Monique Rathbun v. Scientology: Brief of Appelle e

NO.
03-14-00199-CV

IN THE
COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
______________
CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
APPELLANTS

VERSUS

MONIQUE RATHBUN
APPELLEE
____________________________

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

BRIEF OF APPELLEE

PULMAN, CAPPUCCIO,
PULLEN, BENSON & J ONES, LLP
Elliott S. Cappuccio
State Bar No. 24008419
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
lhyman@pulmanlaw.com
Etan Z. Tepperman
etepperman@pulmanlaw.com
Suite 400
2161 NW Military Highway
San Antonio, Texas 78213
(210) 222-9494 Telephone
(210) 892-1610 Facsimile
J EFFREY & MITCHELL, P. C.
Ray B. J effrey
State Bar Number 10613700
rjeffrey@sjmlawyers.com
A. Dannette Mitchell
State Bar Number 24039061
dmitchell@sjmlawyers.com
Suite 105
2631 Bulverde Road
Bulverde, Texas 78163
(830) 438-8935 Telephone
(830) 438-4958 Facsimile

THE WIEGAND LAW FIRM, P. C.
Marc F. Wiegand
marc@wiegandlawfirm.com
Suite 2201
434 North Loop 1604 West,
(210) 998-3289 Telephone
(210) 998-3179 Facsimile

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS
Page

TABLE OF CONTENTS ................................................................................................ i

INDEX OF AUTHORITIES ............................................................................................ ii

INTRODUCTION ......................................................................................................... 1

STATEMENT OF FACTS ............................................................................................... 9

ARGUMENT ............................................................................................................. 21

I. THE TRIAL COURT DID NOT ERR IN FINDING THAT MRS. RATHBUNS
COMPLAINTS WERE EXEMPT FROM THE TEXAS CITIZENS
PARTICIPATION ACT ........................................................................................ 22

A. The Trial Court Did Not Err in Finding That This Case Falls Within the
Commercial Exemption.................................................................................. 22

B. The Trial Court Did Not Err in Finding That This Case Falls Within the
Bodily Injury Exemption ................................................................................ 34

II. THE TRIAL COURT CORRECTLY RELIED UPON LIMITATIONS TO THE FIRST
AMENDMENT ................................................................................................... 36

III. DENIAL OF APPELLANTS TEXAS CITIZENS PARTICIPATION ACT MOTIONS
WAS PROPER BECAUSE MRS. RATHBUNS CLAIMS DO NOT ARISE FROM
APPELLANTS EXERCISE OF FIRST AMENDMENT RIGHTS ................................ 38

A. Mrs. Rathbuns Claims Are Not Related to Appellants Free Speech
Rights .............................................................................................................. 39

B. Mrs. Rathbuns Claims Are Not Related to Appellants Exercise of the
Right of Association ....................................................................................... 42

C. Mrs. Rathbuns Claims Are Not Related to Appellants Right to Petition .... 43

i
TABLE OF CONTENTS (CONTINUED)
Page

IV. THE TRIAL COURTS ORDER DENYING APPELLANTS TEXAS CITIZENS
PARTICIPATION ACT MOTIONS WAS APPROPRIATE BECAUSE
MRS. RATHBUN PRESENTED CLEAR AND CONVINCING EVIDENCE OF THE
ELEMENTS OF HER CLAIMS ............................................................................. 50

A. Mrs. Rathbun Presented Clear and Specific Evidence of Intentional
Infliction of Emotional Distress ..................................................................... 51

B. Mrs. Rathbun Presented Clear and Convincing Evidence of Invasion of
Privacy by Intrusion on Seclusion.................................................................. 53

C. Mrs. Rathbun Presented Clear and Specific Evidence of Invasion of
Privacy by Public Disclosure of Private Facts ............................................... 54
D. Mrs. Rathbun Presented Clear and Convincing Evidence of Tortious
Interference ..................................................................................................... 55
V. THE TRIAL COURTS AWARD OF ATTORNEYS FEES WAS J USTIFIED .............. 56
CONCLUSION AND PRAYER ..................................................................................... 57
CERTIFICATE OF COMPLIANCE ................................................................................ 59
CERTIFICATE OF SERVICE ........................................................................................ 60
APPENDIX FOLLOWING PAGE .................................................................................. 61
TAB 1: CHAPTER 27 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE
THE TEXAS CITIZENS PARTICIPATION ACT

ii
INDEX OF AUTHORITIES
Cases Page

BE & K Constr. Co. v. Natl Labor Relations Bd.,
536 U.S. 516 (2002) .................................................................................... 44, 45

Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc.,
402 S.W.3d 299 (Tex. App.Dallas 2013, pet. denied) .................................. 27

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc.,
No. 01-12-00990-CV, 2013 Tex. App. LEXIS 8756
(Tex. App.Houston [1st Dist.] J uly 16, 2013, pet. denied) ........................... 27

Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002)............................................................................... 56

Cardtoons, L.C. v. Major League Baseball Players Assn,
208 F.3d 885 (10th Cir. 2000) (en banc) .......................................................... 47

