Nevada Appellate Court Summaries (3-8-21)

By Joe Tommasino, Esq.

Supreme Court of Nevada

Anti-SLAPP protections: (1) Under NRS 41.670(1)(a), if the court grants an anti-SLAPP special motion to dismiss, a prevailing defendant may recover attorney fees and costs incurred from the inception of the proceedings, as opposed to attorney fees and costs incurred litigating the anti-SLAPP special motion to dismiss; and (2) NRS 41.670(1)(b) authorizes an award of up to an additional $10,000 to each individual defendant who prevails on an anti-SLAPP special motion to dismiss. Here, the district court properly applied NRS 41.637(4) and various applicable factors in determining that the statements at issue were made in good faith, addressed an issue of public concern, and warranted protection under the first prong of the anti-SLAPP statutes. The district court also correctly determined that the appellant failed to make a prima facie showing of actual malice as required to satisfy the second prong of the analysis. Therefore, the district court appropriately granted the anti-SLAPP motion to dismiss. Smith v. Zilverberg C/W 80348, 137 Nev. Adv. Op. No. 7, ___ P.3d ___ (March 4, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Bail: District courts may not rely on conjecture and inferences in denying bail.   Article 1, Section 7 of the Nevada Constitution provides that criminal defendants have the right to bail prior to conviction. However, this right is limited for defendants accused of “[c]apital [o]ffenses or murders punishable by life imprisonment without [the] possibility of parole when the proof is evident or the presumption great” that the defendant committed the charged crime. The quantum of proof necessary to establish the presumption of guilt for purposes of defeating a bail request “is considerably greater than that required to establish the probable cause necessary to hold a person answerable for an offense,” but less than what is required at trial to prove guilt beyond a reasonable doubt. A district court abuses its discretion when it arrives at the conclusion to deny bail “by stacking inference upon inference” and where the connection between the evidence and charged crime is conjectural. The evidence the State presented here is insufficient to defeat the defendant’s right to reasonable bail because that evidence does not tend to demonstrate that he committed the elements of first-degree murder. Sewall, Jr. (Arthur) v. Dist. Ct. (State), 137 Nev. Adv. Op. No. 9, ___ P.3d ___ (March 4, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Minimum wage: (1) The economic-realities test previously applied in the context of statutory minimum-wage claims applies to the constitutional Minimum Wage Amendment (MWA) claims at issue in this case; (2) the appellants (Doe Dancers) here are employees, not independent contractors, under that test; and (3) NRS 608.0155 does not abrogate the constitutional protections to which they are therefore entitled. This case is a sequel to Terry v. Sapphire Gentlemen’s Club, which adopted the federal economic-realities test to guide courts in determining whether an employment relationship exists in the context of Nevada’s statutory minimum-wage laws, NRS Chapter 608. 130 Nev. 879, 888, 336 P.3d 951, 958 (2014). Applying that test to the provisions of NRS Chapter 608 as they then existed, the Supreme Court of Nevada held that performers at the Sapphire men’s club were employees, not independent contractors, and accordingly entitled to statutory minimum wages under that chapter. The Legislature subsequently enacted NRS 608.0155, which established “for the purposes of [NRS Chapter 608]” a conclusive presumption of independent-contractor status for certain workers meeting specified criteria, regardless of whether those workers might otherwise qualify as employees under Terry and the economic-realities test, thus expanding the ranks of independent contractors and excluding previously qualifying workers from statutory minimum-wage protections. In this appeal, Doe Dancers similarly argued they are in fact employees, not independent contractors, but this time within the context of Article 15, Section 16 of the Nevada Constitution, the Minimum Wage Amendment (MWA), rather than NRS Chapter 608. To resolve Doe Dancers’ appeal, the Supreme Court again interpreted the term “employee,” this time pursuant to the MWA, applied that interpretation to the circumstances at issue, and then determined whether NRS 608.0155’s statutory expansion of the definition of independent contractor excludes workers who would otherwise be MWA employees from its protections. The Court emphasized that “constitutional supremacy prevents the Nevada Legislature from creating exceptions to the rights and