Joseph v. Katco

24CA1053 Joseph v Katco 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1053
City and County of Denver District Court No. 23CV30833
Honorable Martin F. Egelhoff, Judge

William Joseph,

Plaintiff-Appellant,

v.

Katco Investments, LLC,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE JOHNSON
Lipinsky and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 8, 2025

The Paul Wilkinson Law Firm LLC, Nelson Boyle, Denver, Colorado; Eddington
Law Firm, LLC, Wesley Eddington, Adam Gleason, Denver, Colorado, for
Plaintiff-Appellant

Courtney Holm & Associates, AAL PC, Courtney Autumn Holm, Edwards,
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. 2024.
¶1 Plaintiff, William Joseph (Joseph), appeals the district court’s

order dismissing his complaint under C.R.C.P. 12(b)(5) for failure to

state a claim against defendant, Katco Investments, LLC (Katco).

Joseph also appeals the court’s denial of his motions for leave to

amend his claims against Katco, contending that he was entitled to

an amendment as a right under C.R.C.P. 15(a). We affirm the

judgment but remand the case to the district court for it to

determine Katco’s appellate costs.

I. Background

¶2 At the time relevant to this case, Katco owned and leased

property in Denver to Pedro Juan Garcia (Garcia). In February

2023, while walking on a sidewalk in front of his home in Denver,

Joseph was attacked and bitten by two pit bulls belonging to

Garcia. Joseph sustained serious injuries and, as a result, filed

this lawsuit, asserting claims of strict liability, pursuant to section

13-32-124, C.R.S. 2024; negligence; and negligence per se against

Garcia and Katco. The complaint also asserted a premises liability

claim against only Katco. The case was stayed as to Garcia due to

Garcia’s pending criminal charges arising from the incident.

1
¶3 As relevant to this appeal, Katco filed a motion to dismiss,

arguing that Joseph failed to state claims for (1) negligence because

Joseph did not allege any facts indicating that Katco had actual

knowledge of the dogs’ vicious tendencies before it signed a lease

with Garcia; and (2) premises liability because Joseph did not allege

that Katco was in possession of the premises as a “landowner,” as

required by the Colorado Premises Liability Act (the Act), section 13-

21-115(7)(a), C.R.S. 2024.

¶4 On July 10, 2023, the district court dismissed all of Joseph’s

claims against Katco and determined that Katco was entitled to an

award of attorney fees under section 13-17-201(1), C.R.S. 2024 (the

July 10 order).

¶5 Joseph filed a motion to reconsider under C.R.C.P. 59(a) and

requested leave to amend his complaint under C.R.C.P. 15(a),

attaching the proposed amendment to the motion. The first

amended complaint added factual allegations, including the

addition of Denver Revised Municipal Code section 8-67(a) that

makes it unlawful for any person to own or keep a pit bull in

Denver without obtaining a Breed-Restricted Permit and pictures of

a fence around Katco’s property. The first amended complaint

2
again asserted negligence and premises liability claims against

Katco. On July 26, 2023, the district court denied Joseph’s request

for reconsideration but did not address his request for leave to

amend his complaint (the July 26 order).

¶6 Joseph sought clarification regarding his request to amend the

next day — July 27 — and the court explained that the July 10

order “granting Katco’s Motion to Dismiss constitute[d] a final

judgment and thus there [wa]s no right to amendment of the

Complaint as a matter of course” (the July 27 order).

¶7 The court awarded Katco $14,598 in attorney fees and costs.

Katco sought to certify as a final judgment the attorney fee award

under C.R.C.P. 54(b). In denying the request, the court reasoned

that because Joseph’s claims against Garcia were still pending, a

final judgment on the attorney fees award could “[]not be entered

until all claims ha[d] been resolved.”

¶8 Almost a year later in April 2024, and after Joseph had taken

Garcia’s deposition, Joseph filed another motion for leave to file a

second amended complaint asserting his negligence and premises

liability claims against Katco. The second amended complaint

3
included additional factual allegations based on Garcia’s deposition

testimony.

