Monique Rathbun v. Scientology: CSI State Supreme Court Petition

FILED
15-0966
2/19/2016 7:38:14 AM
tex-9194603
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 15-0966
IN THE SUPREME COURT OF TEXAS
STEVEN GREGORY SLOAT, ED BRYAN, CHURCH OF SCIENTOLOGY

INTERNATIONAL, DAVID J. LUBOW, AND MONTY DRAKE,
Petitioners,
v.
MONIQUE RATHBUN,
Respondent.
On Petition for Review from the

Third Court of Appeals at Austin, Texas
No. 03-14-00199-CV
PETITION FOR REVIEW OF

CHURCH OF SCIENTOLOGY INTERNATIONAL
Douglas W. Alexander
State Bar No. 00992350
dalexander@adjtlaw.com
Nicholas Bacarisse
nbacarisse@adjtlaw.com
ALEXANDER DUBOSE
JEFFERSON & TOWNSEND LLP
515 Congress Avenue
Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
Thomas S. Leatherbury
tleatherbury@velaw.com
Marc A. Fuller
mfuller@velaw.com
VINSON & ELKINS LLP
Trammell Crow Center
2001 Ross Avenue
Suite 3700
Dallas, Texas 75201
Telephone: (214) 220-7792
Facsimile: (214) 999-7792
George H. Spencer, Jr.

spencer@clemens-spencer.com
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205
Telephone: (210) 227-7121
Facsimile: (210) 227-0732
COUNSEL FOR PETITIONER

CHURCH OF SCIENTOLOGY INTERNATIONAL
IDENTITY OF PARTIES AND COUNSEL

PETITIONERS:
Steven Gregory Sloat, Ed Bryan, Church of

Scientology International, David J. Lubow,
and Monty Drake
Counsel for Petitioner Church of Douglas W. Alexander

Scientology International before State Bar No. 00992350
this Court:
Nicholas Bacarisse
ALEXANDER DUBOSE JEFFERSON
& TOWNSEND LLP
515 Congress Avenue, Suite 2350
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
Trial and Appellate Counsel for Thomas S. Leatherbury
Petitioner Church of Scientology State Bar No. 12095275
International:
Marc A. Fuller
mfuller@velaw.com
VINSON & ELKINS LLP
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: (214) 220-7792
Facsimile: (214) 999-7792
CLEMENS & SPENCER
San Antonio, Texas 78205-1531
Telephone: (210) 227-7121
Facsimile: (210) 227-0732
2
Ricardo G. Cedillo
rcedillo@lawdcm.com
Isaac J. Huron
ihuron@lawdcm.com
Les J. Strieber III
lstrieber@lawdcm.com
DAVIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
Telephone: (210) 822-6666
Facsimile: (210) 822-1151
Trial and Appellate Counsel for Jonathan H. Hull
Petitioner Steven Gregory Sloat: State Bar No. 10253350
jhull@reaganburrus.com
REGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
Trial and Appellate Counsel for
Petitioner Monty Drake:
Gary D. Sarles
gsarles@sarleslaw.com
O. Paul Dunagan
dunagan@sarleslaw.com
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: (214) 573-6300
Facsimile: (214) 573-6306

Petitioner David J. Lubow:
Stephanie S. Bascon
sbascon@att.net
LAW OFFICE OF STEPHANIE S.
BASCON, PLLC
297 W. San Antonio Street
Telephone: (830) 625-2940
Facsimile: (830) 221-3441

Petitioner Ed Bryan:
Jonathan H. Hull
REGAN BURRUS
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
RESPONDENT:
Monique Rathbun (pro se)

501 Sunset
Ingleside on the Bay, Texas 78362
gamequeen223@gmail.com
Former Trial and Appellate

Counsel for Respondent:
(Motion for Withdrawal of
Counsel for Respondent granted
by the Court February 12, 2016)
Ray B. Jeffrey
rjeffrey@sjmlawyers.com
A. Dannette Mitchell (deceased)
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
Telephone: (830) 438-8935
Facsimile: (830) 438-4958
Marc F. Wiegand
marc@wiegandlawfirm.com
THE WIEGAND LAW FIRM, P.C.
434 N. Loop 1604 West, Suite 2201
Telephone: (210) 998-3289
Facsimile: (210) 998-3179
Elliott S. Cappuccio
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
lhyman@pulmanlaw.com
Etan Z. Tepperman
etepperman@pulmanlaw.com
PULMAN, CAPPUCCIO, PULLEN
& BENSON, LLP
2161 N.W. Military Hwy., #400
Telephone: (210) 222-9494
Facsimile: (210) 892-1610
5
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................2
Index of Authorities ..................................................................................................8
Statement of the Case..............................................................................................12
Statement of Jurisdiction.........................................................................................13
Issues Presented ......................................................................................................15
Reasons to Grant .....................................................................................................16
Statement of Facts ...................................................................................................19
A.
The Parties ..........................................................................................19
B.
CSI retains Drake and Sloat to investigate reported trademark

infringement by the Rathbuns and thefts involving Marty. TCPA
27.005(b)(2) (covering a partys exercise ofthe right to
petition). ............................................................................................20
C.
Defendants Bryan, Lubow, and other Scientologists protest and

create a series of videos criticizing and countering Martys antiScientology activities and his efforts to establish an independent
church under the name Scientology................................................23
D.
Plaintiffs claims include allegations of conduct that the trial

court struck for lack of evidence and in which Defendants deny
involvement, which would not be covered by the TCPA. .................26
Summary of Argument ...........................................................................................27

Argument.................................................................................................................28
I.
The court of appeals erred in holding that, at the TCPAs first step, a
court must favor[] the conclusion that [the plaintiffs] claims are not
covered. .......................................................................................................28
II.
The court of appeals erred in failing to differentiate among the different

claims and various defendants. .....................................................................31
Conclusion and Prayer ............................................................................................36

6
Certificate of Service ..............................................................................................38

Certificate of Compliance .......................................................................................39
Appendix
INDEX OF AUTHORITIES
Cases
Bilbrey v. Williams,
02-13-00332-CV, 2015 WL 1120921 (Tex. App.Fort Worth
Mar. 12, 2015, no pet.)........................................................................................13
Cheniere Energy, Inc. v. Lotfi,
449 S.W.3d 210 (Tex. App.Houston [1st Dist.] 2014, no pet.) ..........13, 17, 29
City of Costa Mesa v. DAlessio Invs., LLC,
214 Cal.App.4th 358 (2013) ...............................................................................28
Cruz v. Van Sickle,
452 S.W.3d 503 (Tex. App.Dallas 2014, pet. denied)..............................34, 35
Deaver v. Desai,
___ S.W.3d ___, No. 14-14-00683-CV, 2015 WL 9275751 (Tex.
App.Houston [14th Dist.] Dec. 3, 2015, n.p.h.)..............................................14
Entravision Commcn Corp. v. Salinas,
No. 13-13-00702-CV, 2015 WL 9434695 (Tex. App.Corpus
Christi Sept. 30, 2015, no pet.) ...........................................................................13
ExxonMobil Pipeline Co. v. Coleman,
464 S.W.3d 841 (Tex. App.Dallas 2015, pet. filed) .......................................13
Graham v. Roder,
5 Tex. 141 (1849)................................................................................................30
Hicks v. Grp. & Pension Admrs, Inc.,
473 S.W.3d 518 (Tex. App.Corpus Christi 2013, no pet.) .............................14
I-10 Colony, Inc. v. Lee,
No. 01-14-00465-CV, 2015 WL 1869467 (Tex. App.Houston
[1st Dist.] Apr. 23, 2015, no pet.) .......................................................................14
Jardin v. Marklund,
431 S.W.3d 765 (Tex. App.Houston [14th Dist.] 2014, no pet.) ...................13
Johnson-Todd v. Morgan,
___ S.W.3d ___, No. 09-15-00210-CV, 2015 WL 6521546 (Tex.
App.Beaumont Oct. 29, 2015, n.p.h.) .............................................................14
KBMT Operating Co. v. Toledo,
434 S.W.3d 276 (Tex. App.Beaumont 2014, pet. granted) ............................13
In re Lipsky,
411 S.W.3d 530 (Tex. App.Fort Worth 2013, orig. proceeding) ................... 14
In re Lipsky,
460 S.W.3d 579 (Tex. 2015) ............................................................13, 16, 28, 34
MacGregor Med. Assn v. Campbell,
985 S.W.2d 38 (Tex. 1998).................................................................................30
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.Houston [1st Dist.] 2013, pet. denied) ...........29, 30
Neyland v. Thompson,
No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.Austin Apr.
7, 2015, no pet.) ..................................................................................................29
Reyna v. Baldridge,
No. 04-14-00740-CV, 2015 WL 4273265 (Tex. App.San
Antonio July 15, 2015, no pet.) ..........................................................................13
San Jacinto Title Servs. Corp. of Corpus Christi, LLC v. Kingsley
Props., LP,
452 S.W.3d 343 (Tex. App.Corpus Christi, 2013 pet. denied) ......................14
Serafine v. Blunt,
466 S.W.3d 352 (Tex. App.Austin 2015, no pet.) ........................14, 16, 18, 29
Shipp v. Malouf,
439 S.W.3d 432 (Tex. App.Dallas 2014, pet. denied)..............................34, 35
Sierra Club v. Andrews Cty.,
418 S.W.3d 711 (Tex. App.El Paso 2013), revd on other
grounds, 463 S.W.3d 867 (Tex. 2015) .........................................................13, 14
Sloat v. Rathbun,
No. 03-14-00199-CV, 2015 WL 6830927 (Tex. App.Austin
Nov. 6, 2015, pet. filed) ................... 12, 13, 14, 16, 17, 18, 26, 31, 32, 33, 34, 35
Souza v. Tessmer,
No. 04-15-00153-CV, 2015 WL 4932567 (Tex. App.San
Antonio Aug. 19, 2015, no pet.) .........................................................................14
Tatum v. Hersh,
___ S.W.3d ___, No. 05-14-01318-CV, 2015 WL 9583494 (Tex.
App.Dallas Dec. 30, 2015, n.p.h.) ......................................................13, 17, 29
Tervita, LLC v. Sutterfield,
No. 05-15-00469-CV, 2015 WL 9257035 (Tex. App.Dallas Dec.
18, 2015, n.p.h.) ............................................................................................14, 18
Tex. Dept of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ..............................................................................30
Tichinin v. City of Morgan Hill,
177 Cal.App.4th 1049 (2009) .............................................................................32
Whisenhunt v. Lippincott,
416 S.W.3d 689 (Tex. App.Texarkana 2013), revd on other
grounds, 462 S.W.3d 507 (Tex. 2015) ...............................................................13
Whisenhunt v. Lippincott,
474 S.W.3d 30 (Tex. App.Texarkana 2015, no. pet.).....................................14
Statutes
26 U.S.C. 501(c)(3) ................................................................................................19
TEX. CIV. PRAC. & REM. CODE 27.001 ...................................................................32
TEX. CIV. PRAC. & REM. CODE 27.001(4)(6) .......................................................29
TEX. CIV. PRAC. & REM. CODE 27.002...................................................................28
TEX. CIV. PRAC. & REM. CODE 27.003 .................................................12, 17, 27, 31
TEX. CIV. PRAC. & REM CODE 27.005 ..................................... 13, 15, 16, 25, 28, 31
TEX. CIV. PRAC. & REM. CODE 27.006(a) ........................................................30, 32
10
TEX. CIV. PRAC. & REM. CODE 27.010 ...................................................................15

TEX. CIV. PRAC. & REM. CODE 27.011(b) ..............................................................28
11
STATEMENT OF THE CASE

Nature of the Case: Monique Rathbun sued Petitionersfour individual
Defendants and Defendant Church of Scientology
Internationalalleging intentional infliction of emotional
distress, invasion of privacy by public disclosure of private
facts and intrusion on seclusion, and tortious interference with
contract. Defendants moved to dismiss the action under the
Texas Citizens Participation Act (TCPA) because the action
was based on, relate[d] to, or in response to Defendants
exercise of the right of free speech, right to petition, or right
of association. TEX. CIV. PRAC. & REM. CODE 27.003(a).
Trial Court:
Hon. Dib Waldrip, 207th Judicial District Court, Comal

County, Texas.
Trial Courts
Disposition:
Judge Waldrip denied Defendants motion to dismiss. The

court concluded that the TCPAs bodily-injury and
commercial-transaction exemptions rendered the Act
inapplicable, and awarded attorneys fees against
Defendants. App. 2.
Court of Appeals:
Third Court of Appeals, Austin; Justice Field joined by Justice

Pemberton and Justice Puryear. Sloat v. Rathbun, No. 03-1400199-CV, 2015 WL 6830927 (Tex. App.Austin Nov. 6,
2015, pet. filed).
Court of Appeals
Disposition:
Affirmed trial courts denial of motion to dismiss; reversed

award of attorneys fees. [V]iew[ing]the pleadings in the
light most favorable to [the non-movant] Rathbun; i.e.,
favoring the conclusion that her claims [were] not
predicated on protected expression, id. *3, and without
distinguishing among the various Defendants or the various
causes of action, held that Defendants failed to
demonstrate by a preponderance of the evidence that
the TCPA applies to this case, id. *9 (emphasis added).
12
STATEMENT OF JURISDICTION
This Court has conflicts jurisdiction over this interlocutory appeal for the
following reasons:
Two courts of appeals (Houston First and Austin) have held that, in making
the step-one determination of whether the TCPA applies, 27.005(b), the
pleadings and affidavits should be view[ed] in the light most favorable
to the non-movant. 1 Conversely, all other courts to consider the issue have
applied a neutral, plain-language review. The Dallas court did so explicitly; 2
the others have done so implicitly. 3
Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.Houston [1st Dist.] 2014, no
pet.) (emphasis added); Sloat v. Rathbun, No. 03-14-00199-CV, 2015 WL 6830927, at *3 (Tex.
App.Austin Nov. 6, 2015, pet. filed) (same).
2
Tatum v. Hersh, ___ S.W.3d ___, No. 05-14-01318-CV, 2015 WL 9583494, at *5 n.4 (Tex.
App.Dallas Dec. 30, 2015, n.p.h.).
3
See, e.g., Entravision Commcn Corp. v. Salinas, No. 13-13-00702-CV, 2015 WL 9434695, at
*4 (Tex. App.Corpus Christi Sept. 30, 2015, no pet.) (applying a neutral, de novo
review); Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL 4273265, at *2 (Tex. App.San
Antonio July 15, 2015, no pet.) (same); Bilbrey v. Williams, No. 02-13-00332-CV, 2015 WL
1120921, at *8 (Tex. App.Fort Worth Mar. 12, 2015, no pet.) (same); ExxonMobil Pipeline Co.
v. Coleman, 464 S.W.3d 841, 845 (Tex. App.Dallas 2015, pet. filed) (same); KBMT Operating
Co. v. Toledo, 434 S.W.3d 276, 282 (Tex. App.Beaumont 2014, pet. granted), disapproved on
other grounds by In re Lipsky, 460 S.W.3d 579 (Tex. 2015); Jardin v. Marklund, 431 S.W.3d 765,
770 (Tex. App.Houston [14th Dist.] 2014, no pet.) (same); Sierra Club v. Andrews Cty., 418
S.W.3d 711, 715 (Tex. App.El Paso 2013) (same), revd on other grounds, 463 S.W.3d 867
(Tex. 2015) (per curiam); Whisenhunt v. Lippincott, 416 S.W.3d 689, 69596 (Tex. App.
Texarkana 2013) (same), revd on other grounds, 462 S.W.3d 507 (Tex. 2015).
13
The courts of appeals4including the Austin court 5have consistently

