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ORAL ARGUMENT REQUESTED June 11, 2014

No. 03-14-00199-CV
______________________________________
COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
CHURCH OF SCIENTOLOGY INTERNATIONAL,
Appellant,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
BRIEF 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
ACCEPTED
03-14-00199-CV
1511965
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/11/2014 5:46:11 PM
J EFFREY D. KYLE
CLERK
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
Attorneysfor Appellant Churchof ScientologyI nternational
i
IDENTITY OF PARTIES AND COUNSEL
1. Appellant 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
Additional Counsel on appeal:
Thomas S. Leatherbury
Marc A. Fuller
VINSON &ELKINS LLP
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
ii
2. Other Appellants
a. 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
b. Monty Drake
Represented in the trial court and on appeal by:
O. Paul Dunagan
SARLES &OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: 214.573.6300
Facsimile: 214.573.6306
c. Dave Lubow
Represented in the trial court and on appeal by:
Stephanie S. Bascon
LAWOFFICE OF STEPHANIE S. BASCON, PLLC
297 W. San Antonio Street
New Braunfels, Texas 78730
Telephone: 830.625.2940
Facsimile: 830.221.3441
iii
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 LAWFIRMP.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
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS..........................................................................................iv
INDEX OF AUTHORITIES.....................................................................................vi
STATEMENT REGARDING ORAL ARGUMENT ........................................... xiii
RECORD REFERENCES ......................................................................................xiv
STATEMENT OF THE CASE................................................................................xv
INTRODUCTION ................................................................................................ xvii
ISSUES PRESENTED............................................................................................xix
STATEMENT OF FACTS ........................................................................................1
A. Monique and Marty Rathbuns High-Profile Attacks on the Church...1
B. Squirrel Busters Productions and Its Coverage of the Rathbun
Controversy ...........................................................................................4
C. The Church Hired Private Investigators................................................6
STANDARD OF REVIEW.......................................................................................7
SUMMARY OF THE ARGUMENT ........................................................................9
ARGUMENT...........................................................................................................13
I. THE DISTRICT COURTS HOLDINGS THAT PLAINTIFFS
CLAIMS AGAINST THE CHURCH WERE EXEMPT FROM THE
TCPA WERE ERRONEOUS AND WOULD RENDER THE TCPA A
VIRTUAL NULLITY ...................................................................................13
A. The Commercial Speech Exemption Does Not Apply to
Plaintiffs Claims.................................................................................15
B. The Bodily Injury Exemption of Section 27.010(c) Does Not
Apply to Plaintiffs Claims .................................................................20
II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFFS
CLAIMS WERE NOT BASED ON, RELATED TO OR IN RESPONSE
TO THE CHURCHS EXERCISE OF ITS RIGHTS TO FREE SPEECH,
ASSOCIATION, OR PETITION..................................................................24
A. Plaintiffs Claims Are Based on the Churchs Exercise of Its Right
to Free Speech .....................................................................................26
1. Public Figures. ..........................................................................29
v
2. Matter of Community Well-Being............................................32
B. Plaintiffs Claims Are Based on the Churchs Exercise of Its Right
of Association......................................................................................32
C. The Plaintiffs Legal Actions Are Based on, Relate to, and Are in
Response to the Churchs Exercise of Its Right to Petition the
Courts and Public Authorities .............................................................33
III. PLAINTIFFS CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORT
ESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOT
OVERCOME THE CHURCHS AFFIRMATIVE DEFENSES..................36
A. Plaintiffs Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed.....................................................38
B. Plaintiffs Invasion of Privacy Claim for Intrusion on Seclusion
Should Be Dismissed ..........................................................................41
C. Plaintiffs Claim for Tortious Interference with Contract Should Be
Dismissed ............................................................................................45
D. Plaintiffs Claim for Intentional Infliction of Emotional Distress
Should Be Dismissed ..........................................................................47
1. Texas common law precludes the claims. ................................47
2. The First Amendment requires that the claims be dismissed. ..53
E. Plaintiffs Claims for Vicarious Liability and Conspiracy Fail for
the Same Reasons as Her Substantive Claims ....................................58
IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYS
FEES AND COURT COSTS AGAINST THE CHURCH AND IN
FAILING TO AWARD THE CHURCH ITS FEES AND COSTS..............58
CONCLUSION AND PRAYER.............................................................................59
CERTIFICATE OF COMPLIANCE.......................................................................61
CERTIFICATE OF SERVICE................................................................................62
APPENDIX
vi
INDEX OF AUTHORITIES
Cases
Avila v. Larrea,
394 S.W.3d 646 (Tex. App.Dallas 2012, pet. denied).....................................38
Bakker v. Grutman,
942 F.2d 236 (4th Cir. 1991)................................................................................51
Better Bus. Bureau of Metropolitan Dallas, Inc. v. BH DFW, Inc.,
402 S.W.3d 299 (Tex. App.Dallas 2013, pet. denied).................. 14, 16, 17, 38
Better Business Bureau of Metropolitan Houston, Inc. v. John Moore
Services, Inc.,
No. 01-12-00990-CV, 2013 WL 3716693 (Tex. App.Houston [1st
Dist.] July 16, 2013, pet. denied) .........................................................................16
Bird v. W.C.W.,
868 S.W.2d 767 (Tex. 1994)................................................................................58
Boos v. Barry,
485 U.S. 312 (1988).............................................................................................57
Brewer v. Memphis Publishing Co.,
626 F.2d 1238 (5th Cir. 1980) .............................................................................31
Brewerton v. Dalrymple,
997 S.W.2d 212 (Tex. 1999)................................................................................49
Brown v. Entmt Merchs. Assn,
131 S. Ct. 2729 (2011) .........................................................................................28
Burns v. Times Argus Assn,
430 A.2d 773 (Vt. 1981) ......................................................................................30
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002)..................................................................................45
Cantu v. Rocha,
77 F.3d 795 (5th Cir. 1996)..................................................................................50
Cantwell v. Connecticut,
310 U.S. 296 (1940)...................................................................................... 28, 54
Carson v. Allied News Co.,
529 F.2d 206 (7th Cir. 1976)................................................................................32
vii
Citizens United v. Fed. Election Commn,
558 U.S. 310 (2010).............................................................................................55
Clayton v. Wisener,
190 S.W.3d 685 (Tex. App.Tyler, 2005, pet. denied) .....................................43
Combined Law Enforcement Assns of Tex. v. Sheffield,
No. 03-13-00105-CV, 2014 WL 411672 (Tex. App.Austin Jan. 31,
2014, no pet.)........................................................................................................25
Cornhill Insurance PLC v. Valsamis, Inc.,
106 F.3d 80 (5th Cir. 1997)..................................................................................42
Creditwatch, Inc. v. Jackson,
157 S.W.3d 814 (Tex. 2005)......................................................................... 48, 50
Davis v. HydPro, Inc.,
839 S.W.2d 137 (Tex. App.Eastland 1992, writ denied).................................46
Denney v. Lawrence,
22 Cal. App. 4th 927 (Cal. Ct. App. 1994) ..........................................................30
Doe v. United States,
83 F. Supp. 2d 833 (S.D. Tex. 2000) ...................................................................39
Draker v. Schrieber,
271 S.W.3d 318 (Tex. App.San Antonio 2008, no pet.)..................................49
Farias v. Garza,
426 S.W.3d 808 (Tex. App.San Antonio 2014, pet. filed) ................... 8, 36, 37
Fed. Election Commn v. Wisconsin Right to Life, Inc.,
551 U.S. 449 (2007).............................................................................................55
First Nat'l Bank of Eagle Pass v. Levine,
721 S.W.2d 287 (Tex. 1986)................................................................................47
Friedan v. Friedan,
414 F. Supp. 77 (S.D.N.Y. 1976).........................................................................32
Genarie v. PRD Mgmt., Inc.,
No. Civ. A. 04-2082 (JBS) 2006 WL 436733 (D.N.J. Feb. 17, 2006) ................19
Gitlow v. New York,
268 U.S. 652 (1925).............................................................................................54
Gregory v. City of Chicago,
394 U.S. 111 (1969).............................................................................................54
viii
Hague v. Comm. For Indus. Org.,
307 U.S. 496 (1939).............................................................................................28
Hancock v. Variyam,
400 S.W.3d 59 (Tex. 2013)..................................................................................22
Hernandez v. Commissioner,
490 U.S. 680 (1989).............................................................................................20
Hill v. Heritage Res. Inc.,
964 S.W. 2d 89 (Tex. App.El Paso 1997, pet. denied)....................................45
Hoffmann-La Roche Inc. v. Zeltwanger,
144 S.W.3d 438 (Tex. 2004)................................................................................48
Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Boston, Inc.,
515 U.S. 557 (1995).............................................................................................54
Hustler Magazine v. Falwell,
485 U.S. 46 (1988)........................................................................................ 54, 57
In re Lipsky, 411 S.W.3d 530 (Tex. App.Fort Worth 2013, orig.
proceeding [mand. pending]) .................................................................. 14, 25, 38
In re Miscavige,
No. 03-14-00091-CV......................................................................................... xvi
Indep. Life Ins. Co. of Am. v. Work,
77 S.W.2d 1036 (Tex. 1934)................................................................................14
Insern v. Ninth Court of Appeals,
925 S.W.2d 604 (Tex. 1996)................................................................................46
Jennings v. Minco Tech. Labs, Inc.,
765 S.W.2d 497 (Tex. App.Austin 1989, writ denied)....................................42
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952).............................................................................................28
Justice v. Belo Broad. Corp.,
472 F. Supp. 145 (N.D. Tex. 1979) .....................................................................40
Khan v. GBAK Props., Inc.,
371 S.W.3d 347 (Tex. App.Houston [1st Dist.] 2012, no pet.) .......................47
Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.Austin April 11,
2014, no pet.)................................................................................................ passim
ix
Kitchings v. Florida United Methodist Childrens Home,
393 F. Supp. 2d 1282 (M.D. Fla. 2005)...............................................................19
Kraemer v. Grant Cnty.,
892 F.2d 686 (7th Cir. 1990)................................................................................51
Kroger Tex. Ltd. Pship v. Suberu,
216 S.W.3d 788 (Tex. 2006)......................................................................... 23, 48
KTRK Television, Inc. v. Robinson,
409 S.W.3d 682 (Tex. App.Houston [1st Dist.] 2013, pet. denied) ................37
Locke v. St. Augustines Episcopal Church,
690 F. Supp. 2d 77 (E.D.N.Y. 2010) ...................................................................19
Madsen v. Womens Health Ctr.,
512 U.S. 753 (1994).............................................................................................55
Malloy v. Assn of State & Territorial Solid Waste Mgmt. Officials,
955 F. Supp. 2d 50 (D.D.C. 2013) .......................................................................19
Marcone v. Penthouse Intl Magazine for Men,
754 F.2d 1072 (3d Cir. 1985)...............................................................................31
Meeropol v. Nizer,
381 F. Supp. 29 (S.D.N.Y. 1974), affd, 560 F.2d 1061 (2d Cir. 1977)..............31
Moore v. Charles B. Pierce Film Enters., Inc.,
589 S.W.2d 489 (Tex. Civ. App.Texarkana 1979, writ refd n.r.e.)................40
Murdock v. Pennsylvania,
319 U.S. 105 (1943).............................................................................................19
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982)...................................................................................... 28, 54
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742 (5th Cir. 2014)................................................................................17
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 552 (Tex. App.Houston [1st Dist.] 2013, pet. denied) ................14
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.Houston [1st Dist.] 2013, pet. denied) ....... 8, 16, 17
Operation Rescue - National v. Planned Parenthood of Houston and
Southeast Texas, Inc.,
975 S.W.2d 546 (Tex. 1998)......................................................................... 55, 56
x
Parkway Co. v. Woodruff,
901 S.W.2d 434 (Tex. 1995)................................................................................22
Pena v. Perel,
417 S.W.3d 552 (Tex. App.El Paso 2013, no pet.)..........................................14
Perry Educ. Assn v. Perry Local Educators Assn,
460 U.S. 37 (1983)...............................................................................................55
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc.,
29 S.W.3d 74 (Tex. 2000)...................................................................................45
Railroad Commn of Tex. v. Texas Citizens for a Safe Future & Clean
Water,
336 S.W.3d 619 (Tex. 2011)..................................................................................7
Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716 (Tex. App.Houston [14th Dist.] 2013, pet. denied)...... passim
Rio Grande H2O Guardians v. Robert Muller Family Pship, Ltd.,
No. 04-13-00441-CV, 2014 WL 309776 (Tex. App.San Antonio
Jan. 29, 2014, no pet.) ..........................................................................................37
Snyder v. Phelps,
131 S. Ct. 1207 (2011) ............................................................................ 28, 54, 57
Standard Fruit & Vegetable Co. v. Johnson,
985 S.W.2d 62 (Tex. 1998)..................................................................................48
Star-Telegram, Inc. v. Doe,
915 S.W.2d 471 (Tex. 1995)................................................................................39
Strickland v. Washington,
466 U.S. 668 (1984).............................................................................................51
Terminiello v. City of Chicago,
337 U.S. 1 (1949) .................................................................................................54
Texaco, Inc. v. Pennzoil Co.,
729 S.W.2d 768 (Tex. App.Houston [1st Dist.] 1987, writ ref'd n.r.e.) ..........46
Thornhill v. Alabama,
310 U.S. 88 (1940)...............................................................................................54
Thorpe v. Mut. of Omaha Ins. Co.,
984 F.2d 541 (1st Cir. 1993)................................................................................51
xi
Tichinin v. City of Morgan Hill,
177 Cal. App. 4th 1049 (Cal. Ct. App. 2009) ............................................... 35, 36
Turner v. KTRK Television, Inc.,
38 S.W.3d 103 (Tex. 2000)..................................................................................44
Valenzuela v. Aquino,
853 S.W.2d 512 (Tex. 1993)................................................................................42
Vaughn v. Drennon,
202 S.W.3d 308 (Tex. App.Tyler 2006, no pet.) ...................................... 42, 43
Victoria Bank & Trust Co. v. Brady,
811 S.W.2d 931 (Tex. 1991)................................................................................46
Vosko v. Chase Manhattan Bank, N.A.,
909 S.W.2d 95 (Tex. App.Houston [14th Dist.] 1995, writ denied) ...............58
Webb v. CBS Broad., Inc.,
No. 08 C 6241, 2011 WL 4062488 (N.D. Ill. Sept. 13, 2011) ............................43
Webb v. Glenbrook Owners Assn, Inc.,
298 S.W.3d 374 (Tex. App.Dallas 2009, no pet.)............................................44
Wehling v. Columbia Broad. Sys.,
721 F.2d 506 (5th Cir. 1983)................................................................................43
WFAA-TV, Inc. v. McLemore,
978 S.W.2d 569 (Tex. 1998)......................................................................... 29, 30
Zarzana v. Ashley,
218 S.W.3d 152 (Tex. App.Houston [14th Dist.] 2007, pet. struck)...............58
Zurich American Insurance Co. v. Nokia, Inc.,
268 S.W.3d 487 (Tex. 2008)................................................................................21
Statutes
26 U.S.C. 170............................................................................................... xvii, 18
26 U.S.C. 501(c)(3)...................................................................................... xvii, 18
Tex. Civ. Prac. & Rem. Code 16.003 ...................................................................36
Tex. Civ. Prac. & Rem. Code 16.003(a)...............................................................41
Tex. Civ. Prac. & Rem. Code 27.001 .............................................. xiii, xv, xix, 24
Tex. Civ. Prac. & Rem. Code 27.001(2)...............................................................33
Tex. Civ. Prac. & Rem. Code 27.001(3)...............................................................29
xii
Tex. Civ. Prac. & Rem. Code 27.001(4)...............................................................34
Tex. Civ. Prac. & Rem. Code 27.001(7)...............................................................29
Tex. Civ. Prac. & Rem. Code 27.001(7)(E) .........................................................17
Tex. Civ. Prac. & Rem. Code 27.003(a)...............................................................33
Tex. Civ. Prac. & Rem. Code 27.005(b).................................................................8
Tex. Civ. Prac. & Rem. Code 27.005(c).................................................................8
Tex. Civ. Prac. & Rem. Code 27.005(d).................................................................8
Tex. Civ. Prac. & Rem. Code 27.005(d)...............................................................37
Tex. Civ. Prac. & Rem. Code 27.009(1)............................................................. xxi
Tex. Civ. Prac. & Rem. Code 27.009(2)(b)........................................................ xxi
Tex. Civ. Prac. & Rem. Code 27.009(b)........................................................ 58, 59
Tex. Civ. Prac. & Rem. Code 27.010(b)....................................................... passim
Tex. Civ. Prac. & Rem. Code 27.010(c)....................................................... passim
Tex. Civ. Prac. & Rem. Code 27.011(b)....................................................... passim
Tex. Govt Code 312.005............................................................................... 14, 23
Other Authorities
Restatement (Second) of Torts 652D cmt. a.........................................................40
Restatement (Second) of Torts 652I, cmt. a .........................................................40
Restatement (Second) of Torts, 46 cmt. d ............................................................50
U.S. Department of State, International Religious Freedom Report 2003
(www.state.gov/j/drl/rls/irf/2003/24410.htm)........................................................2
WILLIAM L. PROSSER, TORTS 117 (4
th
Ed.) ...........................................................40
Rules
Rev. Rul. 78-189, 1978-2 C.B. 68 ...........................................................................20
Rev. Rul. 93-73, 1993-2 C.B. 75 .............................................................................20
Tex. R. App. P. 9.7.....................................................................................................7
Tex. R. Civ. P. 166a.................................................................................................25
Constitutional Provisions
Tex. Const., art. I, 3...............................................................................................25
xiii
STATEMENT REGARDING ORAL ARGUMENT
Defendant/Appellant Church of Scientology International (Church)
believes that oral argument would assist the Court. The record consists of many
volumes, and oral argument would give the Court an opportunity to question
counsel about the proceedings in the district court and the evidence relating to the
issues on this appeal. Moreover, the district courts ruling raises important
questions about the interpretation of the States anti-SLAPP statute, the Texas
Citizens Participation Act. Tex. Civ. Prac. & Rem. Code (TCPA) 27.001 et
seq. Oral argument would give the Court an opportunity to question counsel
regarding the basis for, and the potential implications of, the district courts novel
and erroneous interpretation of the TCPA. The TCPA was enacted to protect the
exercise of the rights of free speech, association, and petition, all of which are at
issue in this case. This case also provides an opportunity for the Court to write
additionally on the commercial speech exemption of the TCPA and to write for
the first time on the statutes bodily injury exemption.
xiv
RECORD REFERENCES
The reporters record will be cited as follows:
[Vol.]RR[page]
The clerks record will be cited as follows:
[Vol.]CR[page]
The first supplemental clerks record will be cited as follows:
FSCR[page]
xv
STATEMENT OF THE CASE
Nature of the
case
This case arises out of an ongoing public controversy between
Defendant/Appellant Church of Scientology International
(Church) and former Scientologist Marty Rathbun and his
wife, Plaintiff/Appellee Monique Rathbun, who became
virulent critics of the Church and its leadership. Plaintiff sued
the Church and others for invasion of privacy by publication
of private facts, intrusion upon seclusion, tortious interference
with contract, and intentional infliction of emotional distress,
complaining of public protests, documentary filmmaking
activity, and the work of licensed private investigators
retained by Church attorneys. 1CR28-40.