¶9 On May 3, 2024, the district court summarily denied Joseph’s

request for leave to file his second amended complaint, stating that

it did so consistent with the July 10, 26, and 27 orders (the May 3

order). Joseph filed this appeal after he and Garcia stipulated to

dismissal of his claims against Garcia without prejudice.

II. Motion to Dismiss

¶ 10 Joseph contends that the court erred by dismissing his claims

against Katco under Rule 12(b)(5) because he plausibly pled facts

that, if proved true, stated one or more claims for relief. We discern

no error.

A. Standard of Review

¶ 11 We review de novo a district court’s dismissal of a claim under

C.R.C.P. 12(b)(5). Miller v. Crested Butte, LLC, 2024 CO 30, ¶ 21.

“In conducting this review, we apply the same standards as the

district court, and we accept all well-pleaded allegations in the

complaint as true and view them in the light most favorable to the

plaintiff.” Id.

4
¶ 12 To survive a motion to dismiss, a complaint must meet the

“plausibility” standard. Id. at ¶ 22 (quoting People ex rel. Rein v.

Meagher, 2020 CO 56, ¶ 13). Under this standard, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a

claim for relief that is plausible on its face.’” Warne v. Hall, 2016

CO 50, ¶ 1 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A

complaint is plausible on its face if the plaintiff has pled “factual

content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Barnes v. State

Farm Mut. Auto. Ins. Co., 2021 COA 89, ¶ 24 (quoting Iqbal, 556

U.S. at 678).

¶ 13 “The plausibility standard emphasizes that facts pleaded as

legal conclusions (i.e., conclusory statements) are not entitled to the

assumption that they are true.” Scott v. Scott, 2018 COA 25, ¶ 19

(citing Warne, ¶¶ 9, 27); see Denver Post Corp. v. Ritter, 255 P.3d

1083, 1088 (Colo. 2011) (Courts are not required to accept as true

“legal conclusions that are couched as factual allegations.”).

B. Analysis

¶ 14 As a threshold matter, we note that, in his opening brief,

Joseph appears to argue that the district court erred by dismissing

5
his premises liability claim. But he makes no reference to the

elements necessary to state a plausible claim under the Act, and he

specifically concedes that the Act does not apply to this case. Thus,

we deem Joseph’s premises liability claim against Katco abandoned

and, therefore, do not address any argument related to the Act. See

People in Interest of Uwayezuk, 2023 COA 69, ¶ 13 n.5. As a result,

we address only the court’s C.R.C.P. 12(b)(5) dismissal of Joseph’s

negligence claim.

1. Applicable Law

¶ 15 To prevail on a claim for negligence, a plaintiff must prove that

“(1) the defendant owed the plaintiff a legal duty of care; (2) the

defendant breached that duty; (3) the plaintiff was injured; and (4)

the defendant’s breach caused that injury.” N.M. v. Trujillo, 2017

CO 79, ¶ 23. But such a claim “must fail if based on circumstances

for which the law imposes no duty of care upon the defendant for

the benefit of the plaintiff.” Univ. of Denver v. Whitlock, 744 P.2d

54, 56 (Colo. 1987). “Where a defendant successfully argues no

duty, there is no subsequent inquiry into negligence . . . .” Vigil v.

Franklin, 103 P.3d 322, 325 (Colo. 2004).

6
¶ 16 It is a question of law whether a defendant owes a legal duty to

a plaintiff. Id. When a tenant keeps a dangerous animal on the

property, a landlord has a duty of care to a third party only when

the landlord has “actual knowledge that a tenant owns an animal

whose vicious actions have created a clear potential for injury.”

Vigil v. Payne, 725 P.2d 1155, 1157 (Colo. App. 1986). Under this

duty of care, a landlord must take “reasonable precautions to

protect third persons from the animal.” Id. Significantly, this duty

of care is “specifically limit[ed]” to instances when a landlord has

“actual knowledge of the vicious actions of the animal before

entering into a rental agreement with the animal’s owner and

nevertheless subsequently performs the affirmative act of entering

into a rental agreement with the animal’s owner.” Id. (emphasis

added).

