CAUSE NO. C-2013-1082B MONIQUE RATHBUN Plaintiff, v.

DAVID MISCAVIGE, RELIGIOUS TECHNOLOGY CENTER, CHURCH OF SCIENTOLOGY INTERNATIONAL, STEVEN GREGORY SLOAT, AND MONTY DRAKE Defendants. IN THE DISTRICT COURT

207TH JUDICIAL DISTRICT

COMAL COUNTY, TEXAS

DEFENDANT CHURCH OF SCIENTOLOGY INTERNATIONALS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Before the Court is the motion of Defendant Church of Scientology International (CSI) to dismiss Plaintiffs petition (now the Second Amended Petition, or SAP) and each of the four causes of action alleged under it, pursuant to the Citizens Participation Act, Chapter 27 of the Civil Practice and Remedies Code, which is the Texas anti-SLAPP statute enacted in 2011, as amended by Acts 2013, 83rd Leg., Ch. 1042 (H.B. 2935), 1, eff. June 14, 2013 (the Statute). For the reasons stated below, the Court concludes that the motion must be granted and Plaintiffs SAP must be dismissed in its entirety. I. 1. PROCEDURE UNDER THE STATUTE

A SLAPP is a strategic lawsuit against public participation. Chapter 27

provides for an early and expedited dismissal of such lawsuits, which seek to shut down and silence citizens exercise of their First Amendment rights. The Statutes purpose is to

encourage and safeguard the constitutional rights of persons to petition, speak freely, [and] associate freely. Id. 27.002.

The legislature has determined that unmeritorious lawsuits subject to chapter 27 should be dismissed early in litigation, generally before parties must engage in discovery. . . . The supporters of the bill leading to the enactment of chapter 27 noted that the bills purposes were to allow a prevailing movant of a motion to dismiss to achieve dismissal earlier than would otherwise be possible and to avoid costly legal expenses, including discovery expenses, even before the summary judgment stage of litigation. . . . Requiring a proper movant for dismissal under chapter 27 to engage fully in litigation, including a possible trial, would eviscerate these purposes and would ignore the legislatures determination that customary procedures are inadequate in some respects to protect defendants in cases falling within chapter 27s guidelines. Likewise, requiring proper chapter 27 movants generally to proceed through litigation when they should be entitled to dismissal harms a broader purpose of chapter 27 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. In re Lipsky, 411 S.W.3d 530, 539 (Tex.App.Fort Worth, 2013, no pet.)(internal citations and quotations omitted). The Statute provides for dismissal of a lawsuit that is based on, relates to, or is in response to a partys exercise of the right of free speech, right to petition, or right of association. Id. 27.003(a). Courts are directed that the entire Statute shall be construed liberally to effectuate its purpose and intent fully. Id. 27.011(b). 2. Under the Statute, a court is required to dismiss a legal action 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 partys exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. Id. 27.005(b). In making this determination, the court is to consider the pleadings and the supporting and opposing affidavits. Id. 27.006. Each cause of action set forth in a petition, as well as the petition itself, is deemed a legal action and is subject to a motion to dismiss under the Statute. Id., 27.001(6), 27.003(a). 3. To avoid dismissal a plaintiff must establish[] by clear and specific evidence a

prima facie case for each essential element of the claim[s] in question. Id. 27.005(c)(emphasis added). The purposeful inclusion of a clear and specific evidence requirement indicates that

the non-movant must satisfy an elevated evidentiary standard under 27.005(c).

Rehak

Creative Services, Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.App.Houston [14th Dist.] 2013, pet. denied)(specifically rejecting argument that court should import into Chapter 27 the scintilla of evidence concept applicable in the context of a no-evidence motion for summary judgment); accord, Farias v. Garza, 04-13-00094-CV, 2014 WL 300983, *2 (Tex. App.San Antonio Jan. 29, 2014, no. pet. h.). To meet her burden of clear and specific evidence, a plaintiff cannot rely on presumptions, inferences or intendment.Rehak Creative Services, Inc., 404 S.W.3d at 726; Farias at *2; Rio Grande H2O Guardian v. Robert Muller Family P'ship Ltd., 04-1300441-CV, 2014 WL 309776, *2 (Tex. App.San Antonio Jan. 29, 2014, no. pet. h.). Rather, a plaintiff must present evidence that is unambiguous, sure, and free from doubt, and that is explicit. KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.Houston [1st Dist.] 2013, pet. denied); accord, Farias at *2(Clear means free from obscurity or ambiguity, easily understood, free from doubt, or sure. . . . Specific means constituting or falling into a specifiable category, free from ambiguity, or accurate.). 4. Even if a plaintiff can establish clear and specific evidence of a prima facie case

for each element of her claim, the Court nevertheless 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 non-movants claim. Id. 27.005(d). Thus, for example, even if a libel plaintiff can establish by prima facie evidence the elements of a libel, a court is required to dismiss the action if the defendant can establish a First Amendment or other defense to the libel cause of action. 5. The Statute provides an expedited procedure pursuant to which the parties may

submit affidavits or declarations, which they have done. The Statute further provides that a

plaintiff may seek and, if appropriate, obtain specific and limited discovery to support its claims. The court has granted Plaintiffs request to obtain such limited and specific discovery, and Plaintiff has done so. On February 14, 2014, the Court timely concluded a final hearing on the motion. The Court hereby sets forth and enters its Findings of Undisputed Admissible Facts and its Conclusions of Law. II. PLAINTIFFS CLAIMS 6. At the time CSI filed this motion, Plaintiffs claims were set forth in her First

Amended Petition (FAP) and her original declaration attached to her FAP. She asserted four causes of action: intentional infliction of emotional distress, intentional interference with

contract, intrusion of privacy, and breach of privacy by publication of private facts, for which she sought damages and injunctive relief. Each of her four causes of action incorporated all of her factual allegations. After CSIs instant motion was filed, Plaintiff filed a Second Amended Petition (SAP) asserting the same four causes of action, again incorporating all of her factual allegations into each cause of action, and amended her original declaration by filing a First Amended Declaration (FAD). In addition she filed a Supplemental Declaration and a

Declaration of Mark Rathbun, her husband, and a First Amended Response (FAR) to CSIs motion to dismiss under the Statute. 7. In support of her causes of action, Plaintiff alleges that she is married to Marty

Rathbun, who, she alleges, worked for the Church of Scientology for 27 years. SAP 14. The SAP states that Mr. Rathbun became disaffected from the Church and left in 2004. Id. 15. In 2009, Mr. Rathbun decided to speak out against the Churchs leadership. Id. 17. Plaintiffs SAP alleges that the Defendants undertook a campaign against her husband and her in which they purportedly have been harassed, insulted, surveilled, photographed, videotaped, defamed,

and humiliated. Id. 19.

More specifically, Plaintiff alleges that CSI retained private

investigators to undertake such actions. She further alleges, as an important basis of this lawsuit (Id. 33), that CSI directed a group called the Squirrel Busters, that undertook to film Mr. Rathbun for the purpose of producing a video documentary in response to his alleged misuse and corruption of Scientology doctrine and practices, and his attacks upon the Church and its leadership. Plaintiff alleges in her declarations that the Squirrel Busters followed the Rathbuns, videotaped their movements, attempted to question and insult them, and sent individuals to their house to question them. Monique Rathbun FAD, 8-9. III. 8. FINDINGS OF UNDISPUTED ADMISSIBLE FACTS

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

member of any church of Scientology and did not learn about Scientology until she met Mr. Rathbun in 2005. See September 12, 2013 Hrg. Trans., p. 199. 9. Mr. Rathbun was a member and official of the Church of Scientology for over 20

years when he was removed from any position of authority in December 2003. He subsequently left the Church in 2004. Cartwright Aff., 5. 10. Five years after leaving the Church, he became a self-proclaimed independent

Scientologist practicing his own version of what he calls Scientology. He began by posting an advertisement on Craigs list on January 21, 2009, offering Scientology counseling . . . reasonable rates. Id., Ex. 3. Since that time, Mr. Rathbun has provided independent

Scientology services to followers, often for a fee, out of the same location that also is his and the Plaintiffs residence. Id., 5-8. He also has written books and posts an Internet blog that attacks his former church. Id., 9-16. He has conducted media interviews and produced videos

to that end at his premises in Texas, and he has distributed his videos and transcripts of his interviews on the Internet. Id. 11. Mr. Rathbuns blog, which he started publishing in 2009, contains attacks on the

Church and its ecclesiastical leader David Miscavige, as well as other well-known Scientologists. Cartwright Aff. 14, Exhs. 14-20. For example, some of Mr. Rathbuns more extreme postings compared Mr. Miscavige to Adolph Hitler, the Ayatollah Khomeini, David Koresh and Jim Jones, and compared the Church to Jonestown. Id. 27, Exh. 16. Mr. Rathbun published a document entitled 31 Factors, purportedly modeled on Martin Luthers 95 Theses, which he posted on his Internet blog. Id. 16, Exh. 2. He has accused the Church and its leadership of departing from Scientology doctrine and corrupting the religious practice of Scientology. Id., 16, Exhs. 6, 8, 14. He has called for the destruction of the Church of Scientology and its replacement by his version of independent Scientology. Id., 14, Exhs. 6, 19. 12. Mr. Rathbun has also used his blog to solicit persons to visit his premises to

receive independent Scientology services from Mr. Rathbun and from Plaintiff. Cartwright Aff. 5, 6, 7, 15. As recently as October 12, 2013, Rathbun posted comments from recent visitors who had received such services. Id. 15. 13. Beginning in 2009 and continuing to the present, Mr. Rathbun has carried out his

anti-Scientology campaign and has voluntarily appeared on BBC, CBS, NBC, CNN (Anderson Cooper), ABC (Nightline), and other television venues. Cartwright Aff., 9-11. He has conducted interviews with newspaper publications including the New York Times, Tampa Times, Texas Monthly, and various local newspapers throughout the United States where he is widely and often quoted making the same allegations. Id. Many of those interviews have taken

place at Mr. Rathbuns residence, which is also the place at which he writes his blog and conducts his independent Scientology practice. 14. For example, Mr. Rathbun appeared for an on camera interview from his home on