Trial court The action was filed in the 207th Judicial District Court in
Comal County. The Honorable Dib Waldrip of the 433rd
Judicial District Court in Comal County presided.
Course of
proceedings
The trial court granted an ex parte temporary restraining order
in Plaintiffs favor. 1CR41-42. The Church moved to dismiss
Plaintiffs claims under the TCPA, 1CR102-46, TCPA
27.001 et seq. After a hearing, the court denied the
Churchs motion, holding that Plaintiffs claims were not
subject to the TCPA because (1) she alleged bodily injury,
which the statute does not cover; (2) the Church was
primarily in the business of selling or leasing goods and
services and the Churchs speech and expressive conduct
arose out of the sale or lease of goods and services or a
commercial transaction in which the intended audience is an
actual or potential buyer or customer, TCPA 27.010(b),
rather than out of the Churchs exercise of its First
Amendment rights of speech, association, or petition; and (3)
Plaintiffs causes of action did not relate to the Churchs
exercise of rights of free speech on matters of public concern.
The court awarded attorneys fees and costs to Plaintiff
despite finding that the motion to dismiss was not frivolous
and without finding that it was brought solely to delay, as
required by the TCPA. 31CR3753-77.
xvi
Trial court
disposition
On March 14, 2014, the district court denied the Churchs and
other Defendants Motions to Dismiss. Id. The Church
timely filed its Notice of Appeal on April 2, 2014.
36CR4238-41. The district court signed a Supplemental
Ruling on April 4, 2014, FSCR27 and the Church filed its
Amended Notice of Appeal on April 17, 2014. FSCR19-23.
1
1
This action has also given rise to a mandamus proceeding concerning the special
appearances of defendants David Miscavige and Religious Technology Center. In re Miscavige,
No. 03-14-00091-CV.
xvii
INTRODUCTION
Scientology is a widely-recognized, global religion ministering to millions
through thousands of churches, missions, and affiliate groups in more than 150
countries. 1CR75; 10CR1223-25; 13RR Ex. 1 at 1-43; McShane Dec., Jan. 22,
2014, 20-22, Exs. 1-2.
2
The Church is the Mother Church of the Scientology
religion, with responsibility for the ecclesiastical management, dissemination,
propagation, and defense of the Scientology religion and its affiliated churches.
10CR1224-1225. The Church advances the religion in accordance with
Scientology scriptures consisting of the religious writings and recorded spoken
words of L. Ron Hubbard, the Founder of the Scientology religion. Like other
major religious organizations, the Church is a not-for-profit religious corporation;
the Internal Revenue Service recognizes it as a church under 26 U.S.C. 170, and
as tax exempt under 26 U.S.C. 501(c)(3) of the Internal Revenue Code.
10CR1223-24, 1229-36.
Plaintiff was never a member of the Church of Scientology. She is the wife
of a former member of the Church, Mark Rathbun, who was removed from his
position for serious misconduct in 2003. 23CR2771; 1CR148-49, 13RR56-57.
2
The Church is filing a Second Request for Additional Items to be Included in a
Supplemental Clerks Record. These additional items will include, among others, the January
22, 2014, Declaration of Warren McShane.
xviii
He left the Church in 2004. 1CR148. Five years later in 2009 he began an
aggressive and defamatory attack with a manifest intent to destroy the Church and
its ecclesiastical leadership. 1CR148-55. Although Rathbuns attempt to create a
schism with the Church of Scientology has failed, he has continued his diatribe in
the press, on YouTube, and in publications and social media outlets. 1CR150-52.
In April 2011, individual Scientologists and the Church mounted efforts to
set the record straight. They produced documentary videos designed to show
Rathbuns apostasy and lack of credibility. 1CR155-56. The Church also retained
investigators to ascertain whether Rathbuns provocative use of Scientology
materials and his open inducements to others to steal Scientology confidential
materials and bring them to him entitled the Church to bring protective litigation or
to invoke law enforcement protections. 1CR156-57.
In August 2013, Rathbuns wife brought this legal action seeking to enjoin
the Churchs activity against Rathbuns activities and damages. 1CR28-40.
Because her claims were based on the Churchs exercise of its rights to speech,
association, and petition, the Church sought dismissal of her claims under the
TCPA. 1CR102-46. The district court held that the statute does not apply, based
upon an overbroad and erroneous interpretation of the statutes exemptions, and
awarded attorneys fees and costs against the Church. 31CR3753-77. As
explained below, the district courts order is counter to the very idea behind the
xix
TCPA. The Church asks this Court to correct that fundamental error and to apply
the statute as it is written and as the legislature intended it to be applied.
ISSUES PRESENTED
1. Whether the district court erred in denying the Churchs Motion to
Dismiss Plaintiffs claims under the TCPA?
2. Whether the district court erred in holding that the TCPAs exemption
for legal actions brought against a person primarily engaged in the business of
selling or leasing goods or services, . . . aris[ing] out of . . . a commercial
transaction, TCPA 27.010(b), required denial of the motion when Plaintiffs
claims involve the Churchs role in a peaceful protest and a documentary film
project about issues of theological doctrine and ecclesiastical authority?
3. Whether the district court erred in holding that the TCPAs exemption
for legal actions seeking recovery for bodily injury, TCPA 27.010(c), will
govern any time a plaintiff pleads headaches and nausea?
4. Whether the district court erred in holding that Plaintiffs claims were
not based on, relate[d] to, or in response to the Churchs exercise of its
right of free speech, right of association, or right to petition, TCPA 27.001
(defining terms), when the evidence establishes that the Churchs activities were
undertaken in response to Marty Rathbuns flagrant attack on the Scientology
religion?
xx
5. Whether the district court erred in not dismissing Plaintiffs cause of
action for invasion of privacy by public disclosure of private facts because (a)
Plaintiff did not adduce clear and specific evidence that the Church publicly
disclosed any private facts 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 the Church disclosed private facts about her husband to
more than a few individuals, and not the public at large; (d) the alleged 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?
6. Whether the district court erred in not dismissing Plaintiffs cause of
action for invasion of privacy by intrusion into seclusion because (a) Plaintiff
presented no clear and specific evidence that the Church intruded into private
areas or matters that are within the zone of privacy protection under Texas law;
and (b) the acts of the Church are protected by the First Amendment?
7. Whether the district court erred in not dismissing Plaintiffs cause of
action for intentional 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 presented no clear and specific evidence
xxi
that any alleged breach by her employer was proximately caused by actions of the
Church; and (c) the claim is barred by the statute of limitations?
8. Whether the district court erred in not dismissing Plaintiffs cause of
action 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 other torts; (b) Plaintiff failed to
provide clear and specific evidence that the Church committed acts that meet the
standard of outrageous conduct; and (c) the acts of the Church were protected by
the First Amendment?
9. Whether the district court erred in not dismissing Plaintiffs claims for
vicarious liability and conspiracy, where those claims are derivative of her
substantive claims?
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 the
Churchs Motion to Dismiss was not frivolous and made no finding (nor could it
have) that the Churchs Motion was solely intended to delay, TCPA
27.009(2)(b), and further erred in failing to hold that the Church was entitled to
its attorneys fees and costs, TCPA 27.009(1)?
1
STATEMENT OF FACTS
A. Monique and Marty Rathbuns High-Profile Attacks on the
Church.
In 2009, five years after he left the Church, Mark Rathbun began a world-
wide campaign attacking his former church and its leadership. He has produced
videos to that end and posted them on the Internet. 1CR151-52. He has written and
self-published books and maintains an Internet blog that attack his former church
and its ecclesiastical leader, Mr. David Miscavige, as well as other well-known
Scientologists, both parishioners and Church staff. 1CR152. Mr. Rathbun posted
online a document entitled 31 Factors, purportedly modeled on Luthers 95
Theses. 1CR152, 162-63. He has compared Mr. Miscavige to Hitler, Jim Jones,
David Koresh and the Ayatollah Khomeini and has called for the destruction of the
Church of Scientology. 1CR152; 2CR203; 4CR485; 27CR3223, 3270, 3272,
3275, 3728-81.
Mr. Rathbun has voluntarily appeared on national and international
television programs, repeating his attacks against the Church, its governance, and
the Churchs ecclesiastical leader, Mr. Miscavige. 1CR151. He has conducted
interviews with international and national newspapers, as well as with local
newspapers throughout the United States, where he is widely quoted. Id. Many of
those interviews have taken place at Rathbuns residence, which is also where he
writes his blog and conducts his independent Scientology practice. 1CR150-52.
2
His wife has been not only complicit, but also explicitly involved in these
activities. 1CR152.
Although never a member of the Church and only having met Mr. Rathbun
after his excommunication from the religion, Monique Rathbun joined in her
husbands crusade against the Church and its leaders. She has posted messages
and comments on Facebook, with links to Mr. Rathbuns blog. 1CR155;
4CR557A. She has participated actively in joint television interviews in which she
and her husband discussed the Church of Scientology in highly negative terms,
accompanied her husband to Germany for his meetings with attackers of the
Church, including one German official whose anti-Scientology actions have been
criticized by the United States Department of State, and attended the press
conference in which he and others attacked the Church and its leadership.
1CR151, 155; see U.S. Department of State, International Religious Freedom
Report 2003 (www.state.gov/j/drl/rls/irf/2003/24410.htm).
Rathbun has explicitly encouraged parishioners and staff members to leave
the Church, to take Church property and Church proprietary and confidential
information with them and deliver it to him, promising to provide them with legal
support should they do so. 1CR153-54. He provided legal and logistical support
to Daniel Montalvo, who stole confidential materials from the Churchs religious
publishing company and brought them to Rathbun and his anti-Scientology
3
confederates. 1CR153-54; 4CR534-36. Plaintiff was photographed as being
present at that meeting. Id. Moreover, Rathbun has directly or indirectly
participated in, consulted, and/or assisted in numerous legal matters related to or
against the Church, including by filing meritless declarations repeating his
scurrilous attacks on the Church, even attacking a respected Florida state court
judge who filed a declaration refuting Rathbuns false allegations. 10CR1210,
25CR3017-19.
Rathbun also became a self-proclaimed independent Scientologist. He has
accused the Church and its leadership of departing from Scientology doctrine and
corrupting the religious practice of Scientology, and has claimed that his
independent Scientology practice is the true religion faithful to its founder, L.
Ron Hubbard. 1CR152; 4CR481-86. Rathbun has provided independent
Scientology services to others. 1CR149.
Plaintiff publicly and openly has encouraged Mr. Rathbun to practice his
independent Scientology, and has herself engaged in the provision of
independent Scientology services to others. 1CR148-49; 4CR470. To
Scientologists, a person who engages in such unauthorized practice of Scientology
is considered a squirrel (the Scientology term for heretic). The Rathbuns are
considered squirrels by Scientologists. 1CR150.
4
B. Squirrel Busters Productions and Its Coverage of the Rathbun
Controversy.
In April 2011, several Scientologists offended by the Rathbuns activities
organized a protest and produced documentary videos to educate Scientologists
and the general public about Rathbuns squirrel activities and his false claims
about the Church. 1CR155-56.
These individual Scientologists, who called themselves the Squirrel
Busters, formed Squirrel Busters Productions. 2CR281. The founding members
included Defendant David Lubow, who served as the projects director and co-
producer. Id. Lubow has experience in documentary filmmaking, including a
feature-length, award-winning film, Prescription: Suicide?, which examined the
use of psychiatric medications by children. 2CR277-78.
The working title of Lubows project was The Story of a Squirrel, and it
was planned as both a film and a series of short videos. 2CR281. The project
would include footage of Scientology members protesting outside the Rathbuns
then-home in Ingleside on the Bay (near Corpus Christi), where Rathbun
conducted his independent Scientology practice and directed his public
campaign against the Church. Id. The project would also document Rathbuns
activities and attempt to expose him as a false critic and heretic to Scientologists
and the general public. Id.
5
To clearly identify themselves, the Squirrel Busters created a logo and
ordered T-shirts emblazoned with the design. Id. Protesters and film crew were
instructed that the demonstrations outside the Rathbuns home must be nonviolent,
no matter how brazenly Rathbun tried to provoke them into a fight. 2CR282.
Lubow and his co-producer, John Allender, prepared volunteer Church members
participating in the protests with scripted questions to ask Rathbun during any
public confrontations. 2CR281-82. Squirrel Busters Productions also hired two
professional videographers to record the protesters and the Rathbuns public
activities. 2CR282. The Church supported the Squirrel Busters project. 2CR283.
The Squirrel Busters began their protest and documentary over a three day
period in April 2011, then resumed in June of that year. 2CR283. The last day of
filming was September 16, 2011. Except for a few minutes on April 18, 2011,
when the members of the Squirrel Busters knocked on the Rathbuns front door in
an attempt to interview Mr. Rathbun about the theological basis of his heretical
practices, the entire projectprotest and filmingtook place on public property.
3
2CR290. No member of the Squirrel Busters ever trespassed on the Rathbuns
property. 4CR503.
3
This interaction did not last long. Rathbun asked them to leave, and the Squirrel
Busters complied with his request. 2CR289. Plaintiff claimed that there were four additional
occasions during 2010-11 when unidentified individuals or individuals Plaintiff believes to be
connected with the Church, knocked on the Rathbuns door. 29CR3503-04. None of these
incidents took place during the filming of the Squirrel Busters protest. 2CR283.
6
During the filming, the Squirrel Busters had numerous verbal encounters
with Rathbun and Plaintiff in public areas, in the course of which they discussed,
often in heated or argumentative terms, Rathbuns squirrel and anti-Scientology
activities. 2CR290.
The Squirrel Busters project caught the attention of local, national, and
international media. The readers of the Corpus-Christi Caller Times even voted
the newspapers coverage of the protest as its Story of the Year. 1CR156. The
Village Voice repeatedly covered the Squirrel Busters, posted videos made by both
Rathbun and the Squirrel Busters, and published a letter from the Squirrel Busters.
1CR156. The Independent, a newspaper published in the United Kingdom, also
covered the controversy. Id.
Lubow and his film crew produced at least 14 videos that were posted on the
Squirrel Busters YouTube channel, The Squirrel Zone. 1CR156. They also
created a series of radio ads. 1CR114. Rathbun published even more reports on the
project, posting at least 20 videos on his blog or YouTube channel about the
Squirrel Busters. 1CR156.
C. The Church Hired Private Investigators.
The Church, through counsel, retained several licensed professional private
investigators because of Rathbuns appropriation of the Churchs intellectual
property, his threat to destroy its copyrights, his exhortations to others to engage in
7
theft of Church materials and property and to bring the materials to him, including
his offers to protect them for their illegal acts, his involvement as a witness,
consultant, and solicitor of other litigation, and his public attacks upon
Scientology and its officials. 1CR156-57; 2CR298-99; 2CR278-79. The private
investigators work product was sought in connection with possible affirmative
litigation and/or in connection with defense of litigation threatened by Rathbun or
in which Rathbun played a part. 1CR156-57. The Church retained lawyers to
advise about possible litigation, who gave that advice and drafted a complaint
against Rathbun. 27CR3214.
No private investigator was directed or authorized to use improper,
unethical, unusual, or illegal methods, and there is no evidence that they did.
1CR156-57. The Church adopts by reference the additional specifics included in
the Statements of Facts in the individual Defendants briefs. Tex. R. App. P. 9.7.
STANDARD OF REVIEW
This Court reviews the denial of the Churchs motion de novo. Kinney v.
BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *3 (Tex.
App.Austin Apr. 11, 2014, no pet.) (citing Railroad Commn of Tex. v. Texas
Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011)).
This requires the Court to make[] an independent determination and appl[y] the
same standard used by the trial court in the first instance. Rehak Creative Servs.,
8
Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.Houston [14th Dist.] 2013, pet.
denied). The Church bears the burden of establishing by a preponderance of the
evidence that Plaintiffs action is based on, relates to, or is in response to the
Churchs exercise of the right of free speech, the right to petition, or the right of
association. TCPA 27.005(b); Newspaper Holdings, Inc. v. Crazy Hotel Assisted
Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.Houston [1st Dist.] 2013, pet.
denied). Conversely, the burden is on Plaintiff to prove by a preponderance of the
evidence that her claims are exempt from the TCPA. See Kinney, 2014 WL
1432012, at *6.
If the Court holds that the TCPA applies and Plaintiffs claims are not
exempt, it must consider whether Plaintiff has satisfied her burden of submitting
clear and specific evidence to support each essential element of her causes of
action. See TCPA 27.005(c)). Courts have described this as an elevated
standard, requiring the submission of admissible evidence that is free from
ambiguity and unaided by presumptions, inferences, or intendments. Rehak,
404 S.W.3d at 726 (citation omitted); Farias v. Garza, 426 S.W.3d 808, 813 (Tex.
App.San Antonio 2014, pet. filed). Even if Plaintiffs evidence satisfies this
elevated standard, her claims must be dismissed if the Church establishes a defense
or defenses to her causes of action. TCPA 27.005(d); Kinney, 2014 WL
1432012, at *8.
9
SUMMARY OF THE ARGUMENT
The TCPA protects the exercise of First Amendment rights of speech on a
matter of public concern, rights of association, and rights to petition. When a
plaintiff brings a legal action that is based on, relates to, or is in response to a
defendants exercise of such rights, the defendant may bring a motion to dismiss
that action. To oppose that motion, the plaintiff must show by clear and specific
evidence, without use of inference or presumption, a prima facie case in support of
each element of its claims. If the plaintiff carries its burden, the defendant then
may show that the action nevertheless must be dismissed because of a valid
defense, such as the First Amendment. The TCPA must be construed liberally to
effectuate its purpose of encouraging and protecting First Amendment rights.
