Nevada Appellate Court Summaries (1-3-20)

The content of this post was written by Joe Tommasino for COMMUNIQUÉ, the official publication of the Clark County Bar Association (CCBA).*

Supreme Court of Nevada:

Anti-SLAPP statutes: When determining if protected communications are made in “good faith” under Nevada’s anti-SLAPP statutes, a court must consider the “gist or sting” of the communications as a whole, rather than parsing individual words in the communications. NRS 41.650, the anti-SLAPP statute, immunizes from liability “[a] person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.” Under the first prong of the statute, a court must evaluate whether the moving party has established, by a preponderance of the evidence, that he or she made the protected communication in good faith. Only after the movant has made this showing does a court move to prong two and evaluate “whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim.” To prevail on a defamation claim, the plaintiff must show:

            (1) a false and defamatory statement by [a] defendant concerning the plaintiff;

            (2) an unprivileged publication to a third person;

            (3) fault, amounting to at least negligence; and

            (4) actual or presumed damages.

Where the plaintiff is a public figure, the statements must be made with “actual malice.” Rosen v. Tarkanian, 135 Nev. Adv. Op. No. 59, ___ P.3d ___ (December 12, 2019).

Criminal law: NRS 194.010(8) requires courts to look to whether the charge to which the defendant wants to assert a duress defense is punishable with death; if the crime is not punishable with death, the defendant can assert a duress defense. Under NRS 195.020, one who aids and abets another person in committing a murder is liable for the murder as a principal. Thus, because first-degree murder is punishable with death and an aider and abettor is liable to the same extent as the principal, an aider and abettor to first-degree murder can be punished with death, thereby activating NRS 194.010(8)’s limitation on the duress defense. Conversely, because duress is a valid defense to any crime not punishable by death, the district court erred when it precluded the defendant from using it as a defense to multiple charges. Cabrera v. State, 135 Nev. Adv. Op. No. 65, ___ P.3d ___ (December 26, 2019).

Debt collection: (1) NRS Chapter 649 governs agencies engaged in debt collection in Nevada, while NRS Chapter 107 governs the deed-of-trust system and the nonjudicial-foreclosure process; (2) while deed-of-trust trustees engage in activities that would otherwise meet the definition of a debt-collection agency under NRS Chapter 649, the comprehensive scheme of NRS Chapter 107 demonstrates that the Legislature intended to exempt deed-of-trust trustees from NRS Chapter 649 licensing requirements; and (3) because the appellants’ allegations concern conduct that falls within the scope of NRS Chapter 107, respondents were not required to be licensed under NRS Chapter 649. The allegations set forth in the operative complaint occurred between 2008 and 2011. The Legislature has since addressed the question of whether trustees who exercise a power of sale under a deed of trust pursuant to NRS Chapter 107 must be licensed pursuant to NRS Chapter 649 with the enactment of NRS 107.028 in 2011. Since the allegations set forth in the operative complaint predate the enactment of NRS 107.028, this opinion concerns the governing statutory law applicable during that time period. Benko v. Quality Loan Serv. Corp., 135 Nev. Adv. Op. No. 64, ­­___ P.3d ___ (December 26, 2019).

Good-time credit: (1) NRS 209.4465(7)(b) permits the award of good-time-credit deductions from an offender’s minimum sentence towards the parole eligibility date for crimes committed on or after July 17, 1997; (2) in 2007, the Legislature amended NRS 209.4465 to preclude the application of these statutory good-time credits to an offender’s parole eligibility when convicted of certain crimes, including felony sex offenses and category A or B felonies; (3) as a result, offenders convicted of the crimes enumerated in NRS 209.4465(8) may have credits applied to their parole eligibility date if they committed the crimes prior to the amendment’s effective date of July 1, 2007, while those offenders captured by the addition of subsection 8 may not; (4) this appeal required a determination of which version of NRS 209.4465 applies when the offender’s criminal conduct began prior to the effective date of the 2007 amendment and continued through its enactment; and (5) the Nevada Supreme Court held that “NRS 209.4465(8) (2007) applies when the charged offense is continuous in nature.” Here, attempted lewdness with a child under 14 is not a continuing offense, so the district court properly applied the 2003 (pre-2007) version of NRS 209.4465 and applied the offender’s earned credits to his parole eligibility. High Desert State Prison v. Sanchez, 135 Nev. Adv. Op. No. 68, ___ P.3d ___ (December 26, 2019).

