Martinez et al v. Nash Finch Company

Filing 57

OPINION AND ORDER GRANTING, IN PART, MOTION TO DISMISS: Avanza's Motion to Dismiss 14 is GRANTED IN PART, insofar as Plaintiff Margaret Martinez's civil theft claim is DISMISSED as untimely, and DENIED IN PART in all other respects. by Judge Marcia S. Krieger on 8/13/12.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-02092-MSK-KLM
MARGARET MARTINEZ;
MARIA ELENA CASTONON;
JORGE DOMINGUEZ RAMIREZ;
CAROLINA CRUZ;
MARIA BERENICE CRUZ RAMOS;
ROSA BAUTISTA;
PEDRO ROMAN;
TEODORO RUEDA;
MARTHA GARCIA;
ADELIA VALDEZ;
GENOVEVA RODRIGUEZ;
MARIA DURAN;
REFUGIO DE LA CRUZ;
JUAN RODRIGUEZ;
EVA DE LA CRUZ;
BARBARA JOJOLA;
LETICIA SILVA;
RAFAEL CASTANEDA;
MARIA CHAVEZ EGUIA;
JUANA MARTINEZ;
ALFREDO LEDEZMA;
JOSE ESPITIA, JR.;
RAYMOND VALDEZ;
JORGE TERRAZA MONTOYA;
MARICA LARIZ;
PRUDENCIA DE LA ROSA;
MARIA NIEBLAS;
JOSE ARRENDONDO;
MARIA VALASQUEZ;
CARMEN BERMUDEZ;
PATRICIA CASTANEDA;
JOSE JUAN RAMIREZ;
MARIA TRINIDAD OSORIO;
TINA MONTEZ;
DORA LIZ CRUZ;
MAYRA CARMONA;
LETICIA JIMINEZ;
MAURICIO CACCIA;
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RITA ORALIA SIERRO;
LORENZO POSADA;
MARIA MONTOYA;
MARISELA SAYAGO;
MIGUEL TOLEDO;
ROCIO AGUILERA;
MARIA RAMIREZ;
OSCAR PEREZ;
JUVENAL TORRES;
CONSUELO TORRES;
HILDA CORDIAL;
NANCY CRUZ RAMOS;
ESPERANZA RAMOS PADILLA;
TANIA ANDRADE REYES;
HERIBERTO MARTINEZ;
CYNTHIA MARTINEZ;
TANIA MARTINEZ;
SERGIO SOSA, JR.;
FELIPE CERVANTES;
SUSANA ORELLANA;
IRMA SKINNER;
LUIS GARCIA;
ROSA BOTELLO;
MARIA DEL CARMEN CONTRERAS;
GLORIA FERNANDEZ;
JAVIER HERNANDEZ;
LIDIA JAIME CARDENA;
MARIA DEL CARMEN SALAZAR;
ESMERALDA OSEGUERA MARTINEZ;
REYNA MORALES;
ANA MELGAR;
GUSTAVO JACO;
MARIA DE JACO;
MARIO MOLINA;
MARCO CHAVEZ;
YANIRA JACO;
ANGEL BANUELOS;
CESAR YANEZ;
MARISELA ROMERO;
CLAUDIA JAVIER;
MAGDALENA GARCIA;
ROSAURA L DE MERAZ;
JUAN CARLOS ARRENDONDO;
RAMON HOLGUIN; and
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JOSE LUIS SANCHEZ, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
NASH FINCH COMPANY, d/b/a Avanza Supermarket,
Defendant.
______________________________________________________________________________
OPINION AND ORDER GRANTING, IN PART, MOTION TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendant’s (“Avanza”)
Motion to Dismiss (# 14), the Plaintiffs’ response (# 17), and Avanza’s reply (# 20).
FACTS
Although lengthy , the Plaintiffs’ Amended Complaint (# 3) describes a straightforward
factual scenario. During 2008 and 2009, Avanza operated several grocery stores. Prices for
goods were posted on the goods, on store shelves or in various published advertisements. Some
promotional materials, stated: “A great way to save - plus 10% at the register!”1
The Plaintiffs, all customers of Avanza, allege that they understood the promotional
language to mean that the posted price would be reduced by 10% at the register, resulting in a
10% savings. The reality, however, was precisely the opposite - at the register, the posted or
advertised price was increased by 10%. The Plaintiffs contend that they were misled by
Avanza’s representations, and, as a result, overpaid for the goods that they purchased from
Avanza.

