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ACCEPTED

03-14-00199-CV
3226572
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/19/2014 10:27:47 AM
JEFFREY D. KYLE
CLERK

No. 03-14-00199-CV
______________________________________
FILED IN
COURT OF APPEALS
3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
11/19/2014 10:27:47 AM
AUSTIN, TEXAS
______________________________________ JEFFREY D. KYLE
Clerk

CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.


Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
MOTION FOR LEAVE TO FILE
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________
Of Counsel:
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
elieberman@rbskl.com

Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
State Bar No. 24032210
VINSON & ELKINS LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com

Ricardo G. Cedillo
State Bar No. 04043600
Isaac J. Huron
State Bar No. 24032447
Les J. Strieber III
State Bar No. 19398000
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com

George H. Spencer, Jr.


State Bar No. 18921001
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com

Attorneys for Appellant Church of Scientology International

TO THE HONORABLE COURT OF APPEALS:


Appellant Church of Scientology International (Church) requests leave to
file a Notice of Supplemental Authority to bring to the Courts attention a recent
decision by a California district court dismissing, under the California anti-SLAPP
statute, claims brought against the Church by one of its former members. See
Woodward v. Church of Scientology Intl et al., Case No. BC540097 in the
Superior Court for the State of California for the County of Los Angeles. This new
authority is relevant to the Courts questions during oral argument regarding how
Texass anti-SLAPP statute should be applied in cases involving mixed claims,
where some claims arise from activities protected by the statute and some claims
allegedly do not.
Wherefore, the Church prays that this Court grant this Motion for Leave to
File Notice of Supplemental Authority of Appellant Church of Scientology, which
is attached hereto as Exhibit 1, and grant any such other relief to which it may be
justly entitled.

-1-

Respectfully submitted,
/s/ Thomas S. Leatherbury
Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
State Bar No. 24032210
VINSON & ELKINS L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com
Ricardo G. Cedillo
State Bar No. 04043600
Isaac J. Huron
State Bar No. 24032447
Les J. Strieber III
State Bar No. 19398000
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com

-2-

George H. Spencer, Jr.


State Bar No. 18921001
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com
Of Counsel:
Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN PC
45 Broadway, Suite 1700
New York, NY 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
elieberman@rbskl.com
Attorneys for Appellant Church of
Scientology International

CERTIFICATE OF CONFERENCE
On November 18, 2014, I conferred with Appellees counsel, Leslie Hyman,
who stated that Appellee is opposed to this motion.
/s/ Marc A. Fuller____________
Marc A. Fuller

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CERTIFICATE OF SERVICE
The undersigned certifies that on the 19th day of November, 2014, the
foregoing Motion for Leave to File Notice of Supplemental Authority for
Appellant Church of Scientology International 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
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163

Marc F. Wiegand
THE WIEGAND LAW FIRM, P.C.
434 N. Loop 1604 West,
Suite 2201
San Antonio, TX 78232

Elliott S. Cappuccio
PULMAN, CAPPUCCIO PULLEN
& BENSON, LLP
2161 N.W. Military Hwy., #400
San Antonio, TX 78213

Lamont A. Jefferson
HAYNES & BOONE LLP
112 E. Pecan Street, Suite 1200
San Antonio, TX 78205-1540

J. Iris Gibson
HAYNES & BOONE LLP
600 Congress Ave., Suite 1300
Austin, TX 78701

Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, TX 78130

O. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, TX 75202

Bert H. Deixler
KENDALL BRILL KLIEGER
10100 Santa Monica Blvd.,
Suite 1725
Los Angeles, CA 90067

Stephanie S. Bascon
LAW OFFICE OF STEPHANIE S. BASCON,
PLLC
297 W. San Antonio Street
New Braunfels, TX 78130

Wallace B. Jefferson
Rachel Ekery
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, TX 78701

/s/
Thomas S. Leatherbury
Thomas S. Leatherbury
-4US 3083440v.1

EXHIBIT 1

No. 03-14-00199-CV
______________________________________
COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________
Of Counsel:
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
elieberman@rbskl.com

Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
State Bar No. 24032210
VINSON & ELKINS LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com

Ricardo G. Cedillo
State Bar No. 04043600
Isaac J. Huron
State Bar No. 24032447
Les J. Strieber III
State Bar No. 19398000
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com

George H. Spencer, Jr.


