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8/12/2019 Monique Rathbun v. Scientology: Lubow Appeal
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ACC03-14-00199-
1THIRD COURT OF APPEAL
AUSTIN, T6/11/2014 7:19:00 P
JEFFREY D. K
FILED IN3rd COURT OF APPEALS AUSTIN, TEXAS
6/11/2014 7:19:00 PM JEFFREY D. KYLE Clerk
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IDENTITY OF PARTIES AND COUNSEL
1 Appellant David J Lubow
Represented in the trial court and on appeal by:
Stephanie S BasconState Bar No. 19356850LAW OFFICE OF STEPHANIE S BASCON P L L C
297 W San Antonio StreetNew Braunfels Texas 78130Telephone: 830-625-2940Facsimile: [email protected]
2 Other Appellants
a Church o Scientology International
Represented in the trial court and on appeal by:
Ricardo G CedilloIsaac J HuronDAVIS CEDILLO MENDOZA INC.McCombs Plaza Suite 500
755 E. Mulberry AvenueSan Antonio Texas 78212Telephone: 210.822.6666Facsimile: 210.822.1151
George H. Spencer Jr.CLEMENS SPENCER112 E. Pecan Street Suite 1300San Antonio Texas 78205-1531
Telephone: 210.227.7121Facsimile: 210.227.0732
Bert H. DeixlerKENDALL BRILL KLIEGER
10100 SantaMonicaBlvd . Suite 1725Los Angeles California 90067
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Telephone: 310.272.7910Facsimile: 310.556.2705Additional Counsel on appeal:
Thomas S. LeatherburyMarc A. FullerVINSON ELKINS LLP
Trammell Crow Center200 Ross A venue Suite 3 700Dallas Texas 75201Telephone: 214.220.7792Facsimile: 214.999.7792
Eric M. Lieberman
RABINOWITZ BOUDIN STANDARDKRINSKY LIEBERMAN PC
45 Broadway Suite 1700New York New York 10006Telephone: 212.254.1111Facsimile: 212.674.4614
b Steven Gregory Sloat
Represented in the trial court and on appeal by:
Jonathan H. HullREAGAN BURRUS401 Main Plaza Suite 200New Braunfels Texas 78130Telephone: 830.625.8026Facsimile: 830.625.4433
c Monty Drake
Represented in the trial court and on appeal by:
0 Paul DunaganSARLES OUIMET
370 Founders Square900 Jackson Street
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Dallas, Texas 75202Telephone: 214.573.6300Facsimile: 214.573.6306
d Ed Bryan
Represented in the trial court and on appeal by
Jonathan H HullREAGAN BURRUS401 Main Plaza, Suite 200New Braunfels, Texas 78130Telephone: 830.625.8026Facsimile: 830.625.4433
3 Appellee Monique Rathbun
Represented in the trial court and on appeal byRay B. JeffreyA Dannette MitchellJEFFREY & MITCHELL, P C2631 Bulverde Road, Suite 105Bulverde, Texas 78163
Telephone: 830.438.8935Facsimile: 830.438.4958
Marc F. WiegandTH WIEGAND LAW FIRM P C
434 N. Loop 1604 West, Suite 2201San Antonio, Texas 78232Telephone: 210.998.3289
Elliott S CappuccioLeslie Sara HymanPULMAN, CAPPUCCIO, PULLEN, BENSON, & JONES, LLP2161 N.W. Military Hwy., 400San Antonio, Texas 78213Telephone: 210.222.9494Facsimile: 210.892.1610
iii
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T BLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ iTABLE OF CONTENTS ......................................................................................... ivINDEX OF AUTHORITIES .................................................................................... vi
STATEMENT OF THE CASE .............................................................................. viiiSTATEMENT REGARDING ORAL ARGUMENT ............................................. ixISSUES PRESENTED ............................................................................................... xSTATEMENT OF FACTS ........................................................................................STANDARD OF REVIEW ...................................................................................... 3SUMMARY OF THE ARGUMENT ........................................................................ 4ARGUMENT ............................................................................................................. 7
I. THE DISTRICT COURT'S HOLDING THAT PLAINTIFF'S CLAIMS
WERE EXEMPT FROM THE TCPA WERE ERRONEOUS ANDWOULD RENDER THE TCPA A VIRTUAL NULLITY ............................ 7A The Commercial Speech Exemption Does Not Apply to
Plaintiffs Claims ................................................................................... 7
B. The Bodily Injury Exemption o Section 27.010(c) Does NotApply to Plaintiffs Claims .................................................................... 7
II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFF'S
CAUSES OF ACTION WERE NOT BASED ON, RELATED TO ORIN RESPONSE TO THE EXERCISE OF APPELLANTS' RIGHTS TOFREE SPEECH, ASSOCIATION, OR PETITION ....................................... 7
III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DIDNOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORTESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOTOVERCOME LUBOW'S AFFIRMATIVE DEFENSES ............................... 8
A. Plaintiff's Claim for Tortious Interference with Contract Should BeDismissed .............................................................................................. 8
B. Plaintiff's Invasion o Privacy Claim for Intrusion Should BeDismissed............................................................................................ 12
C Plaintiffs Invasion o Privacy Claim for Public Disclosure oPrivate Facts Should Be Dismissed ................................................... 15
iv
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INDEX O UTHORITIES
Cases Pages
Brewerton v. Dalrymple,997 S.W.2d 212, 215 Tex. 1999) ....................................................................... 8
Butnaru v. Ford Motor Co.,84 S.W.3d 198,207 Tex. 2002) ............................................................................ 8
Clayton v. Wisener,190 S.W.3d 685, 696-97 Tex. App.-Tyler 2005, pet. denied) ....................... 5
Comhill Insurance PLv.
Valsamis,106 F.3d 80, 85 5th Cir. 1997) ........................................................................... 5
Creditwatch, Inc. v. Jackson,157 S.W.3d 814,818 Tex. 2005) ...................................................................... 8
Hill v. Heritage Res. Inc.,964 S.W.2d 89, 23 Tex. App.-El Paso 1997, pet. denied) ............................... 8
Hoffmann-La Roche Inc. v. Zeltwanger,144 S.W.3d 438, 447 Tex. 2004) ....................................................................... 8
Jennings v. Minco Tech. Labs, Inc.,765 S.W.2d 497, 500 Tex. App.-Austin 1989, writ denied) ............................ 2
Kroger Tex. Ltd. P ship v. Suberu,216 S.W.3d 788, 796 Tex. 2006) ........................................................................ 7
Prudential Ins. Co. o f Am. v. Fin. Review Servs., Inc.,
29 SW3d 74, 77 Tex. 2000) .................................................................................. 8
Rehak Creative Services, Inc. v. Witt404 S.W.3d 716, 726 Tex.App.-Houston [l4 1h Dist.] 2013) ....................... 11, 4
Star Telegram, Inc. v. Doe,915 S.W.2d 471,473-74 Tex. 1995) ................................................................. 6
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Valenzuela v. Aquino853 S.W.2d 512 Tex. 1993) ............................ ................................. .................. 12
Vaughn v. Drennon202 S.W.3d 308, 320 Tex. App. -Tyler 2006, no pet.) ......................... 12, 13, 14
Webb v. CBS Broadcasting Inc.No. 08 C 6241, 2011 WL 4062488 N.D. Ill. Sept. 13, 2011) ............................ 14
Webb v. Glenbrook Owners Ass n, Inc.298 S.W.3d 374, 387 Tex. App.-Dal las 2009, no pet.) ................................... 14
Wehling v. Columbia Broad. Sys.721 F.2d 506, 509 5th Cir. 1983) ....................................................................... 14
Statutes and Rules
TEX. CIV. PRAC. REM. CODE 27.001 ............................................................. viii, x
TEX. CIV. PRAC. REM. CODE 27.005 c) ................................................. 11, 12, 15
TEX. CIV. PRAC. REM. CODE 27.010 b) ................................................................ x
TEX. CIV. PRAC. REM. CODE 27.010 c) ....................................... ......................... x
TEX. CIV. PRAC. REM. CODE 27.009 a) 1) ......................................................... xi
TEX. CIV. PRAC. REM. CODE 27.009 b) .............................................................. xi
TEX.R.APP.P.9.7 ......................................................... 1,3 ,4 , 7-8,12, 15,17-18,20
Other uthorities
WILLIAML. PROSSER TORTS 117 4 1h Ed.) .......................................................... 16
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ST TEMENT OF THE C SE
Nature o the case This case arises out o f an ongoing public controversybetween Defendant/ Appellant Church of ScientologyInternational (the "Church") and former Scientologist Marty
Rathbun and his wife, Plaintiff/ Appellee Monique Rathbun,who became outspoken and public critics o f the Church andits leadership. Monique Rathbun sued the Church, as well asDavid Lubow ("Lubow") and others in connection with thisdispute.
Trial court
Course oproceedings
Trial courtdisposition
Monique Rathbun asserted claims for tortious interferencewith contract, invasion o f privacy by intrusion uponseclusion, invasion of privacy by publication of private facts,
and intentional infliction of emotional distress. 1 R 28-40.
The Honorable Dib Waldrip o f the 433rd Judicial DistrictCourt n Coma County presides over the trial courtproceedings.
The Plaintiff obtained an ex parte Temporary RestrainingOrder against the Defendants. 1 R 41-42. Lubow and theother Appellants filed Motions to Dismiss under the TexasCitizens' Participation Act, Tex. Civ. Prac. Rem. Code 27.001 t seq (the "Act" or "TCPA"). 1 R 02-146; 3
R 337-40; 5 CR 582-84; 5 R 587-91. After a timelyhearing, the trial court denied the Motions finding the TCP Adid not apply because the claims were exempt under the"commercial speech" and "bodily injury" exemption. 31CR3 764-77. The trial court also awarded attorneys' fees andcosts to Monique Rathbun even though he specifically foundthat the motions were not frivolous. 3 CR 3776-77.
