DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street, Room 256
Denver, Colorado 80202










COURT USE ONLY

_________________________

Case Number: 14CV032366

Courtroom/Division:
Plaintiff(s): Damian Stone

v.

Defendant(s): City and County of Denver and Lauri
Dannemiller, Executive Director of the Department of
Parks and Recreation

Attorneys for Defendant:
D. Scott Martinez
City Attorney

Patrick A. Wheeler, Reg. #14358
Nathan J . Lucero, Reg. #33908
Assistant City Attorney
Denver City Attorneys Office, Municipal Operations
201 West Colfax Avenue, Dept. 1207
Denver, CO 80202-5332
Telephone: (720) 913-3275
Facsimile: (720) 913-3180
E-mail: patrick.wheeler@denvergov.org
E-mail: nathan.lucero@denvergov.org

DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO MOTION TO DISMISS


The City and County of Denver and Lauri Dannemiller, Executive Director of the Denver
Department of Parks and Recreation (hereinafter Denver), submits this Reply to Plaintiff
Stones Response to Motion to Dismiss, and as grounds therefore, states the following:

Plaintiffs assertion that Defendant failed to confer in preparing and filing its Motion to
Dismiss is not accurate. The undersigned again certify that they attempted to confer in good
faith. Over the course of two days, the attorney for Defendant left four telephone messages at
Plaintiffs business phone (listed on the face of Plaintiffs pleadings), noting the purpose of the
phone calls. The undersigned, in his certification, ultimately stated, and correctly assumed,
Plaintiffs opposition to the relief requested in the Motion to Dismiss.

STANDARD OF REVIEW

C.R.C.P. 12(b)(1)

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A question of whether the Court has subject matter jurisdiction is properly addressed in a
C.R.C.P. 12(b)(1) motion to dismiss. Henderson v. City & Cnty. of Denver, 300 P.3d 977, 980
(Colo. App. 2012)(citing Swieckowski v. City of Fort Collins, 934 P.2d 1380, 138384
(Colo.1997)).
C.R.C.P. 12(b)(5)

It is proper to grant a Motion to Dismiss under C.R.C.P. 12(b)(5) when the factual
allegations made by the non-moving party cannot, as a matter of law, support a claim for relief.
Lobato v. State, 218 P.3d 358, 367 (Colo. 2009) (citing Van Wyk, P.2d at 382). When evaluating
a motion to dismiss a complaint, the Court must consider the facts as alleged, taking them as
true, and viewing them in the light most favorable to the non-moving party. See Walker v. Van
Laningham, 148 P.3d 391, 397 (Colo. App. 2006). While the Court must accept all averments of
material fact as true, the Court is not required to accept legal conclusions as true, even where
they are couched as factual allegations. See Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d
1155, 1157-58 (Colo. App. 2008) (holding trial court properly granted motion to dismiss
defendants negligence claims because undisputed facts established defendants did not owe any
duty to defendants) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007));
Criminal Justice Reform Coalition v. Ortiz, 121 P.3d 288, 294-295 (Colo. App. 2005)). Further,
a complaint may be dismissed if the substantive law does not support the claims asserted. Id.
(citations omitted).

ARGUMENT

I. THE EXECUTIVE DIRECTOR OF THE DENVER DEPARTMENT OF PARKS AND
RECREATION HAS LEGAL AUTHORITY TO ADOPT AND ENFORCE THE
EMERGENCY RULE AND DID LEGALLY ENFORCE AGAINST THE PLAINTIFF.

Plaintiff responded to Denvers argument concerning Executive Directors authority by
alleging that Denver had asserted an Emergency as an affirmative defense and that such an
assertion is inappropriately raised in a Motion to Dismiss.

However, Plaintiffs response fails, or refuses, to recognize the real issue, and the fact
that Denver has an established process for making emergency rules. As outlined in Denvers
Motion to Dismiss, the Emergency Rule in question complied with all of the requirements of
section 39-2 and 39-4, DRMC, as well as section 2.0 of the Park Use Rules and is lawfully
adopted and fully enforceable. See, Defendants Exhibit A Motion to Dismiss and Plaintiffs
Exhibit 5 Second Amended Petition and Complaint.