Church of Scientology of California v. Commissioner,
83 T.C. 381 (1984), affd 823 F.2d 1310 (9th Cir. 1987) ................................. 30

Church of Scientology of California v. Wollersheim,
49 Cal. Rptr. 2d 620 (Cal. App. 1996)............................................................ 3, 4

Church of Spiritual Technology v. United States,
26 Cl. Ct. 713, 726 (1992), affd 991 F.2d 812 (Fed. Cir. 1993) .............. 10, 24,
31, 32
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) ............................................................................ 35

Conley v. Driver,
175 S.W.3d 882 (Tex. App.Texarkana 2005, pet. denied) ........................... 53

Connick v. Meyers,
461 U.S. 138 (1983) .......................................................................................... 41

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749 (1985) .......................................................................................... 40
iii
INDEX OF AUTHORITIES (CONTINUED)
Cases (Continued) Page

Frisby v. Schultz,
487 U.S. 474 (1988) .................................................................................... 37, 43

Genarie v. PRD Mgmt.,
Civ. No. 04-2082 (J BS), 2006 U.S. Dist. LEXIS 9705
(D.N.J . Feb. 17, 2006) ...................................................................................... 32

Haygood v. Chandler,
(Tex. App.Tyler Oct. 31, 2003, pet. denied) (mem. op.) .............................. 51

Hernandez v. Commr,
490 U.S. 680 (1989) .................................................................................... 24, 30

Herrera v. Stahl,
(Tex. App.San Antonio J uly 16, 2014, no pet. h.) ........................................ 45

Hill v. Kimball,
13 S.W. 59 (Tex. 1890) ..................................................................................... 35

Hoffman-La Roche, Inc. v. Zeltwanger,
144 S.W.3d 438 (Tex. 2004) ............................................................................ 51

Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) ............................................................................................ 40

In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) ............................................................................ 50

In re Lipsky,
411 S.W.3d 530 (Tex. App.Fort Worth 2013,
orig. proceeding [mand. pending]) ................................................................... 50

iv

In re Miscavige,
2014 Tex. App. LEXIS 7717 (Tex. App.Austin J uly 17, 2014,
no pet. h.) ............................................................................................................ 5

Jaster v. Comet II Const., Inc.,
No. 12-0809, 2014 Tex. LEXIS 567 (Tex. J uly 3, 2014) ................................. 34

Kinney v. BCG Attorney Search, Inc.,
(Tex. App.Austin Apr. 11, 2014, pet. filed) (mem. op.) ......................... 26, 27

Kitchings v. Florida United Methodist Childrens Home,
393 F. Supp. 2d 1282 (M.D. Fla. 2005) ............................................................ 32

K-Mart Corp. v. Trotti,
677 S.W.2d 632 (Tex. App.Houston [1st Dist.] 1984),
writ refd n.r.e., 686 S.W.2d 593 (Tex. 1985) ............................................ 53, 55

Kramer v. Downey,
680 S.W.2d 524 (Tex. App.Dallas 1984, writ refd n.r.e.) ........................... 54

Kroger Tex. L.P. v. Suberu,
216 S.W.3d 788 (Tex. 2006) ............................................................................ 51

Locke v. St. Augustines Episcopal Church,
690 F. Supp. 2d 77 (E.D.N.Y. 2010) ................................................................ 32

Madsen v. Womens Health Ctr., Inc.,
512 U.S. 753 (1994) .......................................................................................... 43

Malloy v. Assn of State & Terr. Solid Waste Mgmt. Officials,
955 F. Supp. 2d 50 (D.D.C. 2013) .................................................................... 32

McDonald v. Smith,
472 U.S. 479 (1985) .......................................................................................... 47

v

Murdock v. Pennsylvania,
319 U.S. 105 (1943) .......................................................................................... 31

NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742 (5th Cir. 2014) ............................................................................ 28

New York State NOW v. Terry,
886 F.2d 1339 (2d Cir. 1989) ........................................................................... 42

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.Houston [1st Dist.] 2013, pet. denied) ............... 27

Pro-Choice Network v. Schenk,
67 F.3d 377 (2d Cir. 1995) (en banc) ............................................................... 42

Religious Tech. Ctr. v. Scott,
No. CV 85-711 J MI (C.D. Cal. J an. 20, 1993) ................................................... 2

Robinson v. Brannon,
313 S.W.3d 860 (Tex. App.Houston [14th Dist.] 2010, no pet.) ................. 53

Sierra Club v. Andrews County,
418 S.W.3d 711, (Tex. App.El Paso 2013, pet. filed) .................................. 52

Sklar v. Commr,
282 F.3d 610 (9th Cir. 2002) ............................................................................ 30

Snyder v. Phelps,
131 S. Ct. 1207 (2011) .................................................................... 36, 37, 40, 41

Star-Telegram, Inc. v. Doe,
915 S.W.2d 471 (Tex.1995).............................................................................. 55

