DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO
DATE FILED: July 8, 2020 2:08 PM
1437 Bannock St., Denver, CO 80202 CASE NUMBER: 2019CV32214

Plaintiff(s), AUTUMN SCARDINA

v.

Defendant(s), MASTERPIECE CAKESHOP INC. et al. COURT USE ONLY

Case Number:
19CV32214

Courtroom: 275

ORDER DENYING DEFENDANTS’

MOTION TO DISMISS AMENDED COMPLAINT

THIS MATTER comes before the Court on the motion of Defendants Masterpiece
Cakeshop Inc. and Jack Phillips to dismiss Plaintiff’s amended complaint. The Court, having
reviewed the parties’ briefs and relevant legal authority, and being otherwise fully advised,
hereby ORDERS as follows.

Defendants make three broad arguments: (1) Plaintiff has not sufficiently stated a claim
for relief under the Colorado Consumer Protection Act (CPA); (2) the statements forming the
basis for Plaintiff’s CPA claim are constitutionally protected; and (3) the Court lacks jurisdiction
over Plaintiff’s claim for relief under the Colorado Anti-Discrimination Act (CADA). The last
argument was previously rejected by the Court.

I. Defendants have failed to establish grounds to dismiss for failure to state a claim
under the CPA.

Under Rule 12(b)(5), “a court properly dismisses a claim if the factual allegations in the
complaint, taken as true and viewed in the light most favorable to the plaintiff, do not present
plausible grounds for relief.” Begley v. Ireson, 2017 COA 3, ⁋ 8. Defendants’ motion largely
ignores these well-established standards. Rather than take allegations as true and in a light most
favorable to Plaintiff, Defendants interpret and re-contextualize the allegations, then draw
inferences in their favor instead of Plaintiff’s. The latter in particular is repetitive of the prior
motion to dismiss. Given Defendants’ dogged insistence on evading or ignoring the standards of
Rule 12(b)(5), it is next-to impossible for the Court to determine the merits of their arguments, if
such merit exists.

To state a claim for relief under the CPA, Plaintiff must allege: (1) Defendants engaged
in an unfair or deceptive trade practice; (2) the challenged practice occurred in the course of

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Defendants’ business, vocation, or occupation; (3) the challenged practice significantly impacts
the public as actual or potential consumers of Defendants’ goods, services, or property; (4)
Plaintiff suffered injury in fact to a legally protected interest; and (5) the challenged practice
caused Plaintiff’s injury. Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining Inc., 62 P.3d
142, 146-47 (Colo. 2003). Rule 9(b) provides that “[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” Defendants argue
that Rule 9(b) applies to at least elements (1), (3), (4), and (5), and that Plaintiff’s CPA claim
fails for lack of particularity as to elements (1), (3), and (5). The Court disagrees.

While not explicitly stated in the Court’s April 29, 2020 Order, the Court implicitly
concluded that Rule 9(b) applies only to the first element of a CPA claim. The Court now
expressly states that conclusion; based on the nature of each element, only the first requires an
allegation of specific wrongdoing. See State Farm Mut. Auto. Ins. Co. v. Parrish, 899 P.2d 285,
288-89 (Colo. App. 1994) (“requirement of particularity is intended in part to protect defendants
from the reputational harm that may result from unsupported allegations of fraud, a charge which
involves moral turpitude. … the complaint must at least state the main facts or incidents which
constitute the fraud so that the defendant is provided with sufficient information to frame a
responsive pleading and defend against the claim.”).

Plaintiff has sufficiently, and particularly, alleged unfair or deceptive trade practices in
her amended complaint. The alleged false statements/advertisements by Defendants have been
described with enough particularity under Rule 9(b) to put Defendants on notice of the claim and
allow them to defend their actions. That Defendants also dispute the falsity of those statements
or the characterization of them as advertisements is a matter for later proceedings, when the
allegations are not viewed in Plaintiff’s favor. And as for elements (3) and (5), the Court again
concludes that Plaintiff adequately alleged facts satisfying those elements under the general
pleading standard of Rule 8(a).

II. Whether the alleged statements are constitutionally protected cannot be resolved
based on the four-corners of the amended complaint, even as supplemented by items
referenced therein.

