Nevada Appellate Court Summaries 4-1-20
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 statute: (1) Steve Sanson’s articles and emails on behalf of Veterans in Politics International (VIPI) fell within the protections of Nevada’s anti-SLAPP statutes in this case; (2) because Sanson’s statements made about an attorney’s courtroom conduct directly connect to an issue of public interest, an email listserv may constitute a public forum, and the statements are either true or opinions that cannot be false, Sanson met his burden under the first prong of the anti-SLAPP analysis; (3) the district court did not err in finding that appellant attorney Jennifer Abrams did not demonstrate with prima facie evidence a probability of prevailing on her claims based on those statements; and (4) the district court erred as to Sanson’s statements to a third party because private telephone conversations are not statements made in a place open to the public or in a public forum for purposes of the anti-SLAPP statute. A special motion to dismiss under Nevada’s anti-SLAPP statute should be granted where the defendant shows by a preponderance of the evidence that the claim is based upon a good-faith communication in furtherance of the right to petition or the right to free speech regarding a matter of public concern, and the plaintiff cannot show with “prima facie evidence a probability of prevailing on the claim.” Here, the Court held that the statements at issue directly connect to an issue of public interest. The public has an interest in an attorney’s courtroom conduct that is not mere curiosity, as it serves as a warning to both potential and current clients looking to hire or retain the lawyer. An attorney’s behavior, especially toward judges and in judicial proceedings, implicates “[t]he operations of the courts” and is a “matter of utmost public concern.” The statements at issue focus on courtroom behavior rather than on a private controversy and rely on publicly available information rather than on private information. Thus, Sanson’s statements made about Abrams’ courtroom conduct are “in direct connection with an issue of public interest.” Sanson’s statements also criticize Abrams’ practice of moving to seal cases. They express the opinion that Abrams’ desire to seal cases is in contravention of law and antithetical to openness and transparency. Matters of judicial transparency go beyond mere curiosity, and “Nevada citizens have a right to know what transpires in public and official legal proceedings.” Statements about judicial transparency also concern many taxpayers who fund the court, all residents affected by judicial rulings, and participants in the judicial process. Sanson’s statements are therefore “in direct connection with an issue of public interest” and satisfy the first element of protected good-faith communications. Next, to enjoy the protection of Nevada’s anti-SLAPP statutes, statements must be communicated “in a place open to the public or in a public forum.” Unlike a single email exchange between two private parties or a communication sent to a small number of people in a private email chain, the communications at issue here were sent to about 50,000 subscribers in a modern manner akin to a radio or television broadcast or newsletter. Emails sent to a listserv of subscribers likewise provide a medium through which public matters are disseminated. The mere fact that emails reach a person’s private inbox does not take the communication out of the ambit of a public forum, especially when the communications are also posted on the internet. Therefore, the Court held that an email listserv may constitute a public forum for purposes of the anti-SLAPP statutes and that emails to the listserv here were communicated in a public forum, satisfying the second element of a protected good-faith communication. Next, the Court emphasized that, to be protected under the anti-SLAPP statutes, Sanson had to show that his statements were “good-faith” communications–that is, that the statements were either “truthful or made without knowledge of [their] falsehood.” Because “there is no such thing as a false idea,” statements of opinion are statements made without knowledge of their falsehood. A majority of the statements here involve Sanson’s opinions, which, as opinions, are not knowingly false. They involve Sanson’s personal views and criticisms of Abrams’ courtroom behavior. As opinions about public matters stated in public fora, they constitute good-faith communications under Nevada’s anti-SLAPP statute. Abrams v. Sanson C/W 75834, 136 Nev. Adv. Op. No. 9, ___ P.3d ___ (March 5, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Foreclosures: (1) The homeowner has the ability to cure a default as to the superpriority portion of an HOA (homeowners’-association) lien; and (2) allocating partial payments by a homeowner to her HOA depends on the express or implied intent and actions of the homeowner and the HOA and, if indeterminate, an assessment of the competing equities involved. This is an HOA lien foreclosure dispute between the holder of the first deed of trust on the property and the assignee of the buyer at the lien foreclosure sale. After receiving the HOA’s notice of delinquency, the homeowner made several partial payments to the HOA. The homeowner did not specify how she wanted the HOA to apply the payments–whether to the superpriority or subpriority portion of the lien. If applied 100% to the superpriority portion, the homeowner’s payments were enough to cure the default as to that portion of the lien, rendering the sale void as to the holder of the first deed of trust. On appeal, the Supreme Court of Nevada recognized that, equally with the first deed of trust holder, the homeowner has a significant incentive to cure the superpriority default; even if the homeowner lacks the means to cure the entire default, she can preserve the deed of trust by curing the superpriority default, meaning the property can still satisfy the debt the homeowner owes the holder of the first deed of trust. Moreover, NRS Chapter 116 does not support that only the first deed of trust holder, not the homeowner, can cure a superpriority lien default. In fact, NRS Chapter 116 obligates the homeowner to pay her HOA association fees or assessments. As the person primarily obligated to pay the HOA fees, the homeowner has the legal ability to pay the superpriority portion of the lien, directly or through payments made to and by the first deed of trust holder. Thus, while the first deed of trust holder can pay off a superpriority lien default, so, too, can the homeowner. The lower court still needs to resolve the issue of how to allocate the homeowner’s partial payments. “In directing the application of a payment, the district court should be guided by the basic principles of justice and equity so that a fair result can be achieved.” 