The district court violated that principle by holding that TCPA does not
apply because of two exemptions. First, by holding that the exemption for
commercial speech for actions arising out of the sale of goods and services by a
party primarily engaged in such activities applies here, the court ignored the
IRSs contrary finding that the Church has an exclusively charitable and religious
purpose. In addition, the Plaintiffs causes of action do not arise out of the sale of
goods or services by any party, but rather out of the alleged activities of the
Squirrel Busters and private investigators. Second, by holding that the exemption
for claims for bodily injury exempts Plaintiffs tort claims that allegedly caused
10
emotional distress because she alleges she suffered headaches and nausea, the
district court rendered the TCPA virtually unenforceable. Paradigmatic anti-
SLAPP claims such as defamation, invasion of privacy, and other causes of action
regularly seek damages for emotional distress. If the district courts holding were
to stand, such legal actions targeting a partys exercise of First Amendment rights
would not be subject to the TCPA protected activities that caused a plaintiff
distress would be subject to suit merely by the making of such an allegation.
In alternatively holding that the TCPA did not apply because Plaintiffs
claims were not based on, related to, or in response to the Churchs exercise of
its right of free speech, the district court also failed to apply or even refer to the
TCPAs definition of a matter of public concern. The Churchs free speech
claims meet the Statutes definition of a matter of public concern. First, the
communications of the Church concerned matters of community well-being, as
both Plaintiff and the Church exercised their speech rights about matters they
believed were of public importance, as the media coverage demonstrated. Second,
the communications were about the Rathbuns, each of whom was a public figure
either by choice or circumstance.
The Church also was entitled to bring the motion to protect its rights of
association and petition. The Squirrel Busters activities were quintessential acts
of public assembly and association. And the retention of investigators was in
11
contemplation of rights of petition to judicial, administrative and law enforcement
authorities.
Because the TCPA applies, the Court must then consider whether Plaintiffs
evidentiary showing satisfies her elevated burden to support each essential
element of her claims with clear and specific evidence and to overcome the
Churchs defenses to those claims. Plaintiffs evidence falls well short of this
standard.
Plaintiffs claim for invasion of privacy by publication of private facts about
her husband should be dismissed because she lacks clear and specific evidence
that the Church published to the general public any true, private facts about her.
Her attempt to rely on statements made about her husband is baseless as a matter of
law; the tort is restricted to invasion of ones own personal privacy, not the
personal privacy of ones friends or family members. In addition, Plaintiff cannot
rely on isolated statements to a few people; the tort is reserved for publications to a
mass audience such as the general public. Furthermore, the specific statements on
which she relies were of legitimate public concern and, in any event, outside the
two-year statute of limitations that applies to her claim.
Plaintiffs privacy claim for intrusion on seclusion fails to meet the
requirements that there be either a physical invasion of a persons property or
eavesdropping on anothers conversation with the aid of wiretaps, microphones, or
12
spying. Here, no such improper intrusion occurred. Plaintiff herself has conceded
that she has no knowledge of any such intrusion. 3RR178-184.
Plaintiffs claim for intentional interference with contract likewise must be
dismissed. Plaintiff concedes that she resigned from her job voluntarily. She
makes no claim and presents no evidence that the Church proximately caused her
employer to take any negative employment action against her.
4
The claim is also
barred by the statute of limitations.
Finally, Plaintiff cannot avoid dismissal of her flawed claims by relying on a
theory of intentional infliction of emotional distress (IIED). Texas courts have
long held that IIED cannot be used as a gap-filler. But that is exactly what
Plaintiff attempts to do. In support of her IIED claim, she relies on the same facts
that support other causes of action. She complains about alleged defamation, but
she does not assert a defamation claim.
The IIED claim also fails to meet Texass strict application of the
outrageousness element of the tort. Only the most extreme acts may be deemed to
come within that rubric, and none of the acts for which Plaintiff has produced any
evidence comes close to meeting that standard.
4
In fact, the only contact by one of the private investigators with Plaintiffs former
employer relating to this claim occurred after she voluntarily left her job. 28CR3387-89.
13
Even if Plaintiff could establish the common law elements of her claims,
they should still be dismissed because the acts of the Squirrel Busters are protected
under the First Amendment and may not be the predicate for claims of IIED,
invasion of privacy, or any other tort. Under established case law, the acts of
peacefully demonstrating on public property, engaging the Rathbuns in debate and
other communications, filming them in public, and similar activities are within the
core protections of the First Amendment based on decades of U.S. Supreme Court
precedent. If this were not so, a large percentage of broadcast investigative news
reports would subject the broadcaster to liability simply because the subject of the
broadcast objects to being filmed in public.
Finally, the district court violated the TCPA by awarding costs and fees to
Plaintiff. The court acknowledged the Churchs motion was not frivolous and
made no finding that the motion was undertaken exclusively for delay, as the
TCPA requires.
ARGUMENT
I. THE DISTRICT COURTS HOLDINGS THAT PLAINTIFFS
CLAIMS AGAINST THE CHURCH WERE EXEMPT FROM THE
TCPA WERE ERRONEOUS AND WOULD RENDER THE TCPA A
VIRTUAL NULLITY.
The district courts primary grounds for denying the Churchs Motion to
Dismiss were that Plaintiffs claims were exempt from the TCPA under the
commercial speech and bodily injury exemptions. 31CR3764-77. The courts
14
conclusions are at odds with Texas case law and the clear purpose of the TCPA,
and would render the TCPA unenforceable in most, if not all, circumstances.
As the district court correctly noted, the plaintiff must plead and prove the
applicability of a TCPA exemption. See Kinney, 2014 WL 1432012, at *6 (We
agree . . . that the plaintiff has the burden to show that TCPA exemption applies).
Accord, Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
S.W.3d 552 (Tex. App.Houston [1st Dist.] 2013, pet. denied); Pena v. Perel, 417
S.W.3d 552 (Tex. App.El Paso 2013, no pet.); Better Bus. Bureau of
Metropolitan Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex. App.Dallas
2013, pet. denied). In interpreting a statute, a court shall diligently attempt to
ascertain legislative intent and shall consider at all times the old law, the evil, and
the remedy. Tex. Govt Code 312.005. A statute is to be construed in such a
manner as to make it effective. Indep. Life Ins. Co. of Am. v. Work, 77 S.W.2d
1036, 1039 (Tex. 1934).
The TCPA explicitly requires courts to construe it liberally to effectuate its
purpose and intent fully. TCPA 27.011(b). To fully effectuate the broad,
speech-protective purpose of the TCPA, In re Lipsky, 411 S.W.3d 530, 539 (Tex.
App.Fort Worth 2013, orig. proceeding [mand. pending]), the exemptions to the
statute must be construed narrowly. Here, however, the district court ignored this
legislative command, instead embracing overly broad interpretations of these
15
exemptions that cannot be reconciled with established precedent or the text and
purpose of the statute.
A. The Commercial Speech Exemption Does Not Apply to
Plaintiffs Claims.
Plaintiff raised the commercial speech exemption almost as an
afterthought, near the end of the hearing on the Churchs motion. 12RR228-29;
29CR3508-19. But the district court seized on this argument, making it the
primary basis for denying the Churchs motion. In doing so, the district court
ignored case law and the TCPAs plain language, and it improperly held that the
Church was nothing more than a business selling goods and services.
Under the commercial speech exemption, the TCPA does not apply to a
legal action brought against a person primarily engaged in the business of selling
or leasing goods or services, if the statement or conduct arises out of the sale or
lease of goods, services, or an insurance product, insurance services, or a
commercial transaction in which the intended audience is an actual or potential
buyer or customer. TCPA 27.010(b)(emphasis added). Courts have construed
this exemption narrowly, requiring that an exempt statement be made for the
purpose of securing sales in the goods or services of the person making the
statement, Kinney, 2014 WL 1432012, at *6, and the intended audience of the
statement must be actual or potential buyers or customers, Better Business Bureau
of Metropolitan Houston, Inc. v. John Moore Services, Inc., No. 01-12-00990-CV,
16
2013 WL 3716693, at *45 (Tex. App.Houston [1st Dist.] July 16, 2013, pet.
denied).
Although the TCPA is relatively new, several reported cases have
interpreted the commercial speech exemption narrowly. In Kinney, this Court
held that the exemption did not apply where a legal recruiter anonymously posted
negative comments to a website about a rival recruiting agency for which he had
worked previously. 2014 WL 1432012, at *1, *6, *7. In Newspaper Holdings, the
First Court of Appeals held that the exemption did not apply to defamation and
tortious interference claims by an assisted living facility against a home health and
hospice agency, despite the existence of an underlying business dispute between
the parties. 416 S.W.3d at 89-90. And in Better Business Bureau of Metropolitan
Dallas, Inc., the Dallas Court of Appeals held that the exemption did not apply to
claims against the Better Business Bureau by a disgruntled company that had paid
the BBB for accreditation services yet still received a negative rating. 402 S.W.3d
at 302-04; see also John Moore Servs., 2013 WL 3716693, at *5 (holding that
commercial speech exemption did not apply to BBBs negative rating of a
company, where the BBBs statements were directed to the general public rather
than to its potential customersbusinesses seeking accreditation).
17
The district court did not discuss any of these cases.
5
Rather, it created a
sweeping interpretation of 27.010(b), under which claims are exempt from the
TCPA if they relate in any way to an underlying commercial transaction or dispute.
But if that were the proper interpretation of the commercial speech exemption,
Kinney, Newspaper Holdings, and Better Business Bureau all would have been
decided differently. Moreover, such a broad interpretation ignores TCPA
27.001(7)(E), which states that speech regarding a good, product, or service in
the marketplace is protected by the TCPA. The only way to reconcile this
provision with the commercial speech exemption is to limit the exemption to
claims challenging the advertisement of a partys goods or services.
Properly construed, the commercial speech exemption does not apply to
Plaintiffs claims. Plaintiffs action does not challenge any advertisement for the
Churchs products or services. See NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742, 753-55 (5th Cir. 2014) (law firms advertisement to prospective
clients fell within commercial speech exemption). Instead, she challenges the
protesting and filmmaking activities of the Squirrel Busters and the investigative
actions of the private investigators. There is no allegation that any of the Squirrel
Busters or investigators were offering any goods or services, much less that they
were primarily engaged in the business of selling or leasing goods or services.
5
The Courts revised opinion in Kinney was issued after the district courts Order.
18
TCPA 27.010(b) (emphasis added). Moreover, there is no allegation that Mr.
Rathbun was even in competition with the Church.
6
Even if the commercial speech exemption could be interpreted as broadly
as the district court did, the district courts application of the exemption to the
Church violates both the TCPA and the First Amendments protection of religious
liberty. Contrary to the district courts statement, 31CR3766, the Church by its
very nature is not primarily engaged in . . . selling or leasing goods or services,
as the exemption requires. The Church is the senior ecclesiastical management
church of the Scientology religion. 10CR1201, 1206. It is a tax-exempt church
within the meaning of 26 U.S.C. 170 and 501(c)(3). In order to qualify as a
tax-exempt church under Section 501(c)(3), the Church had to show and the IRS
had to find that it was organized and operated exclusively for religious, charitable,
. . . or educational purposes, and not to carry on a commercial business of selling
goods or services. In 1998, the IRS stated in a letter to the Church that in granting
exemption the Service determined that CSI was organized and operated
exclusively for charitable and religious purposes . . . 10CR1235 (emphasis
added).
6
The court sustained the Churchs relevance objection to Rathbuns statement I have
held true to my published representation that I am not in competition with defendants . . . ,
15CR1859, and then grounded its denial of the Churchs motion on supposed commercial
competition. 29CR3508-19.
19
Contrary to the district courts holding, the fact that the Church collects
donations in connection with some of its religious practices does not mean that the
Church is primarily in business to sell a good or service[.] 31CR3766. See
Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943) ([T]he mere fact that the
religious literature is sold by itinerant preachers rather than donated does not
transform evangelism into a commercial enterprise). See also, Kitchings v.
Florida United Methodist Childrens Home, 393 F. Supp. 2d 1282, 1294 n.28
(M.D. Fla. 2005) (The fact that an eleemosynary organization receives income in
the form of fees . . . does not in itself render it a for profit or business enterprise.
Obviously, the organization will have expenses which must be offset by revenues
from some source); Genarie v. PRD Mgmt., Inc., No. Civ. A. 04-2082 (JBS) 2006
WL 436733, at *8 (D.N.J. Feb. 17, 2006) (same, quoting Kitchings); Locke v. St.
Augustines Episcopal Church, 690 F. Supp. 2d 77, 87 (E.D.N.Y. 2010) (same);
Malloy v. Assn of State & Territorial Solid Waste Mgmt. Officials, 955 F. Supp.
2d 50, 56 (D.D.C. 2013) (The defendant does not qualify as a business-oriented
entity merely because it . . . charges its members for the services it provides.).
The district courts holding suggests a disturbing anti-Scientology hostility,
which cannot be squared with the First Amendment. No one would argue that
doctrinal disagreements among Roman Catholics or among Mormons are disputes
about goods and services simply because Catholic parishioners pay for private
20
masses or the Church of Jesus Christ of Latter Day Saints requires members to
tithe. And no one would assert that a Protestant or nondenominational Bible
church is primarily involved in the sale of goods or services merely because
collections are taken up during Sunday services. Similarly, the premise of the
district courts commercial speech holdingthat the Church is merely a business
whose primary activity is to engage in the selling of goods and services
should be rejected, as should the misguided notion that theological and
ecclesiastical disagreements between Scientologists and an ex-Scientologist are
commercial disputes.
7
B. The Bodily Injury Exemption of Section 27.010(c) Does Not
Apply to Plaintiffs Claims.
The district court also erred in holding that the TCPA did not apply because
Plaintiffs invasion-of-privacy and other claims were for bodily injury. The
TCPAs bodily injury exemption provides that the statute does not apply to a
legal action seeking recovery for bodily injury, wrongful death, or survival or to
7
The district courts reliance on Hernandez v. Commissioner, 490 U.S. 680 (1989), for
the proposition that the Church is primarily engaged in the business of selling services is entirely
misplaced. Hernandez upheld the disallowance of charitable tax deductions for money given to
churches of Scientology in connection with its religious services (a position the IRS initially set
forth in Rev. Rul. 78-189, 1978-2 C.B. 68), but it never questioned the legitimacy of the Church
as a religious organization or remotely suggested that the Church is primarily a business. Id. at
68384, 686. Moreover, after Hernandez, the IRS, following a thorough review process,
recognized the Church and all United States Scientology churches as tax exempt, see 10CR1235-
36, and ruled that contributions to Scientology churches in connection with its religious services
are tax-deductible. See Rev. Rul. 93-73, 1993-2 C.B. 75, declaring Rev. Rul. 78-189 to be
obsolete.
21
statements made regarding that legal action. TCPA 27.010(c). Rather than
interpret this exemption in accordance with the purpose of the TCPA, the district
court isolated the term bodily injury and looked to the Texas Penal Code and
case law construing terms in insurance policies to discern its meaning.
8
See
31CR3769-70; but see Kinney, 2014 WL 1432012, at *3 (We generally avoid
construing individual provisions of a statute in isolation from the statute as a
whole. (citation omitted)). Based on these inapposite criminal law and insurance
law authorities, the district court concluded that the definition [of bodily injury
in the TCPA] is broad enough to include claims supported by sufficient evidence
demonstrating physical manifestations of pain, anxiety, emotional distress, stress,
illness or other impairment of condition regardless of the mechanism of injury.
31CR3770. The court then held that Plaintiff had established by a preponderance
of the evidence that she suffered stress, anxiety and fear that resulted in severe
8
The district courts reliance on an insurance-coverage case, Zurich American Insurance
Co. v. Nokia, Inc., 268 S.W.3d 487 (Tex. 2008), is particularly misplaced. First, Zurichs
holding was based in large part on the requirement that courts resolve all doubts regarding the
duty to defend in favor of the duty. Id. at 491. In contrast, the TCPA requires that it be
construed liberally to further its substantive goals, thereby mandating a narrow construction of
exemptions. TCPA 27.011(b). Second, Zurich involved claims of bodily injury arising from
radiation emitted from the defendants cell phones; it was the very essence of a bodily injury
claim. Here, however, the alleged bodily injury is based on claims of emotional distress. Third,
the insurance policy in Zurich defined bodily injury as bodily injury, sickness or disease
sustained by a person . . ., 268 S.W.3d at 491. By including sickness or disease, the
definition encompassed health problems, such as, for example, headaches and nausea, that were
not based on a traumatic injury. The absence of such language in the TCPA indicates that the
Legislature intended a more restricted meaning.
22
headaches, including migraines . . . due to the surveillance of investigators and
Squirrel Busters. Id.
The district courts interpretation of the term bodily injury under Section
27.010(c) would eviscerate the TCPA. Claims targeting the exercise of the rights
of free speech, association, and petition frequently allege that the plaintiff has
suffered some form of emotional distress or mental anguish, often resulting in
headaches or nausea. Even defamation claimsthe prototypical SLAPP
claimscommonly seek recovery for mental anguish. In fact, as to statements that
fall within the category of defamation per se damages for mental anguish may be
presumed by the jury. See, e.g., Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex.
2013) (The common law deems such statements so hurtful that the jury may
presume general damages (such as for mental anguish and loss of reputation).).
For other statements, courts look for evidence that the plaintiff has suffered
substantial disruption in daily routine or a high degree of mental pain and
distress. Id. at 68 (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.
1995)). Similarly, claims for invasion of privacy regularly seek to recover
damages for mental anguish. See, e.g., Parkway, 901 S.W.2d at 444 (plaintiff must
show substantial disruption in daily routine or other high degree of mental distress,
more than mere worry, anxiety, vexation, and anger). And any claim for
intentional infliction of emotional distressa common tag-along claim in
23
defamation and invasion-of-privacy casesrequires the plaintiff to plead and
prove extreme emotional distress. See Kroger Tex. Ltd. Pship v. Suberu, 216
S.W.3d 788, 796 (Tex. 2006).
