Monique Rathbun v. Scientology: Reply Brief of Appellant CSI

8/11/2019 Monique Rathbun v. Scientology: Reply Brief of Appellant CSI

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ORAL ARGUMENT REQUESTED September 16, 2014

No. 03-14-00199-CV

______________________________________COURT OF APPEALS

THIRD JUDICIAL DISTRICT OF TEXASAUSTIN, TEXAS

______________________________________

CHURCH OF SCIENTOLOGY INTERNATIONAL,

Appellant,

v.

MONIQUE RATHBUN,

Appellee.

______________________________________

REPLY BRIEF OF APPELLANT

CHURCH OF SCIENTOLOGY INTERNATIONAL

______________________________________

On Appeal from the 207th Judicial District Court

of Comal County, TexasTrial Court No. C-2013-1082B

Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding

______________________________________Of Counsel:

Eric M. Lieberman

RABINOWITZ, BOUDIN, STANDARD,KRINSKY & LIEBERMAN PC

45 Broadway, Suite 1700New York, New York 10006

Telephone: 212.254.1111

Facsimile: [email protected]

Thomas S. Leatherbury

State Bar No. 12095275Marc A. Fuller

State Bar No. 24032210VINSON & ELKINS LLP

Trammell Crow Center2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

Telephone: 214.220.7792Facsimile: 214.999.7792

[email protected]@velaw.com

A

03-14-0

THIRD COURT OF

AUSTI

9/16/2014 3:

JEFFREY


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Ricardo G. CedilloState Bar No. 04043600

Isaac J. HuronState Bar No. 24032447

Les J. Strieber IIIState Bar No. 19398000

DAVIS, CEDILLO & MENDOZA, INC.McCombs Plaza, Suite 500

755 E. Mulberry AvenueSan Antonio, Texas 78212


[email protected]@lawdcm.com

[email protected]

George H. Spencer, Jr.State Bar No. 18921001

CLEMENS & SPENCER112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531Telephone: 210.227.7121


Attorneys for Appell ant Chur ch of Scientology I ntern ational
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

RECORD REFERENCES ...................................................................................... viiINTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................4

I. The TCPAs Commercial Speech and Bodily Injury Exemptions DoNot Apply ........................................................................................................4

A. Plaintiffs Overbroad Interpretation of the Commercial SpeechExemption Ignores the TCPAs Plain Meaning....................................4

B. Plaintiff Does Not Dispute that Her Interpretation of the Bodily

Injury Exemption Would Eviscerate the TCPA................................11II. The TCPA Applies to Plaintiffs Causes of Action ......................................12

A. The TCPA Protects the Churchs Exercise of the Right of FreeSpeech................................................................................................13

B. The TCPA Protects the Churchs Exercise of the Right ofAssociation. .......................................................................................14

C. The TCPA Protects the Churchs Exercise of the Right toPetition...............................................................................................16

D. Plaintiff Cannot Avoid Application of the TCPA by Pointing toSome Activities that Might Be Outside the Scope of the Statute .......19

III. Plaintiff Cannot Satisfy Her Prima Facie Burden for Any of Her ClaimsAgainst the Church ........................................................................................21

A. Plaintiff Fails to Identify Any Statements by the Church thatWould Support a Claim for Publication of Private Facts....................22

B. Plaintiff Has Presented No Clear and Specific Evidence of anActionable Intrusion into Her Seclusion.............................................23

C. Plaintiffs Tortious Interference Claim Is Legally Deficient andUntimely..............................................................................................26

D. Plaintiffs Reliance on the Gap-Filler Claim of Intentional

Infliction of Emotional Distress Finds No Support in Texas Lawand Violates the First Amendment......................................................27


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IV. Plaintiff Cannot Save the Trial Courts Erroneous Fees Award ...................30

CONCLUSION AND PRAYER .............................................................................30

CERTIFICATE OF COMPLIANCE.......................................................................32

CERTIFICATE OF SERVICE ................................................................................33


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iii

INDEX OF AUTHORITIES

Cases

Aisenson v. Am. Broad. Cos.,

220 Cal. App. 3d 146 (1990)................................................................................25

Cain v. Hearst Corp.,878 S.W. 577 (Tex. 1994)....................................................................................22

Conley v. Driver,175 S.W.3d 882 (Tex. App.Texarkana 2005, pet. denied) ..............................28

Cornhill Ins. PLC v. Valsamis, Inc.,106 F.3d 80 (5th Cir. 1997)..................................................................................24

Creditwatch, Inc. v. Jackson,

157 S.W.3d 814 (2005) ........................................................................................28

Deteresa v. Am. Broad. Cos., Inc.,

121 F.3d 460 (9th Cir. 1997)................................................................................24

Dickens v. Provident Life & Acc. Ins. Co.,

117 Cal. App. 4th 705 (2004) ..............................................................................16

Doe v. United States,

83 F. Supp. 2d 833 (S.D. Tex. 2000) ...................................................................23

Dove Audio, Inc. v. Rosenfeld, Meyer & Susman,47 Cal. App. 4th 777 (1996) ................................................................................18

Draker v. Schreiber,271 S.W.3d 318 (Tex. App.San Antonio 2008, no pet.)..................................27

First Natl Bank of Eagle Pass v. Levine,

721 S.W.2d 287 (Tex. 1986)................................................................................27

Fox Searchlight Pictures, Inc. v. Paladino,

89 Cal. App. 4th 294 (2001) ................................................................................21

Gen. Conf. Corp. v. McGill,

617 F.3d 402 (6th Cir. 2010)..................................................................................9

Haight Ashbury Free Clinics, Inc. v. Happening House Ventures,184 Cal. App. 4th 1539 (2010) ..................................................................... 20, 21

Hairston v. S. Methodist University,No. 05-11-00860-CV, 2013 WL 1803549 (Tex. App.Dallas April 30,

2013, pet. denied).................................................................................................28


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Hajek v. Bill Mowbray Motors, Inc.,645 S.W.2d 827 (Tex. App.Corpus Christi 1982), revd on other

grounds, 647 S.W.2d 253 (Tex. 1983).................................................................15

Hoffman-La Roche Inc. v. Zeltwanger,

144 S.W.3d 438 (Tex. 2004)................................................................................27Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc.,

515 U.S. 557 (1995).............................................................................................15

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988)...............................................................................................29

In re Miscavige,

No. 13-14-00091-CV, 2014 WL 35586767 (Tex. App.Austin July 17,2014).......................................................................................................................1

James v. Calkins,No. 011300118CV, 2014 WL 4100692 (Tex. App.Houston [1st

Dist.] Aug. 21, 2014, no pet.)...............................................................................16

Jose Carreras, M.D., P.A. v. Marroquin,339 S.W.3d 68 (Tex. 2011)..................................................................................11

Joseph Burstyn, Inc. v. Wilson,343 U.S. 495 (1952).............................................................................................14

