July 21, 2015
NO. 03-14-000199-CV
RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 6/24/2015 5:24:39 PM
COURT OF APPEALS FOR THE JEFFREY D. KYLE
THIRD COURT OF APPEALS DISTRICT
Clerk
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 (“CSI”) filed its second Notice of
Supplemental Authority to bring to the Court’s attention four opinions applying the
Texas Citizen’s Participation Act (“TCPA”):
• In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015);
• Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex. App.—
Austin, May 1, 2015, no pet. h.).
• Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155
(Tex. App.—Austin Apr. 7, 2015, no pet. h.); and
• Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025 (Tex. Apr. 24,
2015) (per curiam).
Because Mrs. Rathbun believes that CSI has misstated the relevance of these
opinions to the case before the Court, Mrs. Rathbun files this brief response to CSI’s
notice.
A. In re Lipsky
In In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015), the Texas
Supreme Court recognized that “[t]he TCPA’s purpose is to identify and summarily
dispose of lawsuits designed only to chill First Amendment rights, not to dismiss
meritorious lawsuits.” Id. at *6 (emphasis added). The court then made clear that
when faced with a showing in a TCPA motion that the claims arise from protected
activity, the non-movant’s burden to come forth with “clear and specific evidence”
of her claims simply means that the non-movant must allege more than mere notice
pleading requires. Id. at *7 (emphasis added). CSI acknowledges the court’s
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holding “that a non-movant can rely on circumstantial evidence and rational
inferences to satisfy her burden.” CSI Notice of Supplemental Authority at 4. CSI
then states, however, that “[o]n this issue, Lipsky supports the Church’s position.”
Id.
In fact, Lipsky is not consistent with CSI’s prior position at all. In its Brief of
Appellant, CSI had argued that Mrs. Rathbun “cannot rely on ‘presumptions,
inferences or intendment.’” CSI Brief of Appellant at 36-37
(quoting Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—
Dallas 2013, pet. denied)). CSI also argued that Mrs. Rathbun “must present
evidence that is ‘unambiguous,’ ‘sure,’ and ‘free from doubt’ and that is ‘explicit.’”
Id. at 37.
The Texas Supreme Court has now made clear that in fact, no elevated
evidentiary standard applies. In re Lipsky, 2015 WL 1870073, at *3-7. Rather, a
plaintiff can defeat a motion to dismiss under the TCPA merely by “provid[ing]
enough detail to show the factual basis for its claim.” Id. at *7. As the Texas
Supreme Court recognized, “Though the TCPA initially demands more information
about the underlying claim, the [TCPA] does not impose an elevated evidentiary
standard or categorically reject circumstantial evidence. In short, it does not impose
a higher burden of proof than that required of the plaintiff at trial.” Id. (emphasis
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added). The court disapproved “those cases that interpret the TCPA to require direct
evidence of each essential element of the underlying claim to avoid dismissal.” Id.1
Although the district court did not reach the question of whether Mrs. Rathbun
offered clear and specific evidence of her claims, the record is clear that she met that
burden. The information and evidence that Mrs. Rathbun offered in support of her
claims, including circumstantial evidence and rational inferences, satisfied her
burden under the TCPA. Brief of Appellee at 50-56; see also Serafine v. Blunt, No.
03-12-00726-CV, 2015 WL 2061922, at *3 (Tex. App.—Austin, May 1, 2015, no
pet. h.) (recognizing that the term “clear and specific” relates only to the quality of
the evidence and that the non-movant is entitled to use rational inferences to “satisfy
the nonmovant’s minimal factual burden”).
B. Serafine v. Blunt
CSI uses this Court’s opinion in Serafine v. Blunt, No. 03-12-00726-CV, 2015
WL 2061922 (Tex. App.—Austin, May 1, 2015, no pet. h.), as an excuse to reurge
CSI’s positions regarding the proper applicability of the TCPA to (1) a “mixed”
claim based on both unprotected activity and protected activity and
1
In its original briefing, CSI had relied for its allegation that a heightened evidentiary applied on
some of the cases expressly overruled by In re Lipsky. See CSI Brief of Appellant at 8, 36-37
(citing Rehak, 404 S.W.3d at 726; Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio
2014, pet. filed); Rio Grande H2O Guardian v. Robert Muller Family P’ship, Ltd., No. 04-13-
00441-cv, 2014 WL 309776 (Tex. App.—San Antonio Jan. 29, 2014, no pet.)); CSI Reply Brief
at 11 n.10 (citing Shipp v. Malouf, 439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. denied)).