But under the district courts interpretation, a plaintiff alleging these causes
of action can avoid the TCPA merely by claiming that the alleged defamation or
invasion of privacy caused a headache, muscle ache, or nausea, all of which are
impossible to disprove. This potential end-run would render the TCPA useless in
protecting citizens who exercise their rights of free speech, association, or petition
from even the most paradigmatic SLAPP suits. See Tex. Govt Code 312.005
(In interpreting a statute, a court shall diligently attempt to ascertain legislative
intent and shall consider at all times the old law, the evil, and the remedy.).
Nothing in the TCPAs text or purpose, and no reported decision applying the
TCPA, supports such a holding. Cf. Rehak, 404 S.W.3d at 724 (applying TCPA to
claims for tortious interference and intentional infliction of emotional distress).
Rather, Section 27.010(c) must be construed liberally to effectuate its
purpose and intent fully. TCPA 27.011(b). The exemption ought to be limited
to wrongful death, survival, and other bodily injury claims. Because Plaintiffs
claims do not fall within this category, they are not exempt from the application of
the TCPA.
24
II. THE DISTRICT COURT ERRED IN HOLDING THAT
PLAINTIFFS CLAIMS WERE NOT BASED ON, RELATED TO OR
IN RESPONSE TO THE CHURCHS EXERCISE OF ITS RIGHTS
TO FREE SPEECH, ASSOCIATION, OR PETITION.
After holding erroneously that Plaintiffs claims were exempt from the
TCPA, the district court held in the alternative that the TCPA did not apply
because the claims were not based on, relate[d] to, or in response to the Churchs
exercise of its rights of free speech, petition, or association. See 31CR3771.
Under the TCPA, these terms are defined in specific and broad terms. TCPA
27.001. The district court made no mention of and did not attempt to apply the
statutory definitions and criteria for determining whether the threshold standard is
met. Instead, the district court warned that application of the TCPA could have an
absurd effect potentially rendering it unconstitutional under the Seventh
Amendment of the U.S. Constitution or the open courts guarantee of the Texas
Constitution, and that Plaintiff should have the right to proceed with full discovery
and trial to try to prove the existence of some exception to the First Amendment,
such as obscenity, fighting words, or the purported captive audience doctrine.
31CR3772-75.
The district courts discussion manifests its misreading of the TCPA. First,
the TCPA does not preclude discovery, and, in fact, the Plaintiff was granted
specific discovery prior to the hearing, which occurred in this case. The TCPA,
however, reflects the legislatures concern that lawsuits seeking damages or
25
injunctive relief for acts protected by the First Amendment chill the exercise of
such rights merely because of the heavy burden of defending against them and the
intrusive effect of full discovery on First Amendment activity, even where such
lawsuits are not meritorious:
The legislature has determined that unmeritorious lawsuits subject to
chapter 27 should be dismissed early in litigation, generally before
parties must engage in discovery. . . . The supporters of the bill
leading to the enactment of chapter 27 noted that the bills purposes
were to allow a prevailing movant of a motion to dismiss to achieve
dismissal earlier than would otherwise be possible and to avoid
costly legal expenses, including discovery expenses, even before the
summary judgment stage of litigation.
In re Lipsky, 411 S.W.3d at 553 (internal citations and quotations omitted).
Second, the courts concern about the constitutionality of the TCPA was
unfounded. This Court has already rejected a constitutional challenge to the TCPA
under the open courts provision of Article I, Section 13 of the Texas
Constitution. See Combined Law Enforcement Assns of Tex. v. Sheffield, No. 03-
13-00105-CV, 2014 WL 411672, at *9-10 (Tex. App.Austin Jan. 31, 2014, no
pet.). The TCPA does not restrict plaintiffs ability to pursue meritorious claims.
The TCPAs requirement that she provide clear and specific evidence to support
the essential elements of her claims and to overcome the Churchs defenses no
more violates the Texas Constitution than does Rule 166a. See id. at *10.
Third, the district courts concern that the TCPA unjustly could deprive a
plaintiff of the right to pursue a meritorious lawsuit is misplaced. As this Court
26
recently emphasized, a finding that a legal action is based on, related to or in
response to First Amendment rights is merely the first prong in a courts review of
a motion under the TCPA; at the second stage, a plaintiff may show by direct and
specific evidence (but not by mere inference or presumption) that its claims should
go forward with full discovery and trial. Kinney, 2014 WL 1432012, at * 5.
The district courts refusal to apply the statutory criteria for determining
whether Plaintiffs causes of action are based on, relate to, or in response to the
Churchs exercise of its right of free speech, right to petition, or right of
association is one more error that would defeat the entire structure and purpose of
the TCPA.
Had the district court followed the statutory roadmap of the TCPA, which
incorporates core First Amendment principles, it should have held that the TCPA
applies to Plaintiffs claims.
A. Plaintiffs Claims Are Based on the Churchs Exercise of Its Right
to Free Speech.
A primary focus of Plaintiffs lawsuit is upon the activities of the Squirrel
Busters. 10CR1270 (The Squirrel Busters operation against the Rathbuns is an
important basis of this lawsuit). The Squirrel Busters allegations are incorporated
in and made a significant part of all four of Plaintiffs alleged causes of action.
10CR1274-75. The centrality of the Squirrel Busters actions to the Plaintiffs
claims was further demonstrated at the hearing on Plaintiffs motion for temporary
27
injunction. See 3RR105. Plaintiffs counsel emphasized I want to get to a
dramatic change in the level and intensity of what you were experiencing and
specifically Im going to talk now about the squirrel busters. Id. Plaintiffs
counsel then proceeded to show the court video clips of and question Plaintiff
about the Squirrel Busters activities. Id. at 108-09. Plaintiff testified about the
Squirrel Busters doing their videos with pictures and, you know, unflattering stuff
about us and saying stuff . . . [t]heir response was that they were doing a
documentary. They would be out there with these cue cards . . . and they would
have scripts or whatever it was that they wanted to harass us about . . . Id. at
126-27. Plaintiffs counsel then played a passage in which the Squirrel Busters, in
his words, were getting these scripts and they were reading them on camera in
front of your house including negative things about you. Id. at 127. Plaintiff
also testified that the Squirrel Busters passed out magazines to local residents
containing their message. 3RR147.
9
Plaintiffs later attempts to run from her
pleadings about and prior focus on the Squirrel Busters ring hollow. 11RR100-01.
These activities not only lie at the core of Plaintiffs claims, they lie at the
core of the First Amendment. The streets and public rights of way on which the
9
The district court rejected the statement in the declaration of Church official Allan
Cartwright that the Squirrel Busters passed out pamphlets, stating the evidence lacks weight and
credibility. 31CR3762. The court ignored that Plaintiff herself had testified that magazines were
distributed, 3RR147.
28
Squirrel Busters conducted their activities are traditional public forums for both
speech and association, and they have immemorially been held in trust for the use
of the public. Hague v. Comm. For Indus. Org., 307 U.S. 496, 515 (1939).
Such space occupies a special position in terms of First Amendment protection.
Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011) (citation omitted). Accordingly,
state authority may not be used to prohibit people from using such forums both to
express a point of view and to attempt to communicate that point of view on an
individual or group basis to those who pass by:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation have
ordained in the light of history, that, in spite of the probability of
excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of the citizens of a
democracy.
Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). Accord, NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 907-08 (1982).
Likewise, there can be no question that production, filming and distribution
of films, videos, CDs, and other information, by whatever technology, is protected
by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503
(1952); Brown v. Entmt Merchs. Assn, 131 S. Ct. 2729 (2011).
29
Plaintiffs claims against the Church target its speech and expressive
conduct. Those activities also fit easily within the TCPAs requirement that the
speech in question be made in connection with a matter of public concern.
TCPA 27.001(3) (emphasis added). A matter of public concern under the TCPA
includes, but is not limited to, an issue related to a public figure or a matter of
community well-being. Id. 27.001(7). Both factors are present here.
1. Public Figures.
As the Texas Supreme Court has held, a three-part test determines whether
one is a limited purpose public figure: (1) the controversy is public that is,
people other than immediate participants are discussing it and are likely to feel the
impact of its resolution; (2) the plaintiff must have more than a trivial or tangential
role in the controversy; and (3) the alleged tortious speech must be related to the
plaintiffs participation in the controversy. WFAA-TV, Inc. v. McLemore,
978 S.W.2d 569, 571 (Tex. 1998).
Here, Mr. Rathbun so clearly meets the test that Plaintiff has conceded that
he is a public figure. 3RR194; 4CR500. There is no dispute that the controversy
between the Church and Rathbun is a public controversy, and Rathbun is one of
the central figures in that public controversy. The Squirrel Busters speech about
him and expressive conduct in protest of his attacks on the Church is obviously
related to his role in the controversy. Accordingly, Plaintiffs claims based on this
30
speech and expressive conduct fall within the statutory definition of speech on a
matter of public concern under the TCPA.
Moreover, Plaintiff has become a limited purpose public figure by injecting
herself into the public dispute created by her husband. See, e.g., McLemore, 978
S.W.2d at 573 (plaintiff was limited purpose public figure where he acted
voluntarily to invite public attention and scrutiny and engage[d] in activities that
necessarily involved increased public exposure and media scrutiny); Denney v.
Lawrence, 22 Cal. App. 4th 927, 936 (Cal. Ct. App. 1994) (Because [plaintiff]
thus voluntarily involved himself in the public debate and attempted to influence
public opinion, he thereby became at least a limited public figure); Scaccia v.
Dayton Newspapers, Inc., Nos. 18435, 18729, 2001 WL 1517043, at *9 (Ohio Ct.
App. Nov. 30, 2001) (Plaintiff intentionally injected herself into a public
controversy, and thereby became a public figure for that limited purpose.
Furthermore, the fact that [Plaintiff] is married to the public official bolsters her
public-figure status. Therefore, [Plaintiff] is a public figure for purposes of her
defamation claim arising from the articles at issue); Burns v. Times Argus Assn,
430 A.2d 773, 776 (Vt. 1981) (wife of Lieutenant Governor, who campaigned for
her husband and attended party functions while he was in office, was a public
figure with respect to his office and activities relating to it); see Zupnick v.
Associated Press, Inc., 31 F. Supp. 2d 70, 73 (D. Conn. 1998) (doctors wife was
31
limited purpose public figure by virtue of their marriage where doctors notoriety
spilled over upon the plaintiff and drew her into the public spotlight). So, too,
here, Plaintiff participated by herself and with her husband in public events
surrounding the public controversy about Scientology that her husband created and
fostered. See supra at 3RR188-189.
Even if Plaintiff had done far less than she did to inject herself into the
public controversy generated by her husband, she nevertheless must be deemed an
involuntary public figure with respect to that controversy: The one group of
individuals that might truly be considered involuntary public figures are relatives
of famous people. Marcone v. Penthouse Intl Magazine for Men, 754 F.2d 1072,
1084 n.9 (3d Cir. 1985) (citing Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y.
1974) (children of Julius and Ethel Rosenberg are public figures), affd, 560 F.2d
1061 (2d Cir. 1977)). Thus, in Brewer v. Memphis Publishing Co., 626 F.2d 1238
(5th Cir. 1980), the court held that the husband of a public figure entertainer must
be treated as a limited-purpose public figure in a lawsuit arising out of a news
article about his wifes alleged affair with Elvis Presley that made reference to
him, writing: he may not, by marrying [a] public figure, reduce the constitutional
protection afforded the press to publish stories about his spouse. Id. at 1257-58.
So, too, here, Plaintiff may not, by marrying a public figure, reduce the
constitutional protection afforded the Squirrel Busters and the Church to speak,
32
associate, and assemble to protest the activities of her spouse, merely because, in
doing so, their actions inevitably may affect her interests in supposedly not being
involved in a public controversy. See also Friedan v. Friedan, 414 F. Supp. 77, 79
(S.D.N.Y. 1976) (While Plaintiff here has not acted affirmatively to make himself
newsworthy, within the limited context of his past relationship to defendant Betty
Friedan, who is a public figure, such a role has been thrust upon him); Carson v.
Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976) (wife of famous entertainer
acknowledged to be a public figure).
2. Matter of Community Well-Being.
Rathbun engaged in his attacks upon the Scientology religion and its
officials because he claimed it was a matter of community well-being, and the
Squirrel Busters engaged in their activities trying to call his actions to task and
create a documentary film about them because they felt the defense of Scientology
and the rejection of Rathbuns campaign were also matters of community well-
being. The widespread media interest and coverage of the dispute, invited and
encouraged by Rathbun himself, demonstrates that the dispute was considered a
matter of community well-being by both sides and the media. 1CR118, 156.
B. Plaintiffs Claims Are Based on the Churchs Exercise of Its Right
of Association.
In addition to claims based on a partys exercise of the right of free
speech, the TCPA also applies to claims based on a partys exercise of the right
33
of association. TCPA 27.003(a). The right of association includes any
communication between individuals who join together to collectively express,
promote, pursue, or defend common interests.
10
Id. 27.001(2) (emphasis added).
Here, Plaintiffs claims are based on the Squirrel Busters and the Churchs
expression, promotion, pursuit, and defense of their common interests
specifically, to support the Church and its leadership and to oppose the Rathbuns
on issues of theological doctrine and ecclesiastical authority. 2CR286-89. This
was the entire purpose of the documentary film project and the protest against Mr.
Rathbun. Accordingly, Plaintiffs claims based on this exercise of the right of
association are subject to the TCPA.
C. The Plaintiffs Legal Actions Are Based on, Relate to, and Are in
Response to the Churchs Exercise of Its Right to Petition the
Courts and Public Authorities.
The TCPA also permits a party to move for dismissal [i]f a legal action is
based upon, or relates to, or is in response to a partys exercise of the . . . right to
petition . . . . TCPA 27.003(a). Exercise of the right to petition means
activities such as (1) communications in or pertaining to a judicial proceeding; (2)
communications in connection with an issue under consideration or review by a
legislative, executive, judicial, or other governmental body; (3) communications
10
There is no requirement that speech in connection with the exercise of the right of
association involve a matter of public concern. 27.001(2).
34
reasonably likely to encourage such consideration or review; and (4)
communications reasonably likely to enlist public participation in an effort to
effect such consideration or review. Id. 27.001(4). As with the right of
association, there is no requirement that the right of petition has been exercised on
a matter of public concern.
Plaintiffs live pleading also rests its claims in part upon the Churchs
retention and use of licensed private investigators. As the management entity for
the Scientology religion, the Church is obligated to protect and defend the religion
and its churches. The Church was confronted with Rathbuns numerous public
acts and statements that may have served as the basis for a civil action, as a
prophylactic response to anticipated litigation by Rathbun, or as the basis for
bringing a criminal complaint. 1CR152-55. Among such acts were: Rathbuns
alleged solicitation of others to steal materials and information from the Church or
other churches and provide it to him, for which he promised he would protect
such persons; Rathbuns alleged misappropriation of Scientology intellectual
property and public threat to destroy its copyrights; Rathbuns repeated defamatory
statements about the Church and other Scientology churches and officials;
Rathbuns participation as a witness in numerous lawsuits against Scientology
churches and affiliated entities; and others as stated above. Id.
35
Before engaging in the institution and defense of litigation or
communications to government officials, a person or entity has a responsibility to
investigate the facts thoroughly to insure that its communications are accurate.
Such pre-litigation or pre-petition investigation and surveillance is incidental to,
pertains to, is in connection with and is likely to encourage consideration or
review of any petition to a judicial or administrative body, and thus is
encompassed by the First Amendment right to petition and within the ambit of the
TCPA, especially given the TCPAs injunction that its terms shall be construed
liberally to effectuate its purpose and intent fully. TCPA 27.011(b).
The issue was addressed by the California Court of Appeal, applying the
California anti-SLAPP statute, in Tichinin v. City of Morgan Hill, 177 Cal. App.
4th 1049 (Cal. Ct. App. 2009). The court held that non-petitioning conduct is
within the protected breathing space of the right of petition if that conduct is
(1) incidental or reasonably related to an actual petition or actual litigation or to a
claim that could ripen into a petition or litigation and (2) the petition, litigation, or
claim is not a sham. Id. at 1068. As the court explained:
When one suspects that another has caused harm, a preliminary
investigation is usually necessary in order to know whether one has a
potential legal claim, evaluate the likelihood of success, and decide
whether or not to assert it. Consequently, the investigation of a
potential claim is normally and reasonably part of effective litigation,
if not an essential part of it.
Id. at 1068-69.
36
The record evidence meets the Tichinin test. The investigators conduct was
incidental or reasonably related to actual litigation (in which Rathbun was assisting
the Churchs opponent) or to the Churchs claims that could have ripened into
litigation, and the Churchs claims were not a sham. 1CR152-55; 27CR3213-14;
2CR278, 298-99.
III. PLAINTIFFS CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO
SUPPORT ESSENTIAL ELEMENTS OF THOSE CLAIMS AND
CANNOT OVERCOME THE CHURCHS AFFIRMATIVE
DEFENSES.
11
Because the TCPA applies to Plaintiffs claims, she was required to establish
by clear and specific evidence a prima facie case of each essential element of
each claim. Kinney, 2014 WL 1432012, at *5; TCPA 27.005(c). The
purposeful inclusion of a clear and specific evidence requirement indicates that
the non-movant must satisfy an elevated evidentiary standard under 27.005(c).
Rehak, 404 S.W.3d at 725-26 (specifically rejecting argument that court should
import into Chapter 27 the scintilla of evidence concept applicable in the
context of a no-evidence motion for summary judgment). Accord, Farias, 426
S.W.3d at 813. To meet her burden of clear and specific evidence, a plaintiff
11
Plaintiffs constant reliance on general phrases, such as Scientology operatives,
representatives, agents, contractors, or websites, never rises to the level of clear and
specific evidence connecting the Church to complained-of activities. See, e.g., 23CR2771-76.
Moreover, any tort claims arising before mid-August 2011 are barred by the two-year statute of
limitations. Tex. Civ. Prac. & Rem. Code 16.003.
37
cannot rely on presumptions, inferences or intendment. Rehak, 404 S.W.3d at
726 (citation omitted); Farias, 426 S.W.3d at 813; Rio Grande H2O Guardians v.
Robert Muller Family Pship, Ltd., No. 04-13-00441-CV, 2014 WL 309776, at *2
(Tex. App.San Antonio Jan. 29, 2014, no pet.). Rather, a plaintiff must present
evidence that is unambiguous, sure, and free from doubt, and that is
explicit. KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.
