Masillo v. State Emp't Sec. Div.

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JULIE MASILLO, Appellant, v. THE STATE OF NEVADA EMPLOYMENT SECURITY DIVISION; LYNDA PARVEN, IN HER CAPACITY AS ADMINISTRATOR OF THE EMPLOYMENT SECURITY DIVISION; AND J. THOMAS SUSICH, IN HIS CAPACITY AS CHAIRPERSON OF THE EMPLOYMENT SECURITY DIVISION BOARD OF REVIEW, Respondents.

No. 85100-COA

Court of Appeals of Nevada

May 24, 2023

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Julie Masillo appeals from a district court order dismissing a petition for judicial review in an unemployment assistance matter. Eighth Judicial District Court, Clark County; Mark R Denton, Judge.

Masillo filed a claim for Pandemic Unemployment Assistance (PUA) and Federal Pandemic Unemployment Compensation (FPUC) under the federal Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES Act), and initially received both PUA and FPUC benefits. However, respondent the State of Nevada Employment Security Division (ESD) later determined that Masillo was ineligible for PUA and FPUC benefits under the CARES Act and issued overpayment notices. Masillo appealed that decision, but the appeals referee upheld the decision and the board of review declined further review.

Masillo then petitioned the district court for judicial review, and respondents, which include ESD; the administrator of ESD Lynda Parven; and the chair of the board of review, J. Thomas Susich, filed an answer. Respondents subsequently moved to dismiss the petition, arguing that Masillo failed to comply with NRS 233B.133(1) because she did not file and serve a memorandum of points and authorities within 40 days after they served her with notice that the administrative record had been filed in the district court. Although Masillo did not file a written opposition to respondents' motion, the district court nevertheless proceeded with a hearing on the motion. However, Masillo failed to appear at the time that had been scheduled for the hearing, and the district court orally granted respondents' motion based on Masillo's failure to oppose it and her failure to file a memorandum of points and authorities. While Masillo later appeared before the district court on the day of the hearing, the court declined to revisit its decision, and it subsequently entered a written order dismissing Masillo's petition. This appeal followed.

Under EDCR 2.20(e), the district court may construe a party's failure to oppose a motion "as an admission that the motion ... is meritorious and a consent to granting the same." See King v. Cartlidge, 121 Nev. 926, 928, 124 P.3d 1161, 1162 (2005) (discussing DCR 13(3), which is substantively identical to EDCR 2.20(e), and explaining that a party's failure to timely oppose a motion is "sufficient grounds for the district court to deem [the] motion unopposed and thus meritorious"). This court reviews an order granting a motion to dismiss a petition for judicial review as unopposed for an abuse of discretion. See State, Dep't of Motor Vehicles & Pub. Safety v. Moss, 106 Nev. 866, 868, 802 P.2d 627, 628 (1990) (reviewing a district court order that granted a petition for judicial review based on a prior version of EDCR 2.20(e) for an abuse of discretion).

On appeal, Masillo's informal brief primarily discusses the proceedings before ESD, but she raises one issue relevant to the district court's decision to dismiss her petition for judicial review insofar as that decision was based on her failure to oppose respondents' motion to dismiss. In particular, Masillo essentially contends that the district court improperly granted respondents' motion as unopposed based on her failure to appear at the hearing on the matter at the time for which it was originally scheduled because the hearing had been rescheduled to a later time, which was when she appeared before the district court. However, no order rescheduling the hearing on respondents' motion was entered in the underlying proceeding. And although Masillo asserts that, prior to the hearing, she received a notice indicating that it had been...