________________________________________________________________
`IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`Docket No. 85020
`
`Electronically Filed
`Aug 01 2022 03:17 p.m.
`District Court Case No.: A-19-799469-C
`Elizabeth A. Brown
`________________________________________________________________
`Clerk of Supreme Court
`
`ELITE INVESTIGATIONS, LLC, a Nevada corporation; JONATHAN E.
`GIRARD, a Nevada citizen, individually; XAVIER SEDILLO, a Nevada
`citizen, individually,
`
`Petitioners;
`v.
`
`THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
`NEVADA ex rel. The County of Clark, and the Honorable Jim Crockett,
`Senior Judge,
`
`Respondents.
`
`AIDEN DIAZ-TOLER, individually, JENNIFER VILLAFANA, individually,
`Plaintiffs/ Real Parties in Interest
`And
`TERAFLEX, INC., a Utah corporation, Defendant/ Real Party in Interest
`________________________________________________________________
`
`MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING
`RESOLUTION OF PETITION FOR WRIT OF MANDAMUS OR
`ALTERNATIVELY, WRIT OF PROHIBITION
`__________________________________________________
`
`BRIAN K. WALTERS, ESQ.
`Nevada Bar No. 9711
`GORDON REES SCULLY MANSUKHANI, LLP
`300 South 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Telephone: (702) 577-9300
`Facsimile: (702) 255-2858
`E-Mail: bwalters@grsm.com
`Attorneys for Petitioners ELITE INVESTIGATIONS, LLC, JONATHAN E.
`GIRARD AND XAVIER SEDILLO
`
`Docket 85020 Document 2022-24083
`
`

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`I.
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`RELIEF REQUESTED
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`
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`Pursuant to NRAP 8(a) and 27, Defendants Elite Investigations, LLC,
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`Jonathan E. Girard (“Girard”) and Xavier Sedillo (“Sedillo”) (collectively,
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`“Investigators”) respectfully request an order staying the district court proceedings
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`giving rise to their July 18, 2022 Petition for Writ of Mandamus or Alternatively,
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`Writ of Prohibition. (“Writ Petition”). Investigators request that the stay be granted
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`to prevent the district court case from proceeding before this Court has an
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`opportunity to consider the critical issues presented by Investigators’ Writ Petition.
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`II. RELEVANT BACKGROUND
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`
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`Investigators’ Writ Petition challenges the district court’s June 14, 2022
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`order denying their motion to dismiss Plaintiffs’ Second Amended Complaint
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`based on the absolute litigation privilege. The Writ Petition contains a detailed
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`factual and procedural history leading up to the instant Motion. (Writ Petition, pgs.
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`3-11). Rather than repeating the voluminous factual and procedural history here,
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`Investigators incorporate by reference that portion of their Writ Petition.
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`
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`On July 8, 2022, Investigators filed their Motion to Stay in the district court.
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`(Motion to Stay, a true and correct copy attached hereto as Ex. “1”). On August 1,
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`2022, the district court entered its order denying Investigators’ Motion to Stay,
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`citing only to “the procedural posture of the case.” (Notice of Entry of Order dated
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`August 1, 2022, a true and correct copy attached hereto as Ex. “2”). Therefore,
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`Investigators have satisfied their obligation to “move first in the district court” for
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`a stay pursuant to NRAP 8(a)(1)(A).
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`Discovery has yet to commence as to Plaintiffs’ Second Amended
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`Complaint. As such, the case is still in its infancy as it relates to Plaintiffs’ claims
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`against Investigators. A stay of proceedings will therefore not be disruptive to any
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`district court proceedings.
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`III. STANDARD OF REVIEW
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`When deciding whether to stay a district court’s proceedings, this Court will
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`generally consider the following factors:
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`(1) [W]hether the object of the appeal or writ petition will be defeated
`if the stay or injunction is denied; (2) whether appellant/petitioner will
`suffer irreparable or serious injury if the stay or injunction is denied;
`(3) whether respondent/real party in interest will suffer irreparable or
`serious injury if the stay or injunction is granted; and (4) whether
`appellant/petitioner is likely to prevail on the merits in the appeal or
`writ petition.
