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ACCEPTED

03-14-00199-CV
1516181
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/11/2014 7:19:00 PM
J EFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
6/11/2014 7:19:00 PM
JEFFREY D. KYLE
Clerk
IDENTITY OF PARTIES AND COUNSEL
1. Appellant David J. Lubow
Represented in the trial court and on appeal by:
Stephanie S. Bascon
State Bar No. 19356850
LAW OFFICE OF STEPHANIE S. BASCON, PLLC
297 W. San Antonio Street
New Braunfels, Texas 78130
Telephone: 830-625-2940
Facsimile: 830-221-3441
sbascon@att.net
2. Other Appellants
a. Church of Scientology International
Represented in the trial court and on appeal by:
Ricardo G. Cedillo
Isaac J. Huron
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
George H. Spencer, Jr.
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
Bert H. Deixler
KENDALL BRILL KLIEGER
10100 SantaMonicaBlvd., Suite 1725
Los Angeles, California 90067
Telephone: 310.272.7910
Facsimile: 310.556.2705
Additional Counsel on appeal:
Thomas S. Leatherbury
Marc A. Fuller
VINSON & ELKINS LLP
Trammell Crow Center
200 1 Ross A venue, Suite 3 700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700
New York, New York 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
b. Steven Gregory Sloat
Represented in the trial court and on appeal by:
Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: 830.625.8026
Facsimile: 830.625.4433
c. Monty Drake
Represented in the trial court and on appeal by:
0. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
ii
Dallas, Texas 75202
Telephone: 214.573.6300
Facsimile: 214.573.6306
d. Ed Bryan
Represented in the trial court and on appeal by:
Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: 830.625.8026
Facsimile: 830.625.4433
3. Appellee Monique Rathbun
Represented in the trial court and on appeal by:
Ray B. Jeffrey
A. Dannette Mitchell
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
Telephone: 830.438.8935
Facsimile: 830.438.4958
Marc F. Wiegand
THE WIEGAND LAW FIRM P.C.
434 N. Loop 1604 West, Suite 2201
San Antonio, Texas 78232
Telephone: 210.998.3289
Elliott S. Cappuccio
Leslie Sara Hyman
PULMAN, CAPPUCCIO, PULLEN, BENSON, & JONES, LLP
2161 N.W. Military Hwy., #400
San Antonio, Texas 78213
Telephone: 210.222.9494
Facsimile: 210.892.1610
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS ......................................................................................... iv
INDEX OF AUTHORITIES .................................................................................... vi
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT .............................................. ix
ISSUES PRESENTED ............................................................................................... x
STATEMENT OF FACTS ........................................................................................ !
STANDARD OF REVIEW ...................................................................................... .3
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT ............................................................................................................. 7
I. THE DISTRICT COURT'S HOLDING THAT PLAINTIFF'S CLAIMS
WERE EXEMPT FROM THE TCPA WERE ERRONEOUS AND
WOULD RENDER THE TCPA A VIRTUAL NULLITY ............................ 7
A. The "Commercial Speech" Exemption Does Not Apply to
Plaintiffs Claims ................................................................................... 7
B. The "Bodily Injury" Exemption of Section 27.010(c) Does Not
Apply to Plaintiffs Claims .................................................................... 7
II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFF'S
CAUSES OF ACTION WERE NOT BASED ON, RELATED TO OR
IN RESPONSE TO THE EXERCISE OF APPELLANTS' RIGHTS TO
FREE SPEECH, ASSOCIATION, OR PETITION ........................................ 7
III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT "CLEAR AND SPECIFIC" EVIDENCE TO SUPPORT
ESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOT
OVERCOME LUBOW'S AFFIRMATIVE DEFENSES ............................... 8
A. Plaintiff's Claim for Tortious Interference with Contract Should Be
Dismissed ............................................................................................... 8
B. Plaintiff's Invasion of Privacy Claim for Intrusion Should Be
Dismissed............................................................................................ 12
C. Plaintiffs Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed .................................................... 15
iv
D. Plaintiff's Claim for Intentional Infliction of Emotional Distress
Should Be Dismissed .......................................................................... 1 7
E. Plaintiff Presented No Evidence to Support Vicarious Liability
against Lubow for the Actions of any other Defendant. ................... 18
IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYS'
FEES AND COURT COSTS AGAINST LUBOW AND IN FAILING
TO AWARD HIM HIS FEES AND COSTS ............................................... 20
CONCLUSION AND PRAYER ............................................................................ 20
CERTIFICATE OF COMPLIANCE ...................................................................... 21
CERTIFICATE OF SERVICE ............................................................................... 22
APPENDIX
v
INDEX OF AUTHORITIES
Cases
Pages
Brewerton v. Dalrymple,
997 S.W.2d 212, 215 (Tex. 1999) ....................................................................... 18
Butnaru v. Ford Motor Co.,
84 S.W.3d 198,207 (Tex. 2002) ............................................................................ 8
Clayton v. Wisener,
190 S.W.3d 685, 696-97 (Tex. App.-Tyler, 2005, pet. denied) ....................... 15
Comhill Insurance PLC v. Valsamis,
106 F.3d 80, 85 (5th Cir. 1997) ........................................................................... 15
Creditwatch, Inc. v. Jackson,
157 S.W.3d 814,818 (Tex. 2005) ...................................................................... 18
Hill v. Heritage Res. Inc.,
964 S.W.2d 89, 123 (Tex. App.-El Paso 1997, pet. denied) ............................... 8
Hoffmann-La Roche Inc. v. Zeltwanger,
144 S.W.3d 438, 447 (Tex. 2004) ....................................................................... 18
Jennings v. Minco Tech. Labs, Inc.,
765 S.W.2d 497, 500 (Tex. App.-Austin 1989, writ denied) ............................ 12
Kroger Tex. Ltd. P 'ship v. Suberu,
216 S.W.3d 788, 796 (Tex. 2006) ........................................................................ 17
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc.,
29 SW3d 74, 77 (Tex. 2000) .................................................................................. 8
Rehak Creative Services, Inc. v. Witt,
404 S.W.3d 716, 726 (Tex.App.-Houston [l4
1
h Dist.] 2013) ....................... 11, 14
Star Telegram, Inc. v. Doe,
915 S.W.2d 471,473-74 (Tex. 1995) ................................................................. 16
vi
Valenzuela v. Aquino,
853 S.W.2d 512 (Tex. 1993) ............................................................................... 12
Vaughn v. Drennon,
202 S.W.3d 308, 320 (Tex. App.-Tyler 2006, no pet.) ......................... 12, 13, 14
Webb v. CBS Broadcasting, Inc.,
No. 08 C 6241, 2011 WL 4062488 (N.D. Ill. Sept. 13, 2011) ............................. 14
Webb v. Glenbrook Owners Ass 'n, Inc.,
298 S.W.3d 374, 387 (Tex. App.-Dallas 2009, no pet.) .................................... 14
Wehling v. Columbia Broad. Sys.,
721 F.2d 506, 509 (5th Cir. 1983) ........................................................................ 14
Statutes and Rules
TEX. CIV. PRAC. & REM. CODE 27.001 ............................................................. viii, x
TEX. CIV. PRAC. & REM. CODE 27.005(c) ................................................. 11, 12, 15
TEX. CIV. PRAC. & REM. CODE 27.010(b) ................................................................ x
TEX. CIV. PRAC. & REM. CODE 27.010(c) ................................................................ x
TEX. CIV. PRAC. & REM. CODE 27.009(a)(1) .......................................................... xi
TEX. CIV. PRAC. & REM. CODE 27.009(b) .............................................................. xi
TEX.R.APP.P.9.7 ......................................................... 1,3,4, 7-8,12, 15,17-18,20
Other Authorities
WILLIAML. PROSSER, TORTS 117 (4
1
h Ed.) .......................................................... 16
vii
STATEMENT OF THE CASE
Nature of the case This case arises out of an ongoing public controversy
between Defendant/ Appellant Church of Scientology
International (the "Church") and former Scientologist Marty
Rathbun and his wife, Plaintiff/ Appellee Monique Rathbun,
who became outspoken and public critics of the Church and
its leadership. Monique Rathbun sued the Church, as well as
David Lubow ("Lubow") and others in connection with this
dispute.
Trial court
Course of
proceedings
Trial court
disposition
Monique Rathbun asserted claims for tortious interference
with contract, invasion of privacy by intrusion upon
seclusion, invasion of privacy by publication of private facts,
and intentional infliction of emotional distress. 1 CR 28-40.
The Honorable Dib Waldrip of the 433rd Judicial District
Court in Coma! County presides over the trial court
proceedings.
The Plaintiff obtained an ex parte Temporary Restraining
Order against the Defendants. 1 CR 41-42. Lubow and the
other Appellants filed Motions to Dismiss under the Texas
Citizens' Participation Act, Tex. Civ. Prac. & Rem. Code
27.001 et seq. (the "Act" or "TCPA"). 1 CR 1 02-146; 3
CR 337-40; 5 CR 582-84; 5 CR 587-91. After a timely
hearing, the trial court denied the Motions finding the TCP A
did not apply because the claims were exempt under the
"commercial speech" and "bodily injury" exemption. 31CR
3 7 64-77. The trial court also awarded attorneys' fees and
costs to Monique Rathbun even though he specifically found
that the motions were not frivolous. 31 CR 3776-77.
The trial court denied Appellants' Motion to Dismiss on
March 14, 2014. Jd. Appellants timely filed their Notice of
Appeal on April 2, 2014. 50 CR 5687-90. The district court
signed a Supplemental Ruling on April 4, 2014. First
Supplemental CR 27.
viii
STATEMENT REGARDING ORAL ARGUMENT
Defendant/ Appellant David J. Lubow ("Lubow") respectfully requests the
opportunity to present oral argument and adopts the Church of Scientology
International's ("Church") Statement Regarding Oral Argument in their Brief.
TEX. R. APP. P. 9.7.
RECORD REFERENCES
The Reporter's Record will be cited as [Vol.] RR [page).
The Clerk's Records will be cited as [Vol.] CR [page].
The Supplemental Clerk's record will be cited as SCR [page].
ix
ISSUES PRESENTED
1. Whether the district court erred in denying Lubow's Motion to
Dismiss Plaintiff's claims under the Texas Citizens Participation Act ("TCPA")?
2. Whether the district court erred in holding that the TCPA's exemption
for legal actions "brought against a person primarily engaged in the business of
selling or leasing goods or services arising out of commercial activity" applied to
Appellants? TEX. CJV. PRAC. & REM. CODE 27.010(b)
3. Whether the district court erred in holding that the TCPA's exemption
for legal actions "seeking recovery for bodily injury" applied where Plaintiffs
alleged damages were headaches and nausea? TEX. C!V. PRAC. & REM. CODE
27.010(c)
4. Whether the district court erred in holding that Plaintiff's claims were
not "based on," "relate[ d] to," or "in response to" Appellants' exercise of the "right
of free speech," "right of association," or "right of petition," and therefore were not
subject to the TCPA? TEX. Crv. PRAc. & REM. CoDE 27.001 (defining terms)
5. Whether the district court erred in not dismissing Plaintiffs claim
against Lubow for tortious interference with her employment contract because (a)
Plaintiff failed to provide "clear and specific" evidence that her employer breached
or terminated her contract; (b) Plaintiff failed to provide "clear and specific"
evidence that any alleged breach by her employer was proximately caused by
actions ofLubow; and (c) the claim is barred by the statute oflimitations?