The trial court denied Appellants' Motion to Dismiss onMarch 14, 2014. Jd Appellants timely filed their Notice ofAppeal on April 2, 2014. 50 R 5687-90. The district courtsigned a Supplemental Ruling on April 4, 2014. FirstSupplemental CR 27.
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ISSUES PRESENTE
1. Whether the district court erred in denying Lubow's Motion toDismiss Plaintiff's claims under the Texas Citizens Participation Act ( TCPA )?
2. Whether the district court erred in holding that the TCPA's exemptionfor legal actions brought against a person primarily engaged in the business oselling or leasing goods or services arising out o commercial activity applied toAppellants? TEX. CJV. PRAC. REM. CODE 27.010(b)
3. Whether the district court erred in holding that the TCPA's exemptionfor legal actions seeking recovery for bodily injury applied where Plaintiffsalleged damages were headaches and nausea? TEX. C V. PRAC. REM. CODE27.010(c)
4. Whether the district court erred in holding that Plaintiff's claims werenot based on, relate[ d] to, or in response to Appellants' exercise o the righto free speech, right o association, or right o petition, and therefore were notsubject to the TCPA? TEX. Crv. PRAc. REM. CoDE 27.001 (defining terms)
5. Whether the district court erred in not dismissing Plaintiffs claimagainst Lubow for tortious interference with her employment contract because (a)Plaintiff failed to provide clear and specific evidence that her employer breachedor terminated her contract; (b) Plaintiff failed to provide clear and specificevidence that any alleged breach by her employer was proximately caused byactions ofLubow; and (c) the claim is barred by the statute oflimitations?
6. Whether the district court erred in not dismissing Plaintiff's claimagainst Lubow for invasion o privacy by intrusion into seclusion because (a)Plaintiff failed to provide clear and specific evidence that Lubow intruded intoprivate areas or matters that are within the zone o privacy protection under Texaslaw; and (b) the acts are protected by the First Amendment?
7. Whether the district court erred in not dismissing Plaintiffs claimagainst Lubow for invasion o privacy by public disclosure o private facts because(a) Plaintiff failed to provide clear and specific evidence that Lubow publiclydisclosed any facts, private or otherwise, about her; (b) Plaintiff cannot seek relieffor the alleged disclosure o private facts about her husband; (c) Plaintiff failed toprovide clear and specific evidence that anyone disclosed private facts about herhusband to more than a few individuals, and not the public at large; (d) the alleged
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disclosure o facts about Plaintiffs husband was a matter o legitimate publicconcern protected by the First Amendment; and (e) the claim is barred by thestatute o limitations?
8 Whether the district court erred in not dismissing Plaintiffs claim
against Lubow for intentional infliction o emotional distress because (a) the tort isapplicable only as a gap filler and Plaintiff alleges claims for the same acts underother torts and intentionally avoided alleging others; (b) Plaintiff failed to provideclear and specific evidence that Lubow committed acts that meet the standard ooutrageous conduct ; (c) the acts were protected by the First Amendment.
9 The Plaintiffs claims for vicarious liability and conspiracy cannotsupport Plaintiff s causes o action against individual Appellants.
10 Whether the district court erred in awarding attorneys' fees and coststo Plaintiff in violation o the TCPA, where the court expressly held that Lubow'sMotion to Dismiss was not frivolous and made no finding (nor could it have)that his Motion was solely intended to delay, TEX Crv. PRAc REM CODE27.009(b), and further erred in failing to hold that Lubow was entitled to hisattorneys' fees and costs under Section 27.009(a)(l)?
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ST TEMENT OF F CTS
Lubow adopts and incorporates by reference the Statement of Facts o f the
Church's Brief. TEX R APP P. 9.7.
David Lubow ( Lubow ) is a private investigator licensed in the state o f
California. 2 R 277 ~ 3 Prior to 2009, Lubow was retained by Los Angeles
attorney, Elliot Abelson, on behalf of his client, the Church of Scientology
International (the Church ), to perform investigative actions in support of
litigation, prospective litigation and threatened litigation in which the Church was
or could be involved. 2 R 278 ~ 4 He was also retained to investigate potential
violations o f intellectual property rights licensed to the Church relating to the
Scientology religion. d
The only evidence submitted by the Plaintiff to the trial court of any
investigation by Lubow was his alleged conversations with co-workers o f Plaintiff
Monique Rathbun and inferences o f alleged conversations with Plaintiff's ex-
husband, Franklyn Carle III in the fall o f 2010 and the spring of 2011.
3364-66; 33 R 3923; 42 CR 4883.
28 CR
No evidence has been presented to the court that Lubow or any investigator
working for him or within his knowledge, ever photographed inside the Rathbun's
place of business/residence, used any form or electronic surveillance with respect
to the interior o f his business/residence, used any form o f microphone to overhear
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private conversations inside or on the porch of their place o f business/residence,
interfered with or wiretapped the Rathbuns telephone or internet service,
physically blocked or interfered with their freedom of movement or physically
touched or threatened the Rathbuns. 2 CR 279 ~ 7 No surveillance was conducted
by photographing into their windows or doors; no electronic devices were ever
used to track Marty Rathbun or Plaintiff. d.
At no time did Lubow or anyone working under his direction, or in
coordination with him, undertake any unlawful actions, actions exceeding his
California private investigator license, or any action which otherwise violated the
privacy of the Rathbuns. 2 CR 279 ~ 6 The focus of Lubow s investigation was
Mr. Rathbun, not Plaintiff. Jd
No evidence was presented to the trial court that Lubow or anyone working
with or for him ever sent anything to Mrs. Rathbun or to her place of employment,
28 CR 3388 ~ 3
Lubow s also a member of the Scientology religion. 2 R 280 ~ 9 After
2009, Lubow saw for himself that Marty Rathbun had undertaken a prolonged
world-wide campaign to attack and impugn the Scientology religion and its
ecclesiastical leadership, often in highly charged, emotional terms. Rathbun also
engaged in delivering Scientology services and counseling at his office/home even
though he had been expelled from the Church and possessed no religious authority
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to provide such services. 2 CR 280-81 10 Lubow was surprised by the false
and derogatory assertions being made by Marty Rathbun on the internet and as a
dedicated Scientologist he was concerned that Rathbun was offering a discordant
version o f Scientology. d. Lubow and other Scientologists wished to demonstrate
against what they perceived to be heinous acts by Rathbun and they agreed to
simultaneously demonstrate at Rathbun s office and make a documentary
regarding Rathbun. 2 R 281 1 1 The work was planned as both a film and short
videos of Rathbun and the protests against him to educate other Scientologists and
the general public that Rathbun was, in Scientology terminology, a squirrel. d.
The group of protestors became known as the Squirrel Busters. Lubow was the
director and co-producer of the Squirrel Busters Production regarding Rathbun. 2
CR 287 ~ 6 Lubow was a filmmaker who had written and produced a feature
length documentary titled Prescription Suicide? 2 R 277 ~ 3 (a complete
discussion of the Squirrel Busters and Plaintiffs claims concerning their actions is
contained in the Church s Brief, Statement of Facts Section, which is incorporated
herein by reference).
ST ND RD OF REVIEW
Lubow adopts and incorporates by reference the Standard of Review section
o f the Church s Brief. TEX R APP P. 9.7.
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Superior only fter Plaintiff had resigned from her job. Neither o these actions
could have caused injury to Plaintiff. Plaintiffs claim is further negated by her
own admission that she resigned from her job at Superior in April o 2011. She
presented no evidence that any act by Lubow proximately caused her employer to
take any negative employment action against her. The only other evidence
regarding Lubow and Plaintiff's employment would be based on innuendo and
inferences not allowed under the statute. The claim is also barred by the statute o
limitations.
Plaintiffs privacy claim against Lubow for intrusion on seclusion does not
survive a challenge under the TCP A because there was no evidence o either a
physical invasion o Plain tif fs property or eavesdropping on her conversation with
the aid o wiretaps, microphones, or spying. Here, no such improper intrusion
occurred. In fact, there is no evidence that Lubow used any such equipment or
conducted any surveillance o the Plaintiff in his role as an investigator. Plaintiff
herself has conceded that she has no knowledge o any such intrusion. Lubow's
activities as a Squirrel Buster were conducted on public property.
Plaintiffs claim against Lubow or invasion o privacy by publication o
private facts also fails because Plaintiff provided no specific evidence that Lubow
disclosed any private facts about Plaintiff or that he published comments to the
public as that is defined under Texas law.
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Plaintiff's final claim o intentional infliction o emotional distress ( liED )
against Lubow must also fail. The liED claim must be dismissed under the gap-
filler doctrine and the Plaintiff has alleged the same facts in support o each o her
causes o action. The liED claim also fails to meet Texas' strict application o the
outrageousness element and Lubow's alleged conduct does not rise to this level.
The acts o the Squirrel Busters also are protected under the First
Amendment and may not be the predicate for claims o liED or any other tort.
There is no evidence against Lubow regarding the vicarious liability theories
that Plaintiff globally asserted in her Second Amended Petition. Plaintiff failed to
provide evidence in her submission to the trial court that establishes any vicarious
liability between the Appellants.
Finally, the district court violated the TCPA by awarding costs and fees to
Plaintiff. The district court acknowledged Appellants' motions were not frivolous
and made no finding that it was undertaken exclusively for delay, as the TCPA
reqUires.
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ARGUMENT
I. THE DISTRICT COURT'S HOLDINGS THAT PLAINTIFF'SCLAIMS WERE EXEMPT FROM THE TCPA WERE ERRONEOUSAND WOULD RENDER THE TCPA A VIRTUAL NULLITY.
