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DATE FILED: August 2, 2017 9:52 PM
DISTRICT COURT, COUNTY OF BOULDER, FILING ID: 416FE5D6E3AAC
STATE OF COLORADO CASE NUMBER: 2017CV30607
Court Address: 1777 6th Street
Boulder, CO 80302
_____________________________________________________
Plaintiff: ANA MARIA TEJADA RUBIO
v.
Defendant: Z-AXIS TECH SOLUTIONS, INC. ▲COURT USE ONLY▲
On behalf of Plaintiff:
Brian R. Reynolds, No. 29493 Case No.: 2017CV30607
Patrick Gillette, No. 42848
REYNOLDS GILLETTE LLC Division: 2
955 Bannock Street, #200
Denver, CO 80204
Phone: (720) 442-8100
E-mail: brian@trialcolorado.com
patrick@trialcolorado.com
MOTION FOR DEFAULT JUDGMENT
AGAINST DEFENDANT Z-AXIS TECH SOLUTIONS, INC.
Plaintiff Ana Maria Tejada Rubio, through her undersigned counsel, hereby submits this
Motion for Default Judgment Against Defendant Z-Axis Tech Solutions, Inc., and in support
thereof states as follows:
INTRODUCTION
In accordance with C.R.C.P. 55(b), this Motion seeks entry of a final, default judgment in
favor of Plaintiff Ana Maria Tejada Rubio and against Defendant Z-Axis Tech Solutions, Inc.
FACTUAL BACKGROUND
Defendant hired Plaintiff as a full-time employee in the summer of 2016. Complaint, ¶¶
5-6, 24. In exchange for Plaintiff’s labor and services as an employee, Defendant agreed to
compensate Plaintiff with wages in the form of a salary and paid time off (“PTO”), which PTO
Defendant agreed to “buy back” from Plaintiff at the end of Plaintiff’s employment. Complaint,
¶ 8. Defendant paid Plaintiff most of her salary, and credited Plaintiff with PTO, in exchange for
the labor and services Plaintiff performed for Defendant between Plaintiff’s hire date and
December 31, 2016. Complaint, ¶ 9.
On or about January 27, 2017, before Plaintiff was paid for the labor and services she
performed subsequent to December 31, 2016, Defendant informed Plaintiff that she was being
terminated due to budget cuts and downsizing. Complaint, ¶¶ 11-12; Complaint, Exhibit 2.
Defendant further informed Plaintiff that her last day of employment would be February 9, 2017,
and that Defendant would issue Plaintiff’s final paycheck on February 15, 2017. Complaint, ¶ 13;
Complaint, Exhibit 2.
Defendant did not pay Plaintiff as promised, despite acknowledging in a February 27, 2017,
email that it owed Plaintiff $9,756.10 in wages. Complaint, ¶¶ 16-19; Complaint, Exhibit 3.
Plaintiff demanded Defendant pay her wages, including via a written demand mailed to
Defendant’s correct principal executive office address. Complaint, ¶¶ 20-21; Complaint, Exhibit
4. Despite Plaintiff’s written demand, as well as the filing and service of the instant lawsuit,
Defendant has not paid Plaintiff the wages that were earned, vested, determinable, and unpaid at
the time Defendant terminated Plaintiff’s employment. Complaint, ¶ 22; Exhibit 1: Affidavit of
Ana Maria Tejada Rubio, ¶ 11.
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PROCEDURAL BACKGROUND
Plaintiff filed her Complaint and Jury Demand (“Complaint”) in the above-captioned
action on June 8, 2017. Plaintiff’s Complaint states four claims for relief against Defendant: (1)
violation of the Colorado Wage Claim Act; (2) breach of contract; (3) promissory estoppel; and
(4) unjust enrichment. On June 16, 2017, a private process server hired by Plaintiff’s counsel
personally served Defendant with copies of the Summons, Complaint, Exhibits 1-4, and Civil Case
Cover Sheet by serving Defendant’s registered agent for service of process, Incorp Services, Inc.
Defendant failed to answer or otherwise respond to Plaintiff’s Complaint in accordance with the
Colorado Rule of Civil Procedure. Accordingly, Plaintiff filed an application for entry of default,
and on July 26, 2017, the Court entered default against Defendant.
ARGUMENT
I. DEFAULT JUDGMENT SHOULD ENTER IN FAVOR OF PLAINTIFF
AND AGAINST DEFENDANT
A. Plaintiff Is Entitled to Default Judgment on Her Claims for Relief
“[A]n entry of default establishes a party’s liability. When a trial court enters default
against a defendant, the defendant’s liability is deemed admitted. The allegations in the plaintiff’s
complaint are also deemed admitted.” Dickinson v. Lincoln Bldg. Corp., 378 P.3d 797, 804 (Colo.
App. 2015). “And, of course, allegations deemed admitted need not be proved.” Orebaugh v.
Dosckocil, 359 P.2d 671, 673 (Colo. 1961).
Nevertheless, while a default establishes liability, it “does not fix the amount of damages.”
See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 678 (Colo. 1987). Thus, once a court enters
default, a party entitled to a judgment by default must move the court therefor. See C.R.C.P. 55(b).
A court deciding a motion for default judgment “need be concerned only with matters of
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jurisdiction, venue, competency, and amount of damages in entering judgment against a non-
appearing defendant. If the court finds it necessary to take an account, or to determine the amount
of damages or to establish the truth of any averment to enable it to enter judgment, the court may
conduct a hearing and take evidence concerning those matters.” Denman v. Burlington Northern
R. Co., 761 P.2d 244, 247 (Colo. App. 1988). In any event, “a trial court should not become a
representative or advocate for parties who decline to appear.” Id.
In the instant matter, the Court’s entry of default established Defendant’s liability.
Dickinson, 378 P.3d at 804. The allegations in Plaintiff’s Complaint are thus deemed admitted.
Id. Because the allegations in Plaintiff’s Complaint are deemed admitted, they do not have to be
proved. Orebaugh, 359 P.2d at 673. Instead, Plaintiff must only establish jurisdiction, venue,
competency, and the amount of damages. Denman, 761 P.2d at 247.
i. Plaintiff’s First Claim for Relief: Violation of the Colorado Wage Claim Act
Plaintiff’s first claim for relief falls under the Colorado Wage Claim Act. Complaint, ¶¶
23-35; see also Colo. Rev. Stat § 8-4-101 et seq. The Wage Claim Act “allows an employee who
has been terminated from employment to sue his or her former employer for earned wages and
other compensation the employer has refused to pay.” Lester v. Career Bldg. Acad., 338 P.3d
1054, 1058 (Colo. App. 2014). “An employee’s right to recover under the Wage Act is conditioned
on his compliance with certain procedural steps, but if the employee complies with those steps and
the employer refuses to pay, the employee may recover penalties in addition to the unpaid
compensation.” Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1202 (Colo. App. 2010).