1

An exhibit reflecting this language also contains what appears to be a similar statement
in Spanish. Neither party has purported to provide the Court with a translation of the Spanish
text, and thus, the Court does not consider the Spanish component in its analysis.
3

The Plaintiffs assert three claims: (i) violation of the Colorado Consumer Protection Act
(“CCPA”), C.R.S. § 6-1-101 et seq., in that Avanza’s representation was deceptive and
misleading as to the prices of its goods; (ii) common-law fraud, apparently under Colorado law,
on the same basis as claim one2; and (iii) civil theft under C.R.S. § 18-4-405, in that Avanza
“obtained money from the plaintiffs by deception”.
Avanza moves (# 14) to dismiss the claims against it, arguing: (i) as to the CCPA claim,
the Plaintiffs have failed to plead fraud with the particularity required by Fed. R. Civ. P. 9(b),
have failed to plead facts showing any statement that could be construed as fraudulent, and in
any event, the remedies provided by C.R.S. § 6-1-113(2) are expressly unavailable in a class
action (which the Plaintiffs purport to bring here)3; (ii) as to the common-law fraud claim, the
Plaintiffs have failed to plead facts showing a misleading statement, Avanza’s knowledge of the
statement’s misleading character, and the Plaintiffs’ own reliance on the statement; and (iii) as to
the civil theft claim, that the Plaintiffs’ claims are untimely and that the Plaintiffs fail to
adequately plead facts showing a civil theft.
ANALYSIS
A. Standard of review
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-plead allegations in the Complaint as true and view those allegations in the light most
favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d

2

Claim two is also susceptible to a reading that it is asserting a statutory claim for false
advertising under C.R.S. § 18-5-301 and -303.
3

The Court notes that the Plaintiffs have recently moved for class certification (# 49).
That motion is not yet at issue.
4

1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999). With regard to what must be pled to avoid dismissal, the Supreme
Court in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), described the standard that must be met
as “facial plausibility.” In this context, “plausibility” refers to the scope and degree of
specificity of the allegations in the complaint. Khalik v. United Air Lines, ___ F.3d ___, 2012
WL 364058 (10th Cir. Feb. 6, 2012). Although Fed. R. Civ. P. 8(a)(2) still requires the pleader to
supply only “a short and plain statement of the claim,” that statement must provide more than
“labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or
generalized allegations of conduct that “encompass a wide swath of conduct, much of it
innocent.” Id. In this regard, the plaintiff must do more than articulate a set of facts that could
“conceivabl[y]” or “possibly” give rise to a claim; he must “nudge[ ] his claims across the line
from conceivable to plausible.” Id. Of course, the degree of specificity that will be required will
necessarily vary based on the context of the case. Id.
B. CCPA claim
a. Particularity in pleading
The CCPA prohibits a wide variety of “deceptive trade practices,” including “mak[ing]
false or misleading statements of fact concerning the price of goods” and “advertisi[ing] good . .
. with intent not to sell them as advertised.” C.R.S. § 6-1-105(1)(i), (l). To adequately plead a
CCPA claim, the Plaintiffs must allege: (i) that Avanza engaged in a practice deemed deceptive
under the statute; (ii) that the practice occurred in the course of Avanza’s business; (iii) that the
practice significantly impacts the public as actual or potential consumers of Avanza’s goods; (iv)
that the Plaintiffs suffered an injury in fact; and (v) that the deceptive trade practice was the

