Bulen v. Lauer ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LAWRA KASSEE BULEN, AN No. 81854
INDIVIDUAL,
Appellant,
vs.
ROB LAUER, AN INDIVIDUAL; AND
STEVE SANSON, AN INDIVIDUAL, FILED
Res ondents.
APR 2 9 2022
EVIZABEIN A. BROWN
CLERK, NPREME COURT
BY
Cl
DEPUTY .)- E.RK
-t
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting a special
motion to dismiss in a torts action. Eighth Judicial District Court, Clark
County; Trevor L. Atkin, Judge.1
Appellant Lawra Kassee Bulen filed a defamation complaint
against respondents Rob Lauer and Steve Sanson alleging that they
authored and published numerous false statements about her in two
articles and a video. Respondents moved to dismiss the action pursuant to
Nevada's anti-SLAPP statute, NRS 41.660. After holding a hearing, the
district court granted the motion and dismissed the complaint.
Nevada's anti-SLAPP statutes require the district court to
undertake a two-prong analysis when reviewing a special motion to dismiss.
See NRS 41.660(3)(a)-(b). First, the moving party must demonstrate that
the claims against him are based on protected good faith communications.
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
;-; 3(943
See NRS 41.660(3)(a); see also NRS 41.637 (defining good faith
communications protected under Nevada's anti-SLAPP statutes). This
requires the moving party to show that his alleged conduct constitutes good
faith communications under "one of the four categories enumerated in NRS
41.637 and 'is truthful or is made without knowledge of its falsehood."'
Delucchi v. Songer, 133 Nev. 290, 299, 396 P.3d 826, 833 (2017) (quoting
NRS 41.637). If the moving party "makes this initial showing, the burden
shifts to the plaintiff to show 'with prima facie evidence a probability of
prevailing on the claim."' Shapiro v. Welt, 133 Nev. 35, 38, 389 P.3d 262,
267 (2017) (quoting NRS 41.660(3)(b)).
As to the first prong of the analysis, Bulen does not dispute that
the statements were directly connected with an issue of public interest and
made in a public forum. See NRS 41.637(4) (providing that a "good faith
communication" includes "[c]ommunication[s] made in direct connection
with an issue of public interest . . . in a public forum"). Rather, Bulen
argues that respondents did not demonstrate that the challenged
statements were either true or made without knowledge of their falsity. We
agree with the district court that respondents met their burden. Not only
did respondents provide the district court with declarations made under
penalty of perjury affirming that, to the best of their knowledge, the
challenged statements were either true or they had no knowledge as to
whether they were false at the time of publication, the challenged articles
also cited, and sometimes embedded images of, their sources.2 See Stark v.
2Tothe extent Bulen argues the district court should have allowed her
discovery to show that respondents knew their statements were false, we
2
Lackey, 136 Nev. 38, 43, 458 P.3d 342, 347 (2020) ([A]n affidavit stating
that the defendant believed the communications to be truthful or made
them without knowledge of their falsehood is sufficient to meet the
defendant's burden absent contradictory evidence in the record."); see also
Abrams v. Sanson, 136 Nev. 83, 90, 458 P.3d 1062, 1068 (2020) (noting that
statements in an article were protected good faith communications because
the author included the original source in the article, "thereby allowing
average readers to evaluate the veracity of the statements based on their
source). Therefore, we conclude that the district court did not err in finding
that respondents showed that their statements were good faith
communications protected by Nevada's anti-SLAPP statutes. See Coker v.
Sassone, 135 Nev. 8, 10, 432 P.3d 746, 748-49 (2019) (reviewing a district
court order resolving an anti-SLAPP motion de novo).
We further conclude that the district court did not err in finding
that Bulen failed to show that she had a probability of prevailing on her
decline to consider such argument because she did not request discovery
below. See NRS 41.660(4) (Upon a showing by a party that information
necessary to . . . oppose [a special motion to dismiss] is in the possession of
another party or a third party and is not reasonably available without
discovery, the court shall allow limited discovery for the purposes of
ascertaining such information."); see also Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 52, 623 P.2d 981, 983 (1981) (providing that an argument not raised
in the district court is "waived and will not be considered on appear). We
also reject Bulen's suggestion that she should have been permitted to
discover the identity of respondents unnamed sources. See NRS 49.275
(explaining that news reporters cannot be required to disclose their
sources); Toll v. Wilson, 135 Nev. 430, 435, 453 P.3d 1215, 1219 (2019)
(holding that an online blog is not excluded from the news shield statute
solely because it is digital).
SUPREME COURT
OF
NEVADA
3
(0) I947A aello
claims. As a preliminary matter, Bulen did not demonstrate that each of
the challenged statements were false, which is an element of her defamation
claim. See Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 714, 57 P.3d 82,
87 (2002) (Defamation is a publication of a false statement of fact."). And
while Bulen provided evidence disproving two of the challenged statements,
she failed to demonstrate that respondents knew those statements were
false when they published the articles. See Williams v. Lazer, 137 Nev.,
Adv. Op. 44, 495 P.3d 93, 100 (2021) (concluding that statements were not
made in bad faith absent a showing that the tortfeasor "knew the
statements were false when she made them"). Moreover, Bulen did not
dispute that several of the challenged statements were true or publicly
discoverable, see M & R Inv. Co., Inc. v. Mandarino, 103 Nev. 711, 718-19,
748 P.2d 488, 493 (1987) (rejecting invasion of privacy claim.s where the
alleged tortious conduct "did not constitute a publication of private facts,
but rather, a publication of public facts"); and she failed to support her
challenges to their publication with relevant authority. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (providing that an appellant must "present relevant authority[ ] in
support of h[er] appellate concerne). Bulen therefore failed to show with
prima facie evidence a probability of prevailing on her defamation and
invasion-of-privacy claims. We therefore conclude that the district court did
not err in granting respondents anti-SLAPP motion and dismissing Bulen's
complaint.3 Lastly, while we caution appellant's counsel that a continued
3Bulen does not challenge the district court's conclusion that she did
not meet her burden regarding her other claims. Accordingly, we limit our
4
failure to cite to the appendix could result in the imposition of sanctions, see
NRAP 28(e)(i), (j), we decline respondents request to impose sanctions now.
Based on the foregoing, we
ORDER the judgment of the district court AFFIRMED.4
'''S:LC14"426114.1.7C.J.
Parraguirre
, Sr.J.
Hardesty
cc: Hon. Trevor L. Atkin, District Judge
Kristine M. Kuzemka, Settlement Judge
Brandon L. Phillips, Attorney at Law, PLLC
Richard F. Scotti
Eighth District Court Clerk
consideration to her defamation and invasion-of-privacy claims. See Powell
v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3
(2011) (Issues not raised in an appellant's opening brief are deemed
waived.").
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
5