conducted a claim-by-claim analysis of the TCPAs application, to decide
whether the Act applies in cases where the non-movants lawsuit is based on
both covered and non-covered conduct. Contrary to this precedent and its own
prior opinions, the court of appeals held that any allegations of non-covered
conduct preclude the Acts application to the entire suit, without
differentiation between claims or defendants. Rathbun *78.
Tervita, LLC v. Sutterfield, ___ S.W.3d ___, No. 05-15-00469-CV, 2015 WL 9257035, at *2
(Tex. App.Dallas Dec. 18, 2015, n.p.h.) (considering whether each cause of action pleaded by
the plaintiff is covered by the TCPA); see also Deaver v. Desai, ___ S.W.3d ___, No. 14-1400683-CV, 2015 WL 9275751, at *4 (Tex. App.Houston [14th Dist.] Dec. 3, 2015, n.p.h.)
(finding TCPA applied to some claims but not others); Johnson-Todd v. Morgan, ___ S.W.3d ___,
No. 09-15-00210-CV, 2015 WL 6521546, at *4 (Tex. App.Beaumont Oct. 29, 2015, n.p.h.)
(separately considering TCPAs application to different claims); Souza v. Tessmer, No. 04-1500153-CV, 2015 WL 4932567, at *1 & n.1 (Tex. App.San Antonio Aug. 19, 2015, no pet.)
(considering TCPA motion related only to a single cause of action); Whisenhunt v. Lippincott, 474
S.W.3d 30, 3839 (Tex. App.Texarkana 2015, no. pet.) (noting trial courts grant of movants
TCPA motion only as to specific claims); I-10 Colony, Inc. v. Lee, No. 01-14-00465-CV, 2015
WL 1869467, at *45 (Tex. App.Houston [1st Dist.] Apr. 23, 2015, no pet.) (considering
TCPAs application to plaintiffs fraud claim, but not her partition claim); Hicks v. Grp. & Pension
Admrs, Inc., 473 S.W.3d 518, 530 (Tex. App.Corpus Christi 2013, no pet.) (considering
TCPAs application to specific claims); Sierra Club, 418 S.W.3d at 716 (requiring movant to prove
that both of the plaintiffs claims were covered by TCPA (emphasis added)); In re Lipsky, 411
S.W.3d 530, 54243 (Tex. App.Fort Worth 2013, orig. proceeding) (separately considering the
different movants and claims at step one), denying mandamus, 460 S.W.3d 579 (Tex. 2015); cf.
Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.Austin 2015, no pet.) (Pemberton, J.,
concurring) (In distinguishing between these alternative protected and unprotected factual bases
underlying the Blunts tortious-interference claim, the Court implicitly resolves, and correctly so,
the so-called mixed-claim issue under the TCPA....); San Jacinto Title Servs. Corp. of Corpus
Christi, LLC v. Kingsley Props., LP, 452 S.W.3d 343, 350 (Tex. App.Corpus Christi, 2013 pet.
denied) (referring to the TCPAs expansive definition of legal action).
5
See Serafine, 466 S.W.3d at 360 (considering whether different factual theories are covered by
TCPA).
14
ISSUES PRESENTED
Briefed Issues:
1.
In
making
the
step-one
determination
of
whether,
under
TCPA 27.005(b), the movant has show[n] by a preponderance of the evidence

that the legal action is based on, relates to, or is in response to the partys exercise
of: (1) the right of free speech; (2) the right to petition; or (3) the right of association,
should the court
favor[] the conclusion that [the plaintiffs] claims are not predicated on
protected expression, as the court of appeals held?
or
view the evidence in the neutral manner used by other appellate courts?
2.
Did the court of appeals err by holding that allegations of non-covered
conduct made generally against all defendants render the TCPA inapplicable to all
defendants and claims in a lawsuit?
Unbriefed Issues:
3.
Did the trial court err in holding that the commercial transaction
exemption to the TCPA, 27.010(b), applies here?

4.
Did the trial court err in holding that the bodily injury exemption to
the TCPA, 27.010(c), applies here?
15
REASONS TO GRANT
In In re Lipsky, this Court analyzed step two of the TCPAs burden-shifting
analysis: whether the non-movant has establish[ed] by clear and specific evidence
a prima facie case for each essential element of the claim in question. 460 S.W.3d
579, 592 (Tex. 2015) (quoting TCPA 27.005(c)).
This petition asks the Court to analyze step one of the inquiry: whether the
movant has show[n] by a preponderance of the evidence that the legal action is
based on, relates to, or is in response to the partys exercise of: (1) the right of free
speech; (2) the right to petition; or (3) the right of association. TCPA 27.005(b).
This standard has proved elusive. Rathbun *3 (As for a trial courts
determination of what the factual bases for a legal action are, the standards
governing our review are less clear.). As one of the panel members observed in
another case:
The Act is rather murky regarding the factual aspects of this
preponderance of the evidence inquiry and how appellate courts are
to review any such determinations by trial courts.... I can only hope that
some justice of the Texas Supreme Court might be listening and find
this writing of some assistance in this or another of the TCPA cases that
are beginning to crowd its docket.
Serafine, 466 S.W.3d at 369, 394 (Pemberton, J., concurring).
The TCPA is a crucial tool for protecting First Amendment rights. But the
Acts step-one preponderance-of-the-evidence inquiry has confused and divided
intermediate courts of appeals; it will continue to do so until this Court intervenes.
16
To illustrate, both the Houston First and Austin courts of appeals view the
pleadings and the evidence in the light most favorable to the nonmovant. Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.
Houston [1st Dist.] 2014, no pet.) (emphasis added); Rathbun *3 (going beyond
Cheniere Energy and holding that movant must show that all conduct on which suit
is based is covered).
In contrast, recently the Dallas Court of Appeals, while acknowledging
Chenieres and Rathbuns deferential approach, applied a neutral, plain-language
review. Tatum v. Hersh, ___ S.W.3d ___, No. 05-14-01318-CV, 2015 WL
9583494, at *5 n.4 (Tex. App.Dallas Dec. 30, 2015, n.p.h.) (emphasis added).
Numerous other cases implicitly take the same tack. Statement of Jurisdiction, at 13
n.3.
No less important, this case presents the question of how and when the Act
applies to mixed claims: lawsuits or causes of action that are based on covered
activity, even if some subpart of the case involves activity not covered by the Act.
At step one, the Act directs the court to determine whether a legal action is
based on covered conduct. TCPA 27.003(a)(b). Prior to the Austin Courts
decision, every Texas court to consider the questionincluding the Austin Court
had understood this language to require, at a minimum, a claim-by-claim analysis of
the Acts application. The most recent of these decisions makes this clear:
17
Under the TCPA, a legal action includes not only a lawsuit but also
a cause of action. TCPA 27.001(6). In reviewing the trial courts
ruling, we consider whether [movant] has established that each cause
of action pleaded by [nonmovant] is based on, relates to, or is in
response to[movants] exercise of its right to petition or right of
association. TCPA 27.003(a).
Tervita, LLC v. Sutterfield, No. 05-15-00469-CV, 2015 WL 9257035, *2 (Tex.
App.Dallas Dec. 18, 2015, n.p.h.) (emphasis added) (dismissing one claim and
portion of another, and remanding remaining causes of actions to trial court); see
also Serafine, 466 S.W.3d at 360 (analyzing at step one by factual theory).
Pejoratively characterizing Defendants attempted use of the TCPA as a
shield to protect the type of conduct alleged in this case, Rathbun *8 n.10
(emphasis added), the Austin Court parted ways with Dallas and its own Serafine
precedent. But coverage under the Act does not equate to protection in the sense of
immunity from suit; rather, it shifts to the plaintiff the burden to produce evidence
supporting her claims. Thus, the court of appeals acknowledgment that Plaintiffs
suit was based in part on covered conduct, id. *46 (pre-litigation and filmmaking
activities), should have satisfied the Acts first step and shifted the burden.
Instead, the court concluded that because a portion of the petition alleged noncovered conduct, the Act was wholly inapplicable. Id. *78. In doing so, the court
never confronted the analytically distinct legal and factual circumstances among the
defendants or the causes of action addressed to each. Id.
18
This Court should grant review to resolve these conflicts with respect to this
relatively young, but already much-litigated, Act.
STATEMENT OF FACTS
A.
The Parties
Church of Scientology International (CSI) oversees the ecclesiastical

activities of Scientology churches. CR1:78. The IRS recognizes it as a tax-exempt
church under 26 U.S.C. 170(b), whose purpose and activities are, as statutorily
mandated, exclusively charitable and religious. 26 U.S.C. 501(c)(3);
CR10:122324. Religious Technology Center (RTC, not a petitioner in this
proceeding), also recognized as a tax-exempt church, owns the Scientology
trademarks (in furtherance of its exclusively religious purpose and activities) and
is the ecclesiastical authority overseeing the orthodox application of the faith.
CR1:78. RTC delegates to CSI responsibility for investigating and prosecuting
misuse of Scientology trademarks and service marks. CR1:148.
Monty Drake is a non-Scientologist private investigator. Gregory Sloat is a
non-Scientologist former Deputy U.S. Marshal who was employed by a private
investigator in this case. Ed Bryan and David Lubow are Scientologists who
protested, filmed, and produced documentaries about the actions of Marty Rathbun
and his wife, Monique.
19
Plaintiff Monique Rathbun was never a Scientologist. She is the wife of a

former Church official, Marty Rathbun, who was removed from his position in 2003,
and left the Church a year later. In 2009 he began an aggressive and defamatory
public attack in all media on the Church and its leadership in an attempt to create a
schism and establish his own version of Independent Scientology, using
Scientology intellectual property. Plaintiff joined him in these efforts. Her lawsuit is
based upon acts undertaken by Defendants to counter the vicious public attacks,
principally by her husband, and to protect the Churchs intellectual property rights.
B.
CSI retains Drake and Sloat to investigate reported trademark

infringement by the Rathbuns and thefts involving Marty. TCPA
27.005(b)(2) (covering a partys exercise ofthe right to
petition).
In 2009, CSI learned of a Craigslist posting by Marty, which promised:

Scientology counseling: thoroughly trained on all levels of Scientology spiritual
counseling. Reasonable rates. CR1:149. Marty also created a blog offering
Independent Scientology services. Id. It is undisputed that Marty never acquired
rights to the Scientology trademarks and was never authorized to use them.
CR10:1206; CR1:18.
Scientology spiritual counseling refers to a religious practice called
auditing, which seeks to elevate participants to higher states of spiritual awareness.
Id. Scientology auditing, too, is protected through trademarks held by RTC. Only
licensed ministers, groups or churches may use the name Scientology or deliver
20
these services. Martys advertisement and unlicensed Independent Scientology

services infringed on RTCs trademarks. CR1:149-150; 152-153.
Martys wife, Monique, also performed auditing services out of the Rathbuns
home/office. She, like Marty, used an e-meter, a Scientology religious artifact that
is reserved, by trademark and scripture, for use only by licensed and authorized
ministers. CR1:149, 150; RR3:173177.
In response to Martys Craigslist and blog posts, CSIs general counsel
retained Drake to investigate the reported infringements. Drake has investigated
hundreds of cases involving intellectual-property violations in the United States and
abroad. CR1:152-153; CR2:298. A licensed private investigator, Drake did what he
customarily does in such cases: lawful surveillance, including taking still
photographs and videos. CR2:299300.
The Rathbuns used their house to conduct infringing activities. Drake rented
a house across the cul-de-sac from the Rathbuns house in Ingleside-on-the-Bay,
Texas. Drake believed continual film surveillance of the homes exterior was likely
to expose the Rathbuns unauthorized infringement of Scientologys trademarks.
CR26:314243. Anything the camera could see, a person could also see from the
street. CR26:3143. Drake never directed surveillance inside the Rathbuns
home/office. Id. Drake occasionally followed Martys car to determine with whom
21
he was meeting. CR2:300. The Rathbuns were not aware of Drakes presence until
2012. CR1:39.
Concurrently, the Churchs lawyers performed legal research, reviewed work
product, and drafted a complaint regarding the Rathbuns trademark infringement
that Drake was investigating. CR33:400708.
In April 2010, as a result of his monitoring activity, Drake reported to Church
counsel that John Brousseau had arrived at the Rathbuns home/office. Days before,
Brousseau had stolen from RTC computer files containing proprietary information.
RTC reported Brousseaus theft and his subsequent meeting with Marty to law
enforcement. CR10:1204-1205.
Shortly thereafter, Marty published a blog post encouraging Church staff to
steal Church documents and records. He stated he would personally guarantee
[them] protection. CR1:153. A few weeks later, Daniel Montalvo, a staff member
at Bridge Publications, Inc., the Churchs publishing facility in Los Angeles,
furtively removed five hard drives containing proprietary and confidential
information from that facility. Marty was in the car when another ex-Scientologist
picked up Montalvo and the stolen goods. CR1:15354. Bridge filed a complaint
with the Los Angeles Police regarding this theft, and the resulting report referenced
Martys involvement. CR25:3016.
22
Drakes surveillance continued until late 2012. CR1:39. In December 2012,

the Rathbuns moved to Bulverde, Texas. RR3:178. In early 2013, the Churchs
counsel hired another licensed investigator who in turn retained non-Scientologist
Sloat. Sloat installed three low-resolution cameras on property he rented adjacent to
the Rathbuns Bulverde house to photograph the driveway and nearby roadway. Like
Drake, Sloat was trying to document Martys administration of trademark-infringing
practice[s] similar to Scientology. CR2:302-03.
C.
Defendants Bryan, Lubow, and other Scientologists protest and

create a series of videos criticizing and countering Martys antiScientology activities and his efforts to establish an independent
church under the name Scientology.
In 2009, Marty began a world-wide campaign against his former church and
its leadership. He posted videos to that end on the Internet, wrote and self-published
books, and maintained an Internet blog that attacked his former church and its
ecclesiastical leader, David Miscavige. CR1:151-52. Rathbun posted a document
entitled 31 Factors, purportedly modeled on Martin Luthers 95 Theses. Id. He
compared Mr. Miscavige to Hitler, and called for the destruction of the Church of
Scientology. CR1:152; CR2:203; CR27:3223, 3270-75, 3278-81. Rathbun also
appeared on national and international television programs, repeating his attacks
against the Church and its leadership, and sat for interviews with international,
national, and local newspapers. CR1:150-51.
23
As a direct result of Martys actions, in early 2011, several Scientologists,

including John Allender, Joanne Wheaton, Richard Hirst and Defendants Bryan and
Lubow, resolved to document, protest, and communicate to Scientologists and to the
public by video and film Martys efforts to establish a rival Independent Church of
Scientology. They also sought to expose and refute Martys attacks on the Church.
CR2:281.
Lubow, Allender and Warlick embarked to protest at Martys home/office and
film a documentary about him. The film would utilize footage of protesters outside
the premises. The working title for the documentary was The Story of a Squirrel.
Id. Squirrel is a Scientology term depicting a person who delivers altered and
unauthorized versions of Scientology services. CR1:150. The protesters adopted the
name Squirrel Busters. CR1:110, 155; 2:287.
The Squirrel Busters began their protests and filming outside the Rathbuns
home/office during April 2011, and continued intermittently until September 2011.
During the filming, the Squirrel Busters had numerous verbal encounters with
Rathbun and plaintiff in public areas, in the course of which they debated, often in
mutually argumentative terms, Rathbuns anti-Scientology activities. CR2:290.
Plaintiff testified about the Squirrel Busters doing their videos with pictures
and, you know, unflattering stuff about us and saying stuff[t]heir response was
that they were doing a documentary. They would be out there with these cue
24
cardsand they would have scripts of whatever it was that they wanted to harass us
about. RR3:12627. Plaintiffs counsel then played a passage on which the
Squirrel Busters, in his words, were getting these scripts and they were reading
them on camera in front of your house including negative things about you. Id.
at 127. Plaintiff also testified that the Squirrel Busters passed out magazines to local
residents containing their message. RR3:147. She also alleged they would approach
us in a golf cart with up to six cameras trained on us as they hurled insults and rude
questions relating to Scientology. CR48:5556 (emphasis added). Plaintiff claims
the Squirrel Busters were active whenever the Rathbuns left their house, CR38:4506,
and that it went on for 199 days, RR3:201.
Defendants do not deny the presence of the Squirrel Busters outside of
Plaintiffs home/office. In fact they assert it was their right to protest there in
response to Marty Rathbuns years-long attacks on their Church. The Squirrel
Busters protests and filming activities were religiously motivated and were
peaceful, if at times heated. CR2:280-281, 294; 26:3150. Their activities, which
Plaintiff conceded never involved assault or trespassing, RR3:200, included attempts
to question the Rathbuns about Scientology and their anti-Scientology activities.
CR48:5556. They produced documentary videos which were uploaded to YouTube.
CR26:3156.
25
D.
Plaintiffs claims include allegations of conduct that the trial court

struck for lack of evidence and in which Defendants deny
involvement, which would not be covered by the TCPA.
In addition to allegations about investigators and Squirrel Busters, which

