FILED

15-0966
2/19/2016 2:49:57 PM
tex-9199478
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 STEVEN GREGORY SLOAT, ED BRYAN,

DAVID J. LUBOW, AND MONTY DRAKE
Jonathan H. Hull
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

Stephanie S. Bascon
State Bar No. 19356850
sbascon@att.net
LAW OFFICE OF STEPHANIE S.
BASCON, PLLC
297 W. San Antonio Street
New Braunfels, Texas 78730
Telephone: (830) 625-2940
Facsimile: (830) 221-3441

Gary D. Sarles
State Bar No. 17651100
gsarles@sarleslaw.com
O. Paul Dunagan
State Bar No. 06202700
dunagan@sarleslaw.com
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, Texas 75202
Telephone: (214) 573-6300
Facsimile: (214) 573-6306

ATTORNEYS FOR PETITIONERS STEVEN GREGORY SLOAT, ED BRYAN,

DAVID J. LUBOW, AND MONTY DRAKE

NOTICE OF ADOPTION BY REFERENCE

Pursuant to Texas Rule of Appellate Procedure 9.7, Petitioners Monty Drake,
Steven Gregory Sloat, Ed Bryan, and David Lubow (the Individual Defendants)
hereby adopt by reference the petition for review filed in this case by the Church of
Scientology International. The Identity of Parties and Counsel, Statement of the
Case, Statement of Jurisdiction, Issues Presented, Reasons to Grant, Statement of
Facts, Summary of Argument, Argument, and Appendix identified in the Churchs
petition are equally applicable to the Individual Defendants, and are therefore not
repeated here.
However, the Individual Defendants write separately to illustrate how the
court of appeals failure to analyze the discrete claims asserted against each
Defendant violated their rights under the TCPA.

TABLE OF CONTENTS
Notice of Adoption by Reference .............................................................................2
Table of Contents ......................................................................................................3
Index of Authorities ..................................................................................................4
Summary of Argument .............................................................................................6
Argument...................................................................................................................8
I.

II.

The TCPA requires courts to give individual consideration to each

claim asserted against each defendant ............................................................8
A.

Each TCPA movant is entitled to have his motion considered as

to his specific conduct ..........................................................................9

B.

Courts must consider the context in which each movants

conduct occurred ..................................................................................9

C.

The TCPA requires courts to consider whether each discrete

cause of action asserted against a TCPA movant is based on
that individual movants covered conduct .........................................11

The Individual Defendants ...........................................................................12

A.

Monty Drake.......................................................................................13

B.

Steven Gregory Sloat .........................................................................16

C.

Ed Bryan .............................................................................................18

D.

David Lubow ......................................................................................21

Conclusion and Prayer ............................................................................................24

Certificate of Service ..............................................................................................27
Certificate of Compliance .......................................................................................28

INDEX OF AUTHORITIES
Cases
Branzburg v. Hayes,
408 U.S. 665 (1972) ............................................................................................15
Cruz v. Van Sickle,
452 S.W.3d 503 (Tex. App.Dallas 2014, pet. denied)....................................11
Gallanis-Politis v. Medina,
152 Cal. App.4th 600 (Cal. App. 2007)..............................................................15
Haight Ashbury Free Clinics, Inc. v. Happening H. Ventures,
110 Cal. Rptr.3d 129 (Cal. App. 2010)...............................................................11
Hicks v. Grp. & Pension Admrs, Inc.,
478 S.W.3d 518 (Tex. App.Corpus Christi 2015, no pet.) ............................... 9
In re Lipsky,
460 S.W.3d 579 (Tex. 2015) ..............................................................................10
Read v. Scott Fetzer Co.,
990 S.W.2d 732 (Tex. 1998) ................................................................................8
Rocha v. Faltys,
69 S.W.3d 315 (Tex. App.Austin 2002, no pet.) .............................................. 8
Shipp v. Malouf,
439 S.W.3d 432 (Tex. App.Dallas 2014, pet. denied)..................10, 15, 17, 21
Tervita, LLC v. Sutterfield,
___ S.W.3d ___, No. 05-15-00469-CV, 2015 WL 9257035 (Tex.
App.Dallas Dec. 18, 2015, n.p.h.) .................................................................... 6
Ex parte Thompson,
442 S.W.3d 325 (Tex. Crim. App. 2014) .....................................................15, 16
Tichinin v. City of Morgan Hill,
177 Cal. App.4th 1049 (Cal. App. 2009)............................................................14

