Williams v. Lazer

495 P.3d 93

Daphne WILLIAMS, Appellant,

v.Charles "Randy" LAZER, Respondent.

No. 80350

Supreme Court of Nevada.

FILED SEPTEMBER 16, 2021

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

TRILAW and Adam R. Trippiedi, Henderson, for Respondent.

American Civil Liberties Union Foundation and Arianna Marie Demas, New York, New York; American Civil Liberties Union of Nevada and Nicole C. Levy, Las Vegas, for Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Nevada.

Law Offices of Clyde DeWitt and Clyde F. DeWitt, Las Vegas, for Amicus Curiae First Amendment Lawyers Association.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, CADISH, J.:

This appeal presents issues concerning the scope of Nevada's anti-SLAPP statutory protections, including what the defendant must show to meet the statute's good faith standard for protected speech, how the statute works with common law-based privileges, and what is required of the plaintiff in terms of showing a probability of prevailing on the merits of his claim in order to proceed. After respondent threatened to sue appellant over a text message that he perceived as defamatory, appellant filed a complaint with the Nevada Real Estate Division (NRED), alleging that respondent acted unprofessionally and unethically in a real estate matter. Respondent filed the underlying tort complaint based on appellant's NRED complaint. Appellant, claiming that the anti-SLAPP statute and absolute litigation privilege protected her from liability, moved to dismiss. The district court denied the motion, concluding that the statements did not meet the good faith standard for protected speech, the litigation privilege did not necessarily apply, and respondent showed a probability of prevailing on the merits of his claims.

On this record, we conclude that appellant met the good faith standard under the anti-SLAPP framework because her statements were either opinions, were truthful, or were made without knowledge of their falsehood, as supported by her sworn affidavit. We further conclude that the absolute litigation privilege applies at the second prong of the anti-SLAPP analysis and that an NRED proceeding is quasi-judicial for purposes of the privilege. As appellant's statements meet the requirements for anti-SLAPP protection and the absolute litigation privilege applies such that respondent cannot prevail on his claims, we reverse.

FACTS AND PROCEDURAL HISTORY

Appellant Daphne Williams, an African-American woman, agreed to purchase a condominium that she was renting from the property owner. Respondent, Charles "Randy" Lazer, a licensed real estate professional, represented the seller in the sale, and Williams acted without an agent. Williams and Lazer had communication problems during the transaction, and after delays in closing, Williams sent Lazer a text stating that she was contemplating filing a complaint with the NRED regarding what she perceived as Lazer's racist, sexist, and unprofessional behavior. Lazer responded to the text by contacting NRED, the seller, Williams's mortgage lender Bryan Jolly,¹ an attorney, and another real estate professional to explain his perception of what occurred. Further, after the sale closed, Lazer sent a demand letter to Williams seeking several thousand dollars and an apology in exchange for not filing a tort action against her based on the text message she sent only to him.

Williams refused the demand and subsequently filed an NRED complaint, alleging that Lazer (1) "displayed unethical, unprofessional, racist and sexist behavior" during the transaction; (2) inappropriately shared confidential information with her about his personal relationship with the seller; (3) contacted the appraiser before the appraisal, which she believed was unethical based on a conversation she had with an NRED employee; (4) falsely claimed that Williams would not allow the seller's movers to enter the condominium to remove the seller's property and that Williams caused delays in closing; (5) failed to send her a fully executed copy of the signed purchase agreement; and (6) had the seller call Williams to encourage her to apologize to Lazer for her text message.²

Lazer then filed the underlying complaint, alleging defamation, negligence, business disparagement, and intentional infliction of emotional distress. Williams filed an anti-SLAPP special motion to dismiss, arguing that the statements contained in her NRED complaint were protected "good faith communication[s] in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." She further argued that her statements were truthful, were made without knowledge of their falsehood, or were opinions, and they were otherwise privileged because they were made in the context of judicial proceedings, such that Lazer could not show a probability of prevailing on his claims. Specifically, as to common law privilege, she argued that NRED is a quasi-judicial body and thus the absolute litigation privilege protects statements made in her NRED complaint. Regardless, she argued, Lazer failed to show minimum merit to his claims.