Plaintiff cites Denver Parents Assn v. Denver Bd. of Education, 10 P.3d 662, 665 (Colo.
App. 2000) (Plaintiffs argued breach of contract claim could not be dismissed because
defendants were required to assert lack of consideration as an affirmative defense) for the
proposition that an affirmative defense cannot constitute a grounds for dismissal for failure to
state a claim under C.R.C.P. 12(b)(5). Plaintiff further asserts, citing Bristol Bay Productions,
LLC v. Lampack, 312 P.3d 155, 1163-64 (Colo. 2013) (Defendants motion to dismiss asserted
issue preclusion), that an affirmative defense cannot be raised by motion, but only by answer,
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because a plaintiff has no obligation to anticipate an affirmative defense in the complaint and
include allegations to negate it.

Plaintiffs reliance on Denver Parents Assn and Bristol is misplaced. Denver does not
assert an emergency as an affirmative defense in reaction to Plaintiffs complaint. When the
Court considers the facts as alleged, taking them as true, and viewing them in the light most
favorable to the Plaintiff, Plaintiffs claim fails. The fact is, Denver has the legal authority to
adopt and enforce the Emergency Rule, pursuant to its emergency rule making procedure. See,
Exhibits 4, 4.1 and 5 Plaintiffs Second Amended Petition and Complaint. Denvers
invocation of the emergency rule making procedure in creating the Emergency Rule was a
proactive measure by Denver for the protection and management of public health and safety and
to assure fair and equitable use of Washington Park by all patrons. See, Exhibit 4 Plaintiffs
Second Amended Petition and Complaint.

For these reasons, the Plaintiff has failed to state a claim for which relief may be granted
with respect to his allegations that the Executive Director of DPR acted without legal authority
and illegally issued a citation to him. Declaratory judgment and injunctive relief, as requested by
Plaintiff in paragraph 6 of the Complaint, are not warranted.

II. THE EXECUTIVE DIRECTOR OF THE DENVER DEPARTMENT OF PARKS AND
RECREATION HAS NOT ENGAGED IN A QUASI-J UDICIAL ACTION SUBJ ECT TO
REVIEW UNDER CRCP 106(a)(4).

Plaintiffs response, section B, comingles quasi-judicial and administrative actions and
confuses declaratory judgments sought pursuant to CRCP 57 with relief requested pursuant to
CRCP 106(a)(4). To be clear, as argued in Denvers Motion to Dismiss, the action taken by the
Executive Director in adopting an Emergency Rule was purely an administrative act not a
quasi-judicial act. The differences between quasi judicial and administrative acts are more fully
discussed in Defendants Motion of Dismiss and that discussion will not be repeated here, but is
incorporated herein by reference.

For purposes of addressing Plaintiffs Response, a district court has subject matter
jurisdiction to consider a complaint under CRCP 106(a)(4) only when the action challenged is
quasi-judicial. SeePrairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1207 (Colo.App.
2000)(citing Toland v. Strohl, 364 P.2d 588 (1961)). Whether an action is quasi-judicial or
administrative depends on the nature of the governmental decision and the process by which it is
reached. Bourgeron v. City & County of Denver, 159 P.3d 701, 705 (Colo. Ct. App. 2006)(citing
Cherry Hills Resort Development Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo.
1988)).
As Plaintiff points out in his Response, an action can be quasi judicial for purpose of
review if (1) the law requires the acting body to give notice to the public, (2) the law requires the
body to conduct a hearing, pursuant to notice, where the citizens must be given an opportunity to
be heard and present evidence, and (3) the law requires the body to make a determination by
applying facts in a specific case to certain criteria established by law. Abromeit v. Denver
Career Service Bd., 140 P.3d 44, 48 (Colo. App. 2005). Plaintiff offers no analysis of how this
holding could be applicable to the facts of the case at bar.
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Section 39-2 (g), DRMC expressly provides the Executive Director with the authority to
adopt emergency rules without following the notice (Abromeit criterion #1) and hearing
(Abromeit criterion #2) requirements to protect public health safety or welfare; and the
Emergency Rule adopted by Denver is applicable to all Washington Park users and not specific
to Plaintiff (Abromeit criterion #3). There is no legal requirement for an adjudicatory hearing
process in adopting the Emergency Rule and, consequently, no record of decision for a court to
review.
There is likewise no requirement for such a process before issuing an administrative
citation. No aspect of the enforcement action arises to the level of a quasi-judicial action, and
there is plain, speedy and adequate remedy otherwise provided by law under the administrative
citation process analyzed in Part III of Denvers Motion to Dismiss.
No subject-matter jurisdiction lies under CRCP 106(a)(4) for a certiorari review of the
Executive Directors adoption or enforcement of the Emergency Rule.
III. PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER
THE ADMINISTRATIVE CITATION RULES AND REGULATIONS.

