See Amended Complaint at pp. 16-17. Based on the foregoing, it is abundantly clear that Plaintiff’s third, fifth and sixth claims for relief are tort claims subject to a two-year limitation period, pursuant to C.R.S. 13-80-102(1)(a). B. Plaintiff’s Fourth claim for relief (Violation of C.R.S. § 10-3-1115) is subject to a one- year limitations period pursuant to C.R.S. § 13-80-103(1)(d).

N.Y. C.P.L.R. § 213(1). 33 Plaintiffs’ claims are also time-barred under California and Colorado law. See CAL. CIV. PROC. CODE § 337 (four years for breach of contract and contractual breach of good faith and fair dealing); COLO. REV. STAT. § 13-80- 101(1)(a) (three years for same); COLO. REV. STAT. § 13-80-102(1)(a) (two years after plaintiff knew or should have known with reasonable diligence for bad faith and negligence); Dudra v. Fairfield Ins. Co., No. CV 07-05500, 2008 WL 683387, at * 4 (C.D. Cal. March 11, 2008) (bad faith is two years after an unequivocal denial of insured’s claim); CAL. CIV. PROC. CODE § 335.1 (two years for negligence). To the extent a discovery rule applies to any of these claims, Plaintiffs received a Schedule of Premium rates, giving the smoker and nonsmoker rates, with their Policies issued in 2000.

N.Y. C.P.L.R. § 213(1). 33 Plaintiffs’ claims are also time-barred under California and Colorado law. See CAL. CIV. PROC. CODE § 337 (four years for breach of contract and contractual breach of good faith and fair dealing); COLO. REV. STAT. § 13-80- 101(1)(a) (three years for same); COLO. REV. STAT. § 13-80-102(1)(a) (two years after plaintiff knew or should have known with reasonable diligence for bad faith and negligence); Dudra v. Fairfield Ins. Co., No. CV 07-05500, 2008 WL 683387, at * 4 (C.D. Cal. March 11, 2008) (bad faith is two years after an unequivocal denial of insured’s claim); CAL. CIV. PROC. CODE § 335.1 (two years for negligence). To the extent a discovery rule applies to any of these claims, Plaintiffs received a Schedule of Premium rates, giving the smoker and nonsmoker rates, with their Policies issued in 2000.

Respondeat superior claims, which are derivative in nature, are subject to the statute Case 1:16-cv-02561-CBS Document 14 Filed 12/22/16 USDC Colorado Page 12 of 17 13 55460080.6 of limitations applicable to the underlying claim. Thus, Plaintiff’s respondeat superior claim is subject to the two-year statute of limitation under Colo. Rev. Stat. § 13-80-102(1)(a). Plaintiff commenced this action on October 13, 2016.

(internal quotations omitted) 14 To the extent MV argues that Colorado or California law should apply, those two states have an even shorter statute of limitations of two years for negligent misrepresentation claims. See Colo. Rev. Stat. Ann. § 13-80-102 (West); Ebrahimi v. E.F. Hutton & Co., 794 P.2d 1015, 1017 (Colo. App. 1989); Cal. Civ. Proc. Code § 339 (West); Ventura Cnty.

4 It makes no difference whether a reasonably 3 Alternatively, if negligence was still at issue, the Court erred by disregarding all of Pitkin’s affidavits, which were sufficient to raise an issue of fact as to what a reasonably careful title agent would do under the circumstances. [See generally Affidavits of Dean Hubbel and William M. Reed, ECF Nos. 168-2 and 168-3] 4 Any claim of negligence would also have been barred by Colorado’s two-year statute of limitations for negligence, C.R.S. § 13-80-102(a). The undisputed facts are as follows.

See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1537 (10th Cir. 1996) (holding that two-year limitations under C.R.S. § 13-80-102(1)(a) applies). But see, Miller v. McCloud, 2016 WL 524357 * 5 (D. Colo. 2016) (holding that three-year limitations period under C.R.S. § 13-80- 101(1)(c) is applicable). However, irrespective of which statute applies, Defendant’s negligent misrepresentation claim was time-barred by December 2015, at the latest. Case 1:16-cv-03099-MEH Document 33 Filed 04/06/17 USDC Colorado Page 12 of 21 13

C. R. S. § 13-80- 101 provides: (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter: * * * (c) All actions for fraud, misrepresentation, concealment, or deceit except those in section 13_80_102(1)(j) or section 13_80_103(1)(g). C.R.S. 13-80-102(1)(j) applies a two-year statue of limitation to certain frauds related to automobile sales, and hence, does not provide relief to the three year statute applicable here. C.R.S. 13-80-103(1)(g) applies a one- year statute of limitation to claims arising under a now-repealed section of the Colorado Revised Statutes, and hence, does not provide relief to the three year statute applicable here.

Instead, he simply claims that the breach of contract claim at issue is unfounded. Clearly, there are numerous other ways for a defendant to obtain relief for the filing of an allegedly unmeritorious claim, including seeking attorneys’ fees and costs pursuant to C.R.S. 13-80-102 or Rule 11. For this reason, “[t]he gist of the tort [of abuse of process] is not commencing an action or causing process to issue without justification.”

Negligent/Intentional Infliction of Emotional Distress (Twelfth and Thirteenth Claims for Relief) Plaintiff’s tort claims are barred by the applicable statute of limitations. The statute for these claims under C.R.S. § 13-80-102(1)(a) is two (2) years after the cause of action accrues, e.g. from the date that a plaintiff became aware of the injury. The Plaintiff in the instant case was an active participant in the foreclosure actions brought by CLG and was represented by an attorney since May 4, 2012.