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`Hansen v. Eighth Judicial Dist. Court, 116 Nev. 650, 657, 6 P.3d 982, 986 (2000).
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`IV. LEGAL ARGUMENTS
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`
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`Investigators respectfully submit that all of the Hansen/ NRAP 8(c) factors
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`weigh in favor of a stay of the district court proceedings under the circumstances.
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`A. Denial of the Stay Will Defeat the Object of the Writ Petition.
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`The object of Investigators’ Writ Petition is to challenge the district court’s
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`decision allowing the case to proceed despite the fact that Plaintiffs’ claims are
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`predicated on communications and conduct that occurred during and/ or
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`preliminary to court proceedings. (See Second Amended Complaint dated April 13,
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`2022, ¶¶ 13-16; 51; 57; 59; 62; 64; 69; 72; 87-88; 114-116, a true and correct copy
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`attached hereto as Ex. “3”).
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`
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`This Court has recognized “the long-standing common law rule that
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`communications uttered or published in the course of judicial proceedings are
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`absolutely privileged” rendering those who made the communications immune
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`from civil liability. See Fink v. Oshins, 118 Nev. 428, 433-434, 49 P.3d 640, 643-
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`644 (2002) (citation omitted)) (“This privilege, as its name indicates, is
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`absolute…” and “quite broad”). Further, this Court recently recognized that the
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`privilege is not just a defense to defamation, but also applies to “other tort
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`claims…” Williams v. Lazer, 137 Nev. Adv. Op. 44, 495 P.3d 93, 100 (2021)
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`(“The absolute litigation privilege is rooted in a rich body of common law as a
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`defense to defamation and other tort claims…”). (Emphasis added).
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`Since the object of the Writ Petition will become moot if this Court does not
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`stay the district court proceedings, a stay is appropriate to permit this Court to
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`determine whether Investigators are immune from civil liability based on the
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`absolute litigation privilege. See Fink, 118 Nev. at 432–33, 434, 49 P.3d at 643-
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`644.
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`/ / /
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`B.
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`Investigators will Suffer Serious Injury if the Stay is Denied.
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`A stay is justified because Investigators will suffer serious injury if the stay
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`is denied. “An absolute privilege is an immunity, which protects against even the
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`threat that a court or jury will inquire into a communication.” See Hampe v. Foote,
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`47 P.3d 438, 440 (Nev. 2002) (addressing scope of privilege afforded under NRS
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`463.3407), abrogated on other grounds by Buzz Stew, LLC, 181 P.3d 670 (Nev.
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`2008). If a stay is not granted, discovery will commence, and Plaintiffs will be
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`permitted to inquire into communications that occurred preliminary to or during
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`judicial proceedings.
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`Importantly, Plaintiffs alleged that “both Defendant Girard and Defendant
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`Sedillo committed demonstrable perjury…” (E.g. Ex. 3, ¶ 69). Should discovery
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`proceed, Investigators will be put in a position in which they may be required to
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`assert their Fifth Amendment rights against self-incrimination, thereby
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`compromising their ability to defend against Plaintiffs’ claims. The “exercise of
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`Fifth Amendment rights should not be made unnecessarily costly.” Spevack v.
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`Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).
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`
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`Discovery should not proceed until this Court has an opportunity to examine
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`the important issues related to the absolute litigation privilege presented by
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`Investigators’ Writ Petition. Investigators will suffer serious and potentially
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`irreparable injury if the requested stay is denied. This factor likewise militates in
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`favor of a stay.
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`C.
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`Plaintiffs Will Suffer No Injury if the Stay is Granted.
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`Since this case is in its infancy with respect to Plaintiffs’ Second Amended
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`Complaint against Investigators, there is no legitimate argument that Plaintiffs will
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`be injured, let alone seriously or irreparably injured, by a stay of the district court
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`proceedings. Therefore, this factor also weighs in favor of a stay.
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`D.
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`Investigators Present a “Substantial Case on the Merits.”
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`While “a movant does not always have to show a probability of success on
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`the merits,” the movant must “present a substantial case on the merits when a
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`serious legal question is involved and show that the balance of equities weighs
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`heavily in favor of granting the stay.” Hansen, 116 Nev. at 659, 6 P.3d at 987
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`citing Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). Here, Investigators present
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`a substantial case on the merits and their Writ Petition addresses serious and
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`important legal questions regarding the scope of the absolute litigation privilege.