State Bar No. 18921001
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com

Attorneys for Appellant Church of Scientology International

Toward the end of the oral argument in this case, the Court asked questions
of counsel for Appellant Church of Scientology International (Church) about
how a court should apply the anti-SLAPP statute in cases involving mixed claims,
where some claims arise from activities protected by the statute and some claims
allegedly do not. In further response to the Courts questions, the Church submits
this Notice of Supplemental Authority to bring to the Courts attention a recent,
pertinent California trial court decision dismissing, under the California antiSLAPP statute, claims brought against the Church by one of its former members.
See Woodward v. Church of Scientology Intl et al., Case No. BC540097 in the
Superior Court for the State of California for the County of Los Angeles (a copy of
the case is attached to this Notice as Exhibit A).
In Woodward, the plaintiff brought conversion, breach of contract, and other
claims based on his involvement with various Churches of Scientology. See Ex. A
at 3. The court held that the plaintiffs claims were covered by the California antiSLAPP statute, Cal. Code Civ. P. 425.16 et seq., and dismissed all of those
claims because the plaintiffs religious attacks on the Church and its teachings
infused all of his causes of action and thus made them inappropriate for
adjudication by a court. See Ex. A at 3-4 (citing Jones v. Wolf, 433 U.S. 595, 60203 (1979)). On the mixed claims issue, the court also held that it would be
inappropriate to attempt to parse the plaintiffs claims in an effort to separate those
that targeted the Churchs protected religious activities from any that allegedly did
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not. Id. at 4. In doing so, the court cited Haight Ashbury Free Clinics, Inc. v.
Happening House Ventures, 184 Cal. App. 4th 1539, 1552 (2010), for the
proposition that an entire cause of action [is] properly stricken where any part is
protected and not merely incidental to an unprotected claim. Ex. A at 4.
In addition to being responsive to the Courts questions, this new authority is
relevant to the Churchs argument at pages 19-21 of its Reply Brief, where the
Church also relies on Haight Ashbury for the above-cited principle in arguing, in
the alternative, that all of Ms. Rathbuns claims should be dismissed even if some
of them do not arise out of protected activity.
Respectfully submitted,
Ricardo G. Cedillo
State Bar No. 04043600
Isaac J. Huron
State Bar No. 24032447
Les J. Strieber III
State Bar No. 19398000
Davis, Cedillo & Mendoza, Inc.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com

/s/
Thomas S. Leatherbury
Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
State Bar No. 24032210
Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com

-2-

George H. Spencer, Jr.


State Bar No. 18921001
Clemens & Spencer
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com
Of Counsel:
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
elieberman@rbskl.com
Attorneys for Appellant Church of Scientology International

-3US 3098044v.1

EXHIBIT A

JUDGE MICHAEL JOHNSON


DEPARTMENT 56

Hearing Date:
Case Name:
Case No.:
Matter:

October 6, 2014
Woodward v. Church of Scientology International, et al.
BC540097
Defendants Anti-SLAPP Motion

Ruling: Motion is granted.

Plaintiff Vance Woodward filed this action against Defendants Church of Scientology
International, Church of Scientology Western United States, Church of Scientology of
San Francisco, Church of Scientology Flag Service Organization Inc., and Church of
Scientology Flag Ship Service Organization Inc. Plaintiff asserts causes of action for (1)
conversion, (2) breach of contract, (3) common counts, and (4) declaratory relief.
Defendants have moved to strike the complaint pursuant to Code Civ. Proc. 425.16, the
anti-SLAPP statute.
Evidence
Plaintiff has requested judicial notice of documents filed in other lawsuits and before
government agencies. The RJNs are denied. Most of the documents are not properly
authenticated. In addition, Plaintiff has offered the documents for the truth of their
contents, which is not proper. See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.
Defendants have made extensive objections to Plaintiffs declaration. The court has
disregarded Plaintiffs opinions (which have no foundation) and hearsay statements
(which do not identify the declarants or come within a hearsay exception). But the court
has considered Plaintiffs statements for the limited purpose of explaining his state of
mind, motivation for bringing this lawsuit, and the scope of his claims.
Standard for Motion
An anti-SLAPP motion involves a two step process: 1) the defendant must establish that
the challenged causes of action arise from protected activity; and 2) if the defendant
makes this showing, the burden shifts to the plaintiff to establish a probability of success
on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.
Protected Activity
In the first step of an anti-SLAPP motion, the moving party must make a threshold
showing that the challenged cause of action arises from an act in furtherance of the right
of petition or free speech in connection with a public issue. Varian Medical Systems v.