Kinney v. BCG Attorney Search, Inc.,No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.Austin Apr. 11,

2014, pet. filed) ..................................................................................................6, 7

Kramer v. Downey,

680 S.W.2d 524 (Tex. App.Dallas 1984, writ refd n.r.e.) ....................... 24, 25

Kroger Tex. Ltd. P'ship v. Suberu,216 S.W.3d 788 (Tex. 2006)................................................................................29

Living Faith, Inc. v. Commissioner,950 F.2d 365 (7th Cir. 1991)..................................................................................5

Mann v. Quality Old Time Serv., Inc.,

120 Cal. App. 4th 90, 15 Cal. Rptr. 3d 215 (2004)..............................................20

Moore v. Charles B. Pierce Film Enters., Inc.,

589 S.W.2d 489 (Tex. Civ. App.Texarkana 1979, write refd n.r.e.)..............23

Murdock v. Pennsylvania,

319 U.S. 105 (1943)...............................................................................................4


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NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,745 F.3d 742 (5th Cir. 2014)................................................................................10

Operation Rescue-Natl v. Planned Parenthood of Houston & Se. Tex., Inc.,

975 S.W.2d 546 (Tex. 1998)................................................................................26

Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,133 Cal. App. 4th 658 (2005) ..............................................................................20

Salma v. Capon,161 Cal. App. 4th 1275 (2008) ............................................................................20

Shipp v. Malouf,No. 05-13-01080-CV, 2014 WL 2873887 (Tex. App.Dallas June 24,

2014, motion for rehearing) .................................................................................11

St. Louis Union Trust Co. v. United States,

374 F.2d 427 (8th Cir. 1967)..................................................................................5Standard Fruit & Vegetable Co. v. Johnson,

985 S.W.2d 62 (Tex. 1998)..................................................................................27

Star-Telegram, Inc. v. Doe,915 S.W.2d 471 (Tex. 1995)................................................................................22

Swerdlick v. Koch,721 A.2d 849 (R.I. 1998) .....................................................................................25

Tex. Lottery Commn v. First State Bank of DeQueen,

325 S.W.3d 628 (Tex. 2010)................................................................................11Tichinin v. City of Morgan Hill,

177 Cal. App. 4th 1049 (2009) ............................................................................16

Vaughn v. Drennon,

202 S.W.3d 308 (Tex. App.Tyler 2006, no pet.) .............................................23

Victoria Bank & Trust Co. v. Brady,811 S.W.2d 931 (Tex. 1991)................................................................................26

Village of Schaumberg v. Citizens for Better Environment,

444 U.S. 620 (1980).............................................................................................24Statutes

26 U.S.C. 170..........................................................................................................6

26 U.S.C. 501(c)(3 ..............................................................................................4, 5

Tex. Civ. Prac. & Rem. Code Ann. 27.001(1)......................................................14


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Tex. Civ. Prac. & Rem. Code Ann. 27.001(7)............................................... 10, 13

Tex. Civ. Prac. & Rem. Code Ann. 27.001(7)(B) ................................................13Tex. Civ. Prac. & Rem. Code Ann. 27.001(7)(E) ................................................10

Tex. Civ. Prac. & Rem. Code Ann. 27.005(b)..................................................3, 15

Tex. Civ. Prac. & Rem. Code Ann. 27.005(c)........................................................3

Tex. Civ. Prac. & Rem. Code Ann. 27.005(d)........................................................3

Tex. Civ. Prac. & Rem. Code Ann. 27.010(b)....................................................4, 6

Tex. Civ. Prac. & Rem. Code Ann. 27.003-.005................................................30

Other AuthoritiesI.R.S. Gen. Couns. Mem. 36,784 (July 9, 1976)........................................................6

RESTATEMENT (SECOND) OF TORTS: Publicity Given to Private Life 652D

(1977) ...................................................................................................................23


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RECORD REFERENCES

The reporters record will be cited as follows:

[Vol.]RR[page]

The clerks record will be cited as follows:

[Vol.]CR[page]

The supplemental clerks records will be cited as follows:

[Vol.]SCR[page]


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1

INTRODUCTION

Plaintiffs Brief is long on hyperbole and rhetoric, yet short on legal analysis

and evidence. 1 Plaintiff fails to respond to several key arguments, effectively

conceding that (1) Plaintiff and her husband are public figures and therefore

Defendants communications about them relate to Defendants right of free speech

under the TCPA; (2) Plaintiffs claim for invasion of privacy by publication of

private facts is barred by the statute of limitations and is improperly based upon the

alleged publication of facts about her husband, not her; (3) Plaintiffs claim for

intentional interference with contract is also barred by the statute of limitations,

and she fails to allege or prove that any act of the Church proximately caused her

employer to breach her contract, or even that such a breach occurred. Moreover,

Plaintiff can marshal only a conclusory paragraph or two in support of her claims

for intrusion and intentional infliction of emotional distress. Not surprisingly, she

fails to cite a single case supporting her claim that the Churchs acts were

outrageous under Texas law.

1Plaintiffs Brief contains numerous inaccurate and unsupported factual assertions. The Church

points out only a few of Plaintiffs more serious misstatements here. Moreover, any suggestion

that this Courts decision in In re Miscavige, No. 13-14-00091-CV, 2014 WL 35586767, *1

(Tex. App.Austin July 17, 2014), contains any finding that is inconsistent with the Churchsdiscussion of the record evidence in this case misreads the Miscavige decision. But see

Plaintiffs Brief at 5 & n.10.


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Plaintiffs Brief also is analytically unsound because it confuses two sets of

issues. First, Plaintiff fails to distinguish between the actions of the Squirrel

Busters and the actions of the private investigators. The Squirrel Busters activities

took place intermittently over a five-month period in 2011, 2 and consisted of

protests and filming of documentary videos. The Squirrel Busters publicly

communicated their disapproval of Marty Rathbuns religious activities, carried

signs, and openly attempted to film, confront, and question the Rathbuns in public

places.

The private investigators actions, in contrast, were undertaken to

investigate, not to protest or confront. The investigators did not seek out the

Rathbuns in public places to film or question them; indeed, Plaintiff emphasizes

that she and her husband were not even aware of Monty Drakes presence until

October 2012. See Plaintiffs Brief at 15.3 Rather, the private investigators were

retained and operated to determine the extent to which Rathbun engaged in

improper or unlawful activities that would require or justify complaints to law

2Plaintiffs claim that the Squirrel Busters actions took place for 199 days is misleading. That

figure is the total number of days from when the Squirrel Busters first questioned Rathbun until

the final day of their activities. But for most of those days, the Squirrel Busters were not present

or did nothing. Not counting these periods of inactivity, the Squirrel Busters conducted protestsand/or filming for a total of 49 days. 34CR4128-29.

3Plaintiffs assertion that Drake began surveillance of the Rathbuns in 2007. 17CR2056, see

Plaintiffs Brief at 9, is not supported by her record citation and is inaccurate. In 2007, counselfor the Church retained Drake to conduct an investigation, which lasted a day or two, to

determine whether rumors of Marty Rathbuns demise were accurate. 21CR2507-08.