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`1.
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`The privilege bars Plaintiffs’ Invasion of Privacy claim.
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`Plaintiffs’ cause of action for invasion of privacy is based on the allegation
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`that Sedillo, as an “investigator/agent working for the defense”, “contacted
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`[Plaintiffs] under false pretenses on the driveway of [their] home.” (Ex. 3, ¶¶ 87-
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`88). This alleged conduct occurred while Sedillo was conducting surveillance of
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`Plaintiffs “[a]t the direction of defense counsel.” (Ex. 3, ¶ 13). Plaintiffs also allege
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`that an invasion of their privacy occurred when Sedillo “followed Plaintiffs into a
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`hospital and eavesdropped on a conversation between Plaintiffs and hospital
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`employees…” (Ex. 3, ¶ 13-14; 0615, ¶ 52). This alleged conduct also occurred
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`“[a]t the direction of defense counsel.” (Ex. 3, ¶ 13).
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`
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`This Court has observed that the privilege extends to “other tort claims…”
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`Lazer, 137 Nev. Adv. Op. 44, 495 P.3d at 100, but it has not specifically addressed
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`whether it extends to a claim for invasion of privacy. However, the California
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`Supreme Court has held that “…the litigation privilege bars all common law and
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`statutory causes of action for invasion of privacy.” Jacob B. v. Cnty. of Shasta, 40
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`Cal. 4th 948, 962 (2007). When there is no Nevada precedent on an issue, this
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`Court frequently looks to California precedent for guidance. E.g. Patin v. Ton Vinh
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`Lee, 134 Nev. 722, 724, 429 P.3d 1248, 1250 (2018).
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`
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`The district court committed clear error in its insistence that the privilege
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`does not apply to “misconduct” such as Plaintiffs’ alleged invasions of privacy:
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`THE COURT: That’s where we disagree. I think that -- I don’t think
`-- I don’t agree with you when you say that the absolute litigation
`privilege covers misconduct…
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`(Transcript of Hearing on Investigators’ Motion to Dismiss, a true and correct copy
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`attached hereto as Ex. “4”, pg. 9). The district court’s mistaken belief that the
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`privilege does not extend to “misconduct” influenced its decision to deny
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`Investigators’ Motion. (Ex. 4, pgs. 8-10; 22-23). In doing so, the district court
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`disregarded this Court’s directive to apply the privilege “broadly.” See Clark
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`County Sch. Dist. v. Virtual Educ. Software, Inc. (“VESI”), 125 Nev. 374, 382, 213
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`P.3d 496, 502 (Nev. 2009). Investigators have presented a “substantial case on the
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`merits” in support of their argument that the absolute litigation privilege bars their
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`claim for Invasion of Privacy. Hansen, 116 Nev. at 659.
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`2.
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`The privilege bars Plaintiffs’ Defamation and Negligent
`Misrepresentation claims.
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`It is a “long-standing common law rule that communications [made] in the
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`course of judicial proceedings [even if known to be false] are absolutely
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`privileged.” Circus Circus Hotels, 99 Nev. 60, 657 P.2d at 104. The privilege
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`affords non-lawyers and parties “…the same protection from liability as those
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`protections afforded to an attorney for defamatory statements made during, or in
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`anticipation of, judicial proceedings.” VESI, 125 Nev. at 383, 213 P.3d at 502
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`citing REST. (2ND) OF TORTS § 587 cmt. d (1977).