Lubow adopts and incorporates by reference the arguments of Section I of
the Church' Brief and Section I of Monty Drake's ( Drake ) Brief. TEX R. APP
P. 9.7
A. The Commercial Speech Exemption Does Not Apply toPlaintiff' s Claims.
Lubow adopts and incorporates the arguments of Section LA of the
Church's Brief and Section LA of Drake's Brief. TEX R APP P 9.7.
B. The Bodily Injury Exemption of Section 27.010(c) Does NotApply to Plaintiff 's Claims.
Lubow adopts and incorporates the argument of Section LB. of the
Church's Brief, TEX R APP P 9.7, and the argument of Section I.B of Drake's
Brief. Id
II. THE DISTRICT COURT ERRED IN HOLDING THATPLAINTIFF'S CAUSES OF ACTION WERE NOT BASED ON,RELATED TO OR IN RESPONSE TO THE APPELLANTS'EXERCISE OF RIGHTS TO FREE SPEECH, ASSOCIATION, ORPETITION.
Lubow adopts and incorporates by reference the arguments in Section II of
the Church's Brief. TEX R APP P 9 7
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III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DID
NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO
SUPPORT ESSENTIAL ELEMENTS OF THOSE CLAIMS AND
CANNOT OVERCOME LUBOW'S AFFIRMATIVE DEFENSES.
Lubow adopts and incorporates by reference the arguments in Section III of
the Church s Brief. TEX. R. APP. P. 9.7.
A Plaintiff's Claim for Tortious Interference with Contract Should
Be Dismissed.
Lubow adopts and incorporates by reference the arguments in Section Ill.C.
of the Church s Brief. Tex. R. App. P. 9.7.
Plaintiff asserts a claim for tortious interference with contract and concedes
she must prove: 1 plaintiff had a valid contract; 2) the defendant willingly and
intentionally interfered with the contract; 3) the interference proximately caused
the plaintiff injury; and 4) plaintiff incurred actual damage or loss. 23 CR. 2748;
Butnaru v Ford Motor Co. 84 S.W.3d 198, 207 (Tex. 2002); Prudential Ins Co
o Am. v Fin. Review Servs. Inc. 29 SW3d 74, 77 (Tex. 2000), see also Hill v
Heritage Res Inc. 964 S.W.2d 89, 123 (Tex. App. El Paso 1997, pet.
denied)(interfering party must have actual knowledge of the existence of the
contract and of the plaintiffs interest or knowledge of such facts and
circumstances as would lead a reasonable person to believe in their existence).
Plaintiff failed to establish. by clear and specific evidence, that Appellant Lubow
tortiously interfered with any contract.
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Plaintiff alleges she had a valid employment contract, however, she never
presented any evidence of that alleged contract.
Plaintiff failed to present any clear and specific evidence of how any
defendant specifically, and defendant Lubow, in particular, attempted to or
supposedly succeeded in interfering with her employment contract. 1 Plaintiff also
failed to present any clear and specific evidence that Lubow proximately caused
her damage, i.e that he caused her to lose her job. In fact, the evidence she did
present was that she voluntarily resigned from her job. CR 1361, 1382; 27 CR
3229.
The only specific evidence that Lubow had any contact regarding Plaintiff's
work are his alleged conversations with Tanya Torrez and Melissa Montana. 42
CR 4883; 28 CR 3364-66. However, Plaintiff's own submission establishes that
Tanya Torrez worked with [Plaintiff] at Coastal Bend Center for Independent
Living (CBCIL) in Corpus Christi for several months during the years of2 6 and
2007. 42 CR 4883. However, Plaintiff's tortious interference claim is based
upon her having resigned from a different company, Superior Health Plan of
Corpus Christi, in 2011. 23 CR 2756. As such, testimony by Ms. Torrez,
Plaintiff's co-worker at CBCIL in 2006/07, cannot be clear and specific evidence
1 Plaintiff provides no specificity o f any alleged interference: she does not allege that shelost employment; that her compensation or benefits were reduced under the contract or that shewas not promoted or considered for promotion. See Church 's Brief at Section III. C.
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paragraph 3, are attributable to Lubow as well. 28 CR 2364-66. However, in order
to draw these conclusions, the court would have to employ inferences that the
man referenced in paragraph 4 and the person who sent items referenced in
paragraph 3 is the same man who arrived at Superior's offices in Corpus Christi
and started asking questions of the receptionist about Monique in paragraph 5 Id.
at ~ 4 But the court is not allowed to make such inferences. See e.g. Rehak
Creative Services Inc. v. Witt 404 S.W.3d 716, 726 (Tex.App.-Houston [14 h
Dist.] 2013)(establishing clear and specific evidence as an elevated standard
that excludes the use of presumption or inference). Even if the court could make
these inferences, Plaintiffs evidence is still not clear and specific evidence that
these events caused Plaintiff to lose her job. See generally TCPRC 27.005 c/
Plaintiff makes the bald statement that the Scientology operatives openly
followed me as I drove to and from work. 23 CR. 2755; 23 CR 2772 ~ 6
However, she fails to identify who the Scientology operatives were, and does not
identify Lubow specifically as following her to and from work. Id. In addition,
there is no evidence presented by Plaintiff that this alleged activity offollowing her
to and from work had any causal connection to her work and, in any way, supports
2 The Plaintiff would demand the court make further inferences that the declarations ofDocineKelly and Franklin Carle are evidence that Lubow tortiously interfered with Plaintiffs contractwith her employer Superior. However, these declarations again do not mention Lubow by nameor even by reference. 33 CR 3922; 33 CR 3923. Also, Ms. Kelly is Pla int iffs mother and Mr.Carle is Plaintiffs former husband, and they provide no evidence that they are n any wayassociated with Plaintiff allegedly losing her job.
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her tortious interference with contract claim. Again, there is such a lack of clarity
or specificity as is required by the anti-SLAPP statute. TCPRC 27 .005( c).
B. Plaintiff s Invasion o Privacy Claim for Intrusion Should BeDismissed.
Lubow adopts and incorporates by reference the arguments in Section III.B.
of the Church's Brief. TEX. R APP. P. 9.7.
Specifically, Plaintiff asserts an invasion of privacy claim for intrusion upon
seclusion and concedes she must prove: 1 the defendant intentionally intruded on
the plaintiffs solitude, seclusion or private affairs; 2) the intrusion would be highly
offensive to a reasonable person; and 3) the plaintiff suffered an injury as a result
of the defendant's intrusion. 23 CR 2748; See Valenzuela v Aquino 853 S.W.2d
512 (Tex. 1993); Jennings v Minco Tech Labs Inc. 765 S.W.2d 497, 500 (Tex.
App. Austin 1989, writ denied). Intrusion upon seclusion is generally
associated with either a physical invasion of a person's property or eavesdropping
on another's conversation with the aid of wiretaps, microphones, or spying.
Vaughn v Drennon 202 S.W.3d 308, 320 (Tex. App. Tyler 2006, no pet.).
There is no clear or specific evidence that Lubow invaded Plaintiffs
property as contemplated in Vaughn. Plaintiff details the Squirrel Busters'
supposed bad behavior. 23 CR 2757-59; 11 CR 1357-59, however, she concedes
the Squirrel Busters did not trespass on her property. 3 RR 200. The Squirrel
Busters confirm this. 2 CR 279, 290, 299-300. Plaintiff claims the Squirrel
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Busters were often lead by David Lubow, however, she provides no specific
evidence o f this and does nothing other than provide her personal, general
comments, that David Lubow would lead the Squirrel Busters. 23 CR 2772
~ 7 c But even that fails to provide any evidence that he lead them onto or in her
property.
The Plaintiff relies on Bert Leahy's testimony that Lubow supposedly said
that the Squirrel Busters wanted to make the Rathbuns' life a living hell. 2 CR
1516. Even i f this were true (which Lubow denies), this does not support any o f
the elements of invasion o f privacy for intrusion upon seclusion. Leahy provides
no evidence, much less clear and specific evidence, that any o f the Squirrel
Busters, or Lubow, individually, physically invaded the Plaintiffs property or that
the Squirrel Busters or Lubow eavesdropped using electronic devices, wiretap or
other spying methods. d.
Plaintiffs only attempt to specify Lubow's actions is her claim that Lubow
confronted me and my husband when we were trying to have a private dinner at
Nightlinger's Restaurant in Ingleside, Texas. 23 R 2773 ~ 7 g This is not the
invasion into a person's property as required n Vaughn. Vaughn v Drennon,
202 S.W.3d 308, 320. Rather, the alleged incident took place in a public
restaurant.
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cameras looking out from his property to adjoining property, and that such
surveillance did not constitute intrusion on privacy of adjoining owner).
In fact, the only specific evidence regarding Lubow is that he interviewed
Plaintiff's co-workers and family members either in person or over the telephone.
28 CR 3364-66; 33 CR 3923; 42 CR 4883. 3 This is not clear and specific evidence
so as to establish a prima facie showing against Lubow for invasion of privacy by
intrusion upon seclusion. TCPRC 27.005(c).
C Plaintiff s Invasion o Privacy Claim for Public Disclosure oPrivate Facts Should Be Dismissed.
Lubow adopts and incorporates by reference the arguments in Section liLA.
ofthe Church's Brief. Tex. R App. P 9.7.
Plaintiff asserts invasion of privacy by public disclosure of private facts and
admits she must prove 1) the defendant publicized information about the plaintiff's
private life; 2) the publicity would be highly offensive to a reasonable person; 3)
the matter publicized is not of legitimate public concern; and 4) the plaintiff
suffered an injury as a result of the defendant's disclosure. 23 CR 2748.