privileges protected by Nevada’s Constitution.” Given the MWA’s supremacy, and the extraordinary measures the people of Nevada undertook to enact it, it only follows that NRS 608.0155 should be construed to accord with the MWA, not vice versa. Thus, the Court concluded “NRS 608.0155 does not, and indeed could not, remove from MWA protections employer-employee relationships the constitutional provision protects.” Doe Dancer I v. La Fuente, Inc., 137 Nev. Adv. Op. No. 3, ___ P.3d ___ (February 25, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Preemption: (1) The federal Hatch-Waxman Act imposes a duty of sameness on generic drug manufacturers that requires the labels and design of generic drugs to be the same as the corresponding brand-name drugs and precludes manufacturers from unilaterally altering the label or design of the drug; (2) a state-law claim that imposes a duty on a generic drug manufacturer to alter either the label or the design of a generic drug, thus making it impossible for the generic drug manufacturer to avoid liability under state law without also violating its federal duty of sameness, is preempted; and (3) preemption cannot be avoided simply because the manufacturer could have stopped selling the drug to avoid liability under state law. This original writ petition arose from lawsuits brought against generic drug manufacturers for selling single-patient-use 50 mL vials of propofol to ambulatory surgical centers despite an allegedly foreseeable risk that the centers would use them on multiple patients. The question presented was whether the plaintiffs’ state-law tort claims are preempted by federal drug regulations. The Supreme Court concluded that plaintiffs’ negligence cause of action is not preempted by federal law, and plaintiffs’ request for punitive damages also survives to the extent it derives from the negligence cause of action. Teva Parenteral Medicines, Inc. v. Dist. Ct. (Adams), 137 Nev. Adv. Op. No. 6, ___ P.3d ___ (March 4, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Service contracts: (1) Under NRS 690C.150, “[a] provider [of home warranty services] shall not issue, sell or offer for sale service contracts in this state unless the provider has been issued a certificate of registration”; (2) NRS 690C.070 defines a “provider” as “a person who is obligated to a holder pursuant to the terms of a service contract,” i.e., an obligor; and (3) here, the Supreme Court of Nevada clarified that under NRS 690C.150, a “provider” is not simply an entity that issues, sells, or offers for sale service contracts but, as NRS 690C.070 plainly defines it, the obligor in those contracts. The seller in this appeal was not an obligor, so it was not a provider and need not have held a certificate of registration. Further, the obligor did not act improperly by selling its contracts through an unregistered entity. Because the hearing officer concluded otherwise, the Court reversed in part the district court’s order denying the obligor’s petition for judicial review. Home Warranty Adm’r of Nev., Inc. v. State, Dep’t of Bus. and Indus., 137 Nev. Adv. Op. No. 5, ___ P.3d ___ (March 4, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Unions: (1) The bylaws of national- and state-level unions are contractually binding on affiliated local unions unless and until the local union disaffiliates from the parent unions; (2) the local and parent unions may also enter into other contracts that govern certain aspects of their relationship; and (3) in this dispute between a local teachers union and its state and national affiliates, the parent unions’ bylaws, while binding, did not by their own terms control the important issue of transmitting dues from the local to the state affiliate.   Instead, the local union’s obligation to transmit dues was the subject of a separate contract. That contract contained a provision expressly permitting either party to terminate it by giving timely notice. The local union validly terminated this contract pursuant to that provision and so was not contractually obligated to continue transmitting its members’ dues to the state union. Nevada State Educ. Ass’n v. Clark Cty. Educ. Ass’n., 137 Nev. Adv. Op. No. 8, ___ P.3d ___ (March 4, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Units of prosecution: (1) NRS 202.360(1)(b) makes it illegal for a convicted felon to possess “any firearm”; (2) the rule of lenity resolves unit-of-prosecution questions in favor of the defendant where, as here, the statute’s text is ambiguous and conventional tools of statutory construction leave the matter in doubt; and (3) the State properly charges a defendant with only a single violation of NRS 202.360(1)(b) when it alleges, without more, that the defendant is a felon