Statutes
TEX. CIV. PRAC. & REM. CODE 27.001 .........................................................6, 12, 19
TEX. CIV. PRAC. & REM. CODE 27.003 .................................................................6, 9
TEX. CIV. PRAC. & REM. CODE 27.005 ............................................................passim
TEX. CIV. PRAC. & REM. CODE 27.006(a) ..............................................................14

SUMMARY OF ARGUMENT
Plaintiff Monique Rathbun sued Church of Scientology International (CSI)
and four Individual Defendants: Monty Drake and Steven Gregory Sloat, both
private investigators; and Ed Bryan and David Lubow, both Scientologists. This
petition is filed by the Individual Defendants.
Rathbuns live pleading makes minimal reference to the Defendants as
individuals. CR10:126379. Instead, it treats them, along with the Church and
others, as an undifferentiated group labeled Defendants. Most of the petitions
specific allegations are alleged to have been carried out by this group, without further
specification. The declaration Rathbun filed in opposition to Defendants TCPA
motions also relies heavily on generalized allegations. See CR11:135564. The most
attention-grabbing allegations were ascribed to the defendants, or simply they.
CR11:1359, 1361.
Rathbuns aggregated pleading was problematic because the TCPA promises
each individual movant individual attention. See TCPA 27.003(a), 27.005(b).
Moreover, the TCPA requires that a movants motion be considered as to each cause
of action asserted against that defendant. See id. 27.001(6) (defining legal action
to include cause of action). Thus, before Rathbun, an unbroken line of cases had
held that TCPA motions had to be considered on a claim-by-claim basis. See, e.g.,
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.); see also CSI Petition at
13 & nn.45.
However, the court of appeals repeated Rathbuns error. Ignoring all
differentiation between the movants, it referred an astonishing 56 times to the
Scientology Defendants as the perpetrators of the alleged wrongs against Rathbun.
Outside the recitation of the parties names in the opinions first sentence, the
Individual Defendants are mentioned by name only once or twice, if at all.
By refusing to consider the Individual Defendants individually, the court of
appeals failed to consider whether, at step one, the factual basis for Rathbuns suit
as to each Defendant was conduct covered by the TCPA.
The court of appeals proceeded to highlight several of the most salacious of
Rathbuns general allegationswhich had been stricken by the trial court as
unsupported by any evidence, CR38:450607and concluded that the stricken
allegations described conduct not covered by the TCPA. Rathbun at *5, *7. The
court then held that because the Scientology Defendants had failed to explain why
these stricken allegations constituted covered conduct under the TCPA, the whole
suit was not covered by the Act. Id. at *7. The courts failure to consider the factual
basis for each claim against each defendant was erroneous. See CSI Petition at 30
33.

ARGUMENT
I.

The TCPA requires courts to give individual consideration to each claim

asserted against each defendant.
It is a basic principle of legal responsibility that individuals should be

responsible for their own actions and should not be liable for others independent
misconduct. Rocha v. Faltys, 69 S.W.3d 315, 321 (Tex. App.Austin 2002, no
pet.) (quoting Read v. Scott Fetzer Co., 990 S.W.2d 732, 739 (Tex. 1998) (Hecht, J.,
dissenting)).
In light of this basic principle, it is remarkable that after the opinions first
sentence defining the parties, the court of appeals mentioned the Individual
Defendants a grand total of four times. Instead, the court lumped the individuals and
the Church together, and assumed that each was responsible for everything. Fifty-six
times the court thus referred to the Scientology Defendants.
For three reasons, this was error. Worse, it was error that had an especially
pernicious effect on the Individual Defendants because, contrary to the TCPAs
command, the court of appeals refused to look beyond Plaintiffs vagueand in
many cases strickenallegations to conduct in which the Individual Defendants
actually engaged.

A.

Each TCPA movant is entitled to have his motion considered as to

his specific conduct.

