137 Nev., Advance Opinion I I
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAQUELINE FAUSTO, AN No. 80074
INDIVIDUAL,
Appellant,
vs.
RICARDO SANCHEZ-FLORES, AN
FILE ?. 1)
INDIVIDUAL; AND VERENICE RUTH MAR 1 1 2021
FLORES, AN INDIVIDUAL,
ELI7 TR A. BRUAIN
Respondents. CLEM OF 'UP" E RT
DY
riIEF DEPUTY CLERK
Appeal from a district court order dismissing a tort action on
statute of limitations grounds. Eighth Judicial District Court, Clark
County; Stefany Miley, Judge.
Affirmed.
Hutchison & Steffen, LLC, and Jason D. Guinasso, Joseph R. Ganley, and
Alexander R. Velto, Reno,
for Appellant.
The Wright Law Group and John Henry Wright, Las Vegas,
for Respondents.
BEFORE HARDESTY, C.J., PARRAGUIRRE and CADISH, JJ.
OPINION
By the Court, HARDESTY, C.J.:
In this appeal, we consider whether the two-year limitations
period of NRS 11.190(4)(e) for commencing actions to recover for personal
injuries or wrongful death is subject to equitable tolling. We conclude that
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it is, and thus, equitable tolling may apply in such cases when the plaintiff
demonstrates reasonable diligence in pursuing his or her claims and
extraordinary circumstances that prevented him or her from timely filing
the complaint. Under this standard, we further conclude that appellant
Jaqueline Fausto failed to demonstrate that her circumstances warrant
equitable tolling of NRS 11.190(4Xe), and we thus affirm the district court's
dismissal of her complaint.
FACTS AND PROCEDURAL HISTORY
On July 2, 2019, Fausto filed a civil torts complaint alleging
that on December 30, 2016, after an evening out with respondents Ricardo
Sanchez-Flores and his then-wife Verenice Ruth Flores (collectively,
Sanchez-Flores) to celebrate a professional accomplishment, Ricardo took
advantage of Fausto's intoxicated state to sexually assault her. Fausto
further alleged that Verenice was aware of the sexual assault but drove her
home without revealing her knowledge. Fausto stated that the day after
the assault occurred, she went to the doctor to complete a rape kit and, days
later, she reported the crime to the police. Four months after she reported
the assault, the police collected the unwashed clothes that she had been
wearing on the night of the alleged assault. Fausto asserted it was not until
February 2, 2019, that she was notified that the rape kit and unwashed
clothing had been processed by the lab and that Ricardo's DNA was found
on her clothing. A criminal complaint was filed against Ricardo thereafter.
Because Fausto's civil complaint was filed two and a half years
after the alleged sexual assault occurred, Sanchez-Flores filed an NRCP
12(b)(5) motion to dismiss based on NRS 11.190(4)(e), which imposes a two-year limitations period for personal injury and wrongful death claims. In
opposition, Fausto argued that the two-year statute of limitations should be
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tolled because she could not have brought her claims before she received the
rape kit results.
The district court granted Sanchez-Flores's motion, finding that
FaustVs complaint was time-barred because she filed it over six months
after the two-year statute of limitations had expired. The district court
further found that equitable tolling of the statute of limitations did not
apply because Fausto knew of the underlying facts of her tort claims during
the limitations period and was not prevented from obtaining other
information necessary to her claims despite the delayed processing of her
rape kit. This appeal followed.
DISCUSSION
Fausto argues that the district court erred in finding that
equitable tolling was not warranted. She asks this court to clarify that NRS
11.190(4)(e) is subject to equitable tolling and to adopt the federal standard
for determining when equitable tolling applies. Fausto asserts that the
federal standard would provide Nevada district courts with a standard more
generally workable than the one we applied in Copeland v. Desert Inn Hotel,
99 Nev. 823, 826,
673 P.2d 490, 492 (1983) (adopting equitable tolling in the
employment discrimination context), but regardless, the limitations period
for her tort claims should have been tolled under either standard.