People ex rel. 20th Cent. Ins. Co. v. Bldg. Permit Consultants, Inc.,
86 Cal. App. 4th 280 (2000) ....................................................................... 48, 49

vi

Tony & Susan Alamo Foundation v. Secretary of Labor,
471 U.S. 290 (1985) .................................................................................... 31, 33

Tichinin v. City of Morgan Hill,
177 Cal. App. 4th 1049 (2009) ............................................................. 44, 45, 48

Trinity Universal Ins. Co. v. Cowan,
945 S.W.2d 819 (Tex. 1997) ............................................................................ 35

Valenzuela v. Aquino,
853 S.W.2d 512 (Tex. 1993) ............................................................................ 53

Whisenhunt v. Lippincott,
416 S.W.3d 689 (Tex. App.Texarkana 2013, pet. filed) .............................. 21

Wollersheim v. Church of Scientology of California,
260 Cal. Rptr. 331 (Cal. App. 1996) ................................................................... 1

Texas Statutes

Texas Civil Practice & Remedies Code 27.001, et seq. . ................................... 21

Texas Civil Practice & Remedies Code 27.001. ................................. 39, 43, 44, 49

Texas Civil Practice & Remedies Code 27.002 ........................................ 4, 21, 37

Texas Civil Practice & Remedies Code 27.003 .................................................. 39


Texas Civil Practice & Remedies Code 27.005 ............................................ 38, 39


Texas Civil Practice & Remedies Code 27.010 ................................ 22, 28, 29, 34
vii
Texas Statutes (Continued) Page


Texas Penal Code 107 ................................................................................... 34, 35

Federal Statutes

26 U.S.C. 170(c)(2). ............................................................................................ 29

26 U.S.C. 501(c)(3). ...................................................................................... 29, 31

Other Authorities
Peter J . Reilly, IRS Scientology Thirty Years War Forbes at
http://www.forbes.com, (J uly 14, 2012) ................................................................ 30
Lawrence Wright, Going Clear: Scientology, Hollywood, and
the Prison of Belie (2013) . ...................................................................................... 1
S.A. Kent & R.D. Willey, Sects, Cults, and the Attack on Jurisprudence,
14 Rutgers J ournal of Law & Religion 306, 331 (2013) ......................................... 2
J .P. Kumar, Fair Game: Leveling the Playing Field in
Scientology Litigation, 16 REV. LITIG. 747, 747-748 (Summer 1997) ................ 2, 3
Steven Pressman, Litigation Noir, 12 ...................................................................... 2
Richard Behar, The Thriving Cult of Greed and Power,
Time at 50 (May 6, 1991) .................................................................................... 2, 3
J ames B. Stewart J r., Scientologys War Against Judges,
AMER. LAW., Dec. 1980 at 30, 30-32 ....................................................................... 3
http://en.wikipedia.org/wiki/Vexatious_litigation (last visited August 7, 2014) .... 2
http://web.archive.org/web/20060818060116/http://www.scientology-
asho.org/AuditingAsACareer.htm (last visited August 7, 2014) ........................... 24

viii
INTRODUCTION
Mrs. Rathbun is an ordinary Texas citizen who turned to the courts as a last
resort because of continuous, unrelenting harassment and intrusion by a powerful
organization with seemingly unlimited resources. That organization, the Church of
Scientology, has as its official doctrine the mandate to destroy its enemies, and to
use litigation to harass and discourage rather than to win. Anti-SLAPP statutes,
such as the Texas Citizens Participation Act, exist to level the playing field for
citizens like Mrs. Rathbun against powerful litigation bullies. This Courts duty to
liberally construe the Texas Citizens Participation Act to fully effectuate its
purpose and intent means the Court cannot ignore Scientologys unwavering policy
of destroying its perceived enemies through litigation and other Fair Game
tactics.
1
It is undisputed in this case that Scientologys Office of Special Affairs
(OSA) ran the four-year operation against the Rathbuns in Texas, and is running
this litigation as well.
2

For decades, the multi-billion dollar Church of Scientology has devoted itself to
scorched-earth litigation. In a 2013 article in the Rutgers Journal of Law &
1
See Wollersheim v. Church of Scientology of California, 260 Cal. Rptr. 331, 353 (Cal. App.
1996).
2
OSAs predecessor the Guardians Office (GO) ran the largest domestic espionage
operation in United States history. Lawrence Wright, Going Clear: Scientology, Hollywood,
and the Prison of Belief, p.123 (2013). Eleven key Scientologists involved in this espionage
were caught by the FBI, convicted, and sentenced to federal prison. Id.

