Electronically Filed

8/21/2023 10:05 AM
Steven D.Grierson
CLERK OF THE COURT

1 MOT
BRADLEY S. SCHRAGER, ESQ. (SBN 10217)
2 DANIEL BRAVO, ESQ. (SBN 13078)
BRAVO SCHRAGER LLP
3 6675 South Tenaya Way, Suite 200
Las Vegas, Nevada 89113
4 Tele.: (702) 996-1724
Email: [email protected]
5 Email: [email protected]
Attorneys for Defendants
6

7 IN THE EIGHTH JUDICIAL DISTRICT COURT

8 OF THE STATE OF NEVADA IN AND FOR CLARK COUNTY

9
CLARK COUNTY SCHOOL Case No.: A-23-874996-C
10 DISTRICT,
Dept. No.: 8
11 Plaintiff,

12 vs. HEARING REQUESTED

13 CLARK COUNTY EDUCATION

ASSOCIATION; MARIE NEISESS, in
14 her capacity as President of the Clark DEFENDANTS’ ANTI-SLAPP
County Education Association; JAMES SPECIAL MOTION TO DISMISS
15 FRAZEE, in his capacity as Vice PURSUANT TO N.R.S. 41.660
President of the Clark County
16 Education Association; JOHN
VELLARDITA, in his capacity as
17 Executive Director of the Clark County
Education Association; and DOES 1-10,
18 inclusive,

19 Defendants.

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21 Defendants CLARK COUNTY EDUCATION ASSOCIATION, MARIE

22 NEISESS, JAMES FRAZEE, and JOHN VELLARDITA (collectively, “CCEA” or

23 “Defendants”), by and through undersigned counsel, hereby file their Special Motion

24 to Dismiss under N.R.S. 41.660, which provides for special dismissal of meritless

25 lawsuits brought against defendants for exercising their First Amendment rights.

26 This Motion is based upon the attached memorandum of points and authorities, the
27 papers and pleadings on file herein, and any oral argument permitted by this Court.

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Case Number: A-23-874996-C

 1 This Motion is based on the attached Memorandum of Points and Authorities, all

2 pleadings and papers on file herein, and any oral argument the Court sees fit to allow

3 at time of hearing.

4 MEMORANDUM OF POINTS AND AUTHORITIES

5 I. INTRODUCTION

6 This lawsuit was filed by the District to chill the speech and punish protected

7 activity by members and personnel of CCEA. It was brought on the basis of

8 statements that no rational person could consider actionable or unlawful, or even

9 portending unlawful conduct. It was brought during contentious negotiations for a

10 new collective bargaining agreement (“CBA”), seeking advantage in those talks by

11 sowing dissension and trying to weaken the resolve of public school teachers who at

12 this moment are working under an expired contract. No one could have believed a

13 teachers’ strike was imminent on July 31, when this lawsuit was filed, or that one

14 was imminent when the District demanded its TRO hearing on shortened time, or

15 that one is imminent now. There is no legitimate basis for this lawsuit apart from its

16 potential impact on teachers’ abilities to negotiate a new, fair contract with the

17 District, which makes this a quintessential example of the type of case Nevada’s anti-

18 SLAPP statute is meant to protect against.

19 Every statement serving as a basis for the District’s lawsuit was a

20 “communication made in direct connection with an issue of public interest in a place

21 open to the public or in a public forum.” N.R.S. 41.637(4). Seeking to protect the

22 exercise of fundamental speech rights against meritless and retaliatory suits like the

23 one in question, the Nevada State Legislature passed one of the strongest anti-SLAPP

24 (Strategic Lawsuits Against Public Participation) laws in the country in 2015. See

25 N.R.S. 41.635, et seq. Thus, where a lawsuit such as this is brought against

26 Defendants for their communications, Nevada’s anti-SLAPP law permits Defendants

27 to bring a special motion to dismiss, in response to which the District must meet the

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 1 heavy burden of showing that this case has merit, or risk paying significant legal fees

2 and potential penalties.