involve the right to petition and the right to free speech under TCPA 27.005(b),
Monique alleged conduct not covered by the TCPA, in which Defendants denied
involvement. CR33:4011; CR38:4480. These allegations were stricken by the
trial court, yet nevertheless relied on by the court of appeals as forming the
basis of Plaintiffs lawsuit.
Thus, Plaintiff alleged that Defendants sent her a sex toy at her job and that
Defendants sent flowers to a female co-worker along with a romantic message
purporting to be from Plaintiff. CR1:39. Plaintiff admitted to speculating about who
sent either the sex toy or the flowers. RR3:207. Accordingly, the trial court struck
those allegations from her affidavit. CR38:450607. Plaintiff also alleged that
Scientology websites have publishedfalse claims that [Plaintiff is] a sex pervert
or a man who has had a secret sex-change operation. CR1:39. After Plaintiff
produced no evidence of such websites, the trial court likewise struck those
allegations from her affidavit. CR55:6317.
The trial court ultimately denied all of the Defendants TCPA motions on the
grounds that the Acts commercial-transaction and bodily-injury exemptions
rendered the Act inapplicable. App. 2. The court of appeals did not reach that issue.
26
Instead, favoring the conclusion that [Plaintiffs] claims [were] not predicated on
protected expression, and without distinguishing among the various Defendants or
the various causes of action, it held that Defendants failed to demonstrate by a
preponderance of the evidence that the TCPA applies to this case, Rathbun
*3, *9.
SUMMARY OF ARGUMENT
This Court should resolve the split among the courts of appeals about what
standard governs analysis of the pleadings and evidence under the first step of the
TCPAs burden-shifting procedure. The Dallas Court of Appeals neutral standard
honors the statutes plain language: at step one, the legal action should be liberally
viewed as based on, relate[d] to, or...in response to the [movants] exercise of
enumerated rights. TCPA 27.003(a). In contrast, the approach articulated by the
court of appeals hereunder which courts favor[] the conclusion that [the nonmovants] claims are not predicated on protected expressionwould gut the Act
by allowing a plaintiff to plead around its application. This case illustrates the point.
The court of appeals flawed approach led it to rely upon allegations in the Plaintiffs
complaint that the trial court found to be so unsubstantiated that it struck them from
the record.
27
The Court should also grant review to correct the court of appeals refusal to
differentiate among the claims and Defendants. Lumping Defendants together and
applying the court of appeals hyper-deferential standard of review collectively to
all causes of action ensures that Defendantsagainst whom Plaintiff cannot even
articulate a legitimate claimremain subject to continuing defense of a suit that the
Act bars.
ARGUMENT
Because this case involves diverse defendants and mixed claims, it is the ideal
vehicle for clarifying the analysis under step one of the TCPAs burden-shifting
procedure for determining whether a legal action should be dismissed. See
TCPA 27.005(b) (step one: movants burden), (c) (step two: non-movants
burden), (d) (step three: movants burden).
I.
The court of appeals erred in holding that, at the TCPAs first step, a
court must favor[] the conclusion that [the plaintiffs] claims are not
covered.
The TCPAs purpose is to identify and summarily dispose of lawsuits
designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.
Lipsky, 460 S.W.3d at 589. The TCPA accomplishes this goal through its three-step
burden-shifting procedure, which strikes a balance between defendants First
Amendment guarantee and plaintiffs ability to seek compensation for demonstrable
28
injuries. TCPA 27.002. The TCPA must be construed liberally to effectuate [this]
purpose. Id. 27.011(b).
The Acts core is steps two and three: at those phases, the court must
determine whether a lawsuit implicating First Amendment activities is sufficiently
meritorious to proceed. Step one, by contrast, asks merely whether this analysis
should be performed at all. Cf. City of Costa Mesa v. DAlessio Invs., LLC, 214
Cal.App.4th 358, 371 (2013) (The first step only determines whether [the Acts]
procedural protection applies; the second step...addresses whether there is sufficient
merit to the claims at issue to allow the litigation to proceed.).
The statute incorporates capacious definitions of covered conduct.
See 27.001(4)(6); see also Serafine, 466 S.W.3d at 357 n.1 (referring to TCPA
definitions as expansive); id. at 37576 (Pemberton, J., concurring) (referring to
range of conduct covered by TCPA as vast[]). Several courts of appeals have thus
applied a neutral approach or otherwise assumed the truth of the movants facts at
step one. See, e.g., Tatum, 2015 WL 9583494, at *8; Serafine, 466 S.W.3d at 360
(accepting truth of movants evidence at step one); Neyland v. Thompson, No. 0313-00643-CV, 2015 WL 1612155, at *4 n.6 (Tex. App.Austin Apr. 7, 2015, no
pet.) (same); see also Statement of Jurisdiction.
In contrast, two courtsincluding the court of appeals herehave applied an
indulgent standard favoring the non-movant. That standard originated in Cheniere
29
Energy, which held that a court at step one must view the pleadings and evidence
in the light most favorable to the non-movant. 449 S.W.3d at 214.
Cheniere Energys standard of review was wrong for three reasons. First, it
relied solely on Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
which involved only the step-two burden. 416 S.W.3d 71, 8081 (Tex. App.
Houston [1st Dist.] 2013, pet. denied).
Second, Newspaper Holdings adopted a standard utilized in reviewing
jurisdictional pleas, id., which has its roots in a long-standing policy favoring
jurisdiction, Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004); see also Graham v. Roder, 5 Tex. 141, 141 (1849) (In doubtful cases all
intendments are in favor of the jurisdiction.). Moreover, Miranda concerned
whether a fact was uncontested, and therefore binding pre-trial, or was contested,
and therefore reserved for the fact-finders post-trial determination. 133 S.W.3d at
22728. A court considering a TCPA motion, however, cannot wait for coverage
disputes to be resolved at trial without rendering impotent the Acts protections.
Coverage must be resolved at step one.
Third, and most fundamentally, Cheniere Energys approach would negate
the TCPA by making it standard practice for plaintiffs to evade the Acts protections:
by including any allegation of conduct not covered by the TCPA, plaintiffs would
ensure that their lawsuit was insulated from a TCPA challenge. The Legislature did
30
not intend such a result. Cf. MacGregor Med. Assn v. Campbell, 985 S.W.2d 38, 40
(Tex. 1998) (plaintiff cannot evade application of Medical Liability and Insurance
Improvement Act by pleading claim under DTPA).
The indulgent approach contradicts the Acts plain language, which requires
courts to consider not only the plaintiffs allegations but also supporting and
opposing affidavits. TCPA 27.006(a) (emphasis added). If the legislature had
meant for courts to consider only plaintiffs facts, it would not have directed courts
to consider both parties evidence; it cannot have meant for courts to consider but
automatically disregard movants evidence.
Furthermore, the court of appeals exacerbated Cheniere Energys error. It not
only viewed the evidence in Plaintiffs favor, it favor[ed] the conclusion that
[Plaintiffs] claims [we]re not predicated on protected expression. Rathbun *3
(emphasis added).
This startling holding requires trial courts to ignore the Acts command that
it be construed liberally. It in fact requires courts to assume that the Act doesnt
apply and to accept as true any allegation that some part of the underlying conduct
was not covered by the TCPA. That interpretation thwarts the Acts text and purpose.
II.
The court of appeals erred in failing to differentiate among the different

claims and various defendants.
Several anti-SLAPP motions were filed in this case. CR3:341 (CSI); CR3:337
(Drake); CR5:582 (Sloat and Bryan joining CSI); CR5:587 (Lubow). Though their
31
motions were heard together, each Defendant had a right to individual consideration.
TCPA 27.003(a); 27.005(b). Yet the court of appeals lumped all the Defendants
together, collectively referring to them as the Scientology Defendants more than
50 times, Rathbun *19, though Drake and Sloat are not even Scientologists.
Similarly, Monique asserted four causes of action. The Acts broad definition
of legal action requires that the court consider the Acts application as to each of
these causes of action. TCPA 27.001(6).
Until this case, the courts of appeals have uniformly analyzed whether each
cause of action is covered by the TCPA, refusing to hold that a whole lawsuit is or
is not covered by the Act. See supra at 1617 (addressing Tervita and Serafine).
Disregarding the unbroken precedent recognizing the Act applies on a claim-byclaim basis, the court of appeals held, in essence, that any allegation of non-covered
conduct overcomes evidence of covered conduct, precluding the TCPAs application
as to all conduct, all claims, and all defendants. Rathbun *8.
Moniques suit against Drake illustrates the flaw in the court of appeals
undifferentiated approach. Plaintiff alleges that Drake surveilled her home/office
from across the cul-de-sac. CR1:56. Her affidavit offers nothing more. CR48:5553.
Drakes affidavit testified that his surveillance investigated Martys trademark
infringement and theft. CR2:299. As the statute required, TCPA 27.006(a), the trial
court considered and accepted this evidence. CR56:642021, 6430.
32
Drakes surveillance was pre-petition activitybased on Drakes work, CSI

had prepared a trademark-infringement suit against Marty. Although CSI decided
against filing that suit, a criminal complaint was filed with law enforcement based
in part on information learned from Drakes surveillance. See Tichinin v. City of
Morgan Hill, 177 Cal.App.4th 1049, 1068 (2009) (holding that Californias antiSLAPP statute covers non-communicative pre-litigation activity, even if suit is never
filed, because such activity intrinsically facilitates the exercise of free speech).
Under either Tervitas or Serafines granulated approach to mixed claims, the suit
against Drake would have been deemed covered, and the burden would have shifted
to Plaintiff to attempt to establish a prima facie case against him.
While it acknowledged that Drake conducted pre-litigation activity, the court
of appeals ignored Plaintiffs pleadings and affidavit to conclude that her suit is not
based on the Scientology Defendants attempts to discover facts related to Marty
Rathbuns alleged trademark infringement. Rathbun *8. Rather, the court focused
on Plaintiffs general allegations about harassment and her salacious, stricken
allegations about a sex toy. Id. *78. But Moniques own lawyer referred to Drakes
surveillance as a basis for her harassment claim. RR11:8891.
By ignoring the specific evidence of covered conduct and focusing solely on
unspecific allegations of non-covered conduct, the court of appeals concluded that
Drake could not use the Act to defend against Moniques suit. This was error.
33
Similarly, Monique pleaded that the Squirrel Busters operations is an

important basis of this lawsuit, CR10:1270, incorporating these allegations into
each of her claims, CR10:127475. Indeed, Plaintiffs counsel told the trial court
that the Squirrel Busters activities represented a dramatic change in the level and
intensity of what [Plaintiff was] experiencing. RR3:105. Plaintiffs counsel later
emphasized that Plaintiffs complaint encompasses the whole campaign, preSquirrel Busters, during Squirrel Busters, after Squirrel Busters. RR12:225.
In determining whether the Act covered the Squirrel Busters activities, the
court of appeals ignored the evidence, including Moniques admissions,
demonstrating that the Squirrel Busters regular presence outside the Rathbuns
home/office, which indisputably contained elements of covered activity, was the
basis for much of the lawsuit. Rathbun *56. Instead, the court of appeals, using its
highly deferential standard, concluded that Moniques lawsuit was based solely on
alleged conduct it considered non-covered, which Monique asserted generally
against all of the Defendants. Id. *6.
Importantly, the court of appeals held contrary to the Dallas Court. That court
has held that non-covered conduct cannot be separated from the covered context in
which it arose, even if the plaintiff sues only for the non-covered conduct. Shipp v.
Malouf, 439 S.W.3d 432, 438 (Tex. App.Dallas 2014, pet. denied) (We agree
with Shipp that the entire communicationnot just the allegedly defamatory
34
portionand the surrounding circumstances must be considered in determining

whether the lawsuit relates to Shipps exercise of his right of free speech. (emphasis
added)), disapproved on other grounds, Lipsky, 460 S.W.3d 579; see also Cruz v.
Van Sickle, 452 S.W.3d 503, 514 (Tex. App.Dallas 2014, pet. denied) (same). By
failing to view the non-covered conduct in the context of Defendants substantial
and undisputed covered activities, the Austin Court erred.
Perhaps most egregiously, the court of appeals zeroed-in on Plaintiffs most
inflammatory allegation: that the Scientology Defendants sent a sex toy to
[Plaintiff] at her workplace. Rathbun *5. But this sex toy scenario was rank
speculation, and the trial court struck the allegation from her affidavit:
CR38:450607. The court of appeals conclusion thus relied on evidence the trial
court struck, while ignoring evidence the trial court credited regarding the Squirrel
Busters activities. CR38:450405.
In fact, the court of appeals went a step further, placing an additional burden,
unmoored in precedent or statute, on Defendants to explain how each of Plaintiffs
35
allegations against them were covered by the statute. Rathbun *7 (faulting

Defendants for failing to explain how certain activities constitute[d] conduct
covered by the TCPA). Contra, Shipp, 439 S.W.3d at 438; Cruz, 452 S.W.3d at
514. This, too, was error.
CONCLUSION AND PRAYER
Since its passage five years ago, the TCPA has perplexed courts,
commentators, and parties. This case reflects that confusion.
This Court should grant this petition to clarify the step-one analysis under the
TCPA; reverse in part the court of appeals judgment, hold that Monique Rathbuns
claims are covered by the TCPA and no exemption applies, and remand to the court
of appeals for a determination of whether Rathbun met her step-two burden; or,
alternatively, reverse and remand to the court of appeals for further proceedings.
Respectfully submitted,
/s/ Douglas W. Alexander
Nicholas Bacarisse
ALEXANDER DUBOSE
JEFFERSON & TOWNSEND LLP
515 Congress Avenue, Suite 2350
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
36
Thomas S. Leatherbury
Marc A. Fuller
mfuller@velaw.com
VINSON & ELKINS LLP
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: (214) 220-7792
Facsimile: (214) 999-7792
CLEMENS & SPENCER
San Antonio, Texas 78205-1531
Telephone: (210) 227-7121
Facsimile: (210) 227-0732
COUNSEL FOR PETITIONER CHURCH OF
SCIENTOLOGY INTERNATIONAL
37
CERTIFICATE OF SERVICE
On February 19, 2016 I electronically filed this Petition for Review with the
Clerk of the Court using the eFile.TXCourts.gov electronic filing system, which will
send notification of such filing to the following (unless otherwise noted below).
Monique Rathbun
501 Sunset
Ingleside on the Bay, Texas 78362
gamequeen223@gmail.com
(served by e-mail and certified mail)
Respondent
Gary D. Sarles
gsarles@sarleslaw.com
O. Paul Dunagan
dunagan@sarleslaw.com
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: (214) 573-6300
Facsimile: (214) 573-6306
Attorneys for Petitioner Monty Drake
Jonathan H. Hull
Ashley B. Bowen
abowenl@reaganburrus.com
REAGAN BURRUS
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
Attorneys for Petitioners
Steven Gregory Sloat and Ed Bryan
Stephanie S. Bascon
sbascon@att.net
LAW OFFICE OF STEPHANIE S.
BASCON, PLLC
297 W. San Antonio Street
Telephone: (830) 625-2940
Facsimile: (830) 221-3441
Attorneys for Petitioner David J. Lubow

38
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2013, this brief contains 4,495
words, excluding the portions of the brief exempt from the word count under Texas
Rule of Appellate Procedure 9.4(i)(1).