6. Whether the district court erred in not dismissing Plaintiff's claim
against Lubow for invasion of privacy by intrusion into seclusion because (a)
Plaintiff failed to provide "clear and specific" evidence that Lubow intruded into
private areas or matters that are within the zone of privacy protection under Texas
law; and (b) the acts are protected by the First Amendment?
7. Whether the district court erred in not dismissing Plaintiffs claim
against Lubow for invasion of privacy by public disclosure of private facts because
(a) Plaintiff failed to provide "clear and specific" evidence that Lubow publicly
disclosed any facts, private or otherwise, about her; (b) Plaintiff cannot seek relief
for the alleged disclosure of private facts about her husband; (c) Plaintiff failed to
provide "clear and specific" evidence that anyone disclosed private facts about her
husband to more than a few individuals, and not the public at large; (d) the alleged
X
disclosure of facts about Plaintiffs husband was a matter of legitimate public
concern protected by the First Amendment; and (e) the claim is barred by the
statute of limitations?
8. Whether the district court erred in not dismissing Plaintiffs claim
against Lubow for intentional infliction of emotional distress because (a) the tort is
applicable only as a "gap filler" and Plaintiff alleges claims for the same acts under
other torts and intentionally avoided alleging others; (b) Plaintiff failed to provide
"clear and specific" evidence that Lubow committed acts that meet the standard of
"outrageous conduct"; (c) the acts were protected by the First Amendment.
9. The Plaintiffs claims for vicarious liability and conspiracy cannot
support Plaintiffs causes of action against individual Appellants.
10. Whether the district court erred in awarding attorneys' fees and costs
to Plaintiff in violation of the TCPA, where the court expressly held that Lubow's
Motion to Dismiss was not "frivolous" and made no finding (nor could it have)
that his Motion was "solely intended to delay," TEX. Crv. PRAc. & REM. CODE
27.009(b), and further erred in failing to hold that Lubow was entitled to his
attorneys' fees and costs under Section 27.009(a)(l)?
xi
STATEMENT OF FACTS
Lubow adopts and incorporates by reference the Statement of Facts of the
Church's Brief. TEX. R. APP. P. 9.7.
David Lubow ("Lubow") is a private investigator licensed in the state of
California. 2 CR 277 ~ 3 Prior to 2009, Lubow was retained by Los Angeles
attorney, Elliot Abelson, on behalf of his client, the Church of Scientology
International (the "Church"), to perform investigative actions in support of
litigation, prospective litigation and threatened litigation in which the Church was
or could be involved. 2 CR 278 ~ 4 He was also retained to investigate potential
violations of intellectual property rights licensed to the Church relating to the
Scientology religion. I d.
The only evidence submitted by the Plaintiff to the trial court of any
investigation by Lubow was his alleged conversations with co-workers of Plaintiff
Monique Rathbun and inferences of alleged conversations with Plaintiff's ex-
husband, Franklyn Carle III in the fall of 2010 and the spring of 2011.
3364-66; 33 CR 3923; 42 CR 4883.
28 CR
No evidence has been presented to the court that Lubow or any investigator
working for him or within his knowledge, ever photographed inside the Rathbun's
place of business/residence, used any form or electronic surveillance with respect
to the interior of his business/residence, used any form of microphone to overhear
1
private conversations inside or on the porch of their place of business/residence,
interfered with or wiretapped the Rathbuns' telephone or internet service,
physically blocked or interfered with their freedom of movement or physically
touched or threatened the Rathbuns. 2 CR 279 ~ 7 No surveillance was conducted
by photographing into their windows or doors; no electronic devices were ever
used to track Marty Rathbun or Plaintiff. !d.
At no time did Lubow or anyone working under his direction, or in
coordination with him, undertake any unlawful actions, actions exceeding his
California private investigator license, or any action which otherwise violated the
privacy of the Rathbuns. 2 CR 279 ~ 6 The focus of Lubow's investigation was
Mr. Rathbun, not Plaintiff. Jd.
No evidence was presented to the trial court that Lubow or anyone working
with or for him ever sent anything to Mrs. Rathbun or to her place of employment,
28 CR 3388 ~ 3
Lubow is also a member of the Scientology religion. 2 CR 280 ~ 9 After
2009, Lubow saw for himself that Marty Rathbun had undertaken a prolonged
world-wide campaign to attack and impugn the Scientology religion and its
ecclesiastical leadership, often in highly charged, emotional terms. Rathbun also
engaged in delivering Scientology services and counseling at his office/home even
though he had been expelled from the Church and possessed no religious authority
2
to provide such services. 2 CR 280-81 9 & 10. Lubow was surprised by the false
and derogatory assertions being made by Marty Rathbun on the internet and as a
dedicated Scientologist he was concerned that Rathbun was offering a discordant
version of Scientology. !d. Lubow and other Scientologists wished to demonstrate
against what they perceived to be heinous acts by Rathbun and they agreed to
simultaneously demonstrate at Rathbun's office and make a documentary
regarding Rathbun. 2 CR 281 1 1 The work was planned as both a film and short
videos of Rathbun and the protests against him to educate other Scientologists and
the general public that Rathbun was, in Scientology terminology, a squirrel. !d.
The group of protestors became known as the Squirrel Busters. Lubow was the
director and co-producer of the Squirrel Busters Production regarding Rathbun. 2
CR 287 ~ 6 Lubow was a filmmaker who had written and produced a feature
length documentary titled Prescription Suicide? 2 CR 277 ~ 3 (a complete
discussion of the Squirrel Busters and Plaintiffs claims concerning their actions is
contained in the Church's Brief, Statement of Facts Section, which is incorporated
herein by reference).
STANDARD OF REVIEW
Lubow adopts and incorporates by reference the Standard of Review section
of the Church's Brief. TEX. R. APP. P. 9.7.
3
SUMMARY OF THE ARGUMENT
Lubow adopts and incorporates the Summary of the Argument m the
Church's Brief. TEX. R. APP. P. 9.7.
Lubow's actions as a Squirrel Buster are protected by the First Amendment
rights of freedom of speech and freedom of association. His actions as an
investigator, of interviewing Plaintiffs co-workers and her ex-husband, where he
only spoke to them, did not photograph them or plaintiff, intrude on Plaintiffs
property, or monitor, surveill or eavesdrop, are protected by the right to petition.
Plaintiffs claims against Lubow are based on, related directly to and in response to
the exercise of the Appellants' First Amendment rights and are subject to early
dismissal under the Texas Citizen's Participation Act ("TCP A").
The trial court erred in denying Lubow's motions to dismiss by basing its
opinion on an erroneous application of the exemptions of commercial speech and
bodily injury. An analysis of the evidence establishes that Plaintiff did not present
clear and specific evidence against Lubow to support Plaintiffs claims.
Plaintiffs claim against Lubow for tortious interference with contract cannot
survive analysis under the TCP A because (in addition to grounds stated in the
Church's Brief) the only clear and specific evidence regarding Lubow and
Plaintiffs employment is that 1) he spoke with aformer co-worker who Plaintiff
worked with years before at another job and 2) he spoke with a fellow employee at
4
Superior only after Plaintiff had resigned from her job. Neither of these actions
could have caused injury to Plaintiff. Plaintiffs claim is further negated by her
own admission that she resigned from her job at Superior in April of 2011. She
presented no evidence that any act by Lubow proximately caused her employer to
take any negative employment action against her. The only other evidence
regarding Lubow and Plaintiff's employment would be based on innuendo and
inferences not allowed under the statute. The claim is also barred by the statute of
limitations.
Plaintiffs privacy claim against Lubow for intrusion on seclusion does not
survive a challenge under the TCP A because there was no evidence of either a
physical invasion of Plaintiffs property or eavesdropping on her conversation with
the aid of wiretaps, microphones, or spying. Here, no such improper intrusion
occurred. In fact, there is no evidence that Lubow used any such equipment or
conducted any surveillance of the Plaintiff in his role as an investigator. Plaintiff
herself has conceded that she has no knowledge of any such intrusion. Lubow's
activities as a Squirrel Buster were conducted on public property.
Plaintiffs claim against Lubow for invasion of privacy by publication of
private facts also fails because Plaintiff provided no specific evidence that Lubow
disclosed any private facts about Plaintiff or that he published comments to the
"public" as that is defined under Texas law.
5
Plaintiff's final claim of intentional infliction of emotional distress ("liED")
against Lubow must also fail. The liED claim must be dismissed under the "gap-
filler" doctrine and the Plaintiff has alleged the same facts in support of each of her
causes of action. The liED claim also fails to meet Texas' strict application of the
outrageousness element and Lubow's alleged conduct does not rise to this level.
The acts of the Squirrel Busters also are protected under the First
Amendment and may not be the predicate for claims of liED or any other tort.
There is no evidence against Lubow regarding the vicarious liability theories
that Plaintiff globally asserted in her Second Amended Petition. Plaintiff failed to
provide evidence in her submission to the trial court that establishes any vicarious
liability between the Appellants.
Finally, the district court violated the TCPA by awarding costs and fees to
Plaintiff. The district court acknowledged Appellants' motions were not frivolous
and made no finding that it was undertaken exclusively for delay, as the TCPA
reqUires.
6
ARGUMENT
I. THE DISTRICT COURT'S HOLDINGS THAT PLAINTIFF'S
CLAIMS WERE EXEMPT FROM THE TCPA WERE ERRONEOUS
AND WOULD RENDER THE TCPA A VIRTUAL NULLITY.
Lubow adopts and incorporates by reference the arguments of Section I of
the Church' Brief and Section I of Monty Drake's ("Drake") Brief. TEX. R. APP.
P. 9.7
A. The "Commercial Speech" Exemption Does Not Apply to
Plaintiff's Claims.
Lubow adopts and incorporates the arguments of Section LA of the
Church's Brief and Section LA of Drake's Brief. TEX. R. APP. P. 9.7.
B. The "Bodily Injury" Exemption of Section 27.010(c) Does Not
Apply to Plaintiff's Claims.
Lubow adopts and incorporates the argument of Section LB. of the
Church's Brief, TEX. R. APP. P. 9.7, and the argument of Section I.B of Drake's
Brief. Id.
II. THE DISTRICT COURT ERRED IN HOLDING THAT
PLAINTIFF'S CAUSES OF ACTION WERE NOT BASED ON,
RELATED TO OR IN RESPONSE TO THE APPELLANTS'
EXERCISE OF RIGHTS TO FREE SPEECH, ASSOCIATION, OR
PETITION.
Lubow adopts and incorporates by reference the arguments in Section II of
the Church's Brief. TEX. R. APP. P. 9. 7.
