A writ of mandamus is available to compel the performance of 

an act that the law requires or to control an arbitrary or capricious 

exercise of discretion. NRS 34.160; Int? Game Tech., Inc. v. Second 

Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). A writ 

of prohibition may be warranted when the district court exceeds its 

jurisdiction. NRS 34.320. Whether a petition for mandamus or 

prohibition relief will be considered is purely discretionary with this court. 

Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 

(1991). This court typically declines to exercise its discretion to consider 

writ petitions challenging district court orders denying summary 

judgment motions, unless "no disputed factual issues exist and, pursuant 

to clear authority under a statute or rule, the district court is obligated to 

dismiss an action." Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 

1345, 950 P.2d 280, 281 (1997). Moreover, it is petitioner's burden to 

demonstrate that our extraordinary intervention is warranted. Pan v. 

Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). 

Having considered the parties' arguments, we conclude that 

petitioner has not shown that our intervention is warranted. Id. In 

particular, although petitioner asks this court to order the district court to 

enter summary judgment in petitioner's favor as to the claims of all 22 

real parties in interest, certain statutes within NRS Chapter 40's 

construction defect scheme may render at least some of these claims 

timely. Thus, the district court was not clearly required to grant the relief 

that petitioner is now seeking. Smith, 113 Nev. at 1345, 950 P.2d at 281. 

Moreover, the applicability of these statutes to real parties in interest's 

claims requires factual determinations that are unique as to each real 

party in interest. Because the district court did not make any of these 

factual determinations in denying summary judgment, the record before 

SUPREME COURT 

OF 2 

NEVADA 

(01 I947A 
this court is inadequate to meaningfully consider the overarching issues 

presented by this writ petition. See id. Accordingly, we decline to 

intervene in the district court action at this time, Smith, 107 Nev. at 677, 

818 P.2d at 851, and we 

ORDER the petition DENIED. 

, C.J. 

Gibbons 

r—DOU1 

Douglas 

Ck244 

Cherry 

Saitta 

cc: Hon. Susan Johnson, District Judge 

Koeller Nebeker Carlson & Haluck, LLP/Las Vegas 

Pursiano Barry Lavelle Bruce Hassin, LLP 

Lattie Malanga Libertino, LLP 

Eighth District Court Clerk 

SUPREME COURT 

OF 3 

NEVADA 

J. 

J. 

(0) 1947A 
HARDESTY, J., dissenting: 

I respectfully dissent on the basis that this court's 

intervention is warranted to clarify an important and recurring issue of 

law. Int? Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 

197-98, 179 P.3d 556, 559 (2008). Specifically, this writ petition presents 

the question of whether the class-action tolling doctrine, which this court 

has applied to toll a statute of limitations, see Jane Roe Dancer I-VH v. 

Golden Coin, Ltd., 124 Nev. 28, 31 n.2, 34, 176 P.3d 271, 273 n.2, 275 

(2008), can likewise apply to toll a statute of repose. Compare Albano v. 

Shea Homes Ltd. P'ship, 254 P.3d 360, 366 (Ariz. 2011) (concluding that 

class-action tolling cannot apply to toll a statute of repose), and Police & 

Fire Ret. Sys. of City of Detroit v. lndyMac MBS, Inc., 721 F.3d 95, 108-09 

(2d Cir. 2013) (same), cert. granted, 82 U.S.L.W. 3525 (U.S. Mar. 10, 2014) 

(No. 13-640), with Joseph v. Wiles, 223 F.3d 1155, 1168 (10th Cir. 2000) 

(concluding that class-action tolling can apply to toll a statute of repose). 

As the parties have indicated, this class-action tolling issue is 

not simply one that is isolated to the underlying litigation, but is a 

recurring issue arising in many construction defect cases in this state's 

court system. This is precisely the reason that the district court invited 

the parties to seek our interlocutory consideration of the issue. Moreover, 

and contrary to my colleagues' perceived concerns, consideration of this 

discrete legal issue would not require resolution of any underlying factual 

questions. In fact, resolution of this threshold issue would assist the 

district court and the parties in addressing any underlying factual 

questions, as it would provide them with a guidepost for applying NRS 

Chapter 40's construction defect statutes to the facts of this case. Thus, I 

disagree with my colleagues' decision to deny interlocutory writ relief and 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 
require the parties to wait to have this court address the important and 

recurring issue presented here. This delay increases the cost of this 

litigation to the parties and fails to promote judicial economy. For these 

reasons, I dissent. 

icluA 

Hardesty 

J. 

SUPREME COURT 

OF 

NEVADA 

2 

(0) 1947A