Colorado § 13-20-1101 - Action involving exercise of constitutional rights - motion to dismiss - appeal - legislative declaration - definitions.

§ 13-20-1101. Action involving exercise of constitutional rights - motion to dismiss - appeal - legislative declaration - definitions.

(1) (a) The general assembly finds and declares that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process.

(b) The general assembly finds that the purpose of this part 11 is 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.

(2) As used in this section, unless the context otherwise requires:

(a) "Act in furtherance of a person's right of petition or free speech under the United States constitution or the state constitution in connection with a public issue" includes:

(I) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;

(II) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;

(III) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

(IV) Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(b) "Complaint" includes a cross-complaint or a petition.

(c) "Defendant" includes a cross-defendant or a respondent.

(d) "Plaintiff" includes a cross-complainant or petitioner.

(3) (a) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States constitution or the state constitution in connection with a public issue is subject to a special motion to dismiss unless the court determines that the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim.

(b) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(c) If the court determines that the plaintiff has established a reasonable likelihood that the plaintiff will prevail on the claim, neither that determination nor the fact of that determination is admissible in evidence at any later stage of the case or in any subsequent proceeding, and no burden of proof or degree of proof otherwise applicable is affected by that determination in any later stage of the case or in any subsequent proceeding.

(4) (a) Except as provided in subsection (4)(b) of this section, in any action subject to subsection (3) of this section, a prevailing defendant on a special motion to dismiss is entitled to recover the defendant's attorney fees and costs. If the court finds that a special motion to dismiss is frivolous or is solely intended to cause unnecessary delay, pursuant to part 1 of article 17 of this title 13, the court shall award costs and reasonable attorney fees to a plaintiff prevailing on the motion.

(b) A defendant who prevails on a special motion to dismiss in an action subject to subsection (4)(a) of this section is not entitled to attorney fees and costs if that cause of action is brought pursuant to part 4 of article 6 of title 24 or the "Colorado Open Records Act", part 2 of article 72 of title 24; except that nothing in this subsection (4)(b) prevents a prevailing defendant from recovering attorney fees and costs pursuant to section 24-6-402 (9)(b) or 24-72-204.

(5) The special motion must be filed within sixty-three days after the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion must be scheduled for a hearing not more than twenty-eight days after the service of the motion unless the docket conditions of the court require a later hearing.

(6) All discovery proceedings in the action are stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery remains in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subsection (6).

(7) Except as provided in subsection (9) of this section, an order granting or denying a special motion to dismiss is appealable to the Colorado court of appeals pursuant to section 13-4-102.2.

(8) (a) This section does not apply to:

(I) An action brought by or on behalf of the state or any subdivision of the state enforcing a law or rule or seeking to protect against an imminent threat to health or public safety;

(II) Any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:

(A) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney fees, costs, or penalties does not constitute greater or different relief for purposes of this subsection (8)(a)(II)(A).

(B) The action, if successful, would enforce an important right affecting the public interest and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and

(C) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter; or

(III) Any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including but not limited to insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:

(A) The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services that are made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services; and

(B) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except when the statement or conduct was made by a telephone corporation in the course of a proceeding before the public utilities commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.

(b) Subsections (8)(a)(II) and (8)(a)(III) of this section do not apply to any of the following:

(I) Any publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed; or a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed; or any person engaged in the dissemination of ideas or expression in any book or academic journal while engaged in the gathering, receiving, or processing of information for communication to the public; or

(II) Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including but not limited to a motion picture, television program, or an article published in a newspaper or magazine of general circulation.

(9) If any trial court denies a special motion to dismiss on the grounds that the action or cause of action is exempt pursuant to subsection (8) of this section, the appeal provisions in subsection (7) of this section do not apply.

Source: L. 2019: Entire part added, (HB 19-1324), ch. 414, p. 3647, § 1, effective July 1.

Editor's note: In Hinds v. Foreman, 2026 CO 9, 583 P.3d 118, the Colorado Supreme Court held that subsection (7) of this section and section 13-4-102.2 are unconstitutional to the extent that they authorize the court of appeals to review final judgments, which conflicts with article VI, section 17, of the state constitution, and with section 13-6-310 (1).