7
III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT "CLEAR AND SPECIFIC" EVIDENCE TO
SUPPORT ESSENTIAL ELEMENTS OF THOSE CLAIMS AND
CANNOT OVERCOME LUBOW'S AFFIRMATIVE DEFENSES.
Lubow adopts and incorporates by reference the arguments in Section III of
the Church's Brief. TEX. R. APP. P. 9.7.
A. Plaintiff's Claim for Tortious Interference with Contract Should
Be Dismissed.
Lubow adopts and incorporates by reference the arguments in Section Ill.C.
of the Church's Brief. Tex. R. App. P. 9.7.
Plaintiff asserts a claim for tortious interference with contract and concedes
she must prove: 1) plaintiff had a valid contract; 2) the defendant willingly and
intentionally interfered with the contract; 3) the interference proximately caused
the plaintiff injury; and 4) plaintiff incurred actual damage or loss. 23 CR. 2748;
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002); Prudential Ins. Co.
of Am. v. Fin. Review Servs., Inc., 29 SW3d 74, 77 (Tex. 2000), see also Hill v.
Heritage Res. Inc., 964 S.W.2d 89, 123 (Tex. App.-El Paso 1997, pet.
denied)(interfering party must have actual knowledge of the existence of the
contract and of the plaintiffs interest or knowledge of such facts and
circumstances as would lead a reasonable person to believe in their existence).
Plaintiff failed to establish. by clear and specific evidence, that Appellant Lubow
tortiously interfered with any contract.
8
Plaintiff alleges she had a valid employment contract, however, she never
presented any evidence of that alleged contract.
Plaintiff failed to present any clear and specific evidence of how any
defendant specifically, and defendant Lubow, in particular, attempted to or
supposedly succeeded in interfering with her employment contract.
1
Plaintiff also
failed to present any clear and specific evidence that Lubow proximately caused
her damage, i.e that he caused her to lose her job. In fact, the evidence she did
present was that she voluntarily resigned from her job. 11 CR 1361, 1382; 27 CR
3229.
The only specific evidence that Lubow had any contact regarding Plaintiff's
work are his alleged conversations with Tanya Torrez and Melissa Montana. 42
CR 4883; 28 CR 3364-66. However, Plaintiff's own submission establishes that
Tanya Torrez worked with "[Plaintiff] at Coastal Bend Center for Independent
Living (CBCIL) in Corpus Christi for several months during the years of2006 and
2007." 42 CR 4883. However, Plaintiff's tortious interference claim is based
upon her having resigned from a different company, Superior Health Plan of
Corpus Christi, in 2011. 23 CR 2756. As such, testimony by Ms. Torrez,
Plaintiff's co-worker at CBCIL in 2006/07, cannot be clear and specific evidence
1
Plaintiff provides no specificity of any alleged interference: she does not allege that she
lost employment; that her compensation or benefits were reduced under the contract or that she
was not promoted or considered for promotion. See Church's Brief at Section III. C.
9
of any element of Plaintiffs tortious interference with contract claim for allegedly
losing her job at a completely different company, Superior, in 2011.
Similarly, the only clear and specific evidence in Plaintiffs own submission
establishes that Melissa Montana spoke with Lubow "shortly after [Plaintiff] left
[her employment at] Superior" when Lubow allegedly came into Superior's office
and started asking questions of the receptionist about Plaintiff. 28 CR 3364 ~ &
5. Because Lubow's contact with Ms. Montana occurred after Plaintiff voluntarily
left her employment at Superior, it cannot be evidence in support of Plaintiffs
claim that Lubow tortiously interfered with her employment at Superior and caused
her to lose her job there.
The Plaintiff attempts to support her claim for tortrious interference with
contract, and the other 3 causes of action, by implying that Lubow sent items to
Plaintiffs work. However, under scrutiny, these general and sweeping allegations
do not raise to the level of clear and specific evidence as required by the TCP A and
do not establish that Lubow took such action. The Plaintiff would have the court
infer that Lubow was the man who Ms. Montana references in paragraph 4 of her
declaration, who made a phone call to the office at Superior, was rude and made
derogatory statements about Plaintiff. 28 CR 3364-66. Plaintiff would have the
court further layer inference upon inference to determine that the allegations that
someone sent items of a sexual nature to Ms. Rathbun's work, referenced in
10
paragraph 3, are attributable to Lubow as well. 28 CR 2364-66. However, in order
to draw these conclusions, the court would have to employ inferences that the
"man" referenced in paragraph 4 and the person who sent items referenced in
paragraph 3 is the same man who "arrived at Superior's offices in Corpus Christi
and started asking questions of the receptionist about Monique" in paragraph 5. I d.
at ~ 4 But the court is not allowed to make such inferences. See, e.g., Rehak
Creative Services, Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.-Houston [14
1
h
Dist.] 2013)(establishing "clear and specific" evidence as an "elevated standard"
that excludes the use of presumption or inference). Even if the court could make
these inferences, Plaintiffs evidence is still not clear and specific evidence that
these events caused Plaintiff to lose her job. See generally TCPRC 27.005(c/
Plaintiff makes the bald statement that the "Scientology operatives openly
followed me as I drove to and from work." 23 CR. 2755; 23 CR 2772 ~ 6
However, she fails to identify who the "Scientology operatives" were, and does not
identify Lubow specifically as following her to and from work. Id. In addition,
there is no evidence presented by Plaintiff that this alleged activity offollowing her
to and from work had any causal connection to her work and, in any way, supports
2
The Plaintiff would demand the court make further inferences that the declarations ofDocine
Kelly and Franklin Carle are evidence that Lubow tortiously interfered with Plaintiffs contract
with her employer Superior. However, these declarations again do not mention Lubow by name
or even by reference. 33 CR 3922; 33 CR 3923. Also, Ms. Kelly is Plaintiffs mother and Mr.
Carle is Plaintiffs former husband, and they provide no evidence that they are in any way
associated with Plaintiff allegedly losing her job.
11
her tortious interference with contract claim. Again, there is such a lack of clarity
or specificity as is required by the anti-SLAPP statute. TCPRC 27 .005( c).
B. Plaintiff's Invasion of Privacy Claim for Intrusion Should Be
Dismissed.
Lubow adopts and incorporates by reference the arguments in Section III.B.
of the Church's Brief. TEX. R. APP. P. 9.7.
Specifically, Plaintiff asserts an invasion of privacy claim for intrusion upon
seclusion and concedes she must prove: 1) the defendant intentionally intruded on
the plaintiffs solitude, seclusion or private affairs; 2) the intrusion would be highly
offensive to a reasonable person; and 3) the plaintiff suffered an injury as a result
of the defendant's intrusion. 23 CR 2748; See Valenzuela v. Aquino, 853 S.W.2d
512 (Tex. 1993); Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497, 500 (Tex.
App.-Austin 1989, writ denied). Intrusion upon seclusion is "generally
associated with either a physical invasion of a person's property or eavesdropping
on another's conversation with the aid of wiretaps, microphones, or spying."
Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.-Tyler 2006, no pet.).
There is no clear or specific evidence that Lubow invaded Plaintiffs
property as contemplated in Vaughn. Plaintiff details the Squirrel Busters'
supposed bad behavior. 23 CR 2757-59; 11 CR 1357-59, however, she concedes
the Squirrel Busters did not trespass on her property. 3 RR 200. The Squirrel
Busters confirm this. 2 CR 279, 290, 299-300. Plaintiff claims the Squirrel
12
Busters were "often lead by David Lubow," however, she provides no specific
evidence of this and does nothing other than provide her personal, general
comments, that David Lubow would "lead" the Squirrel Busters. 23 CR 2772
~ 7 c But even that fails to provide any evidence that he "lead" them onto or in her
property.
The Plaintiff relies on Bert Leahy's testimony that Lubow supposedly said
that the Squirrel Busters wanted to make the Rathbuns' life a living hell. 12 CR
1516. Even if this were true (which Lubow denies), this does not support any of
the elements of invasion of privacy for intrusion upon seclusion. Leahy provides
no evidence, much less clear and specific evidence, that any of the Squirrel
Busters, or Lubow, individually, physically invaded the Plaintiffs property or that
the Squirrel Busters or Lubow eavesdropped using electronic devices, wiretap or
other spying methods. !d.
Plaintiffs only attempt to specify Lubow's actions is her claim that Lubow
"confronted me and my husband when we were trying to have a private dinner at
Nightlinger's Restaurant in Ingleside, Texas." 23 CR 2773 ~ 7 g This is not the
invasion into a person's property as required in Vaughn. Vaughn v. Drennon,
202 S.W.3d 308, 320. Rather, the alleged incident took place in a public
restaurant.
13
Also, Plaintiffs general comment that Lubow "confronted [her] and [her]
husband" does not meet the requirement of an intrusion that would be highly
offensive to a reasonable person, unless an improper inference is made. See
Rehak, 404 S.W.3d at 726-27. Plaintiffs claim that Lubow "confronted" her is so
general and lacks specificity, and is so subjective, that it could include such
innocent actions as walking by their table near the restaurant or simply saying hello
to them as they ate.
There is also no evidence, let alone clear or specific evidence, that Lubow 1)
eavesdropped on Plaintiffs conversation with the aid of wiretaps, microphones, or
spying, 2) used any electronic surveillance or any form of a microphone to
overhear private conversations, or 3) obtained any view of the Plaintiffs homes
that could not be seen from the public street. Vaughn, 202 S.W.3d at 320; see also
Wehling v. Columbia Broad. Sys., 721 F.2d 506, 509 (5th Cir. 1983) ("broadcast
provided the public with nothing more than could have been seen from a public
street"); Webb v. CBS Broadcasting, Inc., No. 08 C 6241, 2011 WL 4062488 (N.D.
Ill. Sept. 13, 20 11) (dismissing claim for intrusion where defendants used zoom
lens to film plaintiff from across the street, on grounds that plaintiffs activities
were in plain view and she made no attempt to keep them private); Webb v.
Glenbrook Owners Ass 'n, Inc., 298 S.W.3d 374, 387 (Tex. App.-Dallas 2009, no
pet.) (holding that property owner had "lawful right" to install surveillance
14
cameras looking out from his property to adjoining property, and that such
surveillance did not constitute intrusion on privacy of adjoining owner).
In fact, the only specific evidence regarding Lubow is that he interviewed
Plaintiff's co-workers and family members either in person or over the telephone.
28 CR 3364-66; 33 CR 3923; 42 CR 4883.
3
This is not clear and specific evidence
so as to establish a prima facie showing against Lubow for invasion of privacy by
intrusion upon seclusion. TCPRC 27.005(c).
C. Plaintiff's Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed.
Lubow adopts and incorporates by reference the arguments in Section liLA.
ofthe Church's Brief. Tex. R. App. P. 9.7.
Plaintiff asserts invasion of privacy by public disclosure of private facts and
admits she must prove 1) the defendant publicized information about the plaintiff's
private life; 2) the publicity would be highly offensive to a reasonable person; 3)
the matter publicized is not of legitimate public concern; and 4) the plaintiff
suffered an injury as a result of the defendant's disclosure. 23 CR. 2748.