An employee’s claim under the Wage Claim Act arises when an employer terminates an
employee and fails to pay the employee’s wages in accordance with the statute. See C.R.S. § 8-4-
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109. Under C.R.S. § 8-4-109(1)(a), an employer that discharges an employee generally must pay
the employee’s “wages or compensation for labor or service earned, vested, determinable, and
unpaid at the time of discharge…immediately.” C.R.S. § 8-4-109(1)(a). “If an employer refuses
to pay wages or compensation in accordance with [C.R.S. § 8-4-109(1)(a)], the employee, his or
her designated agent, or the division may send a written demand for the payment.” C.R.S. § 8-4-
109(3)(a). Once the employee’s written demand for payment is sent, if the employee’s wages are
not paid within fourteen days, the employer is liable to the employee for the wages owed, plus
mandatory statutory penalties of:
(I) One hundred twenty-five percent of that amount of such wages or
compensation up to and including seven thousand five hundred dollars; and
(II) Fifty percent of that amount of such wages or compensation that exceed
seven thousand five hundred dollars.
C.R.S. § 8-4-109(3)(b)(I) and (II).
Additionally, “[i]f the employee can show that the employer’s failure to pay is willful, the penalty
required under paragraph (b) of this subsection (3) shall increase by fifty percent.” C.R.S. § 8-4-
109(3)(c).
In this case, Plaintiff was Defendant’s employee. Complaint, ¶ 24. On or about January
27, 2017, Defendant notified Plaintiff that her employment would terminate on February 9, 2017.
Complaint, ¶¶ 11-13, 28; Complaint, Exhibit 2. At the time of Plaintiff’s employment termination,
Defendant owed—and, indeed, admitted it owed—Plaintiff earned, vested, and determinable
wages of $9,756.10. Complaint, ¶¶ 30-31; Complaint, Exhibit 3. Despite admitting it owed these
wages to Plaintiff, “Defendant did not pay Plaintiff her earned, vested, and determinable wages in
accordance with Colo. Rev. Stat. § 8-4-109(1).” Complaint, ¶ 32. Id. On May 10, 2017, in
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accordance with C.R.S. § 8-4-109(3)(a), Plaintiff mailed a written demand for her wages to
Defendant’s correct principal executive office address. Complaint, ¶ 21, 33; Complaint, Exhibit
4. Defendant did not pay Plaintiff any wages—or any money, for that matter—in response to
Plaintiff’s written demand. Complaint, ¶ 22, 34; Exhibit 1, ¶ 11.
Because Defendant failed to pay Plaintiff’s $9,756.10 in wages in accordance with C.R.S.
§ 8-4-109(1), and also failed to pay the same within fourteen days of Plaintiff’s written demand,
Defendant:
shall be liable to [Plaintiff] for [her] wages or compensation, and a penalty of the
sum of the following amounts of wages or compensation due…:
(I) One hundred twenty-five percent of that amount of such wages or
compensation up to and including seven thousand five hundred dollars; and
(II) Fifty percent of that amount of such wages or compensation that exceed
seven thousand five hundred dollars.
C.R.S. § 8-4-109(3)(b) (emphasis added).
Accordingly, under C.R.S. § 8-4-109(3)(b), Defendant is liable to Plaintiff for (1) her
earned, vested, and determinable wages ($9,756.10); (2) one hundred twenty-five percent of that
amount of such wages or compensation up to and including seven thousand five hundred dollars
($9,375.001); and (3) fifty percent of that amount of such wages or compensation that exceed seven
thousand five hundred dollars ($1,128.052). See id. Additionally, because Defendant
acknowledged it owed Plaintiff wages and still did not pay, Defendant’s failure to pay Plaintiff’s
wages was without good cause and was thus willful. See Hartman v. Cmty. Responsibility Ctr.,
87 P.3d 202, 208 (Colo. App. 2003) (interpreting the predecessor to C.R.S. § 8-4-109 and finding
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$7,500.00 x 1.25 = $9,375.00
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($9,756.10 - $7,500.00) x 0.50 = $1,128.05
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that “[w]illful withholding does not require a showing of malice or other motive, but merely
requires a showing that the compensation was withheld without good cause.”). Therefore, “the
penalty required under [C.R.S. § 8-4-109(3)(b)] shall increase by fifty percent,” and Plaintiff is
entitled to a total statutory penalty of $15,754.573. C.R.S. § 8-4-109(3)(c); see Hartman, 87 P.3d
at 208.
Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the
Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in
the amounts of $9,756.10 for Plaintiff’s unpaid wages, plus statutory penalties of $15,754.57, plus
Plaintiff’s statutorily awardable attorneys’ fees and costs, plus pre- and post-judgment interest.
ii. Plaintiff’s Second Claim for Relief: Breach of Contract
Plaintiff’s second claim for relief is for breach of contract. Complaint, ¶¶ 36-42. In
Colorado, “a party attempting to recover on a claim for breach of contract must prove the following
elements: (1) the existence of a contract; (2) performance by the plaintiff or some justification for
nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages
to the plaintiff.” W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (citations omitted).
In this case, the parties entered into a contract when Defendant hired Plaintiff and promised
to pay her a salary and recompensable PTO in exchange for Plaintiff’s labor and services.
Complaint, ¶¶ 5-8, 38. Plaintiff substantially performed the contract by rendering labor and
services to Defendant. Complaint, ¶¶ 10, 39. Defendant failed to perform the contract by not
paying Plaintiff for all of her labor and services and by not recompensing Plaintiff for Plaintiff’s
accrued PTO upon terminating her employment. Complaint, ¶¶ 19, 22, 40. Defendant’s breach
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($9,375.00 + $1,128.05) x 1.5 = $15,754.57
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of the parties’ contract caused Plaintiff $9,756.10 in damages for unpaid wages. Complaint, ¶¶
31, 42; Complaint, Exhibit 3.
Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the
Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in
the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest.
iii. Plaintiff’s Third Claim for Relief: Promissory Estoppel
As her third claim for relief, Plaintiff has plead promissory estoppel. Complaint, ¶¶ 43-47.
“A claim for promissory estoppel consists of four elements: (1) a promise; (2) that the promisor
reasonably should have expected would induce action or forbearance by the promisee or a third
party; (3) on which the promisee or third party reasonably and detrimentally relied; and (4) that
must be enforced in order to prevent injustice.” Pinnacol Assurance v. Hoff, 375 P.3d 1214, 1221
(Colo. 2016). “Where these elements are present, a promise becomes binding and may be enforced
through the normal remedies available under contract law.” Id.
Here, “Defendant promised to pay Plaintiff a salary and to compensate Plaintiff for accrued
PTO in exchange for Plaintiff’s performance of labor and services for Defendant.” Complaint, ¶¶
8, 44. “Defendant reasonably should have expected that its promise would induce Plaintiff to
perform labor and services for Defendant.” Complaint, ¶ 45. “Plaintiff did, in fact, reasonably
and detrimentally rely upon Defendant’s promise” by performing with the expectation of getting
paid. Complaint, ¶ 46. “Defendant’s promise [to pay Plaintiff] must be enforced to prevent
injustice.” Complaint, ¶ 47. Defendant should pay the $9,756.10 in wages it acknowledges it
owes Plaintiff. Complaint, ¶ 31; Complaint, Exhibit 3.
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Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the
Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in
the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest.
iv. Plaintiff’s Fourth Claim for Relief: Unjust Enrichment
Plaintiff’s fourth claim for relief is for unjust enrichment. Complaint, ¶¶ 48-51. “The test
for recovery under an unjust enrichment theory requires a showing that (1) at plaintiff’s expense
(2) defendant received a benefit (3) under circumstances that would make it unjust for defendant
to retain the benefit without paying.” Robinson v. Colorado State Lottery Div., 179 P.3d 998, 1007
(Colo. 2008).