Houston [1st Dist.] 2013, pet. denied). Accord, Farias, 426 S.W.3d at 814
(Clear means free from obscurity or ambiguity, easily understood, free from
doubt, or sure. . . . Specific means constituting or falling into a specifiable
category, free from ambiguity, or accurate.) (citation omitted).
Even if a plaintiff satisfies this standard, her claim must be dismissed if the
moving party establishes by a preponderance of the evidence each essential
element of a valid defense to the non-movants claim. TCPA 27.005(d).
The district court did not reach the issue of whether Plaintiffs claims must
be dismissed under the TCPA because it held, improperly, that the statute did not
even apply. In fact, the district court stated that it ma[de] no opinion on whether
the parties had satisfied their respective burdens of proof under the TCPA.
31CR3776. If this Court agrees that the TCPA applies to this action, the Court
should decide whether Plaintiffs claims should be dismissed under the statute.
See, e.g., Avila v. Larrea, 394 S.W.3d 646, 656-57 (Tex. App.Dallas 2012, pet.
38
denied) (reviewing record and holding that plaintiff failed to submit clear and
specific evidence, even though trial court did not reach that issue); see also Better
Bus. Bureau of Metropolitan Dallas, 402 S.W.3d at 309. Moreover, such an
approach serves the statutory purpose in resolving these issues as early as possible.
See In re Lipsky, 411 S.W.3d at 539. And this Court reviews the district courts
decision de novo and on the same record as that before the district court. Rehak,
404 S.W.3d at 727.
Here, the record shows that Plaintiff has notand, indeed, cannotsatisfy
her burden under the TCPA to present clear and specific evidence supporting
each essential element of her claims. Moreover, the record also demonstrates that
she cannot overcome the Churchs affirmative defenses.
A. Plaintiffs Invasion of Privacy Claim for Public Disclosure of
Private Facts Should Be Dismissed.
The claims at the heart of Mrs. Rathbuns action against the Church are for
invasion of privacy. She asserts two theories of invasion of privacy: (1) a claim for
publication of private facts and (2) a claim for intrusion into privacy. 10CR1275.
The first claim, however, does not fit this caseeven as Plaintiff pleads it.
The tort of invasion of privacy by publication of private facts requires a plaintiff to
show that the defendant publicly disclosed true, but highly embarrassing private
facts about the plaintiff; that such publication was highly offensive to a reasonable
39
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 never alleged that the Church (or any of its alleged agents)
publicized true, private facts about her. Rather, she appears to base her claim on
alleged false and defamatory statements about her. 23CR2776. For example,
while Plaintiff claimedwithout clear and specific evidencethat she was
accused of being a sexual pervert and of being a man who had a sex change
operation, she characterizes those statements as false.
12
Id. Accordingly, these
statements cannot support a claim for public disclosure of private facts. See Doe v.
United States, 83 F. Supp. 2d 833, 841 (S.D. Tex. 2000).
Plaintiff attempted to avoid this fatal flaw by arguing that her claim is based
on the alleged disclosure in 2009 and 2010 to Plaintiffs parents, ex-husband, and
one or two co-workers of private facts about her husband. 11RR83; 20CR2419-21.
These allegations are insufficient to support a cause of action on behalf of
Plaintiff for several reasons. First, [t]he right protected by the action for invasion
of privacy is a personal right, peculiar to the individual whose privacy is invaded.
The cause of action is not assignable, and it cannot be maintained by other persons
such as members of the individuals family, unless their own privacy is invaded.
12
The district court struck these allegations from Plaintiffs affidavit based on
speculation and no personal knowledge. 32CR3866-67.
40
Restatement (Second) of Torts 652I, cmt. a. Texas state and federal courts
consistently follow the Restatement rule. Moore v. Charles B. Pierce Film Enters.,
Inc., 589 S.W.2d 489, 491 (Tex. Civ. App.Texarkana 1979, writ refd n.r.e.)
([T]he overwhelming weight of authority in other states is that an action for
invasion of privacy cannot be maintained by a relative of the person concerned . . .
[W]e will follow the majority rule and restrict the right of recovery in cases of this
type to the person about whom facts have been wrongfully published); Justice v.
Belo Broad. Corp., 472 F. Supp. 145, 148 (N.D. Tex. 1979) (Plaintiffs cannot
maintain this action for invasion of their right of privacy where the defendants
broadcast makes no reference to them).
Second, Plaintiff does not allege and introduced no evidence that the Church
or its alleged agents made the facts about Mr. Rathbun public. The tort requires
public, not private, dissemination of the private facts, in the sense of
communication 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
(4
th
Ed.). See also Restatement (Second) of Torts 652D cmt. a (Thus it is not an
invasion of the right of privacy . . . to communicate a fact concerning the plaintiffs
private life to a single person or even to a small group of persons. Rather, the tort
requires that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
41
become one of public knowledge.). Since Plaintiff alleges at most that the facts
concerning her husband were communicated only to a very small group of persons,
her cause of action cannot survive for that reason as well.
Third, even if the alleged disclosures to a few individuals were deemed to be
public disclosure within the meaning of the tort, the alleged disclosures were of
legitimate concern to the public and were protected by the First Amendment.
Rathbun was a public figure. He had made allegations of acts by others; certainly
facts showing his own admitted past history and the potential presence of severe
mental illness in his family history was relevant to the publics ability to evaluate
his public claims. A voluntary public figure such as Rathbun cannot define the
legitimate terms of public debate about his activities or credibility.
Finally, Plaintiffs claim is barred by the two-year statute of limitations for
privacy claims under Texas law. TCPA 16.003(a). Plaintiffs own timeline
places the alleged disclosures in 2009 and 2010. 20CR2418-20. She did not file
her lawsuit until August 2013, well beyond the expiration of the statute of
limitations.
B. Plaintiffs Invasion of Privacy Claim for Intrusion on Seclusion
Should Be Dismissed.
Plaintiffs second privacy claim is for intrusion on seclusion. The elements
of an intrusion claim include (1) an intentional intrusion upon a persons solitude,
seclusion, or private affairs or concerns; (2) that would be highly offensive to a
42
reasonable person; and (3) as a result of which the person suffered an injury. 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 persons
property or eavesdropping on anothers conversation with the aid of wiretaps,
microphones, or spying. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.
Tyler 2006, no pet.).
Here, however, Plaintiff has failed to support her claim with any evidence
that the Church intruded into her seclusion. As Plaintiff has conceded, the Squirrel
Busters did not trespass on the Rathbuns property. 3RR178-79. The testimony of
the Squirrel Busters and the private investigators confirms this: no physical
intrusion occurred. 2CR279, 290, 299-300. No one invaded the Rathbuns home,
engaged in electronic eavesdropping, used any form of microphone to overhear
private conversations of the Rathbuns, or obtained any view or photograph of the
homes interior that could not otherwise be seen from the public street with the
naked eye. 4CR496, 499.
Under nearly identical circumstances, courts applying Texas law have
rejected intrusion claims. For example, in Cornhill Insurance PLC v. Valsamis,
Inc., 106 F.3d 80, 85 (5th Cir. 1997), the Fifth Circuit addressed a claim for
invasion of privacy where offensive comments and inappropriate advances were
43
made toward the plaintiff. 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 persons property or
eavesdropping on anothers conversation with the aid of wiretaps, microphones, or
spying. Id. (citation omitted); 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).
Similarly, in Vaughn, the Tyler Court of Appeals held that the defendants
act of watching the plaintiff with binoculars from across the street while the
plaintiff was outside her house or standing in front of her kitchen window was not
an intrusion into privacy because [o]ne cannot expect to be entitled to seclusion
when standing in front of a large window. . . or while outside. 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 Broad., Inc., No. 08 C 6241, 2011 WL
4062488 (N.D. Ill. Sept. 13, 2011) (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 Assn, Inc., 298 S.W.3d 374, 387 (Tex.
44
App.Dallas 2009, no pet.) (holding that property owner had lawful right to
install surveillance cameras looking out from his property to adjoining property,
and that such surveillance did not constitute intrusion on privacy of adjoining
owner); American Broad. Cos. v. Gill, 6 S.W.3d 19, 28 (Tex. App.San Antonio
1999, pet. denied) (filming properties owned by plaintiffs bank in connection with
investigative report did not constitute invasion of privacy where broadcast showed
nothing more than what public could view from the street), overruled on other
grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000).
For the same reasons, Plaintiff fails to present any evidence to support her
intrusion claim. To the contrary, the declarations of the Squirrel Busters and the
private investigators make clear that no improper intrusion of the Rathbuns
premises occurred. Plaintiff herself has conceded that she has no knowledge of
any such intrusion 4CR496, 499, thereby acknowledging that she cannot meet the
statutory requirement of showing clear and specific evidence of tortious acts by the
Church.
Given that the actions of the Squirrel Busters and the private investigators
were well within proper boundaries, and given the First Amendment protection
afforded their activities, as set forth supra at II.A and infra at III.D(2), the
Plaintiffs claim of intrusion on privacy should be dismissed as a matter of law.
45
C. Plaintiffs Claim for Tortious Interference with Contract Should
Be Dismissed.
A plaintiff asserting a tortious interference with contract claim must prove:
(1) a contract exists; (2) the defendant willfully and intentionally interfered with
that contract; (3) the defendants interference proximately caused the plaintiff
damage; and (4) the plaintiff suffered actual damage or loss. Butnaru v. Ford
Motor Co., 84 S.W.3d 198, 207 (Tex. 2002); Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). The interfering party must
have had either 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. See Hill v. Heritage Res. Inc., 964
S.W. 2d 89, 123 (Tex. App.El Paso 1997, pet. denied).
Plaintiff alleges no facts to support her claim for tortious interference.
Although she claims that she had a valid contract of employment, she does not
allege how any Defendant attempted to or succeeded in interfering with her
employment contract. She does not allege that she lost employment. She does not
allege that her compensation or benefits were reduced under the contract. She does
not allege that she was not promoted or considered for promotion.
13
13
Indeed, Plaintiff resigned to work with her husband to devote her life to providing
independent Scientology services to other followers of her husbands schismatic movement, a
career move about which they both publicly expressed great joy and enthusiasm. As Mr. Rathbun
wrote, being a very responsible person, [Monique] executed a transition plan so that none of her
46
In response to the Churchs Motion to Dismiss, Plaintiff asserted for the first
time that her claim rests upon her own voluntary decision to leave her job and not
on any breach of her employment contract by her employer that was induced by
some act of the Church. This concession defeats her claim. An essential element
of the tort is that the defendant committed an intentional act that was the proximate
cause of the breach of contract. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d
931, 939 (Tex. 1991). As stated in Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768,
803 (Tex. App.Houston [1st Dist.] 1987, writ ref'd n.r.e.), superseded by statute
as stated in Insern v. Ninth Court of Appeals, 925 S.W.2d 604 (Tex. 1996):
A necessary element of the plaintiffs cause of action is a showing that
the defendant took an active part in persuading a party to a contract
to breach it. . . . It is necessary that there be some act of interference
or of persuading a party to breach . . . for tort liability to arise.
(emphasis added) (internal citations omitted).
In Davis v. HydPro, Inc., the Eastland Court of Appeals made clear that the
requirement set forth in Texaco that the defendant play an active part in
persuading a party to a contract to breach a contract is a part of the proximate
cause requirement stated in Juliette Fowler and Victoria Bank. 839 S.W.2d 137,
139 (Tex. App.Eastland 1992, writ denied).
many happy clients in her health care profession would suffer from her pursuit of her dreams.
27CR3214-15, 3229. Plaintiff described her time working for and/or with her husband as Oh
how I love this life! Lots of friends and big wins!!!! (4 June 2011) and I am most definitely the
happiest woman in the universe!!!! (27 Dec 2011). 27CR3215, 3231-32.
47
Here there is no evidence, let alone clear and specific evidence, that the
Church played any part whatsoever in persuading Plaintiffs employer to breach
her employment contract. Indeed, there is no evidence that her employer ever
breached the contract or terminated her employment. And Plaintiff concedes that
no such event occurred. 27CR3229. Her tortious interference cause of action is
without merit, and must be dismissed under the TCPA.
Plaintiffs tortious interference claim also is barred by the statute of
limitations. She claims that she provided thirty-days notice of her intention to
resign from her job on April 1, 2011. 11CR1382; 27CR3229. Her cause of action
for intentional interference with contract would have accrued no later than that
date. The Texas statute of limitations for intentional interference with contract is
two years. See First Nat'l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289
(Tex. 1986); see also Khan v. GBAK Props., Inc., 371 S.W.3d 347, 356 (Tex.
App.Houston [1st Dist.] 2012, no pet.). But although Plaintiff certainly knew of
the alleged acts that caused her to resign her job, she did not file suit until
August 16, 2013, well past the expiration of the limitations period.
D. Plaintiffs Claim for Intentional Infliction of Emotional Distress
Should Be Dismissed.
1. Texas common law precludes the claims.
To prevail on a claim for intentional infliction of emotional distress, a
plaintiff must establish that (1) the defendant acted intentionally or recklessly; (2)
48
its conduct was extreme and outrageous; (3) its actions caused her emotional
distress; and (4) the emotional distress was severe. Kroger Tex. Ltd. Pship,
216 S.W.3d at 796.
As the Texas Supreme Court has emphasized, IIED is considered a gap-
filler claim and cannot be used to circumvent the limitations placed on the
recovery of mental anguish damages under more established tort doctrines.
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)). The
torts purpose is to supplement existing forms of recovery by providing a cause
of action for egregious conduct that might otherwise go unremedied.
Zeltwanger, 144 S.W.3d at 447 (quoting Standard Fruit & Vegetable Co. v.
Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). But where the gravamen of a plaintiffs
complaint is really another tort, intentional infliction of emotional distress should
not be available. Id. This is true even if a plaintiff does not allege a claim for the
other tort (such as Plaintiffs failure to allege defamation) or alleges the other tort
but does not prevail (such as her claims for invasion of privacy). See id. at 448.
Plaintiffs IIED claim is barred by this gap-filler rule. She pleads the
same facts and relies on the same evidence to support her other three causes of
action. For example, Plaintiff rests her IIED claim on the activities of the Squirrel
Busters, 23CR2749-55, even as she also rests her intrusion claim on the same acts.
49
23CR2756-63. Likewise, she continues to allege that anonymous callers phoned
our home and threatened us and that Scientology websites have published bizarre
and sometimes vile allegations against me, including false claims that I am a
sexual pervert as part of her IIED claim, 23CR2750, as well as part of her causes
of action for invasion of privacy by public disclosure of private facts. 23CR2765.
Moreover, Plaintiffs alleged evidence in support of her IIED cause of action
includes several alleged false and defamatory statements, which could have been
(but were not) alleged as a defamation claim. See Draker v. Schrieber, 271 S.W.3d
318, 322 (Tex. App.San Antonio 2008, no pet.) (dismissing under gap-filler rule
vice-principals IIED claim against students who fabricated an offensive website,
even though defamation claim was dismissed). In fact, Plaintiffs counsel
conceded at the hearing on the Churchs Motion to Dismiss that Plaintiffs IIED
claim encompasses all of her allegations, even though those allegations also are
included in her other causes of action. 12RR32-33. Thus, her IIED claim must be
dismissed under the gap filler rule.
Plaintiffs IIED claim also should be dismissed because Plaintiffs
allegations concerning the Squirrel Busters activities and the Churchs retention
and use of private investigators do not rise to the level of outrageous conduct.
Texas courts strictly apply the criteria of the Restatement (Second) of Torts to
claims of IIED. Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999). The
50
Restatement and the Texas cases applying it have insisted that the element of
outrageousness be confined to the most extreme departures from civilized
behavior: The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. . . . [P]laintiffs must
necessarily be expected and required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind.
Restatement (Second) of Torts, 46 cmt. d. (1965). [E]xcept in circumstances
bordering on serious criminal acts, we repeat that such acts will rarely have merit
as intentional infliction claims. Creditwatch, 157 S.W.3d at 818. Thus, for
example, in a case where a female student claimed that a professor followed her in
the hallways, obstructed her passage, showed up in a classroom and positioned
himself so the student could not avoid him, and repeatedly entered and left a room
where she was taking an exam, negatively affecting her performance, the Fifth
Circuit, applying Texas law, held that the professors conduct was not outrageous.
Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996).
Neither the Squirrel Busters nor the investigators invaded Plaintiffs house,
peered into it, photographed or filmed the interior of it, used any form of electronic
eavesdropping devices with respect to it, used any form of microphone to overhear
private conversations of Plaintiff or her husband at the residence or interfered with
or wiretapped the Rathbuns telephone or Internet service, physically blocked or
51
interfered with the Rathbuns freedom of movement, or physically touched or
threatened the Rathbuns. 4CR462-63, 503; 2CR279, 290, 295, 299-300, 304.
Rather, their actions were within the broad sweep of First Amendment
protections, as discussed herein. But whether protected by the First Amendment
explicitly or not, the acts are not uncommon in our society, and, as a matter of law,
should not be deemed outrageous in a civilized community.
The use of private investigators not only is commonplace, but can
beneficially ensure that baseless claims of wrongdoing are not made in either
judicial or administrative forums. See, e.g., Thorpe v. Mut. of Omaha Ins. Co., 984
F.2d 541, 545-46 (1st Cir. 1993) (Boudin, J.) (investigations of this sort are
commonplace . . . However distasteful the notion of surveillance, Mutual of
Omahas conduct in relation to Thorpe was not extreme or outrageous or utterly
intolerable in a civilized society). See Strickland v. Washington, 466 U.S. 668,
690-91 (1984) (criminal defense attorneys have constitutional obligation to
perform adequate investigation); Bakker v. Grutman, 942 F.2d 236, 239-42 (4th
Cir. 1991) (in civil cases, counsel has duty to investigate case); Kraemer v. Grant
Cnty., 892 F.2d 686, 689-90 (7th Cir. 1990) (hiring private investigator satisfied
counsels duty to investigate claim before filing complaint).
Plaintiff alleges that the Church, through its private investigators or
otherwise, engaged in various alleged acts of harassment. There is no clear and
52
specific evidence, only allegation, speculation, and inference, to support the vast
majority of these allegations; the only acts for which there is any support were
protected activity under the First Amendment as discussed in the paragraphs
below. For example, Mr. Rathbun alleged, in the passive voice, that his phone
records were stolen, that his computer was hacked, that his blog was taken
down, and that someone ordered pizzas to be delivered to his house at night.
