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

ACCEPTED
03-14-00199-CV
3555231
THIRD COURT OF APPEALS
AUSTIN, TEXAS
January 6, 2015 12/19/2014 4:39:26 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-000199-CV

FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS FOR THE 12/19/2014 4:39:26 PM
THIRD COURT OF APPEALS DISTRICT JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
______________

CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
APPELLANTS

VERSUS

MONIQUE RATHBUN
APPELLEE
______________

FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS
CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING

APPELLEE’S MOTION FOR LEAVE TO FILE
RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY
OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL

NOW COMES Appellee Monique Rathbun and files this Motion for Leave to File

Response to Notice of Supplemental Authority of Appellant Church of Scientology

International, and in support thereof would respectfully show the Court as follows:

Appellee Monique Rathbun requests leave to file the attached Response to the

Notice of Supplemental Authority filed by Appellant Church of Scientology

International (“COS”). COS contends that the supplemental authority – a decision

by a California trial court – is relevant to the Court’s questions during oral
argument regarding how Texas’s anti-SLAPP statute should be applied in cases in

which some claims arise from activities protected by the statute and some claims

do not. As explained in the proposed Response, a copy of which is attached hereto

as Exhibit 1, Appellee does not believe that the California trial court’s opinion

supports COS’s position or adds any clarity to the issues before the Court.

WHEREFORE, Appellee Monique Rathbun prays that this Motion be granted,

Appellee’s Response to Notice of Supplemental Authority of Church of

Scientology International Brief of Appellee be filed in the papers of this appeal,

and this Court award her such other and further relief, both general and special, at

law or in equity, to which she may be entitled.

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Respectfully submitted,

PULMAN, CAPPUCCIO,
PULLEN, BENSON & JONES, LP
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
www.pulmanlaw.com
(210) 222-9494 Telephone
(210) 892-1610 Facsimile

By: /s/ Leslie Sara Hyman
Elliott S. Cappuccio
Texas State Bar No. 24008419
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
Texas State Bar No. 00798274
lhyman@pulmanlaw.com
Etan Z. Tepperman
Texas State Bar No. 24088514
etepperman@pulmanlaw.com
JEFFREY & MITCHELL, P. C.
Ray B. Jeffrey
Texas State Bar Number 10613700
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
(830) 438-8935 Telephone
(830) 438-4958 Facsimile
rjeffrey@sjmlawyers.com
THE WIEGAND LAW FIRM, P.C.
Marc F. Wiegand
Texas State Bar No. 21431300
434 North Loop 1604 West, Suite 2201
San Antonio, Texas 78232
(210) 998-3289 Telephone
(210) 998-3179 Facsimile
marc@wiegandlawfirm.com
ATTORNEYS FOR APPELLEE
MONIQUE RATHBUN

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CERTIFICATE OF CONFERENCE
Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I have

conferred with counsel for Appellants, who indicated that they are not opposed to

the motion for leave to file.

/s/ Leslie Sara Hyman
Leslie Sara Hyman

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CERTIFICATE OF SERVICE

I certify that on the 19th day of December 2014, the foregoing Appellant’s

Motion for Leave to File Response to Notice of Supplemental Authority of

Appellant Church of Scientology International has been transmitted by electronic

service in accordance with the requirements of the Texas Rules of Appellate

Procedure addressed as follows:

Lamont A. Jefferson Wallace B. Jefferson
HAYNES & BOONE, LLP Rachel Ekery
112 East Pecan Street, Suite 1200 ALEXANDER DUBOSE JEFFERSON &
San Antonio, Texas 78205-1540 TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701

J. Iris Gibson Ricardo Cedillo
HAYNES & BOONE, LLP Les J. Strieber III
600 Congress Avenue, Suite 1300 Isaac J. Huron
Austin, Texas 78701 DAVIS CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 East Mulberry Avenue
San Antonio, Texas 78212

George H. Spencer, Jr. Jonathan H. Hull
CLEMENS & SPENCER Ashley B. Bowen
112 E. Pecan St., Suite 1300 REAGAN BURRUS
San Antonio, Texas 78205-1531 401 Main Plaza, Suite 200
New Braunfels, Texas 78130

Bert H. Deixler Stephanie S. Bascon
KENDALL BRILL & KLEIGER LLP LAW OFFICE OF STEPHANIE S. BASCON
Suite 1725 PLLC
10100 Santa Monica Boulevard 297 West San Antonio Street
Los Angeles, California 90067 New Braunfels, Texas 78130

– 5 –
Gary D. Sarles Thomas S. Leatherbury
O. Paul Dunagan Marc A. Fuller
SARLES & OUIMET VINSON & ELKINS LLP
370 Founders Square Trammell Crow Center
900 Jackson Street 2001 Ross Avenue, Suite 3700
Dallas, Texas 75202 Dallas, Texas 75201

/s/ Leslie Sara Hyman
Leslie Sara Hyman

– 6 –
Exhibit 1

Exhibit 1
NO. 03-14-000199-CV

IN THE
COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
______________

CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
APPELLANTS

VERSUS

MONIQUE RATHBUN
APPELLEE
______________

FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS
CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING

APPELLEE’S RESPONSE TO NOTICE OF SUPPLEMENTAL
AUTHORITY OF APPELLANT CHURCH OF SCIENTOLOGY

NOW COMES Appellee Monique Rathbun and files this Response to Notice of

Supplemental Authority of Appellant Church of Scientology, respectfully showing

the Court as follows:

Appellant Church of Scientology International (“COS”) filed its Notice of

Supplemental Authority to bring to the Court’s attention a California trial court’s

decision in Woodward v. Church of Scientology Int’l, Case No. BC540097, in the

Superior Court for the State of California for the County of Los Angeles.