“At Plaintiff’s expense, Plaintiff conferred benefits upon Defendant by performing labor
and services for Defendant.” Complaint, ¶ 49. “Defendant received and realized the benefits of
Plaintiff’s labor and services.” Complaint, ¶ 50. “Under these circumstances, it would be unjust
for Defendant to retain the benefits,” and Defendant should be held to pay the $9,756.10 in wages
it acknowledges owing Plaintiff. Complaint, ¶¶ 31, 51; Complaint, Exhibit 3.
Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the
Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in
the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest.
B. Default Judgment Should Enter on Plaintiff’s Wage Claim Act Claim
As a general rule, “a plaintiff may not receive a double recovery for the same wrong.”
Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819, 823 (Colo. 1992). Here, the wrong
asserted in each of Plaintiff’s four claims is Defendant’s failure to pay Plaintiff’s wages. See
Section I.A., supra. Because this wrong is the same in each claim for relief, Plaintiff may not
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recover separate damage awards on each claim. Lexton-Ancira Real Estate Fund, 826 P.2d at 823.
Accordingly, Plaintiff respectfully requests the Court enter judgment only on Plaintiff’s Colorado
Wage Claim Act claim.
C. Plaintiff Is Presumptively Entitled to Her Reasonable Attorneys’ Fees
Plaintiff has brought a claim against Defendant under the Colorado Wage Claim Act.
Complaint, ¶¶ 23-35; C.R.S. § 8-4-101 et seq. Under the Wage Claim Act:
If, in any such action in which the employee seeks to recover any amount of wages
or compensation, the employee recovers a sum greater than the amount tendered by
the employer, the court may award the employee reasonable costs and attorney fees
incurred in such action. If an employer fails or refuses to make a tender within
fourteen days after the demand, then such failure or refusal shall be treated as a
tender of no money for any purpose under this article.
C.R.S. § 8-4-110(1).
Judicial interpretation of this section holds that, even though it says a court may award the
employee reasonable attorney fees, indicating a grant of discretion, “a prevailing employee [in a
Wage Claim Act claim] is presumptively entitled to an award of attorney fees.” Lester, 338 P.3d
at 1061 (emphasis added). While this presumptive entitlement, though “difficult to rebut,” may
be overcome by a showing of “special circumstances” (see id.), the defaulted Defendant has not
appeared to present such evidence in rebuttal. Accordingly, Plaintiff here is presumptively entitled
to her attorneys’ fees provided she falls within the ambit of the Wage Claim Act statute’s attorneys’
fees provision. Id.
Plaintiff clearly comes within the attorneys’ fees provision’s purview. As set forth above,
Plaintiff has a valid claim against Defendant under the Wage Claim Act. See Section I.A.i, supra.
Because, under the judgment entered herein, Plaintiff will recover wages in “a sum greater than
the amount tendered by the employer,” Plaintiff satisfies the statute’s requirements and, therefore,
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is presumptively entitled to an award of her attorneys’ fees. C.R.S. § 8-4-110(1); Lester, 338 P.3d
at 1061.
Any award of attorneys’ fees to Plaintiff must be reasonable. See Am. Water Dev., Inc. v.
City of Alamosa, 874 P.2d 352, 387 (Colo. 1994) (stating that “attorneys are entitled to an award
of reasonable attorney fees at market rates for attorneys of comparable skill, experience and
reputation”). “The determination of reasonableness is a question of fact for the trial court, and its
ruling will not be disturbed on review unless patently erroneous and unsupported by the evidence.”
Double Oak Constr., LLC v. Conerstone Dev. Int’l, LLC, 97 P.3d 140, 152 (Colo. App. 2004). The
initial estimate of a reasonable attorney fee is reached by calculating the lodestar amount, which
represents the number of hours reasonably expended multiplied by a reasonable hourly rate. Id.;
Dubray v. Intertribal Bison Co-op., 192 P.3d 604, 608 (Colo. App. 2008). As set forth in Exhibits
2, 3, and 4 the lodestar calculation of Plaintiff’s attorneys’ fees is as follows:
Name Position Hours Worked Hourly Rate Total
Patrick Gillette Attorney 17.2 $250.00 $4,300.00
Brian Reynolds Attorney 7.6 $400.00 $3,040.00
$7,340.00
The hours Plaintiff’s counsel billed are reasonable under the circumstances, were
necessary, and represent fairly and accurately the time Plaintiff’s counsel spent working on this
case. See Exhibit 2, ¶¶ 12, 14-15; Exhibit 3, ¶¶ 7, 9-10; Exhibit 4: attorney billing records.
Furthermore, the hourly billing rates charged by Plaintiff’s counsel are reasonable and consistent
with market billing rates for attorneys in the Denver metropolitan area. See Exhibit 2, ¶ 13; Exhibit
3, ¶ 8; see also Payan v. Nash Finch Co., 310 P.3d 212, 221 (Colo. App. 2012) (“A trial court
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should award attorney fees based on the prevailing market rate by private lawyers in the
community.”). Because Plaintiff’s counsel’s hours billed and hourly rates are reasonable, the
lodestar calculation of fees in this case is reasonable. See Dubray, 192 P.3d at 608; Exhibit 2, ¶¶
16-17; Exhibit 3, ¶ 11. The judgment should therefore include an award in favor of Plaintiff and
against Defendant for $7,340.00 in Plaintiff’s reasonable attorneys’ fees.
D. Plaintiff Is Entitled to Costs
As set forth in Plaintiff’s Bill of Costs, filed contemporaneously herewith and incorporated
by this reference, Plaintiff is entitled to an award of $493.50 for the costs she incurred in this case.
E. Plaintiff Is Entitled to Prejudgment Interest on the Damage Award from
February 9, 2017, through the Date of the Judgment
Under Colorado law, prejudgment interest is awarded as lawful and just compensation for
the use of money rightfully belonging to another. Stone v. Currigan, 334 P.2d 740, 741 (Colo.
1959); see also Thompson v. United Secs. Alliance, Inc., 2016COA128 at ¶ 31 (Colo. App. 2016)
(“Prejudgment interest is a component of compensatory damages, meant to make the plaintiff
whole and fully compensate for the loss.”). “The right to recover prejudgment interest for damages
other than those resulting from personal injuries is a matter of law determined under section 5-12-
102.” Farmers Reservoir and Irrigation Co. v. City of Golden, 113 P.3d 119, 133 (Colo. 2005).
This section of the Colorado Revised Statutes provides, in pertinent part:
(1) Except as provided in section 13-21-101, C.R.S., when there is no agreement as
to the rate thereof, creditors shall receive interest as follows:
(a) When money or property has been wrongfully withheld, interest shall be an
amount which fully recognizes the gain or benefit realized by the person
withholding such money or property from the date of wrongful withholding to the
date of payment or to the date judgment is entered, whichever first occurs; or, at
the election of the claimant,
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(b) Interest shall be at the rate of eight percent per annum compounded annually for
all moneys or the value of all property after they are wrongfully withheld or after
they become due to the date of payment or to the date judgment is entered,
whichever first occurs.
C.R.S. § 5-12-102(1).