Judicial foreclosure: (1) Appellant Vegas United Investment Series 105, Inc., purchased the subject property at a foreclosure sale conducted pursuant to the procedures set forth in NRS 116.3116 in foreclosing on delinquent POA assessment liens; (2) because the lien did not have a superpriority portion and the mortgage savings clause, which provided that foreclosure on a delinquent assessment lien would not affect the priority of a prior mortgage, was still valid, respondent Celtic Bank’s existing mortgage on the subject property was not extinguished; and (3) the district court correctly determined that Vegas United took the property subject to Celtic Bank’s interest. NRS Chapter 116 codifies the Uniform Common-Interest Ownership Act and sets forth statutory regulations applying to common-interest communities in Nevada, such as property-owners’ associations (POAs). NRS Chapter 116 generally applies to all residential Nevada POAs—i.e., homeowners’ associations (HOAs)—but does not automatically apply to nonresidential POAs. Nonresidential POAs may elect to apply such provisions by expressly incorporating NRS Chapter 116’s provisions, either in whole or in part. As this incorporation is elective, NRS Chapter 116 applies to nonresidential POAs only to the extent provided for by the incorporated statutory provisions. Here, the conditions, covenants, and restrictions (CC&Rs) of the subject nonresidential property state that the association may enforce delinquent assessment liens pursuant to NRS 116.3116-.31168. The CC&Rs only incorporated NRS 116.3116-.31168, however, and not the entirety of NRS Chapter 116. Accordingly, NRS 116.1104 did not apply to render the CC&Rs mortgage-savings clause unenforceable, nor did the CC&Rs apply other NRS Chapter 116 provisions supporting assessments that would have superpriority status pursuant to NRS 116.3116(2). As a result, no portion of the delinquent POA assessment lien had superpriority status as against Celtic Bank’s first security interest. Therefore, Vegas United took its interest subject to Celtic Bank’s deed of trust. Vegas United Inv. Series 105 v. Celtic Bank Corp., 135 Nev. Adv. No. 61, ___ P.3d ___ (December 19, 2019).

Jury trials: (1) A criminal defendant has the constitutional right to a jury chosen from a fair cross-section of the community; (2) an evidentiary hearing is warranted on a fair-cross-section challenge when a defendant makes specific allegations that, if true, would be sufficient to establish a prima facie violation of the fair-cross-section requirement; and (3) because the defendant here made specific factual allegations that could be sufficient to establish a prima facie violation of the fair-cross-section requirement and those allegations were not disproved, the district court abused its discretion by denying the defendant’s request for an evidentiary hearing. A defendant alleging a violation of the right to a jury selected from a fair cross-section of the community must first establish a prima facie violation of the right by showing

            (1) that the group alleged to be excluded is a “distinctive” group in the community;

            (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

            (3) that this underrepresentation is due to systematic exclusion of the group in the jury-  selection process.

Only after a defendant demonstrates a prima facie violation of the right does the burden shift to the government to show that the disparity is justified by a significant state interest. Here, the defendant Valentine asserted that African Americans and Hispanics were not fairly and reasonably represented in the venire. The Court held that “an evidentiary hearing is warranted on a fair-cross-section challenge when a defendant makes specific allegations that, if true, would be sufficient to establish a prima facie violation of the fair-cross-section requirement.” The defendant here made specific allegations that the system used to select jurors in the Eighth Judicial District Court sends an equal number of jury summonses to each postal ZIP code in the jurisdiction without ascertaining the percentage of the population in each ZIP code. Those allegations, if true, could establish underrepresentation of a distinctive group based on systematic exclusion. Separately, the Court found that, after presenting its expert to testify about a subject outside the ordinary range of knowledge for jurors, the State disregarded that testimony and invited the jury to make inferences that the expert testified were not supported by DNA evidence. Simply put, the prosecution improperly argued facts not in evidence and inferences not supported by the evidence. Valentine (Keandre) v. State, 135 Nev. Adv. No. 62, ___ P.3d ___ (December 19, 2019).