The TCPA permits a party to move for dismissal when the legal action
against it is based on that partys exercise of the right to free speech, right to
petition, or right of association. TCPA 27.003(a). Likewise, the TCPAs step-one
burden is satisfied if the moving party shows that the legal action against the
moving party . . . is based on, relates to, or is in response to the partys covered
conduct. Id. 27.005(b). Thus the court in Hicks v. Group & Pension Administrators,
Inc., correctly gave separate consideration to each TCPA movants motion to
dismiss, considering the particular facts on which the claims against each defendant
were based. 478 S.W.3d 518, 526, 534 (Tex. App.Corpus Christi 2015, no pet.).
Here, by contrast, the court of appeals gave no separate consideration
whatsoever to the five distinct movants. Rather, all of the courts conclusions were
made as to an undifferentiated group. Rathbun at *9 (holding that the Scientology
Defendants failed to show that Rathbuns claims were based on the Scientology
Defendants covered conduct). This was error.
B.

Courts must consider the context in which each movants conduct

occurred.

The court of appeals not only ascribed every unspecific allegation made by
Rathbun to every Individual Defendant, it divorced entirely the Individual
Defendants conduct from its context. In essence, the court of appeals held that even

if Defendants had engaged in activity covered by the TCPA, Rathbun was not suing
them for that conduct, but was suing Defendants for conduct the court of appeals
believed not to be covered. Id. at *8 (Rathbuns suit is not based on the Scientology
Defendants attempts to discover facts related to Marty Rathbuns alleged cloakand-dagger activities.). Not only was this contrary to Rathbuns pleadings and
evidence, CSI Petition at 32, it was contrary to the law.
Evading the TCPA would be far too easy if plaintiffs are able to sue
defendants for allegedly non-covered conduct that occurs in the course of the
defendants covered conduct. Other courts of appeals actively avoid such a result.
In Shipp v. Malouf, for instance, Malouf, a dentist, sued Shipp, an
investigative reporter, for defamation regarding comments made during a broadcast
about fraud allegations against Malouf. See 439 S.W.3d 432, 436 (Tex. App.
Dallas 2014, pet. denied), disapproved on other grounds, In re Lipsky, 460 S.W.3d
579 (Tex. 2015). In particular, Malouf sued Shipp for saying that Malouf had filed
for bankruptcy, something that Malouf claimed was false. See id. When Shipp
moved to dismiss under the TCPA, Malouf argued that his suit focused solely on the
bankruptcy comment, and Maloufs individual financial status was not a matter of
public concern. See id. at 438.
The Dallas Court rejected this argument, holding that in deciding whether
the lawsuit is related to the exercise of free speech under the broad language of the

10

TCPA, it had to look to the context of the communication in which the alleged
defamatory statement is made. Id. (emphasis added). Because that context was a
broadcast regarding a matter of public concern, the court held that the TCPA applied.
Id. (We agree with Shipp that the entire communicationnot just the allegedly
defamatory portionand the surrounding circumstances must be considered in
determining whether the lawsuit relates to Shipps exercise of his right to free
speech. (emphasis added)); see also Cruz v. Van Sickle, 452 S.W.3d 503, 514 (Tex.
App.Dallas 2014, pet. denied) (same); Haight Ashbury Free Clinics, Inc. v.
Happening House Ventures, 110 Cal. Rptr.3d 129, 139 (Cal. App. 2010) (holding
that where a cause of action is based on both protected and unprotected activity, it
is covered by Californias anti-SLAPP statute unless the protected conduct is
merely incidental to the unprotected conduct (internal quotations omitted)).
The Dallas Courts rule is undoubtedly correct, as it prevents plaintiffs from
artfully pleading their way out of the TCPAs coverage. Here, the court of appeals
holding, affirmatively removing the Individual Defendants conduct from its
context, was error.
C.

The TCPA requires courts to consider whether each discrete cause

of action asserted against a TCPA movant is based on that
individual movants covered conduct.

Although Rathbun asserted four causes of action against each Defendant, and
although each of these causes of action has different elements, the court of appeals

11

considered Rathbuns suit against the Defendants as if it were an indivisible whole,

without considering the alleged conduct on which Rathbuns discrete causes of
action were based.
The court of appeals erred in failing to consider the causes of action
separately. The TCPA defines legal action to include a cause of action. TCPA
27.001(6). Thus, when the TCPA directs courts to consider whether a legal action
against a movant is based on covered conduct, it necessarily requires the court to
consider whether each discrete cause of action is based on covered conduct. Id.
27.005(b). This comports with the TCPAs step-two analysis, which contemplates
a claim-by-claim analysis. Id. 27.005(c) (requiring the non-movant to produce
evidence of each essential element of the claim in question (emphasis added)).
Before Rathbun, every court of appeals to consider the matterincluding the
Austin Courthad employed a granular analysis and had refused to ask simply
whether a lawsuit, as a whole, was based on covered conduct. See CSI Petition at 13
& nn.45. The court of appeals decision to disregard this precedent was error.
II.