3 This Court need not agree with CCEA regarding the District’s motives or

4 intentions in filing this action. It only has to recognize what is obviously true, that

5 the claims in this lawsuit arise from the CCEA’s constitutionally protected free

6 speech, petition, or concerted activity rights. The burden here is not an onerous one,

7 requires only a prima facie showing, and courts will presume the validity of the

8 claimed constitutional right in the first step of its anti-SLAPP analysis. See

9 Symmonds v. Mahoney, 31 Cal. App. 5th 1096, 1103, 243 Cal. Rptr. 3d 445, 452

10 (2019). CCEA’s First Amendment rights must be protected, and the District’s

11 Complaint should be dismissed via this motion.

12 II. STATEMENT OF FACTS

13 CCEA is the bargaining agent representing more than 18,000 licensed public

14 school teachers in Clark County.1 The District is the local government employer of

15 these teachers.2 The CBA between the District and CCEA expired, by its own terms,

16 at the end of the 2022-23 school year. See Ex. 2 to the District’s Application for

17 Temporary Restraining Order and Motion for Preliminary Injunction, at Article 40.

18 The agreement remains in force while the two sides negotiate a new CBA. Clark

19 County’s 2023-24 public school year began on August 7, 2023. Id., at Article 21. At

20 present, therefore, Clark County’s teachers are working without a new contract. As

21 of this writing, there have been 8 scheduled negotiating sessions; the parties have so

22 far failed to reach an accord. See Declaration of John Vellardita, attached hereto as

23 Ex. A

24 On July 31, 2023, the District filed the present lawsuit, seeking to enjoin CCEA

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26 1 NRS 288.134.
27 2 NRS 288.060.
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 1 from engaging in a strike and claiming—as it must, under pertinent law—that a

2 strike was imminent and would occur if the Court did not exercise its equitable

3 powers to intervene with an injunction.

4 On the same day, the District—based on even less “evidence” than in this

5 tissue-thin lawsuit—petitioned the Nevada Employee Management Relations Board

6 (“EMRB”) to withdraw recognition of CCEA as the bargaining agent for the public

7 school teachers of Clark County for having “disavow[ed]” its contractual pledge not to

8 strike. See Ex. A to CCEA’s Opposition to Temporary Restraining Order, at 4. As part

9 of a coordinated legal strategy, therefore, the District sought both the drastic and

10 unwarranted relief of an injunction, and sought from an executive agency what

11 amounts to the death penalty for the democratically-elected labor union representing

12 teachers—all in the midst of ongoing contract negotiations and in period in which

13 those teachers are working without a new agreement.

14 The evidence presented to this Court by the District is meager, and speaks

15 faintly for itself. The Complaint cites plans “to determine what action to take if there

16 is not a contract in place before the school year starts.” Complaint, ¶ 14. It quotes Mr.

17 Vellardita on a mid-July radio show to the effect that “there’ll be some major decisions

18 that our membership will make,” and that “this is really serious because we’ve been

19 told and directed by our membership that, you know, there’s not going to be a school

20 year without a contract.” Id., ¶¶ 15, 16. Not only are these statements all true, they

21 are also and protected speech in furtherance of an issue of public concern: collective

22 bargaining between a public school teachers union and a local government employer.

23 Furthermore, these statements were made in July; the Clark County school year

24 began on August 7, without a strike by teachers.

25 Thereafter, the Complaint cites a single, random email response, to

26 Superintendent Jara, without authentication or further discussion (¶ 18); a re-tweet

27 (¶ 19); a statement by Mr. Vellardita that “nothing was off the table,” (¶ 20); and

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 1 then—somewhat unbelievably, let’s be honest—two anonymous tweets (¶ 21). The

2 District then goes on to cite press statements by Mr. Vellardita that are clearly

3 conditional on future events, and that describe a fluid, if contentious, negotiating

4 context (¶¶ 23-25).

5 That’s it. No evidence of strike preparations. No identification of a resolution

6 to engage in a strike either proposed or laid before CCEA membership for

7 consideration. No evidence of a strike vote, obviously. No instance of any teacher’s

8 refusal to work, anywhere in Clark County. No evidence that the District’s dreaded

9 “work action” has occurred, or that whatever shape a work action may take is

10 unlawful and amounts to a strike. What the District wants is a compliant teachers

11 union, fractured and anxious, against which it can impose its will more easily, and

12 this lawsuit, along with its spurious EMRB Petition, was part of the strategy to

13 achieve that. The District, however, has grievously miscalculated.