1

Religion, the authors observed: Of all the contemporary sectarian groups
operating in the world today, Scientologys litigation aggression is unrivalled.
3

In the University of Texas The Review of Litigation, another author examined
Scientologys extremely aggressive litigation tactics and proposed solutions for
its abusive behavior.
4
The Church of Scientology is listed as a notable vexatious
litigant in Wikipedias discussion of Vexatious Litigation.
5
American judges,
legal scholars, historians, and journalists have documented its calculated abuse of
our legal system.
6

3
See S.A. Kent & R.D. Willey, Sects, Cults, and the Attack on Jurisprudence, 14 Rutgers
J ournal of Law & Religion 306, 331 (2013).
4
See J .P. Kumar, Fair Game: Leveling the Playing Field in Scientology Litigation,
16 REV. LITIG. 747, 747-748 (Summer 1997) (stating that the Church has earned a
well-deserved reputation for extremely aggressive litigation tactics, commonly referred to as
hardball); see also Steven Pressman, Litigation Noir, 12 (stating that [o]ver the years,
Scientology has gained a reputation for relentless litigation, a characteristic criticized by
judges).
5
See http://en.wikipedia.org/wiki/Vexatious_litigation (last visited August 7, 2014) (listing the
Church of Scientology as one of the most notable vexatious litigants in the U.S.).
6
See, e.g., Religious Tech. Ctr. v. Scott, No. CV 85-711 J MI (C.D. Cal. J an. 20, 1993)
(describing the Churchs litigation tactics as extraordinary, malicious, wanton and oppressive
and designed to destroy its opponents rather than resolve an actual dispute); J .P. Kumar at 750
(noting that the Churchs principal goals in litigation are to delay the final resolution of the
matter for as long as possible, thereby depleting the resources and stamina of an opponent);
Richard Behar, The Thriving Cult of Greed and Power, Time at 50 (May 6, 1991), available at
http://www.cs.cmu.edu/~dst/Fishman/time-behar.html (stating that the Churchs most fearsome
advocates are its lawyers and quoting L. Ron Hubbard as warning his followers to beware of
attorneys who tell you not to sue the purpose of the suit is to harass and discourage rather than
to win).
2

Scientology has a long and ignominious history of judicial and extra-judicial
warfare against litigants, witnesses, and even judges.
7
It is not surprising that CSI
falsely accuses the trial court of a disturbing anti-Scientology hostility.
CSI Brief at 19. Such accusations by Scientology against the judiciary are
common Scientology tactics. In its notorious Wollersheim litigation, Scientology
unsuccessfully sought to disqualify the entire United States District Court for the
Central District of California, and it unsuccessfully brought a federal suit against
not just the two presiding judges whose rulings displeased it, but against the entire
Los Angeles Superior Court.
8
In Wollersheim, Scientology was held liable for
itself bringing an unlawful SLAPP suit to quiet a critic, and the appellate courts
analysis resonates today:
[A]n examination of the history of the underlying litigation reveals
that the instant action is consistent with a pattern of conduct by the
Church to employ every means, regardless of merit, to frustrate or
undermine Wollersheims petition activity. When a party to a lawsuit
engages in a course of oppressive litigation conduct designed to
discourage the opponents right to utilize the courts to seek legal
7
See Kumar at 755 (explaining that one of the most controversial features of Scientology
litigation is the Churchs vehement attacks on the credibility and character of opponents,
lawyers, and even judges that include formal allegations of bias or misconduct or courtroom
accusations of opponents and accusations of criminal activity); Behar at 57 (stating in a sidebar
that the Church unleashed ten attorneys and six private detectives in an effort to
threaten, harass and discredit Behar while he wrote the Time article); J ames B. Stewart J r.,
Scientologys War Against Judges, AMER. LAW., Dec. 1980 at 30, 30-32 (discussing how the
Church attacked several D.C. Circuit judges, accusing them of bias and forcing their recusal, in
the 1970s).
8
Church of Scientology of California v. Wollersheim, 49 Cal. Rptr. 2d 620, 636-37 (Cal. App.
1996).
3

redress, the trial court may properly apply [the California Anti-SLAPP
Statute]. . . .
The legislative rationale in enacting the statute is consistent with such
an analysis because acts which are designed to discourage the
bringing of a lawsuit are no more oppressive than acts which seek to
prolong the litigation to a point where it is economically impracticable
to maintain and pursue it to a final conclusion.
When one party to a lawsuit continuously and unsuccessfully uses the
litigation process to bludgeon the opponent into submission, those
actions must be closely scrutinized for constitutional implications.
9

In seeking to avoid having Mrs. Rathbuns claims decided on the merits,
Scientology repeatedly brought to court as many as 25 lawyers from around the
country to seek disqualification of Plaintiffs counsel, to urge jurisdictional
challenges, to resist discovery, and now to claim the protection of the
Texas Citizens Participation Act. Appellants then fought against the discovery
authorized by the Act and failed to comply with Mrs. Rathbuns discovery requests
even after the trial court ordered them to do so. The trial court properly rejected
Appellants position. The Act is not designed as a gotcha tool to be used
whenever a defendant can characterize its misconduct as constitutionally protected.
It has a serious purpose to encourage and safeguard the constitutional rights of
persons . . . to the maximum extent permitted by law and at the same time, protect
the rights of a person to file meritorious lawsuits for demonstrable injury.
Tex. Civ. Prac. & Rem. Code 27.002.
9
Id. at 632.
4