3
See Cornhill Insurance PLC v Valsamis 106 F.3d 80, 85 (5th Cir. 1997)(Fifth Circuitaddressed a claim for invasion of privacy where offensive comments and inappropriate advanceswere made toward the plaintiff and the court held that the plaintiff could not recover for invasionof privacy based on the intentional intrusion upon her solitude or private affairs because she didnot allege a physical invasion of a person's property or eavesdropping on another'sconversation with the aid of wiretaps, microphones, or spying ); see also Clayton v Wisener190 S.W.3d 685, 696-97 (Tex. App.-Tyler 2005, pet. denied) (reversing judgment in favor ofplaintiff on intrusion claim where no evidence that defendant physically invaded [the plaintiffs]property or eavesdropped on one of her conversations ).
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Plaintiff's claim for invasion of privacy by publication of private facts must
fail because the tort o f invasion o f privacy by publication of private facts requires a
plaintiff show that the defendant publicly disclosed true, but highly embarrassing
private facts about the plaintiff; that such publication was highly offensive to a
reasonable person; and that the matter publicized was not of public interest. Star
Telegram, Inc. v Doe, 915 S.W.2d 471,473-74 (Tex. 1995).
Plaintiff does not allege and has not set forth any evidence that Lubow or
any other Defendants publicized true, private facts about her, but rather, complains
that Lubow allegedly made comments regarding Marty Rathbun, which does not
give rise to a cause of action for Plaintiff. Id; 42 R 4883.
Plaintiff cannot establish that Lubow made facts about Mr. Rathbun public
as is required under Texas law, which requires dissemination of the private facts
to the public in general or to a large number o persons, as distinguished from
one individual or a few. WILLIAM L PROSSER, TORTS 117 4th Ed.). The
evidence presented by the Plaintiff is that comments about her husband were made
to 4 people: Doncine Kelly, Franklin Carle, Tanya Torrez and Melissa Montana.
33 R 3922; 33 R 3923; 42 R 4883; 28 CR 3364-66. This is too small a group
to constitute the public as required under Texas law. As it relates to Lubow,
only Ms. Torrez attributes the comments to Lubow. 42 CR 4883. Ms. Kelly
attributes the comments to someone else completely (reporter Jim Lynch). 33 R
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3922. Mr Carle and Ms. Montana cannot identify the person who made comments
to them about Marty Rathbun. 33 CR 3923; 28 CR 3364. Therefore, the only clear
and specific evidence is that Lubow asked questions about Marty Rathbun to only
I person, Ms. Torrez, and that disclosure, to that one person, is insufficient to
uphold a claim for public disclosure of private facts.
D. Plaintiff s Claim for Intentional Infliction o Emotional Distress
Should Be Dismissed.
Lubow adopts and incorporates the argument m Section III.D o f the
Church s Brief TEX R APP P 9.7.
Plaintiff makes a claim for intentional infliction of emotional distress and
admits she must prove: I) the defendant acted intentionally or recklessly; (2) its
conduct was extreme and outrageous; (3) its actions caused her emotional distress;
and ( 4) the emotional distress was severe. 23 CR 2748; Kroger Tex Ltd. P ship v
Suberu, 216 S.W.3d 788, 796 (Tex. 2006). Plaintiff also concedes that she can
succeed on an liED claim only i f there are no alternative causes of action that
would provide a remedy for the severe emotional distress she claims is caused by
the Defendants conduct. 23 CR 2748.
Plaintiff alleges that Lubow engaged in conversations with her co-workers
regarding Marty Rathbun. 42 CR 4883; 28 CR 3364-66. As noted in plaintiffs
petition, she makes claims against Lubow on these same facts for invasion of
privacy, public disclosure of private facts and in her claims for tortious interference
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with contract. 10 CR 1275. Because the Plaintiff uses these same actions by
Lubow in support of all her other claims, she is precluded from relying upon liED
as the gap-filler to seek damages for these alleged bad acts. See Creditwatch, Inc.
v Jackson, 157 S.W.3d 814, 818 (Tex. 2005) quoting Hoffmann-La Roche Inc. v
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)).
In addition, Plaintiffs allegations that Lubow engaged in conversations with
her co-workers or, by inference, her family members, do not rise to the level of
extreme or outrageous conduct as required to establish a claim for liED. Even i f
Lubow said all the things Plaintiff claims he did to her co-workers and/or family,
questions regarding Marty Rathbun s family and medical history are not so
outrageous or extreme as to give rise to a claim for liED. Such questions or
statements are like those of any investigative reporter. See Brewerton v
Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999)(mere insults, indignities, threats,
annoyances, petty oppressions or other trivialities do not constitute outrageous
behavior). Such conduct by Lubow, even i f true, would not meet the elements of
liED. As such, plaintiff has failed to provide clear and specific elements of liED
as it relates to Lubow or any other Defendant.
E Plaintiff Presented No Evidence to Support Vicarious Liabilityagainst Lubow for the Actions o any other Defendant
Lubow adopts and incorporates by reference the arguments in Section III.E
of the Church s Brief and in Section liLA of Drake s Brie TEX R Arr. P 9 7
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Plaintiff makes bald claims of vicarious liability in broad sweeping global
terms as between all the Appellants. 10 CR 1276-78. She asserts every possible
theory for vicarious liability whether recognized under Texas law or not. Id.
Pla intif fs vicarious liability theories include conspiracy concert o f action
assisting or encouraging or assisting and participating partnership joint enterprise
agency respondeat superior disregarding the corporate structure and ratification.
Id at 1276. Plaintiff fails to present any evidence on these elements. 23 R 2748-
69 Plaintiff also fails to separate out which theories are asserted against which
Appellants and fails to separate out which theories apply as between the various
Appellants. Such claims to not merit any credence.
More specifically Plaintiff cannot support many of the theories because they
require proof of an underlying tort or unlawful act or some injury caused to the
Plaintiff by the Defendant and Plaintiff has failed to establish any tort or unlawful
act or injury caused by Lubow. ee Section III supra. These include the theories
of civil conspiracy concert o f action assisting or encouraging or assisting and
participating joint enterprise and respondeat superior.
Plaintiff also does not assert disregarding the corporate structure as against
Lubow. 10 R 1277-78.
As to the theory o f partnership Plaintiff failed to present any evidence that
Appellants sought any pecuniary interest in their endeavors. 10 CR 1276-78.
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Finally, as to agency, Plaintiff asserts that the individual Appellants are
agents o f the Church 1 0 R 1277), but provides no evidence that the individual
Appellants are agents o f any other individual Appellants. ee generally 23 R
2748-69.
Plaintiffs claims for vicarious liability are just more evidence of Plaintiffs
broad, sweeping allegations that break down under scrutiny.
IV. THE DISTRICT COURT ERRED IN A WARDINGATTORNEYS FEES AND COURT COSTS AGAINST LUBOWAND IN FAILING TO AWARD HIM HIS FEES AND COSTS.
Lubow adopts and incorporates the argument in Section IV. of the Church s
Brief. TEX. R APP. P. 9.7.
CONCLUSION AND PRAYER
Appellant David J. Lubow prays that this Court reverse the trial court s order
which denies his Motion to Dismiss and awards fees and costs against him, grant
his Motion to Dismiss, and render judgment for him, dismissing all o f Plaintiffs
claims with prejudice and remanding for further proceedings concerning his claim
for attorneys fees and costs under the TCPA. Lubow prays for such other and
further relief to which he may be entitled.
June 11, 2014
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Respectfully submitted:
By: /s/ Stephanie S asconStephanie S BasconSBN 19356850
Law Office o f Stephanie S Bascon PLLC297 W San Antonio St.New Braunfels, Texas 78130830) 625-2940830) 221-3441 facsimile
ATTORNEY OR APPELLANTDAVID J LUBOW
CERTIFIC TE OF COMPLI NCE
Pursuant to TEX. R APP. P 9.4 i) 3), the undersigned hereby certifies thatthis Brief of Appellants complies with the applicable word count limitationbecause it contains 4648 words, excluding the parts exempted by TEX. R APP. P9.4 i) 1). In making this certification, the undersigned has relied on the word-countfunction in Microsoft Word 2007, which was used to prepare the Brief ofAppellants.
/s/ Stephanie S asconStephanie S Bascon
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CERTIFIC TE OF SERVICE
The undersigned certifies that on the 11th day of June, 2014, the foregoingBrief for Appellant David J. Lubow was served on the following attorneys inaccordance with the requirements of the Texas Rules of Appellate Procedure via
electronic filing or email.