14 III. LEGAL STANDARDS

15 According to the Nevada Supreme Court, “[a] SLAPP suit is a meritless lawsuit

16 that a party initiates primarily to chill a defendant’s exercise of his or her First

17 Amendment free speech rights.” Stubbs v. Strickland, 129 Nev. 146, 150, 297 P.3d

18 326, 329 (2013). Nevada’s anti-SLAPP statute, N.R.S. 41.635 et seq., permits a

19 defendant who is subject to a lawsuit “based upon a good faith communication in

20 furtherance of the right to petition or the right to free speech in direct connection

21 with an issue of public concern,” N.R.S. 41.660(3)(a), to file a special motion to dismiss

22 such an action within 60 days of service of the complaint. N.R.S. 41.660(2). This action

23 was filed on July 31, 2023, and therefore this motion is timely.

24 Anti-SLAPP motions are evaluated under a two-stage process: Firstly, the

25 movant must show, by a preponderance of the evidence, that the claim is based on

26 First Amendment activity that comes within the reach of the anti-SLAPP statute. See
27 N.R.S. 41.660(3)(a); see also Rosen v. Tarkanian, 135 Nev. 436, 438, 453 P.3d 1220,

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 1 1223 (2019). If Defendants cannot meet that burden, the inquiry ends and the special

2 motion is dismissed. See Coker v. Sassone, 135 Nev. 8, 10, 432 P.3d 746, 748 (2019).

3 N.R.S. 41.637 defines a “good faith communication,” as used in N.R.S. 41.660,

4 as any one of the following four categories of communications:

5 1. Communication that is aimed at procuring any governmental or

electoral action, result or outcome;
6
2. Communication of information or a complaint to a Legislator,
7 officer or employee of the Federal Government, this state or a
political subdivision of this state, regarding a matter reasonably
8
of concern to the respective governmental entity;
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3. Written or oral statement made in direct connection with an issue
under consideration by a legislative, executive or judicial body, or
10 any other official proceeding authorized by law; or
11 4. Communication made in direct connection with an issue of public
interest in a place open to the public or in a public forum,
12
—which is truthful or is made without knowledge of its falsehood.
13

14 See N.R.S. 41.637(1)-(4).

15 Two statutory categories of protected activity relevant here are

16 communications “made in direct connection with an issue under consideration by a

17 legislative, executive or judicial body, or any other official proceeding authorized by

18 law,” and those “made in direct connection with an issue of public interest in a place

19 open to the public or in a public forum.” N.R.S. 41.637 (3), (4).

20 Nevada has adopted the following guiding principles, referred to by the Nevada

21 Supreme Court as the Shapiro factors, for determining whether an issue is one of

22 public interest or concern:

23 1. ‘public interest’ does not equate with mere curiosity;

24 2. a matter of public interest should be something of concern to a

substantial number of people; a matter of concern to a speaker and
25 a relatively small specific audience is not a matter of public
interest;
26
3. there should be some degree of closeness between the challenged
27 statements and the asserted public interest—the assertion of a
broad and amorphous public interest is not sufficient;
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4. the focus of the speaker’s conduct should be the public interest
2 rather than a mere effort to gather ammunition for another round
of private controversy; and
3
5. a person cannot turn otherwise private information into a matter
4 of public interest simply by communicating it to a large number of
people.
5

6 Smith v. Zilverberg, 137 Nev. 65, 68, 481 P.3d. 1222, 1227 (2021). The Nevada

7 Supreme Court has further defined a “public forum” as “a place that is open to the

8 public or where information is freely exchanged, regardless of whether it is

9 uninhibited or controlled.” Taylor v. Colon, 136 Nev. 434, 440, 468 P.3d 820, 826

10 (2020).

11 Completing the first prong of an anti-SLAPP special motion to dismiss

12 analysis, CCEA must demonstrate that Defendants’ statements were truthful or were

13 made without knowledge of their falsehood. See Coker, 135 Nev. at 12 n.5, 432 P.3d

14 at 750 n.5.