Appellants concede that Mrs. Rathbun was never a member of the Church of
Scientology. Nevertheless, she was subjected to Scientologys notorious
Fair Game tactics. She was harassed, intimidated, and humiliated by
Scientology agents in accordance with Scientologys written policy to destroy an
enemy Mr. Rathbun by threatening what he holds most dear and seeks to
protect Mrs. Rathbun. Appellants now, as they did before the trial court, attempt
to redefine Mrs. Rathbuns allegations so as to shoehorn themselves into the
parameters of the Act. They would have this Court disregard its own finding in
favor of pretending that the case only pertains to what they claim is a three-month
period in 2011.
10
They want the Court to focus only on the isolated acts of the
Squirrel Busters a front group Appellant Church of Scientology International
(CSI) funded to harass the Rathbuns in order to manufacture a controversy
they could then use as the basis to claim they were a documentary company
engaged in news gathering. That claim is made even though one of their own paid
operatives has testified that when he was hired as a videographer for the
Squirrel Busters campaign, he was told that the purpose of the group was
to make the Rathbuns life a living hell, and to turn their neighbors against
them so that they would be forced to move. 40CR4678. Highlighting the
10
In re Miscavige, 2014 Tex. App. LEXIS 7717 at *1 (Tex. App.Austin J uly 17, 2014, no pet.
h.) ([T]his case concerns an alleged three-year harassment campaign against
Monique Rathbun and her husband Mark by certain members of the church of Scientology.).
5

specious nature of Appellants refrain that Mrs. Rathbuns suit seeks to suppress
the alleged assembly, speech, and petition rights of the Squirrel Busters,
Mrs. Rathbuns live petition expressly explains that the Squirrel Busters particular
brand of harassment had ended nearly two years before this suit was filed. But the
harassment had not ended. The campaign to silence and destroy the Rathbuns,
which had begun two years before the Squirrel Busters, continued on in other
forms for another two years. 1CR45-64.
Scientologys Fair Game campaign succeeded in driving Mrs. Rathbun and
her husband from their home on the Texas Coast. After that campaign resumed at
their new home in Bulverde, Texas, Mrs. Rathbun sought court protection, and was
granted injunctive relief.
Scientologys years-long harassment campaign involved covert and overt
surveillance of Mrs. Rathbun. It involved photographing, videotaping, and
following her. Church-hired private investigators visited Mrs. Rathbuns
parents, friends, former husband, and co-workers. Although acting under ex-post-
facto claims of investigating alleged intellectual property infringement, the
investigators did not ask questions; they made statements designed to turn
Mrs. Rathbuns family, friends, and co-workers against her and her husband.
They told Mrs. Rathbuns parents that her husband was violent, that his mother had
committed suicide, that his brother was institutionalized, and that she was in
6
danger. These same statements were repeated to Mrs. Rathbuns friends, former
husband, and co-workers.
Mrs. Rathbuns lawsuit seeks to redress these actions and prevent future
harassment. It is not a SLAPP suit. It is not designed to bully a Texas citizen into
silence. It is not designed to deplete Scientologys resources, nor could it, as those
resources are vast. It is not about the exercise of First Amendment rights; it is
about the right to be left alone. Had Appellants engaged in peaceful picketing or
protest, or had they simply made their documentary and gone away,
Mrs. Rathbun would not have filed this lawsuit. Had Appellants conducted a
legitimate investigation to determine whether their intellectual property rights were
being violated, Mrs. Rathbun would not have filed this lawsuit. But the record is
replete with evidence that Appellants ex-post facto re-characterizations of their
harassment campaign are simply a litigation-tactic pretext. As the trial court
recognized, there is ample evidence to indicate that CSI instigated and prompted,
i.e., contrived, the Squirrel Busters documentaries as a possible ruse to cloak its
efforts with constitutional protection. 31CR3774-75.
To allow a self-described widely-recognized, global religion ministering to
millions through thousands of churches, missions, and affiliate groups in more than
150 countries to use the Texas Citizens Participation Act, not, as the statute was
designed, to protect a citizen attempting to participate in the public discourse, but
7
instead to shield the Church from responsibility for stalking and harassment would
be to turn the statute on its head. The trial courts order denying Appellants
Texas Citizens Participation Act motions should be affirmed.

8
STATEMENT OF FACTS
By the motion made the basis of this appeal, Appellant Church of Scientology
International (CSI) attempts to distort the Anti-SLAPP concept.
11
That attempt
is accompanied by its twisting of the underlying facts of this dispute.
12