Ray B. JeffreyA. Dannette MitchellJEFFREY MITCHELL P. C.2631 Bulverde Road, Suite 105Bulverde, TX 78163
Elliott S. CappuccioPULMAN CAPPUCCIO PULLEN
BENSON LLP2161 N.W. Military Hwy., 400San Antonio, TX 78213
J. Iris GibsonHAYNES BOONE LLP600 Congress Ave., Suite 1300Austin, TX 78701
0 Paul DunaganSARLES OUIMET
370 Founders Square900 Jackson StreetDallas, TX 75202
Ricardo Cedillo/ Isaac HuronDavis Cedillo MendozaMcCombs Plaza, Ste. 500
755 E. Mulberry Ave.San Antonio, TX 78212
George H. SpencerClemens Spencer112 E. Pecan St., Ste. 1300San Antonio, TX 78205
Marc F. WiegandTHE WIEGAND LAW FIRM P.C.434 N. Loop 1604 West, Suite 2201San Antonio, TX 78232
Lamont A. JeffersonHAYNES BOONE LLP112 E. Pecan Street, Suite 1200San Antonio, TX 78205-1540
Jonathan H. HullREAGAN BURRUS
401 Main Plaza, Suite 200New Braunfels, TX 78130
Bert H. Deixler.KENDALL BRILL KLIEGER
10100 Santa Monica Blvd., Suite 1725Los Angeles, CA 90067
Wallace B. JeffersonRachel EkeryALEXANDER DUBOSE JEFFERSON
TOWNSEND LLP515 Congress Avenue, Suite 2350Austin, TX 78701
Thomas S. LeatherburyMarc A. FullerVINSON ELKINS LLP
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Trammell Crow Center2001 Ross Avenue Suite 3700Dallas Texas 75201Telephone: 214.220.7792Facsimile: 214.999.7792
Eric M. LiebermanRABINOWITZ BOUDIN STANDARD
KRINSKY LIEBERMAN PC45 Broadway Suite 1700New York New York 10006Telephone: 212.254.1111Facsimile: 212.674.4614
/s/ Stephanie S asconStephanie S Bascon
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150 N. Seguin. Suite 317New Braunfels, Texas 78130
D ff iWA L D RI PPRESIDING JUDGE
830-221-1270Fax 830-608-2030
433RD JUDICIAL DISTRICT COURTCOMAL COUNTY
CAUSE NO. C2013-1082B
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D AV I D M ISC AVIGE, R E L I G I O U STECH N O LO G Y C E N T E R C H U R C HO F S CI EN TO LO G Y I N TERN ATI O N A L,STEVEN G R E G O RY S L O AT, M O N T Y D R A K E ,D AV E LU BO W A iK I A D AV ID .J. L A B O W, ANDE D BRYA N ,
DEFENDANTS
207TH .JUDICIAL D I S TRI CT
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ANTI-SLAPP M O T I O N S OF A L L D EF EN D A N TS F I N D I N G S O F FA C T AND CONCLUSIONSOF L AW & R ULING DENYING ALL A N T I S L A P P M O T I O N S T O D I S M I S S
FINDINGS OF F A C f
I. Defendant Church o f Scientology International ( CSf ' ) , by and through its
agents or contractors. including Defendants David Lubow, Monty Drake and Greg S l o a t ~
undertook extensive survei l lance o f Plaintiff and her husband over a collective period o f
more than four yea rs -poss ib ly six. Monty Drake actually began the investigation o f
Mark Rathbuo in 2007. ee Deposition o f Monty Drake at 52:16-19. He started
Page 1 of25
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several Squirrel Busters had video cameras and microphones o their o w n ~including
some with head-mounted c m e r s ~l i g h t s ~etc. From this point forward, it is clear, and the
Court so finds, that few i any ~ ~ c o n f r o n t a t i o n s .were civi l with both sides ei ther initiating
or reciprocating. See various declarat ions filed either in support o or in response to the
Anti-SLAPP motion to dismiss.
4. Defendant Ed Bryan was sent from California by the Office o f Special
Affairs ( OSA ), a division o f CSI, to join the Squirrel Busters in Texas. On July 13,
2011, Bryan wrote:
This is in co-ordinat ion with OSA Int They are cal l ing the shotsand quite frankly I don't think it is very effective. The reporters carneto our house the o ther day and we didn't tell them very much. Ourmain guy went back to discuss with them a different strategy. The ratis gett ing more brazen and yesterday I actual ly had a 1 minute c ommcycle wi th h im while he was on a walk. The guy is nuttier than afruitcake. He's gone off the deep end. Taking him down will be no easytask. _ . . . See Exh. E to Plaint iff 's 2nd Amended Response to AntiSLAPP Mot ions to Dismiss [emphasis added].
' [l]n the vicini ty o the Rathbun home/office, Joanne Wheaton ' regularly
participated in the Squirrel Buster activities [o]ver a period o several months.
See Declaration o Joanne Wheaton @ n 3 6. While doing so, a house was
rented by Lubow two b locks from the Rathbuns home/office for Wheaton and
other Squirrel Busters to stage their activities from which a golf cart was also
utilized to travel back and forth. d. @ IJ4. The participating individual Squirrel
Busters varied from t ime to t ime as they left and returned at different t imes for
different reasons. I d . @ 14. See also Affidavit o f Richard Hirs t@ IJ7.
A videographer, Bart Parr, was hired by private invest igator Dave, a.k.a.
David, Lubow to film the project at or near Rathbun 's office. See Declarat ion
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o f Bart Parr @ ll ll 4 6. The project occurred over a period o approximately 6
months. Id @ 6. Evidence identifies, and the Court so finds, the per iod o f t ime
o the Squirrel Buster act ivi ties as having started and ended, respect ively, in April
2011 and in September 2011. ee Affidavit o Richard Hirs t @ l1 10 and
Declaration o f Joanne Wheaton @ l1 14.
5. The investigators, videographers and Squirrel Busters interacted with the
Rathbuns many [possibly u h u n d . r e d s ~of] times over a period o f these several months,
usually when the golf cart was parked near their office [on a dead-end street when]
filming was o n g o i n g ~or [when] traveling about the little town u ee Declaration o f
Joanne Wheaton J 6. In a d d i t i o ~private investigator Monty Drake utilized
surveillance, p h o t o g r a p h i n g ~videotaping and static c a m e r a s ~to film areas ~ o u t s i d ethe
R a t h b u n s ~officclhomen in part from inside a second house rented by Drake across the
street from the Rathbuns. ee Affidavit o f Monte Drake @ l1 9. Without any t ime
l i m i t a t i o n ~Drake acknowledges that he was able ''to observe persons coming and going
from the R a t h b u n s ~office home.n ee /d For several months, when the Rathbuns left
their home, the Squirrel Busters group appeared in a golf cart to confron t the Rathhuns
with video cameras and taunts. ee Mark Rathbun Declaration in Support o f Plaintiff's
Second Amended Response to Defendants ' Motion to Dismiss l1 27. Due to bo th this
constant surveillance and the Squirrel Buster activity cited above. Defendants knew when
Plaintiff left home and when she was home alone due to her husband having left their
residence. ee First Amended Declaration o f Monique Rathbun in Support o f Plaintiff's
Hereinafter referred to as Mark Rathbun Declaration.
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Second Amended Response to Defendants ' Motion to Dismiss 3 'lf'lfll, l l a 11 b, l l c , 13a,
13c, 15, Sa and 15b. When her husband was out o f town, Plaintiff was visited at home
on several occasions b y unknown individuals who refused to give their names. I d . @ 5.
6 . Ber t Leahy was also hired a s a videographer for the Squirrel Busters
group. He was told b y Defendant Lubow that Lubow had two private investigators who
were engaged in surveillance o f Plaintiff and her husband and were able to keep track o f
the Plaintiff's movements on a 24n basis. See Declaration o f Bernard "Bert" Leaby lf6.
Leaby was directed by Lubow to film the Squirrel Busters taunting and harassing the
Rathbuns. /d Although denied by Lubow see Declaration o f David Lubow If 4), Leaby
declared to have been told that the purpose o f the Squirrel Busters ' mission was "to make
the Rathbuns life a living hell . and "to turn their neighbors against them . so that Plaintiff
and her husband would be forced f rom their residence. Id Leahy 's declarat ion i s
corroborated by u b o w ~ sstated desire to, in-part, create a documentary showing
[Rathbuo's] t rue n ture as violent, fuolish ' squirrel ' ." Declaration o f David Lubow@ If
12. Assisting in this process, CSI hired Ralph Gomez as "muscle." See Declaration o f
Bert Leaby @ lf6.
7. N o evidence demonstrates that any o f the complained-of Squirrel Buster
or investigative activities occurred at an actual church, at a mission, at a place of worship
or during any other type o f religious service or ceremony; rather, mo s t o f the c t i v i t i e s ~
including those cited by declarants for Defendant CSI, occurred at locations described by
the declarants as the Rathbuns' "home," ' ' h o u s e / ~' 'business/residence/ ' b u s i n e s s ~
"office," "home/off ice / ' or "office/home.'" See various declarations filed either in
support of o r in response to the Anti-SLAPP motion to dismiss.
3 Hereinafter referred to a s ' 'First Amended Declaration o f Monique Rathbun."
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8. Defendants published information from their Squirrel Buster activity and
continuous surveillance o f the Rathbuns on the internet, a dedicated YouTube c h n n e l ~
and on a website which included a section called Spy Corner that discuss ed
information obtained by the surveillance o f the Rathbuns. See Declaration o f Bart Par r@
If 15. See also Declaration o f Mark Rathbun @ If 28. Also published was information
about visitors to and from the Rathbun home creating a chilling effect upon Mark
athbun and possibly others. Id
9. At unspecified times subsequent to 2009 Plaintiff also received
anonymous and threatening phone calls, and she was followed to and from work. ee
First Amended Declaration o Mouique Rathbun If 6. Squirrel Busters and Scientology
investigators or operatives followed Plaintiff to and from restaurants. d , 7g. See a l so
Declaration o f Monte Drake @'If {Drake and others followed Rathbun's car ). See
also e.g. Declaration o f Joanne Wheaton @'If 7 (Mark a.k .a Marty Rathbun drove a
large pick-up truck. ). Plaintiff was similarly followed to and from shopping. See First
Amended Declaration o f Mouique Rathbun @ If 15a. She was similarly followed while
walking her dog. Id @ If 8. he Rathbuns were followed even when they took measures
to avoid being seen leaving their house. ee Declaration o f Mark Rathbun@ f 29.
10. Between September 2010 and December 2012, Lubow, a.k.a. David
Statter, interviewed and confronted Plaintiff's family friends. and co-workers
disparaging Plaintiff, her husband, and his family. See Declaration o f Franklyn R. Carle
@ If 4; Declaration ofTonya Torrez@ If 3; Declaration ofDoncine Kel ly@ If 3.