We generally review a dismissal for failure to state a claim
pursuant to NRCP 12(b)(5) de novo, treating all alleged facts in the
complaint as true and drawing all inferences in favor of the complainant.
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28,
181 P.3d 670,
672 (2008). However, when the district court is presented with and does
not exclude matters outside the pleadings in making its decision, "the
motion must be treated as one for summary judgment." NRCP 12(d).
Because the parties submitted exhibits containing matters outside the
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pleadings and the district court did not exclude those exhibits, we treat the
dismissal order as an order granting summary judgment, which we also
review de novo. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 252,
277
P.3d 458, 462 (2012). Summary judgment is proper if "the pleadings and
other evidence on file demonstrate that no genuine issue as to any material
fact [remains] and that the moving party is entitled to a judgment as a
matter of law." Wood v. Safeway, Inc., 121 Nev. 724, 729,
121 P.3d 1026,
1029 (2005) (alteration in original) (internal quotation marks omitted). All
evidence "must be viewed in a light most favorable to the nonmoving party."
Id. Neither party disputes the facts in the record, nor does either party
maintain that there are genuine issues of material fact precluding summary
judgment.1 Instead, each party presents legal arguments on the basis of the
facts in the record as to whether Faustes tort claims are entitled to
equitable tolling.
NRS 11.190(4)(e) is subject to equitable tolling
NRS 11.190(4)(e) provides a two-year limitations period for "an
action to recover damages for injuries to a person or for the death of a person
caused by the wrongful act or neglect of another." The two-year period for
filing suit under NRS 11.190(4)(e) begins to run "when the wrong occurs
and a party sustains injuries for which relief could be sought." Petersen v.
Bruen, 106 Nev. 271, 274,
792 P.2d 18, 20 (1990). Fausto does not dispute
on appeal that she filed her complaint after the limitations period expired.
While Fausto argues that the district court should have denied
Sanchez-Flores's motion to dismiss to allow for discovery, she relies solely
on her purported need for the results of the DNA test to identify Ricardo as
the alleged assailant. But, by her own admission, she already knew that he
was her attacker. Thus, in this case, additional discovery has no bearing on
whether NRS 11.190(4)(e) should be tolled to render Faustes claims timely.
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Rather, she contends that the limitations period should be equitably tolled
because she was unable to obtain evidence necessary to her claims during
the limitations period.
We have not previously determined whether NRS 11.190(4)(e)
may be equitably tolled. The doctrine of equitable tolling is a nonstatutory
remedy that permits a court to suspend a limitations period and allow an
otherwise untimely action to proceed when justice requires it. See 51 Am.
Jur. 2d Limitation of Actions § 153 (2021 update). A statute of limitations
such as NRS 11.190(4)(e) is primarily intended "to qpreventl surprises
through the revival of claims that have been allowed to slumber until
evidence has keen lost, memories have faded, and witnesses have
disappeared."' Petersen, 106 Nev. at 273,
792 P.2d at 19 (alteration in
original) (quoting Order of R.R. Telegraphers v. Ry. Express Agency, Inc.,
321 U.S. 342, 348-49 (1944)). Because the main purpose of a statute of
limitations "is to encourage the plaintiff to pursu[e] his rights
diligently, . . when an extraordinary circumstance prevents him from
bringing a timely action, the restriction imposed by the statute of
limitations does not further the statutes purpose." CTS Corp. v.
Waldburger, 573 U.S. 1, 10 (2014) (internal quotation marks omitted).
Accordingly, it is "presume[d] that equitable tolling applies if the period in
question is a statute of limitations and if tolling is consistent with the
statute." Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014); see also United
States v. Kwai Fun Wong, 575 U.S. 402, 407 (2015) ("[Wje recognize[ ] that
time bars in suits between private parties are presumptively subject to
equitable tolling."); see also 54 C.J.S. Limitations of Actions § 132 (2021
update) ("Limitations periods are customarily subject to equitable tolling
unless tolling would be inconsistent with the text of the relevant statute.").
