Steven Gregory Sloat, Ed Bryan, Church of Scientology International, David J. Lubow, and Monty Drake v. Monique Rathbun

Opinion

July 21, 2015

NO. 03-14-000199-CV RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE 6/24/2015 5:24:39 PM COURT OF APPEALS FOR THE JEFFREY D. KYLE THIRD COURT OF APPEALS DISTRICT Clerk

AUSTIN, TEXAS ______________

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 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 (“CSI”) filed its second Notice of

Supplemental Authority to bring to the Court’s attention four opinions applying the

Texas Citizen’s Participation Act (“TCPA”):

• In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015);

• Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex. App.— Austin, May 1, 2015, no pet. h.).

• Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet. h.); and

• Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025 (Tex. Apr. 24, 2015) (per curiam).

Because Mrs. Rathbun believes that CSI has misstated the relevance of these

opinions to the case before the Court, Mrs. Rathbun files this brief response to CSI’s

notice.

A. In re Lipsky

In In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015), the Texas

Supreme Court recognized that “[t]he TCPA’s purpose is to identify and summarily

dispose of lawsuits designed only to chill First Amendment rights, not to dismiss

meritorious lawsuits.” Id. at *6 (emphasis added). The court then made clear that

when faced with a showing in a TCPA motion that the claims arise from protected

activity, the non-movant’s burden to come forth with “clear and specific evidence”

of her claims simply means that the non-movant must allege more than mere notice

pleading requires. Id. at *7 (emphasis added). CSI acknowledges the court’s

– 2 – holding “that a non-movant can rely on circumstantial evidence and rational

inferences to satisfy her burden.” CSI Notice of Supplemental Authority at 4. CSI

then states, however, that “[o]n this issue, Lipsky supports the Church’s position.”

Id.

In fact, Lipsky is not consistent with CSI’s prior position at all. In its Brief of

Appellant, CSI had argued that Mrs. Rathbun “cannot rely on ‘presumptions,

inferences or intendment.’” CSI Brief of Appellant at 36-37

(quoting Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—

Dallas 2013, pet. denied)). CSI also argued that Mrs. Rathbun “must present

evidence that is ‘unambiguous,’ ‘sure,’ and ‘free from doubt’ and that is ‘explicit.’”

Id. at 37.

The Texas Supreme Court has now made clear that in fact, no elevated

evidentiary standard applies. In re Lipsky, 2015 WL 1870073, at *3-7. Rather, a

plaintiff can defeat a motion to dismiss under the TCPA merely by “provid[ing]

enough detail to show the factual basis for its claim.” Id. at *7. As the Texas

Supreme Court recognized, “Though the TCPA initially demands more information

about the underlying claim, the [TCPA] does not impose an elevated evidentiary

standard or categorically reject circumstantial evidence. In short, it does not impose

a higher burden of proof than that required of the plaintiff at trial.” Id. (emphasis

– 3 – added). The court disapproved “those cases that interpret the TCPA to require direct

evidence of each essential element of the underlying claim to avoid dismissal.” Id.1

Although the district court did not reach the question of whether Mrs. Rathbun

offered clear and specific evidence of her claims, the record is clear that she met that

burden. The information and evidence that Mrs. Rathbun offered in support of her

claims, including circumstantial evidence and rational inferences, satisfied her

burden under the TCPA. Brief of Appellee at 50-56; see also Serafine v. Blunt, No.

03-12-00726-CV, 2015 WL 2061922, at *3 (Tex. App.—Austin, May 1, 2015, no

pet. h.) (recognizing that the term “clear and specific” relates only to the quality of

the evidence and that the non-movant is entitled to use rational inferences to “satisfy

the nonmovant’s minimal factual burden”).

B. Serafine v. Blunt

CSI uses this Court’s opinion in Serafine v. Blunt, No. 03-12-00726-CV, 2015

WL 2061922 (Tex. App.—Austin, May 1, 2015, no pet. h.), as an excuse to reurge

CSI’s positions regarding the proper applicability of the TCPA to (1) a “mixed”

claim based on both unprotected activity and protected activity and

1 In its original briefing, CSI had relied for its allegation that a heightened evidentiary applied on some of the cases expressly overruled by In re Lipsky. See CSI Brief of Appellant at 8, 36-37 (citing Rehak, 404 S.W.3d at 726; Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio 2014, pet. filed); Rio Grande H2O Guardian v. Robert Muller Family P’ship, Ltd., No. 04-13- 00441-cv, 2014 WL 309776 (Tex. App.—San Antonio Jan. 29, 2014, no pet.)); CSI Reply Brief at 11 n.10 (citing Shipp v. Malouf, 439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. denied)).