11. Seeking to avoid the harassment, embarrassment, disruption and extreme
distress imposed on her in the workplace while living in Ingleside on the Bay by
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Defendant Lubow and the other Defendants, Plaintiff gave notice on Apri l 1 2011, to her
then-employer thst she would leave her job at the e n d o f t h s t month. ee First Amended
Declaration o fMo n iq u e Rathbun@ a, l l b , l l c and l l d Mark Rathbun Declaration
@',P3 .
12. In October 2012, the Rathbuns discovered Drake ' s surveil lance cameras
aimed at their residence from a house across the street on the same cul-de-sac. ee Mark
Rathbun Declaration @ 1 28; First Amended Declaration o f Monique Rathbun @ 1 13
and 13a. Drake attested thoroughly that his surveillance and investigative efforts sought:
information concerning (a) crimes or wrongs done or threatened against CSI orother churches o f Scientology, (b) the identity, habits. conduc4 business,occupation, honesty, integrity, credibility, knowledge, activity, m o v m n t ~whereabouts. affiliations, associations, transactions, acts, reputation, or charactero f Rathbun and those associated with him, (c) the location, disposit ion andrecovery o f misappropriated or stolen Property or (d) securing evidence to beused before a court or for complaints to appropriate law enforcement. eeAffidavit o f Monte Drake@ 1 10. See also substantially similaraffidavit o f David Lubow @ 7.
13. The Rathbuns left the constant harassment and electronic surveillance in
Ingleside on the Bay by moving to a secluded homesite in Bulverde, Texas. ee First
Amended Declarat ionofMonique Rathbun@ 11 11 l la , l l c and 14.
14. The move caused the Rathbuns to lose 36,000 in lease/purchase equity in
their Ingleside on the Bay home. ee First Amended Declaration o Monique Rathbun @
11 11, Ia, l l c and 14.
15. In spite o efforts to find a secluded new homesite, Scientology agents
resumed tailing the Rathbuns in Bulverde and San Antonio, Texas, while Mark Rathbun
continued to ''counsel' Scientologists. ee First Amended Declaration o Monique
Rathbun @ 1 1 Sa; Declaration o f Mark Rathbun @ 1 32; The Rathbuns also discovered
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custom-adapted surveillance cameras in the woods behind their home in Bulverde. ee
First Amended Declaration o f Monique Rathbun @ 15, 15a; Declaration o f Mark
Rathbun @ 33. Defendant Sloat answered a phone call from Mark Rathbun using a
number found near the cameras. See Declaration o f Mark Rathbun @ 33. Sloat
acknowledges that he was hired to see who Mark Rathbun ~ w a sseeing (as] lients and
that the object o f [the investigation] was Mark Rathbun's associations and business
dealings. See Affidavit o f Steven Gregory S l o a t @ 5 11 [emphasis added].
16. After Plaintiff moved to Bulverde, Defendants' agents or contractors also
appeared at Plaintiff 's new place o f work and followed Plaintiff t the ladies room, and
the same individual also followed Plaintiff t the grocery store. ee First Amended
Declaration o f Monique Rathbun @ Sa.
17. Plaintiff has demonstrated that she has been personally harmed and injured
as a result o f these activities in both Ingleside on the Bay and Bulverde. ee First
Amended Declaration ofMonique R a t h b u n @ S 7d, 7h, l i b l i e Sa, 16, 16a.
18. O n August 16 2013, the Court issued a Temporary Restraining Order
against the harassment.
19. Plaintiff received counseling nd auditing services from Mark Rathbun.
See Affidavit o f Allan Car twr igh t@, 7 (quoting Mark Rathbun as justification to apply
tenn o f squirrel ). u r t h e r ~Plaintiff and her husband, Mark Rathbun, offered similar
services as a business for which they received monetary compensation. including auditing
services that are purportedly based on the ~ ''tech ( correctly applying Scientology
procedure ) and services offered by the Church o f Scientology ee Affidavit o f John
Allender @ 9 in support o f Defendants' Anti-SLAPP Motion. See Affidavit o f David
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L u b o w @ mf9 and 10. See Affidavit o f Allan Cartwr ight@ , 115 to 8, 10, 13, 15, 17, 23,
27, in support o Defendant CSl s Anti-SLAPP Motion. These business services were
offered n competition to similar goods or services offered by Defendant CSI s and/or its
missions or other affiliates in the Church Scientology. ee Defendant CSI s Motion to
Dismiss @ II 9, cit ing Affidavit o f Allan Cartwright @ mf to 8. See Affidavit o f
Defendant David L u b o w @ '1 10.
20. Both orally and in writing. Defendants have admitted, asserted and argued
that their activitiest directed at and having an effect upon Plaintiff, were connected with .
or in relation to, Mark Rathbun,s alleged involvement in offering unauthorized
Scientology services including auditing using protected Scientology ~ e c h n o l o g yn a
manner not approved by Defendant CSI and profiting from a business using such
services offered from and provided a4 his and Plaintiff s residence in Ingleside on the
Bay and Bulverde, Texas. ee citations in 17 19 above. ee al so Affidavit o f
Monte Drake @ 12. On February 4, 2014, counsel for Defendant CSI argued that the
Rathbun home was a place o business using Scientology practices for a fee that were
allegedly advertised on Craig s List. See Reporter s Transcript 146:22; 147:9; 151 :23;
and 158:6-159:8. Defendant CSI s Counsel implicit ly agreed, and the Court so fmds, that
investigating and protecting the value o th trademarks is a primary function and
responsibility o Defendant CSI as the exclusive licensee o f Defendant RTC s
trademarks. See /d @ 157:14-158:24 Page 2 o f Defendant CSI s Power Point court
presentation (copy attached).
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21. A s Defendant CSI asserts and argues, Mark R a t h b = ' s activity o f offering
Scientology services is a business. If s ~ the Church,s own activity o f offering
Scientology services is also a business.
22. The complained-of activity, which Defendants claim was inpart
documentary making, reporting, and protesting at Mark R a t h b = ' s office, was intended
to and/or did have an effect (be it posit ive o r negative--depending upon perspective) on a
specific audience o f consumers-pr incipally those interested in Scientology
technology, including Scientology members, former members such as Mark Rathbun,
and non-member users o f the technology such as Plaintiff. ee e.g. Affidavit o f Allan
Cartwright @ 11 11 23-24 (Although Cartwright also claims pamphlets were distributed to
ci t izens o f Ingleside, the evidence lacks weight and credibi l i ty due to his lack o f personal
knowledge coupled with the fact tha t no Squirrel Buster attested to such activity.);
Mfidavit o f David L u b o w @ '11'1111-12; Affidavit o f John Allender@ IJ IJ6-9; Declaration
o f Bart P a r r @ 11 11 5, 6, 8, 15; Declaration o f Joanne Whea ton@ '11'1 2-4, 6 10; First
Amended Declaration ofMonique Rathbun@ 'IJ'IJ7, 7a. 7b, 7c, 9, 10, l i d 13, J3a 14;
Declaration o f Mark Rathbun @ 11 11 28-30. Further, n o credible evidence from an un
interested witness indicates an intent by any o f the CSI defendants, collectively, to
genuinely inform the genera l public as their audience. While Scientologist Lubow does
aver that the purpose o f the documentary and protest was to educa te the general public,
he did so only after stat ing that the purpose was primari ly to educate other Scientologists.
ee Affidavit o f David Lubow @ II I I . ee also the substantially similar sentence i n
Declarat ion o f Jolm Allender @ , 6. s to his self serving statements, Allender 's
credibility is suspect in that he admits fil ing a fictitious public document wi th the City o f
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Campbell . California to create a business name for Squirrel Buster Productions.,. Id @
op
23. The primary reason CSI initiated the complained-of activity was to
investigate alleged infringement o f its intellectual property rights by both Mark and
Monique Rathbun allegedly occurring as early as January 29, 2009, i not before. ee
Affiddavit o f Allan Cartwright @ mf 6, 8, 17 and 27. ee Affidavit o Defendant David
Lubow @ II 6 ee a l so Deposit ion o f Monty Drake 52: 16-19 (investigation began in
2007).
24. No evidence indicates that ei ther Defendants CSI o r the Religious
Technology Center has ever sent Mark Rathbun a cease and desist letter or sued Mark o r
Monique Rathbun for infringement o intellectual property rights or any other cause o
action. See Declaration o Mark Rathbun @ 11 11 8 10 Although II 21 o Cartwright 's
Affidavit lists legal cases Mark Rathbun has been allegedly involved in regarding
Scientology in general (not admitted for the truth o the matters asserted), Cartwright
does not, in any o f his testimony, point to any litigation wherein CSI has sued Mark
Rathbun for any cause o action.
CONCLUSIONS OF L AW
. Any o the foregoing findings of fact that may be deemed to const i tute
conclusions o law shal l be so considered and any finding o fact that also constitutes a
conclusion o f law is adopted as a conclusion o law. Any conclusions o law below that
may be deemed to constitute findings o fact shall be so considered and any conclusion o
law that also const i tutes a finding o f fact is adopted as a finding o fact.
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2. Defendants seek dismissal under the Texas Citizen's Participation Act,
Tex. Civ. Prac. Rem. Code 27.001, et a/. (West Supp. 2013) (hereinafter, the
Act ). Under the Act, the Court has an equal duty to safeguard the const i tut ional rights
o f persons to petition,. speak f r e e l y ~associate freely and otherwise participate in
government to the maximum extent by law and, at the same t i m ~protect the r ights o f a
person to file meritorious lawsuits for demonstrable injury. See Tex:.Civ.Prac. Rem.
