ACCEPTED 03-14-00199-CV 3555231 THIRD COURT OF APPEALS AUSTIN, TEXAS January 6, 2015 12/19/2014 4:39:26 PM JEFFREY D. KYLE CLERK NO. 03-14-000199-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS COURT OF APPEALS FOR THE 12/19/2014 4:39:26 PM THIRD COURT OF APPEALS DISTRICT JEFFREY D. KYLE AUSTIN, TEXAS Clerk ______________
CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL. APPELLANTS
VERSUS
MONIQUE RATHBUN APPELLEE ______________
FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING
APPELLEE’S MOTION FOR LEAVE TO FILE RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL
NOW COMES Appellee Monique Rathbun and files this Motion for Leave to File
Response to Notice of Supplemental Authority of Appellant Church of Scientology
International, and in support thereof would respectfully show the Court as follows:
Appellee Monique Rathbun requests leave to file the attached Response to the
Notice of Supplemental Authority filed by Appellant Church of Scientology
International (“COS”). COS contends that the supplemental authority – a decision
by a California trial court – is relevant to the Court’s questions during oral argument regarding how Texas’s anti-SLAPP statute should be applied in cases in
which some claims arise from activities protected by the statute and some claims
do not. As explained in the proposed Response, a copy of which is attached hereto
as Exhibit 1, Appellee does not believe that the California trial court’s opinion
supports COS’s position or adds any clarity to the issues before the Court.
WHEREFORE, Appellee Monique Rathbun prays that this Motion be granted,
Appellee’s Response to Notice of Supplemental Authority of Church of
Scientology International Brief of Appellee be filed in the papers of this appeal,
and this Court award her such other and further relief, both general and special, at
law or in equity, to which she may be entitled.
– 2 – Respectfully submitted,
PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile
By: /s/ Leslie Sara Hyman Elliott S. Cappuccio Texas State Bar No. 24008419 ecappuccio@pulmanlaw.com Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com Etan Z. Tepperman Texas State Bar No. 24088514 etepperman@pulmanlaw.com JEFFREY & MITCHELL, P. C. Ray B. Jeffrey Texas State Bar Number 10613700 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 (830) 438-8935 Telephone (830) 438-4958 Facsimile rjeffrey@sjmlawyers.com THE WIEGAND LAW FIRM, P.C. Marc F. Wiegand Texas State Bar No. 21431300 434 North Loop 1604 West, Suite 2201 San Antonio, Texas 78232 (210) 998-3289 Telephone (210) 998-3179 Facsimile marc@wiegandlawfirm.com ATTORNEYS FOR APPELLEE MONIQUE RATHBUN
– 3 – CERTIFICATE OF CONFERENCE Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I have
conferred with counsel for Appellants, who indicated that they are not opposed to
the motion for leave to file.
/s/ Leslie Sara Hyman Leslie Sara Hyman
– 4 – CERTIFICATE OF SERVICE
I certify that on the 19th day of December 2014, the foregoing Appellant’s
Motion for Leave to File Response to Notice of Supplemental Authority of
Appellant Church of Scientology International has been transmitted by electronic
service in accordance with the requirements of the Texas Rules of Appellate
Procedure addressed as follows:
Lamont A. Jefferson Wallace B. Jefferson HAYNES & BOONE, LLP Rachel Ekery 112 East Pecan Street, Suite 1200 ALEXANDER DUBOSE JEFFERSON & San Antonio, Texas 78205-1540 TOWNSEND, LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701
J. Iris Gibson Ricardo Cedillo HAYNES & BOONE, LLP Les J. Strieber III 600 Congress Avenue, Suite 1300 Isaac J. Huron Austin, Texas 78701 DAVIS CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 East Mulberry Avenue San Antonio, Texas 78212
George H. Spencer, Jr. Jonathan H. Hull CLEMENS & SPENCER Ashley B. Bowen 112 E. Pecan St., Suite 1300 REAGAN BURRUS San Antonio, Texas 78205-1531 401 Main Plaza, Suite 200 New Braunfels, Texas 78130
Bert H. Deixler Stephanie S. Bascon KENDALL BRILL & KLEIGER LLP LAW OFFICE OF STEPHANIE S. BASCON Suite 1725 PLLC 10100 Santa Monica Boulevard 297 West San Antonio Street Los Angeles, California 90067 New Braunfels, Texas 78130
– 5 – Gary D. Sarles Thomas S. Leatherbury O. Paul Dunagan Marc A. Fuller SARLES & OUIMET VINSON & ELKINS LLP 370 Founders Square Trammell Crow Center 900 Jackson Street 2001 Ross Avenue, Suite 3700 Dallas, Texas 75202 Dallas, Texas 75201
– 6 – Exhibit 1
Exhibit 1 NO. 03-14-000199-CV
IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS ______________
FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING
APPELLEE’S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY
NOW COMES Appellee Monique Rathbun and files this Response to Notice of
Supplemental Authority of Appellant Church of Scientology, respectfully showing
the Court as follows:
Appellant Church of Scientology International (“COS”) filed its Notice of
Supplemental Authority to bring to the Court’s attention a California trial court’s
decision in Woodward v. Church of Scientology Int’l, Case No. BC540097, in the
Superior Court for the State of California for the County of Los Angeles.