ANNOTATION

Except for the exemptions in subsection (8), all appeals of orders on a special motion to dismiss must be filed with the court of appeals pursuant to subsection (7). VOA Sunset Hous. LP v. D'Angelo, 2024 COA 61, 555 P.3d 635.

Appellate review of ruling on special motion to dismiss under this section is de novo. Salazar v. Pub. Trust Inst., 2022 COA 109M, 522 P.3d 242; Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

A timely motion for reconsideration of an order denying a special motion to dismiss tolls the time for filing a notice of appeal under C.R.C.P. 59, because the trial court's order, though not final, is nevertheless appealable. Said v. Magdy, 2024 COA 109, 562 P.3d 123.

This section allows parties to file special motions to dismiss in county courts. VOA Sunset Hous. LP v. D'Angelo, 2024 COA 61, 555 P.3d 635.

This statute applies in federal court. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022); Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189 (D. Colo. 2023), appeal dismissed for lack of appellate jurisdiction, 98 F.4th 1320 (10th Cir. 2024).

In federal cases applying this statute, courts must determine whether the basis of a special motion is legal or factual. If the special motion mounts a legal challenge, courts assess the motion under Fed. R. Civ. P. 12(b)(6). If the motion mounts a factual challenge, courts assess the motion under Fed. R. Civ. P. 56. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022); Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189 (D. Colo. 2023), appeal dismissed for lack of appellate jurisdiction, 98 F.4th 1320 (10th Cir. 2024).

Where there are both legal and factual challenges, the court's analysis proceeds in two stages. First, the court applies the statute's two-step framework to the legal challenge; if any of the counterclaims do not survive that analysis, they are dismissed as under Fed. R. Civ. P. 12. Second, after any allowed amendments to the counterclaims and after discovery has been conducted, the court would then address factual challenges to the subject claims. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022).

When ruling on a special motion predicated on a factual challenge, federal courts apply the standards set forth in Fed. R. Civ. P. 56. Rule 56(c)(2) provides that a party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Under this standard, plaintiffs need not produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189 (D. Colo. 2023), appeal dismissed for lack of appellate jurisdiction, 98 F.4th 1320 (10th Cir. 2024).

In reviewing a special motion to dismiss, a court considers whether the motion and supporting affidavits establish a prima facie case that the plaintiff's claim arises from an act in furtherance of defendant's right to petition or right to free speech in connection with a public issue. If so, the court then considers whether the pleadings and supporting affidavits establish that the nonmoving party has a reasonable likelihood of success on the merits. Salazar v. Pub. Trust Inst., 2022 COA 109M, 522 P.3d 242; L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280; Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354; Anderson v. Senthilnathan, 2023 COA 88, 540 P.3d 1248; Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022); Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189 (D. Colo. 2023), appeal dismissed for lack of appellate jurisdiction, 98 F.4th 1320 (10th Cir. 2024); Jogan Health, LLC v. Scripps Media, Inc., 2025 COA 4, 565 P.3d 1160.

In determining whether the burden under the first step has been met, the court examines the principal thrust or gravamen of the counterclaims. Where a "mixed" claim is based on allegedly protected and unprotected activity under the statute, courts must determine whether the allegedly protected activity is merely incidental to the unprotected conduct. When allegations referring to arguably protected activity are only incidental to a claim based essentially on nonprotected activity, these incidental allegations are insufficient to subject the claim to the statute. This does not suggest, however, that courts need only make a quantitative comparison of allegations of protected versus nonprotected activity. At step one of the inquiry, a court's task is solely to determine whether any portion of a claim has even minimal merit within the meaning of the statute. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022).

The court assesses whether the allegations and defenses raised in the pleadings and supporting affidavits establish that it is reasonably likely that a jury would find for the plaintiff. The court neither accepts the truth of the plaintiff's allegations nor makes an ultimate determination whether the allegations are true. Salazar v. Pub. Trust Inst., 2022 COA 109M, 522 P.3d 242.

To defeat a special motion to dismiss, a plaintiff must present evidence establishing a reasonable likelihood of prevailing on the claim. While the court does not necessarily accept the plaintiff's allegations as true, the court must accept the plaintiff's evidence as true. The court assesses the defendant's evidence only to determine if it defeats the plaintiff's claim as a matter of law. Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, 552 P.3d 562.

