on the part of Mr. Call, her claim must be dismissed.
Conclusion
“[B]ecause the threat of protracted litigation could have a chilling effect on the
constitutionally protected right of free speech, prompt resolution of defamation actions,
by summary judgment or motion to dismiss, is appropriate.” Barnett v. Denver Pub. Co.,
Inc., 36 P.3d 145, 147 (Colo.App. 2001). Defendant Jeremy Call moves the Court to
dismiss Plaintiff’s claim with prejudice and award him his reasonable attorney fees.
Respectfully submitted this 1st day of February, 2019.
BENEZRA & CULVER, P.C.
By: s/Theresa L. Corrada
Attorney for Defendant
In accordance with C.R.C.P. 121 § 1-26(7), a printed copy of this document with original
signatures is being maintained by the filing party and will be made available for inspection by other
parties or the Court upon request.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that she has served the foregoing via ICCES on
the following via mail or electronically:
Stacy Lynne
Kimberly B. Schutt
By: s/Theresa L. Corrada