2. Joseph’s Allegations

¶ 17 Because Katco would only owe a duty of care to Joseph if it

had “actual knowledge” before it leased the property to Garcia that

he owned animals “whose vicious actions have created a clear

potential for injury,” Vigil, 725 P.2d at 1157, we review de novo

Joseph’s allegations in that context.

7
¶ 18 Joseph’s allegations about Katco’s knowledge of Garcia’s dogs

are contained in paragraphs 13, 15, 17, 36, and 45 of his original

complaint:

....

At all times material hereto and on and/or
before February 15, 2023, Defendant Katco
Investments LLC knew that Defendant Garcia,
the tenant, owned and/or kept and/or had
custody and/or control including, but not
limited to, the activities of two vicious pit bull
breed dogs and allowed said dog[s] to remain
on the premises.

....

At all times hereto and on and/or before
February 15, 2023, Defendant Katco
Investments LLC had notice that said dogs
were vicious and/or had dangerous
tendencies.

....

At all times material hereto and on and/or
before February 15, 2023, Defendant Katco
Investments LLC knew that said dogs were
vicious and/or had dangerous tendencies and
kept said dogs on said property
notwithstanding.

....

At all times material hereto and on and/or
prior to February 15, 2023, Defendant Katco
Investment[s] LLC had actual
knowledge/notice and/or constructive notice

8
that said dogs had demonstrated tendencies
that would cause a reasonable person to
believe that said dogs may inflict injury and
harm to a person.

....

On or about February 15, 2023, Defendants
breached their duty to [Joseph] by allowing
said dogs to roam and/or run freely near the
property; and Defendants failed and/or
refused to securely and adequately restrain
and/or leash said dog on their own property
when they knew or should have known of the
dangerous propensities and/or tendencies
and/or prior aggressive acts of said dogs on
person(s) and/or property.

¶ 19 Joseph’s assertions that Katco “had notice that the said dogs

were vicious and/or had dangerous tendencies” and “knew said

dogs were vicious and/or had dangerous tendencies” are nothing

more than legal conclusions couched as factual allegations and,

therefore, are not entitled to the assumption that they are true. See

Warne, ¶ 27 (finding broad allegations of malice or animosity were

conclusory and incapable of supporting a plausible claim for relief

without specific factual allegations); Woodall v. Godfrey, 2024 COA

42, ¶ 33 (“A ‘conclusory’ allegation is one ‘[e]xpressing a factual

inference without stating the underlying facts on which the

inference is based.’”) (citation omitted); Walker v. Women’s Prof’l

9
Rodeo Ass’n, 2021 COA 105M, ¶ 70 (finding allegations that a

company acted in bad faith and an “illegal and oppressive manner”

were conclusory and not entitled to the assumption that they were

true).

¶ 20 For example, Joseph failed to allege facts in his original

complaint as to whether Katco ever (1) observed the dogs;

(2) identified them as pit bulls; (3) saw any specific incident of the

dogs acting viciously; (4) received any complaints about the dogs

from nearby tenants; (5) knew if the dogs had previously escaped

from the property; or (6) even knew if Garcia owned the dogs at the

time of entering the lease. Cf. Vigil, 725 P.2d at 1157 (plaintiff

sufficiently stated claim for negligence in complaint alleging that

landlords took care of tenant’s dogs for two weeks before entering

into the lease, during which time the dogs showed vicious

propensities and, despite this actual knowledge, landlords entered

into lease agreement with tenant dog owner).

¶ 21 Joseph contends that the bare factual allegations regarding

Katco’s knowledge should not have been disregarded as conclusory

because he pled that Katco knew about the dogs’ dangerous

propensities “at all times relevant . . . before” the incident. But we

10
are required to confine our review to the “four corners of the

complaint.” Kreft v. Adolph Coors Co., 170 P.3d 854, 857 (Colo.

App. 2007). Based on the allegations asserted in the complaint, we

cannot draw a “reasonable inference” that, regardless of the general

reference to timing, Katco owed a duty of care to Joseph because, at

the time it entered into the lease with Garcia, it had actual

knowledge that his dogs were vicious. Iqbal, 556 U.S. at 678.

While it is true that the plausibility standard did not require Joseph

to “set forth a prima facie case for each element,” he was required to

plead enough factual allegations to plausibly support the basic

elements of his negligence claim. Adams Cnty. Hous. Auth. v.