A plaintiff need not support every allegation of the complaint by affidavit or admissible evidence to establish a reasonable likelihood that the plaintiff will prevail on the claim. However, if a defendant refutes mere allegations in a complaint with affidavits or other evidence, the defendant will generally prevail unless the plaintiff responds with other evidence. Wright v. TEGNA Inc., 2024 COA 64M, 556 P.3d 333.

A court cannot weigh the evidence nor make credibility determinations at the special motion to dismiss juncture. L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280; Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

Where plaintiff and defendant presented competing narratives, the plaintiff's allegations were sufficient to create a factual issue despite plaintiff's evidence of actual malice not being particularly compelling. L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280.

Where parties argued over whether social media account impersonating a candidate constituted an invasion of privacy by appropriation of name and likeness or was protected by a first amendment privilege, plaintiff candidate established a reasonable likelihood of success on the misappropriation claim. Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Where the defendant concedes, or the evidence conclusively establishes, that the defendant's asserted protected activity was illegal as a matter of law, the defendant is precluded from using this section to strike the plaintiff's action. But where allegations that the defendant made false reports are controverted, the evidence is insufficient to render the asserted protected activity unlawful as a matter of law. L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280; Anderson v. Senthilnathan, 2023 COA 88, 540 P.3d 1248.

Orders denying special motions to dismiss necessarily involve fact weighing and thus cannot be completely separate from the merits. Thus, the collateral-order doctrine does not allow appeals from orders denying special motions to dismiss under this section. Coomer v. Make Your Life Epic LLC, 98 F.4th 1320 (10th Cir. 2024).

"Reasonable likelihood" means "reasonable probability" for purposes of this section. Salazar v. Pub. Trust Inst., 2022 COA 109M, 522 P.3d 242; Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354; Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189 (D. Colo. 2023), appeal dismissed for lack of appellate jurisdiction, 98 F.4th 1320 (10th Cir. 2024).

Where a defendant files a special motion to dismiss a claim that is based on the defendant's alleged misuse of the judicial process in connection with the defendant's challenging governmental activity, the court considers the standard articulated in Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984), in determining whether the plaintiff has a reasonable likelihood of succeeding on the claim. Salazar v. Pub. Trust Inst., 2022 COA 109M, 522 P.3d 242.

In order to withstand a special motion to dismiss where actual malice will have to be proven by clear and convincing evidence at trial, a plaintiff must establish a probability that they will be able to produce clear and convincing evidence of actual malice at trial. L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280; Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354; Anderson v. Senthilnathan, 2023 COA 88, 540 P.3d 1248; Coomer v. Donald. J. Trump for President, Inc., 2024 COA 35, 552 P.3d 562; Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

Although a court may not make credibility determinations as to the evidence submitted, that does not mean that a court cannot make determinations as to the reliability of the defendant's account at the time of defendant's statements, based upon the evidence presented by the parties. Evidence bearing on the reliability of a defendant's source of information, known to the defendant at the time of the statement, may be relevant to actual malice. Such determinations are part of the substantive legal analysis as to whether the plaintiff has established a reasonable likelihood of prevailing on their claims. Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

Defendant's argument that he believed his statements to be true, while certainly an argument for the jury, is not enough to prevail at the special motion to dismiss juncture because the plaintiff's evidence, taken as true, shows a reasonable likelihood of being able to present clear and convincing evidence that the defendant, a radio talk show host, had reason to doubt the veracity of his guest because the talk show host knew that his guest's account was based on a wholly anonymous and unsubstantiated speaker. Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

This section applies to a forcible entry and detainer proceeding so long as the conduct underlying the forcible entry and detainer claim falls within the scope of this section. VOA Sunset Hous. LP v. D'Angelo, 2024 COA 61, 555 P.3d 635.

On its own, an injunction is not subject to a special motion to dismiss because an injunction is a remedy, not an independent cause of action. An injunction flows from the substantive claim to which it is attached. Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, 552 P.3d 562.