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(2) pre-suit investigations. Regarding the first point, CSI’s position is that a claim
based on both unprotected activity and protected activity that is not
“merely incidental” to the unprotected activity, is wholly subject to dismissal under
the TCPA. 2 Texas law is to the contrary. If a claim is based both on protected and
non-protected conduct, the portion of the claim based on non-protected conduct may
proceed without further analysis. See Serafine, 2015 WL 2061922, at *4
(“Accordingly, we affirm in part the trial court’s order denying Serafine’s motion to
dismiss the tortious-interference counterclaim, and we will remand the cause for
consideration of the Blunts’ tortious-interference counterclaim to the extent that it is
based on Serafine’s alleged harassing and threatening conduct outside the context of
the lawsuit.”); see also id. at *29-30 (Pemberton, J. concurring) (concluding that the
Court correctly concluded in Serafine that a when a “‘legal action’ ‘is based on,
relates to, or is in response to’ (whatever that phrase may mean) both expression
protected by the Act and other unprotected activity, the ‘legal action’ is subject to
2
CSI appears to have abandoned the position argued in its first Notice of Supplemental Authority,
that if even one of Mrs. Rathbun’s claims arises out of protected activity, “all of Ms. Rathbun’s
claims should be dismissed even if some of them do not arise out of protected activity.” First CSI
Notice of Supplemental Authority at 2. As Justice Pemberton recognized in his concurrence in
Serafine, CSI’s “grounds for dismissal . . . must be analyzed separately with respect to each of the
challenged [claims].” Serafine, 2015 WL 2061922, at *14 n.52 (citing Better Bus. Bureau of
Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.–Dallas 2013, pet. denied)); see also
In re Lipsky, 2015 WL 18700073, at *8-13 (considering on a claim-by-claim basis whether
dismissal was appropriate under the TCPA).
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dismissal only to the extent it ‘is based on, relates to, or is in response to’ the
protected conduct, as opposed to being subject to dismissal in its entirety”).
CSI suggests the Court’s holding in Serafine resulted because the parties had
neither briefed nor argued the question of how “mixed claims” should be treated
under the TCPA and urges the Court to follow CSI’s take on California law on the
question. CSI’s Notice of Supplemental Authority at 6-7. CSI’s position both gives
the Court too little credit and ignores the purpose of the TCPA. No First Amendment
rights are impacted if a party who pled a “mixed” claim proceeds with the claim
when it may be established on unprotected activity. 3
Regarding CSI’s position that pre-suit investigation is protected by the right to
petition, CSI again relies only on a single case from California, which itself
recognized that sham pre-suit investigation would not be entitled to protection.
3
CSI further argues that “[a] non-movant, of course, could still go forward with that portion of his
mixed claim that is not encompassed within the Act by demonstrating, within the context of the
motion to dismiss brought under the Act, that his claim is supported by clear and specific evidence
of a prima facie case and is not otherwise subject to dismissal.” CSI’s Notice of Supplemental
Authority at 7-8 (emphasis added). CSI has it backwards. A non-movant need not, at the dismissal
stage, provide any evidence of claims that are not encompassed within the TCPA because the
burden never shifts to her to do so. See Serafine, 2015 WL 2061922, at *2 (recognizing that the
TCPA shifts to the non-movant the burden of establishing a prima facie case of the elements of
her claim only if the movant has “establish[ed] 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 ... the right to petition’”);
see also In re Lipsky, 2015 WL 1870073, at *3 (recognizing that the burden shifts to the non-
movant to come forward with support of her claims only “If the movant is able to demonstrate that
the plaintiff’s claim implicates” a protected right). And the non-movant may go forward even with
claims that are encompassed within the Act so long as those claims are supported by clear and
specific evidence. Id.; Tex. Civ. Prac. & Rem. Code § 27.005(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.”).