3
See Cornhill Insurance PLC v. Valsamis, 106 F.3d 80, 85 (5th Cir. 1997)(Fifth Circuit
addressed a claim for invasion of privacy where offensive comments and inappropriate advances
were made toward the plaintiff and the court held that the plaintiff could not recover for invasion
of privacy based on the intentional intrusion upon her solitude or private affairs because she did
not allege a "physical invasion of a person's property or eavesdropping on another's
conversation with the aid of wiretaps, microphones, or spying"); see also Clayton v. Wisener,
190 S.W.3d 685, 696-97 (Tex. App.-Tyler, 2005, pet. denied) (reversing judgment in favor of
plaintiff on intrusion claim where no evidence that defendant "physically invaded [the plaintiffs]
property or eavesdropped on one of her conversations").
15
Plaintiff's claim for invasion of privacy by publication of private facts must
fail because the tort of invasion of privacy by publication of private facts requires a
plaintiff show that the defendant publicly disclosed true, but highly embarrassing
private facts about the plaintiff; that such publication was highly offensive to a
reasonable person; and that the matter publicized was not of public interest. Star
Telegram, Inc. v. Doe, 915 S.W.2d 471,473-74 (Tex. 1995).
Plaintiff does not allege and has not set forth any evidence that Lubow or
any other Defendants publicized true, private facts about her, but rather, complains
that Lubow allegedly made comments regarding Marty Rathbun, which does not
give rise to a cause of action for Plaintiff. Id; 42 CR 4883.
Plaintiff cannot establish that Lubow made facts about Mr. Rathbun "public"
as is required under Texas law, which requires dissemination of the private facts
"to the public in general or to a large number of persons, as distinguished from
one individual or a few." WILLIAM L. PROSSER, TORTS 117 (4th Ed.). The
evidence presented by the Plaintiff is that comments about her husband were made
to 4 people: Doncine Kelly, Franklin Carle, Tanya Torrez and Melissa Montana.
33 CR 3922; 33 CR 3923; 42 CR 4883; 28 CR 3364-66. This is too small a group
to constitute the "public" as required under Texas law. As it relates to Lubow,
only Ms. Torrez attributes the comments to Lubow. 42 CR 4883. Ms. Kelly
attributes the comments to someone else completely (reporter Jim Lynch). 33 CR
16
3922. Mr. Carle and Ms. Montana cannot identify the person who made comments
to them about Marty Rathbun. 33 CR 3923; 28 CR 3364. Therefore, the only clear
and specific evidence is that Lubow asked questions about Marty Rathbun to only
I person, Ms. Torrez, and that disclosure, to that one person, is insufficient to
uphold a claim for public disclosure of private facts.
D. Plaintiff's Claim for Intentional Infliction of Emotional Distress
Should Be Dismissed.
Lubow adopts and incorporates the argument m Section III.D of the
Church's Brief TEX. R APP. P. 9.7.
Plaintiff makes a claim for intentional infliction of emotional distress and
admits she must prove: (I) the defendant acted intentionally or recklessly; (2) its
conduct was extreme and outrageous; (3) its actions caused her emotional distress;
and ( 4) the emotional distress was severe. 23 CR 2748; Kroger Tex. Ltd. P 'ship v.
Suberu, 216 S.W.3d 788, 796 (Tex. 2006). Plaintiff also concedes that she can
succeed on an liED claim only if there are no alternative causes of action that
would provide a remedy for the severe emotional distress she claims is caused by
the Defendants' conduct. 23 CR 2748.
Plaintiff alleges that Lubow engaged in conversations with her co-workers
regarding Marty Rathbun. 42 CR 4883; 28 CR 3364-66. As noted in plaintiffs
petition, she makes claims against Lubow on these same facts for invasion of
privacy, public disclosure of private facts and in her claims for tortious interference
17
with contract. 10 CR 1275. Because the Plaintiff uses these same actions by
Lubow in support of all her other claims, she is precluded from relying upon liED
as the gap-filler to seek damages for these alleged bad acts. See Creditwatch, Inc.
v. Jackson, 157 S.W.3d 814, 818 (Tex. 2005) (quoting Hoffmann-La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)).
In addition, Plaintiffs allegations that Lubow engaged in conversations with
her co-workers or, by inference, her family members, do not rise to the level of
extreme or outrageous conduct as required to establish a claim for liED. Even if
Lubow said all the things Plaintiff claims he did to her co-workers and/or family,
questions regarding Marty Rathbun's family and medical history are not so
outrageous or extreme as to give rise to a claim for liED. Such questions or
statements are like those of any investigative reporter. See Brewerton v.
Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999)(mere insults, indignities, threats,
annoyances, petty oppressions or other trivialities do not constitute outrageous
behavior). Such conduct by Lubow, even if true, would not meet the elements of
liED. As such, plaintiff has failed to provide clear and specific elements of liED
as it relates to Lubow-or any other Defendant.
E. Plaintiff Presented No Evidence to Support Vicarious Liability
against Lubow for the Actions of any other Defendant.
Lubow adopts and incorporates by reference the arguments in Section III.E
of the Church's Brief and in Section liLA of Drake's Brie TEX. R Arr. P. 9. 7.
18
Plaintiff makes bald claims of vicarious liability in broad, sweeping, global
terms as between all the Appellants. 10 CR 1276-78. She asserts every possible
theory for vicarious liability whether recognized under Texas law or not. Id.
Plaintiffs vicarious liability theories include conspiracy, concert of action,
assisting or encouraging or assisting and participating, partnership, joint enterprise,
agency, respondeat superior, disregarding the corporate structure and ratification.
Id. at 1276. Plaintiff fails to present any evidence on these elements. 23 CR 2748-
69. Plaintiff also fails to separate out which theories are asserted against which
Appellants and fails to separate out which theories apply as between the various
Appellants. Such claims to not merit any credence.
More specifically, Plaintiff cannot support many of the theories because they
require proof of an underlying tort or unlawful act or some injury caused to the
Plaintiff by the Defendant and Plaintiff has failed to establish any tort or unlawful
act or injury caused by Lubow. See Section III, supra. These include the theories
of civil conspiracy, concert of action, assisting or encouraging or assisting and
participating, joint enterprise, and respondeat superior.
Plaintiff also does not assert disregarding the corporate structure as against
Lubow. 10 CR 1277-78.
As to the theory of partnership, Plaintiff failed to present any evidence that
Appellants sought any pecuniary interest in their endeavors. 10 CR 1276-78.
19
Finally, as to agency, Plaintiff asserts that the individual Appellants are
agents of the Church (1 0 CR 1277), but provides no evidence that the individual
Appellants are agents of any other individual Appellants. See generally 23 CR
2748-69.
Plaintiffs claims for vicarious liability are just more evidence of Plaintiffs
broad, sweeping allegations that break down under scrutiny.
IV. THE DISTRICT COURT ERRED IN A WARDING
ATTORNEYS' FEES AND COURT COSTS AGAINST LUBOW
AND IN FAILING TO AWARD HIM HIS FEES AND COSTS.
Lubow adopts and incorporates the argument in Section IV. of the Church's
Brief. TEX. R APP. P. 9.7.
CONCLUSION AND PRAYER
Appellant David J. Lubow prays that this Court reverse the trial court's order
which denies his Motion to Dismiss and awards fees and costs against him, grant
his Motion to Dismiss, and render judgment for him, dismissing all of Plaintiffs
claims with prejudice and remanding for further proceedings concerning his claim
for attorneys' fees and costs under the TCPA. Lubow prays for such other and
further relief to which he may be entitled.
June 11, 2014
20
Respectfully submitted:
By: /s/ Stephanie S. Bascon
Stephanie S. Bascon
SBN 19356850
Law Office of Stephanie S. Bascon PLLC
297 W. San Antonio St.
New Braunfels, Texas 78130
(830) 625-2940
(830) 221-3441 facsimile
ATTORNEY FOR APPELLANT
DAVID J. LUBOW
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R APP. P. 9.4(i)(3), the undersigned hereby certifies that
this Brief of Appellants complies with the applicable word count limitation
because it contains 4648 words, excluding the parts exempted by TEX. R APP. P.
9.4(i)(1). In making this certification, the undersigned has relied on the word-count
function in Microsoft Word 2007, which was used to prepare the Brief of
Appellants.
/s/ Stephanie S. Bascon
Stephanie S. Bascon
21
CERTIFICATE OF SERVICE
The undersigned certifies that on the 11th day of June, 2014, the foregoing
Brief for Appellant David J. Lubow was served on the following attorneys in
accordance with the requirements of the Texas Rules of Appellate Procedure via
electronic filing or email.
Ray B. Jeffrey
A. Dannette Mitchell
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163
Elliott S. Cappuccio
PULMAN, CAPPUCCIO PULLEN
& BENSON, LLP
2161 N.W. Military Hwy., #400
San Antonio, TX 78213
J. Iris Gibson
HAYNES & BOONE LLP
600 Congress Ave., Suite 1300
Austin, TX 78701
0. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, TX 75202
Ricardo Cedillo/ Isaac Huron
Davis Cedillo & Mendoza
McCombs Plaza, Ste. 500
755 E. Mulberry Ave.
San Antonio, TX 78212
George H. Spencer
Clemens & Spencer
112 E. Pecan St., Ste. 1300
San Antonio, TX 78205
Marc F. Wiegand
THE WIEGAND LAW FIRM, P.C.
434 N. Loop 1604 West, Suite 2201
San Antonio, TX 78232
Lamont A. Jefferson
HAYNES & BOONE LLP
112 E. Pecan Street, Suite 1200
San Antonio, TX 78205-1540
Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, TX 78130
Bert H. Deixler
.KENDALL BRILL KLIEGER
10100 Santa Monica Blvd., Suite 1725
Los Angeles, CA 90067
Wallace B. Jefferson
Rachel Ekery
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, TX 78701
Thomas S. Leatherbury
Marc A. Fuller
VINSON & ELKINS LLP
22
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700
New York, New York 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
/s/ Stephanie S. Rascon
Stephanie S. Bascon
23
APPENDIX
Anti-SLAPP Motions of All Defendants Findings of Facts
And Conclusions of Law & Ruling DENYING All
Anti-SLAPP Motions to Dismiss
31 CR3753-77
150 N. Seguin. Suite 317
New Braunfels, Texas 78130
DffiWALDRIP
PRESIDING JUDGE
830-221-1270
Fax 830-608-2030
433RD JUDICIAL DISTRICT COURT
COMAL COUNTY
CAUSE NO. C2013-1082B


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MONIQUE RATHBUN,












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PLAINTIFF
v.