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enforcement authorities or other legal actions by the Church. Thus, although the

activities of the Squirrel Busters and the activities of the private investigators are

all protected and non-actionable, they implicate different provisions of the TCPA.

Second, Plaintiff ignores the statutory framework of the TCPA and conflates

the distinct issues of (i) whether the TCPA applies and, if so, (ii) whether it

requires dismissal of Plaintiffs claims. The threshold issue is guided by specific

statutory definitions and criteria, which Plaintiff and the trial court wholly ignore.

This analysis does not consider whether a defendants potential First Amendment

defense will prevail on the merits, but rather only whether the plaintiffs legal

action is based on, relates to, or is in response to such activities and thus whether

the TCPA applies. TCPA 27.005(b). Plaintiffs repeated attempts to argue the

merits of the Churchs First Amendment defenses in discussing whether the TCPA

applies are contrary to the statutes structure and operation.

Once a defendant shows that the plaintiffs legal action is based on, relates

to, or is in response to its rights of free speech, association, or petition, the Court

must then analyze whether the TCPA requires dismissal of the action. This

requires the Court to determine whether the plaintiff has presented clear and

specific evidence to support each essential element of her claims. Id. 27.005(c).

In addition, the Court must determine whether the defendants First Amendment

and other defenses nevertheless bar the plaintiffs claim. Id. 27.005(d).


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Plaintiffs failure to properly distinguish among the precise steps required by

the TCPA fatally undermines her claims.

ARGUMENT

I. The TCPAs Commercial Speech and Bodily Injury Exemptions Do

Not Apply.

A. Plaintiffs Overbroad Interpretation of the Commercial Speech

Exemption Ignores the TCPAs Plain Meaning.

The commercial speech exemption provides that the TCPA does not apply

to a legal action brought against a person primarily engaged in the business of

selling or leasing goods or services. TCPA 27.010(b) (emphasis added). The

plain meaning of this language renders the exemption inapplicable here: churches

are not primarily engaged in the business of selling or leasing goods or services,

and their parishioners cannot be described as buyer[s] or customer[s]. See

Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943) ([T]he mere fact that the

religious literature is sold by itinerant preachers rather than donated does not

transform evangelism into a commercial enterprise.) (internal quotation marks

omitted).

The IRS recognizes the Church as a tax-exempt church. The Church is not

primarily engaged in business at all, and its exempt status necessarily

recognizes that its exclusive activity is in furtherance of its religious purpose.

Plaintiff misreads the Internal Revenue Code in arguing that 26 U.S.C. 501(c)(3)

only inquires into an organizations purpose and that the TCPA, in purported


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contrast, inquires about activities. Plaintiffs Brief at 29-30 (original emphasis).

That is not what 501(c)(3) says, and not what the IRS found with regard to the

Church. The section states that tax-exempt status applies to organizations

organized and operatedexclusively4 for religious, charitable [or other specified]

purposes . . . 26 U.S.C. 501(c)(3) (emphasis added). And the IRS has

specifically stated that its recognition of the Churchs exempt status was based on

evidence that your funds are dedicatedto the purposes listed in section 501(c)(3)

10CR1232 (emphasis added), and that CSI was organized and operated

exclusively for charitable and religious purposes. . . . 10CR1235 (emphasis

added). In contrast, an organization that is operated primarily for commercial

purposes is not eligible for exemption.5 To come within the TCPAs commercial

speech exemption, a defendants primary activity must be the conducting of a

commercial business, a conclusion that would be fundamentally at odds with the

Churchs exempt status.6

4The term exclusively has been interpreted to mean primarily orsubstantially. Treas. Reg.

1.501(c)(3)-1(c)(1) (2013). St. Louis Union Trust Co. v. United States, 374 F.2d 427, 431 (8thCir. 1967) (Blackmun, J.).

5

See Living Faith, Inc. v. Commissioner, 950 F.2d 365, 370 (7th Cir. 1991), and cases citedtherein.

6Plaintiff cites several cases based upon the IRSs earlier denial of tax exempt status to a no

longer active Scientology church, the Church of Scientology of California, for the years 1970-72.

Following that action, the churches of Scientology, including the newly-formed CSI, applied for

recognition under 26 U.S.C. 501(c)(3). The IRS conducted an exhaustive review of thepurpose and activities of all Scientology churches, and, in 1993, recognized that all of them


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Second, the exemption applies only when the statement or conduct for which

the plaintiff sues arises out of the sale or lease of goods or services, or arises out

of a commercial transaction in which the intended audience is an actual or

potential buyer or customer. TCPA 27.010(b). But Plaintiff is not suing for

statements arising out of the sale or lease of goods [or] services or a

commercial transaction. With respect to the Squirrel Busters, Plaintiff is suing for

alleged harassment; with respect to the private investigators, Plaintiff is suing

because of alleged invasion of privacy. No commercial transaction or sale is

involved, and neither the Squirrel Busters nor the private investigators actions

involved the sale of goods [or] services or a commercial transaction. See, e.g.,

37CR4414-20; 38CR4471-73, 4479-81.

Third, Plaintiff argues that Kinney v. BCG Attorney Search, Inc., 2014 WL

1432012, at *6 (Tex. App.Austin Apr. 11, 2014, pet. filed), is distinguishable

because the statements in that case were not made with the intent and purpose to

persuade actual or potential customers to purchase the defendants products or

services. Plaintiffs Brief at 26. But this is no distinction at all. Here, as in

satisfied the statutes and regulations entitling them to exempt status. The IRS also recognized

that payments made in anticipation of participation in Scientology religious practices, such asauditing and religious training, were entitled to deduction under 26 U.S.C. 170, Rev. Rul. 93-73, 1993-2 C.B. 75, in the same manner that it permits deductions for mandatory tithes, dues,

Jewish High Holy Day tickets, Catholic Mass offerings, and other payments to other churches.

See Rev. Rul. 68-432, 1968-2 C.B. 104; Rev. Rul. 70-47, 1970-1 C.B. 49; Rev. Rul. 77-160,1977-1 C.B. 351; Rev. Rul. 78-366, 1978-2 C.B. 241; I.R.S. Gen. Couns. Mem. 36,784 (July 9,

1976).


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Kinney, the statements and conduct of the Squirrel Busters and private

investigators were not designed to convince customers to purchase services.

Instead, the Squirrel Busters responded to Rathbuns years-long attacks on the

Church. Plaintiffs statement that Rathbun never mounted an aggressive and

defamatory attack with a manifest intent to destroy the Church as alleged in CSIs

Brief, Plaintiffs Brief at 10, is incomprehensible in light of the record. Rathbun

has published three books to that end. 33CR3986. Rathbun posted a blog in which

he charged that the Church has been unfaithful to the memory and policies of L.

