Opinion
No. 72130
01-20-2017
KENNETH BERBERICH, TRUSTEE, ON BEHALF OF 4499 WEITZMAN PLACE TRUST, A NEVADA TRUST, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JOANNA KISHNER, DISTRICT JUDGE, Respondents, and SOUTHERN HIGHLANDS COMMUNITY ASSOCIATION, A NEVADA NON-PROFIT CORPORATION; MTC FINANCIAL INC., A CALIFORNIA CORPORATION REGISTERED IN NEVADA; OLYMPIA MANAGEMENT SERVICES, LLC, A NEVADA LIMITED LIABILITY CORPORATION; FEDERAL HOME LOAN MORTGAGE CORPORATION, A FEDERALLY CHARTERED CORPORATION; AND CAM REAL ESTATE XIV, LLC, A DELAWARE LIMITED LIABILITY COMPANY, Real Parties in Interest.
ORDER DENYING PETITION FOR WRITS OF MANDAMUS AND PROHIBITION
This is an original petition for writs of mandamus and prohibition challenging the district court's decision to strike various documents in the underlying case.
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion. See NRS 34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). We may issue a writ of prohibition to arrest the proceedings of a district court exercising its judicial functions when such proceedings are in excess of the district court's jurisdiction. See NRS 34.320. Neither mandamus nor prohibition will issue when the petitioner has a plain, speedy, and adequate remedy at law. NRS 34.170; NRS 34.330. Both mandamus and prohibition are extraordinary remedies, and whether a petition for extraordinary relief will be considered is solely within our discretion. See Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991). It is petitioner's burden to demonstrate that our extraordinary intervention is warranted. See Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
Based on our review of the petition and supporting documents, we conclude that petitioner has not demonstrated that our intervention by way of extraordinary writ relief is warranted. Notably, to the extent petitioner suggests that the district court's decision to strike documents that were filed in the underlying case will somehow interfere with his ability to obtain effective appellate review by rendering him unable to provide or reference those documents to an appellate court, that argument lacks merit. Indeed, in asserting that these documents were improperly stricken, petitioner has included and referenced file-stamped copies of certain of these documents in the appendix submitted in support of this petition, demonstrating that he would likewise be able to provide the documents in any appeal from the underlying action.
And with regard to petitioner's challenge to the striking of these documents, given the procedural posture of this matter, we conclude that petitioner has a speedy and adequate remedy available in the form of an appeal from the final judgment in the underlying case, such that our intervention by way of extraordinary writ relief is not warranted. See NRS 34.170; NRS 34.330; Pan, 120 Nev. at 224, 88 P.3d at 841 (providing that an appeal is generally a speedy and adequate remedy that precludes writ relief). Accordingly, we
In light of our resolution of this matter, we deny as moot petitioner's emergency motion for stay. --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Joanna Kishner, District Judge
Brauer, Driscoll, Sun and Associates LLC
Aldridge Pite, LLP
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas
Burke, Williams & Sorensen, LLP
Kemp, Jones & Coulthard, LLP
Eighth District Court Clerk