The Individual Defendants

As the above analysis and the Churchs petition demonstrate, the Individual

Defendants were entitled to individual consideration. The court of appeals had an

obligation to consider each discrete claim asserted against each Individual
Defendant. Moreover, it was required to consider the conduct on which those

12

discrete claims were based in the context of each Defendants own activities. The
court of appeals failed to perform such an analysis.
Below, the Individual Defendants show why the court of appeals failure to
treat them as individuals resulted in the erroneous denial of their motions to dismiss.
A.

Monty Drake

Monty Drake is not a Scientologist; the court of appeals nevertheless lumped

him in with the Scientology Defendants. Rathbun at *1. In fact, the court of
appeals did not even mention Drake after the opinions first sentence. Id.
Drake is a private investigator licensed in Texas and Oklahoma who has never
been sanctioned or disciplined for his work. CR38:447778. In his 30-year career,
he has been involved with hundreds of investigations into trademark and other
intellectual property rights violations. CR38:4478. Drakes extensive work in this
fieldwhich he has often performed side-by-side with law enforcementhas led to
numerous arrests, criminal charges, and civil suits. Id.
Rathbuns live pleading makes minimal reference to Drake. Her sole
allegation against him is that he leased a house from which he surveilled the
Rathbuns home/office. CR10:1273. Rathbuns declaration added no additional

13

detail apart from a conclusory allegationwhich the trial court duly struck,
CR38:45091that Drake direct[ed] the Squirrel Busters actions. CR11:136162.
It is with regard to the scant remaining, unstricken allegations, as well as
Drakes own evidence, that Drakes TCPA motion should have been considered.
TCPA 27.006(a) (directing the trial court to consider supporting and opposing
affidavits (emphasis added)). To this end, Drake admitted to the surveillance of the
area outside of the Rathbun home/office but clarified that its purpose was
gather[ing] facts which might be applicable to bringing both potential civil and
criminal actions against Mark Rathbun. CR38:4479. Drake denied ever trespassing
on the Rathbuns property, aiming cameras into their home, using listening or
tracking devices, or otherwise engaging in illegal activities. CR38:447980. No
contrary evidence was admitted against Drake. See CR35:4170.
Thus the only activity Drake is alleged to have participated in is pre-litigation
investigative conduct. The trial court expressly found this to be true. CR31:3759;
see also CR38:4480. Pre-petition investigative activities are covered by the TCPA.
See TCPA 27.005(b) (protecting the right to petition); see also Tichinin v. City
of Morgan Hill, 177 Cal. App. 4th 1049, 1068, 1074 (Cal. App. 2009) (holding that

The trial court also struck generalized, baseless allegations regarding the Defendants supposed
use of electronic surveillance equipment and the sending of a sex toy to Rathbuns work, as well
as hearsay statements about what unspecified Defendants told other people. CR38:450509.

14

Californias

anti-SLAPP

statute

covers

non-communicative

pre-litigation

investigatory activity, even if suit is never filed, because such activity intrinsically
facilitates the exercise of free speech); Gallanis-Politis v. Medina, 152 Cal.
App. 4th 600, 612 (Cal. App. 2007) (holding that anti-SLAPP statute covered
investigatory activities); cf. Branzburg v. Hayes, 408 U.S. 665, 681 (1972)
(recognizing that the First Amendment protects the right to gather information); Ex
parte Thompson, 442 S.W.3d 325, 337 (Tex. Crim. App. 2014) (recognizing that the
First Amendment protects the act of creating photographs and visual recordings).
To the extent the court of appeals believed Drake to have engaged in other
activities, those activities would nonetheless have been covered because they
occurred in the context of his protected, pre-litigation activity. Shipp, 439 S.W.3d at
438. For this reason, the court of appeals erred in not holding Rathbuns suit against
Drake to be covered by the TCPA.
Considering the discrete claims asserted against Drake yields the same result.
The first is intentional infliction of emotional distress. CR10:1274. Given the paucity
of specifics regarding Drake, the only possible factual basis for this claim is Drakes
pre-litigation investigative activities. The TCPA therefore applies, and Rathbun
must satisfy her step-two burden as to this claim.
Likewise, Rathbuns tortious interference claim against Drake, CR10:1275,
must be based on this protected conduct, as it is the only conduct for which Drake is