who possessed “any firearm”–that is, one or more firearms–at one time and place. The statutory problem stems from NRS 202.360(1)’s ambiguous use of the word “any” to modify “firearm.” The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. Thus, the Court held that the State properly charges a defendant with only a single violation of NRS 202.360(1)(b) when it alleges, without more, that the defendant is a felon who possessed “any firearm”–that is, one or more firearms–at one time and place. However,   “the federal cases follow a different rule when the defendant acquires or stores multiple firearms at different times and places, . . . but we leave that issue for another day, since the State does not allege or argue that [the defendant] did not possess the weapons at one time and place.” State v. Dist. Ct. (Martinez (Anthony)), 137 Nev. Adv. Op. No. 4, ___ P.3d ___ (February 25, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Water: (1) This appeal involves the availability and sustainability of groundwater sourced from domestic wells; (2) specifically at issue is Order No. 1293A (July 12, 2018) by the appellant State Engineer, which prohibits the drilling of new domestic wells in the over-appropriated Pahrump Artesian Basin (the Basin) unless the applicant identifies and relinquishes 2.0 acrefeet annually from an alternate source (the 2.0 afa requirement); and (3) Nevada law—specifically NRS 534.110(8) (allowing the State Engineer to “restrict the drilling of wells” in a specially designated basin “if the State Engineer determines that additional wells would cause an undue interference with existing wells”)—authorized the 2.0 afa requirement under these particular circumstances, the State Engineer’s assessment of which is supported by substantial evidence. The Supreme Court of Nevada emphasized that water is a public resource in this state, not private property. Because Nevada’s resulting system of prior appropriation neither envisions nor guarantees that there will be enough water to meet every demand for it, a landowner’s unilateral assumptions to the contrary are not the sort of justified reliance that would demand notice and a hearing prior to the State Engineer’s imposition of the restriction at issue. Wilson, P.E. v. Pahrump Fair Water, LLC, 137 Nev. Adv. Op. No. 2, ___ P.3d ___ (February 25, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Workers’ compensation: (1) Under NRS 616C.475(8), an employer may offer temporary, light-duty employment to an injured employee in lieu of paying temporary total disability (TTD) benefits to that employee; (2) for a temporary, light-duty employment offer to be valid, NRS 616C.475(8) requires that the offered position be substantially similar to the employee’s preinjury position in location, hours, wages, and benefits; (3) although the term “hours” within the meaning of the statute contemplates “schedule” as well as the number of hours worked, the offered employment here was substantially similar to the preinjury position as to both schedule and number of hours, as well as location, wages, and benefits; and (4) as a result, the offer of temporary, light-duty employment at issue was valid under NRS 616C.475(8). Statutorily, an employee who is injured in a work-related accident may receive TTD benefits. Payments for TTD end, however, when “[t]he employer offers the employee light-duty employment or employment that is modified according to the limitations or restrictions imposed by a physician or chiropractor.” Under NRS 616C.475(8), the temporary, light-duty employment offered by the employer must (1) be “substantially similar to the employee’s position at the time of his or her injury in relation to the location of the employment and the hours the employee is required to work”; (2) “[p]rovide[ ] a gross wage that is . . . substantially similar to the gross wage the employee was earning at the time of his or her injury”; and (3) “[have] the same employment benefits as the position of the employee at the time of his or her injury.” Here, the new employment location was substantially similar to the employee’s previous work location in proximity and in distance from his residence. Moreover, the employee’s offered employment was substantially similar in gross wage and had the same employment benefits as his preinjury position. Based on the above, the Court ruled that the offer of temporary, light-duty employment was reasonable and complied with NRS 616C.475(8). Taylor v. Truckee Meadows Fire Prot. Dist., 137 Nev. Adv. Op. No. 1, ___ P.3d ___ (February 4, 2021).   https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/


About the author: 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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