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`
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`There is no dispute that Plaintiffs’ Defamation and Negligent
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`Misrepresentation Claims are based on testimony made during deposition, court
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`hearings, and meetings “preliminary to” depositions and court hearings. Plaintiffs
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`allege that the purported “contentions” (Ex. 3, ¶¶ 98; 106) made by Sedillo
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`underlying their Defamation and Negligent Misrepresentation claims were
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`communicated “during his March 12, 2022 deposition”, “as the second witness at
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`the evidentiary hearing”, and “during the second day of the evidentiary hearing”
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`(Ex. 3, ¶¶ 51; 59; 64; 72). Similarly, Plaintiffs cited to an Affidavit that Girard
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`submitted in support of a court filing, statements made “during his testimony” and
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`“when testifying.” (Ex. 3, ¶¶ 43; 57; 69). In doing so, Plaintiffs cited to specific
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`testimony from deposition and court hearing transcripts. (Ex. 3, ¶¶ 57; 59; 64-65;
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`68). Plaintiffs also allege that Investigators “…made such contentions…in
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`meetings with other employees of Defendant Elite Investigations and with other
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`persons, including but not limited to counsel for TeraFlex.” (Ex. 3, ¶ 98).
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`Nevertheless, the district court refused to apply the privilege to Plaintiffs’
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`Defamation and Negligent Misrepresentation claims. Rather than apply the
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`privilege broadly, as it was required to do, it erroneously narrowed its application:
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`It’s an absolute litigation privilege as to actions for defamation arising
`out of claims about things that were said during the course of or in
`furtherance of litigation by people connected with the litigation in a
`position to be advocating for or against a claim. So, I think that the
`defendant has a pretty inflated view of exactly how far that privilege
`goes.
`
`(Ex. 4, pg. 4) (Emphasis added).
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`
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`Narrowing the privilege to statements made by those “…in a position to be
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`advocating for or against a claim” was clear error. (Ex. 4, pg. 4). The district court
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`also refused to apply the privilege based on its belief that the subject defamatory/
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`negligent “contentions” (Ex. 3, ¶ 98; 106) were “evidence of misconduct.” (Ex. 4,
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`pgs. 8-10). Refusing to enforce the absolute litigation privilege on such grounds
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`was also clear error.
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`The privilege applies to all of the “contentions” that form the basis of
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`Plaintiffs’ Defamation and Negligent Misrepresentation claims. The district court
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`manifestly abused its discretion by limiting the privilege to statements made by
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`someone “…in a position to be advocating for or against a claim.” (Ex. 4, pg. 4).
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`Nevertheless, an “investigator/ agent working for the defense” “[a]t the direction of
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`defense counsel” (Ex. 3, ¶¶ 13; 87-88) is in a position to be advocating against a
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`claim. Investigators have presented a “substantial case on the merits” in support of
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`their argument that the absolute litigation privilege bars Plaintiffs’ claims for
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`Defamation and Negligent Misrepresentation. Hansen, 116 Nev. at 659.
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`3.
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`The privilege bars Plaintiffs’ Civil Conspiracy claim.
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`Investigators present a substantial case on the merits that the absolute
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`litigation privilege bars Plaintiffs’ Civil Conspiracy claim because said claim is
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`based on communications and conduct preliminary to court proceedings. (See Ex.
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`3, ¶ 114). According to the Second Amended Complaint, the alleged conduct
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`occurred as part of or in furtherance of Investigators’ surveillance of Plaintiff that
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`was performed “[a]t the direction of defense counsel” as an “investigator/agent
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`working for the defense.” (Ex. 3, ¶ 13).
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`As discussed, the privilege applies to “other tort claims…” Lazer, 137 Nev.
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`Adv. Op. 44, 495 P.3d at 100 and “[t]he scope of the absolute privilege is quite
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`broad.” Fink, 118 Nev. at 433, 49 P.3d at 644. While this Court has not
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`specifically extended the privilege to a civil conspiracy claim, California courts
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`have done so. E.g. Pettitt v. Levy, 104 Cal. Rptr. 650, 653 (Ct. App. 1972).
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`
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`All of the conduct and communications underlying Plaintiffs’ Civil
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`Conspiracy claim were “preliminary to” “proposed judicial proceeding[s].” See
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`REST. (2D) OF TORTS § 588 (1977). The district court was required to apply the
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`privilege broadly and failed to do so. Investigators present a “substantial case on
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`the merits” that the absolute litigation privilege bars Plaintiffs’ Civil Conspiracy
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`claim. Hansen, 116 Nev. at 659.
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`V. CONCLUSION
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`
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`Based on the foregoing, Investigators request an order staying the district
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`court proceedings giving rise to their Petition for Writ of Mandamus or
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`Alternatively, Writ of Prohibition
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`
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`Dated this 1st day of August 2022.