Panzlau, 2022 COA 148, ¶ 51 (quoting George v. Urb. Settlement

Servs., 833 F.3d 1242, 1247 (10th Cir. 2016)).

¶ 22 Nonetheless, Joseph requests that we adopt section 379A of

the Restatement (Second) of Torts (Am. L. Inst. 1965) (Restatement)

because, taking the Restatement elements into consideration, he

plausibly stated a cognizable negligence claim. Under section

379A(a) and (b) of the Restatement, “a lessor of land is subject to

liability for physical harm to persons outside of the land caused by

activities of the lessee . . . after the lessor transfers possession” only

11
if, at the time of the lease, the lessor “consented to such activity or

knew that it would be carried on” and “knew or had reason to know

that it would unavoidably involve such an unreasonable risk, or

that special precautions necessary to safety would not be taken.”

See Gonzales v. Bierman, 773 P.2d 629, 630 (Colo. App. 1989)

(finding defendant owed duty of care to plaintiff under section 379A

of the Restatement).

¶ 23 In Joseph’s motion for reconsideration, he argued that

Colorado had adopted section 379A of the Restatement but now,

inconsistently, urges us to adopt it. Regardless of whether Colorado

courts have adopted the provision, that fact is immaterial to our

analysis because the Restatement elements require Joseph to allege

facts indicating that Katco consented to Garcia’s possession of the

dogs at the property at the time Katco leased the property to Garcia

or that Katco knew the dogs presented such an unreasonable risk

of harm that special precautions were necessary. As discussed

above, Joseph failed to do so.

¶ 24 And Joseph urges us to follow Melsheimer v. Sullivan, 27 P. 17,

17-19 (Colo. App. 1891), and Barger v. Jimerson, 276 P.2d 744,

744-45 (Colo. 1954), in which Colorado courts upheld verdicts in

12
which the plaintiffs were bitten and injured by the defendants’ dogs.

But we decline to do so because those cases did not deal with

whether the plaintiffs failed to state a claim under C.R.C.P. 12(b)(5).

And even if they had dealt with motions to dismiss, the cases do not

address the updated plausibility standard we apply to test the

sufficiency of a plaintiff’s complaint under Warne.

¶ 25 Therefore, we conclude that the court did not err by

dismissing Joseph’s negligence claim against Katco under Rule

12(b)(5).

III. Motions to Amend the Complaint

¶ 26 Joseph contends that the district court erred when it denied

his motions for leave to amend his complaint.

A. Standard of Review and Applicable Law

¶ 27 Generally, this court reviews for an abuse of discretion a

district court’s denial of a motion for leave to amend a pleading.

Schaden v. DIA Brewing Co., 2021 CO 4M, ¶ 34. We review such

denial de novo, however, when it’s based on a finding that the

amendment would be futile because that determination requires an

inquiry into whether the amended complaint could survive a motion

to dismiss. Id.

13
¶ 28 Under C.R.C.P. 15(a), “a party may amend his pleading once

as a matter of course at any time before a responsive pleading is

filed. . . . Otherwise, a party may amend his pleading only by leave

of court or by written consent of the adverse party; and leave shall

be freely given when justice so requires.”

¶ 29 District courts are encouraged to look favorably upon motions

to amend. Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002).

Therefore, a motion to amend “should be freely granted when doing

so would serve the interests of justice.” Colo. Dept. of Pub. Health &

Env’t v. Bethell, 60 P.3d 779, 787 (Colo. App. 2002). Amendments

to pleadings “should be granted in accordance with the overriding

purposes of our rules of civil procedure — ‘to secure the just,

speedy, and inexpensive determination of every action.’” Varner v.

Dist. Ct., 618 P.2d 1388, 1390 (Colo. 1980) (citation omitted).

¶ 30 Lenience towards granting amendments, however, is not

without limits. Polk v. Denver Dist. Ct., 849 P.2d 23, 25 (Colo.

1993). A court may deny a motion to amend a pleading because of

undue delay, bad faith, undue expense, or other demonstrable

prejudice or when an amendment would be futile. Varner, 618 P.2d

at 1390; see also Rinker v. Colina-Lee, 2019 COA 45, ¶ 32.