39
INDEX
Tab
Item
1.
TEX. CIV. PRAC. & REM. CODE 27.003
2.
Trial Courts Order
3.
Court of Appeals Opinion and Judgment
4.
5.
6.
7.
8.
9.
APPENDIX 1
27.003. Motion to Dismiss, TX CIV PRAC & REM 27.003
Vernon's Texas Statutes and Codes Annotated

Civil Practice and Remedies Code (Refs & Annos)
Title 2. Trial, Judgment, and Appeal
Subtitle B. Trial Matters
Chapter 27. Actions Involving the Exercise of Certain Constitutional Rights (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code 27.003
27.003. Motion to Dismiss
Effective: June 17, 2011
Currentness
(a) If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or
right of association, that party may file a motion to dismiss the legal action.
(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the
legal action. The court may extend the time to file a motion under this section on a showing of good cause.
(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is
suspended until the court has ruled on the motion to dismiss.
Credits
Added by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), 2, eff. June 17, 2011.
Notes of Decisions (37)

V. T. C. A., Civil Practice & Remedies Code 27.003, TX CIV PRAC & REM 27.003
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document
2016 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX 2
150 N . Seguin, Suite 317

N e w Braunfels, Texas 78130
830-221-1270
Fax 830-608-2030
DIB WALDRIP
PRESIDING JUDGE
433RD JUDICIAL DISTRICT COURT
COMAL COUNTY
2:*
m
33
Til a
SI S
C A U S E N O . C2013-1082B
MONIQUE RATHBUN,
PLAINTIFF
G3
IN T H E DIS T | & C C O U R T
2 0 7 T H JUDICIAL DISTRICT
DAVID MISCAVIGE, RELIGIOUS
TECHNOLOGY CENTER, CHURCH
OF SCIENTOLOGY INTERNATIONAL,
STEVEN GREGORY SLOAT, M O N T Y DRAKE,
D A V E L U B O W A / K / A D A V I D J. L A B O W , A N D
E D BRYAN,
COMAL COUNTY, TEXAS
DEFENDANTS
A N T I - S L A P P MOTIONS OF A L L DEFENDANTS FINDINGS O F F A C T A N D CONCLUSIONS

O F L A W & RULING DENYING A L L A N T I - S L A P P MOTIONS TO DISMISS
FINDINGS O F FACT
1.
Defendant Church of Scientology International ("CSI"), by and through its
agents or contractors, including Defendants David Lubow, Monty Drake and Greg Sloat,
undertook extensive surveillance of Plaintiff and her husband over a collective period of
more than four yearspossibly six.
Mark Rathbun in 2007.
Monty Drake actually began the investigation of
See Deposition of Monty Drake at 52:16-19.
He started
Page 1 o f 2 5
3753
investigating M a r k Rathbun for potential Scientology trademark violations. See Affidavit

of Monty Drake f 7. ' Scientologist David L u b o w has likewise stated that he is a private
investigator and filmmaker and w a s hired by C S I ' s attorney Elliot Abelson prior to 2009
to investigate Mr. Rathbun in support of prospective litigation regarding alleged
violations by Mr. Rathbun of intellectual property rights owned by CSI. See Affidavit of
David Lubow Yh 3-4.
2.
Certain of the activities about which Plaintiff complains were conducted
by persons calling themselves the "Squirrel B u s t e r s " beginning in April 2 0 1 1 . Defendant

CSI admits that it prompted and sponsored the Squirrel Busters. See Affidavit of Allan
Cartwright @ T[ 2 3 . "Squirrel Buster" Richard Hirst indicates that his first involvement
came after h e was notified of the proposed activities when he "received a call from a staff
member of the Church of Scientology International" (Defendant CSI). See Affidavit of
Richard Hirst @ ^[ 5.
Wanting to assist Scientologists to document Mark Rathbun's
"provision of 'squirrel' Scientology," C S I ' s Legal Director Cartwright acknowledges that

CSI provided financial and legal support. See Affidavit of Allan Cartwright @ Tf 2 3 .
3.
In his declaration filed by Defendant CSI, Hirst admits the Squirrel
Busters instigated the first Ingleside on the Bay confrontation on "the very first day" at
the Rathbuns' front door purportedly to conduct a "technical inspection" of Mark
Rathbun's procedure as a Scientology minister/auditor. See Affidavit of Richard Hirst @
K 10. This initial Squirrel Buster event w a s video-taped and s h o w n in court displaying
numerous Squirrel Busters at the Rathbuns* door wearing distinctive provocative t-shirts
portraying Mark Rathbun as a squirrel with a red-slashed circle over the depiction and
'
Defendants CSI, Monty Drake, and David Lubow use the same affidavits and declarations in their
Anti-SLAPP motions.
Each motion will be referred to as "Defendants' Anti-SLAPP Motions,"
collectively.
Page 2 o f 2 5
3754
several Squirrel Busters had video cameras and microphones of their o w n , including
some with head-mounted cameras, lights, etc. From this point forward, it is clear, and the
Court so finds, that few if any "confrontations" were civil with both sides either initiating
or reciprocating. See various declarations filed either in support of or in response to the
Anti-SLAPP motion to dismiss.
4.
Defendant Ed Bryan was sent from California by the Office of Special
Affairs ("OSA"), a division of CSI, to j o i n the Squirrel Busters in Texas. O n July 13,
2011, Bryan wrote:
. . . . This is in co-ordination with OSA Int. They are calling the shots
and quite frankly I don't think it is very effective. The reporters came
to our house the other day and w e didn't tell them very m u c h . Our
main guy went back to discuss with t h e m a different strategy. T h e rat
is getting more brazen and yesterday I actually had a 1 minute c o m m
cycle with him while he was on a walk. The guy is nuttier than a
fruitcake. He's gone off the deep end. Taking him down will be no easy
task
See Exh. E to Plaintiffs 2 n d Amended Response to AntiS L A P P Motions to Dismiss [emphasis
added],
"[rjn the vicinity of the Rathbun home/office," Joanne Wheaton "regularly
participated" in the Squirrel Buster activities "[o]ver a period of several months."
See Declaration of Joanne Wheaton @ Iffl 3 & 6.
While doing so, a house was
rented by L u b o w two blocks from the R a t h b u n s ' "home/office" for W h e a t o n and

other Squirrel Busters to stage their activities from which a golf cart w a s also
utilized to travel back and forth. Id. @ ^[ 4. The participating individual "Squirrel
Busters" varied from time to time as they left and returned at different times for
different reasons. Id. @ 14. See also Affidavit of Richard Hirst @ 1] 7.
A videographer, Bart Parr, was hired by private investigator Dave, a.k.a.
David, L u b o w to film the project "at or near Rathbun's office." See Declaration
Page 3 o f 2 5
3755
of Bart Parr @ IfiJ 4 & 6. The project occurred "over a period of approximately 6
months." Id. @ 6. Evidence identifies, and the Court so finds, the period of time
of the Squirrel Buster activities as having started and ended, respectively, in April
2011 and in September 2 0 1 1 .
See Affidavit of Richard Hirst @ ^ 10 and
Declaration of Joanne Wheaton @ K 14.

5.
T h e investigators, videographers and Squirrel Busters "interacted with the
Rathbuns many [possibly "hundreds" of] times over a period of these several months,
usually when the golf cart w a s parked near their office [on a dead-end street when]
filming
was ongoing, or [when] traveling about the little town."
Joanne Wheaton @ 1 6.
See Declaration of
In addition, private investigator Monty Drake utilized
"surveillance, photographing, videotaping and static cameras" to film areas "outside the
Rathbuns' office/home" in part from inside a second house rented by Drake across the
street from the Rathbuns.
See Affidavit of Monte Drake @ H 9.
Without any time
limitation, Drake acknowledges that he was able "to observe persons c o m i n g and going
from the Rathbuns' office/home."
See Id.
For several months, w h e n the Rathbuns left
their home, the Squirrel Busters group appeared in a golf cart to confront the Rathbuns
with video cameras and taunts. See Mark Rathbun Declaration in Support of Plaintiffs
Second Amended Response to Defendants' Motion to Dismiss 2 ^[ 27. Due to both this
constant surveillance and the Squirrel Buster activity cited above, Defendants knew when
Plaintiff left h o m e and when she was home alone due to her husband having left their
residence. See First A m e n d e d Declaration of Monique Rathbun in Support of Plaintiff's
Hereinafter referred to as "Mark Rathbun Declaration."
Page 4 o f 2 5
3756
Second Amended Response to Defendants' Motion to Dismiss 3 fflf 11, 11a, l i b , H e , 13a,
13c, 15, 15a and 15b. W h e n her husband was out of town, Plaintiff was visited at home
on several occasions by u n k n o w n individuals w h o refused to give their n a m e s . Id. @ ^ 5.
6.
Bert Leahy was also hired as a videographer for the Squirrel Busters
group. He was told by Defendant L u b o w that L u b o w had t w o private investigators who

were engaged in surveillance of Plaintiff and her husband and were able to keep track of
the Plaintiff's movements on a 24/7 basis. See Declaration of Bernard " B e r t " Leahy ^ 6.
Leahy was directed by L u b o w to film the Squirrel Busters taunting and harassing the
Rathbuns. Id. Although denied by L u b o w {see Declaration of David L u b o w U 4), Leahy
declared to have been told that the purpose of the Squirrel Busters' mission was "to make
the Rathbuns life a living hell" and "to turn their neighbors against t h e m " so that Plaintiff
and her husband would be forced from their residence.
Id.
L e a h y ' s declaration is
corroborated by L u b o w ' s stated desire to, in-part, "create a documentary
showing
[Rathbun's] true nature as a violent, foolish 'squirrel'." Declaration o f D a v i d Lubow @ ^[

12. Assisting in this process, CSI hired Ralph G o m e z as "muscle." See Declaration of
Bert Leahy @ H 6.
7.
N o evidence demonstrates that any of 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 of religious service or ceremony; rather, most of the activities,
including those cited by declarants for Defendant CSI, occurred at locations described by
the declarants as the Rathbuns' " h o m e , " "house," "business/residence," "business,"
"office," "home/office," or "office/home."
See various declarations filed either in
support of or in response to the Anti-SLAPP motion to dismiss.

1
Hereinafter referred to as "First Amended Declaration of Monique Rathbun."
Page 5 o f 2 5
3757
8.
Defendants published information from their Squirrel Buster activity and
continuous surveillance of the Rathbuns on the internet, a dedicated Y o u T u b e channel,

and on a website, which included a section called "Spy C o m e r " that discussed
information obtained by the surveillance of the Rathbuns. See Declaration of Bart Parr @
^| 15. See also Declaration of M a r k Rathbun @ ^1 28. Also published w a s information
about visitors to and from the Rathbun home creating a chilling effect upon Mark
Rathbun 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.
See
First Amended Declaration of Monique Rathbun ^ 6. Squirrel Busters and Scientology

investigators or operatives followed Plaintiff to and from restaurants. Id. ^[ 7g. See also
Declaration of Monte Drake @ \ 11 (Drake and others followed " R a t h b u n ' s car").
See
also e.g.. Declaration of Joanne Wheaton @ U 7 (Mark a.k.a. Marty Rathbun drove a
"large pick-up truck."). Plaintiff w a s similarly followed to and from shopping. See First
Amended Declaration of Monique Rathbun @ H 15a. She was similarly followed while
walking her dog. Id. @ K 8. The Rathbuns were followed even when they took measures
to avoid being seen leaving their house. See Declaration of Mark Rathbun @ f 29.
10.
Statter,
Between September 2010 and December 2012, Lubow, a.k.a.

interviewed
and
confronted
Plaintiffs
family,
friends,
and
David
co-workers
disparaging Plaintiff, her husband, and his family. See Declaration of Franklyn R. Carle
@ T[ 4; Declaration of Tonya Torrez @ ^ 3; Declaration of Doncine Kelly @ H 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
Page 6 o f 2 5
3758
Defendant L u b o w and the other Defendants, Plaintiff gave notice on April 1, 2 0 1 1 , to her
then-employer that she would leave her j o b at the end of that month. See First Amended
Declaration of Monique Rathbun @ HH 1 la, 1 l b , l i e and l i d ; Mark Rathbun Declaration
123.
12.
In October 2012, the Rathbuns discovered D r a k e ' s surveillance cameras
aimed at their residence from a house across the street on the same cul-de-sac. See Mark
Rathbun Declaration @ ^ 2 8 ; First Amended Declaration of Monique Rathbun @ ^[ 13
and 13a. Drake attested thoroughly that his surveillance and investigative efforts sought:
information concerning (a) crimes or wrongs d o n e or threatened against C S I or
other churches of Scientology, (b) the identity, habits, conduct, business,
occupation, honesty, integrity, credibility, knowledge, activity, movement,
whereabouts, affiliations, associations, transactions, acts, reputation, or character
of Rathbun and those associated with him, (c) the location, disposition and
recovery of misappropriated or stolen property, or (d) securing evidence to be
used before a court or for complaints to appropriate law enforcement.
See
Affidavit of Monte Drake @ f 10. See also substantially similar
affidavit of David L u b o w @ ^ 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. See First
Amended Declaration of Monique Rathbun @ HH 1 1 , 11a, l i e and 14.
14.
T h e m o v e caused the Rathbuns to lose $36,000 in lease/purchase equity in
their Ingleside on the Bay home. See First A m e n d e d Declaration of M o n i q u e Rathbun @

H i l l , l l a , l i e and 14.
15.
In spite of efforts to find a secluded n e w homesite, Scientology agents
resumed tailing the Rathbuns in Bulverde and San Antonio, Texas, while Mark Rathbun
continued to "counsel" Scientologists.
See First Amended Declaration of Monique
Rathbun @ H 15a; Declaration of M a r k Rathbun @ f 32. The Rathbuns also discovered
Page 7 o f 2 5
3759
custom-adapted surveillance cameras in the woods behind their home in Bulverde.
See
First A m e n d e d Declaration of Monique Rathbun @ f 15, 15a; Declaration of Mark

Rathbun @ ^ 3 3 . Defendant Sloat answered a phone call from Mark Rathbun using a
number found near the cameras.
See Declaration of Mark Rathbun @ "D 33.
Sloat
acknowledges that he was hired to see who Mark Rathbun "was seeing [as] clients"
that "the object of [the investigation] was Mark Rathbun's associations and
dealings."
16.
See Affidavit of Steven Gregory Sloat @ m 5 & 11 [emphasis
and
business
added}.
After Plaintiff moved to Bulverde, Defendants' agents or contractors also
appeared at Plaintiffs new place of work and followed Plaintiff to the ladies room, and
the same individual also followed Plaintiff to the grocery store.
See First Amended
Declaration of Monique Rathbun @ f 15a.

17.
Plaintiff has demonstrated that she has been personally harmed and injured
as a result of these activities in both Ingleside on the Bay and Bulverde.
See First
Amended Declaration of Monique Rathbun @ m 5, 7d, 7h, 1 l b , l i e , 15a, 16, & 16a.
18.
O n August 16, 2013, the Court issued a Temporary Restraining Order
against the harassment.

19.
Plaintiff received counseling and auditing services from Mark Rathbun.
See Affidavit of Allan Cartwright @ ^ 7 (quoting Mark Rathbun as justification to apply

term of "squirrel").
Further, 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 same "tech" ("correctly applying Scientology
procedure") and services offered by the Church of Scientology.
See Affidavit of John
Allender @ T[ 9 in support of Defendants' Anti-SLAPP Motion. See Affidavit of David
Page 8 o f 2 5
3760
Lubow @ m 9 and 10. See Affidavit of Allan Cartwright @ m 5 to 8, 10, 1 3 , 1 5 , 17, 2 3 ,

& 27, in support of Defendant C S I ' s Anti-SLAPP Motion. These business services were
offered in competition to similar goods or services offered by Defendant C S I ' s and/or its
missions or other affiliates in the Church Scientology.
See Defendant C S I ' s Motion to
Dismiss @ If 9, citing Affidavit of Allan Cartwright @ m 5 to 8.
See Affidavit of
Defendant David L u b o w @ IJIO.

20.
Both orally and in writing. Defendants have admitted, asserted and argued
that their activities, directed at and having an effect upon Plaintiff, were connected with,
or in relation to, M a r k Rathbun's alleged involvement
in offering
unauthorized
Scientology services including auditing, using protected Scientology "technology" in a

manner not approved by Defendant CSI, and profiting from a business using such
services offered from and provided at, his and Plaintiff's residence in Ingleside on the
Bay and Bulverde, Texas.
See citations in m 17 & 19 above.
See also Affidavit of
Monte Drake @ f 12. O n February 4 , 2014, counsel for Defendant CSI argued that the
Rathbun home was a place of business using Scientology practices for a fee that were
allegedly advertised on C r a i g ' s List. See Reporter's Transcript 146:22; 147:9; 151:23;
and 158:6-159:8. Defendant C S I ' s Counsel implicitly agreed, and the Court so finds, that
investigating and protecting the value of the trademarks is a primary function and
responsibility
of Defendant
CSI as the
exclusive
licensee
o f Defendant
RTC's
trademarks. See Id. @ 157:14-158:24 & Page 2 o f Defendant C S I ' s P o w e r Point court
presentation (copy attached).
Page 9 o f 2 5
3761
21.
A s Defendant CSI asserts and argues, Mark R a t h b u n ' s activity of offering
Scientology services is a business.
If so, the Church's o w n activity of
offering
Scientology services is also a business.