`
`GORDON REES SCULLY
`MANSUKHANI, LLP
`
`
`/s/ Brian K. Walters
`BRIAN K. WALTERS, ESQ.
`Nevada State Bar No. 9711
`300 South 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Attorneys for Elite Investigations, Inc.,
`Jonathan Girard, and Xavier Sedillo
`
`
`
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`CERTIFICATE OF COMPLIANCE
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`1. I hereby certify that this brief complies with the formatting requirements
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`of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style
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`requirements of NRAP 32(a)(6) because:
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`[X] This brief has been prepared in a proportionally spaced typeface using
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`MS Office Professional Plus 2016 in Times New Roman 14; or
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`[ ] This brief has been prepared in a monospaced typeface using [state name
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`and version of word processing program] with [state number of characters per
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`inch and name of type style].
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`2. I further certify that this brief complies with the page- or type-volume
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`limitations of NRAP 32(a)(7) because, excluding the parts of the brief exempted by
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`NRAP 32(a)(7)(C), it is either:
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`[ ] Proportionately spaced, has a typeface of 14 points or more and contains
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`____ words (not including disclosure statement, table of contents, table of
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`authorities, required certificate of service and compliance with rules, and any
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`addendum containing statutes, rules, or regulations); or
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`[X] Does not exceed 10 pages.
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`3. Finally, I hereby certify that I have read this appellate brief, and to the
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`best of my knowledge, information, and belief, it is not frivolous or interposed for
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`any improper purpose. I further certify that this brief complies with all applicable
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`Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires
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`every assertion in the brief regarding matters in the record to be supported by a
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`reference to the page and volume number, if any, of the transcript or appendix
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`where the matter relied on is to be found. I understand that I may be subject to
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`sanctions in the event that the accompanying brief is not in conformity with the
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`requirements of the Nevada Rules of Appellate Procedure.
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` Dated this 1st day of August 2022.
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`GORDON REES SCULLY
`MANSUKHANI, LLP
`
`
`/s/ Brian K. Walters
`BRIAN K. WALTERS, ESQ.
`Nevada State Bar No. 9711
`300 South 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Attorneys for Elite Investigations, Inc.,
`Jonathan Girard, and Xavier Sedillo
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on the 1st day of August, 2022, I served a true
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`and correct copy of the MOTION TO STAY DISTRICT COURT
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`PROCEEDINGS PENDING RESOLUTION OF PETITION FOR WRIT OF
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`MANDAMUS OR ALTERNATIVELY, WRIT OF PROHIBITION via
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`electronic service as possible to the following, and via US First Class Mail postage
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`prepaid to the addresses listed:
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`Will Kemp, Esq.
`Eric Pepperman, Esq.
`KEMP JONES & COULTHARD, LLP
`3800 Howard Hughes Parkway, 17th Floor
`Las Vegas, NV 89169
`a.hayslett@kempjones.com
`Attorneys for Plaintiff Jennifer Villafana,
`individually
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`Theodore Parker, II, Esq.
`PARKER NELSON & ASSOCIATES
`2460 Professional Court, Suite 200
`Las Vegas, NV 89126
`tparker@tnalaw.net
`Attorney for Plaintiff Aiden Diaz-Toler,
`individually
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`Honorable Jim Crockett
`Senior Judge
`Eighth Judicial District Court
`200 Lewis Avenue
`Las Vegas, NV 89155
`
`Honorable Linda Marie Bell
`Eighth Judicial District Court
`Department VII
`200 Lewis Avenue
`Las Vegas, NV 89155
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`Honorable Jerry A. Wiese, II
`Eighth Judicial District Court
`Department VII
`200 Lewis Avenue
`Las Vegas, NV 89155
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`
`
`/s/ Gayle Angulo
`An Employee of GORDON
`REES SCULLY
`MANSUKHANI, LLP
`
`James E. Murphy, Esq.
`Stephanie A. Garabedian, Esq.
`LEWIS BRISBOIS BISGAARD &
`SMITH LLP
`6385 S. Rainbow Blvd., Suite 600
`Las Vegas, NV 89118
`James.Murphy@lewisbrisbois.com
`Stephanie.Garabedian@lewisbrisbois.com
`Attorneys for Defendant TeraFlex, Inc.