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cause of that injury. HealthONE of Denver, Inc. v. United Health Group, Inc., 805 F.Supp.2d
1115, 1120 (D. Colo. 2011).
Where the alleged deceptive trade practice sounds in fraud, allegations as to fraudulent
statements must be pled with particularity, as required by Fed. R. Civ. P. 9(b). Id. at 1120-21.
Typically, to satisfy Rule 9(b), the Plaintiffs must “set forth the time, place and contents of the
false representation, the identity of the party making the false statements, and the consequences
thereof.” Id. at 1121, quoting Koch v. Koch Industries, Inc., 203 F.3d 1202, 1236 (10th Cir.
2000). The particularity requirement is designed to afford a defendant “fair notice of the
plaintiff’s claims and the factual ground upon which they are based.” Id. At the same time, Rule
9(b) must be read in conjunction with the requirements of Fed. R. Civ. P. 8, which calls for
simple and concise pleading. Id.
Avanza contends that the Plaintiffs have not pled the CCPA claim with the degree of
particularity required by Rule 9(b), insofar as they do not identify the time, place, and contents
of paticular advertisements and promotional materials that misrepresent the “plus 10%” policy.
This argument is without merit.
First, the Court reads the Amended Complaint to allege that Avanza engaged in
deception through both misleading affirmative representations and omissions. As to omissions,
the Court understands the Plaintiffs to allege that although Avanza advertised and displayed
prices for various products, it failed to meaningfully disclose the fact that those prices would be
increased at the register. Although Rule 9(b)’s requirement of particularity in pleadings applies
to claims of fraudulent omission, that standard is modified somewhat. S.E.C. v. Nacchio, 438
F.Supp.2d 1266, 1277 (D. Colo. 2006). For claims premised on omissions, the Plaintiffs must

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sufficiently identify “the particular information that should have been disclosed, the reason the
information should have been disclosed, the person who should have disclosed it, and the
approximate time or circumstances in which the information should have been disclosed.” Id.
The Court finds that the Amended Complaint, and the reasonable inferences that can be
drawn therefrom, satisfy this standard. The information that the Plaintiffs allege should have
been disclosed (but was not) was that posted or advertised prices would be increased by 10% at
the register. In the absence of any affirmative representation, the failure to correctly state the
price or disclose that it will be increased is a material omission. The Plaintiffs allege that this
was a business practice applied to their purchases.

As to CCPA claims premised on deceptive

omissions by Avanza, the Court finds that the Amended Complaint satisfies Rule 9(b)’s
particularity requirement.
The Plaintiffs also allege that Avanza made affirmative misrepresentations in advertising
materials that state: “A great way to save - plus 10% at the register!” These allegations satisfy
Rule 9(b)’s requirement that the Plaintiffs identify the false statement with particularity. The
Plaintiffs also adequately allege the consequences of that statement, contending that it caused
customers to “believe that they were receiving 10% additional savings or discount at the point of
purchase rather than 10% additional charge.”
Admittedly, the Amended Complaint does not identify the time and place of every
advertisement that included the pertinent language, but under the circumstances, the failure to
allege such matters does not deprive Avanza of meaningful notice of the grounds upon which the
Plaintiffs’ claim is made. The Plaintiffs appear to contend that the “great way to save - plus
10%” language was commonly used by Avanza, appearing in “advertisements, displays, and

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sales materials,” suggesting that Avanza made repeated and systematic use of the misleading
language. Presumably, Avanza itself is aware of the contents of its own advertising materials,
and thus, can readily ascertain when and where it used the “great way to save - plus 10%”
language, or, at the very least, can clarify the matter via discovery. Thus, under the
circumstances, the Court finds that the Plaintiffs have pled their claims of deception under the
CCPA with sufficient specificity to satisfy Rule 9(b).
b. Deceptive language
Next, the Court turns to Avanza’s argument that the express statement identified by the
Plaintiffs – the “great way to save - plus 10%” language – is not deceptive as a matter of law.
Avanza argues that the statement is not literally false, and that to the extent it is susceptible to
multiple interpretations, at least one of those interpretations is not misleading. Thus, Avanza
argues that the Plaintiffs’ claims do not rise to Iqbal’s “plausibility” standard.
The Court rejects both arguments. A natural and plausible reading of the “great way to
save - plus 10%” language is the interpretation offered by the Plaintiffs: that Avanza was
promising an additional 10% savings that would be applied at the time of checkout. The close
linguistic proximity of the word “save” and the “plus 10%” suggests that the concepts of
“sav[ing]” and “plus 10%” are related. In addition, the Plaintiffs’ understanding that an
additional discount would be offered at the time of checkout is consistent with general retail
practice. Most consumers have encountered sales in which a discount is promoted along with
the advisement of “discount taken at register”. It is far less common that a retailer that displays
items with conspicuous price tags systematically charges a higher price for those items at the
register. Finding that the Plaintiffs’ understanding of the language “great way to save - plus