Appellee Monique Rathbun has never been a member of the Church of
Scientology. 41CR4841. Her only relationship to Scientology is her marriage to
Mark Marty Rathbun, a prominent former Scientologist and high ranking
member within the Scientology organizations hierarchy. Id.; 40CR4688.
Mr. Rathbun worked side by side for over 23 years with Defendant
David Miscavige. 40CR4688, 4698. Miscaviges regular title is Chairman of the
Board, RTC, but Scientology characterizes him as the functional equivalent of
the Pope, the Archbishop of Canterbury, the Dalai Lama, or any other leader of a
worldwide hierarchical religious movement when defending his secular conduct
in courts. 21CR2525; 2SCR84. RTC is also a defendant in the underlying
11
According counsel for CSI and RTC, RTC holds the intellectual property for the church and
licenses the intellectual property while CSI employs the people who enforce the intellectual
property. 4RR105-06.
12
The Introduction to CSIs Brief begins with the usual sweeping statements to bolster its
credibility by claiming to be a large, recognized religion. Whether Scientology is, as it claims, a
widely-recognized, global religion, ministering to millions, or a notorious cult with few
documented members in the United States, is of little importance to this appeal. Should the
Court nevertheless be interested, data is available from the U.S. Census Bureau at
http://www.census.gov under the heading Self-Described Religious Identification of Adult
Population.
9

lawsuit. 10CR1263-81. Mr. Rathbun was RTCs Inspector General, a position
once described by Scientology as the highest ecclesiastical position within
RTC.
13
40CR4688.
As it has done with other high-level Scientology officials who fled Miscaviges
physical and mental abuses, CSI attempts to rewrite Mr. Rathbuns history with the
Church. Mr. Rathbun was not removed from his position for
serious misconduct, as CSI alleges. Instead, he refused a direct order from
Miscavige to punch a co-worker who had displeased Miscavige. 40CR4688.
For refusing this order, Mr. Rathbun was beaten by Miscavige himself. Id. In the
face of escalating violence, Mr. Rathbun fled on a motorcycle from Scientologys
secretive, guarded compound in the California desert. Id. He fled to Texas, far
from Scientologys California and Florida headquarters. Id. 4689. There, he lived
for a time in anonymity and relative seclusion during which time he kept quiet
about his experiences within Scientology and the abusive environment created
Miscavige. 41CR4841.
Mr. Rathbun never mounted an aggressive and defamatory attack with a
manifest intent to destroy the Church as alleged in CSIs Brief. However, during
his five years of silence in Texas, Mr. Rathbun was contacted by other former
Scientologists and learned that Miscaviges violent abuses were escalating.
13
Church of Spiritual Technology, 26 Cl. Ct. at 729 n. 33.
10

40CR4690. When Mr. Rathbun was finally tracked down by the news media, his
conscience would no longer allow him to remain silent. Id. 40CR4690-91.
In 2009, Mr. Rathbun and several other former high-level Scientologists blew the
whistle on Miscaviges abuses of his staff. Id.; 41CR4833. He simply told the
truth about the atrocities being committed by and on behalf of one man,
David Miscavige. 40CR4690-91. Mr. Rathbun remained otherwise loyal to
Scientology and its founder, and he offered counseling services to other former
Scientologists trying to recover from their damaging experiences with Miscavige.
40CR4689.
CSI, by and through its agents or contractors, including Appellants
David Lubow, Monty Drake, and Greg Sloat, undertook extensive surveillance of
the Rathbuns over a period of more than four years.
14
Drake began
surveillance of the Rathbuns in 2007. 17CR2056. However, according to
Drake, it was not until 2009 that his investigation was in any way related to
potential litigation.
15
38CR4478-79. Lubow has likewise stated that he is a private
investigator and filmmaker, hired by CSIs attorney Elliot Abelson to investigate
14
Though Sloats counsel represented to the trial court that Sloat is a licensed PI, 12RR218,
Sloat himself admits that he is not, 22CR2574.
15
The 2009 date is consistent with CSIs privilege log, which includes documents starting in
February 2009. 33CR4018-21.
11

Mr. Rathbun in support of prospective litigation regarding alleged violations by
Mr. Rathbun of intellectual property rights owned by CSI. Id. 4460-61.
Mr. Rathbun was silent about his Scientology background until 2009, two years
after Drake began his investigation. 17CR2056; 41CR4841. And his public
discussion about Scientology only involved the atrocities carried out by Miscavige.
40CR4690-91. Coincidentally, Appellants claim their alleged trademark
infringement investigation began in the same year. 38CR4478-79.
16

Scientologys corporations and their employees are required to comply with the
words of L. Ron Hubbard. 40CR4692. His words are engrained in Scientologys
corporate policy and are within its articles and bylaws. Id. Hubbards writings
preach attack the attacker. 40CR4691-95. Investigations are not for any purpose
but to haunt and harass. Id. 4693. (When we need somebody haunted, we
investigate.). And investigations are used to damp[] out the trouble even
when [Scientology] discover[s] no really pertinent facts. Id. In fact,
16
One of Appellants attempts to avoid the discovery allowed under the Act was through
assertion of attorney-client privilege and work product protection. In support of these assertions
they produced an October 29, 2012 contract between CSIs general counsel and Defendant Drake
purporting to finally memorialize a relationship started five years earlier when Drake first began
investigating the Rathbuns. 10CR1243-49. The contract was a blatant attempt to retroactively
cloak all investigatory reports generated over five years of Drakes employment with protections
from discovery. Despite conceding the existence of its investigation, not a single operational
report was produced by CSI.
12