`Counsel for Real Parties in Interest
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`EXHIBIT “1”
`EXHIBIT “1”
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`ELECTRONICALLY SERVED
`7/8/2022 3:29 PM
`
`
`
`MSTY
`BRIAN K. WALTERS, ESQ.
`Nevada Bar No. 9711
`GORDON REES SCULLY MANSUKHANI, LLP
`300 So. 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Telephone: (702) 577-9300
`Facsimile: (702) 255-2858
`E-Mail: bwalters@grsm.com
`
`Attorneys for Elite Investigations, Inc.,
`Jonathan Girard, and Xavier Sedillo
`
`
`
`EIGHTH JUDICIAL DISTRICT COURT
`
`CLARK COUNTY, NEVADA
`
`
`
` AIDEN DIAZ-TOLER, individually, JENNIFER
`VILLAFANA, individually,
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`
`
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`Plaintiffs,
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`vs.
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`ELITE INVESTIGATIONS, LLC, a Nevada
`corporation; JONATHAN E. GIRARD, a Nevada
`citizen, individually; XAVIER SEDILLO, a
`Nevada citizen, individually; TERAFLEX, INC., a
`Utah corporation,
`
` CASE NO. A-19-799469-C
`DEPT. NO. 7
`
`
`DEFENDANTS ELITE
`INVESTIGATIONS, INC.,
`JONATHAN GIRARD, AND
`XAVIER SEDILLO’S MOTION TO
`STAY PROCEEDINGS PENDING
`RESOLUTION OF WRIT OF
`MANDAMUS AND REQUEST
`FOR ORDER SHORTENING
`TIME
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`
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`
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`Defendants.
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`
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`Defendants Elite Investigations, Inc. (“Elite”), Jonathan Girard (“Girard”), and Xavier
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`Sedillo (“Sedillo”)(collectively “Elite Defendants”) by and through their counsel of record, Brian
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`K. Walters, Esq. of the law office of GORDON REES SCULLY MANSUKHANI, LLP, hereby
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`submit their Motion to Stay Proceedings Pending Resolution of Writ of Mandamus. The Elite
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`Defendants Request that this matter be set on shortened time pursuant to EDCR 2.26.
`
`///
`
`///
`
`///
`
`-1-
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`Case Number: A-19-799469-C
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`Las Vegas, NV 89101
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`300 S. 4th Street, Suite 1550
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`Gordon Rees Scully Mansukhani, LLP
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`Electronically Filed
`07/08/2022 3:29 PM
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`This Motion is made and based on the attached Memorandum of Points and Authorities,
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`all pleadings, papers, and documents on file with the Court in this action, and any oral argument
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`the Court deems appropriate at the time of hearing.
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`DATED this 1st day of July, 2022.
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`GORDON REES SCULLY MANSUKHANI LLP
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`/s/ Brian K. Walters
`BRIAN K. WALTERS, ESQ.
`Nevada Bar No. 9711
`300 So. 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Attorneys for Elite Investigations, Inc.,
`Jonathan Girard, and Xavier Sedillo
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`300 S. 4th Street, Suite 1550
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`Gordon Rees Scully Mansukhani, LLP
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`ORDER SHORTENING TIME
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`It appearing to the satisfaction of the Court, and good cause appearing therefore, IT IS
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`HEREBY ORDERED that DEFENDANTS ELITE INVESTIGATIONS, INC.,
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`JONATHAN GIRARD, AND XAVIER SEDILLO’S MOTION TO STAY
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`PROCEEDINGS PENDING RESOLUTION OF WRIT OF MANDAMUS AND
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`REQUEST FOR ORDER SHORTENING TIME shall be heard on the _____ day of July,
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`2022, at the hour of _______ before Department XXX of the Eighth Judicial District Court.
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`IT IS SO ORDERED.
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`DATED this 1st day of July, 2022.
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`DISTRICT COURT JUDGE
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`Respectfully Submitted by:
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`GORDON REES SCULLY MANSUKHANI LLP
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`/s/ Brian K. Walters
`BRIAN K. WALTERS, ESQ.