Delfino (2005) 35 Cal.4th 180, 192. The phrase arising from means the defendants act
underlying the plaintiffs cause of action must itself have been an act in furtherance of the
right of petition or free speech. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 67.
Plaintiffs causes of action all arise from Defendants religious activities. The claims all
relate to religious instruction, counseling and related religious services. And Plaintiff has
made a wholesale challenge to the principles and practices underlying Defendants
religious doctrine. All of this involves religious speech, which is protected under the free
speech clause of the First Amendment. See Capitol Square v. Pinette (1995) 515 US 753,
760 (private religious speech, far from being a First Amendment orphan, is as fully
protected under the Free Speech Clause as secular private expression). Section
425.16(e)(4) of the anti-SLAPP statute broadly protects conduct in furtherance of the
exercise of the constitutional right of free speech in connection with a public issue or
an issue of public interest. Courts have broadly construed this provision to include
something of concern to a substantial number of people. Weinberg v. Feisel (2003) 110
Cal.App.4th 1122, 1132-33; see Briggs v. Eden Council (1999) 19 Cal.4th 1106, 1116.
Defendants activities involve a substantial number of people, as they are part of a
religious organization that has thousands of churches in more than 150 countries and over
30 churches and ministries in California.
Defendants have met their burden to establish protected activity.
Probability of Success on the Merits
Because Defendants have established that Plaintiffs action arises from protected activity,
the burden shifts to Plaintiff to present admissible evidence that supports a prima facie
case in his favor, much like the burden on a motion for summary judgment or directed
verdict. Code Civ. Proc. 425.16(b)(1); Taus v. Loftus (2007) 40 Cal.4th 683, 714;
Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087. To meet this burden, Plaintiff
must submit evidence that would be admissible at trial. See HMS Capital v. Lawyers
Title (2004) 118 Cal.App.4th 204, 212. He cannot rely upon lay opinions, legal
conclusions, speculation or argument. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26;
Morrow v. LAUSD (2007) 149 Cal.App.4th 1424, 1444.
Plaintiff has failed to meet this burden for two reasons.
1. Religious Dispute
In assessing the issues, the court must consider legal defenses raised by the defendant.
See Traditional Cat Assn. v. Gilbreath (2004) 118 Cal.App.4th 392, 398 (the statute
contemplates consideration of the substantive merits of the plaintiffs complaint, as well
as all available defenses to it, including but not limited to constitutional defenses.). In
our case, Defendants have argued that Plaintiffs broad attack on the Scientology
organization raises a religious dispute that cannot be determined by the courts.