Appellant COS argues that this opinion supports COS’s position that “all of
Ms. Rathbun’s claims should be dismissed even if some of them do not arise out of

protected activity.” Notice at 2.

For several reasons, Ms. Rathbun believes that the cited authority is not helpful

to the Court’s analysis of the issues before it. First, the trial court’s order in

Woodward is the subject of a motion to reconsider that will not be heard until

January 7, 2015. See Exhibit A.

Second, the trial court in Woodward found that Woodward’s “causes of action

all arise from Defendants’ religious activities,” that Woodward’s “claims all relate

to religious instruction, counseling and related religious services,” and that his

“religious challenges have infused all of his causes of action and are . . .

predominant in his arguments.” Ms. Rathbun’s claims, on the other hand, relate to

stalking and harassment, not religious instruction, counseling, or services. To the

extent that she incidentally references COS’s arguably protected speech, that

speech does not form the basis of her claims.

Third, contrary to COS’s position, the courts in California do not hold that

where a plaintiff raises some claims that arise from protected activity and some

claims that do not arise from protected activity, all of the plaintiff’s claims should

be dismissed. It is true that the California appellate courts hold that when a

plaintiff’s cause of action “is based on both protected activity and unprotected

activity, it is subject to [dismissal under California’s Anti-SLAPP statute] unless

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the protected conduct is “merely incidental” to the unprotected conduct.”1

Haight Ashbury Free Clinics v. Happening House Ventures, 184 Cal. App. 4th

1539, 1551 (Cal. Ct. App. 2010); see also Martinez v. Metabolife Internat., Inc.,

113 Cal. App. 4th 181, 188 (Cal. Ct. App. 2003) (“We conclude it is the principal

thrust or gravamen of the plaintiff’s cause of action that determines whether the

anti-SLAPP statute applies and when the allegations referring to arguably

protected activity are only incidental to a cause of action based essentially on

nonprotected activity, collateral allusions to protected activity should not subject

the cause of action to the anti-SLAPP statute.”).

But it does not follow that when one cause of action is subject to dismissal, the

entire petition is subject to dismissal. Rather, each claim or cause of action is to be

analyzed separately and, at most,2 only those claims or causes of action that arise

from protected acts are subject to dismissal (and even then, only if the plaintiff has

insufficient evidence to support them). See, e.g., Graham-Sult v. Clainos, 738 F.3d

1131, 1142 (9th Cir. 2013) (holding that to determine whether a cause of action

1
It does not appear that the California Supreme Court has yet determined whether the
California Courts of Appeals are correct in having reached this conclusion.
2
At least one California Court of Appeals has held that where a plaintiff alleges several causes
of action that are factually and legally intertwined and at least one cause of action survives
scrutiny under an Anti-SLAPP motion, all the causes of action should go forward. M. G. v.
Time Warner, Inc., 89 Cal. App. 4th 623, 637 (Cal. Ct. App. 2001) (holding that because the
plaintiffs had “shown the propriety of their invasion of privacy claim . . . it cannot be said their
lawsuit is meritless and ‘brought primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances’” so their emotional distress
claims also survived).

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arises from protected activity the court should “first ask what activities form the

basis for each of Plaintiffs’ causes of action [and] then ask whether those activities

are ‘protected,’ bringing the cause of action within the scope of the anti-SLAPP

statute”) (emphasis added); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th

993, 997-98 (Cal. Ct. App. 2001) (reversing the denial of an Anti-SLAPP motion

to dismiss those of the plaintiff’s claims that arose from protected activity and for

which the plaintiff had failed to show a probability of success but affirming the

denial of the motion as to those of the plaintiff’s claims that did not arise from

protected activity).

For example, in Graham-Sult v. Clainos, 738 F.3d 1131 (9th Cir. 2013), the

Ninth Circuit reviewed the plaintiffs’ complaint and concluded that six of the

plaintiffs’ causes of action arose from protected activity and were the proper

subject of the defendants’ Anti-SLAPP motion while other causes of action did not

arise from protected activity and could not be subjected to the motion.

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Respectfully submitted,

PULMAN, CAPPUCCIO,
PULLEN, BENSON & JONES, LP
2161 NW Military Highway, Suite 400
San Antonio, Texas 78213
www.pulmanlaw.com
(210) 222-9494 Telephone
(210) 892-1610 Facsimile

JEFFREY & MITCHELL, P. C.
Ray B. Jeffrey
Texas State Bar Number 10613700
A. Dannette Mitchell
Texas State Bar Number 24039061
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
(830) 438-8935 Telephone
(830) 438-4958 Facsimile
rjeffrey@sjmlawyers.com
dmitchell@sjmlawyers.com

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THE WIEGAND LAW FIRM, P.C.
Marc F. Wiegand
Texas State Bar No. 21431300
434 North Loop 1604 West, Suite 2201
San Antonio, Texas 78232
(210) 998-3289 Telephone
(210) 998-3179 Facsimile
marc@wiegandlawfirm.com
ATTORNEYS FOR APPELLEE
MONIQUE RATHBUN

– 6 –
Exhibit A

Exhibit A