`Nevada Bar No. 9711
`300 So. 4th Street, Suite 1550
`Las Vegas, Nevada 89101
`Attorneys for Elite Investigations, Inc.,
`Jonathan Girard, and Xavier Sedillo
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`DECLARATION OF BRIAN K. WALTERS, ESQ. IN SUPPORT OF
`REQUEST FOR ORDER SHORTENING TIME
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`BRIAN K. WALTERS, ESQ. states and declares as follows:
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`1.
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`I am an attorney licensed to practice law in the State of Nevada, a partner with the
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`law firm of GORDON REES SCULLY MANSUKHANI, LLP, and counsel of record for Elite
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`Investigations, Inc., Jonathan Girard, and Xavier Sedillo. (“Elite Defendants”).
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`2.
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`3.
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`I am over the age of 18 years and a resident of Washoe County, Nevada.
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`I make this declaration upon personal knowledge. If called upon to testify as to
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`the contents of this declaration, I am legally competent to do so in a court of law.
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`4.
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`I make this Declaration pursuant to EDCR 2.26 in support of the Instant Motion
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`to Stay Proceedings Pending Resolution of Writ of Mandamus. (“Motion”).
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`5.
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`On June 14, 2022, this Court entered its Order denying the Elite Defendants’
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`Motion to Dismiss Plaintiffs’ Second Amended Complaint based on the absolute litigation
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`privilege. As set forth herein, the Elite Defendants believe that the question of whether the
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`absolute litigation privilege applies under the facts of this case is an important legal issue that
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`requires clarification.
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`6.
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`On June 28, 2022, the Elite Defendants filed their Answer to Plaintiffs’ Second
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`Amended Complaint. Therefore, discovery will commence shortly.
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`7.
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`Before any discovery commences in this matter, the Elite Defendants should be
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`afforded an opportunity to seek clarification on the important legal issue of whether the absolute
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`litigation applies to the allegations set forth in Plaintiffs’ Second Amended Complaint. Good
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`cause therefore exists to set this matter on shortened time.
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`DATED this 1st day of July, 2022.
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`/s/ Brian K. Walters
`BRIAN K. WALTERS, ESQ.
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`I.
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`SUMMARY OF ARGUMENT
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`All of the claims for relief set forth in Plaintiffs’ Second Amended Complaint against the
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`Elite Defendants are predicated on communications and conduct that occurred during court
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`proceedings and/or the litigation process. The Nevada Supreme Court has made clear that the
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`absolute litigation privilege should be applied broadly, and that it extends not only to
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`communications that occur during judicial proceedings, but also to conduct that occurs during
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`the litigation process. Therefore, a stay of proceedings is justified to allow the Elite Defendants
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`to request extraordinary relief in order to obtain clarification on the important legal issue of
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`whether the absolute litigation privilege applies to the allegations set forth in Plaintiffs’ Second
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`Amended Complaint.
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`II.
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`RELEVANT FACTS
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`This case arises from injuries sustained by Plaintiff Diaz-Toler on or about February 15,
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`2018 when he was struck by a jeep equipped with a “Bull Bar” sold by Teraflex. (E.g. Second
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`Amended Complaint, ¶¶ 12-16). After several years of litigation and extensive discovery,
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`Teraflex, through its counsel herein, Lewis Brisbois Bisgaard & Smith LLP (“LBBS”), retained
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`Elite sometime in 2021 (several years after Plaintiff Diaz-Toler’s injury) to conduct sub rosa
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`surveillance of Plaintiff Diaz-Toler in preparation for the trial of this matter. (See Second
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`Amended Complaint, ¶ 10).