“Section 5-12-102 ‘is to be given a broad liberal construction in order to effectuate the
legislative purpose of compensating parties for the loss of money or property to which they are
entitled.’” Dillen v. Healthone, LLC, 108 P.3d 297, 299 (Colo. App. 2004) (quoting Westfield
Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1122 (Colo. 1990)). In accordance with the broad
liberal construction given to the statute, courts interpreting C.R.S. § 5-12-102(1) have found
thereunder (1) that an “employee [who successfully asserts a claim under the Wage Claim Act] is
entitled to an award of prejudgment interest” (Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269,
274 (Colo. App. 2005)); (2) that “one who is damaged by a breach of contract is entitled to recover
prejudgment interest” (Ballow v. PHICO Ins. Co., 878 P.2d 672, 684 (Colo. 1994)); and (3) that a
party who prevails upon an equitable claim4 is entitled to prejudgment interest (Wall v. Foster
Petroleum Corp., 791 P.2d 1148, 1151 (Colo. App. 1989)). Since the instant action involves a
Wage Claim Act claim, a breach of contract claim, and two equitable claims, the provisions of §
5-12-102(1) govern Plaintiff’s request for pre-judgment interest. See Remote Switch Sys., Inc.,
126 P.3d at 274; Ballow, 878 P.2d at 684; Wall, 791 P.2d at 1151.
Under § 5-12-102(1), Plaintiff may elect to receive prejudgment interest in “an amount
which fully recognizes the gain or benefit realized by [Defendant]” or “at the rate of eight percent
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Plaintiff’s promissory estoppel and unjust enrichment claims are both equitable in nature. See Snow Basin, Ltd. v.
Boettcher & Co., 805 P.2d 1151, 1154 (Colo. App. 1990) (“[P]romissory estoppel is an equitable doctrine.”); Harris
Group, Inc. v. Robinson, 209 P.3d 1188, 1205 (Colo. App. 2009) (“[U]njust enrichment is an equitable theory of
relief….”).
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per annum compounded annually.” C.R.S. § 5-12-102(1). Because Plaintiff has not presented
evidence of the “gain or benefit realized by [Defendant],” Plaintiff hereby elects for an award of
interest under subpart (b) of § 5-12-102(1), which entitles Plaintiff to interest “at the rate of eight
percent per annum compounded annually for all moneys or the value of all property after they are
wrongfully withheld or after they become due to the date of payment or to the date judgment is
entered, whichever first occurs.” C.R.S. § 5-12-102(1)(b).
In this case, Defendant wrongfully withheld $9,756.10 of Plaintiff’s wages beginning on
February 9, 2017—Plaintiff’s last day of employment and the day Defendant was obligated to pay
Plaintiff’s wages under the Wage Claim Act. See Complaint, ¶ 13; Complaint, Exhibit 2; C.R.S.
§ 8-4-109(1)(a) (“When an interruption in the employer-employee relationship by volition of the
employer occurs, the wages or compensation for labor or service earned, vested, determinable, and
unpaid at the time of such discharge is due and payable immediately.”). Accordingly, under C.R.S.
§ 5-12-102(1)(b), Plaintiff is entitled to prejudgment interest at the rate of eight percent per annum,
compounded annually, on the award of $9,756.10 in actual damages from February 9, 2017,
through the date of the judgment.
F. Plaintiff Is Entitled to Post-Judgment Interest on All Amounts Awarded
Colorado’s general post-judgment interest statute, C.R.S. § 5-12-102(4), provides:
(4) Except as provided in section 5-12-106, creditors shall be allowed to receive
interest on any judgment recovered before any court authorized to enter the same
within this state from the date of entering said judgment until satisfaction thereof is
made either:
(a) At the rate specified in a contract or instrument in writing which provides for
payment of interest at a specified rate until the obligation is paid; except that if the
contract or instrument provides for a variable rate, at the rate in effect under the
contract or instrument on the date judgment enters; or
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(b) In all other cases where no rate is specified, at the rate of eight percent per
annum compounded annually.
C.R.S. § 5-12-102(4).
As a creditor entitled to a judgment from a court of this state, Plaintiff is entitled to post-
judgment interest under C.R.S. § 5-12-102(4). See Indian Mountain Metro. Recreation and Park
Dist. v. J.P. Campbell and Assoc., 921 P.2d 65, 67 (Colo. App. 1996) (“[T]he interest allowed by
§ 5-12-102(4) applies to ‘all judgments,’ except those covered under § 5-12-106. Section 5-12-
106, in turn, applies only to appeals by judgment debtors.”). Since there is no contract or
instrument in writing which provides for payment of interest at a specified rate, the rate of post-
judgment interest shall be eight percent per annum compounded annually until satisfaction of the
judgment. C.R.S. § 5-12-102(4)(b).
G. The Requirements of C.R.C.P. 121, § 1-14 Are Met
C.R.C.P. 121, § 1-14 enumerates documents the moving party must include with a motion
for default judgment. With the exception of the original return of service, which Plaintiff’s counsel
filed by hand on July 28, 2017, Plaintiff has filed the required documents contemporaneously
herewith:
1. “The original summons showing valid service on the particular defendant in accordance
with Rule 4, C.R.C.P.” C.R.C.P. 121, § 1-14(1)(a). Plaintiff’s counsel filed the original return of
service by hand with Jordan Edmondson on July 28,2017. See Exhibit 2, ¶ 6. In addition, a
scanned copy of the return of service was attached as Exhibit 3 to Plaintiff’s Application for Entry
of Default.
2. “An affidavit stating facts showing that venue of the action is proper.” C.R.C.P. 121, §
1-14(1)(b). See Exhibit 2, ¶ 4.
3. “An affidavit or affidavits establishing that the particular defendant is not a minor, an
incapacitated person, an officer or agency of the State of Colorado, or in the military service.”
C.R.C.P. 121, § 1-14(1)(c); see also C.R.C.P. 55(b). See Exhibit 2, ¶ 5.
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4. “An affidavit or affidavits or exhibits establishing the amount of damages and interest,
if any, for which judgment is being sought.” C.R.C.P. 121, § 1-14(1)(d). See Exhibit 1.
5. “If attorney fees are requested, an affidavit that the defendant agreed to pay attorney fees
or that they are provided by statute; that they have been paid or incurred; and that they are
reasonable.” C.R.C.P. 121, § 1-14(1)(e). See Exhibit 2; Exhibit 3.
6. “A proposed form of judgment which shall recite [specific matters] in the body of the
judgment.” C.R.C.P. 121, § 1-14(1)(g). See Proposed Judgment.
H. Venue Is Proper in this County
C.R.C.P. 55(b) requires that, “before judgment is entered, the court shall be satisfied that
the venue of the action is proper under Rule 98.” C.R.C.P. 55(b). In cases involving a claim “[f]or
the recovery of a penalty…imposed by statute,” such as the instant case involving a Colorado
Wage Claim Act claim, venue of the action is proper under Rule 98 “in the county where the claim,
or some part thereof, arose.” C.R.C.P. 98(b); Hartman, 87 P.3d at 205 (the Colorado Wage Claim
Act, C.R.S. § 8-4-109(3), provides for recovery of a “statutory penalty”). Plaintiff’s Wage Claim
Act claim arose in the County of Boulder, as this is the county in which Plaintiff performed labor
and services for Defendant and one of two counties in which wages were payable to Plaintiff under
the Wage Claim Act. See Complaint, ¶ 7; Exhibit 2, ¶ 4; C.R.S. § 8-4-109(1)(a). Therefore, venue
is proper in this judicial district under C.R.C.P. 98(b).