14
¶ 31 “[I]f a proposed amendment to the complaint would be futile,

reversal is not required.” Davis v. Paolino, 21 P.3d 870, 873 (Colo.

App. 2001); see also Liscio v. Pinson, 83 P.3d 1149, 1152 (Colo.

App. 2003) (concluding that, although the appellate court was

unable to determine the precise basis of a trial court’s ruling, the

plaintiff’s motion for leave to amend was properly denied because

the amendment would have been futile). An amendment is futile if

it “merely restates the same facts as the original complaint in

different terms, reasserts a claim on which the court previously

ruled, fails to state a legal theory, or could not withstand a motion

to dismiss.” Benton, 56 P.3d at 86-87 (citation omitted).

B. Analysis

¶ 32 Katco concedes, and we agree, that the court erred by denying

Joseph’s request to amend his complaint as the court’s dismissal of

Joseph’s claims against Katco under C.R.C.P. 12(b)(5) was not a

final judgment. Nonetheless, for the reasons explained below, we

agree with Katco that the court’s error was harmless because, as a

15
matter of law, Joseph’s amended complaint would have been futile.

Thus, we discern no reversible error.1

1. Dismissal Order Was Not a Final Judgment

¶ 33 A motion to dismiss does not constitute a responsive pleading

for purposes of amendment as a matter of course under C.R.C.P.

15(a). Grear v. Mulvihill, 207 P.3d 918, 922 (Colo. App. 2009); Doe

v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).

¶ 34 “In determining whether an order is final, we look to the legal

effect of the order rather than its form.” People in Interest of S.C.,

2020 COA 95, ¶ 6 (quoting Marks v. Gessler, 2013 COA 115, ¶ 15).

A motion to dismiss under C.R.C.P. 12(b)(5) requires the court to

“test the legal sufficiency of the complaint to determine whether the

plaintiff has asserted a claim or claims upon which relief can be

granted.” Hemmann Mgmt. Servs. v. Mediacell, Inc., 176 P.3d 856,

858 (Colo. App. 2007). Thus, a ruling on a motion to dismiss for

failure to state a claim “mandates that the court analyze the merits

of the plaintiff’s claims.” Id.; see also Harris v. Reg’l Transp. Dist.,

1 As we discussed above, because Joseph concedes that the Act

does not apply to his case and we have deemed his premises
liability claim abandoned, we analyze the amended complaint issue
solely with respect to his negligence claim.

16
155 P.3d 583, 585 (Colo. App. 2006) (noting that the dismissal of a

complaint without prejudice is a final and appealable order where

the circumstances of the case indicate that the action cannot be

saved by amendment).

¶ 35 “[O]nce a judgment enters and becomes final, a plaintiff no

longer has the right to file an amended complaint as a matter of

course under C.R.C.P. 15(a).” Schaden, ¶ 39. At that point, a

plaintiff must “seek relief from the judgment” under C.R.C.P. 59 or

60 and “obtain either leave to amend from the court or written

consent to amend from the defendant.” Id. Under C.R.C.P. 59(a), a

plaintiff can file a motion for reconsideration of a final order or

judgment within fourteen days of entry of the judgment. But

Schaden’s holding was based on the judgment being final because

the entirety of the lawsuit had been resolved. Schaden, ¶ 48.

¶ 36 At the time the court dismissed Joseph’s claim against Katco,

there were still pending claims against Garcia. Thus, while the

court’s dismissal order was final for purposes of adjudicating

Joseph’s claims against Katco on the merits, the order did not fully

resolve the entire lawsuit. A final judgment is one which “ends the

particular action in which it is entered, leaving nothing further for

17
the court pronouncing it to do in order to completely determine the

rights of the parties involved in the proceeding.” Scott, ¶ 11

(quoting Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 n.2 (Colo.

1982)); see also Overstreet v. Colo. Dept. of Revenue, 178 P.3d 1259,

1261-62 (Colo. App. 2007) (holding that an order was not a final

judgment because it did not “fully and finally dispose of the civil

action”).