9352 Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. Adv. Op. No. 8, ___ P.3d ___ (March 5, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Foreclosures: NRS 11.080 generally does not bar a property owner who is in undisputed possession of the property from bringing a claim for quiet title; however, the limitations period does begin to run against a property owner once the owner has notice of disturbed possession. NRS 11.080 provides a five-year statute of limitations that governs quiet-title actions. The issue here is when that limitations period is triggered. The Court clarified that the limitations period does not run against a plaintiff seeking to quiet title while still seized or possessed of the property; the limitations period only starts to run when the plaintiff is ejected from the property or has had the validity or legality of his or her ownership or possession of the property called into question. Thus, for example, a notice of default issued on a deed of trust has been found insufficient to dispute an owner’s possession because it does not call into question the validity of the owner’s control of the property or indirectly question the owner’s control of the property by asserting someone else was entitled to possess the property. Berberich v. Bank of America, N.A., 136 Nev. Adv. Op. No. 10, ___ P.3d ___ (March 26, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Grand juries: (1) NRS 172.105 defines the authority of a grand jury to inquire into criminal offenses; (2) under that statute, the “territorial jurisdiction” of the district court does not extend statewide, thereby encompassing any offense committed within Nevada; (3) instead, “territorial jurisdiction” is tied to existing statutes governing the proper court where a criminal case may be pursued, and the statute empowers a grand jury to inquire into an offense so long as the district court that empaneled the grand jury may appropriately adjudicate the defendant’s guilt for that offense. Under NRS 172.105, if venue is proper in a given district court for an alleged criminal offense, then it was committed within that court’s territorial jurisdiction and a grand jury empaneled by that district court has the authority to inquire into that offense. This is a question reserved for the court. Here, the Supreme Court of Nevada vacated the district court’s order so that it may reconsider the defendant’s motion to dismiss. The district court will be required to review the evidence presented to the Washoe County grand jury to determine whether there is a sufficient connection between the Douglas County offenses and Washoe County. To do so, the district court must determine whether venue would be proper in Washoe County for the Douglas County offenses. If so, then the Washoe County grand jury has the authority to inquire into the Douglas County offenses, and criminal proceedings may continue. If not, then the Washoe County grand jury does not have the authority to inquire into the Douglas County offenses, and the district court must grant the motion to dismiss. A dismissal at this stage would not prevent Douglas County from initiating its own criminal proceedings regarding alleged Douglas County offenses. Martinez Guzman v. Second Jud. Dist. Ct., 136 Nev. Adv. Op. No. 12, ___ P.3d ___ (March 26, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Public records: (1) All public records held by government entities are public information and, unless the records are made confidential by law, they are subject to public inspection; (2) the Supreme Court of Nevada presumes that public records must be disclosed and narrowly construes any restrictions on disclosure; and (3) the Court concluded that NRS 612.265 protects from disclosure a person’s or employing unit’s identity but otherwise does not prohibit disclosure of records of the Employment Security Division (ESP) of the Department of Employment, Training & Rehabilitation (DETR). Here, Sierra National Corporation, d/b/a the Love Ranch, filed a public-records request for various records related to audits of the Love Ranch and other legal brothels. NRS 612.265 governs the ESD’s disclosure of information obtained pursuant to the administration of NRS Chapter 612 or of the determination of a person’s unemployment-benefit rights. The Court presumed that the requested public records must be disclosed unless the governmental entity demonstrated that either (1) the records are confidential by law or (2) the balance of interests weighs against disclosure. The Court held that the information provided to the ESD and its benefits determinations are confidential only to the extent those records “would reveal the person’s or employing unit’s identity.” The Love Ranch’s public-records request specified that it did not encompass information that would reveal the identity of any person or employing unit. Thus, the request comported with NRS 612.265(1)’s mandate that certain information within the ESD’s records is confidential and shall not be disclosed, and DETR can comply with the request and the district court’s writ without violating NRS 612.265. State, DETR v. Sierra Nat’l Corp., 136 Nev. Adv. Op. No. 11, ___ P.3d ___ (March 26, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday:
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
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).
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