22.
The
complained-of
activity,
which
Defendants
claim
was
in-part
documentary making, reporting, and protesting at Mark Rathbun's "office," was intended
to and/or did h a v e an effect (be it positive or negativedepending upon perspective) on a
specific
audience
of
consumers^principally
those
interested
in
Scientology
"technology," including Scientology members, former m e m b e r s such as M a r k Rathbun,

and non-member users of the technology such as Plaintiff. See e.g.. Affidavit of Allan
Cartwright @ m 23-24 (Although Cartwright also claims pamphlets were distributed to
citizens of Ingleside, the evidence lacks weight and credibility due to his lack of personal
knowledge coupled with the fact that no Squirrel Buster attested to such activity.);
Affidavit of David L u b o w @ m 11-12; Affidavit of John Allender @ m 6-9; Declaration
of Bart Parr @ m 5> 6> 8> &
15
; Declaration of Joanne Wheaton @ m
2 4
- >
6 &
10
First
Amended Declaration of M o n i q u e Rathbun @ m 7, 7a, 7b, 7c, 9, 10, 1 Id, 13, 13a & 14;
Declaration of Mark Rathbun @ m 28-30. Further, no credible evidence from an uninterested witness indicates an intent by any of the CSI defendants, collectively, to
genuinely inform the general public as their audience. While Scientologist Lubow does
aver that the purpose of the documentary and protest was to educate the general public,
he did so only after stating that the purpose was primarily to educate other Scientologists.
See Affidavit of David L u b o w @ 1] 11.
See also the substantially similar sentence in
Declaration of John Allender @ f 6.
As to his self-serving statements, Allender's
credibility is suspect in that h e admits filing a fictitious public d o c u m e n t w i t h the City of
Page 10 of 25
3762
Campbell, California to create a business name for "Squirrel Buster Productions." Id. @
17.
23.
The primary reason CSI initiated the complained-of activity was to
investigate alleged infringement of its intellectual property rights by both Mark and
Monique Rathbun allegedly occurring as early as January 2 9 , 2 0 0 9 , if not before.
See
Affiddavit of Allan Cartwright @ m 6, 8, 17 and 27. See Affidavit of Defendant David

Lubow @ U 6. See also Deposition of Monty Drake 52:16-19 (investigation began in
2007).
24.
No evidence indicates that either Defendants
C S I or the
Religious
Technology Center has ever sent Mark Rathbun a cease and desist letter or sued Mark or
Monique Rathbun for infringement of intellectual property rights or any other cause of
action. See Declaration of Mark Rathbun @ m 8 & 10. Although H 21 of Cartwright's
Affidavit lists legal cases Mark Rathbun has been allegedly involved in regarding
Scientology in general (not admitted for the truth of the matters asserted), Cartwright
does not, in any of his testimony, point to any litigation wherein C S I has sued Mark
Rathbun for any cause of action.
CONCLUSIONS OF LAW
1.
Any of the foregoing findings of fact that m a y be d e e m e d to constitute
conclusions of law shall be so considered and any finding of fact that also constitutes a
conclusion of law is adopted as a conclusion of law. Any conclusions of law below that
may be deemed to constitute findings of fact shall be so considered and any conclusion of
law that also constitutes a finding of fact is adopted as a finding of fact.
Page 11 of 2 5
3763
2.
Defendants seek dismissal under the Texas Citizen's Participation Act,
Tex. Civ. Prac. & Rem. Code 27.001, et al. (West Supp. 2013) (hereinafter, the
"Act"). Under the Act, the Court has an equal duty to safeguard the constitutional rights
of persons to petition, speak freely, associate freely and otherwise participate in
government to the maximum extent by law and, at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury.
See Tex.Civ Prac. & Rem.
Code 27.002 (West Supp. 2013), Whisenhunt
N o . 06-13-00051-CV, 2013
v Lippincott,
Tex.App. LEXIS 12489, Slip op. @ 6 & n. 11 (Tex.App.Texarkana Oct. 9, 2013, per
filed)
(acknowledging that the Act has a stated dual purpose and that courts must give
"effect to all words so that none of the statute's language is treated as surplusage").
Further, the Court is required to liberally construe the entirety of the Act.
See
Tex.Civ Prac. & Rem. Code 27.011 (b) (West Supp. 2013).
3.
T h e most efficient and judicious hierarchy of the mandatory decisions to
be made by a court in application of the Act is:

a) Does an exemption, with the burden of proof resting on the
nonmovant, preclude further application of Chapter 2 7 pursuant to
Tex.Civ.Prac. & Rem. Code 27.010 (West Supp 2 0 1 3 ) ? r
Although the Act does not expressly assign the burden of proof on the nonmovant, Texas law
generally requires the party seeking benefit of a statutory exemption to prove the matter See generally,
Mclntyre v Ramirez, 109 S W 3d 741, 745 (Tex 2003) (doctor's burden to prove exemption from
emergency care statute) Several Texas Courts of Appeals around the state have recently applied this
concept to exemptions in the Act See Pena v Perel, 417 S.W 3d 552, 555 (El Paso 2013, no pet).
Newspaper Holdings, Inc v Crazy Hotel Assisted Living, Ltd, 416 S W 3d 7 1 , 88-89 (Tex App Houston
[1"] 2013, writ filed Mar 5, 2014) {on rehearing); Better Business Bureau of Metro Dallas, Inc v BH
DFfV, Inc , 402 S W 3d 299, 309 (Tex App Dallas 2013, no pet)
More problematic, however, is determining the applicable yet legislatively-unspecified standard of
proof required to be shown by the nonmovant while shouldering that burden In cases of exemptions that
are disfavored under the law (such as tax exemptions), the party seeking the exemption must, at trial,
clearly show its entitlement thereto See generally. First Baptist/Amanllo Foundation v Potter Co
Appraisal District, 813 S W 2d 192, 195 (Tex AppAmanllo 1991, no writ) (Chief Justice Reynolds
noting standard for fact question of entitlement to tax emption must be clearly proven ), Hammerman &
Gaines, Inc v Bullock, 791 S W 2d 330, n 2 (Tex App Austin 1990, no writ) (superseded by statute)
(now-Chief Justice Jones citing 1979 Texas Supreme Court rationale for strict construction of tax
exemptions that must be clearly shown with all doubts resolved against claimant ) Alternatively, other
Page 12 of 25
3764
b) If not, 5 is the legal action "based on, relates to, or is in response to a

party's exercise of the right of free speech, right to petition, or right of
association," with the burden of proof resting on the movant, pursuant
to Tex.Civ.Prac. & Rem. Code 27.003 (a) (West Supp. 2013) and
applicable definitions in Tex.Civ.Prac. & R e m . Code 27.001 (West
Supp. 2013)?;
c) If so, can "the party bringing the legal action [establish] by clear and
specific evidence a prima facie case for each essential element of the
claim in question" pursuant to Tex.Civ.Prac. & R e m . Code 27.005
(c) (West Supp. 2013)?; and
d)
If s o , c a n "the m o v i n g party [establish] b y a p r e p o n d e r a n c e of the

evidence each essential e l e m e n t o f a valid d e f e n s e to the n o n m o v a n t ' s
claim" pursuant to Tex.Civ.Prac. & R e m . C o d e 27.005 (d) (West
Supp. 2013)?6
situations merit characterization of an exemption (or an exception) as an affirmative defense wherein the
lesser standard of proof of a preponderance of evidence is utilized. See Pedigo v. Austin Rumba, Inc., 722
F.Supp.2d 714, 722-24 (W.D.Tex. 2010) (Noting, as in the instant statute, the absence of legislative intent
to divert from the general rule. Justice Nowlin cites 1974 U.S. Supreme Court authority generally holding
that exemption under Fair Labor and Standards Act is an affirmative defense and cites 1995 Northern
District of Texas authority requiring similar exemptions to be proven, at trial, by a preponderance of the
evidence.).
Since the legislature did not evidence an intent to divert from the U.S. Supreme Court's general
rule and the stated purpose of the Act requires a balancing of interests rather than favoring one over the
other, the Court concludes that the instant exemption is more akin to the latter situation. See Tex.Civ.Prac.
& Rem. Code 27.002 (West Supp. 2013) (balance safeguarding freedom of expression versus protecting
rights in meritorious litigation). See also generally. Better Business Bureau, supra @ hdn.8 (Although this
standard of proof is used editorially in the case headnotes on this point and is used within the actual opinion
relative to other issues, the Court's opinion does not utilize the preponderance standard for this specific
issue.). Moreover, a motion under the Act must be filed, if at all, within 60 days of service of the litigation,
absent a showing of good cause. Id. @ 27.003 (b). With limited opportunity for discovery prior to a trial
on the merits, it would be unreasonable to require a litigant, at such an early stage, to prove the case to a
standard higher than would be required at the end of the litigation post-full discovery. As a counterpoint,
one could rationally argue that a standard less than a preponderance, such as a prima facie standard, should
be used due to the extreme early staging of such motions. Nonetheless, the Court will adhere to the
preponderance standard to determine application of any statutory exemption based upon the constraints of
the appropriate authorities cited above.
5
On the day ending the Court's hearings on the anti-SLAPP motion (Feb. 14, 2014), Defendant CSI
filed a "Supplementary Memorandum" supporting its motion arguing for the first time that no exemption
should be considered on the basis that Plaintiff failed to explicitly plead such matters- Even if true, much
of the evidence, the questions from and answers to the Court, and the arguments of counsel from all sides
reflect that the issue of exemptions were actively being tried; thus, the Court concludes the exemption
issues were tried by consent. To the extent one may argue to the contrary, the Court would grant a trial
amendment necessary to satisfy any explicit pleading requirement.
*
Depending upon the flow of the resolution of these issues, other tangential decisions are to be
explored regarding recovery of costs, fees, and expenses as well as application of potential sanctions. See
Tex.Civ.Prac. & Rem. Code 27.009 (West. Supp. 2013).
Page 13 of 25
3765
Based upon the findings of fact, 7 the Court concludes that a preponderance
4.
of the evidence demonstrates that CSI and its agents are "primarily engaged in the
business of selling or leasing goods or services" consistent with the intent and meaning of
Tex.Civ.Prac. & Rem. Code 27.010 (b) (West Supp. 2013).
Other courts have made
similar findings and the resulting conclusions. See e.g., Hernandez
v. Comm V, 490 U.S.
680, 6 8 1 , 685 (1989) (On findings that: "The Church charges a 'fixed donation,' also
known as a ' p r i c e ' or a 'fixed contribution,' for participants to gain access to auditing and
training sessions.
These charges are set forth in schedules, and prices vary with a
session's length and level of sophistication.", the Supreme Court upheld the conclusion
that payments, which are the primary
franchises
of
the
mother
church,
source of income to missions, branches and

by
Scientology
patrons
were
not
deductible
contributions due to receipt of consideration and benefits.); id. at 692 (concluding that the
church "categorically barred provision of auditing or training sessions for free"); The
Founding
Church
of Scientology
of Washington,
D.C. v. United States,
409 F.2d 1146,
1159 (D.C. Cir. 1969) ("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. A m o n g these are the introductory works describing Scientology, and
it is presumably these works, if any, which are pressed upon curious members of the
public in any effort which might be made to promote the sale of Scientology services.").
Accordingly, the evidence sufficiently establishes Scientology is primarily in business to
sell a good or servicebe it religious or otherwise.
7
For the purpose of evaluating the evidence in support of an exemption, 27.010 of the Tex.Civ.Prac. &
Rem. Code (West Supp. 2013) does not require that the evidence considered be "clear and specific" as the
Act does in 27.005 (c) for the purpose establishing "a prima facie case for each essential element of the
claim in question." Thus, the Act does not preclude the Court, as to the exemption issues, from making
reasonable inferences and deductions from the evidence admitted.
Page 14 of 25
766
5.
Based upon the findings of fact supported in-part by the Defendants' and
movants' testimony b y Allender, Lubow, Cartwright and others, the Court concludes that
a preponderance of the evidence demonstrates that the litigated "conduct [arose] out of
the sale . . . of goods, services,
. . . or a commercial transaction" consistent with the
intent and meaning of Tex.Civ.Prac. & Rem. Code 27.010 (b) (West Supp. 2013). As
investigator and avowed Scientologist David L u b o w put it, "Rathbun w a s engaged in
delivering Scientology services and counseling at his office/home, for compensation,
even though he had been expelled from the religion and possessed no religious authority
to provide Scientology services to anyone." Affidavit of David L u b o w @ Tf 9. See also
Affidavit of Monty Drake @ ^ 12.
The Legal Director for C S I ' s Office of Special
Affairs Allan Cartwright testified that:

The Rathbuns' [ M a r k ' s and Monique's] unauthorized counseling practice . . . [for
his "Independent Scientology" services . . . which is h o w he earns his living] was
an immediate cause for concern [for those] charged with the protection of the
Scientology religion, all churches of Scientology as well as these [sic] intellectual
properties and the enforcement of C S I ' s rights. This was a primary reason for
CSI's decision to have counsel retain an investigator to help determine the nature
and extent of any possible infringements. Affidavit of Allan Cartwright @ m 15
&17.
But for the preponderate evidence of Defendant C S I ' s apprehension of intellectual
property rights violations by former 20-plus year Scientology employee and nowcompetitor Mark Rathbun and his alleged sale of unauthorized Scientology services, the
extensive-type of commercial piracy investigation such as that declared by Drake and/or
Lubow, instigated as early as 2007, to protect C S I ' s primary business interests would
clearly not have occurred.
opinion)
See generally,
Kinney,
supra Slip op. @ 2
(Memorandum
(general recitation of reasoning of California court, in prior related litigation.
Page 15 of 25
3767
regarding former employer as a current competitor of former employee "and was

therefore exempt from [California] anti-SLAPP statute.").
6.
Based upon the findings of fact, the Court concludes that a preponderance
of the evidence demonstrates that the majority of the conduct and statements about which
Plaintiff complains was, by Defendants' own admissions (in-part, testimony of David
Lubow, John Allender, and Richard Hirst), intended to " c o m m u n i c a t e " to and to affect an
audience of actual or interested potential (current or former) customers of the C h u r c h ' s
own sale of services the C h u r c h ' s displeasure with the competitive commercial activities
of Plaintiff and her husband. T h e evidence also preponderates in favor o f the conclusion
that the "Squirrel Buster" activity was primarily designed to convey the message to other
Scientologist that the R a t h b u n s should stop being "squirrels"one w h o alters standard
Scientology practice and delivers altered Scientology counseling. See Affidavit of David
Lubow @ m 9 & 11.
The record is replete with evidence showing it was CSI who
designed, initiated and funded both the investigations and the Squirrel Busters to
communicate chiefly t o Scientology buyers and customers that the Rathbuns were:
offering a basterdized version of Scientology to former members, and seeking to
entice parishioners to leave the faith with false assertions that his brand of socalled Scientology w a s more correct than standard Scientology delivered in
churches. Affidavit of David Lubow @ H 10.
C S I ' s message to its consumers, by and through its conduct and statements, being, "Pay
us for delivering the good or servicenot Rathbun."
Further, the evidence also
sufficiently establishes that the "communication"the extensive investigations coupled

with the confrontational Squirrel Buster tactics, in fact, did reach and did affect some
individuals within its intended audience in one way or another, including but not limited
to Plaintiff, Mark Rathbun. Mike Rinder, John Brousseau, Michael Fairman, Stephen
Page 16 of 25
3768
Hall, David Lingenfelter, Mercy Lingenfelter, Mark a.k.a. M a t Pesch, A m y Scobee, and
Debbie Jean Cook as well as Allan Cartwright, Joanne Wheaton, Richard Hirst, David
Lubow, John Allender, and Ed Bryan.
7.
A s such. Defendants' motions are precluded by the provision of the Texas
Citizen's Participation Act exempting from reach of the statute legal actions brought
against persons "primarily engaged in the business of selling or leasing goods or services,
if the statement or conduct arises out of the 8 sale or lease of goods, services, . . . or a
commercial transaction in which the intended audience is an actual or potential buyer or
customer." Tex. Civ. Prac. & Rem. Code 27.010(b) (West Supp. 2013).
8.
Additionally or alternatively, the Court concludes that a preponderance of the
evidence demonstrates that the complained-of actions caused Plaintiff bodily injury as
defined
by Texas law.
"Bodily injury" includes "physical pain, illness, or any
impairment of physical condition." Tex. Penal C o d e 1.07(8) (West Supp. 2013).

Zurich American
In
Ins. Co. v Nokia. Incorp , 268 S. W . 3 d 4 8 7 , 4 9 2 (Tex. 2008), then-Chief
Justice Wallace Jefferson wrote for the Court and held, without regard to the merits, that
"biological injuries or effects [qualified] as bodily injury," from a pleading construct in
an insurance duty-to-defend case
While the Court noted that the "bodily injury"
definition "unambiguously requires an injury to the physical structure of the human

body," td citing Trinity Universal
Ins. Co. v. Cowan,
945 S.W.2d 819, 823 (Tex. 1997),
it likened and found sufficient allegations that "radio frequency radiation . . . causes an
8
Defendant CSI argues this provision requires that it, CSI, must have been the person (or entity) to have
sold or leased "the" good or service from which the litigated statement or conduct flowed To apply such a
construct would necessarily limit application of the Act to being a one-way street. Applying the Act in
such a fashion inherently gives a preference to the one party over another which would be contrary to the
stated purpose of the Act that a court balance the respective rights of the litigants and would be contrary to
the premises of standard statutory construction as stated by the Third Court of Appeals in its recent
consideration of the Act
Kinney v BCG Attorney Search, Inc, No. 03-12-0579-CV, Slip op @ 3
(Tex App Austin, Aug 2 1, 2013, pet ) (Memorandum Op ) (citations omitted).
Page 17 of 25
3769
adverse cellular reaction and/or cellular dysfunction ('biological injury')" to allegations

of "subclinical tissue damage that results on inhalation of a toxic substance such as
asbestos." Zurich, supra @ 492-93 (quoting
Guar. Nat'I Ins. Co. v. Azrock Indus.,
Inc.,
211 F.3d 239, 2 4 5 , 250 (5 t h Cir. 2000)).