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`On March 9, 2022, Plaintiffs filed a Motion in Limine to Strike TeraFlex’s Damages
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`Experts. (Plaintiffs’ Motion in Limine to Strike TeraFlex’s Damages Experts dated March 9,
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`2022, on file herein). The Motion was prompted by the testimony of the experts in which they
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`described video surveillance and photos upon which they relied for their opinions that had not
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`been disclosed. Plaintiffs also argued that TeraFlex “…sent an investigator to Plaintiffs home
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`who asked to speak to Plaintiff Aiden Toler-Diaz and in fact briefly spoke to him.” Specifically,
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`Plaintiff Villafana described the interaction as follows:
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`300 S. 4th Street, Suite 1550
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`Gordon Rees Scully Mansukhani, LLP
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`In the morning of November 22, 2021, a women approached me in the front of
`our house at 5450 Chola Cactus Avenue. She introduced herself and said she
`worked for a construction company and was looking for Aiden. She said a friend
`of Aiden's gave him as a reference for a job interview. I responded that I was
`unfamiliar with the name of the friend. I questioned her why she wanted to
`interview Aiden. She had a clipboard in her hand with a tape recorder.
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`Aiden came around the corner and stopped. I asked Aiden if he knew the name of
`the friend. He said no. The women asked Aiden if he knew the name of the friend.
`Aiden said no. I told the woman it was funny you came with a clipboard and
`recorder.
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`(Plaintiffs’ Motion to Strike, Ex. 5).
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`On March 10, 2022, TeraFlex filed an Opposition to Plaintiffs’ Motion, which included
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`an affidavit from Elite’s Chief Executive Officer, Girard. (Teraflex’s Opposition to Plaintiffs’
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`Motion to Strike dated March 10, 2022, on file herein). In the affidavit, Girard stated: “The Elite
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`Investigations employee who performed sub rosa surveillance of Plaintiff Aiden Diaz-Toler on
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`November 22 and 23, 2021 worked alone and was not accompanied by anyone else. The Elite
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`Investigations employee never approached and/or spoke to Plaintiff Aiden Diaz-Toler or Plaintiff
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`Jennifer Villafana on November 22 and 23, 2021.” (Teraflex’s Opposition to Plaintiffs’ Motion
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`to Strike, Ex. A).
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`On March 12, 2022, Plaintiffs took the deposition of Elite investigator Sedillo. During
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`the deposition, Sedillo denied that he approached and/or engaged with Plaintiffs during his
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`surveillance. Sedillo also testified that as part of his surveillance of Plaintiffs, he followed
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`Plaintiffs to an area outside the lobby of a hospital:
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`Okay. Let's back up a second.
`You followed them into the hospital?
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`Q.
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`A.
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`(Transcript of Deposition of Xavier Sedillo dated March 12, 2022 at pg. 176). (Emphasis added).
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`I followed them into the parking lot. I got off on foot. Just to see where
`they were going. Because I didn't know exactly where they were going to
`go. And as we were entering the lobby, there is someone there to check
`in. And I overheard them state that that was Aiden Diaz and that the –
`the female was the mother. And then I walked back to my vehicle. And
`then from there I ended my surveillance.
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`300 S. 4th Street, Suite 1550
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`Gordon Rees Scully Mansukhani, LLP
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`On March 14 and 15, 2022, this Court conducted an evidentiary hearing on Plaintiffs’
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`Motion to Strike. Plaintiffs maintain that Girard and Sedillo provided testimony during the
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`proceedings that constituted defamation and negligent misrepresentations. Plaintiffs further
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`claim that said testimony caused the trial to be delayed forced them into a mediation with
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`Teraflex. On March 16, 2022, Plaintiffs engaged in mediation with Teraflex, which eventually
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`resulted in a settlement. The trial date was then vacated.
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`On April 13, 2022, Plaintiffs filed their Second Amended Complaint in which they
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`named Elite, Sedillo, and Girard. Plaintiffs allege that the Elite Defendants committed certain
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`misconduct during their surveillance of Plaintiffs, in deposition, and during the evidentiary
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`hearing. (E.g. Second Amended Complaint (“SAC”), ¶¶ 80-94; 97-100). More specifically,
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`Plaintiffs allege defamation and negligent misrepresentation based on Girard’s affidavit
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`submitted in support of Teraflex’s Opposition to Plaintiffs’ Motion to Strike as well as the
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`testimony of Girard and Sedillo during deposition and the evidentiary hearing. Plaintiffs also
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`allege Invasion of Privacy and Civil Conspiracy against the Elite Defendants based on conduct
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`related to their investigation.
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`On May 6, 2022, the Elite Defendants filed their Motion to