Motion To Strike Designation Of Non-Party

COMES NOW the Plaintiff, by and through the undersigned counsel, and files this Motion to Strike Defendant’s Designation of Non-Party, and as grounds in support states as follows:

C.R.C.P. 121 Certification

Plaintiff attempted in good faith to resolve this issue without filing a motion. (Exhibit 1) Defendant objects to the motion.

1. This case arises out of injuries suffered in slip and fall incident which occurred on March 20, 2008. Plaintiff was a tenant lawfully on the subject premises when she slipped and/or tripped and fell on a stair step located in a common area of the subject property.

2. The subject property is owned by Trees Holding Company, L.L.C. (“Trees”) with its’ owner and registered agent being William Arthur Bivens, Jr. A copy of the Articles of Organization is attached hereto as Exhibit 2.

3. The Defendant, submitted an insufficient, unsupported, Designation of Non-Party designating Gibraltar Property Management, L.L.C., (Gibraltar) as a non-party at fault, pursuant to C.R.S. 13-21-111.5. Defendant’s designation was submitted on Monday May 18, 2009

4. Gibraltar Property Management L.L.C is owned by and its’ registered agent is listed as William Arthur Bivens, Jr. This is the same individual who owns and operates Trees. A copy of the Articles of Organization is attached hereto as Exhibit 3.

5. Plaintiff submitted written discovery to Defendant and answers were served and received on April 30, 2009.

6. In response to pattern interrogatory number 16.1, 16.2 and 16.3 Trees denied that anyone other than the Plaintiff caused the alleged occurrence. The verification for the answers being true and correct under penalty of perjury was signed by William A. Bivens, Jr., owner and agent for Trees and Gibraltar. See Exhibit 4.

7. Defendant’s designation fails to comply with the provisions of C.R.S. §13-21-111.5(3)(b). In particular section C.R.S. §13-21-111.5(3)(b) sets forth the stringent requirements for adequate designation for the non-party at fault. Colorado courts have held that the statutory requirements should be strictly construed for purposes of the determining sufficiency. In Redden v S.C.S.I. Colorado Funeral Services, Inc., in 38 P.3d 75 (Colo. 2001), the Supreme Court of Colorado held that a non-party designation must go beyond bald allegations. See also, Sandoval v_Archdiocese of Denver, 8 P.3d 598, 606 (Colo. App. 2000)(requiring a defendant to establish the existence of a duty, a breach of that duty, causation and damages).

8. C.R.S. §13-21-111.5(b) requires that the notice “shall be given by filing of a pleading in the action designating such non-party and setting forth such non-parties names, and last known address, or the best identification of such non-party which is possible under the circumstances, together with a brief statement of the basis for believing such non-party to be at fault.”

9. Attached hereto is Exhibit 5, Defendant’s Designation, which is critically defective in that it fails to state any factual basis whatsoever for why the non-party is at fault.

10. The defendant’s designation is deficient in that it fails to meet the statutory and common law requirements for non-party designations as indicated hereinabove. Accordingly, Plaintiff seeks entry of an order striking said designation.

11. Although Trees (Walter A. Bivens Jr.) denied each and every allegation in the Complaint, it is a landowner pursuant to C.R.S. 13-21-115 and responsible for the condition of the property. Apportioning fault to a non-party Gibraltar (Walter A. Bivens, Jr.) makes no sense practically or procedurally. Even if the Complaint were amended to list Gibraltar – all roads lead to Bivens.

WHEREFORE, based on the foregoing, Plaintiff moves this Court for entry of an Order Striking the Defendant’s April 5, 2007, Designation on Non-Party and for such further relief as the Court deems just.