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10%” is plausible satisfies Iqbal and is sufficient to create a legal and factual issue as to whether
such language is deceptive.4
c. No Statutory remedy
Finally, Avanza argues that the CCPA does by a class of plaintiffs.5 C.R.S. § 6-1113(1)(a) provides for “a civil action for any claim against any person who has engaged in . . .
any deceptive trade practice” by an “actual or potential consumer of the defendant’s goods.”
The statute also provides that “Except in a class action, . . . any person who, in a private civil
action, is found to have [violated the CCPA] shall be liable in an amount equal to the sum of”
actual damages (or statutory damages of $500, or trebled damages in certain circumstances) plus
costs and attorney’s fees. C.R.S. § 6-1-113(2). The Plaintiffs concede that the “except in a class
action” language operates to preclude them from recovering statutory or trebled damages or
attorney’s fees, but contend that cases such as Robinson v. Lynmar Racquet Club, Inc., 851 P.2d
274, 278 (Colo. App. 1993), permit class actions to recover actual damages sustained by class
members. Avanza argues that the “except in a class action” language operates to preclude
recovery of any monetary damages, actual or otherwise.
On this issue, Avanza has the stronger argument. When interpreting a statute, the Court
begins by examining its plain language, and if the statutory language is clear, the Court’s

4

This Court is not persuaded by the reasoning of the United States District Court for the
District of Minnesota in Salinas v. Nash Finch Co., D. Minn. Case no. 09-172 (Jul. 1, 2009),
granting Avanza’s motion to dismiss in a similar case. Notably, the transcript of the court’s oral
ruling (attached to Avanaza’s motion here) makes no mention of the juxtaposition of the “great
way to save” and “plus 10%” language; the transcript mentions only advertising language
consisting of “plus 10% at the register.”
5

For purposes of analysis, the Court begins with the assumption that a class will be
certified.
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analysis
is at an end. Russell v. U.S., 551 F.3d 1174, 1178 (10th Cir. 2008). Moreover, where a statute
provides for (or, here, excludes) a particular remedy, the Court must be leery of reading other
remedies into the statutory scheme. Id.
Here, C.R.S. § 6-1-113(1) makes a private cause of action available under the CCPA, and
contains no text limiting the ability of a plaintiff class to bring such a claim. However, when
identifying the remedies available in a private action – actual damages, statutory damages,
trebled damages, and attorney’s fees and costs – § 6-1-113(2) expressly provides that the
remedies are not available to a plaintiff class.
The Plaintiffs appear to concede that § 6-1-113(2) operates to preclude statutory and
treble damages and attorney’s fees in class actions, but argue that actual damages nevertheless
remain available. The relevant statutory text reads as follows:
(2) Except in a class action . . ., any person who, in a private civil
action, [is found liable] shall be liable in an amount equal to the
sum of:
(a) the greater of:
(I) the amount of actual damages
sustained;
(II) five hundred dollars; or
(III) Three times the amount of
actual damages sustained [in cases of
bad faith conduct]; plus
(b) . . . the costs of the action together with
reasonable attorney’s fees.
C.R.S. § 6-1-113(2). All of the remedies authorized by subsection (2) are subject to the