15CR1863. Rathbun provided no specific facts to support these assertions, let
alone evidence that the Church undertook them. Indeed, Rathbun even speculated
on his blog that the latter and similar acts were undertaken by another group with
which he also had a serious public dispute. 27CR3217, 3236.
Plaintiff alleges that Defendants sent her a sex toy at her place of
employment and also sent flowers to a female co-worker with a romantic
message purportedly from Plaintiff. 1CR39. Plaintiff has conceded that she has no
evidence to support her speculation as to who did this, see 3RR207, and the
Church has denied any knowledge or role. 1CR157. Likewise, while Plaintiff
alleges that purported Scientology websites published defamatory attacks upon
Plaintiff, including that she really is a man and a sexual pervert, she again presents
no evidence, let alone clear and specific direct evidence, either of the existence of
these web sites, of the defamatory material, or, most importantly, that they are
53
what she terms Scientology websites or that the Church was responsible in any
way for their content.
14
Plaintiff alleges that anonymous callers phoned her house. 23CR2774-75.
Plaintiff provides no clear and specific evidence of what calls were made, how
many, or what threats, if any, were uttered, nor does she produce any evidence to
support her speculation that the Church made or was responsible for the calls.
While Plaintiff alleges that the acts of the Squirrel Busters gathering material
for their videos and documentary about Mr. Rathbun were actionable as outrageous
conduct, in fact, such acts were lawful, protected activity. While the Squirrel
Busters did seek out Plaintiff and her husband in a golf cart and publicly asked
questions and made accusations while trying to film them, such acts were part of
the efforts by the Squirrel Busters to create video documentaries about Mr.
Rathbuns activities. 27CR3332-33. The acts were similar to those often engaged
in by television journalists. They certainly do not meet the standard of outrageous
conduct under Texas law.
2. The First Amendment requires that the claims be dismissed.
The First Amendment also bars Plaintiffs claims based upon the activities
of the Squirrel Busters. The protests, picketing, and production of videos for
public distribution fall within the ambit of First Amendment protection. Such
14
As noted, Plaintiff has not sued for defamation.
54
speech is protected no matter that it is provocative and disputatious or even stirs
people to anger. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949); see also
Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) (Every
idea is an incitement); Gregory v. City of Chicago, 394 U.S. 111 (1969) (civil
rights march through residential neighborhoods of Chicago protected despite
strong and potentially violent reaction by residents). Indeed, the point of all
speech protection . . . is to shield just those choices of content that in someones
eyes are misguided, or even hurtful. Hurley v. IrishAm. Gay, Lesbian &
Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995); Snyder, 131 S. Ct. at 1219
(quoting Hurley). Similarly, speech is protected if its intent is to induce or even
coerce persons to avoid dealing with anothers business, Claiborne Hardware,
458 U.S. at 910; Thornhill v. Alabama, 310 U.S. 88, 104-05 (1940), or even attacks
a church or religion. Cantwell, 310 U.S. at 310.
It also is irrelevant whether the communicative activities of the Squirrel
Busters were undertaken with a motive and purpose to inflict emotional distress on
Plaintiff and cause her and her husband to discontinue their activities. [I]n the
world of debate about public affairs, many things done with motives that are less
than admirable are protected by the First Amendment . . . even when a speaker or
writer is motivated by hatred or ill will his expression [is] protected by the First
Amendment. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988).
55
Any attempt to prohibit or limit such protected activity on the basis of the
content of the speech is highly disfavored. Perry Educ. Assn v. Perry Local
Educators Assn, 460 U.S. 37, 45 (1983). A court must burden no more speech
than necessary to serve a significant government interest. Madsen v. Womens
Health Ctr., 512 U.S. 753, 765 (1994). The First Amendment requires that courts
must give the benefit of any doubt to protecting rather than stifling speech. Fed.
Election Commn v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)
(Roberts, C.J.), quoted in Citizens United v. Fed. Election Commn, 558 U.S. 310,
327 (2010).
These principles were addressed in a comprehensive opinion in Operation
Rescue - National v. Planned Parenthood of Houston and Southeast Texas, Inc.,
975 S.W.2d 546 (Tex. 1998). In that case, the Texas Supreme Court reviewed a
limited injunction that created buffer zones of 13-126 feet around abortion clinics
and the homes of clinic doctors, limited attempts by demonstrators to converse
with people entering or leaving the clinics, imposed time limitations of 45 minutes
per day, and prohibited the use of sound amplification equipment within 100 feet
of the residences. Applying the heightened burden no more speech than
necessary standard of Madsen, the Court held that a heavy burden rested on the
plaintiffs to prove the specific need for any restrictions. Id. at 562. The Court held
that the trial court could not assume that there was a need for any buffer zone at all
56
unless the plaintiffs could prove the necessity of such limitation. Central to its
holding was that no injunction could prohibit the protest demonstrations or impose
an undue burden upon them. The Court then struck some of the buffer zone
limitations, affirmed or modified others, held that the injunction must permit up to
two demonstrators to communicate directly to women approaching the abortion
clinics within the clinic buffer zones, and upheld the sound amplification
restriction. With respect to the doctors residences, the Court did not hold that no
activity could go forward in such areas. Rather, the Court required only that a
small buffer zone be created.
Under Operation Rescue, it was perfectly proper for the Squirrel Busters to
carry out their activities in the vicinity of Rathbuns premises, or to attempt to
communicate in public areas directly with Plaintiff or her husband about the
matters of their concern. Indeed, here, unlike the doctors residences in Operation
Rescue, Rathbuns home was also the site of his very acts that were the target of
the protest and the proposed documentary. Not only did Rathbun carry on his
activity of providing independent Scientology services at his residence, he also
used those premises as the setting to create videos attacking the Church and its
leadership, which he posted on the Internet, and to conduct interviews with the
media, resulting in photographs and videos of the inside of the premises being
circulated in the media with Rathbuns approval. Put another way, Rathbun cannot
57
insulate his public actions from protest or inquiry merely by choosing to live where
he works.
The First Amendment also prohibits application of the standard of
outrageous conduct to differentiate between protected and unprotected speech or
communicative activity. In Hustler Magazine v. Falwell, Falwell sued for
intentional infliction of emotional distress arising from publication of a parody,
alleging that the parody was so despicable and hurtful to him that a jury could
determine that it crossed the line into unprotected conduct by applying the rubric of
outrageous conduct. The Court held:
Outrageousness in the area of political and social discourse has an
inherent subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors tastes or views, or perhaps on the
basis of their dislike of a particular expression. An outrageousness
standard thus runs afoul of our longstanding refusal to allow damages
to be awarded because the speech in question may have an adverse
emotional impact on the audience.
485 U.S. at 55. Accord Snyder, 131 S. Ct. at 1219; Boos v. Barry, 485 U.S. 312,
322 (1988).
Since Plaintiffs IIED cause of action would require this Court to determine
whether the speech and expressive activity of the Church and the Squirrel Busters
was outrageous, the claim is barred by the First Amendment.
58
E. Plaintiffs Claims for Vicarious Liability and Conspiracy Fail for
the Same Reasons as Her Substantive Claims.
To the extent Plaintiff relies on claims for vicarious liability, those claims
should be dismissed because Plaintiff failed to present any clear and specific
evidence to support any of the alleged vicarious liability theories, 23CR2748-69,
and for the same reasons her substantive claims should be dismissed. See, e.g.,
Bird v. W.C.W., 868 S.W.2d 767, 768 n.1 (Tex. 1994) (observing that where an
underlying claim fails, a claim of respondeat superior does not form an
independent basis for liability). Similarly, there can be no conspiracy claim
between an alleged principal and its alleged agents, especially without an
actionable underlying tort. See Zarzana v. Ashley, 218 S.W.3d 152, 162 (Tex.
App.Houston [14th Dist.] 2007, pet. struck) (. . . conspiracy is not an
independent cause of action but requires an underlying tort . . .); Vosko v. Chase
Manhattan Bank, N.A., 909 S.W.2d 95, 100 n.7 (Tex. App.Houston [14th Dist.]
1995, writ denied) (acts of the agent are deemed to be acts of the principal).
IV. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYS
FEES AND COURT COSTS AGAINST THE CHURCH AND IN
FAILING TO AWARD THE CHURCH ITS FEES AND COSTS.
In addition to denying its Motion to Dismiss, the district court ordered the
Church to pay Plaintiffs attorneys fees and court costs, citing TCPA 27.009(b).
31CR3776-77. That section permits the award of fees and costs against a moving
party only where the Court finds that the motion is frivolous or solely intended to
59
delay. TCPA 27.009(b). The district court made no such findings; indeed, it
explicitly found that the motion was not frivolous. 31CR3776. On its face,
therefore, the district courts order violates the TCPA.
Accordingly, the district courts award of fees and costs under TCPA
27.009 was independently erroneous as a matter of law. Rather, because the
Churchs motion should have been granted, the court erred further in not holding
that fees and costs should be awarded to the Church, as mandated by the TCPA.
CONCLUSION AND PRAYER
Appellant Church of Scientology International prays that this Court reverse
the trial courts order denying the Churchs Motion to Dismiss and awarding fees
and costs against the Church, grant the Churchs Motion to Dismiss, and render
judgment for the Church, dismissing all of Plaintiffs claims with prejudice and
remanding for further proceedings concerning the amount of the Churchs claim
for attorneys fees and costs under the TCPA. The Church prays for such other
and further relief to which it may be entitled.
60
June 11, 2014
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
61
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
Attorneysfor Appellant Churchof Scientology
I nternational
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 14,782 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 2010, which was used to prepare the Brief of
Appellants.
/s/ Thomas S. Leatherbury
Thomas S. Leatherbury
62
CERTIFICATE OF SERVICE
The undersigned certifies that on the 11th day of June, 2014, the foregoing
Brief 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
A. Dannette Mitchell
JEFFREY &MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163
Marc F. Wiegand
THE WIEGAND LAWFIRM, 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
US 2659519v.3
APPENDIX
Anti-SLAPP Motions of All Defendants Findings of
Fact and Conclusions of Law & Ruling Denying All
Anti-SLAPP Motions to Dismiss
31CR3753-77
150 N. Seguin, Suite 317
New Braunfels, Texas 78130
830-221-1270
Fax 830-608-2030
DI B WALDRI P
PRESI DI NG J UDGE
433RD JUDI CI AL DI STRI CT COURT
COMAL COUNTY
CAUSE NO. C2013- 1082B
MONI QUE RATHBUN,
PLAI NTI FF
DAVI D MI SCAVI GE, RELI GI OUS
TECHNOLOGY CENTER, CHURCH
OF SCI ENTOLOGY I NTERNATI ONAL,
STEVEN GREGORY SLOAT, MONTY DRAKE,
DAVE LUBOW A/ K/ A DAVI D J. LABOW, AND
E D BRYAN,
DEFENDANTS









2 : * =
m
Ti l a
SI S
I N T HE DI S T| &C COURT
2 0 7
T H
JUDI CI AL DI STRI CT
33
G3
COMAL COUNTY, TEXAS
A N T I - S L A P P MOTI ONS OF A L L DEFENDANTS FI NDI NGS O F F ACT AN D CONCLUSI ONS
O F L AW & RULI NG DENYI NG AL L A N T I - S L A P P MOTI ONS TO DI SMI SS
FI NDI NGS OF FACT
1. Defendant Church of Scientology International ("CSI"), by and t hrough its
agents or cont ract ors, including Defendants Davi d Lubow, Mont y Drake and Gr eg Sloat,
undertook ext ensive surveillance of Plaintiff and her husband over a collective period of
more than four yearspossi bl y six. Mont y Drake actually began the investigation of
Mark Rat hbun in 2007. See Deposit ion of Mont y Drake at 52: 16-19. He started
Page 1 of 25
3753
investigating Mar k Rat hbun for potential Scient ol ogy t rademark viol at ions. See Affidavit
of Monty Drake f 7. ' Scientologist David Lubow has likewise stated that he is a private
investigator and filmmaker and was hired by CSI ' s attorney Elliot Abel son prior to 2009
to investigate Mr. Rat hbun in support of prospect ive litigation regarding alleged
violations by Mr. Rat hbun of intellectual property rights owned by CSI. See Affidavit of
David Lubow Yh 3-4.
2. Certain of the activities about whi ch Plaintiff compl ai ns were conducted
by persons calling t hemsel ves the "Squirrel Bust er s" beginning in Apri l 2011. Defendant
CSI admits that it prompt ed and sponsored the Squirrel Bust ers. See Affidavit of Al l an
Cartwright @ T[ 23. "Squirrel Bust er" Richard Hi rst indicates that his first invol vement
came after he was notified of the proposed activities when he "recei ved a call from a staff
member of t he Church of Scientology Int ernat i onal " (Defendant CSI). See Affidavit of
Richard Hirst @ ^[ 5. Want i ng to assist Scientologists to document Mark Rat hbun' s
"provision of ' squi rrel ' Scient ol ogy, " CSI ' s Legal Director Cart wri ght acknowl edges that
CSI provided financial and legal support. See Affidavit of Al l an Cart wri ght @ Tf 23.
3. In his declaration filed by Defendant CSI, Hirst admi t s t he Squirrel
Busters instigated t he first Ingleside on the Bay confrontation on "t he very first day" at
the Rat hbuns' front door purportedly to conduct a "technical i nspect i on" of Mar k
Rat hbun' s procedure as a Scientology minister/auditor. See Affidavit of Richard Hirst @
K 10. Thi s initial Squirrel Buster event was video-taped and shown in court displaying
numerous Squirrel Busters at t he Rathbuns* door weari ng distinctive provocat ive t-shirts
portraying Mark Rat hbun as a squirrel with a red-slashed circle over t he depiction and
' Defendants CSI, Monty Drake, and David Lubow use the same affidavits and declarations in their
Anti-SLAPP motions. Each motion will be referred to as "Defendants' Anti-SLAPP Motions,"
collectively.
Page 2 of 25
3754
several Squirrel Busters had video cameras and mi crophones of their own, including
some with head-mount ed cameras, lights, etc. From this point forward, it is clear, and the
Court so finds, that few if any "confrontations" were civil wi t h bot h sides either initiating
or reciprocating. See various declarations filed either in support of or in response to the
Ant i -SLAPP mot i on t o dismiss.
4. Defendant Ed Bryan was sent from California by the Office of Special
Affairs ("OSA"), a division of CSI, t o j oi n t he Squirrel Bust ers in Texas. On July 13,
2011, Bryan wrot e:
. . . . This is in co-ordination with OSA Int. They are calling the shots
and quit e frankly I don' t think it is very effective. The reporters came
t o our house t he other day and we didn' t tell t hem very much. Our
mai n guy went back to discuss with t hem a different strategy. The rat
is get t ing more brazen and yest erday I actually had a 1 mi nut e comm
cycl e wi t h him while he was on a walk. The guy is nuttier t han a
fruitcake. He' s gone off the deep end. Taking him down will be no easy
task See Exh. E to Pl ai nt i f f s 2
n d
Amended Response to Ant i -
SLAPP Mot i ons to Dismiss [emphasis added],
"[rjn t he vicinity of the Rat hbun home/ offi ce, " Joanne Wheat on "regularly
participated" in t he Squirrel Buster activities "[o]ver a period of several mont hs. "
See Declaration of Joanne Wheat on @ Iffl 3 & 6. Whil e doing so, a house was
rented by Lubow t wo bl ocks from the Rat hbuns' "home/ offi ce" for Wheat on and
other Squirrel Busters to stage their activities from whi ch a golf cart was also
utilized to travel back and forth. Id. @ ^[ 4. The participating individual "Squirrel
Bust ers" varied from t i me to time as they left and returned at different t i mes for
different reasons. Id. @ 14. See also Affidavit of Richard Hirst @ 1] 7.
A vi deographer, Bart Parr, was hired by private investigator Dave, a.k.a.
David, Lubow to film t he project "at or near Rat hbun' s office." See Declaration
Page 3 of 25
3755
of Bart Parr @ IfiJ 4 & 6. The project occurred "over a period of approxi mat el y 6
mont hs. " Id. @ 6. Evidence identifies, and the Court so finds, the period of t i me
of the Squirrel Buster activities as having started and ended, respectively, in April
2011 and in Sept ember 2011. See Affidavit of Richard Hirst @ ^ 10 and
Declaration of Joanne Wheat on @ K 14.
5. The investigators, videographers and Squirrel Busters "interacted wi t h the
Rat hbuns many [possibly "hundr eds" of] t imes over a period of t hese several mont hs,
usually when t he golf cart was parked near their office [on a dead-end street when]
filming was ongoi ng, or [when] traveling about t he little t own. " See Declaration of
Joanne Wheat on @ 1 6. In addition, private investigator Mont y Drake utilized
"surveillance, phot ographi ng, videotaping and static camer as" t o film areas "out si de t he
Rat hbuns' offi ce/ home" in part from inside a second house rented by Drake across the
street from t he Rat hbuns. See Affidavit of Mont e Drake @ H 9. Wi t hout any time
limitation, Dr ake acknowl edges t hat he was abl e "t o observe persons comi ng and going
from the Rat hbuns' office/home. " See Id. For several mont hs, when t he Rat hbuns left
their home, t he Squirrel Busters group appeared in a golf cart to confront t he Rat hbuns
with video cameras and taunts. See Mark Rat hbun Declaration in Support of Pl ai nt i ffs
Second Amended Response to Defendants' Mot i on to Dismiss
2
^[ 27. Due t o bot h this
constant surveillance and t he Squirrel Buster activity cited above, Defendant s knew when
Plaintiff left home and when she was home alone due to her husband havi ng left their
residence. See First Amended Declaration of Moni que Rathbun in Support of Plaintiff' s
1
Hereinafter referred to as "Mark Rathbun Declaration."
Page 4 of 25
3756
Second Amended Response t o Defendant s' Mot i on t o Di smi ss
3
fflf 11, 11a, l i b , He , 13a,
13c, 15, 15a and 15b. When her husband was out of t own, 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 vi deographer for t he Squirrel Busters
group. He was told by Defendant Lubow that Lubow had t wo private investigators who
were engaged in surveillance of Plaintiff and her husband and were abl e t o keep track of
the Plaintiff' s movement s on a 24/ 7 basis. See Decl arat ion of Bernard "Ber t " Leahy ^ 6.