– 4 – (2) pre-suit investigations. Regarding the first point, CSI’s position is that a claim

based on both unprotected activity and protected activity that is not

“merely incidental” to the unprotected activity, is wholly subject to dismissal under

the TCPA. 2 Texas law is to the contrary. If a claim is based both on protected and

non-protected conduct, the portion of the claim based on non-protected conduct may

proceed without further analysis. See Serafine, 2015 WL 2061922, at *4

(“Accordingly, we affirm in part the trial court’s order denying Serafine’s motion to

dismiss the tortious-interference counterclaim, and we will remand the cause for

consideration of the Blunts’ tortious-interference counterclaim to the extent that it is

based on Serafine’s alleged harassing and threatening conduct outside the context of

the lawsuit.”); see also id. at *29-30 (Pemberton, J. concurring) (concluding that the

Court correctly concluded in Serafine that a when a “‘legal action’ ‘is based on,

relates to, or is in response to’ (whatever that phrase may mean) both expression

protected by the Act and other unprotected activity, the ‘legal action’ is subject to

2 CSI appears to have abandoned the position argued in its first Notice of Supplemental Authority, that if even one of Mrs. Rathbun’s claims arises out of protected activity, “all of Ms. Rathbun’s claims should be dismissed even if some of them do not arise out of protected activity.” First CSI Notice of Supplemental Authority at 2. As Justice Pemberton recognized in his concurrence in Serafine, CSI’s “grounds for dismissal . . . must be analyzed separately with respect to each of the challenged [claims].” Serafine, 2015 WL 2061922, at *14 n.52 (citing Better Bus. Bureau of Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.–Dallas 2013, pet. denied)); see also In re Lipsky, 2015 WL 18700073, at *8-13 (considering on a claim-by-claim basis whether dismissal was appropriate under the TCPA).

– 5 – dismissal only to the extent it ‘is based on, relates to, or is in response to’ the

protected conduct, as opposed to being subject to dismissal in its entirety”).

CSI suggests the Court’s holding in Serafine resulted because the parties had

neither briefed nor argued the question of how “mixed claims” should be treated

under the TCPA and urges the Court to follow CSI’s take on California law on the

question. CSI’s Notice of Supplemental Authority at 6-7. CSI’s position both gives

the Court too little credit and ignores the purpose of the TCPA. No First Amendment

rights are impacted if a party who pled a “mixed” claim proceeds with the claim

when it may be established on unprotected activity. 3

Regarding CSI’s position that pre-suit investigation is protected by the right to

petition, CSI again relies only on a single case from California, which itself

recognized that sham pre-suit investigation would not be entitled to protection.

3 CSI further argues that “[a] non-movant, of course, could still go forward with that portion of his mixed claim that is not encompassed within the Act by demonstrating, within the context of the motion to dismiss brought under the Act, that his claim is supported by clear and specific evidence of a prima facie case and is not otherwise subject to dismissal.” CSI’s Notice of Supplemental Authority at 7-8 (emphasis added). CSI has it backwards. A non-movant need not, at the dismissal stage, provide any evidence of claims that are not encompassed within the TCPA because the burden never shifts to her to do so. See Serafine, 2015 WL 2061922, at *2 (recognizing that the TCPA shifts to the non-movant the burden of establishing a prima facie case of the elements of her claim only if the movant has “establish[ed] by a preponderance of the evidence ‘that the legal action is based on, relates to, or is in response to the party’s exercise of ... the right to petition’”); see also In re Lipsky, 2015 WL 1870073, at *3 (recognizing that the burden shifts to the non- movant to come forward with support of her claims only “If the movant is able to demonstrate that the plaintiff’s claim implicates” a protected right). And the non-movant may go forward even with claims that are encompassed within the Act so long as those claims are supported by clear and specific evidence. Id.; Tex. Civ. Prac. & Rem. Code § 27.005(c) (“The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”).