Two-step test to determine if particular speech or conduct concerns a public issue or an issue of public interest. First, the court must determine whether an objective observer could reasonably understand that the challenged speech or conduct, considered in light of its content and context, was made in connection with a public issue or an issue of public interest, even if it also implicates a private dispute. Second, the court must examine the relationship between the challenged speech or conduct and the public issue or issue of public interest identified, and whether the challenged activity contributed to public discussion or debate regarding that issue. Lind-Barnett v. Tender Care Vet. Ctr., 2025 CO 62, 580 P.3d 573.

A speaker's motive is irrelevant in determining whether the challenged speech or conduct is made in connection with a public issue or an issue of public interest. Lind-Barnett v. Tender Care Vet. Ctr., 2025 CO 62, 580 P.3d 573.

Statements made on social media and before the legislature were statements "made in . . . a public forum" under subsection (2)(a)(III). Anderson v. Senthilnathan, 2023 COA 88, 540 P.3d 1248.

Allegations of sexual assault against an elected official were statements "in connection with an issue of public interest" under subsection (2)(a)(III). Anderson v. Senthilnathan, 2023 COA 88, 540 P.3d 1248.

No reasonable likelihood of success on civil conspiracy claim where plaintiff candidate failed to present indicia of a collective agreement among defendants apart from shared political ideology, which is insufficient to demonstrate the necessary meeting of the minds. Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Creation of a social media account impersonating a city council candidate was a "statement", and, because the medium for the statement was a public Twitter account, the statement was made in a "public forum" under subsection (2)(a)(III). Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Creation of social media account impersonating city council candidate and containing a link to public discourse about the candidate's fitness for office was a statement made "in connection with an issue of public interest" under subsection (2)(a)(III). Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Partially prevailing defendant on a motion filed under subsection (3)(a) is considered a prevailing party for purposes of attorney fees and costs under subsection (4)(a) unless the results of the partially successful motion were so insignificant that the defendant did not achieve any practical benefit from bringing the motion. Determination of whether a party prevailed and to what extent a partial success warrants an award of attorney fees lies within district court's broad discretion. Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Partially prevailing defendant may be entitled to attorney fees on appeal. Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354.

Partially prevailing defendant who does not make a specific request that explains the legal and factual basis for an award of attorney fees, as required by C.A.R. 39.1, is not entitled to an award of attorney fees on appeal. Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

Allegations related to initiation of a lawsuit are protected under this statute. The constitutional right to petition reaches communications preparatory to or in anticipation of filing a lawsuit. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022).

First, in the context of special motions, whether documents are privileged or confidential is irrelevant at the first step of the inquiry. Second, that courts have held that the use of certain documents for pre-litigation purposes is improper in other contexts does not mean that the conduct falls outside this statute's ambit. In the context of this statute, a party's use of allegedly confidential information for pre-litigation purposes is only fatal at step one where the use of that information is conclusively demonstrated to have been illegal as a matter of law. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022).

In this case, there were no allegations that conclusively establish that the alleged retention and disclosure of confidential documents was illegal or not in furtherance of the preparation of the lawsuit. Moreau v. U.S. Olympic & Paralympic Comm., 641 F. Supp. 3d 1122 (D. Colo. 2022).

Even a defendant who only partially prevails on a special motion to dismiss is generally considered a "prevailing defendant" for purposes of determining whether the defendant is entitled to recovery of attorney fees and costs, unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. Wright v. TEGNA Inc., 2024 COA 64M, 556 P.3d 333.

To establish good cause to lift a discovery stay under subsection (6), the requesting party is required to show that discovery is necessary and tailored to oppose the special motion. Jogan Health, LLC v. Scripps Media, Inc., 2025 COA 4, 565 P.3d 1160.

The trial court erred by denying the special motion to dismiss where the plaintiff did not provide any evidence showing that the defendants agreed to defame him or inflict emotional distress upon him. It is not enough for the plaintiff to argue that the defendants' actions constituted part of a greater political scheme to undermine the 2020 election generally; plaintiff's claim of conspiracy must be dismissed. Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133.

A proceeding is quasi-judicial if it involves a determination of the interests, rights, or duties of specific individuals and the application of current law or policy to present or past facts. Therefore, any statements made during the proceeding are protected by absolute privilege and cannot be used as the basis for a civil lawsuit against the participant who made those statements. Hushen v. Gonzales, 2025 CO 37, 570 P.3d 473.