CIVIL THEFT IN COLORADO: ELEMENTS AND LIABILITY

WHAT IS CIVIL THEFT?

Colorado statutory law provides a civil cause of action for recovery of property where the elements of criminal theft have been met.[1] Most commonly, allegations of civil theft are linked to missing or stolen funds, but may also stem from theft of tangible personal and real property. This practice area page will focus on the elements needed to prove civil theft, who may be held liable, and the amount/type of damages that are recoverable. For further information, give us a call at 720-770-3457 or complete a consultation request form.

WHAT ARE THE ELEMENTS OF CIVIL THEFT IN COLORADO?

In order to recover on a claim of civil theft, all of the following elements must be proven by a preponderance of the evidence:

• The plaintiff owned/possessed/had an ownership interest in the thing of value;
• The defendant knowingly obtained/retained/exercised control over the plaintiff’s thing of value; and
• The defendant did so with the intent to permanently deprive the plaintiff of the use or benefit of the plaintiff’s thing of value.[2]

WHEN DOES ONE OWN/POSSESS/HAVE AN OWNERSHIP INTEREST IN A THING OF VALUE?

The first element of liability for civil theft requires the plaintiff to have a possessory or proprietary interest in a specific thing of value.[3] An “interest” is a legal or equitable claim to or right in property; “ownership,” on the other hand, implies the right to possess the thing, regardless who actually or constructively controls it.[4]

Once it is established that the plaintiff possesses an interest in the thing of value, the plaintiff may maintain an action not only against the alleged “taker,” but also against “any person in whose possession he finds the property.”[5] This means that, if the taker goes on to sell the thing of value, you can assert a legal cause of action against both the taker and whomever bought your thing of value from them.

It is important to note here that one’s status as a mere creditor of a debtor, without more, does not establish a proprietary interest in any specific property.[6] Additionally, the defendant may assert ownership of the thing of value as a defense to a claim of civil theft.[7]

WHAT IS AN “INTENT TO PERMANENTLY DEPRIVE?”

A defendant possesses the required intent when his or her “conscious objective is to cause a specific result.”[8] The third element of civil theft liability describes the most common conduct that satisfies the intent requirement. However, there are four other ways in which the third element of civil theft may be proven. In addition to intending to permanently deprive the plaintiff of the use or benefit of his/her thing of value, the third element is met if:

• The defendant knowingly used, concealed, or abandoned the plaintiff’s thing of value in such a manner as to permanently deprive the plaintiff of the use or benefit of the thing of value;
• The defendant used, concealed, or abandoned the plaintiff’s thing of value intending that such use, concealment, or abandonment would permanently deprive the plaintiff of the use or benefit of the thing of value;
• The defendant demanded the thing of value, to which the defendant was not legally entitled as a condition of restoring the thing of value to the plaintiff; or
• The defendant knowingly retained the plaintiff’s thing of value more than seventy-two hours after the agreed upon time for return in a lease or hire agreement.[9]

Importantly, a claim for civil theft will not succeed if a preponderance of the evidence does not indicate the defendant’s requisite mental state.[10] In Colorado, that mental state may be inferred from the defendant’s conduct and circumstances.[11]

WHAT DAMAGES ARE RECOVERABLE FOR CIVIL THEFT?

• Statutory Treble damages, Attorneys Fees, and Costs:
  • In any civil theft action, a plaintiff may recover two hundred dollars or three times the amount of the actual damages sustained, whichever is greater.[12] Further, a plaintiff may also recover costs of the action and reasonable attorney fees.[13]

• Actual damages:
  • Actual damages for civil theft include:
    • Any economic losses which the plaintiff had or will probably have in the future (e.g., the value of lost property); and
    • Any noneconomic losses or injuries which the plaintiff has had or will have in the future (e.g., pain and suffering, emotional distress, inconvenience).[14]

CONCLUSION

Civil theft is a common cause of action between individuals and businesses in Colorado. And, with the possibility of treble (triple) the actual damages, attorneys fees, and costs, it is a very powerful cause of action. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call as 303-268-2867 or complete a consultation request form for more information on how we can help!

[1] C.R.S. §18-4-405; Bermel v. BlueRadios, Inc., 2019 CO 31, ¶31, 440 P.3d 1150, 1157.

[2] CJI §32:4. Compare Civil Theft with the elements of a similar claim – “Conversion.” What is Conversion? Conversion is established when a plaintiff shows that the plaintiff possessed property, the defendant interfered with that possession/ownership, and such interference was not consensual. See CJI 32:1. Damages for Conversion will be the full value of the property that was interfered with/stolen, at the time of such interference. CJI 32:3.

[3] C.R.S. §18-4-401(1.5).

[4] Tisch v. Tisch, 2019 COA 41, ¶52, 439 P.3d 89, 103.

[5] C.R.S. §18-4-405.

[6] People v. Rotello, 754 P.2d 765, 767 (Colo. 1988).

[7] Steward Software Co. v. Kopcho, 266 P.3d 1085, 1087 (Colo. 2011) (“Because a person must commit theft of the property of another, ownership of the property at issue is a defense to civil theft.”).

[8] CJI §32:5.

[9] CJI §32:4, Notes on Use ¶ 2.

[10] Bermel v. BlueRadios, Inc., 2019 CO 31, ¶31, 440 P.3d 1150, 1157.

[11] Huffman v. Westmoreland Coal Co., 205 P.3d 501, 509 (Colo. App. 2009) (“The intent permanently to deprive the owner of the use or benefit of a thing of value may be inferred from the defendant’s conduct and the circumstances of the case, but requires proof of a knowing use by the defendant inconsistent with the owner’s permanent use and benefit.”).

[12] C.R.S. §18-4-405.

[13] Id.

[14] CJI §32:6.

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.  Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.