15 If the movant makes its required first-stage showing, then secondly, the

16 burden shifts to the plaintiff, who must offer sufficient evidence to demonstrate that

17 it has a probability of prevailing on its claims. N.R.S. 41.660(3)(b). If the plaintiff

18 cannot meet its burden, the action must be dismissed, and the defendant is entitled

19 to a reasonable award of costs and attorney’s fees, as well as a monetary judgment of

20 up to $10,000. N.R.S. 41.670(1)(a)-(b).

21 Plaintiffs’ probability of prevailing is determined by comparing the evidence

22 presented with the elements of the claims at issue. To prevail on the single

23 declaratory relief claim in its Complaint here, and the prayer for injunctive relief that

24 accompanies it, the District must show, pursuant to N.R.S. 288.705, “that an illegal

25 strike has occurred or unless enjoined will occur.” This it cannot do, and therefore

26 Nevada’s anti-SLAPP statutes require dismissal of the action in its entirety, with fees
27 and costs to be levied against the District.

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 1 IV. ARGUMENT

2 A. The District’s Lawsuit Is Based On Protected Activity That

Comes Within The Reach Of The Anti-SLAPP Statute
3

4 The entire basis for the District’s suit is that it alleges that CCEA threatened

5 a teachers’ strike in a manner sufficiently imminent that it will occur absent this

6 Court’s intervention. It arrives at this conclusion because of statements by CCEA

7 personnel it has cited, tweets and re-tweets by anonymous persons it has collected,

8 and email responses it has singled out from among the 18,000 members of the

9 teachers’ union. The statements attributed to Defendants here are both protected

10 First Amendment speech and in furtherance of concerted activity protected not only

11 by the United States Constitution but also by federal law. Clearly, the District’s claim

12 arises from acts of speech, which brings the targets of the lawsuit under the

13 protections of Nevada’s anti-SLAPP statutes.

14 1. The lawsuit arises from statements made in direct

connection with an issue under consideration by an
15 executive body, and an official proceeding authorized by
law
16

17 The challenged statements all arise in connection with negotiations between

18 CCEA and the District. The District is an executive body, and a local government

19 employer under N.R.S. 288.060. The statements the District uses to ground its claim

20 for relief were made in connection with an issue under consideration by this executive

21 body, namely process of establishing a new collective bargaining agreement between

22 a school district and its unionized teachers. The statutorily-mandated bargaining

23 process between this local government employer and CCEA is an official proceeding

24 authorized by law, under N.R.S. 288.500 et seq. N.R.S. 41.637(3) applies, therefore,

25 to bring this matter under anti-SLAPP protections.

26 / / /
27 / / /

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 1 2. The suit challenges core political speech in direct
connection with an issue of public interest
2

3 An application of the Shapiro factors to Defendants’ statements also indicates

4 they merit anti-SLAPP protection. It is inarguable that the progress of negotiations

5 between the fifth-largest school district in the country and its teachers is a

6 “something of concern to a substantial number of people”—not only the 18,000+

7 teachers who belong to CCEA, but the students and parents of Clark County, to say

8 nothing of the health of a school system upon which the education of its future leaders

9 and citizens depends. Smith, 137 Nev. at 68. The “degree of closeness between the

10 challenged statements and the asserted public interest” is manifest; the statements

11 sit at the heart of the ongoing, contentious negotiations over a new CBA. Id. The

12 “focus of the speaker’s conduct” here is “the public interest rather than a mere effort

13 to gather ammunition for another round of private controversy,” because each

14 challenged statement concerns the potential for and possibility of reaching an

15 agreement with the District—or not, as the case may be—but in no way is it related

16 to some parochial, personal, or private controversy. Id. Neither is the potential for

17 good or bad labor relations between the District and CCEA a matter of “mere

18 curiosity,” or the twisting of “otherwise private information into a matter of public

19 interest.” Id.

20 Furthermore, the District’s allegations make clear that any challenged

21 statements were made in public fora, pursuant to Taylor. Each of them, at least any

22 attributed to Defendants, were made in press conferences or in press interviews on

23 widely-available media platforms or outlets.