¶ 37 C.R.C.P. 54(b), however, permits a court to direct entry of a

final judgment as to fewer than all the claims or parties in an action

involving multiple parties or multiple claims for relief, which is an

exception to the general rule that an entire case must be resolved

by a final judgment before an appeal is brought. Grear, 207 P.3d at

921. Katco recognized that its dismissal order and attorney fees

award were not final judgments because Garcia’s claims were still

pending. This is why Katco requested that the court certify as a

final judgment its attorney fees award under C.R.C.P. 54(b). But

the court denied that request.

¶ 38 At the time the court dismissed the claims against Katco,

Garcia had filed an answer to Joseph’s initial complaint. But

because of the court’s denial of Katco’s request for Rule 54(b)

18
certification, Joseph could have amended his complaint as to Katco

as a matter of right. This is because, “[i]f the case has more than

one defendant, and not all have filed responsive pleadings, the

plaintiff may amend the complaint as a matter of course with regard

to those defendants that have yet to answer.” Iriele v. Griffin, 65

F.4th 1280, 1286 (11th Cir. 2023) (citation omitted); see also Schulz

v. Laszlo & Assocs., LLC, 2025 COA 24, ¶ 25 (concluding that

despite some defendants being dismissed from a lawsuit, a plaintiff

has a right to amend his complaint if the plaintiff has unresolved

pending claims against other defendants). For these reasons, the

court erred by concluding that Joseph’s motions for leave to amend

were untimely.

¶ 39 Thus, because Joseph had the right to amend his complaint

as a matter of course when the court denied his motions for leave to

amend, we must address whether the court’s error is harmless.

2. The Error is Harmless

¶ 40 In a civil case, an error is harmless when it does not affect a

substantial right, which means we will not reverse unless “it can be

said with fair assurance that the error substantially influenced the

outcome of the case or impaired the basic fairness of the trial itself.”

19
Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24 (emphasis

omitted) (quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)); see

also C.R.C.P. 61.

¶ 41 We acknowledge that the court did not explicitly find that

Joseph’s amendment would be futile because it could not survive a

motion to dismiss. But when Joseph requested leave to file his

second amended complaint — with the proposed amended

complaint attached — the court, as mentioned, denied his request

in the May 3 order, stating it did so “consistent with the Court’s

orders of July 10, 26, and 27.” In the July 10 order, the court

dismissed Joseph’s initial complaint for failure to state a claim.

¶ 42 We view the court’s May 3 order to include an implicit finding

that Joseph’s second amended complaint suffered from the same

deficiencies as did his initial complaint. In other words, our de

novo review of Joseph’s first and second amended complaints lead

us to conclude that any such amendments would have been futile

because they would not have survived dismissal under Rule

12(b)(5). See Davis, 21 P.3d at 873 (“[I]f a proposed amendment to

the complaint would be futile, reversal is not required.”).

20
¶ 43 The proposed first amended complaint’s negligence claim

against Katco included

• a picture of the gate around Katco’s property;

• a factual allegation that Katco “owed a duty to [Joseph] to

ensure said dogs were legally owned and permitted as required

by Denver Ordinance Sec. 8-67, when Defendant Katco was

given notice of [Garcia’s] two dogs prior to entering the rental

agreement”; and

• a factual allegation stating, “Katco Investments LLC breached

his duty to [Joseph] by failing to properly secure the premises

in a way that prevents said vicious dogs to escape and roam

freely throughout the neighborhood to attack [Joseph] and

other individuals.”

¶ 44 While Joseph asserts that Katco’s property was surrounded by

gates and that those gates were insecure due to faulty latches, he

failed to include any allegation that Katco knew the dogs could

escape from the property or had knowledge that the dogs had

previously escaped, thus owing a duty to Joseph. See Kaercher v.

Sater, 155 P.3d 437, 443 (Colo. App. 2006) (proposed amendment

to negligence claim that simply added factual allegations about

21
general market availability of insurance policy did not address or

cure legal deficiencies that provided the basis for dismissal of the

complaint); cf. Gandy v. Williams, 2019 COA 118, ¶¶ 22, 23 (court

found proposed amendment to be futile even where proposed

amendments added five new claims). In short, Joseph’s “formulaic

recitation” of the elements of negligence and the duty of care is

insufficient to plausibly plead that Katco had actual knowledge of

the dogs’ vicious propensities. See Iqbal, 556 U.S. at 678.