ABCs Nightline which aired on October 22, 2009. Cartwright Aff. 10, Exh. 9, screenshot. Channel 4 in the United Kingdom broadcast a program featuring the Rathbuns which aired on June 17, 2013 and showed Mrs. Rathbun inside their house. Id., Exh. 10. The Rathbuns hosted a reporter and video crew from the German station N-TV, which showed Mrs. Rathbun in her living room when it aired on N-TV in Germany on December 11, 2012. Id., Exh. 11. In early 2012, reporter Guy Adams was invited into the Rathbuns business/residence and was given an interview, and his article ran in the UK Independent on April 7, 2012 with a photograph of Mr. Rathbun standing before Scientology books, (books published by the official Church, not Rathbun). Id., 10, Exh. 12. 15. Mr. Rathbun has also produced videos of himself and others and has his own

YouTube channel which contains over 70 videos attacking the Church and its leadership. These include videos with his associate Mike Rinder, attacking the Church and its officials while sitting at Rathbuns residence and place of business in Texas. In one of these videos, Mr. Rathbun and Mr. Rinder discuss their shared intention that the most important thing is to bust the copyrights of the Scientology religion. Plaintiff is also featured on a number of Mr. Rathbuns blogs including videos he shot of her in their home. Id., Exhibit 13, blog. Mr. Rathbun distributed his videos and transcripts of his interviews over the Internet. Cartwright Aff. 13. 16. In September 2011, Mr. Rathbun traveled to Germany with Plaintiff and met with

overseas attackers of the Church, including one official in Germany whose actions against Scientology have been criticized by the United States State Department (U.S. Department of

State, International Religious Freedom Report 2003). He actively participated in a press conference in Germany with that official where he repeated his attacks on the Church and its leadership. Cartwright Aff., 12. Mr. Rathbuns blog provides links to these various antiScientology groups and individuals. 17. Mr. Rathbun has made uninvited visits to Church premises, during which CSI

alleges he harassed parishioners and staff. Cartwright Aff., 18. On one occasion, Mr. Rathbun impersonated a Church executive in an attempt to pull a staff member out of the Church; the staff member rejected his effort. Id. On a different occasion, Mr. Rathbun was issued a Trespass Warning citation by the Clearwater, Florida Police Department for his actions at the Scientology church in that city. Id., Exh. 17. 18. Mr. Rathbun has explicitly encouraged parishioners and staff members to leave

the Church, to take Church property and Church proprietary and confidential information with them and deliver them to his residence in Ingleside on the Bay, Texas. On August 26, 2010, he posted a segment on his blog entitled Know Your Rights, suggesting that Church staff members should take Church documents and records from Church files and bring them to him, promising to provide them with legal support should they do so. Cartwright Aff., 19. Shortly thereafter he provided legal and logistical support to Daniel Montalvo, who allegedly stole confidential materials from the Churchs publishing company and brought them to Mr. Rathbun and others associated with him. Id., Exhs. 19-21. Mr. Rathbun posted to the Internet a photograph showing Plaintiff as being present at that meeting. Id. 19. Plaintiff has publicly and openly encouraged Mr. Rathbun to practice his

independent Scientology, and has herself provided independent Scientology auditing to others. Cartwright Aff., 7-8. To Scientologists, a person who engages in such unauthorized

20.

Mr. Rathbun and another Church detractor, Mike Rinder have directly or

indirectly participated in, consulted, and/or assisted in at least fourteen legal matters related to or against the Church. Cartwright Aff., 21. 21. Plaintiff Monique Rathbun independently has attacked the Church and its leaders.

She has posted such messages and comments on Facebook, with links to Mr. Rathbuns blog. She accompanied her husband to Germany for his meetings, and attended the German press conference in which he and others attacked the Church and its leadership. She has appeared on television shows in the United States and Great Britain in which she and others attacked the Church of Scientology. Cartwright Aff., 22. 22. In April 2011, several Scientologists opposed to and offended by Mr. Rathbuns

activities, including the delivery of allegedly unauthorized, altered Scientology services and his attacks on the Church and Mr. Miscavige, went to Ingleside on the Bay, Texas, where the Rathbuns engaged in the practice of independent Scientology, to protest those activities and to produce documentary videos of them. They called themselves the Squirrel Busters. Cartwright Aff., 23; Allender Aff., 5-6; Lubow Aff., 9-12; Hirst Aff., 5-7. 23. Squirrel Busters Productions was established by Scientologist John Allender who

was the producer of the documentary videos. Allender, who was not a staff member of a Scientology church or a member of Scientologys religious order known as the Sea Org, worked with Mark Warlick, a professional photographer and videographer, and defendant David Lubow, who acted as the director and co-producer of the project. Allender Aff., 6-9. Lubow, in addition to being a private investigator, was a filmmaker who had written and produced a feature

length documentary Prescription: Suicide? Concerning the psychiatric abuse of prescription medication with children. Lubow Aff., 3. 24. Lubow hired a few professional film crew members to work on the filming and

production, including professional videographer Bart Parr, who did most of the filming. Lubow also hired a security guard. CSI provided some financial and legal support to the Squirrel Busters and retained Lubow for his services. Cartwright Aff., 23; Lubow Aff., 11-12. 25. The Squirrel Busters were in Ingleside on the Bay near the Rathbuns place of

business from April 18-21, 2011 and June 10 through approximately September 16, 2011 (the last day the Squirrel Busters filmed). Except for the few minutes on April 18, 2011 when the Squirrel Busters knocked on the Rathbuns door, all the rest of the filming was done on public property. Allender Aff., 12; Lubow Aff., 15. 26. The Squirrel Busters made their first contact with Mr. Rathbun on April 18, 2011,

on the front porch of his house in Ingleside on the Bay. While Rathbun stood outside his doorway, they attempted to interview him about his squirrel counseling practice. As Plaintiff has conceded, the discussions involved debate about issues relating to the Scientology religion. See September 12, 2013 Hrg. Trans., p. 199. Rathbun asked them to leave his property, which they did. This incident was video recorded by Rathbun and posted on his blog and was also turned into a video by the Squirrel Busters and posted on their YouTube Channel. Allender Aff., 9. 27. During the course of their filming activities, the Squirrel Busters had numerous

non-violent verbal encounters with Mr. Rathbun and Plaintiff in public areas, in the course of which they discussed, often in heated or argumentative terms, the Rathbuns squirrel and antiScientology activities. Allender Aff., 12. As Plaintiff has acknowledged in her sworn

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testimony before this court, no member of the Squirrel Busters ever trespassed on her property. Cartwright Aff., Exh 7 at 200:5-7. Moreover, Plaintiff has presented no evidence, let alone clear and specific evidence, that any Squirrel Buster ever entered the Rathbuns place of business/residence, peered into it, photographed or filmed the interior of it, used any form of electronic surveillance with respect to it, used any form of microphone to overhear private conversations of Plaintiff or her husband at their place of business/residence or interfered with or wiretapped the Rathbuns telephone or Internet service, physically blocked or interfered with the Rathbuns freedom of movement, or physically touched or threatened the Rathbuns. CSI has presented uncontroverted evidence that the Squirrel Busters undertook no such intrusive acts. Cartwright Aff. 27, Exh.7 at 200:3-7; Allender Aff., 14; Lubow Aff., 6-7; Hirst Aff., 9. On one occasion, one member of the Squirrel Busters uttered the word bitch at Plaintiff and her husband as he drove past them on the street. On another occasion, Plaintiff and her husband uttered the words f___ you at one or more of the Squirrel Busters. 28. Plaintiff and her husband have made numerous allegations that the Squirrel

Busters engaged in activities in the nature of harassment. The Court makes the following findings with respect to those allegations: A. Plaintiff alleges that anonymous callers phoned their house and threatened them.

Plaintiff provides no direct and specific evidence of what calls were made, how many, or what threats were uttered, nor does she state any evidence to support her supposition that CSI or its agents made or was responsible for the calls. The allegation therefore must be rejected. B. Plaintiff alleges that Defendants sent a sex toy to Plaintiff at her place of

employment and also sent flowers to a female co-worker with a romantic message purportedly from Plaintiff. Plaintiff has conceded that she has no evidence to support her speculation as to

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the source of these acts. She has submitted no such evidence. The allegation therefore must be rejected. C. Plaintiff alleges that so-called Scientology websites published defamatory

attacks upon Plaintiff, including that she really is a man and a sexual pervert. Again, Plaintiff presents no evidence, let alone specific and direct evidence, either of the existence of these web sites, of the defamatory material, or, most importantly, that they are what she terms Scientology websites or that CSI was responsible for their content. The allegation therefore must be rejected. D. Plaintiff alleges that the Squirrel Busters followed Plaintiff and her husband in a

golf cart and otherwise in public and asked questions and made accusations while trying to film them. CSI responds that it did attempt to film and direct questions to the Rathbuns in public places and that such acts were part of the efforts by the Squirrel Busters to create video documentaries about Mr. Rathbuns activities. E. Plaintiff alleges that a videographer hired to assist the Squirrel Busters, Bert

Leahy, left his position after purportedly being told by Mr. Lubow that the purpose of the Squirrel Busters was to make Martys life a living hell. This allegation is set forth in Mr. Leahys declaration. Mr. Lubow, however, has submitted recordings and transcripts of voice messages (Second Lubow Dec., Exs. A-B) left by Mr. Leahy in which Leahy suggests that he would withdraw the accusation if he received compensation, and transcripts of a subsequent telephone call, which Mr. Lubow taped, in which Mr. Leahy demands $20,000 to withdraw the accusation and admits that Mr. Lubow never made the statement alleged and that Mr. Rathbun suggested the words and just made me throw it in there.

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F.