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exclusion for class actions. Thus, all of the remedies found in subsection (2)(a)(I)-(III) (as well
as those in subsection (b)) are unavailable in a private class action. The Plaintiffs offer no
tenable argument by which the Court can conclude that statutory damages or treble damages
under subsection (2)(a)(II) and (III) are somehow subject to the exclusionary language, but that
actual damages under subsection (2)(a)(I) are not. The plain and unambiguous language of the
statute compels the conclusion that all of the remedies in subparts (a)(I)-(III) and (b), including
actual damages, are not available to classes.
The Plaintiffs rely on Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274, 278 (Colo.
App. 1993), for the proposition that actual damages are recoverable in class actions. In
Robinson, a disgruntled health club customer brought a CCPA claim against the club and sought
leave to pursue that claim on behalf of a class. The trial court denied class certification,
apparently on the grounds that § 6-1-113(2) precluded any class remedies. The trial court then
concluded that the plaintiff had proven her individual CCPA claim and awarded her statutory
damages. On appeal, the plaintiff argued that the “trial court erroneously interpreted the
damages provision of the CCPA to exclude members of a class from entitlement to certain
statutory damages,” but the Court of Appeals disagreed. Id. at 277. Robinson concerned a prior
version of § 6-1-113(2), that provided:
(2) Except in a class action, . . . [a defendant shall] be liable in an
amount equal to the sum of:
(a) Three times the amount of actual damages
sustained or two hundred fifty dollars, whichever is
greater; and
(b) [costs and attorney’s fees].
851 P.2d at 278. The Court of Appeals explained that:
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By its plain language, this statute establishes a defendant’s liability
in a private civil action . . . and sets forth the damages available to
an individual plaintiff. Contrary to Robinson’s assertions, it
expressly excludes members of a class from benefitting from
damages provided in subparagraphs 2(a) and (b). Thus, as is
relevant here, although an individual plaintiff may be awarded
$250 under the provision without proof of actual damages, class
action members may not.
Id. The Court went on to note that “although the statute does not preclude class members from
bringing an action for actual damages, Robinson alleged no actual damages in her complaint and
her arguments have focused on their entitlement, not to actual damages, but rather to the $250
provided by statute.” Id.
Because this Court is asked to apply Colorado law, it defers to Robinson insofar as it
determined that the remedies provided in subsections 2(a) and (b) of the version of § 6-1-113
then in effect were unavailable to class members. That conclusion finds its support in the
unambiguous statutory text. Robinson’s pronouncement that “the statute does not preclude class
members from bringing an action for actual damages” was dicta6, and therefore is not instructive
on this issue. Indeed, this statement is impossible to reconcile with the court’s actual holding that
the $250 statutory damages of the then-§ 6-1-113(2)(a) were unavailable to class members, given
that (trebled) actual damages were listed in the same statutory provision that the court concluded
did not apply to a class. Accordingly, this Court is unpersuaded that Robinson stands for the
proposition that a class of plaintiffs can obtain an award of actual damages under § 6-1-113.

6

As the court noted, “Robinson alleged no actual damages in her complaint,” and thus,
the question of whether class members could recover actual damages was not a question before
the court. It was also unconnected to the statutory language, insofar as the court offered no
statutory citation or source of authority for its belief that class members could nevertheless
obtain actual damages under § 6-1-113(2).
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Turning to the statutory language, the parties focus their arguments on the type of remedy
provided in § 6-1-113(2). However, the language of § 6-1-113(2) is not limited to the
articulation of remedies; indeed, it defines a defendant’s liability under the CCPA in a private
action. It limits such liability to specified remedies, and expressly states that such remedies are
not applicable in class actions. By logical extension, the CCPA creates no statutory liability for
a defendant in a private class action.7
At this juncture, each plaintiff is pursuing his or her own rights and no class certification
has been sought. In such context, the full panoply of CCPA remedies (and full scope of liability)
appears to be at issue. Accordingly, the Court denies Avanza’s motion to dismiss the CCPA
claims as currently pled.
C. Common-law fraud
To plead a claim for common-law fraud under Colorado law, the Plaintiffs must allege
facts showing: (i) Avanza made a false representation of fact or an omission of a material fact;
(ii) that the representation or omission was made to induce the Plaintiffs to act; (iii) the Plaintiffs
acted to their detriment; and (iv) they did so in reliance upon the misrepresentation or omission.
Nelson v. Gas Research Inst., 121 P.3d 340, 344 (Colo. App. 2005). Avanza moves to dismiss
the Plaintiffs’ common-law fraud claims, arguing that the Plaintiffs have failed to allege a