¶ 45 Joseph’s proposed second amended complaint was essentially

the same but added the following factual allegations in paragraphs

17, 18, 19, 24, 25, 27, and 48 from Garcia’s deposition testimony:

....

Upon information and belief, prior to entering
the lease, Defendant Garcia told Defendant
Katco Investments LLC, he [had] two pit bull
dogs, and they would be moving into the home
with him. (Ex. 1 – Deposition of Defendant
Garcia pg. 3:12-19).

Upon information and belief and at all times
material hereto, Defendant Garcia never
acquired a Breed-Restricted Permit from
[Denver Animal Protection (DAP)] for his two
pit bulls. (Ex. 1 – Deposition of Defendant
Garcia pg. 8:22-25 and 9:1-5).

22
Defendant Katco Investments LLC, never
inquired with Defendant Garcia if his pit bulls
had the required Breed-Restricted Permit, and
never told Defendant Garcia he must acquire
the proper permit from DAP for his two pit
bulls. (Ex. 1 – Deposition of Defendant Garcia
pg. 5:18-23).

....

At all times material hereto and on and/or
before February 15, 2023, Defendant Katco
Investments LLC knew that said dogs were
vicious and/or had dangerous tendencies
before entering a rental agreement with
Defendant Garcia.

Upon information and belief, Defendant Katco
Investments LLC visited the Property which
Defendant Garcia rented and saw Defendant
Garcia’s pit bulls. (Ex. 1 – Deposition of
Defendant Garcia pg. 4:18-25).

....

Upon information and belief, Defendant
Garcia’s two pit bulls escaped from Defendant
Katco Investments LLC’s Property through, or
over, a fence which was not maintained in
proper and safe conditions for the dangerous
dog breed. (Ex. 1 – Deposition of Defendant
Garcia pg. 6:18-25).

....

Upon information and belief, Defendant Garcia
still lives at the Property owned by Defendant
Katco Investments LLC. (Ex. 1 – pg. 9:13-25).

23
¶ 46 Joseph alleged that Katco “knew” the dogs were vicious or had

vicious tendencies before Katco entered into a lease with Garcia.

Although we found no post-Warne Colorado cases that shed light on

whether the allegations in paragraph 24 are conclusory, we found

federal cases holding that a plaintiff may plead knowledge generally,

but they must still allege facts or events that give rise to an

inference of knowledge. See, e.g., Kaplan v. Lebanese Canadian

Bank, SAL, 999 F.3d 842, 864 (2d Cir. 2021) (While a plaintiff can

generally plead a defendant’s knowledge because “a plaintiff

realistically cannot be expected to plead a defendant’s actual state

of mind,” the plaintiff must include allegations of fact or events that

the plaintiff claims give rise to an inference of knowledge. (quoting

Conn. Nat’l Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir. 1987)));

Great Am. Emu Co. v. E.J. McKernan Co., 509 F. Supp. 3d 528, 540

(E.D.N.C. 2020) (a plaintiff may not rest on conclusory allegations

that a defendant “knew or should have known” certain information

because, absent specific factual allegations permitting a plausible

inference of knowledge, a court need not accept such legal

conclusions that are elements of the cause of action).

24
¶ 47 Joseph’s proposed second amended complaint pleads no

specific factual allegations giving rise to a plausible inference that

Katco had knowledge about the viciousness of Garcia’s pit bulls

before entering into the lease. In short, while Joseph’s allegations

are not conclusory, they nonetheless suffer from the same

deficiency as the allegations in Joseph’s original complaint. Joseph

also alleged that Katco had knowledge that Garcia’s dogs were pit

bulls. But we do not read the knowledge standard in Vigil to be

satisfied when the landlord is aware solely of the dog’s breed. See

Vigil, 725 P.2d at 1157.