Scientologys philosophy on enemies, like the Rathbuns, is to obliterate them. Id.
4691-95.
This obliteration policy often involves finding out what the attacker is trying
to protect and attack that. 41CR4835. An attackers job and immediate family
are usually Scientologys first targets. Id. Manufacturing false evidence to get an
attacker or an attackers immediate family member fired is Scientologys
policy. Id.
Mr. Rathbun is a threat because he spoke out on Miscaviges beating of
subordinates. 40CR4690-91; 41CR4841. Mr. Rathbun is also a threat because he
practiced his religion without being affiliated with Scientology. 31CR3760-61.
And Appellants did exactly as written by Hubbard and commanded by Miscavige.
CSI, at the direction of RTC and Miscavige, hired private investigators to haunt the
Rathbuns. 2CR302-03; 38CR4460-62; 31CR3753-63. It paid for groups to follow
the Rathbuns everywhere and taunt them, most of the time with video cameras in
hand. 36CR4253-54.
Most importantly, Appellants attacked what Mr. Rathbun sought to protect
Monique, his wife. 38CR4462; 40CR4684, 4686; 41CR4842-49, 4820-21.
Appellants crosshairs were trained on Mrs. Rathbun from the beginning of the
siege. After all, Hubbards writings command it. 40CR4691-95; 41CR4835.
13
Some, but by no means all, of the misconduct Mrs. Rathbun complains of was
committed by persons calling themselves Squirrel Busters. 40CR4698-4700;
41CR4842-44. A squirrel is someone who practices independent scientology,
i.e., someone who is not affiliated with CSI and does not pay for the services.
38CR4462-63. CSI deems squirreling to be a bastardized version of the
counseling services for which Scientology charges exorbitant fees. 38CR4463.
Squirreling is about the worst thing one can do in the Scientology religion. Id.
4470. The Squirrel Busters were conceived and created from and directed by
CSIs corporate headquarters in Los Angeles, California. Id.; 38CR4463-64.
Alan Cartwright, a CSI corporate representative, testified that CSI provided the
Squirrel Busters with financial and legal support. 36CR4253-54.
Appellant Bryan, a Scientologist living in California, was sent from California
by the Office of Special Affairs (OSA or OSA Int), a division of CSI, to join
the Squirrel Busters in Texas who were in the midst of a harassment campaign
against the Rathbuns. 31CR3755. On J uly 13, 2011, Bryan wrote:
This [the activities of the SQBs] is in co-ordination with OSA Int.
They are calling the shots and quite frankly I dont think it is very
effective. The reporters came to our house the other day and we
didnt tell them very much. Our main guy went back to discuss with
them [OSA Int] a different strategy. The rat [Mark Rathbun] is
getting more brazen and yesterday I actually had a 1 minute comm
cycle [a conversation in CSI jargon] with him while he was on a
walk. The guy is nuttier than a fruitcake. Hes gone off the deep end.
Taking him down will be no easy task.
Id.
14
The 24/7 video surveillance siege of the Rathbuns allowed Appellants to
monitor every move the Rathbuns made. They watched when Mrs. Rathbun left
home and when she returned 41CR4845-46. They knew when Mr. Rathbun left
Mrs. Rathbun home alone. Id. Mrs. Rathbun was often harassed at home when her
husband was out of town, sometimes at night. 41CR4842.
Mrs. Rathbun was followed to and from work. Id. She was followed to and
from restaurants. 41CR4843. She was followed to and from shopping.
41CR4848. She was followed while walking her dog. 41CR4844. For several
months, when the Rathbuns left their home, the Squirrel Busters group appeared in
a golf cart to confront the Rathbuns with video cameras and taunts. 40CR4699.
The Rathbuns could not avoid being seen leaving their house. Id. 4700-01;
41CR4846-47. They did not realize for over three years, not until October 2012,
how Appellants knew their whereabouts and movements. 40CR4700-01. It was
only then that they discovered multiple surveillance cameras had been placed in
windows in the house across the street from the Rathbun residence in Ingleside on
the Bay, Texas. Id. Those cameras were trained on the Rathbuns home, on a 24/7
basis. Id.
Lubow, who claims to be involved in investigating Mr. Rathbuns alleged
intellectual property violations, visited Mrs. Rathbuns work and called her
15
co-workers.
17
38CR4462; 41CR4845, 4820-21; 42CR4883. When Lubow
actually asked questions, none related to potential litigation or even intellectual
properties. 41CR4820-21; 42CR4883. Rather, he made statements about Mr.
Rathbuns mother and brother, said that Mr. Rathbun was only after Mrs.
Rathbuns money, and discussed Mr. Rathbuns temper. Id. He also inquired
about whether Mrs. Rathbun was still employed there. Id.
Showing up to Mrs. Rathbuns work was not enough for CSI. 38CR4462;
40CR4684, 4686; 41CR4844. CSI operatives showed up at her mothers house
and her former husbands house. Id. The operatives again told Mrs. Rathbuns
family that Mr. Rathbun was dangerous and disclosed personal information about
his mother and brother. 40CR4684, 4686. Again, making statements and
accusations, rather than asking questions and investigating. Id. Sticking to
Hubbards commandments, Lubow and other CSI operatives attacked to harass and
nothing more.
Bert Leahy was hired as a videographer for the Squirrel Busters group in
J une of 2011 to participate in harassment of the Rathbuns at their home in
Ingleside on the Bay. 40CR4678. The harassment stuck with the Rathbuns
17
Lubow also claims to be a film producer and Scientologist Squirrel Buster when such
identities fit Appellants arguments. Lubow Brief at 1-3; CSI Brief at 4-7; 38CR4459-62, 4463.
16