– 6 – See CSI’s Notice of Supplemental Authority at 8. As set forth in detail in her original

brief, Mrs. Rathbun urges the Court, on this issue of first impression in Texas, to

conclude that pre-suit investigation is not entitled to protection, or, in the alternative,

that sham investigation is not entitled to protection and CSI’s claim of pre-suit

investigation is a sham. See Brief of Appellee at 44-50; see also Serafine, 2015 WL

2061922, at *19-21 (Pemberton, J. concurring) (urging a traditional view of what is

meant by the right to petition and arguing for exclusion of sham petitioning from

protection).

C. Neyland v. Thompson

CSI relies on this Court’s opinion in Neyland v. Thompson, No. 03-13-00643-

CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet. h.), for the

proposition that Mrs. Rathbun’s claims were based on communications that fall

within CSI’s right of association. As CSI recognizes, and the Court is aware,

Neyland concerned whether communications among members of a homeowner’s

association were protected by the TCPA. CSI fails now, as it has always failed, to

identify a single complaint by Mrs. Rathbun regarding communications among

members of CSI. This is because Mrs. Rathbun’s claims do not concern

communications among members of CSI. See Brief of Appellee at 42-43

(“The activity Mrs. Rathbun complains of does not fall within this description [of the

– 7 – right of association] and Appellants have failed to identify even one such

communication that is the subject of Mrs. Rathbun’s claims.”).

– 8 – D. Lippincott v. Whisenhunt

Finally, CSI alleges that Lippincott v. Whisenhunt, 13-0926, 2015 WL 1967025

(Tex. Apr. 24, 2015), “resolves one of the main legal disputes in this appeal, i.e.,

whether the Act applies only to a ‘communication’ that is made to the public.” CSI

Notice of Supplemental Authority at 1-2. In support of its position that this question

is disputed, CSI cites to pages 39-42 of Mrs. Rathbun’s brief and pages 20-24 of the

district court’s opinion.

In fact, neither of those documents contains a contention that the TCPA does not

apply to private communications. The discussion on pages 39-42 of Mrs. Rathbun’s

brief establishes that Mrs. Rathbun’s claims do not arise from speech on matters of

public concern. Brief of Appellee at 39-42 (“The only communications complained

of concern Mrs. Rathbun’s marriage, [Mrs.] Rathbun’s alleged sexual preferences

and practices, Mrs. Rathbun’s fertility issues, Mrs. Rathbun’s husband, and the

mental health of Mrs. Rathbun’s husband’s family. These are not matters of public

concern.”). Pages 20-24 of the district court’s opinion address the district court’s

attempt to find the proper balance between Mrs. Rathbun’s “right to prosecute her

common law claims for personal injury” and CSI’s “rights of freedom of

expression.” Far from questioning whether private communications would give rise

to a claim under the TCPA, the district court stated that “[f]or the limited purpose of

this inquiry, the [c]ourt presumes that the Defendants’ expressions of speech,

– 9 – petition and association were, to the extent necessary, public in nature.” 31CR3774.

Contrary to CSI’s description of “one of the main legal disputes in this appeal,” there

in fact was no dispute as to whether the TCPA may apply to speech to private

individuals because the question was not germane to the outcome of CSI’s motion.

CSI’s conclusion that in light of the evidence, “Lippincott leaves no room for

Appellee to argue that Appellants’ communications were not ‘made in connection

with a matter of public concern’ within the TCPA,” likewise does not follow from

Lippincott. In Lippincott, the Texas Supreme Court acknowledged the unremarkable

conclusion that emails regarding whether a nurse properly provided care to her

patients addressed a matter of public concern. Lippincott, 2015 WL 1967025, at *2

(“We have previously acknowledged that the provision of medical services by a

health care professional constitutes a matter of public concern.”). Nothing in

Lippincott would render communications about an individual’s spouse, marriage, or

fertility issues matters of public concern.4

4 CSI claims in this portion of its Notice that Mrs. Rathbun conceded she is a public figure by not responding to CSI’s claim that she was. CSI Notice of Supplemental Authority at 3. Mrs. Rathbun did not concede anything. She did not address in her Brief of Appellee whether she was a public figure simply because it was not determinative. Nevertheless, it is clear that Mrs. Rathbun is not a public figure. See, e.g., Neyland, 2015 WL 1612155, at *6-7.

– 10 – 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 THE JEFFREY LAW FIRM 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

– 11 – CERTIFICATE OF SERVICE

I certify that on the 24th day of June 2015, the foregoing Appellee’s Response to

Notice of Supplemental Authority of Appellant Church of Scientology 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

– 12 – 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

/s/ Leslie Sara Hyman Leslie Sara Hyman

– 13 –