Plaintiff does not dispute the Executive Directors authority to adopt the Emergency Rule
pursuant to 39-2(g), DRMC, or enforce that rule under 39-1(c)(1) and 39-4, DRMC. Plaintiffs
reliance on Denver v. United Airlines, 8 P.3d 1206 (Colo. 2000) is misplaced when he cites that
case for the rule that exhaustion is not required when an agency has acted outside of its authority.
See, United Airlines at 1213. Section 39-1, DRMC explicitly authorizes the Executive Director
to pursue enforcement by means of administrative citations for violations of adopted rules.

The Emergency Rule was duly adopted and subsequently enforced against Plaintiff
through Administrative Citation (Citation). Exhibit 3 Plaintiffs Second Amended Petition
and Complaint. The reverse of said Citation clearly spells out the administrative process for
paying the civil penalty noted on the Citation and the right to appeal the Citation. Said Citation
instructed Plaintiff when and to whom payment of the $100 civil fine is due unless a proper
appeal is taken.

Plaintiff ignores the holding in United Airlines, which states, when an agency directs a
party to follow certain administrative procedures consistent with the agencys governing statutes
or ordinances, the party must exhaust those procedures or demonstrate that an exception from the
exhaustion requirement excuses their failure to do so before the party may seek judicial review
of the agencys decision. United Airlines at 1208-9 [United failed to pursue the administrative
procedures that Denver instructed it to follow which were provided for in the DRMC and
therefore failed to exhaust its available administrative remedies]. Here, Plaintiff has failed to
pursue the administrative procedures that Denver instructed him to follow, or adequately
demonstrate that an exception from the exhaustion requirement excuses his failure.

Additionally, Plaintiffs allegation that the exhaustion of remedies doctrine does not
apply because his complaint asserts a cause of action for declaratory relief is contrary to the law
in Colorado. The requirement that a party exhaust administrative remedies applies with equal
force when the party seeks declaratory relief. United Airlines at 1213.
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This Court lacks jurisdiction over Plaintiffs claims because he has failed to follow the
administrative procedures set forth in the Citation and the DRMC.

IV. THE GOVERNMENTAL IMMUNITY ACT BARS PLAINTIFFS DAMAGE CLAIMS.

The dispositive question in determining whether the CGIA bars a plaintiffs claim is
whether the claim is a tort claim or could be a tort claim. Carothers v. Archuleta County Sheriff,
159 P.3d 647 at 655 (Colo. App. 2006), See also, 24-10-106(1), C.R.S. (A public entity shall
be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of
whether that may be the type of action on the form of relief chosen by the claimant).

Plaintiff argues in his Response that he has asserted no tort and therefore the CGIA is
inapplicable and that his prayer for relief in his Second Amended Petition and Complaint has
been shortened to clarify that issue. Plaintiffs Response, 52 and 55, and fn. 3. Yet,
Plaintiffs Second Amended Petition and Complaint continues to maintain that he has suffered
all damages allowed by law. Plaintiffs Second Amended Petition and Complaint, 46.
Plaintiffs claim is barred by the CGIA.

The CGIA requires any person, claiming to have suffered an injury (Plaintiff claims to
have suffered damages) by a public entity, to file a written notice of the injury with the public
entity. See, 24-10-109(1), C.R.S. Plaintiff has filed no such notice with Denver. Compliance
with the notice provisions of the CGIA is a jurisdictional prerequisite to any action brought
under the provisions of the CGIA, and failure of compliance bars any such action. See, 24-10-
109(1), C.R.S. Plaintiffs failure to comply with the CGIA results in there being no subject-
matter jurisdiction over the damage claims asserted by Plaintiff. See Mesa County Valley School
District No. 51 v. Kelsey, 8 P.3d 1200, 1204-05 (Colo. 2000).