Leahy was directed by Lubow to film t he Squirrel Bust ers t aunt i ng and harassing the
Rathbuns. Id. Al t hough denied by Lubow {see Decl arat ion of Davi d Lubow U 4), Leahy
declared to have been told that the purpose of t he Squirrel Bust ers' mi ssi on was "t o make
the Rathbuns life a living hel l " and "t o turn their nei ghbors against t hem" so that Plaintiff
and her husband woul d be forced from their residence. Id. Leahy' s declaration is
corroborated by Lubow' s stated desire t o, in-part, "creat e a document ary showing
[Rathbun' s] true nature as a violent, foolish ' squi r r el ' . " Decl arat i on of Davi d Lubow @ ^[
12. Assisting in this process, CSI hired Ral ph Gomez as "muscl e. " See Declaration of
Bert Leahy @ H 6.
7. No evidence demonst rat es that any of the compl ai ned-of Squirrel Buster
or investigative activities occurred at an actual church, at a mi ssi on, at a pl ace of worship
or during any other t ype of religious service or ceremony; rather, most of the activities,
including those cited by declarants for Defendant CSI, occurred at l ocat ions described by
the declarants as the Rat hbuns' "home, " "house, " "busi ness/ resi dence, " "business, "
"office," "home/ offi ce, " or "office/ home. " See various decl arat ions filed either in
support of or in response to t he Ant i - SLAPP mot i on to di smi ss.
1
Hereinafter referred to as "First Amended Declaration of Monique Rathbun."
Page 5 of 25
3757
8. Defendants publ ished information from their Squirrel Buster activity and
continuous surveillance of the Rat hbuns on the internet, a dedicated YouTube channel,
and on a website, whi ch included a section called "Spy Comer " that discussed
information obtained by t he surveillance of the Rat hbuns. See Decl arat i on of Bart Parr @
^| 15. See also Decl arat ion of Mar k Rat hbun @ ^1 28. Also publ ished was information
about visitors to and from the Rat hbun home creating a chilling effect upon Mark
Rat hbun and possibly others. Id.
9. At unspecified t i mes subsequent to 2009, Plaintiff also received
anonymous and threatening phone calls, and she was followed to and from work. See
First Amended Declaration of Moni que Rat hbun ^ 6. Squirrel Bust ers and Scientology
investigators or operatives followed Plaintiff t o and from restaurants. Id. ^[ 7g. See also
Declaration of Mont e Drake @ \ 11 (Drake and others followed "Rat hbun' s car"). See
also e.g.. Declaration of Joanne Wheat on @ U 7 (Mark a.k.a. Mart y Rat hbun drove a
"large pick-up truck. "). Plaintiff was similarly followed to and from shopping. See First
Amended Declaration of Moni que Rat hbun @ H 15a. She was similarly followed while
walking her dog. Id. @ K 8. The Rat hbuns were followed even when they t ook measures
to avoid being seen l eaving their house. See Declaration of Mark Rat hbun @ f 29.
10. Bet ween Sept ember 2010 and December 2012, Lubow, a.k.a. David
Statter, interviewed and confronted Pl ai nt i ffs family, friends, and co-workers
disparaging Plaintiff, her husband, and hi s family. See Declaration of Frankl yn R. Carle
@ T[ 4; Declaration of Tonya Torrez @ ^ 3; Declaration of Donci ne Kelly @ H 3.
11. Seeking to avoid the harassment, embarrassment , disruption and extreme
distress imposed on her in the workpl ace while living in Ingleside on the Bay by
Page 6 of 25
3758
Defendant Lubow and t he other Defendant s, Plaintiff gave notice on April 1, 2011, t o her
then-employer that she would leave her j ob at t he end of that mont h. See First Amended
Declaration of Moni que Rat hbun @ HH 1 l a, 1 l b, l i e and l i d ; Mar k Rat hbun Declaration
1 2 3 .
12. In Oct ober 2012, t he Rat hbuns discovered Dr ake' s surveillance cameras
aimed at their residence from a house across the street on t he same cul -de-sac. See Mark
Rat hbun Declaration @ ^ 28; First Amended Decl arat ion of Moni que Rat hbun @ ^[ 13
and 13a. Drake attested thoroughly that his surveillance and investigative efforts sought:
information concerni ng (a) cri mes or wr ongs done or t hreat ened against CSI or
other churches of Scientology, (b) the identity, habits, conduct , business,
occupation, honesty, integrity, credibility, knowl edge, activity, movement ,
whereabout s, affiliations, associations, transactions, acts, reputation, or character
of Rat hbun and those associated wi t h hi m, (c) the location, disposition and
recovery of misappropriated or stolen property, or (d) securing evidence t o be
used before a court or for compl aint s to appropriate law enforcement . See
Affidavit of Mont e Drake @ f 10. See also substantially similar
affidavit of Davi d Lubow @ ^ 7.
13. The Rat hbuns left the constant harassment and electronic surveillance in
Ingleside on the Bay by moving to a secluded homesi t e in Bul verde, Texas. See First
Amended Decl arat ion of Moni que Rat hbun @ HH 11, 11a, l i e and 14.
14. The move caused t he Rat hbuns to lose $36, 000 in l ease/ purchase equit y in
their Ingleside on the Bay home. See First Amended Declaration of Moni que Rat hbun @
H i l l , l l a , l i e and 14.
15. In spite of efforts to find a secluded new homesit e, Scient ol ogy agents
resumed tailing t he Rat hbuns in Bul verde and San Ant oni o, Texas, whi l e Mark Rat hbun
continued t o "counsel " Scientologists. See First Amended Decl arat i on of Moni que
Rathbun @ H 15a; Declaration of Mar k Rat hbun @ f 32. The Rat hbuns also discovered
Page 7 of 25
3759
custom-adapted surveillance cameras in the woods behind their home in Bulverde. See
First Amended Declaration of Moni que Rat hbun @ f 15, 15a; Decl arat ion of Mark
Rathbun @ ^ 33. Defendant Sloat answered a phone call from Mark Rat hbun using a
number found near the cameras. See Declaration of Mark Rat hbun @ "D 33. Sloat
acknowledges that he was hired to see who Mark Rat hbun "was seei ng [as] clients" and
that "t he object of [the investigation] was Mark Rat hbun' s associations and business
dealings." See Affidavit of Steven Gregory Sloat @ m 5 & 11 [emphasis added}.
16. After Plaintiff moved t o Bul verde, Defendant s' agents or contractors also
appeared at Pl ai nt i f f 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 Moni que Rathbun @ f 15a.
17. Plaintiff has demonstrated that she has been personally harmed and injured
as a result of t hese activities in bot h Ingleside on the Bay and Bul verde. See First
Amended Decl arat i on of Monique Rat hbun @ m 5, 7d, 7h, 1 l b, l i e , 15a, 16, & 16a.
18. On August 16, 2013, the Court issued a Temporary Rest raining Order
against the harassment .
19. Plaintiff received counsel ing and auditing services from Mark Rathbun.
See Affidavit of Allan Cartwright @ ^ 7 (quoting Mark Rat hbun as justification to apply
term of "squirrel "). Further, Plaintiff and her husband, Mark Rat hbun, offered similar
services as a busi ness for which they received monet ary compensat i on, including auditing
services that are purportedly based on the same "t ech" ("correctly appl yi ng Scientology
procedure") and services offered by the Church of Scientology. See Affidavit of John
Allender @ T[ 9 in support of Defendant s' Ant i -SLAPP Mot ion. See Affidavit of David
Page 8 of 25
3760
Lubow @ m 9 and 10. See Affidavit of Allan Cart wright @ m 5 to 8, 10, 13, 15, 17, 23,
& 27, in support of Defendant CSI ' s Ant i -SLAPP Mot i on. These busi ness services were
offered in compet it ion 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 @ If 9, citing Affidavit of Al l an Cart wri ght @ m 5 t o 8. See Affidavit of
Defendant Davi d Lubow @ IJIO.
20. Bot h orally and in writing. Defendant s have admi t t ed, asserted and argued
that their activities, directed at and having an effect upon Plaintiff, were connect ed with,
or in relation t o, Mar k Rat hbun' s alleged i nvol vement in offering unauthorized
Scientology services incl uding auditing, using protected Scient ol ogy "t echnol ogy" in a
manner not approved by Defendant CSI, and profiting from a busi ness using such
services offered from and provided at, his and Plaintiff' s resi dence in Ingleside on the
Bay and Bul verde, Texas. See citations in m 17 & 19 above. See also Affidavit of
Monte Drake @ f 12. On February 4, 2014, counsel for Defendant CSI argued that the
Rathbun home was a pl ace of business using Sci ent ol ogy pract i ces for a fee that were
allegedly advertised on Cr ai g' s List. See Repor t er ' s Transcript 146: 22; 147:9; 151:23;
and 158:6-159:8. Defendant CSI ' s Counsel implicitly agreed, and t he Court so finds, that
investigating and prot ect ing the value of the t rademarks is a pr i mar y function and
responsibility of Defendant CSI as t he excl usive licensee of Defendant RTC' s
trademarks. See Id. @ 157:14-158:24 & Page 2 of Defendant CSI ' s Power Point court
presentation (copy attached).
Page 9 of 25
3761
21. As Defendant CSI asserts and argues, Mark Rat hbun' s activity of offering
Scientology services is a busi ness. If so, the Chur ch' s own activity of offering
Scientology services is also a business.
22. The compl ai ned-of activity, which Defendant s cl ai m was in-part
documentary making, reporting, and protesting at Mark Rat hbun' s "office, " was intended
to and/or did have an effect (be it positive or negat i vedependi ng upon perspective) on a
specific audience of consumers^principally those interested in Scientology
"technology, " including Scientology members, former member s such as Mar k Rathbun,
and non-member users of t he t echnol ogy such as Plaintiff. See e.g.. Affidavit of Allan
Cartwright @ m 23-24 (Al t hough Cartwright also claims pamphl et s were distributed to
citizens of Ingleside, the evidence lacks weight and credibility due to his lack of personal
knowledge coupl ed wi t h t he fact that no Squirrel Buster attested t o such activity.);
Affidavit of Davi d Lubow @ m 11-12; Affidavit of John Al l ender @ m 6-9; Declaration
of Bart Parr @ m
5
>
6
>
8
>
& 1 5
; Decl arat ion of Joanne Wheat on @ m
2
-
4
>
6 & 1 0
;
F i r s t
Amended Declaration of Moni que Rat hbun @ m 7, 7a, 7b, 7c, 9, 10, 1 I d, 13, 13a & 14;
Declaration of Mar k Rat hbun @ m 28-30. Further, no credible evi dence from an un-
interested wi t ness indicates an intent by any of the CSI defendant s, collectively, to
genuinely inform t he general publ i c as their audience. Whi l e Scient ol ogist Lubow does
aver that the purpose of t he document ary and protest was to educat e t he general public,
he did so only after stating that the purpose was primarily to educat e ot her Scientologists.
See Affidavit of Davi d Lubow @ 1] 11. See also the substantially simil ar sentence in
Declaration of John Al l ender @ f 6. As to his self-serving st at ement s, Allender' s
credibility is suspect in that he admi t s filing a fictitious publ ic document wi t h the City of
Page 10 of 25
3762
Campbel l , California to create a busi ness name for "Squirrel Buster Pr oduct i ons. " Id. @
1 7 .
23. The primary reason CSI initiated the compl ai ned-of activity was to
investigate alleged infringement of its intellectual property rights by both Mark and
Moni que Rathbun allegedly occurri ng as early as January 29, 2009, if not before. See
Affiddavit of Allan Cartwright @ m 6, 8, 17 and 27. See Affidavit of Defendant David
Lubow @ U 6. See also Deposit ion of Mont y Drake 52: 16-19 (invest igat ion began in
2007).
24. No evidence indicat es that either Defendants CSI or t he Religious
Technol ogy Center has ever sent Mar k Rat hbun a cease and desist letter or sued Mark or
Moni que Rathbun for infringement of intellectual property rights or any other cause of
action. See Declaration of Mar k Rat hbun @ m 8 & 10. Al t hough H 21 of Cart wri ght ' s
Affidavit lists legal cases Mar k Rat hbun has been allegedly i nvol ved in regarding
Scientology in general (not admi t t ed for the truth of the mat t ers assert ed), Cartwright
does not, in any of his testimony, point to any litigation wherei n CSI has sued Mark
Rat hbun for any cause of action.
CONCLUS I ONS OF L A W
1. 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 t hat al so constitutes a
conclusion of law is adopted as a concl usion of law. Any concl usi ons of l aw bel ow that
may be deemed t o constitute findings of fact shall be so considered and any conclusion of
l aw that also constitutes a finding of fact is adopted as a finding of fact.
Page 11 of 25
3763
2. Defendants seek dismissal under the Texas Ci t i zen' s Participation Act,
Tex. Civ. Prac. & Rem. Code 27. 001, et al. (West Supp. 2013) (hereinafter, the
"Act "). Under t he Act, t he Court has an equal duty t o safeguard the constitutional rights
of persons to petition, speak freely, associate freely and ot herwi se participate in
government to the maxi mum extent by l aw and, at t he same t ime, protect the rights of a
person to file meritorious lawsuits for demonst rabl e injury. See Tex. Ci v Prac. & Rem.
Code 27. 002 (West Supp. 2013), Whisenhunt v Lippincott, No. 06-13-00051-CV, 2013
Tex. App. LEXIS 12489, Slip op. @ 6 & n. 11 (Tex. App. Texarkana Oct . 9, 2013, per
filed) (acknowl edging 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 surplusage").
Further, the Court is required to liberally construe t he entirety of the Act. See
Tex. Civ Prac. & Rem. Code 27. 011 (b) (West Supp. 2013).
3. The most efficient and j udicious hierarchy of the mandat ory decisions to
be made by a court in application of the Act is:
a) Does an exempt i on, with the burden of proof resting on the
nonmovant , precl ude further application of Chapt er 27 pursuant to
Tex. Civ. Prac. & Rem. Code 27. 010 (West Supp 2013) ?r
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,
Mclntyre v Ramirez, 109 S W 3d 741, 745 (Tex 2003) (doctor' 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 (El Paso 2013, no pet).
Newspaper Holdings, Inc v Crazy Hotel Assisted Living, Ltd, 416 S W 3d 71, 88-89 (Tex App Houston
[1"] 2013, writ filed Mar 5, 2014) {on rehearing); Better Business Bureau of Metro Dallas, Inc v BH
DFfV, Inc , 402 S W 3d 299, 309 (Tex App Dallas 2013, no pet)
More problematic, however, 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/Amanllo Foundation v Potter Co
Appraisal District, 813 S W 2d 192, 195 (Tex AppAmanl l o 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 (Tex App Austin 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 of 25
3764
b) If not,
5
is the legal action "based on, rel at es t o, or is in response to a
party' s exercise of t he right of free speech, ri ght t o petition, or right of
association, " with the burden of proof resting on t he movant, pursuant
to Tex. Civ. Prac. & Rem. Code 27. 003 (a) (West Supp. 2013) and
applicable definitions in Tex. Ci v. Prac. & Rem. Code 27. 001 (West
Supp. 2013)?;
c) If so, can "the party bringing the legal act ion [establish] by clear and
specific evidence a pri ma facie case for each essential element of the
claim in quest i on" pursuant to Tex. Ci v. Prac. & Rem. Code 27. 005
(c) (West Supp. 2013)?; and
d) I f s o , c a n " t he mo v i n g par t y [ es t a bl i s h] b y a p r e p o n d e r a n c e of t he
e v i d e nc e e a c h es s ent i al e l e me nt o f a va l i d d e f e n s e t o t he n o n mo v a n t ' s
c l a i m" p ur s ua nt t o Te x. Ci v. Pr a c . & Re m. C o d e 2 7. 0 0 5 ( d) ( We s t
Su p p . 2 0 1 3 ) ?
6
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 of legislative intent
to divert from the general rule. Justice Nowlin cites 1974 U.S. Supreme Court authority generally holding
that exemption under Fair Labor and Standards Act is an affirmative 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 legislature did not evidence an intent to divert from the U.S. Supreme Court' s general
rule and the stated purpose of the Act 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 27.002 (West Supp. 2013) (balance safeguarding freedom of expression versus protecting
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 Court' s 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. Id. @ 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.
5
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.
* 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.Prac. & Rem. Code 27.009 (West. Supp. 2013).
Pa ge 13 o f 2 5
3765
4. Based upon t he findings of fact,
7
the Court concl udes t hat a preponderance
of the evidence demonst rat es that CSI and its agents are "pri mari l y engaged in the
business of selling or leasing goods or servi ces" consistent with the intent and meaning of
Tex. Civ. Prac. & Rem. Code 27. 010 (b) (West Supp. 2013). Ot her courts have made
similar findings and the resul t ing conclusions. See e.g., Hernandez v. Comm V, 490 U. S.
680, 681, 685 (1989) (On findings that: "The Church charges a ' fixed donation, ' also
known as a ' pr i ce' or a ' fixed contribution, ' for participants t o gain access t o auditing and
training sessions. These charges are set forth in schedul es, and prices vary with a
session' s length and level of sophistication. ", the Supreme Court uphel d the conclusion
that payments, whi ch are t he primary source of i ncome t o mi ssi ons, branches and
franchises of the mot her church, by Scientology pat rons were not deductible
contributions due t o 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) ("Wi t hi n this literature is to be found only t he most occasional
passing reference to the E met er; more often than not, the met er is not even mentioned in
these general works. Among t hese are the introductory works descri bi ng Scientology, and
it is presumabl y these wor ks, if any, which are pressed upon curi ous members of the
public in any effort whi ch might be made to promot e the sale of Scientology services.").
Accordingly, t he evi dence sufficiently establishes Scientology is primarily in business to
sell a good or servi cebe it religious or otherwise.
7
For the purpose of evaluating the evidence in support of an exemption, 27.010 of the Tex.Civ.Prac. &
Rem. Code (West Supp. 2013) does not require that the evidence considered be "clear and specific" as the
Act does in 27.005 (c) for the purpose establishing "a prima facie case for each essential element of the
claim in question." Thus, the Act does not preclude the Court, as to the exemption issues, from making
reasonable inferences and deductions from the evidence admitted.