WHEREFORE, Plaintiff Ana Maria Tejada Rubio respectfully requests this Court enter a
final, default judgment in her favor and against Defendant Z-Axis Tech Solutions, Inc., in
accordance with this Motion and in a form substantially consistent with the attached Proposed
Judgment.
16
RESPECTFULLY SUBMITTED this 2nd day of August, 2017.
REYNOLDS GILLETTE LLC
By: s/Patrick Gillette .
Patrick Gillette, No. 42848
Brian R. Reynolds, No. 29493
955 Bannock Street, #200
Denver, CO 80204
(720) 442-8100
patrick@trialcolorado.com
brian@trialcolorado.com
ATTORNEYS FOR PLAINTIFF
17
Preview
DATE FILED: August 2, 2017 9:52 PM DISTRICT COURT, COUNTY OF BOULDER, FILING ID: 416FE5D6E3AAC STATE OF COLORADO CASE NUMBER: 2017CV30607 Court Address: 1777 6th Street Boulder, CO 80302 _____________________________________________________ Plaintiff: ANA MARIA TEJADA RUBIO v. Defendant: Z-AXIS TECH SOLUTIONS, INC. ▲COURT USE ONLY▲ On behalf of Plaintiff: Brian R. Reynolds, No. 29493 Case No.: 2017CV30607 Patrick Gillette, No. 42848 REYNOLDS GILLETTE LLC Division: 2 955 Bannock Street, #200 Denver, CO 80204 Phone: (720) 442-8100 E-mail: brian@trialcolorado.com patrick@trialcolorado.com MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT Z-AXIS TECH SOLUTIONS, INC. Plaintiff Ana Maria Tejada Rubio, through her undersigned counsel, hereby submits this Motion for Default Judgment Against Defendant Z-Axis Tech Solutions, Inc., and in support thereof states as follows: INTRODUCTION In accordance with C.R.C.P. 55(b), this Motion seeks entry of a final, default judgment in favor of Plaintiff Ana Maria Tejada Rubio and against Defendant Z-Axis Tech Solutions, Inc. FACTUAL BACKGROUND Defendant hired Plaintiff as a full-time employee in the summer of 2016. Complaint, ¶¶ 5-6, 24. In exchange for Plaintiff’s labor and services as an employee, Defendant agreed to compensate Plaintiff with wages in the form of a salary and paid time off (“PTO”), which PTO Defendant agreed to “buy back” from Plaintiff at the end of Plaintiff’s employment. Complaint, ¶ 8. Defendant paid Plaintiff most of her salary, and credited Plaintiff with PTO, in exchange for the labor and services Plaintiff performed for Defendant between Plaintiff’s hire date and December 31, 2016. Complaint, ¶ 9. On or about January 27, 2017, before Plaintiff was paid for the labor and services she performed subsequent to December 31, 2016, Defendant informed Plaintiff that she was being terminated due to budget cuts and downsizing. Complaint, ¶¶ 11-12; Complaint, Exhibit 2. Defendant further informed Plaintiff that her last day of employment would be February 9, 2017, and that Defendant would issue Plaintiff’s final paycheck on February 15, 2017. Complaint, ¶ 13; Complaint, Exhibit 2. Defendant did not pay Plaintiff as promised, despite acknowledging in a February 27, 2017, email that it owed Plaintiff $9,756.10 in wages. Complaint, ¶¶ 16-19; Complaint, Exhibit 3. Plaintiff demanded Defendant pay her wages, including via a written demand mailed to Defendant’s correct principal executive office address. Complaint, ¶¶ 20-21; Complaint, Exhibit 4. Despite Plaintiff’s written demand, as well as the filing and service of the instant lawsuit, Defendant has not paid Plaintiff the wages that were earned, vested, determinable, and unpaid at the time Defendant terminated Plaintiff’s employment. Complaint, ¶ 22; Exhibit 1: Affidavit of Ana Maria Tejada Rubio, ¶ 11. 2 PROCEDURAL BACKGROUND Plaintiff filed her Complaint and Jury Demand (“Complaint”) in the above-captioned action on June 8, 2017. Plaintiff’s Complaint states four claims for relief against Defendant: (1) violation of the Colorado Wage Claim Act; (2) breach of contract; (3) promissory estoppel; and (4) unjust enrichment. On June 16, 2017, a private process server hired by Plaintiff’s counsel personally served Defendant with copies of the Summons, Complaint, Exhibits 1-4, and Civil Case Cover Sheet by serving Defendant’s registered agent for service of process, Incorp Services, Inc. Defendant failed to answer or otherwise respond to Plaintiff’s Complaint in accordance with the Colorado Rule of Civil Procedure. Accordingly, Plaintiff filed an application for entry of default, and on July 26, 2017, the Court entered default against Defendant. ARGUMENT I. DEFAULT JUDGMENT SHOULD ENTER IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT A. Plaintiff Is Entitled to Default Judgment on Her Claims for Relief “[A]n entry of default establishes a party’s liability. When a trial court enters default against a defendant, the defendant’s liability is deemed admitted. The allegations in the plaintiff’s complaint are also deemed admitted.” Dickinson v. Lincoln Bldg. Corp., 378 P.3d 797, 804 (Colo. App. 2015). “And, of course, allegations deemed admitted need not be proved.” Orebaugh v. Dosckocil, 359 P.2d 671, 673 (Colo. 1961). Nevertheless, while a default establishes liability, it “does not fix the amount of damages.” See Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 678 (Colo. 1987). Thus, once a court enters default, a party entitled to a judgment by default must move the court therefor. See C.R.C.P. 55(b). A court deciding a motion for default judgment “need be concerned only with matters of 3 jurisdiction, venue, competency, and amount of damages in entering judgment against a non- appearing defendant. If the court finds it necessary to take an account, or to determine the amount of damages or to establish the truth of any averment to enable it to enter judgment, the court may conduct a hearing and take evidence concerning those matters.” Denman v. Burlington Northern R. Co., 761 P.2d 244, 247 (Colo. App. 1988). In any event, “a trial court should not become a representative or advocate for parties who decline to appear.” Id. In the instant matter, the Court’s entry of default established Defendant’s liability. Dickinson, 378 P.3d at 804. The allegations in Plaintiff’s Complaint are thus deemed admitted. Id. Because the allegations in Plaintiff’s Complaint are deemed admitted, they do not have to be proved. Orebaugh, 359 P.2d at 673. Instead, Plaintiff must only establish jurisdiction, venue, competency, and the amount of damages. Denman, 761 P.2d at 247. i. Plaintiff’s First Claim for Relief: Violation of the Colorado Wage Claim Act Plaintiff’s first claim for relief falls under the Colorado Wage Claim Act. Complaint, ¶¶ 23-35; see also Colo. Rev. Stat § 8-4-101 et seq. The Wage Claim Act “allows an employee who has been terminated from employment to sue his or her former employer for earned wages and other compensation the employer has refused to pay.” Lester v. Career Bldg. Acad., 338 P.3d 1054, 1058 (Colo. App. 2014). “An employee’s right to recover under the Wage Act is conditioned on his compliance with certain procedural steps, but if the employee complies with those steps and the employer refuses to pay, the employee may recover penalties in addition to the unpaid compensation.” Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1202 (Colo. App. 2010). An employee’s claim under the Wage Claim Act arises when an employer terminates an employee and fails to pay the employee’s wages in accordance with the statute. See C.R.S. § 8-4- 4 109. Under C.R.S. § 8-4-109(1)(a), an employer that discharges an employee generally must pay the employee’s “wages or compensation for labor or service earned, vested, determinable, and unpaid at the time of discharge…immediately.” C.R.S. § 8-4-109(1)(a). “If an employer refuses to pay wages or compensation in accordance with [C.R.S. § 8-4-109(1)(a)], the employee, his or her designated agent, or the division may send a written demand for the payment.” C.R.S. § 8-4- 109(3)(a). Once the employee’s written demand for payment is sent, if the employee’s wages are not paid within fourteen days, the employer is liable to the employee for the wages owed, plus mandatory statutory penalties of: (I) One hundred twenty-five percent of that amount of such wages or compensation up to and including seven thousand five hundred dollars; and (II) Fifty percent of that amount of such wages or compensation that exceed seven thousand five hundred dollars. C.R.S. § 8-4-109(3)(b)(I) and (II). Additionally, “[i]f the employee can show that the employer’s failure to pay is willful, the penalty required under paragraph (b) of this subsection (3) shall increase by fifty percent.” C.R.S. § 8-4- 109(3)(c). In this case, Plaintiff was Defendant’s employee. Complaint, ¶ 24. On or about January 27, 2017, Defendant notified Plaintiff that her employment would terminate on February 9, 2017. Complaint, ¶¶ 11-13, 28; Complaint, Exhibit 2. At the time of Plaintiff’s employment termination, Defendant owed—and, indeed, admitted it owed—Plaintiff earned, vested, and determinable wages of $9,756.10. Complaint, ¶¶ 30-31; Complaint, Exhibit 3. Despite admitting it owed these wages to Plaintiff, “Defendant did not pay Plaintiff her earned, vested, and determinable wages in accordance with Colo. Rev. Stat. § 8-4-109(1).” Complaint, ¶ 32. Id. On May 10, 2017, in 5 accordance with C.R.S. § 8-4-109(3)(a), Plaintiff mailed a written demand for her wages to Defendant’s correct principal executive office address. Complaint, ¶ 21, 33; Complaint, Exhibit 4. Defendant did not pay Plaintiff any wages—or any money, for that matter—in response to Plaintiff’s written demand. Complaint, ¶ 22, 34; Exhibit 1, ¶ 11. Because Defendant failed to pay Plaintiff’s $9,756.10 in wages in accordance with C.R.S. § 8-4-109(1), and also failed to pay the same within fourteen days of Plaintiff’s written demand, Defendant: shall be liable to [Plaintiff] for [her] wages or compensation, and a penalty of the sum of the following amounts of wages or compensation due…: (I) One hundred twenty-five percent of that amount of such wages or compensation up to and including seven thousand five hundred dollars; and (II) Fifty percent of that amount of such wages or compensation that exceed seven thousand five hundred dollars. C.R.S. § 8-4-109(3)(b) (emphasis added). Accordingly, under C.R.S. § 8-4-109(3)(b), Defendant is liable to Plaintiff for (1) her earned, vested, and determinable wages ($9,756.10); (2) one hundred twenty-five percent of that amount of such wages or compensation up to and including seven thousand five hundred dollars ($9,375.001); and (3) fifty percent of that amount of such wages or compensation that exceed seven thousand five hundred dollars ($1,128.052). See id. Additionally, because Defendant acknowledged it owed Plaintiff wages and still did not pay, Defendant’s failure to pay Plaintiff’s wages was without good cause and was thus willful. See Hartman v. Cmty. Responsibility Ctr., 87 P.3d 202, 208 (Colo. App. 2003) (interpreting the predecessor to C.R.S. § 8-4-109 and finding 1 $7,500.00 x 1.25 = $9,375.00 2 ($9,756.10 - $7,500.00) x 0.50 = $1,128.05 6 that “[w]illful withholding does not require a showing of malice or other motive, but merely requires a showing that the compensation was withheld without good cause.”). Therefore, “the penalty required under [C.R.S. § 8-4-109(3)(b)] shall increase by fifty percent,” and Plaintiff is entitled to a total statutory penalty of $15,754.573. C.R.S. § 8-4-109(3)(c); see Hartman, 87 P.3d at 208. Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in the amounts of $9,756.10 for Plaintiff’s unpaid wages, plus statutory penalties of $15,754.57, plus Plaintiff’s statutorily awardable attorneys’ fees and costs, plus pre- and post-judgment interest. ii. Plaintiff’s Second Claim for Relief: Breach of Contract Plaintiff’s second claim for relief is for breach of contract. Complaint, ¶¶ 36-42. In Colorado, “a party attempting to recover on a claim for breach of contract must prove the following elements: (1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages to the plaintiff.” W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (citations omitted). In this case, the parties entered into a contract when Defendant hired Plaintiff and promised to pay her a salary and recompensable PTO in exchange for Plaintiff’s labor and services. Complaint, ¶¶ 5-8, 38. Plaintiff substantially performed the contract by rendering labor and services to Defendant. Complaint, ¶¶ 10, 39. Defendant failed to perform the contract by not paying Plaintiff for all of her labor and services and by not recompensing Plaintiff for Plaintiff’s accrued PTO upon terminating her employment. Complaint, ¶¶ 19, 22, 40. Defendant’s breach 3 ($9,375.00 + $1,128.05) x 1.5 = $15,754.57 7 of the parties’ contract caused Plaintiff $9,756.10 in damages for unpaid wages. Complaint, ¶¶ 31, 42; Complaint, Exhibit 3. Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest. iii. Plaintiff’s Third Claim for Relief: Promissory Estoppel As her third claim for relief, Plaintiff has plead promissory estoppel. Complaint, ¶¶ 43-47. “A claim for promissory estoppel consists of four elements: (1) a promise; (2) that the promisor reasonably should have expected would induce action or forbearance by the promisee or a third party; (3) on which the promisee or third party reasonably and detrimentally relied; and (4) that must be enforced in order to prevent injustice.” Pinnacol Assurance v. Hoff, 375 P.3d 1214, 1221 (Colo. 2016). “Where these elements are present, a promise becomes binding and may be enforced through the normal remedies available under contract law.” Id. Here, “Defendant promised to pay Plaintiff a salary and to compensate Plaintiff for accrued PTO in exchange for Plaintiff’s performance of labor and services for Defendant.” Complaint, ¶¶ 8, 44. “Defendant reasonably should have expected that its promise would induce Plaintiff to perform labor and services for Defendant.” Complaint, ¶ 45. “Plaintiff did, in fact, reasonably and detrimentally rely upon Defendant’s promise” by performing with the expectation of getting paid. Complaint, ¶ 46. “Defendant’s promise [to pay Plaintiff] must be enforced to prevent injustice.” Complaint, ¶ 47. Defendant should pay the $9,756.10 in wages it acknowledges it owes Plaintiff. Complaint, ¶ 31; Complaint, Exhibit 3. 