As the Court explained in its April 29 Order, the need for factual development
concerning the commercial or noncommercial nature of the alleged statements supporting
Plaintiff’s CPA claim, precludes granting relief under Rule 12(b)(5). The amended complaint
does not change that conclusion. To reiterate, at this early stage, the Court must accept
Plaintiff’s allegations as true and view them in the light most favorable to her. The Court cannot
conclude, based solely on those allegations, that the statements were either noncommercial or
“inextricably” mixed with constitutionally-protected speech. To do so would ignore the lenient
standard of Rule 12(b)(5).

III. The Court has subject matter jurisdiction over Plaintiff’s CADA claim.

In denying in part Defendant’s first motion to dismiss, the Court was satisfied of its
subject matter jurisdiction over Plaintiff’s CADA claim. Defendants now argue the Court erred
and urge reconsideration. Plaintiff characterizes this argument as an untimely motion to

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reconsider the Court’s previous Order. Defendants reply that the Court must dismiss the CADA
claim “whenever” it appears to the Court that subject matter jurisdiction is lacking.

While motions to reconsider are disfavored under Rule 121 § 1-15(11), the Court
nevertheless agrees with Defendants that the untimeliness or impropriety of a motion to
reconsider is irrelevant if and when it appears the Court lacks subject matter jurisdiction. In such
circumstances, dismissal is required under Rule 12(h)(3).

Having said that, however, the Court need not—and will not—constantly retread all the
same ground to remain satisfied of its jurisdiction. Judicial resources would otherwise be wasted
in endless motions practice whenever an aggrieved party disagreed with a court order concerning
subject matter jurisdiction. Nevertheless, the Court will address one aspect of Defendants’
arguments in the new motion to dismiss so as to put it to rest.

Defendants argue the Court’s previous Order conflicts with Agnello v. Adolph Coors Co.,
689 P.2d 1162 (Colo. App. 1984) (“Agnello I”), and Agnello v. Adolph Coors Co., 695 P.2d 311
(Colo. App. 1984) (“Agnello II”), in that the formal administrative complaint there was
dismissed prior to an evidentiary hearing, as occurred here. This Court was fully aware of those
cases when it issued its previous Order. The Court found them so inapposite as to not warrant
discussion. The Court will now elaborate why.

Neither opinion expressly addresses the issue before this Court. Thus, Defendants rely
on what they presume was considered by the Court of Appeals, while ignoring fundamental
factual and procedural differences.

The Division in Agnello I engaged an independent physician to investigate the

complainant’s allegation that she was otherwise qualified for a job but not hired due to her
disability. 689 P.2d at 1164. The Division and the defendant agreed to be bound by the
physician’s conclusion that the complainant was not otherwise qualified for the job because of
the health risks it posed to persons with the complainant’s disability. Id. Importantly, the
conciliation (or “settlement”) agreement effectively addressed the merits of the claim of
employment discrimination, Agnello II, 695 P.2d at 313, and in that regard, provided the Court of
Appeals with a record to review the appropriateness of the agency decision. That is not the case
here.

Unlike in the Agnello cases, the Commission did not determine the ultimate merits of
Plaintiff’s claim of discrimination through an evidentiary hearing, settlement, or in any other
way. Instead, the Commission dismissed Plaintiff’s claim as part of the settlement of
Defendants’ federal lawsuit against the Commission itself. As an aside, the Court notes this was
done after the United States Supreme Court said the Commission displayed hostility against
Defendants in the case involving a gay couple’s wedding cake. Masterpiece Cakeshop, Ltd. v.
Colo. Civil Rights Com’n, 138 S.Ct. 1719, 1729-31 (2018). Undoubtedly, had this case
proceeded to an evidentiary hearing before the same Commission, Defendants would have raised
that hostility to dispute any adverse result.

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 In any event, the Court is satisfied of its subject matter jurisdiction and that Plaintiff
properly brought her CADA claim here rather than appeal a non-decision to the Court of
Appeals. As the Court previously explained, “the Commission cannot issue a final order in the
absence of an evidentiary hearing or default.” Demetry v. Colo. Civil Rights Com’n, 752 P.2d
1070, 1072 (Colo. App. 1988). Agnello’s different circumstances notwithstanding, there was no
final order to appeal here.

Defendants’ motion to dismiss the amended complaint is DENIED in its entirety.

Defendants shall have fourteen (14) days to file their answer.

DATED AND ORDERED: July 8, 2020.

BY THE COURT:

Judge A. Bruce Jones

Denver District Court Judge