Appellant COS argues that this opinion supports COS’s position that “all of Ms. Rathbun’s claims should be dismissed even if some of them do not arise out of
protected activity.” Notice at 2.
For several reasons, Ms. Rathbun believes that the cited authority is not helpful
to the Court’s analysis of the issues before it. First, the trial court’s order in
Woodward is the subject of a motion to reconsider that will not be heard until
January 7, 2015. See Exhibit A.
Second, the trial court in Woodward found that Woodward’s “causes of action
all arise from Defendants’ religious activities,” that Woodward’s “claims all relate
to religious instruction, counseling and related religious services,” and that his
“religious challenges have infused all of his causes of action and are . . .
predominant in his arguments.” Ms. Rathbun’s claims, on the other hand, relate to
stalking and harassment, not religious instruction, counseling, or services. To the
extent that she incidentally references COS’s arguably protected speech, that
speech does not form the basis of her claims.
Third, contrary to COS’s position, the courts in California do not hold that
where a plaintiff raises some claims that arise from protected activity and some
claims that do not arise from protected activity, all of the plaintiff’s claims should
be dismissed. It is true that the California appellate courts hold that when a
plaintiff’s cause of action “is based on both protected activity and unprotected
activity, it is subject to [dismissal under California’s Anti-SLAPP statute] unless
– 2 – the protected conduct is “merely incidental” to the unprotected conduct.”1
Haight Ashbury Free Clinics v. Happening House Ventures, 184 Cal. App. 4th
1539, 1551 (Cal. Ct. App. 2010); see also Martinez v. Metabolife Internat., Inc.,
113 Cal. App. 4th 181, 188 (Cal. Ct. App. 2003) (“We conclude it is the principal
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ACCEPTED 03-14-00199-CV 3555231 THIRD COURT OF APPEALS AUSTIN, TEXAS January 6, 2015 12/19/2014 4:39:26 PM JEFFREY D. KYLE CLERK NO. 03-14-000199-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS COURT OF APPEALS FOR THE 12/19/2014 4:39:26 PM THIRD COURT OF APPEALS DISTRICT JEFFREY D. KYLE AUSTIN, TEXAS Clerk ______________
CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL. APPELLANTS
VERSUS
MONIQUE RATHBUN APPELLEE ______________
FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING
APPELLEE’S MOTION FOR LEAVE TO FILE RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL
NOW COMES Appellee Monique Rathbun and files this Motion for Leave to File
Response to Notice of Supplemental Authority of Appellant Church of Scientology
International, and in support thereof would respectfully show the Court as follows:
Appellee Monique Rathbun requests leave to file the attached Response to the
Notice of Supplemental Authority filed by Appellant Church of Scientology
International (“COS”). COS contends that the supplemental authority – a decision
by a California trial court – is relevant to the Court’s questions during oral argument regarding how Texas’s anti-SLAPP statute should be applied in cases in
which some claims arise from activities protected by the statute and some claims
do not. As explained in the proposed Response, a copy of which is attached hereto
as Exhibit 1, Appellee does not believe that the California trial court’s opinion
supports COS’s position or adds any clarity to the issues before the Court.
WHEREFORE, Appellee Monique Rathbun prays that this Motion be granted,
Appellee’s Response to Notice of Supplemental Authority of Church of
Scientology International Brief of Appellee be filed in the papers of this appeal,
and this Court award her such other and further relief, both general and special, at
law or in equity, to which she may be entitled.