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See CSI’s Notice of Supplemental Authority at 8. As set forth in detail in her original
brief, Mrs. Rathbun urges the Court, on this issue of first impression in Texas, to
conclude that pre-suit investigation is not entitled to protection, or, in the alternative,
that sham investigation is not entitled to protection and CSI’s claim of pre-suit
investigation is a sham. See Brief of Appellee at 44-50; see also Serafine, 2015 WL
2061922, at *19-21 (Pemberton, J. concurring) (urging a traditional view of what is
meant by the right to petition and arguing for exclusion of sham petitioning from
protection).
C. Neyland v. Thompson
CSI relies on this Court’s opinion in Neyland v. Thompson, No. 03-13-00643-
CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet. h.), for the
proposition that Mrs. Rathbun’s claims were based on communications that fall
within CSI’s right of association. As CSI recognizes, and the Court is aware,
Neyland concerned whether communications among members of a homeowner’s
association were protected by the TCPA. CSI fails now, as it has always failed, to
identify a single complaint by Mrs. Rathbun regarding communications among
members of CSI. This is because Mrs. Rathbun’s claims do not concern
communications among members of CSI. See Brief of Appellee at 42-43
(“The activity Mrs. Rathbun complains of does not fall within this description [of the
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right of association] and Appellants have failed to identify even one such
communication that is the subject of Mrs. Rathbun’s claims.”).
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D. Lippincott v. Whisenhunt
Finally, CSI alleges that Lippincott v. Whisenhunt, 13-0926, 2015 WL 1967025
(Tex. Apr. 24, 2015), “resolves one of the main legal disputes in this appeal, i.e.,
whether the Act applies only to a ‘communication’ that is made to the public.” CSI
Notice of Supplemental Authority at 1-2. In support of its position that this question
is disputed, CSI cites to pages 39-42 of Mrs. Rathbun’s brief and pages 20-24 of the
district court’s opinion.
In fact, neither of those documents contains a contention that the TCPA does not
apply to private communications. The discussion on pages 39-42 of Mrs. Rathbun’s
brief establishes that Mrs. Rathbun’s claims do not arise from speech on matters of
public concern. Brief of Appellee at 39-42 (“The only communications complained
of concern Mrs. Rathbun’s marriage, [Mrs.] Rathbun’s alleged sexual preferences
and practices, Mrs. Rathbun’s fertility issues, Mrs. Rathbun’s husband, and the
mental health of Mrs. Rathbun’s husband’s family. These are not matters of public
concern.”). Pages 20-24 of the district court’s opinion address the district court’s
attempt to find the proper balance between Mrs. Rathbun’s “right to prosecute her
common law claims for personal injury” and CSI’s “rights of freedom of
expression.” Far from questioning whether private communications would give rise
to a claim under the TCPA, the district court stated that “[f]or the limited purpose of
this inquiry, the [c]ourt presumes that the Defendants’ expressions of speech,
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petition and association were, to the extent necessary, public in nature.” 31CR3774.
Contrary to CSI’s description of “one of the main legal disputes in this appeal,” there
in fact was no dispute as to whether the TCPA may apply to speech to private
individuals because the question was not germane to the outcome of CSI’s motion.
CSI’s conclusion that in light of the evidence, “Lippincott leaves no room for
Appellee to argue that Appellants’ communications were not ‘made in connection
with a matter of public concern’ within the TCPA,” likewise does not follow from
Lippincott. In Lippincott, the Texas Supreme Court acknowledged the unremarkable
conclusion that emails regarding whether a nurse properly provided care to her
patients addressed a matter of public concern. Lippincott, 2015 WL 1967025, at *2
(“We have previously acknowledged that the provision of medical services by a
health care professional constitutes a matter of public concern.”). Nothing in
Lippincott would render communications about an individual’s spouse, marriage, or
fertility issues matters of public concern.4
4
CSI claims in this portion of its Notice that Mrs. Rathbun conceded she is a public figure by not
responding to CSI’s claim that she was. CSI Notice of Supplemental Authority at 3. Mrs. Rathbun
did not concede anything. She did not address in her Brief of Appellee whether she was a public
figure simply because it was not determinative. Nevertheless, it is clear that Mrs. Rathbun is not
a public figure. See, e.g., Neyland, 2015 WL 1612155, at *6-7.
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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
THE JEFFREY LAW FIRM
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 SERVICE
I certify that on the 24th day of June 2015, the foregoing Appellee’s Response to
Notice of Supplemental Authority of Appellant Church of Scientology 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
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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
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