News-shield statute: (1) NRS 49.275 protects journalists who are associated with newspapers, periodicals, press associations, and radio and television programs from mandatory disclosure of confidential sources; (2) digital media falls within NRS 49.275; but (3) the Supreme Court of Nevada did not address the specific question of whether or not petitioner Sam Toll qualifies for protection as a blogger. With new technologies, one can “print” a newspaper in more than one way. While the Court declined to resolve whether a blog falls under the definition of a newspaper, the Court concluded that a blog should not be disqualified from the news-shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form. Separately, the Court addressed NRS 41.660(4) which provides that “the court shall allow limited discovery when a party needs access to information held by the opposing party to meet or oppose the plaintiff’s burden under the second prong of the anti-SLAPP statute.” Here, the district court did not arbitrarily and capriciously exercise its discretion by ordering limited discovery so that the real party in interest could ascertain whether certain statements were made with actual malice. Toll v. Dist. Ct. (Gilman), 135 Nev. Adv. Op. No. 58, ___ P.3d ___ (December 5, 2019).

Real-estate fraud: (1) The Nevada Real Estate Education, Research and Recovery Fund (the Fund) compensates victims of real-estate fraud whose judgment against a fraudulent real estate licensee is uncollectable; (2) because respondents Melani Schulte and William Schulte were married at the time of the fraud, the spousal exception to Fund recovery in NRS 645.844(4)(a) prohibits Melani’s individual recovery; and (3) because transactions involving one’s own properties do not require a real-estate license, the district court erred in granting awards to eight LLCs under NRS 645.844(1). The theory of the Fund is not to aid those who mistakenly trusted a dishonest spouse, but to compensate victims who relied on real-estate licensure to filter out dishonest real-estate professionals. NRS 645.844(4)(a) is a blanket prohibition on spousal recovery that helps ensure the Fund only awards victims who selected and relied upon a licensee because of the fact of licensure. Only one interpretation of NRS 645.844(4)(a) adequately comports with this purpose: the petitioner may not be the spouse of the debtor at the time of the fraud. Construing the spousal exception to apply at the time of filing of the petition, or upon the hearing of the petition, would not effectuate the intended purpose of the Fund. Separately, the Supreme Court of Nevada recognized that, in order to recover from the Fund, a petitioner must show that the underlying judgment is “with reference to any transaction for which a license is required” pursuant to NRS Chapter 645, and NRS Chapter 645 excludes any “[o]wner or lessor of property” who manages the property or conducts real estate transactions “with respect to the property in the regular course of or as an incident to the management of or investment in the property.” Chandra v. Schulte, 135 Nev. Adv. Op. No. 66, ___ P.3d ___ (December 26, 2019).

Speedy trial: The Sixth Amendment speedy-trial right is evaluated using the factors enunciated in Barker v. Wingo, 407 U.S. 514, 530-33 (1972), and Doggett v. United States, 505 U.S. 647, 651-54 (1992), and the severe remedy of dismissal must be afforded here because it is “the only possible remedy” when a defendant’s speedy-trial right has been denied. Under the Barker-Doggett test, courts must weigh four factors: “[I]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Here, the State violated the defendant’s right to a speedy trial because the State’s gross negligence caused a 26-month delay between filing of charges and the defendant’s arrest, and the State offered nothing to rebut the presumption that the delay prejudiced the defendant. The Supreme Court of Nevada noted that courts have applied these factors in determining whether prejudice should be presumed in response to governmental negligence:

            (1) The length of the post-charge delay;

            (2) Whether the length of the post-charge delay was compounded by a lengthy and inordinate pre-charge delay;

            (3) The complexity of the alleged crime;

            (4) The investigation conduct by law enforcement; and

            (5) Whether negligence was particularly egregious.