9.
The definition of bodily injury is broad enough to cover "[a]ny physical pain,
however minor."
Garcia
v. State, 367 S.W.3d 6 8 3 , 688 (Tex.Crim.App. 2012)
citing
Laster v. State, 275 S.W.3d 512, 524 (Tex.Crim.App. 2009). In 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 of common intelligence understand pain and some of the
natural causes of it." Id. Taking instruction from both the Supreme Court's and Court of
Criminal A p p e a l s ' respective pleading and merits decisions on what qualifies as "bodily
injury," the exception embodied in 27.010 (c) is not, as suggested
in C S I ' s
"Supplemental M e m o r a n d u m in Support of Anti-SLAPP M o t i o n " at ^ 10, restricted to

claims arising directly from a traumatic event. Rather, the definition is broad enough to
include claims supported by sufficient evidence demonstrating physical manifestations of
pain, anxiety, emotional distress, stress, illness or other impairment of condition
regardless of the m e c h a n i s m of injury.
10.
she suffered
Plaintiff sufficiently established by a preponderance of the evidence that

stress, anxiety and fear that resulted in severe headaches, including
migraines with debilitating pain due to the surveillance of investigators and Squirrel
Bustersshe further attested that as a result of these activities she suffered an extreme
gagging nausea, and Plaintiff averred she developed a hyper-sensitivity to light and was
unable to eat or concentrate due to the headaches.
See e.g.. Declaration of Monique
Page 18 of 25
377G
Rathbun @ m 7d, l i e , 1 Id, 15a & 16a. Accordingly, Defendants' motions are precluded
by the provision of the Texas Citizen's Participation Act exempting from the reach of 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 the sake of argument that neither the commercial
exemption nor the bodily injury exemption preclude application of the Act, the Court will
address as succinctly as possible the pertinence of whether Plaintiffs legal action is
based on, relate to, or are in response to Defendants' exercise of the right of free speech,
right to petition, or right of association.
See Tex.Civ.Prac. & Rem. Code 27.003 (a)
(West. Supp. 2013). Following the grammatical syntax and structure of this statute, no
party to this litigation disputes that the current dispute is a "legal action." Next, the focus
is whether that action "is based on, relates to, or is in response t o " Defendants' freedoms
of expression.
If so, did the Defendants meet their burden of proof regarding the
"exercise of the right of free speech, right to petition, or right of association" as defined
by 27.001, Tex.Civ.Prac. & Rem. Code (West. Supp. 2013)?
Then and only then
would a court need to go further in the analysis regarding the adequacy of the
nonmovants' proof on the essential elements, etc. See generally.
Conclusion of L a w @ f
3.
12.
Regardless of the merits of her claims seeking damages in tort for personal
injury. Plaintiffs pleadings sufficiently and legally allege c o m m o n law tort causes of
action, in-part, for bodily injury.
It has been said that one person's rights end where
another's nose beginsmeaning, in the converse, that the farther and farther one intrudes
into the space o f another, the more diminished are the rights of the intruder. So too is it
Page 19 o f 25
3771
with the balance of the rights at issue here.
In Zurich,
supra,
the Supreme Court
concluded, regardless of the merits, that a petition alleging that "radio frequency radiation
. . . causes an adverse cellular reaction and/or cellular dysfunction ('biological injury')"
was a legally sufficient pleading for bodily injury such that it triggered a contractual duty
to defend under certain insurance policies in question. The converse of a duty to defend
is a right to prosecute.
13.
Plaintiffs "legal action" seeking redress for personal injury is sufficiently
pleaded in a manner clearly distinguishable from any cause of action that would, as a
matter of law, be "based on, related to, or in response t o " a freedom of expression under
the Act triggering her right to prosecute her claims even if the assertions are eventually
proven to be false, groundless, or fraudulentsubject to possible sanctions if appropriate.
See generally,
thereafter).
Zurich,
supra
@ 490-91 (adequacy of pleadings triggers procedure
Ergo, the need to balance Plaintiffs rights to prosecute her c o m m o n law
claims for personal injury versus the Defendants' rights of freedom of expression arises.
14.
Regarding the proper legal and constitutional balance of the respective
rights of the litigants in this case, all of the parties have argued and relied upon the United
States Supreme C o u r t ' s opinion in Snyder v. Phelps,
U.S.
, 131 S.Ct. 1207, 179
L.Ed.2d 172 (2011). In Snyder, supra 131 S.Ct. @ 1215-18, protestors picketed matters,
which the Court found related to broad issues of societal interest, shortly before and
within the proximity of the funeral a United States Marine killed in the line of duty. As a
result of the Court's finding that the picketed issues were of public concern, Chief Justice
Roberts wrote and the Court narrowly concluded, limited by the facts presented said
absent any controlling exceptions, that the First Amendment
shielded the picketers from
Page 20 of 25
3772
tort liability and precluded recovery of the jury verdict on such c o m m o n law torts by the
fallen marine's family. Snyder, supra @ 1220.
15.
Several salient points arise from Snyder:
a) the necessary balance of the
rights in question w a s determined post-discovery, post-trial and post-verdict; b) Chief

Justice Roberts explicitly expressed the narrowness of the C o u r t ' s ruling noting certain
inapplicable exceptions due to the instant facts; and c) Justice Breyer wrote separately,
concurring, to emphasize that the effect of the majority opinion was to be restricted to the
matter before the Courtthe picketing at-hand. See generally,
Snyder,
supra @ 1217-
21.
16.
Stifling sufficiently pleaded causes of action alleging tortuous conduct and
seeking personal injury damages, prior to discoveryprior to trialprior to verdict, on

the extremely broad or outside chance that the competing interests are "based on, related
to, or in response t o " s o m e form of freedom of expression would have a chilling effect on
potentially meritorious litigation whereby the end might, all too easily, unjustifiably
control the means.
WTiat then to avoid such an absurd effect upon the balance of the
rights of all litigants? Otherwise stated, how might our jurisprudence adequately achieve
the proper balance between the rights granted under both the First
Amendments?
and
Considering Chief Justice Robert's methodology in Snyder,
Seventh
supra
heeding Justice B r e y e r ' s admonition on the limited effect of the majority
and
opinion
factually, prudence dictates that this Court examines the instant record to ascertain
potential applicability of the important exceptions that the Chief Justice noted were not
factually in-play in Snyder.
If the record reveals a bona fide situation or circumstance,
i.e., is there a genuine fact question or not, wherein any of the potential exceptions noted
Page 21 of 25
3773
by the Chief Justice might be in-play here, Plaintiffs Seventh Amendment

trial, i.e., the means,
cannot, prior to discoveryprior to trialprior to verdict, be
preemptively overridden by the Defendants' First Amendment

expression, i.e., the end.
the First Amendment.
Right to a jury
See generally,
Rights t o
freedom
of
Snyder, supra @ 1215 ("Free Speech Clause of
. . can serve as a defense in state tort suits"it goes without debate
that a "defense" is asserted only after a Plaintiff is allowed the opportunity to present her
case factually to a jury) [emphasis
17.
added].
For the limited purpose of this inquiry, the Court presumes that the
Defendants' expressions of speech, petition and association were, to the extent necessary,
public in nature. T h e first "exclusion" from First A m e n d m e n t protections noted by Chief
Justice Roberts is speech that is either obscene or likely to incite a fight. Snyder,
supra
@ n.3. Plaintiff has alleged and factually asserted publication by Defendants of "bizarre"
and "vile" statements about her. First Amended Declaration o f M o n i q u e Rathbun @ f
12.
Both parties h a v e asserted that the other sought to pick fights w i t h one another
during the multiple confrontations at issue, and Defendants hired a b o d y guard or

"muscle" due to their apprehension of Mark Rathbun's alleged propensities for violence.
18.
Another potential exception noted by the Chief Justice is speech, which
although given a " p u b l i c " label at first blush, is determined to be contrived to insulate
from liability on a truly private issue. Snyder, supra @ 1217. Clearly at issue here and
yet to be determined subsequent to discovery, etc is the extent to which the freedoms of
expression espoused by the Defendants were, in fact or not, public in naturethe
"content, form and context" of the speech has yet to be fully developed.
Id. @ 1216.
Further, there is ample evidence to indicate that CSI instigated and prompted, i.e..
Page 22 of 2 5
3774
contrived,
the Squirrel Buster's purported documentaries as a possible ruse to cloak its
efforts with constitutional protection.

19.
T h e majority opinion also noted the possible application of proper
restraints, including an injunction. Snyder, supra @ 1218. Currently awaiting resolution

in this very case is the existing agreed extension of a temporary restraining order so that,
in-part, the anti-SLAPP motions could be timely addressed.
20.
Lastly, the Supreme Court discussed the limited and sparing applicability
of the "captive audience doctrine . . . dependent u p o n a showing that substantial privacy

interests are being invaded in an essentially intolerable manner." Snyder, supra @ 121920.
While it is undisputed that much of the complained-of activity and alleged
harassment occurred at or in the vicinity of the Plaintiffs home, the true degree of the
alleged invasion, if at all, is yet to be fully developed.
This is clearly a fact-driven
determination that c o m m a n d s adequate discovery and opportunity to develop that the

time constraints of the Act d o not countenance.
21.
T h e Court concludes that numerous fact issues are substantiated with
enough evidence that if allowed to be fully developed could possibly ripen into one of the
exceptions discussed b y the Supreme Court in Snyder,
supra.
As a result, preemptively
dismissing any such legal action simply because it is s o m e h o w "based on, related to, or in
response to" the defensive issue of freedom of expression would lead to an absurd result
with the end unjustifiably controlling the m e a n s .
Accordingly, Defendants are not
entitled to file a motion to dismiss under the Texas Citizen's Participation Act. See
27.003, Tex.Civ.Prac. & Rem. Code (West Supp. 2013). Having reached this result, the
Court need not dive headlong into the much lengthier and potentially complex ultimate
Page 2 3 of 25
3775
issue regarding the constitutionality of the Act from either a Seventh A m e n d m e n t

perspective
from the federal side or an open
courts perspective
from
the
state
constitution.
22.
The instant result precludes the necessity of any further review of the
parties' respective burdens of proof on the remaining issues, and the Court expressly
makes no opinion on any such issue. Defendants' motions are, nonetheless, without
merit and are D E N I E D . Tex.Civ.Prac. & Rem. Code 27.003(c), 27.005(b) (West
Supp. 2013).
23.
T h e instant record is voluminous, and counsel for all parties have been
extremely thorough in their respective arguments and materials provided the Court.
Accordingly, the Court has endeavored to be just as thorough not only in reading the
evidence, the objections, and the briefs presented but also in conducting independent
research on this relatively new aspect of Texas law. A s a result, the Court declines to
conclude that Defendants' motions, in and of themselves, are frivolous, but the Court
does conclude that the method in which the motions were litigated, from the discovery
to the objections, etc., resulted in hours upon hours of courtroom time that could have
been better spent elsewhere.
Conclusion
Rulings o n the objections were previously completed, and written orders
thereupon will b e filed under separate cover with attachments reflecting said rulings as
soon as possible.
For the foregoing reasons. Defendants' motions under the Act are
Page 24 of 2 5
3776
DENIED. Plaintiff is awarded her court costs a n d attorneys' fees. Tex.Civ.Prac. &
Rem. Code 27.009(b) (West Supp. 2013).
O R D E R E D and S I G N E D on this 14 , h day of M a r c h , 2014.
HonorablefliJi^Wald
Presiding J u d g e
Page 25 of 25
3777
APPENDIX 3
Sloat v. Rathbun, Not Reported in S.W.3d (2015)
2015 WL 6830927
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR
DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas,
Austin.
Stephen Gregory Sloat, Ed Bryan, Church
of Scientology International, David J.
Lubow, and Monty Drake, Appellants
v.
Monique Rathbun, Appellee
NO. 031400199CV
Filed: November 6, 2015
FROM THE DISTRICT COURT OF COMAL COUNTY,

207TH JUDICIAL DISTRICT, NO. C20131082B,
HONORABLE DIB WALDRIP, JUDGE PRESIDING
Attorneys and Law Firms
Ricardo G. Cedillo, L. J. Strieber, III, Isaac J. Huron, Davis,
Cedillo & Mendoza, George H. Spencer, Jr., Clemens &
Spencer, P.C., San Antonio, TX, Gary D. Sarles, O. Paul
Dunagan, Sarles & Ouimet, Thomas S. Leatherbury, Marc
A. Fuller, Vinson & Elkins, LLP, Dallas, TX, Stephanie
S. Bascon, Law Office of Stephanie S. Bascon, PLLC,
Jonathan H. Hull, Ashley Bowen, Reagan Burrus PLLC, New
Braunfels, TX, for appellants.
Leslie Sara Hyman, Elliott S. Cappuccio, Etan Tepperman,
Pulman, Cappuccio, Pullen, Benson & Jones, LLP, Marc F.
Wiegand, San Antonio, TX, A. Dannette Mitchell, Bulverde,
TX, for appellee.
Before Justices Puryear, Pemberton, and Field
OPINION
disclosure of private facts and by intrusion on seclusion, and

tortious interference with contract. In this accelerated appeal,
the Scientology Defendants challenge the trial court's denial
of their motions to dismiss the claims against them pursuant
to Chapter 27 of the Texas Civil Practice and Remedies
Code, a statute entitled Actions Involving the Exercise
of Certain Constitutional Rights and termed the Texas
Citizens Participation Act. See Citizens Participation Act,
82d Leg., R.S., ch. 341, 2, 2011 Tex. Gen. Laws 961, 961
64 (codified at Tex. Civ. Prac. & Rem.Code 27.001.011)
(TCPA); Tex. Civ. Prac. & Rem.Code 51.014(a)(12)
(authorizing interlocutory appeal of order denying motion to
dismiss filed under TCPA section 27.003).
The Scientology Defendants' various appellate issues reduce
to the argument that the trial court reversibly erred by
denying their motions to dismiss because (1) they properly
invoked the TCPA by establishing, by a preponderance of
the evidence, that Rathbun's claims against them are based
on, relate to, or are in response to their exercise of their
rights of free speech, association, and to petition,
and that neither the statute's commercial transaction nor
bodily injury exemption applies, and (2) Rathbun failed to
establish by clear and specific evidence a prima facie
case for each essential element of her four causes of action
as required to avoid dismissal of a claim covered by the
TCPA. See Tex. Civ. Prac. & Rem.Code 27.003(a) (If
a legal action is based on, relates to, or is in response to a
party's exercise of the right of free speech, right to petition,
or right of association, that party may file a motion to
dismiss the legal action.), .010(b) (commercial transaction
exemption), .010(c) (bodily injury exemption), .005(c) (The
trial court may not dismiss a legal action under this section
if the party bringing the legal action establishes by clear and
specific evidence a prima facie case for each essential element
of the claim in question.). The Scientology Defendants also
challenge the trial court's award of attorneys' fees to Rathbun.
See id. 27.009(b) (If the court finds that a motion to dismiss
under this chapter is frivolous or solely intended to delay, the
court may award court costs and reasonable attorney's fees to
the responding party.). We will affirm in part and reverse in
part.
Scott K. Field, Justice

*1 Monique Rathbun sued Stephen Gregory Sloat, Ed
Bryan, Church of Scientology International, David J.
Lubow, and Monty Drake (collectively, the Scientology
Defendants) alleging causes of action for intentional
infliction of emotional distress, invasion of privacy by public
BACKGROUND 1
1
The parties are familiar with the facts of the case,

its procedural history, the pleadings, and the evidence
presented in support of and in opposition to the motions
to dismiss. Accordingly, we will not recite them in detail

in this opinion except as necessary to advise the parties
of this Court's decision and the basic reasons for it. See
Tex.R.App. P. 47.4.
*2 Monique Rathbun is married to Marty Rathbun, a

former member of and official in the Church of Scientology.
Until December 2012, the Rathbuns resided at their home
in Ingleside on the Bay, Texas. In her petition, Rathbun
alleged that, due to relentless harassment and surveillance
of her home and activities by the Scientology Defendants
beginning in February 2009, she and her husband moved
to a wooded lot near Bulverde, Texas, where they hoped
to avoid further contact between them and the Scientology
Defendants. According to Rathbun, after a brief respite the
surveillance and tailing activities continued and, in July
2013, Rathbun discovered a high-tech surveillance camera
mounted on a tree near their new property and aimed at their
house. Rathbun claimed that Sloat contacted her using a false
identity and provided preposterous, false stories to explain
the surveillance cameras and why he was moving an RV onto
this undeveloped property.
Having failed at the efforts to avoid further contact with
the Scientology Defendants and seeking to put an end to
what she described as constant harassment, Rathbun filed
the underlying suit, alleging causes of action against the
Scientology Defendants for intentional infliction of emotional
distress, invasion of privacy by public disclosure of private
facts and by intrusion on seclusion, and tortious interference
with contract. Rathbun also sought a temporary restraining
order and a temporary injunction preventing the Scientology
Defendants from interfering with her employment, invading
her privacy, and inflicting emotional distress on her. The
trial court signed a temporary restraining order enjoining
the Scientology Defendants from conducting electronic
surveillance of Rathbun's home, workplace, or public
activities; making telephonic or electronic threats to her;
following, pursuing, stalking, or tailing her; or contacting
her employer, co-workers, family members or friends.
Thereafter, the Scientology Defendants filed motions to
dismiss Rathbun's suit pursuant to the TCPA, contending that
her claims were based on, related to, or were in response
to conduct constituting the exercise of their right of free
speech, right of association, and right to petition. See
id. 27.001 (containing TCPA's definitions of exercise of
rights of free speech, association, and to petition). The trial
court permitted the parties to conduct discovery related to the
motions to dismiss and, after conducting an extensive hearing,
denied the motion and awarded Rathbun attorneys' fees.