Plaintiff alleges that Defendants ordered pizzas to be delivered to Plaintiffs house

without their knowledge. Plaintiff provides no specific or direct evidence that CSI was at all responsible for this act, and Mr. Rathbun even speculated on his blog that it and similar acts were undertaken by another group. (Second Cartwright Dec., Exh. 6.) The allegation therefore must be rejected. 29. During the time the Squirrel Busters were in Ingleside, a number of news

reporters visited Mr. Rathbun and Plaintiff at their premises and elsewhere, where they interviewed and filmed the Rathbuns. These included Frank Nordhausen from a German TV Channel, Mark Colette from the Corpus Christi Caller Times, John MacCormack of the San Antonio Express-News, Mike DaSilva from ABC Channel 3, and Amanda Torres, from the Aransas Pass Progress. There were several stories in the local press (San Antonio Express-News and Corpus Christi Caller Times). The readers of the Caller Times voted the Squirrel Busters articles as Story of the Year. Cartwright Aff., 25. 30. Other media continued to have interest in this dispute. In March 2012, CSI

responded to questions about the Squirrel Busters from The Independent in the UK, and in July 2012, CSI responded to questions about them from NBC TV. Cartwright Aff., 26. 31. The Squirrel Busters used some of their video footage to make at least 14 videos

that they posted on their own YouTube channel, The Squirrel Zone. They also created a series of radio ads. Rathbun posted at least 20 videos on his blog and/or YouTube channel about the Squirrel Busters. Cartwright Aff., 24. 32. CSI, through its counsel, retained several licensed professional private

investigators as a result of Mr. Rathbuns actions. In particular, these investigators were hired because of Mr. Rathbuns alleged appropriation of CSIs intellectual property, his alleged

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exhortations to others to engage in theft of CSI materials and property and to bring the materials to him, including his offers to protect them for their illegal acts, his involvement as a witness, consultant, and solicitor of other litigation, and his public attacks upon Scientology and its officials, including his use of highly defamatory allegations. Cartwright Aff., 27; Drake Aff., 7; Lubow Aff., 4-5. The private investigators work product was sought in connection with possible affirmative litigation, or in connection with defense of litigation threatened by Mr. Rathbun or in which Mr. Rathbun played a part. Id. Defendant has submitted declarations from CSI and the investigators stating that the private investigators were directed to use only proper, ethical, and lawful methods of investigation, and that they did use only such lawful methods. Cartwright Aff., 27; Lubow Aff., 6-7; Drake Aff., 8-9; Sloat Aff., 6-11. Plaintiff has produced no evidence, let alone direct and specific evidence, to the contrary. In particular, Plaintiff has presented no evidence, let alone clear and specific evidence, that any private investigator entered the Rathbuns place of business/residence, peered into it, directed a camera into its interior, used any form of electronic surveillance with respect to it, used any form of microphone to overhear private conversations of Plaintiff or her husband at their place of business/residence, interfered with or wiretapped the Rathbuns telephone or Internet service, physically blocked or interfered with the Rathbuns freedom of movement, or physically touched or threatened the Rathbuns. CSI has presented uncontroverted evidence that it undertook no such intrusive acts. Cartwright Aff., 27; Lubow Aff., 6-7; Drake Aff., 8-9; Sloat Aff., 6-10. 33. Mr. Rathbun, in his declaration, alleges various acts in which CSI, through its

private investigators, engaged in various alleged acts of harassment. Rathbun Aff., 18-21, 23, 26-29, 32-33. These allegations are made without direct and specific evidence that they occurred

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at all, or that CSI undertook such acts, and constitute mere opinion, speculation, inference and supposition. IV. A. CONCLUSIONS OF LAW

Defendant CSI May Bring a Motion to Dismiss the SAP and Each Cause of Action Asserted Under It Pursuant To the Anti-SLAPP Statute 34. A court must undertake a two-step process in deciding a motion to dismiss

brought under the Statute. First, a court must determine whether a defendant may file such a motion to dismiss invoking the special procedures of the Statute. In making that threshold determination, the court does not decide the merits of the motion, per se, but rather decides whether the issues raised by the motion come within the scope of the Statute. Second, assuming the court finds that a defendant may bring such a motion, the court must determine whether or not to grant the motion in whole or part based upon the pleadings and declarations on file. 35. With respect to the threshold question, the Statute provides that if a legal action

is based on, relates to, or is in response to a partys exercise of the right to free speech, right to petition, or right to association, that party may file a motion to dismiss the action under the procedures set forth in the Statute. Tex. Civ. Prac. & Rem. Code 27.003(a). 36. When a legal action includes claims based upon any activities that come within

the ambit of the Statute, the Statute applies, and the legal action must be subject to scrutiny under its provisions, even if the legal action also includes claims based upon actions not within the Statutes ambit. Where, as here, a cause of action is based on both protected activity and unprotected activity, it is subject to [a SLAPP statute] unless the protected conduct is merely incidental to the unprotected conduct. Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 110 Cal. Rptr. 3d 129, 139 (Cal. Ct. App. 2010) (internal citations and quotations omitted) (applying California anti-SLAPP
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statute); accord, Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 35 Cal. Rptr. 3d 31, 40 (Cal. Ct. App. 2005). As the court in Haight Ashbury held, the protected conduct cannot be deemed to be merely incidental to the unprotected conduct if the acts of protected conduct, but for the protection of the First Amendment, could each be the sole and adequate basis for liability under the cause of action, even if [the plaintiff] could not prove any of the other [alleged acts]. Haight Ashbury, 110 Cal. Rptr. 3d at 140; see also Mann v. Quality Old Time Serv., Inc., 15 Cal. Rptr. 3d 215, 222 (Cal. Ct. App. 2004) (because the defendants reports to government agencies formed a substantial part of the factual basis for defamation and trade libel claims, the claims were subject to the anti-SLAPP statute even though also based on unprotected statements); Salma v. Capon, 74 Cal. Rptr. 3d 873, 88384 (Cal. Ct. App. 2008) (mixed causes of action are subject to a special motion under the anti-SLAPP statute if at least one of the underlying acts is protected conduct). 37. Texas courts have recognized that cases applying Californias statute may be

helpful due to the similarities between that act and the Texas Citizens Participation Act. See Newspaper Holdings Inc. v. Crazy Hotel Association Living, Ltd., 2013 Tex. App. LEXIS at *39 (Tex. App.Houston [1st Dist] October 24, 2013, no pet. h). Here, the rule articulated by the California courts is both rational and necessary to preserve the Statute from avoidance and abuse: 1. [A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and unprotected activity under the label of one cause of action. Fox Searchlight Pictures, Inc. v. Paladino, 106 Cal. Rptr. 2d 906, 918 (Cal. Ct. App. 2001); Haight Ashbury, 110 Cal. Rptr. 3d at 140 (the pleading of other, indeed numerous other, indisputably unprotected theories of liability does not eliminate or reduce the chilling effect on the exercise of free speech and petition created by the allegations of protected activity).

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38.

In this case, Defendant CSI is entitled to bring its motion to dismiss under the

Statute because Plaintiffs SAP, and each of its causes of action, indisputably is based on, relates to, or is in response to [CSIs and individual Scientologists] exercise of the right to free speech, right to petition [including in a judicial proceeding], or right of association on matters of public concern, within the meaning of the Statute, as explained in the following paragraphs. 1. 39. Plaintiffs claims are Based on, Relate to, or are in Response to CSIs Exercise of the Right of Free Speech First, with respect to CSIs exercise of its right to free speech, a primary focus of

Plaintiffs SAP is upon the activities of the Squirrel Busters group. SAP 33 (The Squirrel Busters operation against the Rathbuns is an important basis of this lawsuit.). The Squirrel Busters allegations are incorporated in and made a significant part of all four of Plaintiffs alleged causes of action. SAP 43-46. This includes acts of standing in protest near the Rathbuns property, holding signs of protest, attempting to speak to passers-by or those entering or leaving the property about the alleged impropriety or incorrectness of Mr. Rathbuns activities, and filming Mr. Rathbun and others in public places as part of the production of a documentary or video about issues of potential public importance, including importance to Scientologists. At the hearing on Plaintiffs motion for a temporary injunction, Plaintiff

presented substantial evidence of the public acts of the Squirrel Busters, including videos of those acts. See September 12, 2013 Hrg. Trans, pp. 105, ff. In introducing his presentation of evidence on the subject of the Squirrel Busters during that hearing, Plaintiffs counsel emphasized that it played a prominent role in Plaintiffs claims: I want to get to a dramatic change in the level and intensity of what you were experiencing and specifically Im going to talk now about the squirrel busters. Id. at p. 105. Plaintiffs counsel then proceeded to show the court video clips of and question Plaintiff specifically about the Squirrel Busters activities in
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40.

These activities lie at the core of the First Amendment. The streets and public

rights of way on which the Squirrel Busters conducted their activities are traditional public forums for both speech and association, and they have immemorially been held in trust for the use of the public. Hague v. CIO, 307 U.S. 496, 515 (1939); Frisby v. Schultz, 487 U.S. 474, 481 (1988). Such space occupies a special position in terms of First Amendment protection. Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011). Accordingly, state authority may not be used to prohibit persons from using such forums both to express a point of view to the general public and to attempt to communicate that point of view on an individual or group basis to those who pass by. Cantwell v. State of Connecticut, 310 U.S. 296, 308-09 (1940); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08 (1982). 41. Likewise, there can be no question that production, filming and distribution of

films, videos, CDs, etc., by whatever technology, is protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-03 (1952); Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729, 2733 (2011).

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42.

The Squirrel Busters expressive and speech activities also are within the scope of

the Statute because they meet the Statutes requirement that the speech at issue be a matter of public concern. Tex. Civ. Prac. & Rem. Code 27.001(3)(defining exercise of the right of free speech as a communication made in connection with a matter of public concern). A matter of public concern under the anti-SLAPP statute includes, but is not limited to, an issue related to community well-being, a public figure, or services in the marketplace. Id. 27.001(7). All three factors are present here. a. The Squirrel Busters expressive and speech activities are about a matter of public concern within the meaning of the Statute Because they Concern Matters of Community Well Being Mr. Rathbun engaged in ongoing attacks upon the Scientology religion and its

43.

officials because he claimed it was a matter of community well being, and the Squirrel Busters engaged in their activities trying to call his actions to task and create a documentary film about them because they felt the defense of Scientology and the rejection of Mr. Rathbuns campaign were also matters of community well being. The widespread media interest and coverage of the dispute, invited and encouraged by Mr. Rathbun himself, demonstrates that the dispute was a matter of public concern. b. The Squirrel Busters expressive and speech activities are about a matter of public concern within the meaning of the Statute Because they Concern Public Figures The Rathbuns made themselves public figures, at least with respect to issues

44.

relating to Scientology, by Mr. Rathbuns multi-year public campaign against Scientology, conducted on a nationwide basis in every media outlet that he could find, and by Plaintiffs ongoing and enthusiastic participation and support of that campaign. Moreover, by the

Rathbuns intentional acts, their residence was deliberately made the centerpiece of their campaign.
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45.

