Martinez v. Martinez

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.

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¶ 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

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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

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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

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[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.

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