In opposing the motion, Lazer argued that the anti-SLAPP statutes did not protect Williams's statements because she knew they were false when she made them and he made a prima facie showing of a probability of prevailing on his claims. As to the absolute litigation privilege, he argued that (1) Nevada law does not support that the privilege protects an NRED complaint and public policy justifying applying the privilege to complaints against police officers did not apply to realtors, (2) NRED is not a judicial body, and (3) it was unclear if NRED even contemplated engaging in a quasi-judicial proceeding against Lazer.

The district court denied Williams's anti-SLAPP special motion to dismiss, concluding that she failed to show that she made her statements in good faith, i.e., that they were truthful or made without knowledge of their falsity, but that even if she did, Lazer showed a probability of prevailing on his claims. The court of appeals affirmed. Williams v. Lazer, Docket No. 80350-COA (Order of Affirmance, Nov. 25, 2020). Williams filed a petition for review, which we granted.

DISCUSSION

We review de novo a decision to grant or deny an anti-SLAPP special motion to dismiss. Rosen v. Tarkanian, 135 Nev. 436, 438, 453 P.3d 1220, 1222 (2019). A court must grant an anti-SLAPP special motion to dismiss where (1) the defendant shows, by a preponderance of the evidence, that the claim is based on a "good faith communication in furtherance of... the right to free speech in direct connection with an issue of public concern" and (2) the plaintiff fails to show, with prima facie evidence, a probability of prevailing on the claim. NRS 41.660(3).

Williams satisfied her burden under the first prong of the anti-SLAPP analysis

Williams argues that her statement that Lazer was racist, sexist, unprofessional, and unethical is a non-actionable opinion and that either her remaining factual statements are true or Lazer failed to provide evidence that Williams knew the statements were false when she made them. We agree.

To satisfy the first prong of the anti-SLAPP special motion to dismiss analysis, the defendant must show that (1) "the comments at issue fall into one of the four categories of protected communications enumerated in NRS 41.637" and (2) the communication is made in good faith in that it is "truthful or is made without knowledge of its falsehood." Stark v. Lackey, 136 Nev. 38, 40, 458 P.3d 342, 345 (2020) (quoting NRS 41.637 ). The parties do not dispute that Williams's statements fall within a protected category, i.e., that they were made in furtherance of the right to petition or right to free speech in direct connection with an issue of public concern. Thus, we address only whether Williams made the statements in good faith in order to satisfy the first prong of the anti-SLAPP analysis.

Although the district court's order did not address Williams's argument that her general allegations of racism, sexism, and unprofessional and unethical conduct in her NRED complaint were non-actionable opinions, the record supports that they were. In support of her anti-SLAPP special motion to dismiss, Williams provided a sworn declaration in which she described various problems she encountered in purchasing the condominium and working with Lazer. She stated that Lazer was consistently rude and unprofessional and she had "no doubt in [her] mind" that had she not been an African-American woman, Lazer would have treated her with greater respect and professionalism. She further stated her belief that every statement in her NRED complaint was either true or her reasoned opinion based on her experience with Lazer. Lazer concedes that Williams's allegations of racism and sexism are opinions, and although he challenges her generalized statements that he acted unethically and unprofessionally, those statements were likewise opinion-based. See Stark, 136 Nev. at 43, 458 P.3d at 347 (holding that a defendant's affidavit affirming her statements were true or statements of opinion, in the absence of contradictory evidence in the record, is sufficient to show good faith).

As we have previously observed, opinion statements are incapable of being false, as " ‘there is no such thing as a false idea.’ " Abrams v. Sanson , 136 Nev. 83, 89, 458 P.3d 1062, 1068 (2020) (quoting Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 714, 57 P.3d 82, 87 (2002) ) (observing that statements of opinion are statements made without knowledge of their falsehood for anti-SLAPP purposes). In Abrams, we affirmed a district court order granting the defendant's anti-SLAPP special motion to dismiss, concluding that the challenged statements calling the attorney plaintiff unethical and criticizing her courtroom behavior and methods were...