A three-part test determines whether one is a limited-purpose public figure:

(1) the controversy is public that is, people other than immediate participants must discuss it and must be likely to feel the impact of its resolution; (2) the plaintiff must have more than a trivial or tangential role in the controversy; and (3) the alleged tortious speech must be related to the plaintiffs participation in the controversy. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 569, 571 (Tex. 1998). The test does not distinguish between those who have voluntarily inserted themselves into a controversy and those who are involuntarily drawn into one. Id. at 571-72. 46. Plaintiff has conceded that her husband is a public figure. Cartwright Aff. 9,

Exh. 7 at 194:4-9. Thus the acts of the Squirrel Busters, directed to Marty Rathbun, involved matters of public concern within the meaning of the Statute. 47. Plaintiff has injected herself into the public dispute created by her husband so that

she too must be deemed to be a limited public figure, at least for purposes of the anti-SLAPP Statutes definition of a matter of public concern. See, e.g., Denney v. Lawrence, 22 Cal. App. 4th 927, 936 (Cal. Ct. App. 1994)(Because [plaintiff] thus voluntarily involved himself in the public debate and attempted to influence public opinion, he thereby became at least a limited public figure); Scaccia v. Dayton Newspapers, Inc., 2001 WL 1517043, *9 (2001-Ohio-1834) ([Plaintiff] intentionally . . . injected herself into a public controversy, and thereby became a public figure for that limited purpose. Furthermore, the fact that [plaintiff] is married to the public official bolsters her public-figure status. Therefore, [plaintiff] is a public figure for purposes of her defamation claim arising from the articles at issue); Burns v. Times Argus Assn, 139 Vt. 381, 385-86 (1981) (In defamation suit against newspaper by wife of Lieutenant Governor, who campaigned for her husband and attended party functions while he was in office, plaintiff was deemed a public figure with respect to his office and activities relating to it).

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48.

Even if Plaintiff had done far less than she did to inject herself into the public

controversy generated by her husband, she nevertheless must be deemed an involuntary public figure with respect to that controversy: [t]he one group of individuals that might truly be considered involuntary public figures are relatives of famous people. Marcone v. Penthouse Intl Magazine for Men, 754 F.2d 1072, 1084, n. 9 (3d Cir. 1985) (citing Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y. 1974) (children of Julius and Ethel Rosenberg are public figures), affd in relevant part, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978). Thus, in Brewer v. Memphis Pub. Co., 626 F.2d 1238 (5th Cir. 1980), the court held that the husband of a public figure entertainer must be treated as a limited purpose public figure in a lawsuit arising out of a news article about his wifes alleged affair with Elvis Presley that made reference to him, because the degree of First Amendment protection accorded to the news defendant for publishing an article about his wife could not be undercut by the fact that he inevitably was also a subject of the article: he may not, by marrying [a] public figure, reduce the constitutional protection afforded the press to publish stories about his spouse. 626 F.2d at 1257-58. So too here, Plaintiff may not, by marrying a public figure, reduce the constitutional protection afforded the Squirrel Busters and CSI to speak, associate, and assemble to protest the activities of her spouse, merely because, in doing so, their actions inevitably may affect her supposed interests in not being involved in a public controversy. See also Friedan v. Friedan, 414 F. Supp. 77, 79 (S.D.N.Y. 1976) (although plaintiff alleged he has made every effort to disassociate himself from his former wifes public status to preserve his identity as a private person, he does not assert a [valid] cause of action for [invasion of privacy] While plaintiff here has not acted affirmatively to make himself newsworthy, within the limited context of his past relationship to defendant Betty Friedan, who is a public figure, such a role has been thrust upon him); Carson

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v. Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976) (wife of famous entertainer acknowledged to be a public figure). c. The Squirrel Busters expressive and speech activities are about a matter of public concern within the meaning of the Statute Because they Relate to Religious Services in the Marketplace of Ideas As a self-created public figure, Mr. Rathbun invited and expected a strong public

49.

reaction and debate about his actions and attacks. Scientology is a religion, and the services it provides are in the marketplace of religious beliefs and practices. Attacks against Scientology, the defense of it, and counter-attacks against its attackers are within the marketplace of ideas protected by the First Amendment. Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes, J., dissenting)( The ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market), quoted and followed in, inter alia, Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988)(Rehnquist, C.J.); Consolidated Edison Co. v. Public Service Comm., 447 U.S. 530, 534 (1980); see New York Times v. Sullivan, 376 U.S. 254, 276 (1964)(citing J. Holmes dissent in Abrams); Citizens United v. Federal Election Comm., 538 U.S. 310, 354 (2010)(resting decision on the open marketplace of ideas protected by the First Amendment). At the evidentiary hearing on Plaintiffs request for temporary injunction, the Court saw a small sample of this in a video clip showing Plaintiff initiating dialogue with the Squirrel Busters and handing a copy of the Church Creed to them. She acknowledges she was having a religious discourse peacefully with the people. Cartwright Aff., Exh 7 at 199:4-11. 50. Accordingly, CSI may bring the instant motion under the Statute because it has

shown by a preponderance of the evidence that the legal action is based on, relates to, or is in response to [CSIs] exercise of the right of free speech. Even what Plaintiff attempts to characterize as private speech can be and is about a matter of public concern within the
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meaning of the Statute. For example, when anti-abortion demonstrators attempt to speak to or counsel women as they approach abortion clinics and try to convince them not to undergo an abortion, such private counseling is about matters of public concern and is considered protected activity. See, e.g., Operation Rescue - National v. Planned Parenthood of Houston and

Southeast Texas, Inc., 975 S.W.2d 546, 562 (Tex. 1998). Likewise, when the Squirrel Busters or individual Scientologists attempted to speak to Plaintiff or her husband privately about the Rathbuns so-called squirrel activities, such communications related to matters of community well being, to public figures (the Rathbuns), and to religious services in the marketplace of ideas, and thus were speech about matters of public concern within the meaning of the Statute. 2. 51. Plaintiffs claims are Based on, Relate to, or are in Response to CSIs Exercise of the Right of Association Second, in addition to its provisions to protect the right of free speech, the

Statute also has a purpose and effect to encourage and safeguard the constitutional rights of persons to . . . associate freely, Tex. Civ. Prac. & Rem. Code 27.002, and provides for a special Motion to Dismiss if a legal action is based upon, or relates to, or is in response to a partys exercise of the . . . right of association. Tex. Civ. Prac. & Rem. Code 27.003(a). The Statute defines the exercise of the right of association as a communication between individuals who join together to collectively express, promote, pursue, or defend common interests. That definition defines the purpose and activities of the Squirrel Busters precisely. Unlike its protection of the right of free speech, the Statute does not define the exercise of the right of association as limited to or in connection with a matter of public concern. Rather, the Statute leaves to those who choose to associate the freedom to define what is a matter of public concern; their very exercise of the right of association to express, promote, pursue or defend common interests establishes that their exercise is about a matter of public concern.
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Accordingly, CSI also may bring the instant motion under the Statute because it has shown by a preponderance of the evidence that the legal action is based on, relates to, or is in response to [CSIs] exercise of the . . . right of association. 3. 52. Plaintiffs claims are Based on, Relate to, or are in Response to CSIs Exercise of the Right to Petition Third, the Statute also has a purpose and effect to encourage and safeguard the

constitutional rights of persons to petition, Tex. Civ. Prac. & Rem. Code 27.002, and provides for a special Motion to Dismiss if a legal action is based upon, or relates to, or is in response to a partys exercise of the . . . right to petition. Tex. Civ. Prac. & Rem. Code 27.003(a). Under the Statute, exercise of the right to petition means activities such as (1) communications in or pertaining to a judicial proceeding, (2) communications in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body, (3) communications reasonably likely to encourage such consideration or review, and (4) communications reasonably likely to enlist public participation in an effort to effect such consideration or review. Tex. Civ. Prac. & Rem. Code 27.001(4). 53. The SAP also rests its claims upon CSIs retention and use of licensed private

investigators. As the management entity for the Scientology religion, it is CSIs responsibility, inter alia, to protect and defend the religion and its churches. CSI was confronted with

numerous public acts by Mr. Rathbun for which CSI believed it was required to consider possible communications to law enforcement officials or the institution of civil litigation, as well as by threats of litigation for which CSI would be responsible to defend. Among such acts were: Mr. Rathbuns alleged solicitation of others to steal materials and information from CSI or other churches and provide it to him, for which he promised he would protect such persons; Mr. Rathbuns alleged misappropriation of Scientology intellectual property and public threat to
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destroy its copyrights; Mr. Rathbuns repeated allegedly defamatory statements about CSI and other Scientology churches and officials; Mr. Rathbuns participation as a witness in numerous lawsuits against Scientology churches and affiliated entities; and others as stated above. 54. Before engaging in the institution and defense of litigation or communications to

government officials, a person or entity has a responsibility to investigate the facts thoroughly to insure that its communications are accurate. Such pre-litigation or pre-petition investigation and surveillance is incidental to, pertains to, is in connection with and is likely to encourage consideration or review of any petition to a judicial or administrative body, and thus is encompassed by the First Amendment right to petition and within the ambit of the anti-SLAPP statute, especially given the Statutes injunction that its terms shall be construed liberally to effectuate its purpose and intent fully. Tex. Civ. Prac. & Rem. Code 27.011(b). 55. The issue was addressed by the California Court of Appeals, applying the