The Scientology Defendants then perfected this interlocutory
appeal.
DISCUSSION
As the movants, the Scientology Defendants bore the
initial burden of demonstrating, by a preponderance of the
evidence, that Rathbun had asserted a legal action that
was based on, related to, or in response to their exercise
of their right of free speech, right of association, or
right to petition as the TCPA defines those rights. See
id. 27.005(b). In applying these standards, Texas courts
including this onehave generally focused solely on the
extent to which the factual bases of a challenged legal
action constitute expression within the TCPA's definitions
of the exercise of the right of free speech, right of
association, or right to petition. See, e.g., Combined
Law Enforcement Ass'ns of Tex. v. Sheffield, No. 0313
00105CV, 2014 WL 411672, at *5 (Tex.App.Austin
Jan. 31, 2014, pet. denied) (mem.op.) (considering whether
communications plaintiffs alleged to be defamatory fall
within TCPA's definition of exercise of right of association);
see also Serafine v. Blunt, 466 S.W.3d 352, 373 (Tex.App.
Austin 2015, no pet.) (Pemberton, J., concurring) ([T]he
focus [of the Texas cases to date] has been solely on the
factual allegations underlying the challenged legal action
and whether they correspond to one of the Act's definitions
of protected conduct, with no consideration of a party's
subjective aims in asserting the legal action. (citing
illustrative cases)). Neither party has presented any reason to
depart from this prevailing view, so we will continue to apply
it here.
*3 It is beyond dispute that Rathbun's lawsuit would
represent one or more legal actions under the TCPA barring
an applicable exemption, an issue we will leave aside for now.
See Tex. Civ. Prac. & Rem.Code 27.001(6) ( legal action
defined as a lawsuit, cause of action, petition, complaint,
cross-claim, or counterclaim or any other judicial pleading or
filing that requests legal or equitable relief); cf. id. 27.010
(certain legal actions exempted from TCPA). The issue,
then, distills to the extent to which her claims are predicated
on expression within the TCPA's definitions of the exercise
of the right of free speech, right of association, or right
to petition. The ultimate question of whether a particular
factual basis for a legal action qualifies as expression within
the TCPA's definitions is a question of law that we review de
novo. See Serafine, 466 S.W.3d at 357; Newspaper Holdings,

Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80
(Tex.App.Houston [1st Dist.] 2013, pet. denied). As for
a trial court's determination of what the factual bases for a
legal action are, the standards governing our review are less
clear. See Serafine, 466 S.W.3d at 369 & n.28 (Pemberton,
J., concurring). 2 We can conclude, however, that we look
to the pleadings, affidavits, or other evidence. See Tex. Civ.
Prac. & Rem.Code 27.006(a) (the court shall consider
the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based); see
also id. 27.006(b) (contemplating that additional evidence
adduced in discovery can also be considered); Serafine, 466
S.W.3d at 360 (recognizing that pleadings may be considered
as evidence, contrary to general rule). Importantly here, we
also view them in the light most favorable to Rathbun, who
is both the nonmovant and the prevailing party below. See
Serafine, 466 S.W.3d at 369 n.28 (Pemberton, J., concurring)
(Under either standard of review, the Court would view the
pleadings and evidence in the light most favorable to the
Blunts, who are both the non-movants and the prevailing
parties below.); see also Cheniere Energy, Inc. v. Lotfi,
449 S.W.3d 210, 214 (Tex.App.Houston [1st Dist.] 2014,
no pet.) (reviewing pleadings and evidence in light most
favorable to non-movant); Newspaper Holdings, 416 S.W.3d
at 8081 (applying same standard and citing Miranda in
support). 3
2
In his concurring opinion in Serafine, Justice Pemberton

observed that the TCPA's use of a preponderance
of the evidence standard would ordinarily suggest
that a fact finder (here the trial court) ascertains facts
based on its assessment of the weight and credibility
of competing evidence, including live testimony, with
appellate review that correspondingly views the evidence
in the light most favorable to the explicit or implicit fact
findings supporting the trial court's order. See Serafine
v. Blunt, 466 S.W.3d 352, 369 n.28 (Tex.App.Austin
2015, no pet.) (Pemberton, J., concurring). The TCPA's
procedural framework, however, seems to contemplate
an analysis more closely akin to that governing evidencebased pleas to the jurisdiction under Texas Department of
Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004),
under which the factual allegations in the claimant's
petition are liberally construed in favor of jurisdiction,
presumed true unless negated by evidence, and any
evidence is viewed in the light most favorable to the
claimant, similar to summary-judgment practice. See id.
In the event the correct standard is a traditional review

of the legal and factual sufficiency of the evidence,
such that fact findings by the trial court could become
relevant, we do not understand the trial court's order in
this case to make any explicit fact findings that would be
contrary to the facts that we would imply in favor of the
order. While the court does at times appear to assume the
Scientology Defendants' characterizations of Rathbun's
claims, it does so for purposes of analyzing other issues,
such as the applicability of the exemptions contained in
TCPA section 27.010.
In sum, our inquiry is: (1) what the factual bases for Rathbun's
claims are, based on the pleadings and evidence viewed
in the light most favorable to her; and (2) the extent to
which these factual bases, as a matter of law, are protected
expression within the TCPA's definitions. Implicit in this
analysis is that we do not blindly accept attempts by the
Scientology Defendants to characterize Rathbun's claims as
implicating protected expression. To the contrary, we view
the pleadings in the light most favorable to Rathbun; i.e.,
favoring the conclusion that her claims are not predicated
on protected expression. Likewise, any activities by the
Scientology Defendants that are not a factual predicate for her
claims are simply not pertinent to the inquiry. See Tex. Civ.
Prac. & Rem.Code 27.003 (party may file motion to dismiss
if legal action is based on, relates to, or is in response to
protected conduct).
*4 Viewed in the light most favorable to Rathbun, she
bases her claims on the following alleged facts. Rathbun
married Marty Rathbun in 2005. In 2004, Marty Rathbun
had left his position as the second highest ranking official
in the Church of Scientology's organization and was living
in anonymity in South Texas. Marty Rathbun averred that
in 2009 he was approached by the media requesting to
interview him about Scientology and he granted those
requests in an attempt to temper what he perceived as
escalating mistreatment of members of the Church of
Scientology's clergy at the direction of David Miscavige,
the highest ranking Scientology official. According to Marty
Rathbun, media interest in him waned by the end of 2010,
but was revived by the Scientology Defendants' activities
at Ingleside on the Bay, including their surveillance and
tailing of the Rathbuns. Rathbun was never a member of
the Church of Scientology, did not join her husband in
speaking out about Scientology issues, and did not take
a public position regarding Scientology. Rathbun's only
connection to Scientology was her marriage to a prominent
former Scientologist. Nevertheless, Rathbun alleged, the
Scientology Defendants have engaged in a three-year

campaign of ruthlessly aggressive misconduct against her,
which continued, unabated, until she filed suit in 2013.
According to her petition, the campaign against her was
part of a coordinated effort by the Scientology Defendants,
conducted pursuant to Scientology's written policies and
procedures, to threaten that which an enemy seeks to
protect, i.e., Marty Rathbun's family. 4
4
The record includes the affidavit of a professional

videographer initially hired by the Scientology
Defendants to provide videography services in which
he avers that defendant David Lubow told him the
purpose of going to Ingleside on the Bay was to
make the Rathbuns life a living hell and to turn their
neighbors against them so they would be forced to
move. Also included in the record is the affidavit of
another former Scientologist who occupied a high-level
position in Scientology in which he averred that the
following is an excerpt from Scientology's operations
manual that outlines how the organization deals with
people it perceives as attackers of Scientology:
1. These persons can always lose their jobs. These
jobs, permitting them power to destroy, are valuable
to them. This is a POINT OF VULNERABILITY.
2. If the person's job is also not valuable to him or
if he cannot be made to lose his job, something can
be found which he is seeking to protect and it can
be threatened.
A. COUNTERATTACK TO OBTAIN THE
REMOVAL OF THE PERSON with a product of
DISMISSED ATTACKER.
B. If on test, A is not feasible, SURVEY
TO FIND OUT WHAT THE PERSON
CONSIDERS VALUABLE AND USE IT FOR
RESTRAINT.
According to the former Scientologist's affidavit, this
excerpt reveals Scientology's principle of finding out
what the person [critical of Scientology] is seeking to
protect and threatening that in order to restrain the
attacker.
Rathbun's petition further alleges:

[The Scientology Defendants] have
worked around the clock for three
years to destroy Mrs. Rathbun. She
has been harassed, insulted, surveilled,
photographed, videotaped, defamed,
and humiliated to such a degree
as to shock the conscience of any
decent, law-abiding person. She has
been subject to numerous, aggressive

attempts to intimidate her. Each and
all of the [Scientology Defendants]
have participated enthusiastically in
this abuse, without regard to Mrs.
Rathbun's basic rights as a human
being. She has been targeted at home,
at work, and anywhere else that she
happens to be.
In support of her petition, Rathbun attached her own
affidavit detailing the specifics of the conduct she alleges
was abusive and harassing and, according to her petition,
constitutes intentional infliction of emotional distress,
tortious interference with contract, and invasion of privacy by
intrusion on seclusion and public disclosure of private facts.
These include:
Scientologists appeared at her home after dark to
interrogate her aggressively, refusing to provide their
names and fleeing when Rathbun called the police.
Scientology operatives openly followed her as she
drove to and from work and when she and her husband
took evening walks with their dog, these operatives
would approach them in a golf cart with up to six
cameras filming them and shout insults and rude
questions relating to Scientology.
Rathbun and her husband were publicly harassed by
Scientology agents wherever they went, including at
restaurants and at the beach.
*5 Scientology investigators have visited Rathbun's
mother, father, former husband, friend, and co-workers
and informed them that Rathbun's life was at risk as long
as she remained married to Marty Rathbun.
The Scientology Defendants sent a sex toy to Rathbun at
her workplace and, when she was away from the office,
sent flowers to one of her female co-workers with a
romantic message purporting to be from Rathbun.
Scientology websites published allegations against
Rathbun, including that she was a sexual pervert and
is in reality a man who has had a secret sex-change
operation.
A Scientology private investigator had, from 2009
through 2012, leased a residence across the street from
their Ingleside on the Bay home and installed high-
powered still and video cameras pointed at and into

Rathbun's home.
After the Rathbuns moved from their Ingleside on the Bay
home to seek seclusion in a wooded lot in Comal County,
they discovered that one of the Scientology Defendants
had leased undeveloped property next to their home and
installed a surveillance camera directed at their property.
Rathbun averred that these activities have caused her great
distress and disrupted her privacy and peace of mind and, in
her view, are calculated to damage her relationship with her
husband and his relationship with her family and friends so as
to cause her further harm. Rathbun sought damages for mental
anguish, loss of earning capacity, damage to reputation, and
the financial loss she alleges resulted from the Scientology
Defendants' conduct set forth in her petition.
The Scientology Defendants moved to dismiss Rathbun's
claims pursuant to the TCPA, arguing that the pleadings
and the evidence they filed in support of their motion to
dismiss show, by a preponderance of the evidence, that the
lawsuit was based on, relates to, or is in response to their
exercise of their rights of free speech and association and
the right to petition. See id. 27.005(b), .006. However,
rather than address the specific allegations contained in
Rathbun's petition and on which she claims to base her
causes of action, the Scientology Defendants first endeavor to
recast her petition as complaining principally of the activities
of a group of Scientologists self-described as Squirrel
Busters, 5 including their acts of standing in protest near
Rathbun's property, holding signs of protest, attempting to
speak to passers-by or those entering or leaving the property
about the impropriety of Marty Rathbun's activities, and
filming Marty Rathbun and others in public places as part
of the production of a documentary or video about issues
of potential or public importance, including importance to
Scientologists. According to the Scientology Defendants,
the Squirrel Busters went to Ingleside on the Bay to
document the Rathbuns' abuses and to produce documentary
video of such abuses, including their provision of squirrel
Scientology from their place of business/residence. The
Scientology Defendants presented extensive argument and
evidence to support their contention that the Squirrel Buster
activities fell within the TCPA's definition of the exercise
of the right of free speech, right to petition, or right of
association.
According to the Scientology Defendants, individuals

engaged in the independent practice of Scientology
outside the auspices of the Church of Scientology, as they
maintain Marty Rathbun did, are dubbed squirrels.
*6 To support their contention that Rathbun's petition

is in response to protected Squirrel Buster activity, the
Scientology Defendants point to paragraph 28 of Rathbun's
petition, which states:
The Squirrel Busters operation against the Rathbuns is an
important basis of this lawsuit. Ed Bryan was sent to OSA
from California to join the Squirrel Busters in Texas. On
July 13, 2011, Mr. Bryan wrote the following concerning
the Church's Texas operation against the Rathbuns:
This is in co-ordination with OSA Int. [Office of
Special AffairsChurch of Scientology International].
They are calling the shots and quite frankly I don't think
it is very effective. The reporters came to our house
the other day and we didn't tell them very much. Our
main guy went back to discuss with them a different
strategy. The rat [Marty Rathbun] is getting more brazen
and yesterday I actually had a 1 minute comm cycle
[conversation] with him while he was on a walk. This
guy is nuttier than a fruitcake. He's gone off the deep
end. Taking him down will be no easy task. I just hope he
self destructs before he does more damage to our church.
He has gotten to some OTVIII's and I just can't think
with how stupid they are to actually believe what he is
saying. Bracketed information added.
According to the Scientology Defendants, the inclusion of
this paragraph in Rathbun's petition reveals that her suit
is based on, related to, or in response to their peaceful
demonstrations in protest of Marty Rathbun's attack on the
Church of Scientology, i.e., the activities of the Squirrel
Busters.
We disagree that the allegations in the petition can fairly
be read, in the light most favorable to Rathbun, to support
the Scientology Defendants' characterization of the factual
basis for her claims. Significantly, paragraph 28 appears in a
section of Rathbun's petition titled Additional Jurisdictional
Facts. Rathbun's petition states that the additional factual
allegations made in that section, including those contained
in paragraph 28, were made in response to complaints by
defendants David Miscavige and the Religious Technology
Center that she had failed to plead specific facts to support
personal jurisdiction over them in Texas. 6 The Additional
Jurisdictional Facts section of the petition includes twentyone paragraphs that attempt to demonstrate that, while
Miscavige remains physically outside the State of Texas, he
directed a planned, calculated, multiyear operation against
the Rathbuns in Texas, which included but was not limited to
the Squirrel Busters campaign, 7 such that he is subject to
the jurisdiction of a Texas court. Rathbun's inclusion in her
petition of jurisdictional allegations regarding Miscavige's
allegedly tortious conduct committed in Texas, including
orchestrating the Squirrel Busters campaign, does not
transform her lawsuit into one arising out of, relating to, or
responding to any protected activity the Squirrel Busters
may have engaged in. Rather, viewing the record in the
light most favorable to Rathbun, she complains of specific
activities independent of the Squirrel Busters' protest or
their activities of filming and producing a documentary in
support of their religion. Her claims are based on allegations
of conduct that plainly does not constitute acts of standing
in protest, holding signs of protest, attempting to speak to
passers-by, or making a documentary to defend the Church of
Scientology, as the Scientology Defendants asserted in their
motions to dismiss.
6
Miscavige and Research Technology Center did not file

motions to dismiss under the TCPA and are not parties
to this appeal.
According to the Scientology Defendants themselves,

the Squirrel Busters protest occurred in April 18
21, 2011 and June through September 2011. Rathbun's
petition complains of conduct occurring from 2009
through 2012.
*7 Other than argue that the protest and film production

endeavors of the Squirrel Busters are protected rights of
free speech and thus within the scope of the TCPA, the
Scientology Defendants do not directly address the specific
conduct Rathbun complains of, which includes following her
while she went to and from work, shopping, out to dinner with
friends, and walking her dog. Nor do they explain how alleged
visits to Rathbun's family members, friends, and co-workers
during which they allegedly gave warnings about Rathbun's
personal safety while married to Marty Rathbun, constitute
conduct covered by the TCPA. Moreover, other than deny
having done so, the Scientology Defendants do not address
Rathbun's allegations that they sent a sex toy to her at work
and sent flowers with a romantic message purportedly from
her to a female co-worker.
For a communication to qualify for protection under the