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Although the parties have not focused on it, the critical operative language of § 6-1113(2) may be its reference to a private action. A regulatory action can be initiated by the
attorney general or district attorney for violations of the CCPA in accordance with § 6-1-110. In
such action, civil penalties can be imposed in accordance with § 6-1-112. Such action is brought
on the behalf of the public and penalties are payable to the general fund. Reading such sections
together with § 6-1-113(2), it would appear that the Colorado Assembly intended that the
interests of plaintiff classes would be protected by the attorney general or district attorney, rather
than through private action.
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misleading statement, Avanza’s knowledge of the misleading character of the statement, and the
Plaintiffs’ own reliance upon it.
The Court finds each of Avanza’s arguments to be meritless. As noted above, the “great
way to save - plus 10%” language is readily susceptible to an interpretation which promises 10%
savings, not a 10% surcharge, to customers. Moreover, one could reasonably infer from
Avanza’s use of such an unorthodox pricing model, coupled with promotional language that
tends to obscure, rather than highlight, that pricing policy, that Avanza specifically expected and
intended that its customers might misunderstand the nature of the policy. Although Avanza may
be correct that the specific allegations as to each Plaintiff’s reliance on the “great way to save plus 10%” language are largely conclusory, the Court cannot say, in the particular circumstances
of this case, that more detail is necessary to put Avanza on notice of the Plaintiffs’ claims.
It may ultimately be revealed through discovery that particular Plaintiffs cannot prove
that they relied upon the “great way to save - plus 10%” language (or any other
misrepresentations or omissions that may be established) when deciding when and how often to
patronize Avanza,8 but that is a matter that is best dealt with at summary judgment. At the
pleading stage, the Court finds that under the particular circumstances of this case, a largely
conclusory assertion that the Plaintiffs relied upon Avanza’s misleading advertising is sufficient

8

Avanza appears to argue that, because customer receipts disclosed the 10% surcharge,
the Plaintiffs could not have relied upon the advertising materials to believe they were instead
receiving a 10% savings. There are passing mentions that one the Plaintiffs noticed the 10%
surcharge listed on her receipts, but the Amended Complaint does not elaborate. The Court is
not prepared to say that, based on these limited factual allegations, the element of reliance cannot
be satisfied. The manner in which the 10% surcharge was disclosed on the receipt and the
reasonableness of the Plaintiffs’ diligence (or lack thereof) in reviewing the receipts inform the
reliance question in fact-dependent ways, such that dismissal at the pleading stage would be
inappropriate.
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to state a claim for common-law fraud.
D. Civil theft
Finally, the Court turns to the Plaintiffs’ claims for civil theft under C.R.S. § 18-4-405.
That statute provides that “the owner [of property obtained by theft, robbery, or burglary] may
maintain an action not only against the taker thereof but also against any person in whose
possession he finds the property.” To plead a claim for civil theft, the Plaintiffs must allege facts
showing that Avanza obtained control over the Plaintiffs’ property in circumstances amounting
to “theft, robbery, or burglary.”9 Such theft may occur where a person simply takes another’s
property without authorization, or in more complicated circumstances, such as where the person,
via deception, obtains the owner’s authorization to take the property. West v. Roberts, 143 P.3d
1037, 1040 (Colo. 2006).
Avanza argues that the Plaintiffs’ civil theft claims are untimely. Civil theft claims are
subject to a two-year statute of limitations. Maez v. Springs Automotive Grp., 268 F.R.D. 391,
395 (D. Colo. 2010). The Amended Complaint alleges that the Plaintiffs shopped at Avanza
from June 2008 to March 2009. This action was commenced in the Colorado District Court for
Denver County on June 20, 2011. Thus, the question presented is when the Plaintiffs’ civil theft
claims accrued.
C.R.S. § 13-80-108 generally governs the question of accrual of claims. Whether a civil
theft claim under C.R.S. § 18-4-405 is characterized as “a cause of action for injury to person

