432 P.3d 746 (Nev. 2019), 73863, Coker v. Sassone

• Docket Nº: 73863
• Citation: 432 P.3d 746, 135 Nev.Adv.Op. 2
• Opinion Judge: PARRAGUIRRE, J.:
• Party Name: Darrell T. COKER, an Individual, Appellant, v. Marco SASSONE, Respondent.
• Attorney: Randazza Legal Group, PLLC, and Marc J. Randazza and Alex J. Shepard, Las Vegas, for Appellant. Gentile, Cristalli, Miller, Armeni & Savarese, PLLC, and Dominic P. Gentile, Clyde F. DeWitt, and Lauren E. Paglini, Las Vegas, for Respondent.
• Judge Panel: BEFORE CHERRY, PARRAGUIRRE and STIGLICH, JJ. We concur: Cherry, J., Stiglich, J.
• Case Date: January 03, 2019
• Court: Supreme Court of Nevada

Page 746

432 P.3d 746 (Nev. 2019)

135 Nev.Adv.Op. 2

Darrell T. COKER, an Individual, Appellant,

v.

Marco SASSONE, Respondent.

No. 73863

Supreme Court of Nevada

January 3, 2019

Page 747

Appeal from a district court order denying a special motion to dismiss. Eighth Judicial District Court, Clark County; Rob Bare, Judge.

Randazza Legal Group, PLLC, and Marc J. Randazza and Alex J. Shepard, Las Vegas, for Appellant.

Gentile, Cristalli, Miller, Armeni & Savarese, PLLC, and Dominic P. Gentile, Clyde F. DeWitt, and Lauren E. Paglini, Las Vegas, for Respondent.

BEFORE CHERRY, PARRAGUIRRE and STIGLICH, JJ.

OPINION

PARRAGUIRRE, J.:

In this appeal, we are asked to review a district court order denying appellant’s special motion to dismiss. Central to its resolution are Nevada’s anti-SLAPP statutes— specifically NRS 41.660, which authorizes a litigant to file a special motion to dismiss when an action filed in court 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." We first clarify that in light of recent legislative changes, the appropriate standard of review for a district court’s denial or grant of an anti-SLAPP motion to dismiss is de novo. We next conclude that

Page 748

the district court properly denied appellant’s special motion to dismiss for the reasons set forth herein.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent Marco Sassone is an artist and painter who has created numerous works of art using media such as watercolor, oil paint, and serigraph throughout his career. After being informed that copies of his artwork were being advertised on various websites as original, signed lithographs— a medium on which Sassone contends he never produced nor sold his artwork— Sassone investigated the activity. It is Sassone’s contention that the copies being sold were counterfeit, his signature was forged, and that this activity was part of an ongoing fraudulent scheme. He traced the sales back to appellant Darrell Coker and sued under Nevada’s Deceptive Trade Practice and RICO statutes.

Coker then filed a special motion to dismiss under NRS 41.660, arguing that dissemination of artwork to the public is expressive conduct. It is Coker’s contention that as such, his activity is protected by Nevada’s anti-SLAPP statute. Additionally, Coker contends that dissemination of artwork is in the public interest, further warranting anti-SLAPP protection. In opposing this motion, Sassone argues that he filed the present action to enjoin Coker from injuring Sassone’s reputation and reducing the value of his artwork— not to silence his speech.

The district court denied Coker’s motion, finding that Coker failed to demonstrate that his conduct was "a good faith communication that was either truthful or made without knowledge of its falsehood," one of the statutory requirements for anti-SLAPP protection. Coker timely appealed.

DISCUSSION

Standard of review

Nevada’s anti-SLAPP statutes aim to protect First Amendment rights by providing defendants with a procedural mechanism to dismiss "meritless lawsuit[s] that a party initiates primarily to chill a defendant’s exercise of his or her First Amendment free speech rights" before incurring the costs of litigation. Stubbs v. Strickland, 129 Nev. 146, 150, 297 P.3d 326, 329 (2013). Since enactment in 1993, these statutes have undergone a series of legislative changes to ensure full protection and meaningful appellate review.