Co d e 27.002 (West Supp. 2013); Whisenhuntv. Lippincott, No. 06-13-00051-CV, 2013
Tex.App. LEXIS 12489, Slip o p @ 6 n l l (Tex .App.-Texarkana Oct. 9, 20 3,pet .
filed) (acknowledging that the Act has a stated dual purpose and th t courts must give
effect to all words so that none o f the statute's language is treated as s u r p l u s a g e ~ ) .
Further, the Court is required to liberally construe the entirety o f the Act. See
Tex.Civ.Prac. Rem. Code 27.011 (b) (West Supp. 2013).
3. The most efficient and judicious hierarchy o f the mandatory decisions to
be made by a court in applicat ion o f the Act is:
a) Does an exemption, with the burden o f proof resting on thenonmovant, preclude further application o f Chapter 27 pursuant toTex.Civ.Prac. Rem. Co d e 27.010 (West Supp. 2013)?;
4 Although the Act does not expressly assign the burden o f proof on the nonmovant. Texas lawgenerally requires the party seeking benefit o f a statutory exemption to prove the matter. See generally,Mcintyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) (doetor ' s burden to prove exemption fromemergency care statute). Several Texas Courts o f Appeals around the state have recently applied thisconcept to exemptions in the Act. See Pena v. Perel 417 S.W.3d 552, 555 (E1 Paso 2013, no. pet.);Newspaper Holdings, Inc. v. Crazy Hotel Assi$ted Living Ltd , 416 S.W.3d 71, 88p89 T e x . A p p . ~ H o u s t o n(1 '] 2013, writ fi led Mar. 5 2014) {on rehearing); Better Business Bureau o Metro. Dallas. Inc. v. B HDFW, Inc., 402 S .W.3d2 99 , 309 T e x . A p p . ~ D a l l a s2013, no pet.).
More problematic, h o w e v e r ~is determining the applicable yet legislatively-unspecified standard o fproof required to be shown b y the nonmovant while shouldering that burden. n cases o f exemptions thatare disfavored under the law (such as tax exemptions), the party seeking the exemption must, at trial,clearly show its entitlement thereto. See generally, First Baptist/Amarillo Foundation v Potter Co.Appraisal District, 813 S.W.2d 192, 195 (Tex .App.-Amari l lo 1991, no writ) (Chief Justice Reynoldsnoting standard for fact question o f entitlement to tax empt ion must b e clearly proven.); HammermanGaines, Inc. v. Bullock, 791 S.W.2d 330, n.2 T e x . A p p . ~ A u s t i n1990, no writ) (superseded by statute)(now-Chief Justice Jones citing 1979 Texas Supreme Court rationale for str ict construction o f taxexemptions that must be clearly shown with all doubts resolved against claimant.). Alternatively, other
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b) I f not, 5 is the legal action ~ b a s e don, relates to, o r is in response to aparty's exercise o f the right o f free speech, right to petition, or right o fassociation/ ' with the burden o f proof resting on the movant, pursuantto Tex.Civ.Prac. Rem. Code 27.003 (a) (West Supp. 2013) andapplicable definitions in Tex.Civ.Prac. Rem. Code 27.001 (WestSupp. 2013)?;
c) I f so, can the party bringing the legal action [establish] by clear andspecific evidence a prima facie case for each essential element o f theclaim in question pursuant to Tex.Civ.Prac. Rem. Code 27.005(c) (West Supp. 2013)?; and
d) I f so, can the moving party [establish] by a preponderance o f theevidence each essential element o f a valid defense to the nonmovantsclaim pursuant to Tex.Civ.Prac. Rem. Code 27.005 (d) (WestSupp. 2013 of
si tuations merit characterization o an exemption (or a n exception) as an affirmative defense wherein thelesser standard o p ro o f o a preponderance o evidence is utilized. See Pedigo v. Austin Rumba. Inc., 722F.Supp.2d 714, 722-24 (W.D.Tex. 2010) (Noting. as in the instant statute, the absence of legis lat ive intentto divert from the general rule, Juslice Nowlin cites 1974 U.S. Supreme Court authority generally holdingthat exemption under Fair Labor and Standards Act is an cif}irm tive defense and c i tes 1995 NorthernDistr ict o Texas authority requiring similar exemptions to be proven, at t rial , by a preponderance o heevidence. .
Since the legislatw'e did not evidence an intent to divert from the U.S. Supreme Court ' s generalrule and the stated purpose o the A
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4. Based upon the findings o fact, 7 the Court concludes that a preponderance
o f the evidence demonstrates that CSI and i ts agents are primarily engaged in the
business o f sell ing o r leasing goods or services consistent with the intent and meaning o
Tex.Civ.Prac. Rem. Code 27.010 (b) (West Supp. 2013). Other courts have made
similar findings and the result ing conclusions. See e .g . Hernandez v Comm r, 490 U.S.
680, 681, 685 (1989) (On f indings that: Th e Church charges a ' f ixed donation, ' also
known as a 'p r ice ' or a ' ftx:ed contr ibut ion, ' for part icipants to gain access to audit ing and
t raining sessions. These charges are set forth in schedules, and prices vary with a
session 's length and level o sophist icat ion: , th Supreme Court upheld the conclusion
that payments. which are the primary source o f income to missions, branches and
franchises o f the mother church, by Scientology patrons were not deductible
contr ibut ions due to receipt o considerat ion and benefits.); i at 692 (concluding that the
church .. categorical ly barred provision o f audit ing o r training sessions for free ); The
Founding Church o f Scientology o f Washington D.C. v. United States 409 F.2d 1146,
1159 (D.C. Cir. 1969) ( Within this literature is to be found only the most occasional
passing reference to the E meter; more often than not, the meter is not even mentioned in
these general works. Among these are the introductory works describing Scientology, and
it is presumably these works, i f any, which are pressed upon curious members o the
public in any effort which might be made to promote the sale o f Scientology services. ').
Accordingly, the evidence sufficiently establishes Scientology is primarily in business to
sell a good or service-----be it rel igious or otherwise.
7 For the purpose o f evaluating the evidence in support o f an exempt ion , 27.010 o the Tcx.Civ.Prac.Rem. Code (West Supp. 2013) does not require that the evidence considered be ~ c l e rand specific' as theAct does in 27.005 (c) for the purpose establishing a piima facie case for each essential element o f theclaim in question. Thus. the Act docs not preclude the Court. as to the exemption issues, from makingreasonable inferences and ded.l.lCtions from the evidence admitted.
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5 . Based upon the findings o f fact supported in-part by the Defendants ' and
movaots' test imony by Allender, Lubow, Cartwright and others, the Court concludes that
a preponderance o f the evidence demonstrates that the l i t igated conduct [arose] out o f
the sale o f goods, services, o r a commercial transactionn consistent with the
intent and meaning ofTex.Civ.Prac . Rem. C o d e 27.010 (b) (West Supp. 2013). As
investigator and avowed Scientologist David Lubow put it, ' Rathbun was engaged in
delivering Scientology services nd counseling at his office/home, for c o m p e n s a t i o ~
even though he h ad been expelled from the religion and possessed no religious authority
to provide Scientology services to anyone. Affidavit o f David Lubow @ 1 9. See also
Affidavit o f Monty Drake @ II 12. The Legal Director for CSI ' s Office o f Special
Affairs Allan Cartwright testified that:
The Rathbuns [ M a r k ~ sand Monique's] unauthorized counse ling practice [forhis u lndependent S c i e n t o l o g y ~services which is h o w h e earns his living] wasan immediate cause for concein (for those] charged with the protection o theScientology religion, all churches o f Scientology as well as these [sic] intellectualproperties nd the enforcement o f csr rights. This was a primary reason forcsrs decision to have counsel retain an investigator to help determine the natureand extent o f any possible infringements. Affidav it of Allao Cartwright @ 11 11 15
17.
But for the preponderate evidence o f Defendant CSI' s apprehension o f intellectual
property rights violations by fanner 20-plus year Scientology employee and now-
competitor Mark Rathbun nd his alleged sale o f unauthorized Scientology services, the
extensive-type o f commercial piracy investigation such as that declared by Drake and/or
Lubow, instigated as early as 2007, to protect CSI ' s primary business interests would
clearly not have occurred. See generally, Kinney. supra Slip op. @ 2 Memorandum
opinion) (general recitation o f reasoning o f CalifOrnia c ourt, in prior related litigation,
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regarding former employer a s a current competitor o f former employee and was
therefore exempt from [California] anti-SLAPP statute. ).
6. Based upon the f indings o f fact, the Court concludes that a preponderance
o f he evidence demonstrates that the majori ty o f the conduct and statements about which
Plaintiff complains was, by Defendants' own admissions ( in-part , testimony o f David
Lubow, John Allender, and Richard Hirst), intended to communicate to and to affect an
audience o f actual o r interested potent ial (current or former) customers o f the Church's
own sale o f services the Church 's displeasure with the competit ive commercial activities
o f Plaintiff and her husband. The evidence also preponderates in favor o f the conclusion
that the Squirrel Buster act ivi ty was -primarily designed to convey the message to other
Scientologist tha t the Rathbuns should stop being squirrels ' '--Qne who al ters standard
Scientology practice and delivers al tered Scientology counsel ing. ee Affidavit o f David
Lubow @ II If I I Tbe record is replete witb evidence showing it was CSI wbo
designed, initiated and funded both the investigations and the Squirrel Busters to
communicate chiefly to Scientology buyers and customers that the Rathbuns were;
offering a basterdized version o f Scientology to former members, nd seeking toentice parishioners to leave the faith with fulse assertions that his brand o f socal led Scientology w s more correct than standard Scientology delivered i nchurches. Affidavit o f David L u b o w @ II 10.