Ron Hubbard, Scientologys founder, and has departed from and corrupted

Scientology practices.7 Id. In addition, he posted 78 YouTube videos attacking the

Church. 33CR3985; 9RR62. Rathbun posted 31 Factors attacking the Church on

his website in imitation of Luthers 95 Theses. 33CR3986. He conducted

numerous media interviews, often from his house, and traveled to Germany to

participate in a press conference attacking the Church. 33CR3984-85. He has

encouraged Scientologists to leave the Church and to take Church property and has

called for the Churchs demise. 33CR3987. Indeed, on March 18, 2013, Rathbun

7The Church submitted evidence of Rathbuns blog postings attacking the Church and its

leadership consisting of 25 binders and 1181 postings. 3RR44; 9RR63. Plaintiff contributed tothe blog and monitored its content, and the blog included a link entitled News About Monique.

6CR779; 33CR3986.


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announced he was more than halfway through a five-year crusade to oust and

replace the current Scientology leadership. 37CR4347.

The Church and other Scientologists have First Amendment rights to

respond to the Rathbuns. These include the Squirrel Busters right to protest on the

public streets outside the premises from which Rathbun conducted his activities,

including producing his videos, conducting his interviews of others, and giving

press interviews. 14RR Ex. 1. Such activities cannot be characterized as mere

attempts to convince customers to purchase goods and services.

Nor were the private investigators activities related to the sale of products

or services. The investigators did not seek out the Rathbuns in public places to

film or question them; indeed, Plaintiff and her husband were not even aware of

their presence until October 2012. See Plaintiffs Brief at 15. Rather, the private

investigators were retained and operated to determine the extent to which Rathbun

engaged in improper or unlawful activities that would require or justify complaints

to law enforcement authorities or other legal actions by the Church. The Church

had several good reasons, having nothing to do with attempted sales of goods or

services, to retain investigators for that purpose. See infraat 17-19.

In particular, Rathbun openly misrepresented himself to the public as

providing Scientology religious services. 33CR3982-83. To the Church and to

an orthodox Scientologist, such acts are heretical, and undermine the central


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purpose of the Church and the religion: to provide for the salvation of its

parishioners and to create, according to Scientology doctrine, a world of peace and

freedom. In Scientology, as in other orthodox religions, only standard and

approved participation in Scientology practices can provide such salvation.

33CR3983-84; 34CR4110-11; 2SCR83-84, 86.

To protect itself and its parishioners against such deceptive practices, the

Church has registered trademarks, which prohibit others from creating confusion

among adherents and the public by passing off heresy as orthodox religious

practices. Such use of neutral civil property laws is permitted under the First

Amendment. See, e.g.,Church of Scientology Intl v. Elmira Mission of Church of

Scientology, 794 F.2d 38, 45 (2d Cir. 1986) (recognizing the validity of the Church

endeavoring to protect its trademarks to avoid confusion among Scientologists and

potential Scientologists); cf. Gen. Conf. Corp. v. McGill, 617 F.3d 402, 416 (6th

Cir. 2010) (Seventh Day Adventist Church entitled to summary judgment against

renegade pastors use of Churchs trademarks). But a churchs protection of its

trademarks or other intellectual property cannot be understood or characterized as

an effort to stifle commercial competition,8 and it does not convert the church

8The trial court sustained the Churchs relevance objection to Rathbuns statement I have held

true to my published representation that I am not in competition with defendants . . . ,15CR1859, yet grounded its denial of the Churchs motion on supposed commercial competition,


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into a commercial enterprise. To any church, including CSI, the stakes are much

higher. Despite the district courts characterization, the Churchs message to its

parishioners was not the crass statement, pay us, . . . not Rathbun. 31CR3768.

Rather, the Churchs message, like that of religions throughout history, was Only

through adherence to strict Scientology orthodoxy can you achieve salvation for

yourself and peace and harmony for the world.

Finally, Plaintiffs broad construction of the commercial speech exemption

conflicts with TCPA 27.001(7)(E), which states that speech regarding a good,

product, or service in the marketplace is protected by the TCPA. Clearly, the

Legislature did not intend that all speech involving goods or services in the

marketplace be exempted from the sweep of the TCPA. Thus, the commercial

speech exemption must be construed narrowly to avoid rendering 27.001(7)(E)

meaningless. At its core, the commercial speech exemption should be limited to

claims challenging the advertisement of a partys goods or services. See Churchs

Brief at 17-18.9 At a minimum, the commercial speech exemption cannot apply to

a church that is primarily engaged in religiousnot commercialactivities, and it

29CR3508-19. This despite Rathbun stating that he has moved beyond Scientology and no

longer considers himself a Scientologist. 33CR3938-39.9

Not surprisingly, the only case where the commercial speech exemption was applied

involved advertisements. See NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,745 F.3d 742, 753-55

(5th Cir. 2014) (law firms advertisement to prospective clients fell within commercial speechexemption). Promoting the Church as the only true provider of Scientology differs

fundamentally from a law firms soliciting clients to earn legal fees.


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cannot apply where the underlying speech and conduct is centered on a

theologicalnot a commercialdispute.

B. Plaintiff Does Not Dispute that Her Interpretation of the Bodily

Injury Exemption Would Eviscerate the TCPA.

The Church showed that the trial courts overly broad interpretation of the

TCPAs bodily injury exemption would allow a plaintiff to avoid the statute

merely by alleging that a defendants conduct caused physical manifestations of

emotional distress, such as nausea or headaches. See Churchs Brief at 20-23.

This would render the TCPA useless in combating even the most paradigmatic

SLAPP claims, such as defamation. Id. at 23. 10 Plaintiff does not shy away

from such an outcome. But she fails to explain how it could have been the

Legislatures intent to create a statute aimed at protecting First Amendment rights,

only to draft an exemption that renders it ineffective for that purpose. See Tex.

Lottery Commn v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)

(Courts do not lightly presume that the Legislature may have done a useless

act.). Texas courts have rejected interpretations of statutes that would have fatally

undermined the purpose of the statute. See, e.g., Jose Carreras, M.D., P.A. v.

Marroquin, 339 S.W.3d 68, 73 (Tex. 2011).

10In several recent cases under the TCPA, courts of appeal have discussed the standards for

proving mental anguish in a defamation caseswithout any suggestion that allegation of such

damages somehow robs the defamation claim of the TCPAs protections. See, e.g., Shipp v.

Malouf, 2014 WL 2873887, *5-6 (Tex. App.Dallas June 24, 2014, motion for rehearing filed).


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To avoid eviscerating the TCPA and defeating the Legislatures purpose,

this Court should decline Plaintiffs invitation to construe the bodily injury

exemption so broadly that it applies to situations where a defendant allegedly

causes emotional harm that manifests itself in physical ways. Rather, the Court

should recognize that, by exempting claims based on bodily injury, wrongful

death, or survival, TCPA 27.010(c), the Legislature intended to exclude only

those causes of action for which physical harm is the gravamen of the claim

battery, assault, wrongful death, survival, etc. This is the plain and logical

construction, and the only one that harmonizes the statutory language with the

Legislatures clear intent.