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When determining whether a statute is subject to equitable
tolling, "the inquiry begins with the understanding that [the Legislature]
legislate[s] against a background of common-law adjudicatory principles."
Lozano, 572 U.S. at 10 (second alteration in original) (internal quotation
marks omitted). We first adopted the doctrine of equitable tolling in the
context of employment discrimination claims in Copeland.
99 Nev. at 826,
673 P.2d at 492. Notably, we left open the possibility of applying equitable
tolling in other contexts.
Id. Since Copeland, this court has applied the
equitable tolling doctrine to other statutes of limitations. For example, in
State, Department of Taxation v. Masco Builder Cabinet Group, this court
affirmed a district court's decision to equitably toll the deadline under NRS
372.635 for a taxpayer refund claim.
127 Nev. 730, 738-40,
265 P.3d 666,
671-73 (2011). Similarly, in City of North Las Vegas v. State, Local
Government Employee-Management Relations Board, this court affirmed a
district court's decision to equitably toll NRS 288.110(4)s six-month
deadline for filing a complaint asserting prohibited labor practices against
a local government agency.
127 Nev. 631, 641,
261 P.3d 1071, 1077 (2011).
And in O'Lane v. Spinney, we recognized that the doctrine of equitable
tolling could pertain to the deadline for enforcing judgments under NRS
11.190(1).
110 Nev. 496, 501,
874 P.2d 754, 757 (1994).
Based on our evolving expansion of the equitable tolling
doctrine to other similar statutes of limitations and the presumption that
the Legislature legislates with common law principles like equitable tolling
in mind, we see no reason to reject its application to NRS 11.190(4)(e). See
Saint Francis Mem'l Hosp. v. State Llep't of Pub. Health, 467 P.3d 1033, 1037
(Cal. 2020) ("Courts draw authority to toll a filing deadline from their
inherent equitable powers—not from what the Legislature has declared in
6
any particular statute."). Therefore, we elect to expand our application of
the equitable tolling doctrine and hold that NRS 11.190(4)(e) is subject to
equitable tolling.
The standard for equitable tolling as it relates to NRS 11.190(4)(e)
Having concluded that NRS 11.190(4)(e) is subject to equitable
tolling, we turn our attention to the appropriate standard for its application
to the limitations period in this statute. In Copeland, this court set forth
nonexclusive factors to consider when determining whether equitable
tolling is appropriate:
the diligence of the claimant; the claimants
knowledge of the relevant facts; the claimants
reliance on authoritative statements by the
administrative agency that misled the claimant
about the nature of the claimants rights; any
deception or false assurances on the part of the
employer against whom the claim is made; the
prejudice to the employer that would actually result
from delay during the time that the limitations
period is tolled; and any other equitable
considerations appropriate in the particular case.
99 Nev. at 826,
673 P.2d at 492. Fausto points out that several of these
factors—primarily the plaintiff s reliance on statements by an
administrative agency and the employer's deception—do not readily apply
to nonadministrative agency cases. For this reason, Fausto urges this court
to adopt the federal standard for equitable tolling, claiming that the federal
standard is more broadly applicable than the factors set forth in Copeland.
However, while Fausto correctly asserts that some of the Copeland factors
are specific to the context of that case, other factors—diligence of the
claimant and any "equitable considerations appropriate in the particular
case"—are generally applicable to tort-based claims barred by NRS
11.190(4)(e). Moreover, consistent with the federal equitable tolling
7
doctrine and other jurisdictions equitable tolling jurisprudence, we have
required plaintiffs to at least demonstrate that, despite their exercise of
diligence, extraordinary circumstances beyond their control prevented them
from timely filing their claims. See Kwai Fun Wong v. Beebe, 732 F.3d 1030,
1052 (9th Cir. 2013) (stating that under the federal standard a claimant
seeking equitable tolling must demonstrate "(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstances stood
in his way" (internal quotation marks •omitted)); see also Weaver v.