– 2 – Respectfully submitted,
PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile
By: /s/ Leslie Sara Hyman Elliott S. Cappuccio Texas State Bar No. 24008419 ecappuccio@pulmanlaw.com Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com Etan Z. Tepperman Texas State Bar No. 24088514 etepperman@pulmanlaw.com JEFFREY & MITCHELL, P. C. Ray B. Jeffrey Texas State Bar Number 10613700 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 (830) 438-8935 Telephone (830) 438-4958 Facsimile rjeffrey@sjmlawyers.com THE WIEGAND LAW FIRM, P.C. Marc F. Wiegand Texas State Bar No. 21431300 434 North Loop 1604 West, Suite 2201 San Antonio, Texas 78232 (210) 998-3289 Telephone (210) 998-3179 Facsimile marc@wiegandlawfirm.com ATTORNEYS FOR APPELLEE MONIQUE RATHBUN
– 3 – CERTIFICATE OF CONFERENCE Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I have
conferred with counsel for Appellants, who indicated that they are not opposed to
the motion for leave to file.
/s/ Leslie Sara Hyman Leslie Sara Hyman
– 4 – CERTIFICATE OF SERVICE
I certify that on the 19th day of December 2014, the foregoing Appellant’s
Motion for Leave to File Response to Notice of Supplemental Authority of
Appellant Church of Scientology International has been transmitted by electronic
service in accordance with the requirements of the Texas Rules of Appellate
Procedure addressed as follows:
Lamont A. Jefferson Wallace B. Jefferson HAYNES & BOONE, LLP Rachel Ekery 112 East Pecan Street, Suite 1200 ALEXANDER DUBOSE JEFFERSON & San Antonio, Texas 78205-1540 TOWNSEND, LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701
J. Iris Gibson Ricardo Cedillo HAYNES & BOONE, LLP Les J. Strieber III 600 Congress Avenue, Suite 1300 Isaac J. Huron Austin, Texas 78701 DAVIS CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 East Mulberry Avenue San Antonio, Texas 78212
George H. Spencer, Jr. Jonathan H. Hull CLEMENS & SPENCER Ashley B. Bowen 112 E. Pecan St., Suite 1300 REAGAN BURRUS San Antonio, Texas 78205-1531 401 Main Plaza, Suite 200 New Braunfels, Texas 78130
Bert H. Deixler Stephanie S. Bascon KENDALL BRILL & KLEIGER LLP LAW OFFICE OF STEPHANIE S. BASCON Suite 1725 PLLC 10100 Santa Monica Boulevard 297 West San Antonio Street Los Angeles, California 90067 New Braunfels, Texas 78130
– 5 – Gary D. Sarles Thomas S. Leatherbury O. Paul Dunagan Marc A. Fuller SARLES & OUIMET VINSON & ELKINS LLP 370 Founders Square Trammell Crow Center 900 Jackson Street 2001 Ross Avenue, Suite 3700 Dallas, Texas 75202 Dallas, Texas 75201
– 6 – Exhibit 1
Exhibit 1 NO. 03-14-000199-CV
IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS ______________
FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING
APPELLEE’S RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY
NOW COMES Appellee Monique Rathbun and files this Response to Notice of
Supplemental Authority of Appellant Church of Scientology, respectfully showing
the Court as follows:
Appellant Church of Scientology International (“COS”) filed its Notice of
Supplemental Authority to bring to the Court’s attention a California trial court’s
decision in Woodward v. Church of Scientology Int’l, Case No. BC540097, in the
Superior Court for the State of California for the County of Los Angeles.
Appellant COS argues that this opinion supports COS’s position that “all of Ms. Rathbun’s claims should be dismissed even if some of them do not arise out of
protected activity.” Notice at 2.
For several reasons, Ms. Rathbun believes that the cited authority is not helpful
to the Court’s analysis of the issues before it. First, the trial court’s order in
Woodward is the subject of a motion to reconsider that will not be heard until
January 7, 2015. See Exhibit A.
Second, the trial court in Woodward found that Woodward’s “causes of action
all arise from Defendants’ religious activities,” that Woodward’s “claims all relate
to religious instruction, counseling and related religious services,” and that his
“religious challenges have infused all of his causes of action and are . . .
predominant in his arguments.” Ms. Rathbun’s claims, on the other hand, relate to
stalking and harassment, not religious instruction, counseling, or services. To the
extent that she incidentally references COS’s arguably protected speech, that
speech does not form the basis of her claims.