II. The TCPA Applies to Plaintiffs Causes of Action.

The Court must determine whether the Plaintiffs claims are based on,

related to, or in response to the Churchs exercise of the rights of free speech,

association, or petition. The TCPA provides a statutory roadmap for determining

these threshold questions. Plaintiffs arguments repeat the district courts errors by

ignoring the statutory definitions and instead arguing the merits of the Churchs

First Amendment defenses. But at this threshold stage, the merits are not at issue.

Using the proper statutory standards, the TCPA applies to Plaintiffs claims.11

11Plaintiffs claims are based on, related to or in response to all three criteria: speech,

association, and petition. But because each of Plaintiffs claims incorporates all of her


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13

A. The TCPA Protects the Churchs Exercise of the Right of Free

Speech.

Plaintiff contends that the Churchs speech on which she bases her claims

was not on matters of public concern. Plaintiffs Brief at 39. This argument

ignores the statute. The TCPA defines the term matter of public concern to

include any issue related to, inter alia, community well-being or a public figure.

TCPA 27.001(7). The Church demonstrated that the Rathbuns are public figures.

See Churchs Brief at 29-32. Plaintiff ignores this point, thus conceding it.

Because communications about any public figure are a matter of public concern

under the TCPA, the Churchs statements about Plaintiff and her husband

constituted the [e]xercise of the right of free speech TCPA 27.001(3), and

because Plaintiffs claims substantially are based on these statements, they are

subject to the TCPA. Similarly, all statements by the Church regarding the

Rathbuns attacks on and threats to the well-being of the Scientology

community fall within the TCPAs definition. TCPA 27.001(7)(B).

Plaintiff also argues that the TCPA does not apply because her claims have

nothing to do with any communication by the Church. This assertion blinks

reality. The TCPA broadly defines the term communication to ensure that it

encompasses all forms of expression: Communication includes the making or

allegations, the Church need only show that Plaintiffs claims relate toany one of these criteria.

SeeSection II(D).


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14

submitting of a statement or document in any form or medium, including oral,

visual, written, audiovisual, or electronic. TCPA 27.001(1). The Squirrel

Busters activities clearly fall within this broad definition. They engaged in

numerous communications in public, challenging and criticizing Rathbun. In

addition, the Squirrel Busters activities were devoted to gathering audio-visual

materials to produce (making) videos for public distribution, which they did. It

is long past the time where it could be argued that the production and distribution

of videos and movies is not within the protection of the First Amendment. Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). Moreover, the investigators

communicative activities in gathering information, as well as their reporting back

to the Church about their findings, clearly constitute communications within the

meaning of the TCPA.

B. The TCPA Protects the Churchs Exercise of the Right of

Association.

Plaintiff argues that her claims do not relate to the Churchs exercise of the

right of association because any communications by the Church purportedly

resulted in a deprivation of [her] right to be left alone and thus, [the Churchs]

actions are not protected by the First Amendment. Plaintiffs Brief at 42-43. But

this argument again confuses the threshold issue of whether the Churchs actions

fall within the TCPAs definition of right of association with the question of


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15

whether the Churchs actions ultimately are protected from liability under the

common law or the First Amendment.

The threshold issue is one of statutory interpretation, and it does not require

analysis of the merits of Plaintiffs claims. The TCPA defines [e]xercise of the

right of association as a communication between individuals who join together to

collectively express, promote, pursue, or defend common interests. TCPA

27.001(2). Under this definition, the Court need only decide initially whether the

Church was engaged in such communications.

Here, given the broad definition of communication, 12 which includes

conduct such as the making of a documentary (e.g., a film), much of what

Plaintiff challenges, including the Squirrel Busters activities, qualifies as a

communication between individuals who join together to collectively express,

promote, pursue, or defend common interests. TCPA 27.001(2). Accordingly,

those claims are based on, relate[] to, or [are] in response to the Churchs

exercise of the right of association. Id 27.005(b).

12Courts have long recognized that conduct can be communicative, and therefore protected

speech. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S.

557, 569 (1995) (The protected expression that inheres in a parade is not limited to its banners

and songs, however, for the Constitution looks beyond written or spoken words as mediums ofexpression.); Hajek v. Bill Mowbray Motors, Inc., 645 S.W.2d 827, 829 (Tex. App.Corpus

Christi 1982),revd on other grounds, 647 S.W.2d 253 (Tex. 1983).


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C. The TCPA Protects the Churchs Exercise of the Right to

Petition.

In arguing that the pre-petition use of investigators is not covered by the

right to petition in the TCPA, Plaintiff again ignores the text of the statute. Cf.

James v. Calkins, No. 011300118CV, 2014 WL 4100692, *8 (Tex. App.

Houston [1st Dist.] Aug. 21, 2014, no pet.) (Appellees argue that that these

actions cannot be constitutionally protected, but the cases they cite do not apply the

TCPA . . . .). The TCPA requires only that the investigative activities pertain[]

to a judicial proceeding, or that they be in connection with and are likely to

encourage consideration or review of any petition to an executive or

administrative body, such as a law enforcement agency. TCPA 27.001(4). There

can be no doubt that pre-suit investigation pertain[s] to a potential judicial

proceeding and may be in connection with and likely to encourage

consideration of any complaints or petitions to law enforcement agencies.

Although Texas courts have yet to address the issue, California courts have

held that legitimate pre-petition investigation is covered by that States similar

anti-SLAPP statute. See, e.g., Tichinin v. City of Morgan Hill, 177 Cal. App. 4th

1049, 1071 (2009). Moreover, where the investigation relates to a matter before a

governmental body or law enforcement, it is well established that the anti-SLAPP

petitioning protections apply. See, e.g., Dickens v. Provident Life & Acc. Ins.

Co., 117 Cal. App. 4th 705, 708-09 (2004) ([A] defendants alleged participation


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in procuring a criminal prosecution against a plaintiff falls within the ambit of the

anti-SLAPP statute.).

Plaintiff attempts to avoid these authorities and the plain language of the

TCPA by characterizing the Churchs description of the investigation as pre-

petition investigation as a sham. See Plaintiffs Brief at 44-46. But the facts of

this case cannot support a sham finding. First, if the investigation was not

preliminary to a possible petition to the judiciary or government authorities, what

purpose would it have served? Plaintiff acknowledges that the investigators acted

in secret and that she did not even learn of Drakes investigation until April 2012

or of Sloats investigation until July 2013, and then accidentally in both cases.

34CR4180-81. Certainly, the investigation could not have constituted

harassment, as Plaintiff asserts, if it remained unknown to her.