DAVID MISCAVIGE, RELIGIOUS
TECHNOLOGY CENTER, CHURCH
OF SCIENTOLOGY INTERNATIONAL,
STEVEN GREGORY SLOAT, MONTY DRAKE,
DAVE LUBOW AiKIA DAVID .J. LABOW, AND
ED BRYAN,
DEFENDANTS
207TH .JUDICIAL DISTRICT
COMAL CouNTY, TExAS
ANTI-SLAPP MOTIONS OF ALL DEFENDANTS FINDINGS OF FACT AND CONCLUSIONS
OF LAW & RULING DENYING ALL ANTI-SLAPP MOTIONS TO DISMISS
FINDINGS OF FACf
I. Defendant Church of Scientology International ("CSf'), by and through its
agents or contractors. including Defendants David Lubow, Monty Drake and Greg
undertook extensive surveillance of Plaintiff and her husband over a collective period of
more than four years-possibly six. Monty Drake actually began the investigation of
Mark Rathbuo in 2007. See Deposition of Monty Drake at 52:16-19. He started
Page 1 of25
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3753
investigating Mark Rathbun for potential Scientology trademark violations. See Affidavit
of Monty Drake '1[7.
1
Scientologist David Lubow has likewise stated that he is a private
investigator and filmmaker and was hired by CSI's attorney Elliot Abelson prior to 2009
to investigate Mr. Rathbun in support of prospective litigation regarding alleged
violations by Mr. Rathbun of intellectual property rights owned by CSI. See Affidavit of
David Lubow '11'113-4.
2. Certain of the activities about which Plaintiff complains were conducted
by persons calling themselves the "Squirrel Busters" beginning in Apr!! 2011. Defendant
CSI admits that it prompted and sponsored the Squirrel Busters. See Affidavit of Allan
Cartwright @ ,-r 23. Buster" Richard Hirst indicates that his first involvement
came after he was notified of the proposed activities when he ''received a call from a staff
member of the Church of Scientology International" (Defendant CSI). See Affidavit of
Richard Hirst @ 'If 5. Wanting to assist Scientologists to document Mark Rathbun's
provision of Scientology, CSPs Legal Director Cartwright acknowledges that
CSI provided financial and legal support. See Affidavit of Allan Cartwright @ '1[23.
3. In his declaration filed by Defendant CSI, Hirst admits the Squirrel
Busters instigated the first Ingleside on the Bay confrontation on '"the very first day" at
the Rathbuns' front door purportedly to conduct a inspection" of Mark
Rathbun's procedure as a Scientology minister/auditor. See Affidavit of Richard Hirst@
,-r 10. This initial Squirrel Buster event was video-taped and shown in court displaying
numerous Squirrel Busters at the Rathbuns' door wearing distinctive provocative t-shirts
portraying Mark Rathbun as a squirrel with a red-slashed circle over the depiction and
Defendants CSI, Monty Drake, and David Lubow use the same affidavits and declarations in their
Anti-SLAPP motions. Eacb motion wm be referred to as .. Defendants' Anti-SLAPP Motions,"
collectively.
Page2 of25
3754
several Squirrel Busters had video cameras and microphones of their including
some with head-mounted etc. From this point forward, it is clear, and the
Court so finds, that few if any were civil with both sides either initiating
or reciprocating. See various declarations filed either in support of or in response to the
Anti-SLAPP motion to dismiss.
4. Defendant Ed Bryan was sent from California by the Office of Special
Affairs ("OSA"), a division of CSI, to join the Squirrel Busters in Texas. On July 13,
2011, Bryan wrote:
.... This is in co-ordination with OSA Int. They are calling the shots
and quite frankly I don't think it is very effective. The reporters carne
to our house the other day and we didn't tell them very much. Our
main guy went back to discuss with them a different strategy. The rat
is getting more brazen and yesterday I actually had a 1 minute comm
cycle with him while he was on a walk. The guy is nuttier than a
fruitcake. He's gone off the deep end. Taking him down will be no easy
task. _ . . . See Exh. E to Plaintiff's 2nd Amended Response to Anti-
SLAPP Motions to Dismiss [emphasis added].
'"[l]n the vicinity of the Rathbun home/office," Joanne Wheaton '"regularly
participated" in the Squirrel Buster activities "[o]ver a period of several months."
See Declaration of Joanne Wheaton @ 'n 3 & 6. While doing so, a house was
rented by Lubow two blocks from the Rathbuns ""home/office" for Wheaton and
other Squirrel Busters to stage their activities from which a golf cart was also
utilized to travel back and forth. !d. @ 'IJ4. The participating individual "Squirrel
Busters" varied from time to time as they left and returned at different times for
different reasons. Id.@ 14. See also Affidavit of Richard Hirst@ 'IJ7.
A videographer, Bart Parr, was hired by private investigator Dave, a.k.a.
David, Lubow to film the project "at or near Rathbun's office." See Declaration
Page3 of:ZS
3755
of Bart Parr @ 'll'll 4 & 6. The project occurred "over a period of approximately 6
months." Id. @ 6. Evidence identifies, and the Court so finds, the period of time
of the Squirrel Buster activities as having started and ended, respectively, in April
2011 and in September 2011. See Affidavit of Richard Hirst @ 'l1 10 and
Declaration of Joanne Wheaton @ 'l1 14.
5. The investigators, videographers and Squirrel Busters "interacted with the
Rathbuns many [possibly of] times over a period of these several months,
usually when the golf cart was parked near their office [on a dead-end street when]
filming was or [when] traveling about the little town.u See Declaration of
Joanne Wheaton @ 11J 6. In private investigator Monty Drake utilized
"surveillance, videotaping and static to film areas the
officclhomen in part from inside a second house rented by Drake across the
street from the Rathbuns. See Affidavit of Monte Drake @ 'l1 9. Without any time
Drake acknowledges that he was able ''to observe persons coming and going
from the office!home.n See /d. For several months, when the Rathbuns left
their home, the Squirrel Busters group appeared in a golf cart to confront the Rathhuns
with video cameras and taunts. See Mark Rathbun Declaration in Support of Plaintiff's
Second Amended Response to Defendants' Motion to Dismiss
2
'l1 27. Due to both this
constant surveillance and the Squirrel Buster activity cited above. Defendants knew when
Plaintiff left home and when she was home alone due to her husband having left their
residence. See First Amended Declaration of Monique Rathbun in Support of Plaintiff's
2
Hereinafter referred to as "Mark Rathbun Declaration."
Page 4 of2S
3756
Second Amended Response to Defendants' Motion to Dismiss
3
'lf'lfll, lla. 11 b, llc, 13a,
13c, 15, !Sa and 15b. When her husband was out of town, Plaintiff was visited at home
on several occasions by unknown individuals who refused to give their names. Id.@, 5.
6. Bert Leahy was also hired as .a videographer for the Squirrel Busters
group. He was told by Defendant Lubow that Lubow had two private investigators who
were engaged in surveillance of Plaintiff and her husband and were able to keep track of
the Plaintiff's movements on a 24n basis. See Declaration of Bernard "Bert" Leaby 'lf6.
Leaby was directed by Lubow to film the Squirrel Busters taunting and harassing the
Rathbuns. /d. Although denied by Lubow (see Declaration of David Lubow 'If 4), Leaby
declared to have been told that the purpose of the Squirrel Busters' mission was "to make
the Rathbuns life a living hell .. and "to turn their neighbors against them .. so that Plaintiff
and her husband would be forced from their residence. Id. Leahy's declaration is
corroborated by stated desire to, in-part, create a documentary showing
[Rathbuo's] true nature as a violent, fuolish 'squirrel'." Declaration of David Lubow@ 'If
12. Assisting in this process, CSI hired Ralph Gomez as "muscle." See Declaration of
Bert Leaby @ 'lf6.
7. No evidence demonstrates that any of the complained-of Squirrel Buster
or investigative activities occurred at an actual church, at a mission, at a place of worship
or during any other type of religious service or ceremony; rather, most of the
including those cited by declarants for Defendant CSI, occurred at locations described by
the declarants as the Rathbuns' "home," ''business/residence/'
"office," "home/office/' or "office/home.'" See various declarations filed either in
support of or in response to the Anti-SLAPP motion to dismiss.
3
Hereinafter referred to as ''First Amended Declaration of Monique Rathbun."
Page 5 oflS
3757
8. Defendants published information from their Squirrel Buster activity and
continuous surveillance of the Rathbuns on the internet, a dedicated YouTube c h n n e l ~
and on a website, which included a section called ''Spy Corner" that discussed
information obtained by the surveillance of the Rathbuns. See Declaration of Bart Parr@
'If 15. See also Declaration of Mark Rathbun @ 'If 28. Also published was information
about visitors to and from the Rathbun home creating a chilling effect upon Mark
Rathbun and possibly others. Id.
9. At unspecified times subsequent to 2009, Plaintiff also received
anonymous and threatening phone calls, and she was followed to and from work. See
First Amended Declaration of Mouique Rathbun 'If 6. Squirrel Busters and Scientology
investigators or operatives followed Plaintiff to and from restaurants. Id , 7g. See also
Declaration of Monte Drake @'If 11 {Drake and others followed "Rathbun's car"). See
also e.g., Declaration of Joanne Wheaton @'If 7 (Mark a.k.a Marty Rathbun drove a
"large pick-up truck."). Plaintiff was similarly followed to and from shopping. See First
Amended Declaration of Mouique Rathbun @ 'If 15a. She was similarly followed while
walking her dog. Id. @ 'If 8. The Rathbuns were followed even when they took measures
to avoid being seen leaving their house. See Declaration of Mark Rathbun@ 1f 29.
10. Between September 2010 and December 2012, Lubow, a.k.a. David
Statter, interviewed and confronted Plaintiff's family, friends. and co-workers
disparaging Plaintiff, her husband, and his family. See Declaration of Franklyn R. Carle
@'If 4; Declaration ofTonya Torrez@ 'If 3; Declaration ofDoncine Kelly@ 'If 3.
11. Seeking to avoid the harassment, embarrassment, disruption and extreme
distress imposed on her in the workplace while living in Ingleside on the Bay by
Page 6 of25
3758
Defendant Lubow and the other Defendants, Plaintiff gave notice on April 1, 2011, to her
then-employer thst she would leave her job at the endofthst month. See First Amended
Declaration ofMonique Rathbun@ ff !!a, llb, llc and lld; Mark Rathbun Declaration
@',P3.
12. In October 2012, the Rathbuns discovered Drake's surveillance cameras
aimed at their residence from a house across the street on the same cul-de-sac. See Mark
Rathbun Declaration @ 1 28; First Amended Declaration of Monique Rathbun @ 1 13
and 13a. Drake attested thoroughly that his surveillance and investigative efforts sought:
information concerning (a) crimes or wrongs done or threatened against CSI or
other churches of Scientology, (b) the identity, habits. conduc4 business,
occupation, honesty, integrity, credibility, knowledge, activity, m o v m n t ~
whereabouts. affiliations, associations, transactions, acts, reputation, or character
of Rathbun and those associated with him, (c) the location, disposition and
recovery of misappropriated or stolen Property, or (d) securing evidence to be
used before a court or for complaints to appropriate law enforcement. See
Affidavit of Monte Drake@ 1 10. See also substantially similar
affidavit of David Lubow @ 1 7.