24 3. Every challenged statement by a Defendant is truthful or

made without knowledge of its falsehood
25

26 This is not an anti-SLAPP motion to dismiss brought in the context of a

27 defamation suit, and therefore the requirement that challenged statements be found

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 1 either true or made without knowledge of falsity as part of the public interest analysis

2 is not as important as it would be otherwise. But anti-SLAPP protections apply in

3 any circumstance where a lawsuit is strategically brought to chill or diminish public

4 participation, and a meritless action brought to enjoin lawful, concerted union

5 activity fits that bill. To meet the express terms of the N.R.S. 41.637, Defendants

6 have included the declaration of Mr. Vellardita here as Ex. A, attesting to the truth—

7 and lack of knowledge of the falsity—of any and all the challenged statements.

8 * * *

9 Defendants have made the requisite showing under the first stage of an anti-

10 SLAPP analysis. The burden now shifts to the District to offer sufficient evidence to

11 demonstrate that it has a probability of prevailing on its claims

12 B. The District Cannot Demonstrate A Probability Of Prevailing

On Its Claims
13

14 Because the District’s lawsuit falls squarely within Nevada’s anti-SLAPP

15 statute, it bears the burden of making a prima facie showing that its claims satisfy

16 all of the elements of N.R.S. 288.705 and that it is likely to succeed on the merits. To

17 avoid dismissal, the District must present “prima facie evidence a probability of

18 prevailing on the claim.” N.R.S. 41.660 (3)(b). The District cannot meet this burden

19 and its Complaint should be dismissed.

20 The statute under which the District has brought suit, N.R.S. 288.705 requires

21 this Court to make a finding that a strike “will occur … unless enjoined.” Id. In its

22 lawsuit and subsequent motions, however, not only does the District fail point to any

23 actual evidence supporting such a finding—no strike vote, no strike resolution, no

24 conduct supporting strike activity of any kind—its case is undermined entirely by its

25 own arguments.

26 The Complaint, as described supra at 4, points to press interviews or

27 statements that in no way establish the imminence of a teachers’ strike, such that

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 1 this Court has to act to forestall immediate and impending harm. This lawsuit was

2 filed on July 31; it is now August 22, and no strike has materialized, and is no more

3 threatened now than it was when the District filed it. Multiple times in its motion

4 filings, the District quotes CCEA officials or says outright itself that any threat of

5 harm is entirely speculative, and in no way imminent:

6 “CCEA members planned to meet on July 29, 2023 ‘to determine

what action to take if there is not a contract in place before the
7 school year starts.’” TRO App., at 6.

8 “If we do not have an agreement with the School District by August

26th, our members will be taking a vote …” Id., at 8.
9
“[I]f there is no contract in place by August 26th, we will have
10 another membership meeting …” Id.

11 “Our outlook is to have a ratification meeting with a new

contract on August 26th, but our membership was clear that if we
12 don’t, we will engage in our plan of action.” Id.

13 Each of these statements, taken directly from the District’s own filings, is clearly

14 conditional depending upon future events. Rather than indicating decisions made,

15 they indicate decisions to come. Rather than basing future decisions on conditions

16 today, they are based on conditions that may emerge later, depending on the status

17 of contract talks. This is entirely commonplace, and provides no sort of evidence that

18 a strike will occur in the absence of an injunction.

19 CCEA incorporates here, by reference, its merits arguments made in its

20 opposition to the District’s application for a temporary restraining order and motion

21 for preliminary injunction. The District could not establish a likelihood of success in

22 its claim regarding the imminence of a strike then, and it cannot do so now. This

23 Court cannot find a likelihood that a strike will occur if it does not enjoin CCEA, and

24 therefore the District cannot meet its burden in the second prong of the required

25 analysis in anti-SLAPP special motion to dismiss.

26 V. CONCLUSION
27 The District brought this lawsuit against Defendants for political rather than

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1 legal purposes. The challenged statements were unquestionably protected speech and

2 conduct concerning an issue of public interest, falling squarely within the reach of

3 Nevada’s anti-SLAPP statute. Because The District cannot show that it is likely to

4 prevail on the merits of its claims, Defendants are entitled to an order of dismissal,

5 as well as their reasonable attorney’s fees.