Second, the Churchs investigation was justified and proportionate to its

legitimate interests. While the Church did investigate Rathbuns unlicensed use of

its trademarks, including his offering of Scientology services, that was far from

the sole reason for its investigation. The Church was also concerned about the

threatenedand actualtheft of its documents and proprietary information, and

the Church intended to, and did, petition law enforcement for protection by

reporting evidence of such thefts. 33CR4012; 34CR4067-75; 10CR1204. The

private investigators who conducted legal surveillance were legitimate parts of the


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Churchs efforts to protect its rights in civil courts and to assist law enforcement in

protecting the Church against criminal acts.

Plaintiffs attempt to portray the Churchs use of private investigators as

mere pretext for alleged harassment ignores Rathbuns repeated provocations and

incitements to tortious and criminal actions against the Church:

In 2004, Rathbun left the Church. 1CR148. For years, no oneheard from him, and the Church did nothing to determine his

whereabouts or activities. 33CR3982.

In 2007, the Church hired licensed investigator Drake todetermine the truth of a rumor that Rathbun had died. After a

few days, Drake reported that Rathbun was still alive and thusceased his investigation. 21CR2507-08.

In early 2009, after the Church learned that Rathbun was

advertising Scientology services, the Church hired Drake toinvestigate potential trademark violations. 2CR298-99. The

Church retained counsel to draft a complaint and provide a

detailed legal memorandum analyzing whether or not to bring alawsuit, but ultimately decided not to file suit.13 33CR4007-08.

In April 2010, Rathbun was cited for trespassing at the

Churchs facility in Clearwater, Florida. 2CR247.

Later that month, former staff member John Brousseau left the

Church, stealing computer files and delivering them directly to

Rathbun. 10CR1204.

13That decision, however, cannot render the investigation itself as a sham. See, e.g., Dove

Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 780 (1996) (law firminvestigation protected even though prosecution for which firm was gathering evidence was

never filed).


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On August 26, 2010, Rathbun posted a message on his blog,

encouraging Church staff members to leave the Church and to

steal documents and deliver them to Rathbun. 4CR531-32.Shortly thereafter, Church staff member Daniel Montalvo left

the Church, taking with him five computer hard drivescontaining confidential human resources and proprietary

information. 4CR534-36. Montalvo took the stolen drives to ahouse in Los Angeles, where Rathbun apparently received him.

Id.

Through 2011 and 2012, Rathbun continued to attack theChurch and participate in numerous lawsuits against the

Church, either as a consultant or a witness. 1CR79-80.

On October 25, 2012, Rathbun again publicly encouragedChurch staff members to steal documents and bring them to

him. 14RR Ex. 2.

Just over one month later, in early December 2012, theRathbuns moved to Comal County. 14CR1709-10. Early the

next year, as Rathbun continued his attacks, the Church hiredGregory Sloat to set up a surveillance camera on Rathbuns

driveway. 2CR302-03. That surveillance lasted until July 2013.

2CR304.

In short, there is no factual or legal basis for Plaintiffs attempt to deny the

Church protection under the TCPA for its legitimate activities in support of its

right to petition.

D. Plaintiff Cannot Avoid Application of the TCPA by Pointing to

Some Activities that Might Be Outside the Scope of the Statute.

Plaintiff argues that, even if some of the acts about which she complains are

protected under the TCPA, the Church cannot invoke the statute if other acts might

not come within the definitions of free speech, association or petition. Plaintiffs


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Brief at 43. This argument would enable any plaintiff to avoid the TCPA simply

by including in her legal action some claim (meritorious or not) that is outside the

protection of the statute. While no Texas cases have yet addressed this issue, the

California courts, addressing the similar California anti-SLAPP statute,

resoundingly have rejected the argument:

Where, as here, a cause of action is based on both protectedactivity and unprotected activity, it is subject to [the anti-SLAPP

statute] unless the protected conduct is merely incidental to theunprotected conduct.

Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App.

4th 1539, 1551 (2010) (internal quotation marks omitted) (quoting Peregrine

Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,133 Cal. App. 4th 658,

672 (2005)). See alsoMann v. Quality Old Time Serv., Inc.,120 Cal. App. 4th 90,

104, 15 Cal. Rptr. 3d 215 (2004) (because the defendants reports to government

agencies formed a substantial part of the factual basis for defamation and trade

libel claims, the claims were subject to the anti-SLAPP statute even though also

based on unprotected statements);Salma v. Capon, 161 Cal. App. 4th 1275, 1287

(2008) (mixed causes of action are subject to a motion to dismiss under the anti-

SLAPP statute if at least one of the underlying acts is protected conduct).

The rule articulated by the California courts is both rational and necessary to

preserve the statute from avoidance and abuse:
http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2015745254http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2015745254http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2015745254http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2015745254http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=7047&FindType=Y&SerialNum=2004646439


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A. Plaintiff Fails to Identify Any Statements by the Church that

Would Support a Claim for Publication of Private Facts.

Plaintiff fails to address three fatal flaws in her public disclosure of private

facts claim: 1) that the claim is barred by the statute of limitations, 2) that to

sustain this cause of action, she must show that the Church disclosed true, highly

embarrassing private facts about her, and 3) that disclosure must be to the public,

not to a few isolated individuals. See Churchs Brief at 38-41. In support of her

claim, however, Plaintiff argues only that Church investigators allegedly told her

friends and family false information about her husband and private information

about herhusbands family. Plaintiffs Brief at 55 (emphasis added).14

These allegations are insufficient to support a cause of action on behalf of

Plaintiff. First, false statements cannot give rise to a claim for publication of

private facts. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995) (elements

of tort); see also Cain v. Hearst Corp., 878 S.W. 577, 580 (Tex. 1994). Second,

14Plaintiff claims that the Church published information about her on unidentified websites.

Plaintiffs Brief at 17. There is no evidence that the Church was responsible for any such

publications, and no such website was introduced into evidence. Plaintiff first claims that a

website made false and derogatory statements about her (was hypnotized, was a sex deviant,

was a man with a sex change ). Id. These are alleged false statements, so cannot constitutedisclosure of private facts. Second, Plaintiff alleges that the Church published information on a

website with a section called Spy Corner including information about Mrs. Rathbunsexercise and eating habits, and her unsuccessful efforts to bear a child, citing as support herhusbands declaration (40CR4700) and her own testimony (3RR100-01). Id. But her husbands

declaration says nothing to support the allegation. And her own cited testimony, which the court

disallowed as hearsay (3RR105), says nothing about Spy Corner or surveillance; she testifiedthat she found false statements on the internet that she was really a man with a sex change

operation, and that is why she could not have children, nothing about exercising or eating habits.


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Plaintiff cannot assert a claim based on statements that are about her husband and

other people. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489,

491 (Tex. Civ. App.Texarkana 1979, write refd n.r.e.). Third, the publication of

a statement to a few friends and family members does not amount to the publicity

necessary to support a private facts claim. SeeRESTATEMENT(SECOND) OF TORTS:

Publicity Given to Private Life 652D, cmt. a (1977) (Thus it is not an invasion

of the right of privacy . . . to communicate a fact concerning the plaintiffs private

life to a single person or even to a small group of persons.). For these reasons,

Plaintiffs publication of private facts claim must be dismissed.