9

The statute also creates liability in a person who actually possesses property taken from
a plaintiff through theft, even if the person in possession did not commit the theft. Given the
nature of the allegations here, the Court does not understand the Plaintiffs to contend that
Avanza is the innocent possesor of property that was taken from them by someone else.
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[or] property,” C.R.S. § 13-80-108(1), or whether, in the circumstances here, it is better
described as “a cause of action for fraud, misrepresentation, concealment, or deceit,” C.R.S. §
13-80-108(3), is largely immaterial; in either circumstance, the cause of action accrues on the
date that the injury or deceit “is [known/discovered] or should have been [known/discovered] by
the exercise of reasonable diligence.” Thus, the Plaintiffs’ civil theft claims accrued at the point
in time in which the Plaintiffs either knew or discovered that they were being charged an
additional 10% on their purchases, or at the time that they reasonably should have known or
discovered that fact.
The Amended Complaint indicates that Plaintiff Margaret Martinez actually discovered
the existence of the 10% surcharge on January 27, 2009, as a result of examining her receipts.
Because Ms. Martinez had actual notice of the purported deception as of that time, her civil theft
claim accrued on January 27, 2009, and thus was barred by the statute of limitations as of
January 27, 2011, prior to the filing of this action in June 2011. Thus, her civil theft claim is
dismissed as untimely.
The Amended Complaint does not address the dates upon which any other Plaintiff
actually discovered the existence of the 10% surcharge. Avanza argues that because the 10%
surcharge was displayed on customers’ receipts, and all the Plaintiffs at issue here completed
their shopping by March 2009, they were on constructive notice of the surcharge for more than
two years prior to the filing of this action, rendering all of the civil theft claims untimely.
Although it may ultimately be that conspicuous disclosure of the 10% surcharge on customer’
receipts might be sufficient to put the customers on constructive notice of the surcharge, the
Court is not prepared to dismiss the civil theft claims on that ground at this early stage of the

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litigation. Assuming that the surcharge is displayed on customer receipts, the record does not
reflect where and how the surcharge is disclosed. Whether the disclosure of the surcharge is so
sufficiently clear and conspicuous that a customer exercising reasonable diligence should be
expected to promptly discover it is a question better suited for analysis on a full factual record at
the summary judgment stage.
As to Avanza’s argument that the Plaintiffs fail to adequately plead the elements of a
civil theft claim – specifically, that Avanza committed a “theft” – the Plaintiffs are required to
allege facts showing that Avanza “knowingly obtain[ed] or exercis[ed] control over anything of
value of [the Plaintiffs] without authorization, or by threat or deception, and ... [i]ntend[ing] to
deprive the [Plaintiffs] permanently of the use or benefit of the thing of value.” West v. Roberts,
143 P.3d 1037, 1040 (Colo. 2006) (emphasis in original). Although the Amended Complaint
does not allege such facts verbatim, a reasonable inference to be drawn from its allegations is
that the Plaintiffs contend that Avanza obtained control over their money – specifically, the 10%
surcharge they paid – by means of deception, and that Avanza intended to retain that money
permanently. Thus, under the liberal standards of Rule 8, the remaining Plaintiffs have
adequately pled the elements of civil theft.

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CONCLUSION
For the foregoing reasons, Avanza’s Motion to Dismiss (# 14) is GRANTED IN PART,
insofar as Plaintiff Margaret Martinez’s civil theft claim is DISMISSED as untimely, and
DENIED IN PART in all other respects.
Dated this 13th day of August, 2012
BY THE COURT:

Marcia S. Krieger
United States District Judge

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