Page 14 of 25
766
5. Based upon the findings of fact supported in-part by the Defendant s' and
movant s' testimony by Al l ender, Lubow, Cart wright and ot hers, the Court concl udes that
a preponderance of the evi dence demonstrates that the litigated "conduct [arose] out of
the sale . . . of goods, servi ces, . . . or a commercial t ransact i on" consistent with the
intent and meaning of Tex. Ci v. Prac. & Rem. Code 27. 010 (b) (West Supp. 2013). As
investigator and avowed Scientologist David Lubow put it, "Rat hbun was engaged in
delivering Scientology services and counseling at his office/home, for compensat i on,
even though he had been expelled from the religion and possessed no religious authority
to provide Scientology servi ces t o anyone. " Affidavit of Davi d Lubow @ Tf 9. See also
Affidavit of Mont y Dr ake @ ^ 12. The Legal Director for CSI ' s Office of Special
Affairs Allan Cartwright testified that:
The Rat hbuns' [ Mar k' s and Moni que' s] unaut horized counsel ing practice . . . [for
his "Independent Sci ent ol ogy" services . . . whi ch is how he earns his living] was
an immediate cause for concern [for those] charged wi t h the protection of the
Scientology religion, all churches of Scientology as wel l as t hese [sic] intellectual
properties and t he enforcement of CSI ' s rights. Thi s was a primary reason for
CSI ' s decision to have counsel retain an investigator t o hel p det ermine t he nature
and extent of any possi bl e infringements. Affidavit of Al l an Cart wright @ m 15
&1 7 .
But for the preponderat e evidence of Defendant CSI ' s apprehensi on of intellectual
property rights violations by former 20-plus year Scient ol ogy empl oyee and now-
competitor Mark Rat hbun and his alleged sale of unauthorized Scientology services, t he
extensive-type of commerci al piracy investigation such as t hat declared by Drake and/or
Lubow, instigated as early as 2007, to protect CSI ' s primary busi ness interests woul d
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 empl oyer as a current competitor of former empl oyee "and was
therefore exempt from [California] ant i -SLAPP statute. ").
6. Based upon t he findings of fact, t he Court concl udes that a preponderance
of the evidence demonst rat es that the majority of the conduct and statements about whi ch
Plaintiff compl ai ns was, by Defendant s' own admi ssi ons (in-part, testimony of David
Lubow, John Al l ender, and Ri chard Hirst), intended to "communi cat e" t o and t o affect an
audience of actual or interested potential (current or former) cust omers of t he Chur ch' s
own sale of services t he Chur ch' s displeasure with the compet it ive commerci al activities
of Plaintiff and her husband. The evidence also preponderat es in favor of t he concl usi on
that the "Squirrel Bust er" activity was primarily designed to convey the message to other
Scientologist t hat t he Rat hbuns should stop being "squi rrel s"one who alters standard
Scientology pract i ce and del ivers altered Scientology counsel ing. See Affidavit of Davi d
Lubow @ m 9 & 11. The record is replete wi t h evidence showing it was CSI who
designed, initiated and funded both the investigations and the Squirrel Busters to
communi cat e chiefly t o Scient ol ogy buyers and cust omers that the Rat hbuns were:
offering a bast erdized version of Scientology to former members, and seeking t o
entice pari shi oners t o leave t he faith wi t h false assertions that his brand of so-
called Sci ent ol ogy was more correct t han standard Scientology delivered in
churches. Affidavit of David Lubow @ H 10.
CSI ' s message t o its consumers, by and through its conduct and st at ement s, being, "Pay
us for delivering t he good or servicenot Rat hbun. " Further, the evidence also
sufficiently est abl ishes that t he "communi cat i on"t he extensive investigations coupled
with the confrontational Squirrel Buster tactics, in fact, did reach and did affect some
individuals wi t hi n its intended audience in one way or another, including but not limited
to Plaintiff, Mar k Rat hbun. Mi ke Rinder, John Brousseau, Mi chael Fai rman, St ephen
Page 16 of 25
3768
Hall, David Lingenfelter, Mercy Lingenfelter, Mar k a.k.a. Mat Pesch, Amy Scobee, and
Debbie Jean Cook as wel l as Al l an Cartwright, Joanne Wheat on, Ri chard Hirst, David
Lubow, John Allender, and Ed Bryan.
7. As such. Defendant s' mot i ons are precl uded by t he provision of the Texas
Citizen' s Participation Act exempt ing from reach of t he statute legal act ions brought
against persons "pri mari l y engaged in the business of selling or l easing goods or services,
if the statement or conduct arises out of t he
8
sale or lease of goods, services, . . . or a
commercial transaction in whi ch 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 alternatively, the Court concl udes that a preponderance of the
evidence demonst rat es t hat the compl ained-of act ions caused Plaintiff bodil y injury as
defined by Texas law. "Bodily injury" incl udes "physi cal pain, illness, or any
impairment of physical condit ion. " 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), t hen-Chief
Justice Wal l ace Jefferson wrote for the Court and hel d, wi t hout regard to the merit s, that
"biological injuries or effects [qualified] as bodily injury," from a pl eading construct in
an insurance duty-to-defend case Whil e t he Court not ed that t he "bodil y injury"
definition "unambi guousl y requires an injury to the physical structure of the human
body," td citing Trinity Universal Ins. Co. v. Cowan, 945 S. W. 2d 819, 823 (Tex. 1997),
it likened and found sufficient allegations that "radi o frequency radiation . . . causes an
8
Defendant CSI argues this provision requires that it, CSI, must have been the person (or entity) to have
sold or leased "the" good or service from which the litigated statement or conduct flowed To apply such a
construct would necessarily limit application 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. 03-12-0579-CV, Slip op @ 3
(Tex App Austin, Aug 2 1, 2013, pet ) (Memorandum Op ) (citations omitted).
Page 17 of 25
3769
adverse cellular react ion and/or cellular dysfunction (' biol ogical i nj ur y' )" t o allegations
of "subclinical tissue damage that results on inhalation of a toxic substance such as
asbestos." Zurich, supra @ 492-93 (quoting Guar. Nat'I Ins. Co. v. Azrock Indus., Inc.,
211 F.3d 239, 245, 250 (5
t h
Cir. 2000)).
9. The definition of bodily injury is broad enough to cover "[a]ny physical pain,
however mi nor . " Garcia v. State, 367 S.W.3d 683, 688 (Tex. Cri m. App. 2012) citing
Laster v. State, 275 S. W. 3d 512, 524 (Tex. Cri m. App. 2009). In Garcia, supra, the Court
noted as to t he merits that a "fact finder may infer that a vict im actually felt or suffered
physical pai n because peopl e of common intelligence underst and pain and some of t he
natural causes of it." Id. Taki ng instruction from bot h the Supreme Cour t ' s and Court of
Criminal Appeal s' respect ive pleading and merits decisions on what qualifies as "bodily
injury," t he except i on embodi ed in 27. 010 (c) is not, as suggested in CSI ' s
"Supplemental Memor andum in Support of Ant i -SLAPP Mot i on" at ^ 10, restricted to
claims arising directly from a traumatic event. Rather, the definition is broad enough to
include claims support ed by sufficient evidence demonst rat i ng physical manifestations of
pain, anxiety, emot i onal distress, stress, illness or other i mpai rment of condition
regardless of the mechani sm 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 wi t h debilitating pain due to the surveillance of investigators and Squirrel
Bust ersshe further attested that as a result of t hese activities she suffered an ext reme
gagging nausea, and Plaintiff averred she developed a hyper-sensitivity t o light and was
unable to eat or concent rat e due to the headaches. See e.g.. Decl arat ion of Moni que
Page 18 of 25
377G
Rathbun @ m 7d, l i e , 1 Id, 15a & 16a. Accordi ngl y, Defendant s' mot i ons are precluded
by the provision of the Texas Ci t i zen' s Participation Act exempt i ng from t he reach of the
statute "legal action[s] seeking recovery for bodily injury." Tex. Ci v. Prac. & Rem. Code
27.010 (c) (West Supp. 2013).
11. Assumi ng solely for the sake of argument that neither t he commercial
exemption nor t he bodily injury exempt ion precl ude application of t he Act, t he Court will
address as succinctly as possibl e the pertinence of whet her Pl ai nt i f f s legal act ion is
based on, relate t o, or are in response to Defendant s' exercise of t he right of free speech,
right to petition, or right of association. See Tex. Civ. Prac. & Rem. Code 27. 003 (a)
(West. Supp. 2013). Fol l owi ng t he grammat i cal syntax and structure of this statute, no
party to this litigation disputes that the current di sput e is a "legal act ion. " Next , t he focus
is whether that action "is based on, relates t o, or is in response t o" Defendant s' freedoms
of expression. If so, did the Defendants meet their burden of proof regardi ng the
"exercise of the right of free speech, right to petition, or right of associ at i on" as defined
by 27. 001, Tex. Ci v. Prac. & Rem. Code (West. Supp. 2013)? Then and only then
would a court need t o go further in t he analysis regarding the adequacy of the
nonmovant s' proof on the essential el ement s, etc. See generally. Concl usi on of Law @ f
3.
12. Regardl ess of the merits of her claims seeking damages in tort for personal
injury. Pl ai nt i ffs pl eadi ngs sufficiently and legally allege common law tort causes of
action, in-part, for bodily injury. It has been said that one per son' s rights end where
another' s nose begi nsmeani ng, in the converse, that the farther and farther one intrudes
into the space of another, t he more diminished are the rights of t he intruder. So t oo is it
Page 19 of 25
3771
with the balance of t he rights at issue here. In Zurich, supra, t he Supreme Court
concluded, regardless of the merits, that a petition alleging that "radi o frequency radiation
. . . causes an adverse cellular reaction and/or cellular dysfunction (' biol ogical i nj ury' )"
was a legally sufficient pleading for bodily injury such that it triggered a contractual duty
to defend under certain insurance policies in quest ion. The converse of a duty to defend
is a right to prosecut e.
13. Pl ai nt i f f s "legal act i on" 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 "based on, related t o, or in response t o" a freedom of expression under
the Act triggering her right to prosecut e her cl ai ms even if t he assertions are eventually
proven to be false, groundless, or fraudulentsubject to possible sanctions if appropriate.
See generally, Zurich, supra @ 490-91 (adequacy of pl eadings triggers procedure
thereafter). Ergo, the need to balance Pl ai nt i f f s rights t o prosecut e her common l aw
claims for personal injury versus the Defendant s' rights of freedom of expression arises.
14. Regardi ng the proper legal and constitutional bal ance of the respective
rights of the litigants in this case, all of the parties have argued and relied upon the United
States Supreme Cour t ' s opi ni on in Snyder v. Phelps, U. S. , 131 S.Ct. 1207, 179
L.Ed.2d 172 (2011). In Snyder, supra 131 S.Ct. @ 1215-18, prot est ors picketed matters,
whi ch the Court found related to broad issues of societal interest, shortly before and
within the proximit y of the funeral a Uni t ed States Mari ne killed in t he line of duty. As a
result of the Cour t ' s finding that t he picketed issues were of public concern, Chief Justice
Roberts wrote and the Court narrowl y concl uded, limited by t he facts presented said
absent any controlling exceptions, that the First Amendment shielded the picketers from
Page 20 of 25
3772
tort liability and precl uded recovery of the j ury verdict on such common law torts by the
fallen mar i ne' s family. Snyder, supra @ 1220.
15. Several salient points arise from Snyder: a) t he necessary bal ance of t he
rights in quest i on was det ermi ned post-discovery, post-trial and post-verdict; b) Chi ef
Justice Roberts explicitly expressed t he narrowness of t he Cour t ' s ruling noting certain
inapplicable except ions due to the instant facts; and c) Justice Breyer wrot e separately,
concurring, to emphasi ze that the effect of the majority opi ni on was to be restricted to t he
matter before the Cour t t he picketing at-hand. See generally, Snyder, supra @ 1217-
21.
16. Stifling sufficiently pl eaded causes of action alleging tortuous conduct and
seeking personal injury damages, prior t o di scoverypri or t o t rial prior t o verdict, on
the extremely broad or outside chance that t he compet i ng interests are "based on, related
to, or in response t o" some form of freedom of expression woul d have a chilling effect on
potentially meri t ori ous litigation whereby the end might, all too easily, unjustifiably
control the means. WTiat t hen to avoid such an absurd effect upon the balance of the
rights of all litigants? Otherwise stated, how mi ght our j uri sprudence adequately achieve
the proper bal ance bet ween the rights granted under bot h t he First and Seventh
Amendments? Consi deri ng Chief Justice Robert ' s met hodol ogy in Snyder, supra and
heeding Justice Br eyer ' s admoni t i on on the limited effect of the majority opinion
factually, prudence dictates that this Court exami nes the instant record to ascertain
potential applicability of t he important exceptions that the Chi ef Justice noted were not
factually in-play in Snyder. If the record reveals a bona fide situation or circumst ance,
i.e., is there a genuine fact question or not, wherein any of the potential exceptions noted
Page 21 of 25
37
7
3
by the Chief Just ice mi ght be in-play here, Pl ai nt i f f s Seventh Amendment Ri ght t o a jury
trial, i.e., the means, cannot, prior to discoveryprior to trialprior t o verdict, be
preemptively overri dden by t he Defendant s' First Amendment Ri ght s t o freedom of
expression, i.e., the end. See generally, Snyder, supra @ 1215 ("Free Speech Clause of
the First Amendment. . . can serve as a defense in state tort sui t s"i t goes without debate
that a "defense" is assert ed only after a Plaintiff is al l owed t he opport unit y t o present her
case factually t o a j ury) [emphasis added].
17. For the limited purpose of this inquiry, t he Court presumes that t he
Defendants' expressi ons of speech, petition and association were, t o t he extent necessary,
public in nature. The first "excl usi on" from First Amendment prot ect i ons not ed by Chief
Justice Robert s is speech that is either obscene or likely to incite a fight. Snyder, supra
@ n. 3. Plaintiff has alleged and factually asserted publication by Defendant s of "bi zarre"
and "vi l e" st at ement s about her. First Amended Declaration of Moni que Rat hbun @ f
12. Bot h parties have asserted that the other sought to pick fights wi t h one another
during the mul t i pl e confrontations at issue, and Defendant s hi red a body guard or
"muscl e" due t o their apprehensi on of Mark Rat hbun' s alleged propensit ies for violence.
18. Anot her potential exception noted by the Chief Justice is speech, whi ch
although given a "publ i c" label at first blush, is det ermined t o be cont ri ved t o insulate
from liability on a truly private issue. Snyder, supra @ 1217. Clearly at issue here and
yet t o be det ermi ned subsequent to discovery, etc is the extent to whi ch t he freedoms of
expression espoused by the Defendants were, in fact or not, publ ic in nat uret he
"content, form and cont ext " of the speech has yet to be fully devel oped. Id. @ 1216.
Further, t here is ampl e evidence to indicate that CSI instigated and prompt ed, i.e..
Page 22 of 25
3774
contrived, the Squirrel Bust er ' s purported document ari es as a possibl e ruse t o cloak its
efforts with constitutional protection.
19. The majority opinion also noted the possibl e application of proper
restraints, including an injunction. Snyder, supra @ 1218. Currently awaiting resolution
in this very case is the existing agreed ext ension of a t emporary restraining order so that,
in-part, t he ant i -SLAPP mot i ons coul d be timely addressed.
20. Lastly, the Supreme Court discussed t he limited and sparing applicability
of the "captive audi ence doctrine . . . dependent upon a showi ng that substantial privacy
interests are bei ng i nvaded in an essentially intolerable manner. " Snyder, supra @ 1219-
20. While it is undisputed that much of the compl ai ned-of activity and alleged
harassment occurred at or in the vicinity of the Pl ai nt i f f s home, t he true degree of the
alleged invasion, if at all, is yet t o be fully devel oped. Thi s is clearly a fact-driven
determination t hat commands adequat e di scovery and opport uni t y to devel op that the
time constraints of t he Act do not count enance.
21. The Court concl udes that numerous fact issues are substantiated wi t h
enough evidence that if al l owed to be fully devel oped coul d possibl y ripen into one of t he
exceptions discussed by t he Supreme Court in Snyder, supra. As a result, preempt ivel y
dismissing any such legal action simpl y because it is somehow "based on, related t o, or in
response t o" t he defensive issue of freedom of expression woul d lead to an absurd result
wi t h the end unjustifiably controlling t he means. Accordi ngl y, Defendant s are not
entitled to file a mot i on to dismiss under the Texas Ci t i zen' s Participation Act. See
27. 003, Tex. Civ. Prac. & Rem. Code (West Supp. 2013). Havi ng reached this result, the
Court need not di ve headl ong into t he much lengthier and potentially compl ex ul t imat e
Page 23 of 25
37
7
5
issue regarding the constitutionality of the Act from either a Sevent h Amendment
perspective from t he federal side or an open courts perspective from t he state
constitution.
22. The instant result precludes the necessi t y of any further revi ew of t he
parties' respective burdens of proof on the remai ni ng issues, and the Court expressly
makes no opinion on any such issue. Defendant s' mot i ons are, nonet hel ess, wit hout
merit and are DENI ED. Tex. Civ. Prac. & Rem. Code 27. 003(c), 27. 005(b) (West
Supp. 2013).
23. The instant record is vol umi nous, and counsel for all parties have been
extremely t horough in their respective argument s and materials provided the Court.
Accordingly, the Court has endeavored t o be j ust as t horough not only in reading the
evidence, t he obj ect ions, and the briefs present ed but also in conduct ing independent
research on t his relatively new aspect of Texas l aw. As a result, t he Court declines t o
conclude that Defendant s' mot ions, in and of t hemsel ves, are frivolous, but t he Court
does conclude that t he met hod in whi ch t he mot i ons were litigated, from the discovery
to the objections, etc., resulted in hours upon hours of court room t i me that coul d have
been better spent el sewhere.
Concl us i on
Rul i ngs on t he objections were previ ousl y compl et ed, and written orders
thereupon will be filed under separate cover wi t h at t achment s reflecting said rulings as
soon as possibl e. For t he foregoing reasons. Def endant s' mot i ons under t he Act are
Page 24 of 25
37
7
6
DENIED. Plaintiff i s awarded her court costs and at t orneys' fees. Tex. Civ. Prac. &
Rem. Code 27. 009(b) (West Supp. 2013).
ORDERED and SIGNED on this 14
, h
day of March, 2014.
Honorablefli Ji ^Wald
Presi di ng Judge
Page 25 of 25
3777