California anti-SLAPP statute, in the case of Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049 (2009). The court held that . . . non-petitioning conduct is within the protected breathing space of the right of petition if that conduct is (1) incidental or reasonably related to an actual petition or actual litigation or to a claim that could ripen into a petition or litigation and (2) the petition, litigation, or claim is not a sham. 177 Cal.App. 4th at 1068. The court noted that in that case the challenged pre-litigation conduct involves the investigation of a possible conflict of interest due to an alleged inappropriate romantic relationship between public officials, and held that the investigation of even such intimate matters was within the protected breathing space of the right to petition. As the court explained: When one suspects that another has caused harm, a preliminary investigation is usually necessary in order to know whether one has a potential legal claim, evaluate the likelihood of success, and decide whether or not to assert it. Consequently, the investigation of a potential claim is normally and reasonably
25

part of effective litigation, if not an essential part of it. Indeed, as Tichinin correctly notes, an attorney has a duty to investigate the facts underlying a clients claims and can be sanctioned for failing to do so. [internal citations omitted.] In our view, moreover, the prelitigation investigation of a potential claim is no less incidental or related to possible litigation than prelitigation demand letters and threats to sue, which are entitled to protection. In fact, such letters and threats are themselves likely to be the result of a prelitigation investigation . . . 177 Cal.App. 4th at 1068-69. 56. Significantly, the court also held that the investigative conduct was protected not

only as incident to the right to petition, but also as a right of free speech: we conclude that hiring an investigator can also be considered protected under the right of free speech. Id. at 1074. 57. Accordingly, CSI also may bring the instant motion under the Statute because it

has shown by a preponderance of the evidence that the legal action is based on, relates to, or is in response to [CSIs] exercise of . . . the right to petition. 4. 58. No Exemption to the Statute Applies At the hearing on this motion on February 3, 2014 (but not in her First Amended

Response to the instant motion), Plaintiff argued that the anti-SLAPP Statute does not apply to this case because of the exemption stated in Section 27.010(c): [t]his chapter does not apply to a legal action seeking recovery for bodily injury . . . Plaintiff argued that because she allegedly suffered physical manifestations arising from her alleged emotional distress, i.e., that she suffered severe headaches, the exemption applies and the motion under the Statute must be denied. 59. The burden of pleading and proving the applicability of a statutory exception lies

with the one claiming under it. Cramer v. Sheppard, 167 S.W.2d 147, 155 (Tex. 1942)(one claiming under the exception must clearly bring himself thereunder). That rule has been
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followed with respect to the Texas Anti-SLAPP statute by at least three Texas Courts of Appeals. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App. Houston [1st Dist.] 2013, no. pet. h.); Pena v. Perel, 08-12-00275-CV, 2013 WL 4604261 (Tex. App.El Paso Aug. 28, 2013, no pet.); Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, INC., 402 S.W.3d 299 (Tex. App.Dallas 2013, no pet.). Accordingly, the burden of

establishing that she is within the bodily injury exception clearly lies with Mrs. Rathbun. 60. Plaintiffs attempt to invoke the bodily injury exception to the Statute would

render the Statute meaningless in most cases. All a plaintiff would have to allege to avoid the Statute would be that he or she suffered a headache, an upset stomach, or physical manifestations of anxiety of any kind, and the Statute would not apply. This evasion of the Statute could be raised in every single context in which the Statute would be applicable, including defamation claims, claims arising from demonstrations, claims, such as that in Falwell or Snyder, where the plaintiff alleges emotional distress from the exercise of speech of any kind, claims alleging that the plaintiff suffered distress and physical manifestations from a defendants exercise of his right to petition the courts or the government, and claims asserting that a defendants exercise of his right of association caused the plaintiff to suffer distress and headaches. 61. Section 312.005 of the Texas Government Code instructs Texas courts that: [i]n

interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy. Consistent with that statute, Texas case law requires that a statute is to be construed in such a manner as to make it effective. Independent Life Ins. Co. of America v. Work, 77 S.W.2d 1036, 1039 (Tex. 1934). If the language of the statute is susceptible of two constructions, one of which will carry out and the other defeat the manifest objective of the statute, it should receive the former construction.

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Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex. 1979). Courts must always consider a statute as a whole rather than its isolated provisions, and all of its parts should be harmonized if possible so as to give effect to the entire Act according to the evident intent of the Legislature. Citizens National Bank of Hillsboro v. Graham, 4 S.W.2d 541, 542 (Tex. 1928); Brown v. Owens, 674 S.W.2d 748, 750 (Tex. 1948); Winder v. King, 1 S.W.2d 587, 589 (Tex. Comm. App. 1928). 62. The anti-SLAPP Statute explicitly requires courts to construe the Statute

liberally to effectuate its purpose and intent fully. Section 27.011(b)(emphasis added). To fully effectuate the broad speech-protective purpose of the Statute --to allow a prevailing movant of a motion to dismiss to achieve dismissal earlier than would otherwise be possible and to avoid costly legal expenses, including discovery expenses, even before the summary judgment stage of litigation, In re Lipsky, 411 S.W.3d 530, 539 -- it is necessary to narrowly construe the exceptions to the Statute, and in particular the bodily injury exemption, lest the exception swallow up the entire Statute and render it meaningless. Accordingly, the Court rejects

Plaintiffs attempt to invoke the bodily injury exemption on the basis of alleged headaches she claims to have suffered from CSIs exercise of its rights of free speech, association, and petition. The bodily injury exception must be restricted to claims of physical bodily injury arising directly from a traumatic event such as being punched, pushed, thrown to the ground, beaten, shot, etc., and not as a result of manifestations of anxiety, emotional distress, or stress arising from speech, verbal communication, association, or petition activities. 63. Plaintiffs attempt at oral argument to invoke the exemption for the sale of goods

or services set forth in Section 27.010(b) must also be rejected. That exemption applies to a lawsuit alleging statements or conduct aris[ing] out of the sale or lease of goods or services or

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an insurance product or a commercial transaction in which the intended audience is an actual buyer or customer. On its face, the exemption has nothing to do with this lawsuit. Plaintiff has not sued CSI for statements or conduct CSI made concerning the sale or lease of goods and services or a commercial transaction in which the intended audience is a potential buyer or customer. Rather, she has sued CSI for speech, associational, and community activity protesting the activities of plaintiff and her husband. No part of CSIs speech or communicative activity offered the sale of goods and services to plaintiff or anyone else. B. The IIED Claim Is Barred By Common Law and The First Amendment 64. Plaintiffs IIED claim is premised upon the actions of the Squirrel Busters group,

the retention and use of private investigators, and various alleged miscellaneous acts of harassment. The acts alleged are not susceptible to a claim of IIED as a matter of ordinary Texas common law. Amendment. 1. 65. Texas common law precludes the claims To prevail on a claim for intentional infliction of emotional distress, a plaintiff Accordingly, the claims against CSI must be dismissed under the First

must establish that (1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused her emotional distress; and (4) the emotional distress was severe. Kroger Tex. Ltd. Pship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam). An action that is intentional, malicious, or even criminal does not, standing alone, mean that it is extreme or outrageous for purposes of intentional infliction of emotional distress. Brewerton v. Dalrymple, 997 S.W.2d 212, 215-16 (Tex. 1999). The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

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utterly intolerable in a civilized community. Id. at 216. [E]xcept in circumstances bordering on serious criminal acts, even heinous acts will rarely have merit as intentional infliction claims. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 818 (Tex. 2005). It is for the court to determine in the first instance whether the defendants conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Brewerton, 997 S.W.2d at 216. 66. Recently, the Texas Supreme Court clarified that an intentional infliction of

emotional distress claim is considered a gap-filler claim and cannot be used to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816, 818 (Tex. 2005) (quoting Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)). The torts purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct that might otherwise go unremedied. Zeltwanger, 144 S.W.3d at 447 (quoting Standard Fruit &Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). In Zeltwanger, the Court stated: [w]here the gravamen of a plaintiffs complaint is really another tort, intentional infliction of emotional distress should not be available. Id. This is true even if the plaintiff does not assert a claim for the other tort in her petitionsuch as defamation in this instanceor asserts the other tort but does not prevailsuch as Title VII of the Civil Rights Act of 1964. Seeid at 448. Among the cases cited as authority for this statement, the Texas Supreme Court referenced a Washington Supreme Court assault case that held damages for emotional distress could be awarded as part of the assault damages. Zeltwanger, 144 S.W.3d at 448 (citing Rice v. Janovich, 742 P.2d 1230, 1238 (Wash. 1987)); see also Conley v. Driver, 175 S.W.3d 882, 887 n.4 (Tex. App.Texarkana 2005, pet. denied) (explaining that intentional infliction of emotional distress

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tort cannot be used as an alternative to some other, more conventional tort [that] fits the facts but might be subject to some structural impediment). 1 a. 67. Plaintiffs IIED claim is barred by the gap-filler rule. Plaintiff pleads the same facts in favor of four separate causes of action. SAP,

4346. Similarly, an examination of the Evidence Appendix Plaintiff has submitted with her initial Response to the instant motion clearly demonstrates that the evidence upon which Plaintiff relies in support of her cause of action for intentional infliction of emotional distress is the same evidence as that upon which she relies in support of her three other alleged causes of action. Plaintiff subsequently attempted to correct this by submitting an amended Evidence Appendix with her First Amended Response, but an examination of that attempt reveals its futility. Plaintiff continues to rest her IIED claim on the activities of the Squirrel Busters (see Evidence Appendix Section I(2)(a, b, and c)) even as she also rests her intrusion into privacy claim on the same acts (Id., Section III(1)). Likewise, Plaintiff continues to allege that anonymous callers phoned our home and threatened us and that Scientology websites have published bizarre and sometimes vile allegations against me, including false claims that I am a sexual pervert as part of her IIED claim (Id., Section I(2)), as well as part of her causes of action for tortious interference with contract (Id., Section II(2)) and invasion of privacy by public disclosure of private facts (Id., Section IV(1)). Moreover, Plaintiffs alleged evidence in support of her IIED cause of action includes several claims of defamation, which of course could have been alleged