8 Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest. iv. Plaintiff’s Fourth Claim for Relief: Unjust Enrichment Plaintiff’s fourth claim for relief is for unjust enrichment. Complaint, ¶¶ 48-51. “The test for recovery under an unjust enrichment theory requires a showing that (1) at plaintiff’s expense (2) defendant received a benefit (3) under circumstances that would make it unjust for defendant to retain the benefit without paying.” Robinson v. Colorado State Lottery Div., 179 P.3d 998, 1007 (Colo. 2008). “At Plaintiff’s expense, Plaintiff conferred benefits upon Defendant by performing labor and services for Defendant.” Complaint, ¶ 49. “Defendant received and realized the benefits of Plaintiff’s labor and services.” Complaint, ¶ 50. “Under these circumstances, it would be unjust for Defendant to retain the benefits,” and Defendant should be held to pay the $9,756.10 in wages it acknowledges owing Plaintiff. Complaint, ¶¶ 31, 51; Complaint, Exhibit 3. Given these well-pled allegations and Defendant’s failure to plead or otherwise defend, the Court should enter default judgment in favor of Plaintiff and against Defendant on this claim in the amount of $9,756.10, plus Plaintiff’s costs, plus pre- and post-judgment interest. B. Default Judgment Should Enter on Plaintiff’s Wage Claim Act Claim As a general rule, “a plaintiff may not receive a double recovery for the same wrong.” Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819, 823 (Colo. 1992). Here, the wrong asserted in each of Plaintiff’s four claims is Defendant’s failure to pay Plaintiff’s wages. See Section I.A., supra. Because this wrong is the same in each claim for relief, Plaintiff may not 9 recover separate damage awards on each claim. Lexton-Ancira Real Estate Fund, 826 P.2d at 823. Accordingly, Plaintiff respectfully requests the Court enter judgment only on Plaintiff’s Colorado Wage Claim Act claim. C. Plaintiff Is Presumptively Entitled to Her Reasonable Attorneys’ Fees Plaintiff has brought a claim against Defendant under the Colorado Wage Claim Act. Complaint, ¶¶ 23-35; C.R.S. § 8-4-101 et seq. Under the Wage Claim Act: If, in any such action in which the employee seeks to recover any amount of wages or compensation, the employee recovers a sum greater than the amount tendered by the employer, the court may award the employee reasonable costs and attorney fees incurred in such action. If an employer fails or refuses to make a tender within fourteen days after the demand, then such failure or refusal shall be treated as a tender of no money for any purpose under this article. C.R.S. § 8-4-110(1). Judicial interpretation of this section holds that, even though it says a court may award the employee reasonable attorney fees, indicating a grant of discretion, “a prevailing employee [in a Wage Claim Act claim] is presumptively entitled to an award of attorney fees.” Lester, 338 P.3d at 1061 (emphasis added). While this presumptive entitlement, though “difficult to rebut,” may be overcome by a showing of “special circumstances” (see id.), the defaulted Defendant has not appeared to present such evidence in rebuttal. Accordingly, Plaintiff here is presumptively entitled to her attorneys’ fees provided she falls within the ambit of the Wage Claim Act statute’s attorneys’ fees provision. Id. Plaintiff clearly comes within the attorneys’ fees provision’s purview. As set forth above, Plaintiff has a valid claim against Defendant under the Wage Claim Act. See Section I.A.i, supra. Because, under the judgment entered herein, Plaintiff will recover wages in “a sum greater than the amount tendered by the employer,” Plaintiff satisfies the statute’s requirements and, therefore, 10 is presumptively entitled to an award of her attorneys’ fees. C.R.S. § 8-4-110(1); Lester, 338 P.3d at 1061. Any award of attorneys’ fees to Plaintiff must be reasonable. See Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 387 (Colo. 1994) (stating that “attorneys are entitled to an award of reasonable attorney fees at market rates for attorneys of comparable skill, experience and reputation”). “The determination of reasonableness is a question of fact for the trial court, and its ruling will not be disturbed on review unless patently erroneous and unsupported by the evidence.” Double Oak Constr., LLC v. Conerstone Dev. Int’l, LLC, 97 P.3d 140, 152 (Colo. App. 2004). The initial estimate of a reasonable attorney fee is reached by calculating the lodestar amount, which represents the number of hours reasonably expended multiplied by a reasonable hourly rate. Id.; Dubray v. Intertribal Bison Co-op., 192 P.3d 604, 608 (Colo. App. 2008). As set forth in Exhibits 2, 3, and 4 the lodestar calculation of Plaintiff’s attorneys’ fees is as follows: Name Position Hours Worked Hourly Rate Total Patrick Gillette Attorney 17.2 $250.00 $4,300.00 Brian Reynolds Attorney 7.6 $400.00 $3,040.00 $7,340.00 The hours Plaintiff’s counsel billed are reasonable under the circumstances, were necessary, and represent fairly and accurately the time Plaintiff’s counsel spent working on this case. See Exhibit 2, ¶¶ 12, 14-15; Exhibit 3, ¶¶ 7, 9-10; Exhibit 4: attorney billing records. Furthermore, the hourly billing rates charged by Plaintiff’s counsel are reasonable and consistent with market billing rates for attorneys in the Denver metropolitan area. See Exhibit 2, ¶ 13; Exhibit 3, ¶ 8; see also Payan v. Nash Finch Co., 310 P.3d 212, 221 (Colo. App. 2012) (“A trial court 11 should award attorney fees based on the prevailing market rate by private lawyers in the community.”). Because Plaintiff’s counsel’s hours billed and hourly rates are reasonable, the lodestar calculation of fees in this case is reasonable. See Dubray, 192 P.3d at 608; Exhibit 2, ¶¶ 16-17; Exhibit 3, ¶ 11. The judgment should therefore include an award in favor of Plaintiff and against Defendant for $7,340.00 in Plaintiff’s reasonable attorneys’ fees. D. Plaintiff Is Entitled to Costs As set forth in Plaintiff’s Bill of Costs, filed contemporaneously herewith and incorporated by this reference, Plaintiff is entitled to an award of $493.50 for the costs she incurred in this case. E. Plaintiff Is Entitled to Prejudgment Interest on the Damage Award from February 9, 2017, through the Date of the Judgment Under Colorado law, prejudgment interest is awarded as lawful and just compensation for the use of money rightfully belonging to another. Stone v. Currigan, 334 P.2d 740, 741 (Colo. 1959); see also Thompson v. United Secs. Alliance, Inc., 2016COA128 at ¶ 31 (Colo. App. 2016) (“Prejudgment interest is a component of compensatory damages, meant to make the plaintiff whole and fully compensate for the loss.”). “The right to recover prejudgment interest for damages other than those resulting from personal injuries is a matter of law determined under section 5-12- 102.” Farmers Reservoir and Irrigation Co. v. City of Golden, 113 P.3d 119, 133 (Colo. 2005). This section of the Colorado Revised Statutes provides, in pertinent part: (1) Except as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows: (a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant, 12 (b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs. C.R.S. § 5-12-102(1). “Section 5-12-102 ‘is to be given a broad liberal construction in order to effectuate the legislative purpose of compensating parties for the loss of money or property to which they are entitled.’” Dillen v. Healthone, LLC, 108 P.3d 297, 299 (Colo. App. 2004) (quoting Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112, 1122 (Colo. 1990)). In accordance with the broad liberal construction given to the statute, courts interpreting C.R.S. § 5-12-102(1) have found thereunder (1) that an “employee [who successfully