TCPA as the exercise of the right of free speech, the
communication must be made in connection with a matter
of public concern. See id. 27.001(3). Although the
Scientology Defendants contend that their communications
all related to a matter of public concernnamely, the
squirreling of their religious doctrineit strains credulity
to consider the harassing conduct that Rathbun complains
of as having any direct relationship to this issue, to the
extent it could even be considered a matter of public
concern in its own right. See ExxonMobil Pipeline Co.
v. Coleman, 464 S.W.3d 841, 846 (Tex.App.Dallas
2015, pet. filed) (communications about private employment
matter had merely tangential relationship to health, safety,
environmental, and economic concerns and were not
themselves communications about matter of public concern).
Nor are we persuaded by the Scientology Defendants'
argument that Rathbun is either a public figure or a limitedpurpose public figure. See Tex. Civ. Prac. & Rem.Code
27.001(7)(D) (matter of public concern includes issues
related to public figure). The record does not support
the Scientology Defendants' contentions that Rathbun has
made herself a public figure by actively participating in,
rather than attempting earnestly to avoid, the allegedly
public controversy between Marty Rathbun and the Church
of Scientology. The mere fact that she is married to
Marty Rathbun and shares a residence with him does not
automatically place her in the category of people who
have been found to be public figures by virtue of their
relationship to famous people. Compare Carson v. Allied
News Co., 529 F.2d 206, 209 (7th Cir.1976) (wife of Johnny
Carson who herself commanded substantial amount of public
interest considered public figure), with Scaccia v. Dayton
Newspapers, Inc., 867 N.E.2d 874, 881 (Ohio Ct.App.2007)
(fact that plaintiff was married to public official did not
support conclusion that she voluntarily injected herself into
public controversy); see also Gertz v. Robert Welch, Inc., 418
U.S. 323, 352 (1974) (setting forth standard for becoming
limited-purpose public figure, which requires looking to
the nature and extent of an individual's participation in the
particular controversy giving rise to the defamation). 8 In
sum, we conclude that the Scientology Defendants failed to
meet their burden of demonstrating, by a preponderance of
the evidence, that Rathbun's claims arise from their exercise
of their rights of free speech or of association as those terms
are defined in the TCPA.
8
The record, when read in the light most favorable

to Rathbun, supports her claim that her husband's
alleged notoriety resulted primarily from the Scientology

Defendants' campaign to discredit him and is himself, if
a public figure at all, one solely by virtue of becoming
embroiled in a conflict with the Scientology Defendants.
On this record, we cannot conclude that Marty Rathbun's
notoriety, either within the Scientology community itself
or among those interested in the Church of Scientology
generally, constitutes the type of widespread fame that
would transform Rathbun, by virtue of being Marty
Rathbun's spouse, into an involuntary public figure.
*8 The Scientology Defendants also argued in their motions

to dismiss that Rathbun's allegations complaining of video
surveillance by a private investigator reveal that her claims
are in fact based on their retention and use of licensed private
investigators, which they maintain is protected conduct
under the TCPA's definition of the right to petition. The
Scientology Defendants argued that they were investigating
Marty Rathbun's activities, including their claims that he
solicited individuals to steal materials and information
from the Church of Scientology International and other
churches, misappropriated Scientology intellectual property,
made defamatory statements about Scientology churches and
officials, and attempted to instigate criminal investigations
of Scientology churches and officials. According to the
Scientology Defendants, they conducted their surveillance
of Marty Rathbun as part of pre-litigation or pre-petition
investigation that was necessarily incidental to, pertains to,
and is in connection with a potential judicial proceeding and,
consequently, is within the ambit of the TCPA's definition
of the right to petition. See Tex. Civ. Prac. & Rem.Code
27.001(4).
Whether such pre-suit investigation does or does not fall
within the statute's admittedly broad definition of the right
to petition is a question we need not address because, again,
Rathbun's suit is not based on the Scientology Defendants'
attempts to discover facts related to Marty Rathbun's alleged
cloak-and-dagger activities. 9 Rather, hers are garden-variety
tort claims based on specific conduct that the Scientology
Defendants have failed to demonstrate, by a preponderance
of the evidence, implicates the exercise of their rights of free
speech, association, or to petition. The trial court did not
err in concluding that the TCPA does not apply to Rathbun's
suit against the Scientology Defendants. 10
9
Indeed, counsel for the Church of Scientology

International stated during a hearing held in connection
with the motions to dismiss that: Our investigation into
Marty Rathbun for copyright violation is nowhere within
the four corners of any claim that is being asserted in this

case.
10
An article regarding the virtues of the TCPA was

recently published in the Texas Tech Law Review
entitled Bullies Beware: Safeguarding Constitutional
Rights Through AntiSLAPP in Texas. In light of the
Scientology Defendants' attempted use of the TCPA as a
shield to protect the type of conduct alleged in this case,
we find the title of that article ironic.
Having concluded that the Scientology Defendants failed to

establish that the TCPA applies to Rathbun's claims, we need
not address their arguments that the trial court erred in finding
that the statute's commercial speech and bodily injury
exemptions apply to Rathbun's claims. Nor do we reach the
Scientology Defendants' issues regarding whether Rathbun
established a prima facie case for each of the elements of her
four causes of action.
Award of Attorneys' Fees to Rathbun

The trial court's order awarded Rathbun her court costs and
attorneys' fees pursuant to section 27.009(b) of the TCPA.
This section provides:
If the court finds that a motion to
dismiss filed under this chapter is
frivolous or solely intended to delay,
the court may award court costs
and reasonable attorney's fees to the
responding party.
Id. 27.009(b). The trial court's order includes the following
in its conclusions of law:
The instant record is voluminous,
and counsel for all parties have been
extremely thorough in their respective
arguments and materials provided the
Court. Accordingly, the Court has
endeavored to be just as thorough
not only in reading the evidence, the
objections, and the briefs presented
but also in conducting independent
research on this relatively new aspect
of Texas law. As a result, the Court
declines to conclude the Defendants'
motions, in and of themselves, are
frivolous, but the Court does conclude
that the method in which the motions
were litigated, from the discovery
to the objections, etc., resulted in

hours upon hours of courtroom time
that could have been better spent
elsewhere.
*9 The Scientology Defendants assert that the award of
attorneys' fees was not authorized by the statute because the
trial court expressly found that the motions were not frivolous
and did not find that they were solely intended to delay.
Rathbun counters that the trial court found that the motions
were litigated in such a way as to intentionally cause delay,
and that such a finding was supported by the evidence.
We do not agree that the trial court's order can be construed
in a manner that could support an award of attorneys' fees
under section 27.009(b). While the trial court expressly
stated its view that the manner in which the motions were
litigated took time that could have been more productive
if used in other ways, this language cannot be read as a
finding that the motions were filed with the sole intention of
delaying the proceedings. In the absence of such a finding,
an award of attorneys' fees is not authorized by the statute.
See, e.g., Holland v. WalMart Stores, Inc., 1 S.W.3d 91,
95 (Tex.1999) (We have consistently held that a prevailing
party cannot recover attorney's fees from an opposing party
unless permitted by statute or by contract between the
End of Document
parties.). We reverse that portion of the trial court's order

awarding Rathbun court costs and attorneys' fees.
CONCLUSION
The Scientology Defendants failed to demonstrate, by a
preponderance of the evidence, that Rathbun's causes of
action for intentional infliction of emotional distress, invasion
of privacy by intrusion on seclusion and by public disclosure
of private facts, and tortious interference with contract were
based on, related to, or in response to the Scientology
Defendants' exercise of their right of free speech, right to
petition, or right of association. They have therefore failed
to establish that the TCPA applies to this case. Consequently,
we affirm the trial court's order denying the Scientology
Defendants' motions to dismiss. Because the trial court did
not find that the motions were frivolous or solely intended to
delay, the award of attorneys' fees pursuant to the TCPA was
not authorized. We therefore reverse the portion of the trial
court's order awarding Rathbun her court costs and attorneys'
fees.
All Citations
Not Reported in S.W.3d, 2015 WL 6830927
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED NOVEMBER 6, 2015
NO. 03-14-00199-CV
Steven Gregory Sloat, Ed Bryan, Church of Scientology International,

David J. Lubow, and Monty Drake, Appellants
v.
Monique Rathbun, Appellee
APPEAL FROM 207TH DISTRICT COURT OF COMAL COUNTY

BEFORE JUSTICES PURYEAR, PEMBERTON, AND FIELD
AFFIRMED IN PART; REVERSED IN PART -- OPINION BY JUSTICE FIELD
This is an appeal from the interlocutory order signed by the trial court on March 14, 2014.
Having reviewed the record and the parties arguments, the Court holds that there was reversible
error in the portion of the trial courts order awarding attorneys fees to appellee. Therefore, the
Court reverses the portion of the trial courts order awarding attorneys fees to appellee, but
affirms the portion of the trial courts order denying appellants motions to dismiss. Appellants
shall pay all costs relating to this appeal, both in this Court and the court below.
APPENDIX 4
27.005. Ruling, TX CIV PRAC & REM 27.005

27.005. Ruling
Currentness
(a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the
motion.
(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action
against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates
to, or is in response to the party's exercise of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
(c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and
specific evidence a prima facie case for each essential element of the claim in question.
(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the
moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.
Credits
Added by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), 2, eff. June 17, 2011. Amended by Acts 2013, 83rd Leg., ch. 1042
(H.B. 2935), 2, eff. June 14, 2013.

End of Document
APPENDIX 5
27.010. Exemptions, TX CIV PRAC & REM 27.010

27.010. Exemptions
Currentness
(a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of
this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.
(b) This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing
goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance
services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
(c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements
made regarding that legal action.
(d) This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract.
Credits
Added by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), 2, eff. June 17, 2011. Amended by Acts 2013, 83rd Leg., ch. 1042
(H.B. 2935), 3, eff. June 14, 2013.

End of Document
APPENDIX 6
27.002. Purpose, TX CIV PRAC & REM 27.002

27.002. Purpose
Currentness
The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the
rights of a person to file meritorious lawsuits for demonstrable injury.
Credits

End of Document
APPENDIX 7
27.011. Construction, TX CIV PRAC & REM 27.011

27.011. Construction
Currentness
(a) This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other
constitutional, statutory, case, or common law or rule provisions.
(b) This chapter shall be construed liberally to effectuate its purpose and intent fully.
Credits

End of Document
APPENDIX 8
27.001. Definitions, TX CIV PRAC & REM 27.001

27.001. Definitions
Currentness
In this chapter:
(1) Communication includes the making or submitting of a statement or document in any form or medium, including oral,
visual, written, audiovisual, or electronic.
(2) Exercise of the right of association means a communication between individuals who join together to collectively
express, promote, pursue, or defend common interests.
(3) Exercise of the right of free speech means a communication made in connection with a matter of public concern.
(4) Exercise of the right to petition means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding, to administer the law;
(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the
state or federal government;
(iv) a legislative proceeding, including a proceeding of a legislative committee;
(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;
(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or
indirectly from public revenue;
(vii) a proceeding of the governing body of any political subdivision of this state;
(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters
of public concern occurring at the meeting;
(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or
other governmental body or in another governmental or official proceeding;
(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive,
judicial, or other governmental body or in another governmental or official proceeding;
(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a
legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and
(E) any other communication that falls within the protection of the right to petition government under the Constitution of
the United States or the constitution of this state.
(5) Governmental proceeding means a proceeding, other than a judicial proceeding, by an officer, official, or body of this
state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal
government.
(6) Legal action means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief.
(7) Matter of public concern includes an issue related to:
(A) health or safety;
(B) environmental, economic, or community well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product, or service in the marketplace.
(8) Official proceeding means any type of administrative, executive, legislative, or judicial proceeding that may be
conducted before a public servant.
(9) Public servant means a person elected, selected, appointed, employed, or otherwise designated as one of the following,
even if the person has not yet qualified for office or assumed the person's duties:
(A) an officer, employee, or agent of government;
(B) a juror;
(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a
cause or controversy;
(D) an attorney or notary public when participating in the performance of a governmental function; or
(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.
Credits

End of Document
APPENDIX 9
27.006. Evidence, TX CIV PRAC & REM 27.006

27.006. Evidence
Currentness
(a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and
supporting and opposing affidavits stating the facts on which the liability or defense is based.
(b) On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and
limited discovery relevant to the motion.
Credits

End of Document

Monique Rathbun v. Scientology: CSI State Supreme Court Petition

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Monique Rathbun v. Scientology: CSI State Supreme Court Petition

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FILED

STEVEN GREGORY SLOAT, ED BRYAN, CHURCH OF SCIENTOLOGY

On Petition for Review from the

PETITION FOR REVIEW OF

George H. Spencer, Jr.

COUNSEL FOR PETITIONER

IDENTITY OF PARTIES AND COUNSEL

Steven Gregory Sloat, Ed Bryan, Church of

Counsel for Petitioner Church of Douglas W. Alexander

Trial and Appellate Counsel for

Trial and Appellate Counsel for

Monique Rathbun (pro se)

Former Trial and Appellate

The Parties ..........................................................................................19

CSI retains Drake and Sloat to investigate reported trademark

Defendants Bryan, Lubow, and other Scientologists protest and

Plaintiffs claims include allegations of conduct that the trial

Summary of Argument ...........................................................................................27

The court of appeals erred in failing to differentiate among the different

Conclusion and Prayer ............................................................................................36

Certificate of Service ..............................................................................................38

TEX. CIV. PRAC. & REM. CODE 27.010 ...................................................................15

STATEMENT OF THE CASE

Hon. Dib Waldrip, 207th Judicial District Court, Comal

Judge Waldrip denied Defendants motion to dismiss. The

Third Court of Appeals, Austin; Justice Field joined by Justice

Affirmed trial courts denial of motion to dismiss; reversed

The courts of appeals4including the Austin court 5have consistently

TCPA 27.005(b), the movant has show[n] by a preponderance of the evidence

Did the court of appeals err by holding that allegations of non-covered

exemption to the TCPA, 27.010(b), applies here?

the TCPA, 27.010(c), applies here?

Church of Scientology International (CSI) oversees the ecclesiastical

Plaintiff Monique Rathbun was never a Scientologist. She is the wife of a

CSI retains Drake and Sloat to investigate reported trademark

In 2009, CSI learned of a Craigslist posting by Marty, which promised:

these services. Martys advertisement and unlicensed Independent Scientology

Drakes surveillance continued until late 2012. CR1:39. In December 2012,

Defendants Bryan, Lubow, and other Scientologists protest and

As a direct result of Martys actions, in early 2011, several Scientologists,

Plaintiffs claims include allegations of conduct that the trial court

In addition to allegations about investigators and Squirrel Busters, which

The court of appeals erred in failing to differentiate among the different

Drakes surveillance was pre-petition activitybased on Drakes work, CSI

Similarly, Monique pleaded that the Squirrel Busters operations is an

portionand the surrounding circumstances must be considered in determining

allegations against them were covered by the statute. Rathbun *7 (faulting

/s/ Douglas W. Alexander

/s/ Douglas W. Alexander

TEX. CIV. PRAC. & REM. CODE 27.003

Trial Courts Order

Court of Appeals Opinion and Judgment

TEX. CIV. PRAC. & REM. CODE 27.005

TEX. CIV. PRAC. & REM. CODE 27.010

TEX. CIV. PRAC. & REM. CODE 27.002

TEX. CIV. PRAC. & REM. CODE 27.011

TEX. CIV. PRAC. & REM. CODE 27.001

TEX. CIV. PRAC. & REM. CODE 27.006

27.003. Motion to Dismiss, TX CIV PRAC & REM 27.003

Vernon's Texas Statutes and Codes Annotated

Notes of Decisions (37)

2016 Thomson Reuters. No claim to original U.S. Government Works.

2016 Thomson Reuters. No claim to original U.S. Government Works.