Plaintiffs misplaces reliance on Conley v. Driver for the proposition that if conduct is likely to produce emotional distress, the tort applies even if the actors conduct also produces some other harm. 175 S.W.3d 882, 888 (Tex.App.Texarkana 2005, pet. denied). Conley involved two separate claims arising from entirely separate acts: one for sexual assault, and one for intentional infliction of emotional distress arising from acts other than the sexual assaults. Id. at 886 (Driver testified to non-assaultive behavior by Conley which caused her emotional and psychological harm).
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as a defamation claim. Finally, at the conclusion of the oral argument at the hearing on this motion on February 4, 2014, Plaintiffs co-counsel conceded that Plaintiffs IIED cause of action encompasses all her allegations, even though those allegations also are included in her other causes of action. Transcript at pp. 32-33. This is the mirror opposite of the claims in Conley, where the court described the very different evidence that supported the assault claim versus the intentional infliction of emotional distress claim. Thus, Plaintiffs IIED claim must be dismissed because her claims in reality are other torts. See Draker v. Schrieber, 271 S.W.3d 318, 322 (Tex. App.San Antonio 2008, no pet.) (the gravamen of a vice-principals claim for intentional infliction of emotional distress against students who fabricated an offensive website was defamation, and thus the separate claim for intentional infliction of emotional distress would not lie even though the defamation claim was dismissed). b. The alleged conduct is not outrageous under Texas law 68. Plaintiffs IIED claim also must be dismissed because Plaintiffs allegations

concerning the activities of the Squirrel Busters group and CSIs retention and use of private investigators do not rise to the level of outrageous conduct. Texas courts apply the criteria of the Restatement (Second) of Torts to claims of IIED. Brewerton v. Dalrymple, 997 S.W.2d at 215 (When this Court recognized a cause of action for intentional infliction of emotional distress, we adopted the parameters of that tort as set forth in the Restatement (Second) of Torts 46(1)). The Restatement and the Texas cases applying it have insisted that the element of outrageousness be confined to the most extreme departures from civilized behavior: The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someones
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feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. Id., comment d. Thus, for example, in a case where a student plaintiff filed an internal complaint for sexual assault by another attendee at a party of a professor, the Fifth Circuit, applying Texas law, held that the professors subsequent conduct was not outrageous: Cantus proffered evidence is that Ethridge embarked on a course of conduct intended to intimidate her, which included the following acts: (1) following her in the hallways; (2) obstructing her passage from a water fountain; (3) showing up in a classroom and positioning himself where Cantu usually sat so that she could not avoid encountering him and (4) repeatedly going in and out of a room where she was taking a make-up exam, which affected her performance. Assuming its veracity, and that the jury fully believed every word of it, this evidence simply could not, as a matter of law, be construed by reasonable jurors as proof of conduct that is beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized community.... Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996). 69. Plaintiff has presented no evidence, let alone clear and specific evidence, that

either the Squirrel Busters group or the investigators invaded Plaintiffs house, wiretapped her phones, used any form of microphone to overhear private conversations of Plaintiff or her husband inside or on the porch of their place of business/residence, bugged her premises, engaged in physical force or coercion, or engaged in illegal activity. CSI has presented

uncontroverted evidence that it undertook no such acts. Rather, CSIs actions were within the broad sweep of First Amendment protections, as discussed infra. But whether protected by the First Amendment explicitly or not, the acts are not uncommon in our disputatious society and can in no sense be deemed outrageous in a civilized community, as a matter of law. 70. The use of private investigators in such circumstances not only is commonplace,

but indeed is a favored tool to insure that baseless claims of wrongdoing are not made in either judicial or administrative forums. See, e.g., Thorpe v. Mutual of Omaha, 984 F.2d 541, 545 (1st
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Strickland v. Washington, 466 U.S. 668, 690691 (1984) (criminal defense attorneys have constitutional obligation to perform adequate investigation); Bakker v. Grutman, 942 F.2d 236, 239242 (4th Cir.1991) (in civil cases, counsel has duty to investigate case); Kraemer v. Grant County, 892 F.2d 686, 689 690 (7th Cir.1990) (hiring private investigator satisfied counsels duty to investigate claim before filing complaint). 2. 71. The First Amendment requires that the IIED claims be dismissed Plaintiffs IIED claims based upon the activities of the Squirrel Busters also must

be dismissed under the First Amendment. There can be no question that the protests, picketing, and production of videos for public distribution fall within the ambit of First Amendment protection. Such speech is none the less protected no matter that it is provocative and

disputatious or even stirs people to anger. Terminiello v. Chicago, 337 U.S. 1, 4 (1949); Gitlow v. New York, 268 U.S. 652, 673 (1925)(Holmes, J., dissenting)(Every idea is an incitement); Gregory v. City of Chicago, 394 U.S. 111 (1969)(civil rights march through residential neighborhoods of Chicago protected despite strong and potentially violent reaction by residents). Indeed, the point of all speech protection ... is to shield just those choices of content that in someones eyes are misguided, or even hurtful. Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995); Snyder v. Phelps, 131 S.Ct. at 1219 (quoting Hurley). Speech similarly is protected if its intent is to induce or even coerce persons to avoid dealing with anothers business, Claiborne Hardware, 458 U.S. at 910;

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Thornhill v. Alabama, 310 U.S. 88, 104-05 (1940), or even attacks a church or religion. Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). 72. It also is irrelevant whether the communicative activities of the Squirrel Busters

were undertaken with a motive and purpose to inflict emotional distress on Plaintiff and cause her and her husband to discontinue their activities. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court addressed this issue in no uncertain terms: Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently outrageous. But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64, 73, we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment. . . . Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures. Id. at 53. 73. Any attempt to prohibit or limit such protected activity on the basis of the content

of the speech is highly disfavored, is subject to strict scrutiny, can be justified only by the most compelling of government interests, and only by the means least restrictive of the speech at issue. Perry Educ. Assn. v. Perry Local Educators Assn., 460 U.S. 37, 45 (1983); Frisby v. Schultz, 487 U.S. 474, 482 (1988).

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74.

Where a legislature attempts to regulate in furtherance of an interest unrelated to

the content of the speech itself, such as to permit the free flow of traffic, to limit noise, or to protect public safety, the First Amendment requires a lesser or intermediate scrutiny and permits regulation of the time, place, and manner of expression that is narrowly tailored to serve a significant government interest and that leaves open ample alternative channels of communication. Perry, 460 U.S. at 44-46; Frisby, 487 U.S. at 481. In the absence of legislative action, such as this case, a more speech-protective standard is applied, between strict and intermediate scrutiny, however, when a party, such as Plaintiff here, asks a court to act on its own. In such circumstances a court must burden no more speech than necessary to serve a significant government interest. Madsen v. Womens Health Center, 512 U.S. 753, 765 (1994). The First Amendment requires that courts must give the benefit of any doubt to protecting rather than stifling speech. Federal Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(Roberts, C.J.), quoted in Citizens United, 558 U.S. at 327. 75. These principles were addressed by the Supreme Court of Texas in a

comprehensive opinion in Operation Rescue - National v. Planned Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d 546 (Tex. 1998), which involved continuing demonstrations, over many months, by anti-abortion protesters at abortion clinics and the residences of the clinics doctors. In that case, the Court reviewed a limited injunction that created buffer zones of 13-126 feet around abortion clinics and the homes of clinic doctors, limited attempts by demonstrators to converse with people entering or leaving the clinics, imposed time limitations of 45 minutes per day, and prohibited the use of sound amplification equipment within 100 feet of the residences. Applying the heightened burden no more speech than necessary standard of Madsen, and not the narrowly tailored standard of Frisby v. Schultz, the Court held that a

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heavy burden rested on the plaintiffs to prove the specific need for any restrictions beyond those that were conceded against actual trespassing, blocking the premises, inhibiting access, and directly harassing patients. Id. at 562. The Court held that the trial court could not assume that there was a need for any buffer zone at all unless the plaintiffs could prove the necessity of such limitation. Central to its holding was that no injunction could prohibit the protest demonstrations or impose an undue burden upon them. The Court then struck some of the buffer zone limitations, affirmed or modified others, held that the injunction must permit up to two demonstrators to communicate directly to women approaching the abortion clinics within the clinic buffer zones, and upheld the sound amplification restriction. 76. With respect to the residences of the doctors, the Court did not hold that no

activity could go forward in such areas. Rather, the Texas Court required only that a small buffer zone be created. 77. This case is governed by Operation Rescue. Here, not only was there no statute

governing the issue and providing clear legislative guidance, but the municipality first enacted an ordinance, but then repealed it in light of the very First Amendment arguments presented here. Under Operation Rescue, therefore, it was perfectly proper for the Squirrel Busters group to carry out its activities in the vicinity of the Rathbuns premises, or to attempt to communicate directly with Plaintiff or her husband about the matters of their concern. As Operation Rescue and numerous similar cases arising out of anti-abortion or civil rights protests make clear, the right to do so is not limited only for one or two days, but can extend for several months or even years. 78. Moreover, there are two other key factors present in this case. First, the activity

of the Squirrel Busters group was not undertaken solely to protest Mr. Rathbuns activity to Mr.

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Rathbun and his wife themselves, but rather to create material for a documentary film or video to be shown to others. The Court in Frisby made this specific point: [h]ere . . . the picketing is narrowly directed at the household, not the public. The type of picketers banned by the

Brookfield ordinance generally do not seek to disseminate a message to the general public . . . Frisby, 487 U.S. at 486. Here, the acts of the Squirrel Busters group were ultimately directed to the public, resulting in the production and Internet distribution of documentary videos. Indeed, Mr. Rathbun himself then produced and distributed on the Internet his own videos of the dispute. 79. The second key factor in this case is that the Rathbuns home was also the site

of the very acts that were the target of the protest and the proposed documentary. Not only did Mr. Rathbun carry on his activity of providing independent Scientology services at his residence, he also used those premises as the visual setting to create videos attacking the Church and its leadership, which he posted on the Internet, and to conduct interviews with the media, resulting in photographs and videos of the inside of the premises being circulated in the media with Mr. Rathbuns approval. By doing so, Mr. Rathbun forfeited any claim that he was entitled to residential privacy. Put another way, Mr. Rathbun cannot insulate his public actions from protest or inquiry merely by choosing to live where he works. 80. The First Amendment also prohibits application of the standard of outrageous

conduct to differentiate between protected and unprotected speech or communicative activity. Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Falwell sued for intentional infliction of emotional distress arising from the publication of a parody published in Hustler Magazine, alleging that the parody was so despicable and hurtful to him that a jury could determine that it crossed the line into unprotected conduct by applying the rubric of outrageous conduct. The Court held:

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[W]e doubt that there is any such standard, and we are quite sure that the pejorative description outrageous does not supply one. Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors tastes or views, or perhaps on the basis of their dislike of a particular expression. An outrageousness standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. Id. at 55. 81. This point was highlighted in the more recent case of Snyder v. Phelps, 131 S.Ct.