Firestone,
155 So. 3d 952, 957-58 (Ala. 2013) (stating that "equitable tolling
is available in extraordinary circumstances that are beyond the petitioner's
control and that are unavoidable even with the exercise of diligence"
(internal quotation marks omitted)).
For example, we have explained that the focus of equitable
tolling is "whether there was excusable delay by the plaintiff." City of N.
Las Vegas, 127 Nev. at 640, 261 P.3d at 1077 (emphasis added) (internal
quotation marks omitted). And we have indicated that equitable tolling
applies when the claimant has demonstrated diligence. See Masco,
127 Nev.
at 739,
265 P.3d at 672. Accordingly, having already recognized these
factors in our own equitable tolling jurisprudence, we do not find it
necessary to adopt the federal standard and instead direct courts to consider
the relevant Copeland factors when determining whether to equitably toll
NRS 11.190(4)(e). Thus, when a plaintiff seeks to equitably toll the
limitations period in NRS 11.190(4)(e), the plaintiff must demonstrate that
he or she acted diligently in pursuing his or her claim and that
8
extraordinary circumstances beyond his or her control caused his or her
claim to be filed outside the limitations period.2
Fausto failed to meet the relevant equitable tolling factors under Copeland
We now must determine whether Fausto has demonstrated
that her circumstances warrant the application of equitable tolling to
render her claims timely. Fausto argues that NRS 11.190(4)(e) should be
equitably tolled because the State's delay in processing her rape kit meant
that she lacked the necessary evidence to file her complaint before the
statute of limitations ran. Fausto asserts she could not confirm that Ricardo
sexually assaulted her without the rape kit results.
Sanchez-Flores, however, argues that equitable tolling is
inapplicable because Fausto knew of the facts underlying her claims and
did not need the rape kit results to assert her claims before the limitations
period ended. We agree and conclude that Fausto failed to demonstrate
that equitable tolling is warranted in this case.
Diligence
First, the record shows that Fausto did not act diligently in
bringing her claims. Fausto reported the facts of the sexual assault to the
police in January 2017 yet did not seek counsel or assert her claims until
2Whi1e Copeland also included the plaintiffs knowledge of the facts
as a factor, this factor relates more to the discovery-rule exception than it
does to equitable tolling. See Petersen v. Bruen, 106 Nev. 271, 274,
792 P.2d
18, 20 (1990) (explaining that "Mhe general rule concerning statutes of
limitation is that a cause of action accrues when the wrong occurs and a
party sustains injuries for which relief could be sought," but that the
discovery rule is an exception to this general rule for accrual and that when
applied, it tolls the statute of limitations period "until the injured party
discovers or reasonably should have discovered facts supporting a cause of
action").
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two and a half years later. Though she contends that she needed the results
of the rape kit test to prove her claims, she fails to demonstrate how she
proactively pursued the rape kit results or that it was impossible for her to
assert her civil claims absent those results. She made no inquiry into the
status of the DNA results, and she made no attempt to file a complaint
pending receipt of the test results. Cf. City of N. Las Vegas, 127 Nev. at
640-41, 261 P.3d at 1077 (determining that the claimant exercised diligence
where he asserted his claims less than two months after discovering the
facts underlying the claims). Therefore, we conclude that Fausto has failed
to show that she acted in a diligent manner.3
Extraordinary circumstances
Moreover, Fausto has failed to demonstrate extraordinary
circumstances that prevented her from filing her complaint. We reject
Faustces contention that without the rape kit results, "there was nothing to
support [her] testimony." Fausto was not required to have DNA evidence
3Faustes arguments below and on appeal seem to conflate the
discovery rule with the equitable tolling doctrine. Compare Petersen, 106
Nev. at 274,
792 P.2d at 20 ("Under the discovery rule, the statutory period
of limitations is tolled until the injured party discovers or reasonably should
have discovered facts supporting a cause of action."), with Nicole B. v. Sch.