15

sued. Because Drakes conduct had nothing to do with any of Rathbuns contractual
relationships, this claim will undoubtedly be dismissed at step two.
Finally, Rathbun sues Drake for invasion of privacy, both through intrusion
on seclusion and public disclosure of private facts. Id. These claims are based on
Drakes surveillance of the area outside the Rathbun home/office. Because this
conduct was covered by the TCPA, so too are these claims.
Properly considered, each of the causes of action Rathbun asserted against
Drake is based on conduct covered by the TCPA. The court of appeals should have
reviewed the evidence and determined whether Rathbun met her step-two burden.
B.

Steven Gregory Sloat

Steven Gregory Sloata non-Scientologistis a former Deputy United

States Marshal who was retained by a licensed private investigator. CR2:302. Like
Drake, Sloat was improperly lumped together with the Scientology Defendants,
and thus held responsible for all of the conduct of all of the Defendants in this case.
Rathbun at *1.
This, despite the fact that Rathbuns live pleading contains no specific
allegations against Sloat. CR10:126379. The declarations Rathbun filed contain
little additional detail, stating only that Sloat engaged in off-site surveillance, made
false statements regarding his identity, and asked Marty Rathbunnot Plaintiff
Monique Rathbunwhether the couple had children, a question to which Monique

16

assigns a motive unsupported by any record evidence. CR11:136263, 1386. There

is no evidence in the record of communications directly between Sloat and Plaintiff.
Sloat admits to surveilling the Rathbun home/office in Bulverde, Texas.
CR2:30204. As the trial court found, Sloat had been hired to investigate the
independent Scientology services that Marty Rathbun was offering out of his
home/office. CR31:3760. Like Drakes surveillance of Marty Rathbun in Inglesideon-the-Bay, Sloats surveillance was for the purpose of determining whether a civil
suit or criminal charges should be filed against Marty for trademark infringement or
other intellectual property violations. CSI Petition at 2024.
Sloats surveillance activities constitute pre-litigation activity covered by the
TCPA. Sloat disputes some details of Rathbuns claims, see CR2:30304, but to the
extent he is alleged to have engaged in non-covered conduct, Sloat would have done
so as part and in the context of his covered pre-litigation activities. Thus, any limited,
non-covered conduct on Sloats part would not have taken his activities outside of
the TCPAs zone of coverage. Shipp, 439 S.W.3d at 438.
As with Drake, a look at the discrete claims asserted against Sloat confirms
that the court of appeals erred in refusing him the TCPAs protection. If Sloat
inflicted emotional distress on Rathbun, he did so through his surveillance activities
or through comments he made in the course of those activities. The intentional

17

infliction of emotional distress claim is therefore based on conduct covered by the

TCPA.
Similarly, if Sloat interfered with Rathbuns contractual relations, he did so
through his surveillance or other investigative activities. This claim, too, is thus
based on protected conduct. But as with Drake, Rathbuns failure to produce
evidence that Sloat, as opposed to a generalized group of Defendants, engaged in
tortious interference, means that she will be unable to meet her step-two burden on
this claim.
Finally, with regard to the invasion of privacy claims, they must be based on
Sloats surveillance activities and related conduct. Because these are covered by the
TCPA, her invasion of privacy claims are also covered.
The court of appeals thus erred in failing to find that each discrete claim
asserted against Sloat was based on conduct covered by the TCPA. The court of
appeals should have determined whether Rathbun met her step-two burden as to each
of the claims against Sloat.
C.

Ed Bryan

Ed Bryan is a Scientologist and member of the Squirrel Busters, a group that

protested and produced documentary videos about Marty Rathbuns antiScientology activities, including his attempts to provide Scientology services outside
of the Churchs auspices. CR10:127172; CR35:4176.