¶ 48 To the extent Joseph argues that the existence of Denver’s

Breed-Restricted Permit requirement regarding pit bulls is sufficient

to establish a duty of care, the requirement that a pit bull owner

obtain a Breed-Restricted Permit does not speak to the viciousness

of Garcia’s pit bulls, as required to establish a duty under Vigil.

The Denver ordinance prohibits a resident from owning a pit bull

without first obtaining a Breed-Restricted Permit. Garcia’s

deposition testimony establishes that Garcia did not obtain such a

permit and that Katco did not inquire whether Garcia had applied

for one. But even assuming these facts are true, as we must, this

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proves only that Katco may have facilitated Garcia’s violation of the

Denver ordinance; but Joseph does not allege that Katco had prior

knowledge of the dogs’ viciousness. If, for instance, Katco knew

that Garcia had applied for and was denied a Breed-Restricted

Permit for reasons relating to the dogs’ temperament, then this

allegation may have cured the deficiency in Joseph’s complaint. Cf.

Collins v. Otto, 369 P.2d 564, 566 (Colo. 1962) (holding owners of a

coyote liable for injuries it caused without proof of the owners’

knowledge of the animal’s vicious propensities because the statute

defined a coyote as a “predatory animal”).

¶ 49 Therefore, we conclude that the proposed second amended

complaint did not cure the deficiency in Joseph’s negligence

claim — that Katco had “actual knowledge” of the dogs’ viciousness

and nonetheless entered into a rental agreement with Garcia. See

Warne, ¶ 27.

IV. Appellate Attorney Fees

¶ 50 Katco seeks appellate attorney fees and costs under C.A.R.

28(b); C.A.R. 38(b); C.A.R. 39; and section 13-17-102, C.R.S. 2024.

¶ 51 Katco claims that it is entitled to attorney fees under C.A.R.

38(b), which says, “[i]f the appellate court determines that an

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appeal or cross-appeal is frivolous, it may award damages it deems

appropriate, including attorney fees, and single or double costs to

the appellee or cross-appellee.”

¶ 52 Under section 13-17-102(4), appeals may be deemed frivolous

in two ways: (1) frivolous as filed, when “the judgment by the

tribunal below was so plainly correct and the legal authority

contrary to appellant’s position so clear that there is really no

appealable issue”; and (2) frivolous as argued, when “even in cases

in which genuinely appealable issues may exist, . . . the appellant’s

misconduct in arguing the appeal may be such as to justify holding

the appeal to be ‘frivolous as argued.’” Castillo v. Koppes-Conway,

148 P.3d 289, 292 (Colo. App. 2006) (quoting Dungaree Realty, Inc.

v. United States, 30 F.3d 122, 124 (Fed. Cir. 1994)). Although we

ruled against Joseph in this appeal, we cannot say that his

arguments were so lacking in legal support that they were not

rational or that Joseph interposed them to harass Katco or to delay

resolution of the case. See Mission Denver Co. v. Pierson, 674 P.2d

363, 366 (Colo. 1984). Indeed, we concluded that the court erred

by denying Joseph’s motions for leave to amend his complaint,

although we ultimately concluded that error was harmless.

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Accordingly, we decline to award attorney fees to Katco under

C.A.R. 38(b).

¶ 53 Because Katco’s request under C.A.R. 39(a)(2) lacks the

necessary supporting factual and legal basis for a fee award, we

also decline to award Katco appellate attorney fees under that

rule. See In re Marriage of Wright, 2020 COA 11, ¶ 39 (denying a

party’s request for appellate attorney fees “because he ha[d] failed to

cite any legal authority for the request”); C.A.R. 39.1 (“If attorney

fees are recoverable for the appeal, the principal brief of the party

claiming attorney fees must include a specific request . . . and must

explain the legal and factual basis for an award of attorney fees.”).

¶ 54 But Katco is entitled to its appellate costs under C.A.R.

39(a)(2), which provides, “[I]f a judgment is affirmed, costs are taxed

against the appellant.” Accordingly, we remand the case to the

district court to calculate Katco’s appellate costs.

V. Conclusion

¶ 55 The judgment is affirmed, and the case is remanded to the

district court to calculate and award Katco its appellate costs.

JUDGE LIPINSKY and JUDGE HAWTHORNE concur.

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