CSI's message to i ts consumers, by and tbrough its conduct nd statements, being, Pay
us for del ivering the good or se rv i ce -no t Rathbun. ' ' Further, the evidence also
sufficient ly estab l ishes that the ~ c o m m u n i c a t i o n - t h eextensive invest igat ions coupled
with the confrontat ional Squirrel Buster tactics, in fact, did reach and did affect some
individuals within its intended audience in one way o r another, including but not limited
to Plaintiff; Mark Rathbun, Mike Rimier, John Brousseau, Michael Fairman, Stephen
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Hall, David Lingenfel ter, Mercy Lingenfel ter, Mark a.k.a. M a t Pesch, Amy Scobee, and
Debbie Jean Cook as well as Allan Cartwright, Joanne Wheaton, Richard Hirst, David
Lubow, John Allender, and E d Bryan.
7. s such, Defendants' motions are precluded by the provision of the Texas
Citizen,s Participation Act exempting from reach o f the statute legal actions brought
against persons ' 'primarily engaged n the business o f selling or leasing goods or services,
i f the statement o r conduct arises out ~ th e 8 sale o r lease o f goods, services, or a
conunercial t ransact ion in which the intended audience is an actual or potent ial buyer or
customer. Tex. Civ. Prac. Rem. C o d e 27.010(b) (West Supp. 2013).
8. Additionally or altematively, the Court concludes that a preponderance o f the
evidence demonstrates that the complained-of act ions caused Plaintiff bodily injury as
defined by Texas law. ~ B o d i l yinjury includes uphysical pain, illness, or any
impairment o f physical condition. Tex. Penal Code 1.07(8) (West Supp. 2013). In
Zurich American Ins. Co. v Nokia, Incorp., 268 S.W.3d 487, 492 (Tex. 2008), then-Chief
Just ice Wallace Jefferson wrote for the Court and e l d ~without regard to the merits, that
biological injuries o r effects [qualified] as bodily injury, from a pleading construct n
an insurance duty-to-defend case. While the Court noted that the ~ ~ b o d i l yinjury
definition unambiguously requires an injury to the physical structure o f the human
body, id citing Trinity Universal Ins. Co. v Cowan, 945 S.W.2d 819, 823 (Tex. 1997),
it l ikened and found sufficient allegations that 'radio frequency radiation causes an
8 Defendant CSI argues this provision requires that it. c s r must have been the person (or entity) t havesold or leased 'the . good or service from which lhe litigated statement or conduct flowed. T o apply such aconstruct would necessarily limit appJication o f the Act to being a one-way street. Applying the Act nsuch a fashion inherently gives a preference to the one party over another which would be contrary to thestated purpose o f the Act that a court balance the respective rights o f the litigants and would be contrary tothe premises o f standard statutory construction as stated by the Third Court o f Appeals n its recentconsideration o f the Act. Kinney v. BCG Attorney Search Inc No. 0 3 ~ 1 2 - 0 5 7 9 - C V ,Slip op. @ 3(Tex .App.-Aust in , Aug. 21, 2013, pet. ) Memorandum Op.) (citations omitted).
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adverse cellular reaction and/or cellular dysfunction ('biological injury ') to allegations
of ~ s u b c l i n i c a ltissue damage that results on inhalation o f a toxic substance such as
asbestos. Zurich supra 492-93 (quoting Guar. Nat / Ins. Co. v Azrock Indus. Inc.
211 F.3d 239, 245, 250 (5' Cir. 2000)).
9. The definition o f bodily injury is broad enough to cover [a]ny physical pain,
however minor. Garcia v State, 361 S.W.3d 683, 688 (Tex.Crim.App. 2012) cit ing
Laster v. State, 215 S.W.3d 512, 524 (Tex.Crim.App. 2009). n Garcia, supra, the Court
noted as to the merits that a fact finder may infer that a victim actually felt or suffered
physical pain because people o common intelligence understand pain and some o the
natural causes o it.'' d Taking instruction r o ~both the Supreme Court s nd Court o f
Criminal Appeals respective pleading and merits decisions on what qualifies as ubodily
injury,'' the exception embodied in 27.010 (c) is not, as suggested n CSI s
Supplemental Memorandum in Support o f Anti-SLAPP Motion at - { 10, restricted to
claims arising directly from a trawnatic event. Rather, the definition is broad enough to
include claims supported by sufficient evidence demonstrating physical martifestations o f
pain, anxiety, emotional distress, stress, illness or other impairment o f condition
regardless o the mechanism o injury.
10. Plaintiff sufficiently established by a preponderance o f the evidence that
she suffered stress, anxiety and fear that resulted in severe headaches, including
migraines with debilitating pain due to the surveillance o investigators and Squirrel
Busters--she further attested that as a result o these activities she suffered an extreme
gagging nausea, nd Plaintiff averred she developed a hyper-sensitivity to light and was
Wlable to eat or concentrate due to the headaches. See e.g. Declaration o Monique
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Rath b u n @ ll ll7d, l l c l i d 15a 16a. Accordingly, Defendants ' motions are precluded
by the provision o f the Texas Citizen?s Participation Act exempting from the reach o f the
statute legal action[s] seeking recovery for bodily injury.' Tex.Civ.Prac. Rem. Code
27.010 (c) (West Supp. 2013).
11. Assuming solely for tbe sake o f argument that neither the commercial
exemption nor the bodily injury exemption preclude application o f the Act, the Court will
address as succinct ly as possible the pert inence o f whether Plaintiff 's legal action is
based on, relate to, or are in response to Defendants ' exercise o f the right o f free speech,
right to petition, or right o f association. ee Tex.Civ.Prac. Rem. Code 27.003 (a)
(West. Supp. 2013). Following the granunatical syntax and structure o f this statute, no
party to this l i t igat ion disputes that the current dispute is a legal act ion. Next , the focus
is whether that act ion i s based on, relates to, or is in response to ' ' e f e n d a n t s ~freedoms
o f expression. f ~ did the Defendants meet their burden o f p ro o f regarding the
exercise o f the right o f free speech, right to petition, o r right o f associationn as defined
by 27.001, Tex.Civ.Prac. Rem. Code (WesL Supp. 2013)? Th en and only then
would a court need to go further in the analysis regarding the adequacy o f the
nonmovants' proof on the essential elements, etc. See generally Conclusion o f a w ~
3.
12. Regardless o f the merits o f her claims seeking damages in tort for personal
injury? Plaintiff 's pleadings sufficiently and legally allege common law tort causes o f
action, in-part, for bodily injury. t has been said that one person 's rights end where
another's nose beg ins-mean ing . in the converse, that the farther and farther one intrudes
into the space o f another, the more diminished are the rights o f the intruder. So too is it
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tort liability and precluded recovery o f the jury verdict on such common law torts by the
fallen marine s family. Snyder supra@ 1220.
15. Several salient points arise from Snyder: a) the necessary balance o f the
rights in question was determined post-discovery, post-trial and post-verdict; b) Chief
Just ice Roberts explici t ly expressed the narrowness o f the C ourt s ruling noting certain
inapplicable exceptions due to the instant facts; and c) Justice Breyer wrote s e p r t e l y ~
concurring, to emphasize that the effect o f the majority opinion was to be restricted to the
matter before the C o u r t - t h e picketing at-hand. See generally Snyder s u p r a @ 1217-
21
16. Stifling sufficiently pleaded causes o f action alleging tortuous conduct and
seeking personal injury damages, prior to d isco v ery -p r io r to t r i a l p r i o r to verdict, on
th extremely broad or outside chance that the competing interests are ubased on, related
to or in response t o , s ome form o freedom o f expression would have a chil l ing effect on
potentially meritorious litigation whereby the end might. all too easily, unjustifiably
control the means. What then to avoid such an absurd effect upon the balance o f the
rights o f all litigants? Otherwise stated. how might our jurisprudence adequately achieve
the proper balance between the rights granted under both the First and Seventh
Amendments? Considering Chief Justice RoberCs methodology in Snyder supra and
heeding Justice Breyer s admonition on the limited effect o f th majority opinion
factually. prudence dictates that this Court examines th instant record to ascertain
potential applicability o f the important exceptions that th Chief Justice noted were not
factually in-play in Snyder. I f th record reveals a bona f ide situation or circumstance,
i.e. is there a genuine fact quest ion or not wherein any o f the potential exceptions noted
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by the Chief Just ice might be in-play here, Plaintiff 's Seventh Amendment Right to a jury
trial, i.e. the means cannot, prior to d isco v ery -p r io r to tr ial--prior to verdict , be
preemptively overridden by the Defendants' First Amendment Rights to freedom o f
expression, i.e. the end. See generally Snyder s u p r a @ 1215 f ~ r e eSpeech Clause o f
the First Amendment . . . can serve as a defense in state tort s u i t s - i t goes without debate
that a udefense is asserted only after a Plaintiff is allowed the opportunity to present her
case factual ly to a jury) [emphasis added].
17. For the l imited purpose o f this inquiry, the Court presumes that the
Defendants' expressions o f speech, petition and association e r e ~to the extent necessary,
public in nature. The first exclusion from First Amendment protections noted by Chief
Just ice Roberts i s speech that is either obscene o r likely to inci te a fight. Snyder supra
n.3. Plaintiff has alleged and factual ly asserted publication by Defendants o f bizarre
and vile statements about her. First Amended Declarat ion o f Monique Rathbun f
12. Both parties have asserted that the other sought to pick fights w ith one another
during the mult iple confrontat ions at issue, and Defendants hired a body guard or
muscle'' due to their apprehension o f Mark Rathbun 's alleged propensi t ies for violence.
18. Another potent ial exception noted by the Chief Just ice i s speech, which
al though given a public label a t :t-.rst blush, is determined to be contrived to insulate
from liability on a t ruly private issue. Snyder. supra@ 1217. Clearly at issue here and
yet to be de termined subsequent to discovery, etc. is the extent to which the freedoms