Dist. of Phila., 237 A.3d 986, 995 (Pa. 2020) ("[T]he doctrine of equitable
tolling [extends] a statute of limitations when a party, through no fault of
its own, is unable to assert its right in a timely manner." (second alteration
in original) (internal quotation marks omitted)). The district court rejected
Faustes contention that the discovery rule applied and that she could not
discover the facts of her claims within the limitations period. Fausto does
not challenge this determination or dispute the district court's finding on
the accrual date of her claims. Thus, the application of the discovery rule
is not before us.
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before filing her civil complaint, and she could have amended her complaint,
if necessary, after receiving the rape kit results. See NRCP 8; NRCP 15.
Although Fausto now argues that sexual assault victims assume that they
are wrong about having been assaulted when they do not get rape kit results
back and that she needed the results to confirm Ricardo had sexually
assaulted her, Fausto did not allege below that she had doubts about her
sexual assault because of the delay in processing the rape kit.4 Rather, the
record shows that she completed a rape kit the day after the alleged assault,
filed two police reports within the following days, and notably, told Verenice
in a text-message exchange four months later that she knew that Ricardo
had sexually assaulted her that night. Thus, Fausto knew of the facts
4We acknowledge that the States severe backlog of processing rape
kits has caused serious delays in the prosecution of these cases, which in
part led to the passage of A.B. 142 during the 2019 legislative session. See
2019 Nev. Stat., ch. 263, § 2, at 1498-99 (eliminating the statute of
limitations period for the criminal prosecution of sexual assault crimes
where there is DNA evidence); see also Hearing on A.B. 142 Before the
Senate Comm. on Judiciary, 80th Leg. (Nev., May 3, 2019) (statement of
Assemblywoman Lisa Krasner acknowledging that in 2015 over 8,000 rape
kits were untested). In light of these delays and the psychological trauma
that sexual assault victims experience, we recognize that there may be
circumstances under which a sexual assault victim who alleges that he or
she was unable to confirm the identity of the assailant may meet the
requirements for equitable tolling. See, e.g., Weaver v. Firestone, 155 So. 3d
952, 962 (Ala. 2013) (explaining that a reasonably diligent plaintiff should
timely file a Doe complaint when possible, but recognizing that "'where the
facts are such that even discovery cannot pierce a defendant's intentional
efforts to conceal his identity, the plaintiff should not be penalized'"
(emphasis omitted) (quoting Bernson v. Browning-Ferris Indus. of Cal., Inc.,
873 P.2d 613, 619 (Cal. 1994))). However, in this case, Fausto's allegation
that she did not know that Ricardo assaulted her is belied by her own
complaint, which indicates that she told Verenice, Ricardo's wife, that she
knew that he had assaulted her that night.
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underlying her claims, and therefore, the lack of test results did not
preclude her from filing her complaint. Cf. City of N. Las Vegas, 127 Nev.
at 636, 640, 261 P.3d at 1074-75, 1077 (holding that equitable tolling was
appropriate where the plaintiff did not know of his employer's disparate
treatment of another employee until approximately two months prior to
filing his complaint). Accordingly, we conclude that extraordinary
circumstances did not prevent Fausto from timely asserting her claims
against Sanchez-Flores.
CONCLUSION
We hold that the doctrine of equitable tolling may apply to
NRS 11.190(4)(e) where the plaintiff demonstrates diligence in pursuing his
or her claims and that some extraordinary circumstance prevented the
plaintiff from bringing a timely action. Applying that standard here, we
conclude that Fausto failed to demonstrate diligence or that an equitable
circumstance prevented her from asserting her claims during the
limitations period. As a result, the district court correctly determined that
equitable tolling was not warranted and that Fausto's claims were time-barred under NRS 11.190(4)(e). Accordingly, we conclude that the district
court did not err by dismissing Fausto's complaint, and we thus affirm the
district court's order.
, C.J.
Hardesty
We concur:
efti-'6%tel= Cadish
Parraguirre
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