18

Rathbuns live pleading makes no specific allegations of actionable conduct

against Bryan. Instead, it alleges that he was a member of the Squirrel Busters and
that he wrote an email that conveyed doubts about the effectiveness of the groups
activities vis--vis Marty but expressed genuine concern about the damage that
Marty was doing to the Church. CR10:127071; CR12:1522. The only detail added
by Plaintiffs declaration is that Bryan confronted her on a number of occasions.
CR11:1357.
While Rathbun failed to address the content of these confrontations, Bryan
did. In large part, they consisted of the Rathbuns cursing at a peaceful Bryan on a
public street. See, e.g., RR14, Exh. 3 (video); RR3:20203 (plaintiffs authenticating
testimony identifying Bryan as the individual in the video). In other instances, these
exchanges were, in the trial courts words, civil with both sides either initiating or
reciprocating. CR31:3755. What is important is that the subject matter of these
confrontations, whatever their tenor, was religious debate. Rathbun admitted as
much, agreeing that they constituted religious discourse. RR3:199.
Unsurprisingly, then, Bryans motivation was a concern that Martys public
statements were hurting the Church. CR10:127172. Bryan and the Squirrel Busters
produced videos regarding these debates and concerns, uploading them to YouTube
for both a general and specifically Scientologist viewership. CR26:3156;
CR37:441718.

19

These kinds of communications are at the heart of the First Amendment, and
they are protected by the TCPA. See TCPA 27.005(b)(1) (protecting the right of
free speech); 27.001(b)(3) (protecting the right of association).
The court of appeals held Rathbuns suit against the Scientology
Defendants was not based on the Squirrel Busters protest or their activities of
filming and producing a documentary in support of their religion. Rathbun at *6.
But as to Bryan, there is no conduct outside of these activities on which Rathbuns
suit could be based. The evidence before the court of appeals was that Bryan engaged
in protest and filmmaking activities. Even if he also engaged in non-covered
conductand there is no evidence that he didit would have to be understood as
emerging in the context of his covered First Amendment activities. Accordingly, the
court of appeals erred in finding Rathbuns suit against Bryan not based on covered
conduct under the TCPA.
Once again, had the court of appeals engaged in the claim-by-claim analysis
required by the TCPA, it would have seen this fact. Rathbuns intentional infliction
of emotional distress claim could only be based on Bryans covered
protest/filmmaking activities, or the comments that he made in the course of those
activities. The claim is therefore covered by the TCPA.

20

Likewise, the tortious interference claim against Bryan is necessarily based

on his filmmaking/protest activities, as those are the only activities in which he is
alleged to have engaged. This claim, too, is covered by the TCPA.
So too are the invasion of privacy claims. Because the evidence shows only
that Bryan engaged in filmmaking and protest activities, those activities must be the
basis for Rathbuns invasion of privacy claims. They are also therefore covered by
the TCPA.
With regard to each cause of action asserted against Bryan, the court of
appeals should have determined whether Rathbun met her step-two burden.
D.

David Lubow

David Lubow is a Scientologist, a member of the Squirrel Busters, and a

private investigator. CR2:277, 280281. There are no specific allegations of
actionable conduct against Lubow in Rathbuns live pleading. See CR10:126379.
She mentions him only to allege that he told a third party he intended to make Marty
Rathbuns life a living hell. CR10:1272. Lubow denies making such a statement.
CR2:282. In her declaration, Rathbun says that Lubow often led the Squirrel
Busters, confronted her and her husband one night at dinner, and spoke with
some of her former co-workers. CR11:1357, 1358, 1360. Rathbun assigns motive
to some of these actions, but she does so based on her own speculation, not evidence.
See, e.g., CR11:1360.

21

Though he denies many of the specifics, see CR37:4384, Lubow admits to

being a member of the Squirrel Busters and to having investigated Marty Rathbun,
CR2:279, 281; CR37:4415. Lubows purpose, like that of the other Squirrel Busters,
was to protest Martys anti-Church activities. CR2:281. Lubow is an experienced
documentarian, and his plan was to make a series of short films about the Squirrel
Busters protests and Martys activities. CR2:277, 281, 287. Of course, Lubows
filmmaking and protest activities, whatever their tenor, were exercises of his right
of free speech and right of association. They are therefore protected under the TCPA,
as are any other activities related to that covered conduct. Shipp, 439 S.W.3d at 438.
Lubow also admits to interviewing some of Rathbuns former co-workers,
though he clarifies that he did so as part of his investigation into Martys intellectual
property violations. CR37:441416; see also CSI Petition at 2024. Thus any
statements that Lubow made to Rathbuns former co-workers were made in the
course or context of Lubows pre-litigation conduct, which was covered by the
TCPA.
It is with this understanding of Lubows conduct that the court of appeals
should have considered the discrete claims against him. The only bases for
Rathbuns emotional distress claim as to Lubow are his covered filmmaking, protest,
and investigative activities. The claim should have been deemed covered.