Relevant here is the evolution of NRS 41.660, which authorizes defendants to file a special motion to dismiss when an action is filed to restrict or inhibit free speech. Before October 1, 2013, NRS 41.660 simply instructed courts to treat the special motion to dismiss as a motion for summary judgment, and thus, this court reviewed such motions de novo. John v. Douglas Cty. Sch. Dist., 125 Nev. 746, 753, 219 P.3d 1276, 1281 (2009), superseded by statute as stated in Delucchi v. Songer, 133 Nev. 290, 296, 396 P.3d 826, 831 (2017). In 2013, the Legislature removed the language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set forth a specific burden-shifting framework.¹ 2013 Nev. Stat., ch. 176, § 3, at 623-24. "The 2013 amendment completely changed the standard of review for a special motion to dismiss by placing a significantly different burden of proof on the parties." Delucchi v. Songer, 133 Nev. 290, 296, 396 P.3d 826, 831 (2017). Plaintiffs bore the heightened "clear and convincing evidence" burden of proof, and we accordingly adopted the more deferential abuse of discretion standard of review. Shapiro v. Welt, 133 Nev. 35, 37, 389 P.3d 262, 266 (2017).

However, NRS 41.660’s burden-shifting framework evolved in 2015 when the Legislature decreased the plaintiff’s burden of proof from "clear and convincing" to "prima facie" evidence. 2015 Nev. Stat., ch. 428, § 13, at 2455. As amended, the special motion to dismiss again functions like a summary judgment motion procedurally, thus,

Page 749

we conclude de novo review is appropriate.^[2]

We find support for this reversion not only in general principles of appellate review, but also in California’s anti-SLAPP jurisprudence. This court has repeatedly recognized the similarities between California’s and Nevada’s anti-SLAPP statutes, routinely looking to California courts for guidance in this area.³ See, e.g., Patin v. Lee, 134 Nev. __, 429 P.3d 1248, 1250-51 (2018); Shapiro, 133 Nev. at 40, 389 P.3d at 268 (adopting California’s "guiding principles" to define "an issue of public interest" pursuant to NRS 41.637(4) ); John, 125 Nev. at 752, 219 P.3d at 1281 (describing both states’ anti-SLAPP statutes as "similar in purpose and language"). As such, we turn to Park v. Board of Trustees of California State University, wherein the California Supreme Court explained: We review de novo the grant or denial of an anti-SLAPP motion. We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. We do not, however, weigh the evidence, but accept plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law.

2 Cal.5th 1057, 217 Cal.Rptr.3d 130, 393 P.3d 905, 911 (2017) (citations omitted). In light of the 2015 legislative change to NRS 41.660, we find it appropriate to adopt California’s recitation of the standard of review for a district court’s denial or grant of an anti-SLAPP motion to dismiss as de novo.

Having clarified the applicable standard of review, we now turn to the merits of Coker’s anti-SLAPP motion.

Coker’s conduct is not protected communication under Nevada’s anti-SLAPP statute

Under Nevada’s anti-SLAPP statutes, a moving party may file a special motion to dismiss if an action is filed in retaliation to the exercise of free speech. A district court considering a special motion to dismiss must undertake a two-prong analysis. First, it must "[d]etermine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of ... the right to free speech in direct connection with an issue of public concern." NRS 41.660(3)(a). If successful, the district court advances to the second prong, whereby "the burden shifts to the plaintiff to show ‘with prima facie evidence a probability of prevailing on the claim.’ " Shapiro, 133 Nev. at 38, 389 P.3d at 267 (quoting NRS 41.660(3)(b) ). Otherwise, the inquiry ends at the first prong, and the case advances to discovery.

We recently affirmed that a moving...