Vannah, Esq. v. The Law Office Of Daniel S. Simon

IN THE SUPREME COURT OF THE STATE OF NEVADA
ROBERT DARBY VANNAH, ESQ.; No. 82058
JOHN BUCHCANAN GREENE, ESQ.;
ROBERT D. VANNAH, CHTD., D/B/A
VANNAH & VANNAH; EDGEWORTH FILED
FAMILY TRUST; AMERICAN
GRATING, LLC; AND BRIAN MAR 3 1 2022
EDGEWORTH AND ANGELA EUZABE A. BROWN
EDGEWORTH, INDIVIDUALLY, AS CLERK OF PREME COURT
HUSBAND AND WIFE, CLERK
Appellants,
vs.
THE LAW OFFICE OF DANIEL S.
SIMON, A PROFESSIONAL
CORPORATION; AND DANIEL S.
SIMON,
Res sondents.
ORDER OF REVERSAL AND REMAND
These are appeals from district court orders denying anti-
SLAPP special motions to dismiss. Eighth Judicial District Court, Clark
County; James Crockett, Judge.
Appellants argue that the district court erred by (1) allowing
respondents to amend their complaint after they filed anti-SLAPP special
motions to dismiss, and (2) relying on the amended complaint to deny their
anti-SLAPP special motions to dismiss. We agree.
We review de novo the district court's denial of an anti-SLAPP
special motion to dismiss. Williams v. Lazer, 137 Nev., Adv. Op. 44, 495
P.3d 93, 96-97 (2021). A two-step analysis guides our review. Id., 495 P.3d
at 97. At the first step, the defendant must show "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 in direct
connection with an issue of public concern." NRS 41.660(3)(a). If the
defendant makes this showing, step two of the analysis "determine[s]
whether the plaintiff has demonstrated with prima facie evidence a
probability of prevailing on the claim." NRS 41.660(3)(b).
After appellants filed their anti-SLAPP special motions to
dismiss, respondents filed an amended complaint. At a status hearing, the
district court determined that respondents amended complaint governed.
Later, the district court relied on respondents' amended complaint to
conclude appellants did not meet their burden under step one of the anti-
SLAPP analysis to show that the complained-of statements were good faith
communications which were truthful or made without knowledge of falsity.
Thus, the district court denied appellants' anti-SLAPP special motions to
dismiss at step one.
We conclude that the district court erred when it permitted
respondents to file an amended complaint while the appellants' anti-SLAPP
special motions to dismiss were pending and then relied on the amended
complaint to deny the motions. See Dickinson v. Cosby, 225 Cal. Rptr. 3d
430, 450-51 (Ct. App. 2017) (explaining that a plaintiff may file an amended
complaint before the defendant files an anti-SLAPP motion to dismiss);
Salma v. Capon, 74 Cal. Rptr. 3d 873, 888-89 (Ct. App. 2008) (holding that
a plaintiff cannot amend a complaint after an anti-SLAPP motion to dismiss
has been filed); see also Coker v. Sassone, 135 Nev. 8, 11, 432 P.3d 746, 749
(2019) (recognizing that this court routinely looks to California courts for
guidance in applying Nevada's anti-SLAPP statutes). Because respondents'
amended complaint was not filed before appellants filed their anti-SLAPP
2
special motions to dismiss, the district court erred by relying on
respondents amended complaint to deny appellants' anti-SLAPP special
motions to dismiss. On remand, the district court should conduct its anti-
SLAPP analysis based on respondents' original complaint.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'
, J.
Hardesty
J.
Stiglich
J.
Herndon
cc: Chief Judge, Eighth Judicial District Court
Eighth Judicial District Court, Department 24
'Although the parties raise additional arguments regarding the
district court's anti-SLAPP analysis, we need not reach them because the
district court erroneously relied on respondents' amended complaint. Thus,
we do not reach the parties' arguments regarding issue preclusion, the
litigation privilege, whether respondents had leave of court to amend their
complaint, or whether the district court erroneously denied appellant& anti-
SLAPP special motions to dismiss at step one.
SUPREME COURT
OF
NEVADA
3
10) I 947A 4014,
William C. Turner, Settlement Judge
Messner Reeves LLP
Patricia A. Marr, Ltd.
Morris Law Group
Christiansen Trial Lawyers
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA 4
MI 1447A Migg3.