In response, Plaintiff has tried to argue that his case involves a simple breach of contract
and right to possession dispute. As he states in the first paragraph of the complaint:
Defendants are in possession of funds that Vance paid to Defendants for services, food
and accommodations that never were and never will be delivered. Vance is entitled to a
return of his funds. Vance demanded that Defendants return his funds, and Defendants
refuse to return Vances funds to him.
Plaintiffs case is anything but this. The overwhelming content of Plaintiffs 34 page
complaint consists of challenges to the teachings of the Scientology organization,
challenges to Plaintiffs standing and relationship with the Scientology organization, and
challenges to the value of the services that Plaintiff received from the Scientology
organization. Plaintiffs 66 page declaration largely tracks his complaint, and provides
even more detail about his dissatisfaction with Scientology.
Each of Plaintiffs causes of action incorporates his allegations concerning his religious
dispute with Defendants, including his challenges to the teachings of the Scientology
organization and claims that he suffered emotional harm from its religious activities; see
Compl. at 69-106, 263, 275, 291 & 307. Plaintiffs breach of contract claim expressly
alleges that religious services he received were of such substandard quality as to be
worth nothing and/or which were in certain instances, damaging to Vance; Id. 275.
In his opposition brief, Plaintiff has argued that his breach of contract claim includes his
allegations that in delivering services Defendants harmed Plaintiff and fell below any
conceivable minimum expectations of the contracting parties; see Opp. at pp. 6-7. Even
within his claim for refund, Plaintiff argues Defendants have refused to provide a refund
because of his standing and relationship with the Scientology organization; in particular,
that Plaintiffs funds have not been returned because he has spoken out against the
organization, disagrees with its teachings, is seen as an opponent, and does not believe
that its services will do something positive; Id. at p. 7.
Plaintiffs declaration contains extensive statements about his dissatisfaction with the
Scientology organization, asserting (among other things) that the religious services
provided to him were shoddy, did no good and/or harmed me; involved promises to
deliver substantial help (intellectually, emotionally, spiritually, psychologically,
financially), things that it had no ability to deliver and did not deliver; and resulted in
him being psychologically and emotionally hurt by participating in Scientology; see
Woodward Decl. at 311, 304 & 318.
Plaintiffs challenges to Defendants religious principles and practices raise a religious
dispute that is not proper for the courts to decide. See Pres. Church in US v. Mem. Pres.
Church (1969) 393 US 440, 447; US v. Ballard (1944) 322 US 78, 85-88; Nally v. Grace
Comm. Church (1988) 47 Cal.3d 278, 298-99; Maxwell v. Brougher (1950) 99
Cal.App.2d 824, 826; Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 162.
Because Plaintiffs religious challenges have infused all of his causes of action and are so
predominant in his arguments, this is not a case in which religious parties have presented

a discrete property dispute that can be determined by neutral principles of law. See
Jones v. Wolf (1979) 443 US 595, 602-03; Episcopal Church Cases (2009) 45 Cal.4th
467, 473. For the same reason, this is not a case in which it would be appropriate to sever
an offending claim and deny an anti-SLAPP motion for the remainder. See Haight
Ashbury Free Clinics v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1552
(entire cause of action properly stricken where any part is protected and not merely
incidental to an unprotected claim); Salma v. Capon (2008) 161 Cal.App.4th 1275,
1287 (same).
Defendants have shown that Plaintiffs broad attacks on the Scientology organization
raise a religious dispute that cannot be determined by the court.
2. Merits
Plaintiff has also failed to carry his burden on the merits. His claims are based upon a
contractual right to repayment from Defendants, without alleging whether the contract
was written, oral or implied; see Comp. 282-88. Defendants have shown that Plaintiff
signed a written agreement on 9/21/2007 which designated his payments as religious
donations, and expressly stated that No Scientology church is under any duty or
obligation whatsoever to return any portion of any religious donation I make and any
return is exclusively within the ecclesiastical authority and sole discretion of the Claims
Verification Board; see Quiros Decl. at 6-8, Ex. 2, 5(c) & 5(c)(ii). In his
declaration, Plaintiff simply describes information which led him to believe that his funds
could be returned; see Woodward Decl. 149-58. Plaintiff does not identify the source
of the statements, and he never describes any kind of agreement or understanding with
any specific individual within the Scientology organization.
A contract requires mutual consent of the parties; see Civ. Code 1550, 1565 & 1580
(Consent is not mutual, unless the parties all agree upon the same thing in the same
sense.). California courts use an objective standard to determine mutual consent, and the
test is whether a reasonable person would, from the conduct of the parties, conclude that
there was mutual agreement. Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327. It is
well settled that Contract formation is governed by objective manifestations, not
subjective intent of any individual involved. Roth v. Malson (1998) 67 Cal.App.4th 552,
557.
Plaintiff has not established any legal or evidentiary basis for the contract upon which all
of his claims depend. At best he has presented evidence of his subjective intent and
expectations, which does not support a contract.
Ruling
Defendants have established that Plaintiffs claims arise from protected activity, and
Plaintiff has failed to establish a probability of success on the merits. Defendants antiSLAPP motion is granted, and Plaintiffs complaint is dismissed.