13. The Rathbuns left the constant harassment and electronic surveillance in
Ingleside on the Bay by moving to a secluded homesite in Bulverde, Texas. See First
Amended DeclarationofMonique Rathbun@ 11 11, lla, llc and 14.
14. The move caused the Rathbuns to lose $36,000 in lease/purchase equity in
their Ingleside on the Bay home. See First Amended Declaration of Monique Rathbun @
11 11, !Ia, llc and 14.
15. In spite of efforts to find a secluded new homesite, Scientology agents
resumed tailing the Rathbuns in Bulverde and San Antonio, Texas, while Mark Rathbun
continued to ''counsel'" Scientologists. See First Amended Declaration of Monique
Rathbun @ 1 1 Sa; Declaration of Mark Rathbun @ 1 32; The Rathbuns also discovered
Page 7 of:ZS
3759
custom-adapted surveillance cameras in the woods behind their home in Bulverde. See
First Amended Declaration of Monique Rathbun @ , 15, 15a; Declaration of Mark
Rathbun @ , 33. Defendant Sloat answered a phone call from Mark Rathbun using a
number found near the cameras. See Declaration of Mark Rathbun @ , 33. Sloat
acknowledges that he was hired to see who Mark Rathbun seeing (as] clients and
that "the object of [the investigation] was Mark Rathbun's associations and business
dealings." See Affidavit of Steven Gregory Sloat@, 5 & 11 [emphasis added].
16. After Plaintiff moved to Bulverde, Defendants' agents or contractors also
appeared at Plaintiff's new place of work and followed Plaintiff to the ladies room, and
the same individual also followed Plaintiff to the grocery store. See First Amended
Declaration of Monique Rathbun @, !Sa.
17. Plaintiff has demonstrated that she has been personally harmed and injured
as a result of these activities in both Ingleside on the Bay and Bulverde. See First
Amended Declaration ofMonique Rathbun@, S, 7d, 7h, lib, lie, !Sa, 16, & 16a.
18. On August 16, 2013, the Court issued a Temporary Restraining Order
against the harassment.
19. Plaintiff received counseling and auditing services from Mark Rathbun.
See Affidavit of Allan Cartwright@, 7 (quoting Mark Rathbun as justification to apply
tenn of "squirrel"). Plaintiff and her husband, Mark Rathbun, offered similar
services as a business for which they received monetary compensation. including auditing
services that are purportedly based on the ''tech" ("correctly applying Scientology
procedure") and services offered by the Church of Scientology. See Affidavit of John
Allender @ , 9 in support of Defendants' Anti-SLAPP Motion. See Affidavit of David
Page 8 of25
3760
Lubow@ mf9 and 10. See Affidavit of Allan Cartwright@ ,'115 to 8, 10, 13, 15, 17, 23,
& 27, in support of Defendant CSl's Anti-SLAPP Motion. These business services were
offered in competition to similar goods or services offered by Defendant CSI's and/or its
missions or other affiliates in the Church Scientology. See Defendant CSI's Motion to
Dismiss @ 'II 9, citing Affidavit of Allan Cartwright @ mf 5 to 8. See Affidavit of
Defendant David Lubow@ '1!10.
20. Both orally and in writing. Defendants have admitted, asserted and argued
that their activitiest directed at and having an effect upon Plaintiff, were connected with,.
or in relation to, Mark Rathbun,s alleged involvement in offering unauthorized
Scientology services including auditing, using protected Scientology in a
manner not approved by Defendant CSI, and profiting from a business using such
services offered from and provided a4 his and Plaintiff's residence in Ingleside on the
Bay and Bulverde, Texas. See citations in 17 & 19 above. See also Affidavit of
Monte Drake @, 12. On February 4, 2014, counsel for Defendant CSI argued that the
Rathbun home was a place of business using Scientology practices for a fee that were
allegedly advertised on Craig's List. See Reporter's Transcript 146:22; 147:9; 151 :23;
and 158:6-159:8. Defendant CSI's Counsel implicitly agreed, and the Court so fmds, that
investigating and protecting the value of the trademarks is a primary function and
responsibility of Defendant CSI as the exclusive licensee of Defendant RTC's
trademarks. See /d. @ 157:14-158:24 & Page 2 of Defendant CSI's Power Point court
presentation (copy attached).
Page 9 of25
3761
21. As Defendant CSI asserts and argues, Mark Rathb='s activity of offering
Scientology services is a business. If s ~ the Church,s own activity of offering
Scientology services is also a business.
22. The complained-of activity, which Defendants claim was inpart
documentary making, reporting, and protesting at Mark Rathb=' s "office," was intended
to and/or did have an effect (be it positive or negative--depending upon perspective) on a
specific audience of consumers-principally those interested in Scientology
"technology," including Scientology members, former members such as Mark Rathbun,
and non-member users of the technology such as Plaintiff. See e.g., Affidavit of Allan
Cartwright @ '11'11 23-24 (Although Cartwright also claims pamphlets were distributed to
citizens of Ingleside, the evidence lacks weight and credibility due to his lack of personal
knowledge coupled with the fact that no Squirrel Buster attested to such activity.);
Mfidavit of David Lubow@ '11'1111-12; Affidavit of John Allender@ 'IJ'IJ6-9; Declaration
of Bart Parr@ '11'11 5, 6, 8, & 15; Declaration of Joanne Wheaton@ '11'1!2-4, 6 & 10; First
Amended Declaration ofMonique Rathbun@ 'IJ'IJ7, 7a. 7b, 7c, 9, 10, lid, 13, J3a & 14;
Declaration of Mark Rathbun @ '11'11 28-30. Further, no credible evidence from an un-
interested witness indicates an intent by any of the CSI defendants, collectively, to
genuinely inform the general public as their audience. While Scientologist Lubow does
aver that the purpose of the documentary and protest was to educate the general public,
he did so only after stating that the purpose was primarily to educate other Scientologists.
See Affidavit of David Lubow @ 'II II. See also the substantially similar sentence in
Declaration of Jolm Allender @ , 6. As to his selfserving statements, Allender's
credibility is suspect in that he admits filing a fictitious public document with the City of
Page 10 of25
3762
Campbell. California to create a business name for "Squirrel Buster Productions.,. Id. @
op.
23. The primary reason CSI initiated the complained-of activity was to
investigate alleged infringement of its intellectual property rights by both Mark and
Monique Rathbun allegedly occurring as early as January 29, 2009, if not before. See
Affiddavit of Allan Cartwright @ mf 6, 8, 17 and 27. See Affidavit of Defendant David
Lubow @ 'II 6. See also Deposition of Monty Drake 52: 16-19 (investigation began in
2007).
24. No evidence indicates that either Defendants CSI or the Religious
Technology Center has ever sent Mark Rathbun a cease and desist letter or sued Mark or
Monique Rathbun for infringement of intellectual property rights or any other cause of
action. See Declaration of Mark Rathbun @ '11'11 8 & 10. Although 'II 21 of Cartwright's
Affidavit lists legal cases Mark Rathbun has been allegedly involved in regarding
Scientology in general (not admitted for the truth of the matters asserted), Cartwright
does not, in any of his testimony, point to any litigation wherein CSI has sued Mark
Rathbun for any cause of action.
CONCLUSIONS OF LAW
!. Any of the foregoing findings of fact that may be deemed to constitute
conclusions of law shall be so considered and any finding of fact that also constitutes a
conclusion of law is adopted as a conclusion of law. Any conclusions of law below that
may be deemed to constitute findings of fact shall be so considered and any conclusion of
law that also constitutes a finding of fact is adopted as a finding of fact.
Page 11 of25
3763
2. Defendants seek dismissal under the Texas Citizen's Participation Act,
Tex. Civ. Prac. & Rem. Code 27.001, et a/. (West Supp. 2013) (hereinafter, the
"Act"). Under the Act, the Court has an equal duty to safeguard the constitutional rights
of persons to petition,. speak associate freely and otherwise participate in
government to the maximum extent by law and, at the same protect the rights of a
person to file meritorious lawsuits for demonstrable injury. See Tex:.Civ.Prac. & Rem.
Code 27.002 (West Supp. 2013); Whisenhuntv. Lippincott, No. 06-13-00051-CV, 2013
Tex.App. LEXIS 12489, Slip op.@ 6 & n.ll (Tex.App.-Texarkana Oct. 9, 20!3,pet.
filed) (acknowledging that the Act has a stated dual purpose and that courts must give
"effect to all words so that none of the statute's language is treated as
Further, the Court is required to liberally construe the entirety of the Act. See
Tex.Civ.Prac. & Rem. Code 27.011 (b) (West Supp. 2013).
3. The most efficient and judicious hierarchy of the mandatory decisions to
be made by a court in application of the Act is:
a) Does an exemption, with the burden of proof resting on the
nonmovant, preclude further application of Chapter 27 pursuant to
Tex.Civ.Prac. & Rem. Code 27.010 (West Supp. 2013)?;
4
Although the Act does not expressly assign the burden of proof on the nonmovant. Texas law
generally requires the party seeking benefit of a statutory exemption to prove the matter. See generally,
Mcintyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) (doetor's burden to prove exemption from
emergency care statute). Several Texas Courts of Appeals around the state have recently applied this
concept to exemptions in the Act. See Pena v. Perel, 417 S.W.3d 552, 555 (E1 Paso 2013, no. pet.);
Newspaper Holdings, Inc. v. Crazy Hotel Assi$ted Living, Ltd, 416 S.W.3d 71, 88p89
(1"'] 2013, writ filed Mar. 5, 2014) {on rehearing); Better Business Bureau of Metro. Dallas. Inc. v. BH
DFW, Inc., 402 S.W.3d299, 309 2013, no pet.).
More problematic, is determining the applicable yet legislatively-unspecified standard of
proof required to be shown by the nonmovant while shouldering that burden. In cases of exemptions that
are disfavored under the law (such as tax exemptions), the party seeking the exemption must, at trial,
clearly show its entitlement thereto. See generally, First Baptist/Amarillo Foundation v. Potter Co.
Appraisal District, 813 S.W.2d 192, 195 (Tex.App.-Amarillo 1991, no writ) (Chief Justice Reynolds
noting standard for fact question of entitlement to tax emption must be clearly proven.); Hammerman &
Gaines, Inc. v. Bullock, 791 S.W.2d 330, n.2 1990, no writ) (superseded by statute)
(now-Chief Justice Jones citing 1979 Texas Supreme Court rationale for strict construction of tax
exemptions that must be clearly shown with all doubts resolved against claimant.). Alternatively, other
Page 12 of25

b) If not,
5
is the legal action ~ b a s e d on, relates to, or is in response to a
party's exercise of the right of free speech, right to petition, or right of
association/' with the burden of proof resting on the movant, pursuant
to Tex.Civ.Prac. & Rem. Code 27.003 (a) (West Supp. 2013) and
applicable definitions in Tex.Civ.Prac. & Rem. Code 27.001 (West
Supp. 2013)?;
c) If so, can "the party bringing the legal action [establish] by clear and
specific evidence a prima facie case for each essential element of the
claim in question" pursuant to Tex.Civ.Prac. & Rem. Code 27.005
(c) (West Supp. 2013)?; and
d) If so, can "the moving party [establish] by a preponderance of the
evidence each essential element of a valid defense to the nonmovants
claim" pursuant to Tex.Civ.Prac. & Rem. Code 27.005 (d) (West
Supp. 2013 )of
situations merit characterization of an exemption (or an exception) as an affirmative defense wherein the
lesser standard of proof of a preponderance of evidence is utilized. See Pedigo v. Austin Rumba. Inc., 722
F.Supp.2d 714, 722-24 (W.D.Tex. 2010) (Noting. as in the instant statute, the absence oflegislative intent
to divert from the general rule, Juslice Nowlin cites 1974 U.S. Supreme Court authority generally holding
that exemption under Fair Labor and Standards Act is an cif}irmative defense and cites 1995 Northern
District of Texas authority requiring similar exemptions to be proven, at trial, by a preponderance of the
evidence.).