1207 (2011). There the father of a deceased Iraqi veteran sued a fundamentalist church and its members for claims of IIED and intrusion on privacy for demonstrations and picketing of his sons funeral with signs condemning the United States for toleration of homosexuality and stating that God kills American soldiers as punishment. Emphasizing that the demonstrations and picketing, as in the instant case, were on public land next to a public street and thus were entitled to special protection under the First Amendment, the Court once again rejected the use of the concept of outrageous conduct as a basis to impose liability even for hateful and obnoxious speech, stating in public debate [we] must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. 131 S. Ct. at 1217, 1219, quoting Boos v. Barry, 458 U.S. 312, 322 (1988). Turning to the breach of privacy claim, the Court likewise held the claim was barred by the First Amendment: [t]he Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Id. at 1220. 82. Since Plaintiffs IIED cause of action would require this Court to determine

whether the speech and expressive activity of CSI and the Squirrel Busters was outrageous, the claim is barred by the First Amendment.
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C. Plaintiffs Cause of Action for Invasion of Privacy by Public Disclosure of Private Facts Must Be Dismissed 83. Plaintiff asserts a cause of action for invasion of privacy for publication of private

facts. To make out such a claim, a plaintiff must show that the defendant gave publicity to private facts about her life; that such publication was highly offensive; and that the matter publicized was not of public interest. Star Telegram, Inc. v. Doe, 915 S.W. 2d 471, 473-74 (Tex. 1995). 84. Despite her assertion of such a cause of action, neither Plaintiffs SAP, her FAR,

her declarations, nor her Evidence Appendixes set forth a single factual allegation regarding the private facts Defendants allegedly disclosed to the public. 85. At the hearing on this motion on February 4, 2014, Plaintiff for the first time

alleged in oral argument that the private facts that Defendants allegedly disclosed concerned her husband Marty Rathbun. Transcript at pp. 16-17, 34. Plaintiff alleges that in 2009 and 2010 representatives or agents of CSI stated to Plaintiffs parents, ex-husband, and one or two coworkers that Mr. Rathbun had previously engaged in violent acts, that his brother suffered from mental illness and had been institutionalized, and that his mother had committed suicide by jumping off the Golden Gate Bridge. See FAD of Monique Rathbun, Timeline Appendix, 1(d)(vi), p. 5 and 1(e)(iii, iv), pp. 6-7. 86. These facts are insufficient to support a cause of action on behalf of Plaintiff for

several reasons. First, the facts that CSI allegedly disclosed are facts relating to Plaintiffs husband, not to her. Plaintiff has presented no case, and the court is unaware of any, holding that a plaintiff can sue for disclosure of private facts about his or her spouse. Except for the appropriation of ones name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded. Restatement 2d of Torts 6562I. The right
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protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individuals family, unless their own privacy is invaded. Id., comment a. Both state and federal courts in Texas follow the majority Restatement rule. Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489, 491 (Tex. Civ. App. Texarkana 1979, writ refd n.r.e.) ([T]he overwhelming weight of authority in other states is that an action for invasion of privacy cannot be maintained by a relative of the person concerned . . . [W]e will follow the majority rule and restrict the right of recovery in cases of this type to the person about whom facts have been wrongfully published); Justice v. Belo Broadcasting Corp., 472 F.Supp. 145 (N.D.Tex. 1979)(noting that if actions for violating the right of privacy were allowed by other than the person directly involved, fixing their boundaries and parameters would become an almost impossible task. . . . The consensus seems to be that limiting the action to the person directly involved is a sounder judicial policy. We agree). 87. Second, Plaintiffs cause of action for publication of private facts about her

husband also is defective because Plaintiff has submitted no evidence, let alone clear and specific evidence, that CSI or its alleged agents made the facts about Mr. Rathbun public, within the meaning of the tort. It is hornbook law that the tort requires public, not private, dissemination of the private facts, in the sense of communication to the public in general or to a large number of persons, as distinguished from one individual or a few. Prosser, Torts (4th Ed.), 117; see also Restatement 2d of Torts 652D, comment a (Thus it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons. Rather, the tort requires that the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially

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certain to become one of public knowledge). Since Plaintiff at most has submitted declarations that the facts concerning her husband were communicated only to very small group of persons, her cause of action cannot survive for that reason as well. 88. Third, Plaintiffs cause of action for publication of private facts must be dismissed

because the facts that CSIs alleged agents purportedly disclosed to Plaintiffs ex-husband and parents were matters of public record, as a direct result of Mr. Rathbuns own actions. [Under the First Amendment there can be no recovery for disclosure of and publicity to facts that are a matter of public record. Restatement 2d of Torts, 652D, citing Cox Broadcasting Co. v. Cohn, 420 U.S. 469(1975). Mr. Rathbun himself disclosed in press interviews in 2009 that he had engaged in a pattern of violence in the past. Declaration of Mark Rathbun, Exhibit 2. Mr. Rathbun also made public the fact that his brother and mother suffered from mental illness and had been institutionalized, as well as the fact of his mothers suicide in a book he self-published. Declaration of Mark Rathbun, Exhibit 6. Thus, the facts that Plaintiff alleges CSI made public were made public by her husband and related to him. Not only were the facts therefore not private, but Mr. Rathbuns acts in publicizing them constitutes an admission by him that such publication could not possibly be considered highly offensive, a further essential element of the tort. 89. Fourth, even if the court were to assume that the disclosures about Mr. Rathbun

were public in nature, such disclosures were of legitimate concern to the public and were protected by the First Amendment. Mr. Rathbun is a public figure. He had made allegations of violent acts by others; certainly facts showing his own admitted past history of violence and the potential presence of severe mental illness in his family history was relevant to the publics

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ability to evaluate his public claims.

A voluntary public figure such as Mr. Rathbun cannot

define the legitimate terms of public debate about his activities or credibility. 90. Finally, Plaintiffs attempt to plead a cause of action for publication of private

facts based upon these alleged disclosures is clearly barred by the statute of limitations. The statute of limitations applicable to the tort is two years. Tex. Civ. Prac. & Rem. Code 16.003(a). Plaintiffs own timeline places the alleged disclosures as occurring in 2009 and 2010. Plaintiff filed her lawsuit in August 2013, well beyond the expiration of the statute of limitations. D. The Intrusion Upon Privacy Claim Is Barred by the Common Law and the First Amendment 91. Plaintiffs second privacy claim is for intrusion on seclusion. The elements of a

cause of action for invasion of privacy by intrusion upon seclusion are (1) an intentional intrusion upon a persons solitude, seclusion, or private affairs or concerns, (2) that would be highly offensive to a reasonable person, and (3) as a result of which the person suffered an injury. See Valenzuela v. Aquino,853 S.W.2d 512 (Tex. 1993); K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. App.Houston [1st Dist.] 1984, writ refused n.r.e. sub nom.); Gill v. Snow, 644 S.W.2d 222 (Tex. App.Fort Worth 1982, no writ); Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497, 500 (Tex. App.Austin 1989, writ denied); see also Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 253 (Tex. App.Houston [1st Dist.] 1993, writ denied). 92. Intrusion upon seclusion is generally associated with either a physical invasion

of a persons property or eavesdropping on anothers conversation with the aid of wiretaps, microphones, or spying. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex.App.Tyler 2006, no pet.); see Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W. 3d 336, 338 (Tex. 2010). For example, in Cornhill Ins. PLC v. Valsamis, 106 F.3d 80, 85 (5th Cir.1997), cert. denied, 522 U.S. 818 (1997), the Fifth Circuit Court of Appeals addressed a claim for
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invasion of privacy where offensive comments and inappropriate advances were made toward the plaintiff. The court held that the plaintiff could not recover under an invasion of privacy cause of action based on the intentional intrusion upon her solitude or private affairs because she did not allege a physical invasion of a persons property or eavesdropping on anothers conversation with the aid of wiretaps, microphones, or spying. Id.; see also Clayton v. Wisener, 190 S.W.3d 685, 696-97 (Tex. App.Tyler 2005, pet. denied). In Vaughn, the court held that the defendants act of watching the plaintiff with binoculars from across the street while the plaintiff was outside her house or standing in front of her kitchen window was not an intrusion into privacy because [o]ne cannot expect to be entitled to seclusion when standing in front of a large window or while outside. Id. at 320. Similarly, filming of a persons residence and distributing the film or video did not constitute an intrusion on privacy, because such a broadcast provided the public with nothing more than could have been seen from a public street. Wehling v. Columbia Broadcasting System, 721 F.2d 506, 509 (5th Cir. 1983); see also Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374, 387 (Tex. App.Dallas 2009, no pet.) (holding that property owner had lawful right to install surveillance cameras looking out from his property to adjoining property, and that such surveillance did not constitute intrusion on privacy of adjoining owner). 93. Here, Plaintiff is not entitled to assert a claim of intrusion into her residence, qua

residence, precisely because the building in question was far more than the Rathbuns residence. It also was the place from which Marty Rathbun filmed videos, showing the premises and attacking Scientology and its leadership, which he then distributed over the Internet. Likewise, Rathbun invited representatives of the media into the premises where they interviewed and filmed him. Having invited the public into his residence, Mr. Rathbun, and his wife, cannot

