Opinion
No. 64343
12-16-2013
GIOVANNI VARGAS-ANTIGUA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MICHAEL VILLANI, DISTRICT JUDGE, Respondents, and DIANE GUTIERREZ, Real Party in Interest.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER DENYING PETITION FOR
WRIT OF PROHIBITION OR MANDAMUS
This is an original petition for a writ of prohibition or mandamus challenging a district court order denying petitioner's motion to set aside a default judgment and an oral ruling denying reconsideration of the motion.
This court 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; Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). 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 an arbitrary or capricious exercise of discretion. See NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Writ relief is typically not available, however, when the petitioner has a plain, speedy, and adequate remedy at law. See NRS 34.170; NRS 34.330; Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. Generally, an appeal is an adequate legal remedy precluding writ relief. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 224, 88 P.3d 840, 841 (2004). Whether to consider a writ petition is within this court's discretion. Smith, 107 Nev. at 677, 818 P.2d at 851. Petitioner bears the burden of demonstrating that extraordinary relief is warranted. Pan, 120 Nev. at 228, 88 P.3d at 844.
Having considered the petition and appendix, we deny the petition because petitioner has an adequate legal remedy in the form of an appeal from any adverse judgment. See NRAP 21(b)(1); see also NRS 34.170; NRS 34.330; Pan, 120 Nev. at 228, 88 P.3d at 844.
It is so ORDERED.
_________________, C.J.
Pickering
_________________, J.
Hardesty
_________________, J.
Cherry
cc: Hon. Michael Villani, District Judge
Springel & Fink
Prince & Keating, LLP
Maier Gutierrez Ay on, PLLC
Eighth District Court Clerk