Since the legislatw'e did not evidence an intent to divert from the U.S. Supreme Court's general
rule and the stated purpose of the A<::t requires a balancing of interests rather than favoring one over the
other, the Court concludes that the instant exemption is more akin to the latter situation. See Tex.Civ.Prac.
& Rem. Code Z7.002 (West Supp. 2013) {balan<::e safeguarding freedom of expression versus prote<::ting
rights in meritorious litigation). See also generally, Better Business Bureau, supra @ hdn.8 (Although this
standard of proof is used editorially in the case headnotes on this point and is used within the actual opinion
relative to other issues, the eourts opinion does not utilize the preponderance standard for this specific
issue.). Moreover. a motion under the Act must be filed, if at all, within 60 days of service of the litigation,
absent a showing of good cause. Jd. @ 27.003 (b). With limited opportunity for discovery prior to a trial
on the merits, it would be unreasonable to require a litigant, at such an early stage, to prove the case to a
standard higher than would be required at the end of the litigation post-full discovery. As a counterpoint,
one could rationally argue that a standard less than a preponderance, such as a prima facie standard, should
be used due to the extreme early staging of such motions. Nonetheless, the Court Will adhere to the
preponderance standard to determine application of any statutory exemption based upon the constraints of
the appropriate authorities cited above.
' On the day ending the Court's hearings on the anti-SLAPP motion (Feb. 14. 2014), Defendant CSI
filed a supplementary Memorandum" supporting its motion arguing for the first time that no exemption
should be considered on the basis that Plaintiff failed to explicitly plead such matters. Even if true. much
of the evidence, the questions from and answers to the Court, and the arguments of counsel from all sides
reflect that the issue of exemptions were actively being tried; thus, the Court concludes the exemption
issues were tried by consent. To the extent one may argue to the contrary. the Court would grant a trial
amendment necessary to satisfy any explicit pleading requirement.
6
Depending upon the flow of the resolution of these issues, other tangential decisions are to be
explored regarding recovery of costs, fees, and expenses as well as application of potential sanctions. See
Tex.Civ.Prsc. & Rem. Code 27.009 (West. Supp. 2013).
Page 13 of :ZS
3765
4. Based upon the findings of fact,
7
the Court concludes that a preponderance
of the evidence demonstrates that CSI and its agents are "primarily engaged in the
business of selling or leasing goods or services" consistent with the intent and meaning of
Tex.Civ.Prac. & Rem. Code 27.010 (b) (West Supp. 2013). Other courts have made
similar findings and the resulting conclusions. See e.g .. Hernandez v. Comm 'r, 490 U.S.
680, 681, 685 (1989) (On findings that: "The Church charges a 'fixed donation,' also
known as a 'price' or a 'ftx:ed contribution,' for participants to gain access to auditing and
training sessions. These charges are set forth in schedules, and prices vary with a
session's length and level of sophistication:, the Supreme Court upheld the conclusion
that payments. which are the primary source of income to missions, branches and
franchises of the mother church, by Scientology patrons were not deductible
contributions due to receipt of consideration and benefits.); id at 692 (concluding that the
church .. categorically barred provision of auditing or training sessions for free""); The
Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146,
1159 (D.C. Cir. 1969) ("Within this literature is to be found only the most occasional
passing reference to the E meter; more often than not, the meter is not even mentioned in
these general works. Among these are the introductory works describing Scientology, and
it is presumably these works, if any, which are pressed upon curious members of the
public in any effort which might be made to promote the sale of Scientology services."').
Accordingly, the evidence sufficiently establishes Scientology is primarily in business to
sell a good or service-----be it religious or otherwise.
7
For the purpose of evaluating the evidence in support of an exemption, 27.010 of the Tcx.Civ.Prac. &
Rem. Code (West Supp. 2013) does not require that the evidence considered be ~ c l e r and specific'" as the
Act does in 27.005 (c) for the purpose establishing "a piima facie case for each essential element of the
claim in question." Thus. the Act docs not preclude the Court. as to the exemption issues, from making
reasonable inferences and ded.l.lCtions from the evidence admitted.
Page 14 of25
3766
5. Based upon the findings of fact supported in-part by the Defendants' and
movaots' testimony by Allender, Lubow, Cartwright and others, the Court concludes that
a preponderance of the evidence demonstrates that the litigated "conduct [arose] out of
the sale ... of goods, services, ... or a commercial transactionn consistent with the
intent and meaning ofTex.Civ.Prac. & Rem. Code 27.010 (b) (West Supp. 2013). As
investigator and avowed Scientologist David Lubow put it, '"Rathbun was engaged in
delivering Scientology services and counseling at his office/home, for
even though he had been expelled from the religion and possessed no religious authority
to provide Scientology services to anyone."" Affidavit of David Lubow @ 1 9. See also
Affidavit of Monty Drake @ 'II 12. The Legal Director for CSI' s Office of Special
Affairs Allan Cartwright testified that:
The Rathbuns and Monique's] unauthorized counseling practice ... [for
his ulndependent services ... which is how he earns his living] was
an immediate cause for concein (for those] charged with the protection of the
Scientology religion, all churches of Scientology as well as these [sic] intellectual
properties and the enforcement of csr s rights. This was a primary reason for
csrs decision to have counsel retain an investigator to help determine the nature
and extent of any possible infringements. Affidavit of Allao Cartwright @ '11'11 15
& 17.
But for the preponderate evidence of Defendant CSI' s apprehension of intellectual
property rights violations by fanner 20-plus year Scientology employee and now-
competitor Mark Rathbun and his alleged sale of unauthorized Scientology services, the
extensive-type of commercial piracy investigation such as that declared by Drake and/or
Lubow, instigated as early as 2007, to protect CSI's primary business interests would
clearly not have occurred. See generally, Kinney. supra Slip op. @ 2 (Memorandum
opinion) (general recitation of reasoning of CalifOrnia court, in prior related litigation,
Page 15 of 25
3767
regarding former employer as a current competitor of former employee "and was
therefore exempt from [California] anti-SLAPP statute.").
6. Based upon the findings of fact, the Court concludes that a preponderance
of the evidence demonstrates that the majority of the conduct and statements about which
Plaintiff complains was, by Defendants' own admissions (in-part, testimony of David
Lubow, John Allender, and Richard Hirst), intended to "communicate" to and to affect an
audience of actual or interested potential (current or former) customers of the Church's
own sale of services the Church's displeasure with the competitive commercial activities
of Plaintiff and her husband. The evidence also preponderates in favor of the conclusion
that the "Squirrel Buster activity was -primarily designed to convey the message to other
Scientologist that the Rathbuns should stop being "squirrels''--Qne who alters standard
Scientology practice and delivers altered Scientology counseling. See Affidavit of David
Lubow @ 'II'If 9 & II. Tbe record is replete witb evidence showing it was CSI wbo
designed, initiated and funded both the investigations and the Squirrel Busters to
communicate chiefly to Scientology buyers and customers that the Rathbuns were;
offering a basterdized version of Scientology to former members, and seeking to
entice parishioners to leave the faith with fulse assertions that his brand of so-
called Scientology was more correct than standard Scientology delivered in
churches. Affidavit of David Lubow@ 'II 10.
CSI's message to its consumers, by and tbrough its conduct and statements, being, "Pay
us for delivering the good or service-not Rathbun.'' Further, the evidence also
sufficiently establishes that the extensive investigations coupled
with the confrontational Squirrel Buster tactics, in fact, did reach and did affect some
individuals within its intended audience in one way or another, including but not limited
to Plaintiff; Mark Rathbun, Mike Rimier, John Brousseau, Michael Fairman, Stephen
Page 16 of25
3768
Hall, David Lingenfelter, Mercy Lingenfelter, Mark a.k.a. Mat Pesch, Amy Scobee, and
Debbie Jean Cook as well as Allan Cartwright, Joanne Wheaton, Richard Hirst, David
Lubow, John Allender, and Ed Bryan.
7. As such, Defendants' motions are precluded by the provision of the Texas
Citizen,s Participation Act exempting from reach of the statute legal actions brought
against persons ''primarily engaged in the business of selling or leasing goods or services,
if the statement or conduct arises out the
8
sale or lease of goods, services, ... or a
conunercial transaction in which the intended audience is an actual or potential buyer or
customer." Tex. Civ. Prac. & Rem. Code 27.010(b) (West Supp. 2013).
8. Additionally or altematively, the Court concludes that a preponderance of the
evidence demonstrates that the complained-of actions caused Plaintiff bodily injury as
defined by Texas law. injury" includes uphysical pain, illness, or any
impairment of physical condition." Tex. Penal Code 1.07(8) (West Supp. 2013). In
Zurich American Ins. Co. v. Nokia, Incorp., 268 S.W.3d 487, 492 (Tex. 2008), then-Chief
Justice Wallace Jefferson wrote for the Court and without regard to the merits, that
biological injuries or effects [qualified] as bodily injury," from a pleading construct in
an insurance duty-to-defend case. While the Court noted that the injury"
definition unambiguously requires an injury to the physical structure of the human
body," id citing Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex. 1997),
it likened and found sufficient allegations that 'radio frequency radiation ... causes an
8
Defendant CSI argues this provision requires that it. csr, must have been the person (or entity) to have
sold or leased "'the .. good or service from which lhe litigated statement or conduct flowed. To apply such a
construct would necessarily limit appJication of the Act to being a one-way street. Applying the Act in
such a fashion inherently gives a preference to the one party over another which would be contrary to the
stated purpose of the Act that a court balance the respective rights of the litigants and would be contrary to
the premises of standard statutory construction as stated by the Third Court of Appeals in its recent
consideration of the Act. Kinney v. BCG Attorney Search, Inc . No. Slip op. @ 3
(Tex.App.-Austin, Aug. 21, 2013, pet.) (Memorandum Op.) (citations omitted).