V. PLAINTIFF STATES NO CLAIM UNDER EQUAL PROTECTION AND DUE PROCESS
THAT ENTITLES HIM TO ANY RELIEF.

On page 9, paragraph 61 of Plaintiffs Response, Plaintiff asserts that the Emergency
Rule treats people playing sports differently, and that the Second Permitting Rule enforces the
permitting rule against volleyball players. To be clear, the Second Permitting Rule states, It
shall be unlawful for any person to arrange or conduct volleyball play . . . (Emphasis added).
See, Exhibit 4 and 4.1 Plaintiffs Second Amended Petition and Complaint.

Not only are the Emergency Rule and Second Permitting Rule, on their faces applicable
to all persons, persons playing volleyball or other sports are not a protected class under the Equal
Protection clause. The Emergency Rule and Second Permitting Rule treat all similarly situated
persons (i.e. persons wishing to play sports or volleyball) equally.

Plaintiffs Second Amended Petition and Complaint and his Response to Denvers
Motion to Dismiss hardly create even a suspicion of a legally cognizable right of action. To
withstand a motion to dismiss for failure to state a claim, a complaint must allege sufficient facts
such that a claim is plausible based on the face of the complaint, as opposed to merely creating
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a suspicion [of] a legally cognizable right of action based on the assumption that all the
allegations in the complaint are true. Bell Atlantic Corp. v Twombly, 550 U.S 544 at 555 (2007).

It must be kept in mind that the Plaintiff is raising, without any factual or legal basis, a
constitutional challenge to the right of Denver Parks and Recreation to regulate the play of
volleyball by specifying the areas within a park where it can be played and requiring a permit,
granted for free on site, to assure that all volleyball players desiring to play on busy weekend
days during the summer have a reasonable opportunity to play.

Plaintiff has stated no legal basis, and there is simply no legal basis, for asserting a
constitutional claim under the factual circumstances of this case. The Equal Protection and Due
Process claims should be dismissed for failure to state a claim for which relief may be granted.

JURISDICTION OVER THE DEFENDANTS

In light of the changes made by the Plaintiff in his Second Amended Petition and
Complaint, which has been accepted by the Court, the City withdraws the challenge that the
inappropriate parties were named in the action.

ATTORNEYS FEES

In light of the overwhelming legal deficiencies of Plaintiffs claims in the Second
Amended Petition and Complaint, Denver believes that the award of attorneys fees to Denver is
warranted under 13-17-102, C.R.S. The Plaintiffs claims are frivolous and groundless, and
unnecessarily cast insulting characterizations on Defendant such as tyranny and Gestapo.
Denver should be entitled, for the benefit of the taxpayers, to recover from Plaintiff the
reasonable value of attorneys time for preparing this Reply and its Motion to Dismiss.

WHEREFORE, Denver prays that this action be dismissed with prejudice and that
attorneys fees be awarded to Denver for the costs of preparing the Motion to Dismiss and this
Reply.

OFFICE OF THE CITY ATTORNEY
CITY AND COUNTY OF DENVER


/s/ Nathan J . Lucero________
Patrick A. Wheeler
Nathan J . Lucero
Assistant City Attorney
Attorney for the Defendants


In accordance with C.R.C.P. 1211-26(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.
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ADDRESS OF DEFENDANT:

Denver Parks and Recreation
Lauri Dannemiller
201 West Colfax Avenue, Dept. 601
Denver, Colorado 80202
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing DEFENDANTS REPLY
TO PLAINTIFFS RESPONSE TO MOTION TO DISMISS was delivered this 11
th
day of
August, 2014, electronically by ICCES via E-Service to the following:


The Law Office of Damian Stone, P.C.,
Damian S. Stone, Esq.
3570 E. 12
th
Ave., Suite 200
Denver, CO 80206




/s/ Carmelita Martinez_______________
Carmelita Martinez
City Attorneys Office
Case No: 14CV032366


In accordance with C.R.C.P. 1211-26(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.