B. Plaintiff Has Presented No Clear and Specific Evidence of an

Actionable Intrusion into Her Seclusion.

Plaintiffs attempt to satisfy her prima facie burden on her claim for

intrusion into seclusion fails for lack of clear and specific evidence of actual

trespass or similarly invasive conduct. Intrusion into seclusion is generally

associated with a physical invasion of a persons property. Vaughn v. Drennon,

202 S.W.3d 308, 320 (Tex. App.Tyler 2006, no pet.); see Doe v. United States,

83 F. Supp. 2d 833, 840 (S.D. Tex. 2000) (referring to intrusion claim as a quasi-

trespass tort). But Plaintiff does not identify any trespassphysical or virtual.

Indeed, Plaintiff admitted that there was no trespass. 3RR178-79; 4CR503. No one

entered her house, eavesdropped on her private conversations, or obtained any

images that were not otherwise visible from public property. 3RR178-79;


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24

2CR279, 290, 299-300; 4CR496, 499. Even unwelcome conductvisits to her

front door, filming in public, and even following herdoes not amount to

actionable intrusion into seclusion. See Village of Schaumberg v. Citizens for

Better Environment, 444 U.S. 620, 628-32 (1980) (door-to-door proselytizing

protected by First Amendment, reviewing cases of protected religious

proselytizing); Deteresa v. Am. Broad. Cos., Inc., 121 F.3d 460, 465-66 (9th Cir.

1997) (rejecting intrusion claim based on reporters unauthorized taping of

conversation at plaintiffs front door); Cornhill Ins. PLC v. Valsamis, Inc., 106

F.3d 80, 85 (5th Cir. 1997) (denying recovery for invasion of privacy involving

offensive comments and inappropriate advances because plaintiff did not allege a

physical invasion of a persons property).

Plaintiff citesKramer v. Downey, 680 S.W.2d 524 (Tex. App.Dallas 1984,

writ refd n.r.e.), arguing that the persistent following of a person can give rise to

an intrusion into seclusion claim. See Plaintiffs Brief at 54. But a cite with no

discussion is all that Plaintiff can make of the case, which is clearly distinguishable

and has only rarely been cited in subsequent cases. InKramer, the Dallas Court of

Appeals allowed private-figure plaintiff to recover for invasion of privacy against

the defendant, who after an extra-marital affair, stalked and harassed the plaintiff

in public places. 680 S.W.2d at 525. The court acknowledged that its ruling was a


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25

novel one, and a dissenting justice called the case the classic example of hard

facts make bad law. Id.at 526 (Storey, J., dissenting).

Most importantly, Kramer has never been applied in a case involving a

public figure or speech on a matter of public concern. This is not surprising, as

allowing a plaintiff to assert an intrusion claim for newsgathering, protest, or

other protected activities on public property would violate the First Amendment.

Courts regularly reject intrusion claims where reporters and filmmakers do not

engage in any virtual or physical trespass. See Churchs Brief at 42-44 (citing

cases). See also Swerdlick v. Koch, 721 A.2d 849, 857 (R.I. 1998) (no intrusion

where defendant took photographs and recorded events that were taking place

outside of plaintiffs house. . . , in full view of their neighbors and of any other

members of the public who may have been present); Aisenson v. Am. Broad. Cos.,

220 Cal. App. 3d 146, 162-63 (1990) (rejecting intrusion claim by plaintiff who

was videotaped by reporter from across the street, as plaintiff was in full public

view). Because Plaintiff is unable to point to a single case extending Kramerto a

factually similar situation, this narrow and undeveloped exception cannot save her

claim.

Plaintiff also argues that the Squirrel Busters actions are not protected

against her privacy claim because they were directed to Plaintiff in her home and

therefore resulted in a deprivation of Mrs. Rathbuns right to be let alone.


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26

Plaintiffs Brief at 43 & n.26. But Plaintiffs home was also the place from which

she and her husband conducted their anti-Scientology activities, which were the

target of the protest and the documentary. See Churchs Brief at 56. Rathbun

cannot insulate himself, or his wife, from protest or inquiry merely by choosing to

live where he works. There simply was no other location, like an office, at which

the Squirrel Busters activities could occur.

In Operation Rescue-Natl v. Planned Parenthood of Houston & Se. Tex.,

Inc., 975 S.W.2d 546 (Tex. 1998), anti-abortion protesters demonstrated at

abortion clinics and near the homes of doctors who performed the abortions. The

Court upheld the protesters right to demonstrate not only at the clinics, but also

within close proximity to the doctors residences. Id. at 568-69. Indeed, the

doctors homes were separate from the clinics, in contrast to this case. Id.at 550.

C. Plaintiffs Tortious Interference Claim Is Legally Deficient and

Untimely.

Plaintiff simply ignores the fatal defects in her tortious interference claim.

The Church has shown that there was no evidence that any contract between

Plaintiff and her former employer was breached, let alone that the Church

proximately caused such breach. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d

931, 939 (Tex. 1991) (requiring intentional act that was proximate cause of breach

of contract). Even if such evidence existed, her claim is barred by the two-year

statute of limitations that governs tortious interference claims. First Natl Bank of


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27

Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986) (two-year limitations

period). Plaintiff makes no effort to address either issue, failing to identify any

clear and specific evidence of any breach of contract caused by the Church or of

the timeliness of her claim. Thus, Plaintiffs tortious interference with contract

claim should be dismissed.

D. Plaintiffs Reliance on the Gap-Filler Claim of Intentional

Infliction of Emotional Distress Finds No Support in Texas Law

and Violates the First Amendment.

While protesting that hers is not a gap-filler claim, Plaintiff confirms that

the alleged facts on which she relies for her IIED claimthe surveillance, the

harassment, and the critical statementsare the same facts she cites in support

of her other claims. See Plaintiffs Brief at 52. This strategy has been rejected.

See Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); see

also Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).

Having asserted three other torts based on these same facts, Plaintiff cannot fall

back on IIED as consolation when her other claims fail. See Draker v. Schreiber,

271 S.W.3d 318, 322 (Tex. App.San Antonio 2008, no pet.) (Thus, if the

gravamen of a plaintiffs complaint is another tort, a claim for intentional infliction

of emotional distress claim will not lie regardless of whether the plaintiff succeeds

on, or even makes the alternate claim.).


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28

Plaintiff cites Conley v. Driver, 175 S.W.3d 882, 888 (Tex. App.

Texarkana 2005, pet. denied), for the proposition that she may recover for IIED

even if the actors conduct also produces some other harm. Plaintiffs Brief

at 53. But, as that court described in detail, Conley involved two separate claims

arising fromentirely separate acts: one for sexual assault, and one for intentional

infliction of emotional distress arising from acts other than the sexual assaults.