Page 17 of25
3769
adverse cellular reaction and/or cellular dysfunction ('biological injury')" to allegations
of tissue damage that results on inhalation of a toxic substance such as
asbestos." Zurich supra @ 492-93 (quoting Guar. Nat'/ Ins. Co. v. Azrock Indus., Inc.,
211 F.3d 239, 245, 250 (5'" Cir. 2000)).
9. The definition of bodily injury is broad enough to cover "[a]ny physical pain,
however minor." Garcia v. State, 361 S.W.3d 683, 688 (Tex.Crim.App. 2012) citing
Laster v. State, 215 S.W.3d 512, 524 (Tex.Crim.App. 2009). In Garcia, supra, the Court
noted as to the merits that a "fact finder may infer that a victim actually felt or suffered
physical pain because people of common intelligence understand pain and some of the
natural causes of it.'' /d Taking instruction both the Supreme Court's and Court of
Criminal Appeals' respective pleading and merits decisions on what qualifies as ubodily
injury,'' the exception embodied in 27.010 (c) is not, as suggested in CSI's
"Supplemental Memorandum in Support of Anti-SLAPP Motion" at -,{ 10, restricted to
claims arising directly from a trawnatic event. Rather, the definition is broad enough to
include claims supported by sufficient evidence demonstrating physical martifestations of
pain, anxiety, emotional distress, stress, illness or other impairment of condition
regardless of the mechanism of injury.
10. Plaintiff sufficiently established by a preponderance of the evidence that
she suffered stress, anxiety and fear that resulted in severe headaches, including
migraines with debilitating pain due to the surveillance of investigators and Squirrel
Busters--she further attested that as a result of these activities she suffered an extreme
gagging nausea, and Plaintiff averred she developed a hyper-sensitivity to light and was
Wlable to eat or concentrate due to the headaches. See e.g., Declaration of Monique
Page 18 of25
3770
Rathbun@ 'll'll7d, llc, lid, 15a & 16a. Accordingly, Defendants' motions are precluded
by the provision of the Texas Citizen?s Participation Act exempting from the reach of the
statute "legal action[s] seeking recovery for bodily injury.' Tex.Civ.Prac. & Rem. Code
27.010 (c) (West Supp. 2013).
11. Assuming solely for tbe sake of argument that neither the commercial
exemption nor the bodily injury exemption preclude application of the Act, the Court will
address as succinctly as possible the pertinence of whether Plaintiff's legal action is
based on, relate to, or are in response to Defendants' exercise of the right of free speech,
right to petition, or right of association. See Tex.Civ.Prac. & Rem. Code 27.003 (a)
(West. Supp. 2013). Following the granunatical syntax and structure of this statute, no
party to this litigation disputes that the current dispute is a "legal action." Next, the focus
is whether that action "is based on, relates to, or is in response to'' freedoms
of expression. If did the Defendants meet their burden of proof regarding the
"exercise of the right of free speech, right to petition, or right of associationn as defined
by 27.001, Tex.Civ.Prac. & Rem. Code (WesL Supp. 2013)? Then and only then
would a court need to go further in the analysis regarding the adequacy of the
nonmovants' proof on the essential elements, etc. See generally, Conclusion of
3.
12. Regardless of the merits of her claims seeking damages in tort for personal
injury? Plaintiff's pleadings sufficiently and legally allege common law tort causes of
action, in-part, for bodily injury. It has been said that one person's rights end where
another's nose begins-meaning. in the converse, that the farther and farther one intrudes
into the space of another, the more diminished are the rights of the intruder. So too is it
Page 19 ofZ5
3771
with the balance of the rights at issue here. In Zurich, supra, the Supreme Court
concluded, regardless of the merits, that a petition alleging that "radio frequency radiation
... causes an adverse cellular reaction and/or cellular dysfunction {"biological injury')"
was a legally sufficient pleading for bodily injury such that it triggered a contractual duty
to defend under certain insurance policies in question The converse of a duty to defend
is a right to prosecute.
13. Plaintiff's "legal action" seeking redress for personal injury is sufficiently
pleaded in a manner clearly distinguishable from any cause of action that would, as a
matter of law, be on, related to, or in response to'' a freedom of expression under
the Act triggering her right to prosecute her claims even if the assertions are eventually
proven to be false, groundless, or fraudulent--subject to possible sanctions if appropriate.
See generally, Zurich, supra @ 490-91 (adequacy of pleadings triggers procedure
thereafter). Ergo, the need to balance Plaintif:Fs rights to prosecute her common law
claims for personal injury versus the Defendants' rights of freedom of expression arises.
14. Regarding the proper legal and constitutional balance of the respective
rights of the litigants in this case, all of the parties have argued and relied upon the United
States Supreme Court's opinion in Snyder v. Phelps, __ 131 S.Ct. 1207, 179
L.Ed.2d 172 (2011). In Snyder, supra 131 S.Ct.@ 1215-18, protestors picketed matters,
which the Court found related to broad issues of societal interest, shortly before and
within the proximity of the funeral a United States Marine killed in the line of duty. As a
result of the Court's finding that the picketed issues were of public concern, Chief Justice
Roberts wrote and the Court narrowly concluded, limited by the facts presented and
absent any controlling exceptions, that the First Amendment shielded the picketers from
Page 20 of25
3772
tort liability and precluded recovery of the jury verdict on such common law torts by the
fallen marine's family. Snyder, supra@ 1220.
15. Several salient points arise from Snyder: a) the necessary balance of the
rights in question was determined post-discovery, post-trial and post-verdict; b) Chief
Justice Roberts explicitly expressed the narrowness of the Court's ruling noting certain
inapplicable exceptions due to the instant facts; and c) Justice Breyer wrote
concurring, to emphasize that the effect of the majority opinion was to be restricted to the
matter before the Court-the picketing at-hand. See generally, Snyder, supra@ 1217-
21.
16. Stifling sufficiently pleaded causes of action alleging tortuous conduct and
seeking personal injury damages, prior to discovery-prior to trial-prior to verdict, on
the extremely broad or outside chance that the competing interests are ubased on, related
to, or in response to, some form of freedom of expression would have a chilling effect on
potentially meritorious litigation whereby the end might., all too easily, unjustifiably
control the means. What then to avoid such an absurd effect upon the balance of the
rights of all litigants? Otherwise stated. how might our jurisprudence adequately achieve
the proper balance between the rights granted under both the First and Seventh
Amendments? Considering Chief Justice RoberCs methodology in Snyder, supra and
heeding Justice Breyer's admonition on the limited effect of the majority opinion
factually. prudence dictates that this Court examines the instant record to ascertain
potential applicability of the important exceptions that the Chief Justice noted were not
factually in-play in Snyder. If the record reveals a bona fide situation or circumstance,
i.e., is there a genuine fact question or not, wherein any of the potential exceptions noted
Page21 of25
3773
by the Chief Justice might be in-play here, Plaintiff's Seventh Amendment Right to a jury
trial, i.e., the means, cannot, prior to discovery-prior to trial--prior to verdict, be
preemptively overridden by the Defendants' First Amendment Rights to freedom of
expression, i.e., the end. See generally, Snyder, supra@ 1215 Speech Clause of
the First Amendment ... can serve as a defense in state tort suits''-it goes without debate
that a udefense" is asserted only after a Plaintiff is allowed the opportunity to present her
case factually to a jury) [emphasis added].
17. For the limited purpose of this inquiry, the Court presumes that the
Defendants' expressions of speech, petition and association to the extent necessary,
public in nature. The first exclusion" from First Amendment protections noted by Chief
Justice Roberts is speech that is either obscene or likely to incite a fight. Snyder, supra
@ n.3. Plaintiff has alleged and factually asserted publication by Defendants of "bizarre"
and "vile" statements about her. First Amended Declaration of Monique Rathbun @ 1f
12. Both parties have asserted that the other sought to pick fights with one another
during the multiple confrontations at issue, and Defendants hired a body guard or
""muscle'' due to their apprehension of Mark Rathbun's alleged propensities for violence.
18. Another potential exception noted by the Chief Justice is speech, which
although given a "public" label at :t-.rst blush, is determined to be contrived to insulate
from liability on a truly private issue. Snyder. supra@ 1217. Clearly at issue here and
yet to be determined subsequent to discovery, etc. is the extent to which the freedoms of
expression espoused by the Defendants were, in :tact or public in nature-the
''content, form and context" of the speech bas yet to be fully developed. Id. @ 1216.
Further, there is ample evidence to indicate that CSI instigated and prompted.. i.e.,
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contrived, the Squirrel Buster's purported documentaries as a possible ruse to cloak its
efforts with constitutional protection.
19. The majority opinion also noted the possible application of proper
including an injunction. Snyder, supra@ 1218. Currently awaiting resolution
in this very case is _the existing agreed extension of a temporary restraining order so
in-part, the anti-SLAPP motions could be timely addressed.
20. Lastly, the Supreme Court discussed the limited and sparing applicability
of the audience doctrine ... dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable manner." Snyder, supra @ 1219-
20. While it is undisputed that much of the complained-of activity and alleged
harassment occurred at or in the vicinity of the Plaintiff's the true degree of the
alleged invasion, if at all, is yet to be fully developed. This is cleatly a fuct-driven
detennination that commands adequate discovecy and opportunity to develop that the
time constraints of the Act do not countenance.
21. The Court concludes that numerous fact issues are substantiated with
enough evidence that if allowed to be fully developed could possibly ripen into one of the
exceptions discussed by the Supreme Court in Snyder, supra. As a result, preemptively
dismissing any such legal action simply because it is somehow hbased on, related to, or in
response to" the defensive issue of freedom of expression would lead to an absurd result
with the end unjustifiably controlling the means. Accordingly, Defendants are not
entitled to file a motion to dismiss under the Texas Citizen's Participation Act. See
27.003, Tex.Civ.Prac. & Rem. Code (West Supp. 2013). Having reached this result, the
Court need not dive headlong into the much lengthier and potentially complex ultimate
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issue regarding the constitutionality of the Act from either a Seventh Amendment
perspective from the federal side or an open courts perspective from the state
constitution.
22. The instant result precludes the necessity of any further review of the
parties, respective burdens of proof on the remaining issues, and the Court expressly
makes no opinion on any such issue. Defendants' motions are, without
merit and are DENIED. Tex.Civ.Prac. & Rem. Code 27.003(c), 27.005(b) (West
Supp. 2013).
23. The instant record is voluminous, and counsel for all parties have been
extremely thorough in their respective arguments and materials provided the Court.
Accordingly, the Court has endeavored to be just as thorough not only in reading the
evidence, the objections, and the briefs presented but also in conducting independent
research on this relatively new aspect of Texas law. As a the Court declines to
conclude that Defendants' motions, in and of themselves, are but the Court
does conclude that the method in which the motions were litigated, from the discovery
to the objections, etc., resulted in hours upon hours of courtroom time that could have
been better spent elsewhere.
Conclusion
Rulings on the objections were previously and written orders
thereupon will be filed under separate cover with attachments reflecting said rulings as
soon as possible. For the foregoing reasons, Defendants, motions under the Act are
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DENIED. Plaintiff is awarded her court costs and attorneys' fees. Tex.Civ.Prac. &
Rem. Code 27.009(b) (West Supp. 2013).
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