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insulate his public activities from inquiry merely by choosing to live where he works. By doing so, Mr. Rathbun forfeited any claim that he or his wife was entitled to residential privacy. Rather, any claim of intrusion must be judged from the point of view that the Rathbuns premises was entitled to no more privacy than that accorded to any non-residential premises. 94. The declarations of the Squirrel Busters and the private investigators make clear

that no improper intrusion of the Rathbuns business/residence occurred. Plaintiff has presented no evidence, let alone clear and specific evidence, that such an intrusion took place. While the Squirrel Busters and private investigators may have filmed or viewed the building from a distance, and while the Squirrel Busters demonstrated on the nearby street, there is no evidence before the court that any person invaded the building, engaged in electronic surveillance, used any form of microphone to overhear private conversations of Plaintiff or her husband at their place of business/residence, or observed or recorded anything a person standing in the street could not also view. Plaintiff herself has conceded that she has no knowledge of any such intrusion (Cartwright Aff., Exh. 7 at 179:13-25, 182:6-8), thereby acknowledging that she cannot meet the statutory requirement of showing clear and specific evidence of tortious acts by CSI. 95. Plaintiff has placed special emphasis on her allegations that CSI retained

defendant Steven Sloat to engage in surveillance of the new place of business/residence to which Plaintiff and her husband recently moved. But as Plaintiff herself acknowledges, any such surveillance has been from a distance. Monique Rathbun Aff., 15. According to Mr. Sloats uncontroverted declaration, he rented an adjacent property on which he installed three low resolution cameras in the hopes that a camera could determine when a car arrived at the parking area of Mr. Rathbuns property adjacent to my property. These were cameras typically used in

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deer runs, which had no zoom capability. not surveil the building itself:

The cameras were not intended to, could not, and did

I placed one camera pointed towards the driveway area next to Rathbuns premises, one towards the road facing away from his premises to record who was coming onto the property, and one on a deer stand on the property, facing away from his property. The cameras never pointed directly at Rathbuns office/house. . . . The camera facing Rathbuns premises was 60-70 yards from the area where a car might be parked. The distance was much too great for the device to detect motion on his property, and therefore took no pictures caused by motion on his property. The camera pointed through trees and saplings towards the driveway and shed area. The camera pointing towards his property was not useful for the intended purpose, as the resolution was poor, and the camera had no zoom or focal adjustment capabilities. Sloat Aff. 7-8. In mid-July, the cameras were removed and the project was abandoned. Id., 10. Sloat never saw the plaintiff, . . . never talked to her, never had any communication with her and never photographed her. The subject of the investigation was not Monique Rathbun. Rather, the subject was Mark Rathbun and the object was Mark Rathbuns associations and business dealings. Id., 11. As a matter of law, none of the actions undertaken by Sloat were actionable as intrusion on privacy. Webb, 298 S.W.3d at 387 (property owner had lawful right to install surveillance cameras looking out from his property to adjoining property; such surveillance did not constitute intrusion on privacy of adjoining owner). The actions by CSIs investigators all fell within the guidelines established in Chapter 1702 of the Texas Occupations Code. 96. Given that the actions of the Squirrel Busters and the private investigators were

well within the proper boundaries, and given the First Amendment protection afforded their activities, Plaintiffs claim of intrusion on privacy must be dismissed as a matter of law. E. Plaintiffs Claim for Tortious Interference With Contract is Defective on its Face 97. A plaintiff asserting a tortious interference with contract claim must prove: (1) a

contract exists; (2) the defendant willfully and intentionally interfered with that contract; (3) the defendants interference proximately caused the plaintiffs damage; and (4) the plaintiff
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suffered actual damage or loss. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002); Prudential Insurance Company of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex.2000). To prove a claim for tortious interference with an employment contract, a plaintiff must prove: (1) the existence of a business relationship subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a proximate cause of the plaintiffs injury; and (4) actual damage or loss occurred. KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 790 (Tex. App.Houston [1st Dist.] 1998, pet. denied). The interfering party must have had either actual knowledge of the existence of the contract and of the plaintiffs interest or knowledge of such facts and circumstances as would lead a reasonable person to believe in their existence. See Hill v. Heritage Res., Inc., 964 S.W.2d 89, 123 (Tex. App.El Paso 1997, pet. denied). 98. While Plaintiff asserts a claim for tortious interference with contract (SAP 38), She alleges that she has a valid contract of

her petition alleges no facts to support it.

employment, but does not allege that the contract has been rendered ineffective by any action of Defendants. She does not allege that she is not still employed pursuant to that contract. She has not alleged that her compensation or benefits were reduced under the contract. She does not allege that she was not promoted or considered for promotion. She does not allege how any Defendant attempted to or succeeded in interfering with her employment. While she alleges that she has incurred actual damage or loss, she does not hint at what that damage was. 2 In short,

While Plaintiff alleges no relevant or material facts that would support her cause of action for intentional interference with contract, she does allege that the cause of action is based upon the defendants misconduct, as described above (SAP 44), i.e., based upon the very allegations that purport to support her other causes of action. It thus is clear that Plaintiffs cause of action for interference with contract likewise is based on, relates to, or is 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)), and is subject to a motion to dismiss under the Statute.
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Plaintiffs SAP does not allege even a scintilla of evidence to support her cause of action, let alone the clear and specific evidence mandated by the anti-SLAPP statute. 99. In response to CSIs instant motion, Plaintiff asserted for the first time in her First

Amended Declaration that her tortious interference cause of action rests upon her own voluntary decision to leave her job and not on any breach of her employment contract by her employer that was induced by some act of CSI. That position is legally untenable. An essential element of the tort of tortious interference with contract is that the defendant committed an intentional act that was the proximate cause of the breach of contract. Juliette Fowler Homes, Inc. v. Welch Associates, Inc., 793 S.W.2d 660, 664 (Tex. 1990); Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991). As the Court of Appeals stated in Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 803 (Tex. App.Houston [1st Dist.] 1987, writ refd n.r.e.), cert. dismd, 485 U.S. 994 (1988): A necessary element of the plaintiffs cause of action is a showing that the defendant took an active part in persuading a party to a contract to breach it. . . . It is necessary that there be some act of interference or of persuading a party to breach, for example by offering better terms or other incentives, for tort liability to arise. (emphasis added) (internal citations omitted). In Davis v. HydPro, Inc, a later panel of the Court of Appeals made clear that the requirement set forth in Texaco that the defendant play an active part in persuading a party to a contract to breach a contract is a part of the proximate cause requirement stated in Juliette Fowler and Victoria Bank. 839 S.W.2d 137, 139 (Tex. App.Eastland 1992, writ denied). 100. Here there is no evidence, let alone clear and specific evidence, that CSI played

any part whatsoever in persuading Plaintiffs employer to breach her employment contract. Indeed, there is no evidence that Plaintiffs employer ever breached the contract or terminated

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her employment. Plaintiff concedes no such event occurred. 3 Her tortious interference with contract cause of action is without merit, and must be dismissed under the anti-SLAPP Statute. 101. Plaintiffs tortious interference claim also is barred by the statute of limitations.

Plaintiff asserts that she provided thirty-day notice of her intention to resign from her job due to the alleged acts of defendant on April 1, 2011. Her cause of action for intentional interference with contract would have accrued no later than that date. The Texas statute of limitations for the tort of intentional interference with contract is two years. See First Nat'l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986); see also Khan v. GBAK Props., Inc., 371 S.W.3d 347, 356 (Tex. App.Houston [1st Dist.] 2012, no pet.). Yet she did not file her original petition until August 16, 2013, well past the expiration of the limitations period. Respectfully submitted, DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 E. Mulberry Avenue San Antonio, Texas 78212 Telephone: (210) 822-6666 Telecopier: (210) 822-1151

By: /s/Les J. Strieber III RICARDO G. CEDILLO State Bar No. 04043600 LES J. STRIEBER III State Bar No. 19398000 ISAAC J. HURON State Bar No. 24032447 and

To the contrary, her husbands blog contemporaneous with the event, announced Moseys last day of outside work, stating that she was leaving her health care job in pursuit of her dreams to join Mr. Rathbun in delivering his version of counseling to his clients. Several months later she posted on Facebook, "I am most definitely the happiest woman in the universe!!!!" Cartwright Second Dec. 4.
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George H. Spencer, Jr. State Bar No. 18921001 CLEMENS & SPENCER 112 E. Pecan Street, Suite 1300 San Antonio, Texas 78205-1531 T: (210) 227-7121 Attorneys for Defendant Church of Scientology International

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been forwarded by hand delivery, electronic transmission, and/or facsimile, and/or certified mail, return receipt requested and/or regular mail to the following counsel of record on this the 19th day of February, 2014: Ray B. Jeffrey A. Dannette Mitchell JEFFREY & MITCHELL, P. C. 2631 Bulverde Road, Suite 105 Bulverde, TX 78163 Elliott S. Cappuccio PULMAN, CAPPUCCIO PULLEN & BENSON, LLP 2161 N.W. Military Hwy., #400 San Antonio, TX 78213 J. Iris Gibson HAYNES & BOONE LLP 600 Congress Ave., Suite 1300 Austin, TX 78701 O. Paul Dunagan SARLES & OUIMET 370 Founders Square 900 Jackson Street Dallas, TX 75202 Stephanie S. Bascon LAW OFFICE OF STEPHANIE S. BASCON, PLLC 297 W. San Antonio Street New Braunfels, TX 78130 Marc F. Wiegand THE WIEGAND LAW FIRM, P.C. 434 N. Loop 1604 West, Suite 2201 San Antonio, TX 78232

Lamont A. Jefferson HAYNES & BOONE LLP 112 E. Pecan Street, Suite 1200 San Antonio, TX 78205-1540

Jonathan H. Hull REAGAN BURRUS 401 Main Plaza, Suite 200 New Braunfels, TX 78130 Bert H. Deixler KENDALL BRILL KLIEGER 10100 Santa Monica Blvd., Suite 1725 Los Angeles, CA 90067

Mr. Wallace B. Jefferson Rachel Ekery ALEXANDER DUBOSE JEFFERSON & TOWNSEND, LLP 515 Congress Avenue, Suite 2350 Austin, TX 78701

/s/Les J. Strieber III Ricardo G. Cedillo Les J. Strieber III Isaac J. Huron

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