State v. Inzunza, 135 Nev. Adv. Op. No. 69, ___ P.3d ___ (December 26, 2019).

Workers’ compensation: Under the modified workers’ compensation program for prisoners, NRS 616B.028, the amount of compensation a prisoner may receive upon release is based on the average monthly wage the prisoner actually received as of the date of the injury. The fact that this wage may be low—here $22.93, amounting to a daily wage of $0.50—does not permit the administrative appeals officer to recalculate the average monthly wage at an amount the prisoner did not actually receive. The Supreme Court of Nevada noted that “[w]hether inmates are entitled to the minimum wage under our constitution is an open question in Nevada, and we conclude that a workers’ compensation benefits challenge is not the proper vehicle for us to resolve this question.” White v. State, Div. of Forestry, 135 Nev. Adv. Op. No. 67, ___ P.3d ___ (December 26, 2019).

Workers’ compensation: (1) To receive workers’ compensation under the Nevada Industrial Insurance Act (NIIA), an employee must show that an “injury arose out of and in the course of his or her employment”; (2) this rule generally requires that the injury happened at work and was due to the work itself or a condition of the workplace, but the Supreme Court of Nevada had not previously addressed how these basic requirements apply to “traveling” employees—those whose employment entails travel away from the workplace; (3) here, the Court held that NRS 616B.612(3) codifies the majority rule that traveling employees are in the course of employment continuously during business trips, except during distinct departures on personal errands; and (4) such an employee’s injuries arising out of travel or work-related risks—including those associated with basic personal needs (like sleeping in hotels or eating in restaurants) and navigating hazards necessarily incidental to travel or work—are usually compensable unless an exception applies. While NIIA coverage is broader for a traveling employee because of risks associated with travel away from home, a traveling employee nonetheless may not recover for injuries sustained while on a personal errand amounting to a distinct departure from the employer’s business. Under NRS 616B.612(3), a traveling employee is in the course of employment continuously for the duration of the trip, excepting the employee’s distinct departures on personal errands. To determine whether a traveling employee left the course of employment by distinctly departing on a personal errand, the inquiry focuses on whether the employee was

            (a) tending reasonably to the needs of personal comfort, or encountering hazards necessarily incidental to the travel or work; or, alternatively,

            (b) “pursuing . . . strictly personal amusement ventures.”

The focus is on the nature of the activity and the activity’s purpose, considered in the context of the work and trip, rather than the employee’s travel status. Buma v. Providence Corp. Dev., 135 Nev. Adv. Op. No. 60, ___ P.3d ___ (December 12, 2019).


Nevada Court of Appeals:

Record sealing: (1) Nevada’s record-sealing statutes vest district courts with considerable discretion in handling petitions involving multiple convictions; (2) if they wish, district courts may evaluate successive convictions in reverse chronological order, thereby potentially sealing earlier convictions that would not have been eligible had the court instead considered the convictions in forward chronological order (i.e., by deeming the later convictions to have never occurred); and (3) on the other hand, the statutes do not require that district courts handle a train of multiple successive convictions this way. NRS 179.295 “does not prohibit” courts from considering previously sealed convictions when determining whether to grant a petition to seal other criminal records. In other words, even if a later conviction has been sealed, the district court may still consider it in deciding whether earlier convictions should be sealed or not, and the district court may rely upon the later sealed conviction to conclude that the petitioner was not truly rehabilitated and refuse to seal the earlier conviction. In re Application of Finley, 135 Nev. Adv. Op. No. 63, ___ P.3d.___ (December 26, 2019).



Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).

© 2019 Clark County Bar Association. All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.