22

The tortious interference claim against Lubow appears from Rathbuns

affidavit to be based on Lubows conversations with Rathbuns former co-workers,
which she felt strongly were intended to get Rathbun fired. CR11:1360. But
whatever comments Lubow made to those former co-workers arose in the context of
his covered, pre-litigation investigation. Even if some of the specific comments
Lubow made were not covered by the TCPA, the claim is covered by the TCPA
because the comments were made in the context of covered conduct. Rathbun should
have been required to meet her step-two burden. 2
The only possible basis for Rathbuns invasion of privacy by intrusion upon
seclusion claim are Lubows covered activities, presumably in the course of
leading the Squirrel Busters. But the core of this conduct was protected by the
TCPA, and so the claim against Lubow was covered in its entirety. Again, Rathbun
should have been required to meet her step-two burden.
Finally, Rathbuns claim against Lubow for invasion of privacy through
public disclosure of private facts could only be based on Lubows statements about
Marty to Rathbuns former co-workers. But if such a statement was made, it was

She could not have done so. Evidence supports Lubow only having spoken with two of Rathbuns
co-workers. CR28:336466; CR42:4883. But one of these worked with Rathbun years earlier at a
company different from the one from which she resigned; the other was spoken to after Rathbuns
resignation. CR23:2765; CR42:4883.

23

made in the course of covered pre-litigation activity. The public disclosure claim is
therefore also covered, and Rathbun was required to meet her step-two burden.
Each discrete claim against Lubow was thus based on or related to conduct
covered by the TCPA. Each claim should have been deemed covered and the court
of appeals should have determined whether Rathbun met her step-two burden.
CONCLUSION AND PRAYER
This Court should grant this and the Churchs petitions for review and clarify
the step-one analysis under the TCPA, giving special attention to the need for courts
to consider the TCPAs application to each claim asserted against each defendant. It
should further reverse in part the court of appeals judgment, hold that Monique
Rathbuns claims against the Individual Defendants 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; alternatively, the Court should reverse
and remand to the court of appeals for further proceedings.

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Respectfully submitted,
/s/ Gary D. Sarles
Gary D. Sarles
State Bar No. 17651100
gsarles@sarleslaw.com
O. Paul Dunagan
State Bar No. 06202700
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
/s/ Stephanie S. Bascon
Stephanie S. Bascon
State Bar No. 19356850
sbascon@att.net
LAW OFFICE OF STEPHANIE S.
BASCON, PLLC
297 W. San Antonio Street
New Braunfels, Texas 78730
Telephone: (830) 625-2940
Facsimile: (830) 221-3441
ATTORNEY FOR PETITIONER
DAVID J. LUBOW

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/s/ Jonathan H. Hull

Jonathan H. Hull
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
ATTORNEY FOR PETITIONERS
STEVEN GREGORY SLOAT AND
ED BRYAN

26

CERTIFICATE OF SERVICE
I hereby certify that on February 19, 2016, I 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

Douglas W. Alexander
State Bar No. 00992350
dalexander@adjtlaw.com
Nicholas Bacarisse
State Bar No. 24073872
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
State Bar No. 12095275
tleatherbury@velaw.com
Marc A. Fuller
State Bar No. 24032210
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

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George H. Spencer, Jr.

State Bar No. 18921001
spencer@clemens-spencer.com
CLEMENS & SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: (210) 227-7121
Facsimile: (210) 227-0732
Attorneys for Petitioner Church of
Scientology International
/s/ Gary D. Sarles
Gary D. Sarles

CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2013, this brief contains 4,153
words, excluding the portions of the brief exempt from the word count under Texas
Rule of Appellate Procedure 9.4(i)(1).
/s/ Gary D. Sarles
Gary D. Sarles

28