175 S.W.3d at 886. Here, in contrast, Plaintiff alleges the exact same acts as the

predicate for all four of her causes of action. 23CR2749-65; Plaintiffs Brief at 52-

56.

Even if Plaintiffs claim were not barred by the gap-filler doctrine, she

fails to cite clear and specific evidence of conduct that rises to the level of being

extreme and outrageous. Plaintiff does not even cite a case in support of her

argument that her IIED claim meets the outrageous conduct standard applied by

Texas courts. Plaintiffs Brief at 52. Texas law sets a high bar for satisfying this

essential element of the claim. [E]xcept in circumstances bordering on serious

criminal acts, we repeat that such acts will rarely have merit as intentional

infliction claims. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 818 (2005). See

also Hairston v. S. Methodist University, No. 05-11-00860-CV, 2013 WL

1803549, at *3 (Tex. App.Dallas April 30, 2013, pet. denied) (Meritorious

claims for intentional infliction of emotional distress are rare because most human


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29

conduct, even that which causes injury to others, cannot be fairly characterized as

extreme and outrageous.) (quoting Kroger Tex. Ltd. P'ship v. Suberu, 216

S.W.3d 788, 796 (Tex. 2006)). Here, none of the conduct by the Squirrel Busters

or the investigators borders on criminal: they did not invade Plaintiffs house,

illicitly peer into it, use any form of microphone to eavesdrop on Plaintiffs

intimate conversations, or physically assault or threaten her. And Plaintiffs

exaggerated claims of harassment and intimidation by men in golf carts are

belied by the video evidence of the Squirrel Busters operation. 14RR Ex. 1.

Finally, Plaintiff ignores the fact that the First Amendment requires

dismissal of her IIED claim. The protests, picketing and production of videos for

public distribution fall within the ambit of First Amendment protected speech.

Under well-established law, the acts of peacefully demonstrating on public

property, engaging the Rathbuns in debate and other communications, filming

them in public, and similar activities are within the core protections of the First

Amendment. The First Amendment prohibits application of the standard of

outrageous conduct to differentiate between protected and unprotected speech or

communicative activity. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55

(1988). Because Plaintiffs IIED claim would require this Court to determine

whether the Churchs and the Squirrel Busters speech was outrageous, the claim is

barred by the First Amendment. SeeChurchs Brief at 53-57.


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30

IV. Plaintiff Cannot Save the Trial Courts Erroneous Fees Award.

The trial court found that the Churchs Motion was not frivolous.

31CR3776. It made no finding that the Church filed the motion for delay, nor

could it have on this record. The Church satisfied all of the filing and hearing

deadlines in the TCPA for the efficient disposition of its Motion. See TCPA

27.003-.005. By contrast, Plaintiff repeatedly obtained continuances that

delayed the determination of the Churchs Motion by months. 13CR1665;

26CR3185. Plaintiff cannot now obtain an attorneys fees award based on a

finding of intentional delay that the trial court never made and that the record

cannot support.

CONCLUSION AND PRAYER

Appellant Church of Scientology International prays that this Court reverse

the trial courts order denying the Churchs Motion to Dismiss and awarding fees

and costs against the Church, grant the Churchs Motion to Dismiss, and render

judgment for the Church, dismissing all of Plaintiffs claims with prejudice and

remanding for further proceedings concerning the amount of the Churchs claim

for attorneys fees and costs under the TCPA. The Church prays for such other

and further relief to which it may be entitled.


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31

Respectfully submitted,

/s/ Thomas S. LeatherburyThomas S. Leatherbury

State Bar No. 12095275Marc A. Fuller

State Bar No. 24032210VINSON & ELKINS L.L.P.

2001 Ross Avenue, Suite 3700Dallas, Texas 75201-2975


[email protected]@velaw.com

Ricardo G. Cedillo

State Bar No. 04043600

Isaac J. Huron

State Bar No. 24032447Les J. Strieber III

State Bar No. 19398000Davis, Cedillo & Mendoza, Inc.

McCombs Plaza, Suite 500

755 E. Mulberry AvenueSan Antonio, Texas 78212


[email protected]@lawdcm.com
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


41/42

32

George H. Spencer, Jr.State Bar No. 18921001

Clemens & Spencer112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531Telephone: 210.227.7121


Of Counsel:

Eric M. Lieberman

RABINOWITZ, BOUDIN, STANDARD,KRINSKY & LIEBERMAN PC

45 Broadway, Suite 1700New York, New York 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

[email protected]

Attorneys for A ppell ant Chur ch of

Scientology I nter national

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), the undersigned hereby certifies thatthis Reply Brief of The Church of Scientology International complies with the

applicable word count limitation because it contains 7,456 words, excluding theparts exempted by TEX. R. APP. P. 9.4(i)(1). In making this certification, the

undersigned has relied on the word-count function in Microsoft Word 2010, which

was used to prepare this Brief.

/s/ Thomas S. LeatherburyThomas S. Leatherbury
mailto:[email protected]:[email protected]:[email protected]:[email protected]


42/42

CERTIFICATE OF SERVICE

The undersigned certifies that on the 16th day of September, 2014, theforegoing Reply Brief for Appellant Church of Scientology International was

served on the following attorneys in accordance with the requirements of the Texas

Rules of Appellate Procedure via electronic filing or email.

Ray B. Jeffrey

JEFFREY & MITCHELL, P . C .2631 Bulverde Road, Suite 105

Bulverde, TX 78163

Marc F. Wiegand

THEWIEGAND LAW FIRM, P.C.434 N. Loop 1604 West,

Suite 2201San Antonio, TX 78232

Elliott S. Cappuccio

PULMAN, CAPPUCCIOPULLEN& BENSON, LLP

2161 N.W. Military Hwy., #400San Antonio, TX 78213

Lamont A. Jefferson

HAYNES & BOONE LLP112 E. Pecan Street, Suite 1200

San Antonio, TX 78205-1540

J. Iris GibsonHAYNES & BOONE LLP

600 Congress Ave., Suite 1300Austin, TX 78701

Jonathan H. HullREAGAN BURRUS401 Main Plaza, Suite 200

New Braunfels, TX 78130

O. Paul DunaganSARLES & OUIMET370 Founders Square

900 Jackson StreetDallas, TX 75202

Bert H. DeixlerKENDALL BRILL KLIEGER10100 Santa Monica Blvd.,

Suite 1725Los Angeles, CA 90067

Stephanie S. Bascon

LAW OFFICE OF STEPHANIE S.BASCON, PLLC

297 W. San Antonio StreetNew Braunfels, TX 78130

Wallace B. Jefferson

Rachel EkeryALEXANDERDUBOSEJEFFERSON& TOWNSEND, LLP515 Congress Avenue, Suite 2350

Austin, TX 78701

/s/ Thomas S. Leatherbury

Thomas S. Leatherbury

Documents

Monique Rathbun v. Scientology: Reply Brief of Appellant CSI