asserts a claim under the Wage Claim Act] is entitled to an award of prejudgment interest” (Remote Switch Sys., Inc. v. Delangis, 126 P.3d 269, 274 (Colo. App. 2005)); (2) that “one who is damaged by a breach of contract is entitled to recover prejudgment interest” (Ballow v. PHICO Ins. Co., 878 P.2d 672, 684 (Colo. 1994)); and (3) that a party who prevails upon an equitable claim4 is entitled to prejudgment interest (Wall v. Foster Petroleum Corp., 791 P.2d 1148, 1151 (Colo. App. 1989)). Since the instant action involves a Wage Claim Act claim, a breach of contract claim, and two equitable claims, the provisions of § 5-12-102(1) govern Plaintiff’s request for pre-judgment interest. See Remote Switch Sys., Inc., 126 P.3d at 274; Ballow, 878 P.2d at 684; Wall, 791 P.2d at 1151. Under § 5-12-102(1), Plaintiff may elect to receive prejudgment interest in “an amount which fully recognizes the gain or benefit realized by [Defendant]” or “at the rate of eight percent 4 Plaintiff’s promissory estoppel and unjust enrichment claims are both equitable in nature. See Snow Basin, Ltd. v. Boettcher & Co., 805 P.2d 1151, 1154 (Colo. App. 1990) (“[P]romissory estoppel is an equitable doctrine.”); Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1205 (Colo. App. 2009) (“[U]njust enrichment is an equitable theory of relief….”). 13 per annum compounded annually.” C.R.S. § 5-12-102(1). Because Plaintiff has not presented evidence of the “gain or benefit realized by [Defendant],” Plaintiff hereby elects for an award of interest under subpart (b) of § 5-12-102(1), which entitles Plaintiff to interest “at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.” C.R.S. § 5-12-102(1)(b). In this case, Defendant wrongfully withheld $9,756.10 of Plaintiff’s wages beginning on February 9, 2017—Plaintiff’s last day of employment and the day Defendant was obligated to pay Plaintiff’s wages under the Wage Claim Act. See Complaint, ¶ 13; Complaint, Exhibit 2; C.R.S. § 8-4-109(1)(a) (“When an interruption in the employer-employee relationship by volition of the employer occurs, the wages or compensation for labor or service earned, vested, determinable, and unpaid at the time of such discharge is due and payable immediately.”). Accordingly, under C.R.S. § 5-12-102(1)(b), Plaintiff is entitled to prejudgment interest at the rate of eight percent per annum, compounded annually, on the award of $9,756.10 in actual damages from February 9, 2017, through the date of the judgment. F. Plaintiff Is Entitled to Post-Judgment Interest on All Amounts Awarded Colorado’s general post-judgment interest statute, C.R.S. § 5-12-102(4), provides: (4) Except as provided in section 5-12-106, creditors shall be allowed to receive interest on any judgment recovered before any court authorized to enter the same within this state from the date of entering said judgment until satisfaction thereof is made either: (a) At the rate specified in a contract or instrument in writing which provides for payment of interest at a specified rate until the obligation is paid; except that if the contract or instrument provides for a variable rate, at the rate in effect under the contract or instrument on the date judgment enters; or 14 (b) In all other cases where no rate is specified, at the rate of eight percent per annum compounded annually. C.R.S. § 5-12-102(4). As a creditor entitled to a judgment from a court of this state, Plaintiff is entitled to post- judgment interest under C.R.S. § 5-12-102(4). See Indian Mountain Metro. Recreation and Park Dist. v. J.P. Campbell and Assoc., 921 P.2d 65, 67 (Colo. App. 1996) (“[T]he interest allowed by § 5-12-102(4) applies to ‘all judgments,’ except those covered under § 5-12-106. Section 5-12- 106, in turn, applies only to appeals by judgment debtors.”). Since there is no contract or instrument in writing which provides for payment of interest at a specified rate, the rate of post- judgment interest shall be eight percent per annum compounded annually until satisfaction of the judgment. C.R.S. § 5-12-102(4)(b). G. The Requirements of C.R.C.P. 121, § 1-14 Are Met C.R.C.P. 121, § 1-14 enumerates documents the moving party must include with a motion for default judgment. With the exception of the original return of service, which Plaintiff’s counsel filed by hand on July 28, 2017, Plaintiff has filed the required documents contemporaneously herewith: 1. “The original summons showing valid service on the particular defendant in accordance with Rule 4, C.R.C.P.” C.R.C.P. 121, § 1-14(1)(a). Plaintiff’s counsel filed the original return of service by hand with Jordan Edmondson on July 28,2017. See Exhibit 2, ¶ 6. In addition, a scanned copy of the return of service was attached as Exhibit 3 to Plaintiff’s Application for Entry of Default. 2. “An affidavit stating facts showing that venue of the action is proper.” C.R.C.P. 121, § 1-14(1)(b). See Exhibit 2, ¶ 4. 3. “An affidavit or affidavits establishing that the particular defendant is not a minor, an incapacitated person, an officer or agency of the State of Colorado, or in the military service.” C.R.C.P. 121, § 1-14(1)(c); see also C.R.C.P. 55(b). See Exhibit 2, ¶ 5. 15 4. “An affidavit or affidavits or exhibits establishing the amount of damages and interest, if any, for which judgment is being sought.” C.R.C.P. 121, § 1-14(1)(d). See Exhibit 1. 5. “If attorney fees are requested, an affidavit that the defendant agreed to pay attorney fees or that they are provided by statute; that they have been paid or incurred; and that they are reasonable.” C.R.C.P. 121, § 1-14(1)(e). See Exhibit 2; Exhibit 3. 6. “A proposed form of judgment which shall recite [specific matters] in the body of the judgment.” C.R.C.P. 121, § 1-14(1)(g). See Proposed Judgment. H. Venue Is Proper in this County C.R.C.P. 55(b) requires that, “before judgment is entered, the court shall be satisfied that the venue of the action is proper under Rule 98.” C.R.C.P. 55(b). In cases involving a claim “[f]or the recovery of a penalty…imposed by statute,” such as the instant case involving a Colorado Wage Claim Act claim, venue of the action is proper under Rule 98 “in the county where the claim, or some part thereof, arose.” C.R.C.P. 98(b); Hartman, 87 P.3d at 205 (the Colorado Wage Claim Act, C.R.S. § 8-4-109(3), provides for recovery of a “statutory penalty”). Plaintiff’s Wage Claim Act claim arose in the County of Boulder, as this is the county in which Plaintiff performed labor and services for Defendant and one of two counties in which wages were payable to Plaintiff under the Wage Claim Act. See Complaint, ¶ 7; Exhibit 2, ¶ 4; C.R.S. § 8-4-109(1)(a). Therefore, venue is proper in this judicial district under C.R.C.P. 98(b). WHEREFORE, Plaintiff Ana Maria Tejada Rubio respectfully requests this Court enter a final, default judgment in her favor and against Defendant Z-Axis Tech Solutions, Inc., in accordance with this Motion and in a form substantially consistent with the attached Proposed Judgment. 16 RESPECTFULLY SUBMITTED this 2nd day of August, 2017. REYNOLDS GILLETTE LLC By: s/Patrick Gillette . Patrick Gillette, No. 42848 Brian R. Reynolds, No. 29493 955 Bannock Street, #200 Denver, CO 80204 (720) 442-8100 patrick@trialcolorado.com brian@trialcolorado.com ATTORNEYS FOR PLAINTIFF 17