Third, contrary to COS’s position, the courts in California do not hold that
where a plaintiff raises some claims that arise from protected activity and some
claims that do not arise from protected activity, all of the plaintiff’s claims should
be dismissed. It is true that the California appellate courts hold that when a
plaintiff’s cause of action “is based on both protected activity and unprotected
activity, it is subject to [dismissal under California’s Anti-SLAPP statute] unless
– 2 – the protected conduct is “merely incidental” to the unprotected conduct.”1
Haight Ashbury Free Clinics v. Happening House Ventures, 184 Cal. App. 4th
1539, 1551 (Cal. Ct. App. 2010); see also Martinez v. Metabolife Internat., Inc.,
113 Cal. App. 4th 181, 188 (Cal. Ct. App. 2003) (“We conclude it is the principal
thrust or gravamen of the plaintiff’s cause of action that determines whether the
anti-SLAPP statute applies and when the allegations referring to arguably
protected activity are only incidental to a cause of action based essentially on
nonprotected activity, collateral allusions to protected activity should not subject
the cause of action to the anti-SLAPP statute.”).
But it does not follow that when one cause of action is subject to dismissal, the
entire petition is subject to dismissal. Rather, each claim or cause of action is to be
analyzed separately and, at most,2 only those claims or causes of action that arise
from protected acts are subject to dismissal (and even then, only if the plaintiff has
insufficient evidence to support them). See, e.g., Graham-Sult v. Clainos, 738 F.3d
1131, 1142 (9th Cir. 2013) (holding that to determine whether a cause of action
1 It does not appear that the California Supreme Court has yet determined whether the California Courts of Appeals are correct in having reached this conclusion. 2 At least one California Court of Appeals has held that where a plaintiff alleges several causes of action that are factually and legally intertwined and at least one cause of action survives scrutiny under an Anti-SLAPP motion, all the causes of action should go forward. M. G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 637 (Cal. Ct. App. 2001) (holding that because the plaintiffs had “shown the propriety of their invasion of privacy claim . . . it cannot be said their lawsuit is meritless and ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances’” so their emotional distress claims also survived).
– 3 – arises from protected activity the court should “first ask what activities form the
basis for each of Plaintiffs’ causes of action [and] then ask whether those activities
are ‘protected,’ bringing the cause of action within the scope of the anti-SLAPP
statute”) (emphasis added); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th
993, 997-98 (Cal. Ct. App. 2001) (reversing the denial of an Anti-SLAPP motion
to dismiss those of the plaintiff’s claims that arose from protected activity and for
which the plaintiff had failed to show a probability of success but affirming the
denial of the motion as to those of the plaintiff’s claims that did not arise from
protected activity).
For example, in Graham-Sult v. Clainos, 738 F.3d 1131 (9th Cir. 2013), the
Ninth Circuit reviewed the plaintiffs’ complaint and concluded that six of the
plaintiffs’ causes of action arose from protected activity and were the proper
subject of the defendants’ Anti-SLAPP motion while other causes of action did not
arise from protected activity and could not be subjected to the motion.
– 4 – Respectfully submitted,
PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile
By: /s/ Leslie Sara Hyman Elliott S. Cappuccio Texas State Bar No. 24008419 ecappuccio@pulmanlaw.com Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com Etan Z. Tepperman Texas State Bar No. 24088514 etepperman@pulmanlaw.com
JEFFREY & MITCHELL, P. C. Ray B. Jeffrey Texas State Bar Number 10613700 A. Dannette Mitchell Texas State Bar Number 24039061 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 (830) 438-8935 Telephone (830) 438-4958 Facsimile rjeffrey@sjmlawyers.com dmitchell@sjmlawyers.com
– 5 – THE WIEGAND LAW FIRM, P.C. Marc F. Wiegand Texas State Bar No. 21431300 434 North Loop 1604 West, Suite 2201 San Antonio, Texas 78232 (210) 998-3289 Telephone (210) 998-3179 Facsimile marc@wiegandlawfirm.com ATTORNEYS FOR APPELLEE MONIQUE RATHBUN
– 6 – Exhibit A
Exhibit A