7 DATED this 21st day of August, 2023.

9 BRAVO SCHRAGER LLP

10

11 By: /s/ Bradley S. Schrager

BRADLEY S. SCHRAGER, ESQ. (SBN 10217)
12 DANIEL BRAVO, ESQ. (SBN 13078)
6675 South Tenaya Way, Suite 200
13 Las Vegas, Nevada 89113
Tele.: (702) 996-1724
14 Email: [email protected]
Email: [email protected]
15 Attorneys for Defendants
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1 CERTIFICATE OF SERVICE

2 I hereby certify that on this 21st day of August, 2023, a true and correct copy

3 of DEFENDANTS’ ANTI-SLAPP SPECIAL MOTION TO DISMISS

4 PURSUANT TO N.R.S. 41.660 was served by electronically filing with the Clerk of

5 the Court using the Odyssey eFileNV system and serving all parties with an email-

6 address on record, pursuant to Administrative Order 14-2 and Rule 9 of the

7 N.E.F.C.R.

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By: /s/ Dannielle Fresquez
10 Dannielle Fresquez, an Employee of
BRAVO SCHRAGER LLP
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EXHIBIT A
 1 DECL
BRADLEY S. SCHRAGER, ESQ. (SBN 10217)
2 DANIEL BRAVO, ESQ. (SBN 13078)
BRAVO SCHRAGER LLP
3 6675 South Tenaya Way, Suite 200
Las Vegas, Nevada 89113
4 Tele.: (702) 996-1724
Email: [email protected]
5 Email: [email protected]
Attorneys for Defendants
6
7 IN THE EIGHTH JUDICIAL DISTRICT COURT
8 OF THE STATE OF NEVADA IN AND FOR CLARK COUNTY
9
CLARK COUNTY SCHOOL Case No.: A-23-874996-C
10 DISTRICT,
Dept. No.: 8
11 Plaintiff,
12 vs. DECLARATION OF JOHN
VELLARDITA IN SUPPORT OF
13 CLARK COUNTY EDUCATION ANTI-SLAPP SPECIAL MOTION
ASSOCIATION; MARIE NEISESS, in TO DISMISS UNDER N.R.S. 41.660
14 her capacity as President of the Clark
County Education Association; JAMES
15 FRAZEE, in his capacity as Vice
President of the Clark County
16 Education Association; JOHN
VELLARDITA, in his capacity as
17 Executive Director of the Clark County
Education Association; and DOES 1-10,
18 inclusive,
19 Defendant.
20
21 DECLARATION OF JOHN VELLARDITA
22 I, John Vellardita, under penalty of perjury, declare as follows:
23 1. I am the Executive Director of Clark County Education Association
24 (hereinafter “CCEA”), and a defendant in this action.

25 2. I make this declaration of personal, firsthand knowledge and, if called

26 and sworn as a witness, I could and would testify competently thereto. I have personal
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 1 knowledge of the facts stated herein and submit this Declaration in support of
2 Defendants’ Anti-Slapp Special Motion to Dismiss Under N.R.S. 41.660.

3 3. CCEA is the bargaining agent representing more than 18,000 licensed

4 public school teachers in Clark County. Plaintiff Clark County School District (the
5 “District”) is the local government employer of these teachers.
6 4. The collective bargaining agreement (“CBA”) between the District and
7 CCEA expired at the end of the 2022-23 school year, and it remains in force while
8 CCEA and the District negotiate a new CBA. Clark County’s 2023-24 public school
9 year began on August 7, 2023.
10 5. As of this writing, there have been 8 negotiating sessions, but the parties
11 have so far failed to reach an accord on a new CBA.
12 6. I have read the Complaint filed in this action, including the statements
13 it quotes from two media interviews, on or about July 12, 2023 and July 20, 2023, and
14 the July 29, 2023 press conference I participated in.
15 7. The statements I made at the interviews and press were truthful to the
16 best of my knowledge, and I made no statements that I knew to be false.
17 Under penalty of perjury under the laws of the United States of America and
18 the State of Nevada, I declare that the foregoing is true and correct to my own
19 knowledge.
20
21 Dated: August 20, 2023 /s/ John Vellardita
John Vellardita
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