wherever they went in Ingleside on the Bay and surrounding areas near
Corpus Christi. Id.
Lubow told Leahy that he had two private investigators engaged in surveillance
of the Rathbuns who were able to keep track of their movements on a 24/7 basis.
Id. Leahy was also told that the purpose of the Squirrel Busters mission was
to make the Rathbuns life a living hell and to turn their neighbors against them
so that the Rathbuns would be forced from their residence. Id.
Numerous websites were created that spread disinformation about the
Rathbuns, made false and derogatory statements about Monique, including that she
was hypnotized, was a sex deviant, was a man with a sex change operation,
subjected her to ridicule, and involved the use of racial slurs. 40CR4696-97.
CSI published information gleaned from Appellants continuous surveillance of the
Rathbuns on a website, which included a section called Spy Corner that
discussed information obtained by Appellants surveillance of the Rathbuns,
including information about Mrs. Rathbuns exercise and eating habits, and her
unsuccessful efforts to bear a child. Id. 4700; 3RR100-01.
While in Ingleside on the Bay, the harassment of Scientology agents caused
Mrs. Rathbun to suffer severe migraine headaches, nausea with gagging, sensitivity
to light, the inability to concentrate at work, and the inability to eat. 41CR4849.
Unable to withstand the harassment, embarrassment, disruption and extreme
17
distress imposed on her in the workplace by Lubow and the other Appellants, Mrs.
Rathbun gave notice on April 1, 2011, that she would leave her job at the end of
that month. 41CR4846; 40CR4698.
The Rathbuns eventually sought to escape from the constant harassment and
electronic surveillance in Ingleside on the Bay by moving from Ingleside to a
secluded homesite in Bulverde, Texas. 40CR4701; 41CR4847. The move caused
the Rathbuns to lose $36,000 in lease/purchase equity in their Ingleside on the Bay
home. Id.
For a short while, Mrs. Rathbun had peace and tranquility. She started working
again. 40CR4701. But, the Rathbuns attempt to move away from the harassment
was to no avail. Id. 4702; 41CR4847-49. In spite of their efforts to escape CSIs
barrage of harassment and team of private eyes, CSIs agents caught up to the
Rathbuns in Bulverde and San Antonio. Id. CSI agents started following
Mrs. Rathbun to and from her work in San Antonio. 41CR4848.
In J uly of 2013, Mr. Rathbun noticed a camera pointing toward the Rathbuns
home from the woods behind their property. 40CR4702. A sign next to the
camera indicated that it belonged to the Texas Wildlife Conservancy, and listed a
telephone number. Id. After confirming that the camera did not belong to the
owner of the adjacent property, and that the Texas Wildlife Conservancy did not
exist, Mr. Rathbun called the telephone number. Id. Sloat answered and told
18
Mr. Rathbun that he was writing a novel and that his publishing company paid for
him to lease the property for two years. Id. Several days later Sloat appeared and
Mr. Rathbun talked to him. Id. Sloat asked Mr. Rathbun questions about his
family and whether the Rathbuns had any children. Id. This was very troubling
because just a few weeks prior to the Sloat encounter, the Rathbuns had hosted a
couple to discuss adopting their child. Id.; 41CR4848. As it turned out, Sloat was
a CSI operative. 3CR419-21; 40CR4702. He was hired to watch the Rathbuns and
even infiltrate their lives. 3CR419-20. Sloat admits to placing these cameras. Id.
There was no escape. Mrs. Rathbun was trapped, overwhelmed, and fearful.
41CR4848-49. She had been driven from her home in Ingleside on the Bay. Id.
When she moved, CSI found her. Id. Not only did they find her, they installed
electric lines and camera equipment in the woods behind her home so they could
watch and record every move she and her husband made. 40CR4702.
There was nothing she could do. The courts were the only place she could turn
to for relief. On August 16, 2013, Mrs. Rathbun filed suit and the 207th District
Court in Comal County, Texas issued a temporary restraining order, enjoining the
harassment. 1CR41-42.
Scientology uses litigation as a sword, not for its protection, but for the
destruction of the enemy or the attacker. 40CR4694. Scientologys policy is
to use the courts to harass and discourage rather than win. Id. Bankrupting the
19
enemy is the ultimate goal. Id. Likewise, defending a lawsuit is not a priority
for CSI. 40CR4693. When in litigation, CSI must [a]lways attack and never
defend. Id.
Hubbards words echoed through the halls of the Comal County Court House.
1CR102-166; 2CR191-307. Through non-compliant, obstructive deposition
answers and discovery objections, Appellants, RTC, and Miscavige pressed the
attack. 21CR2482-2522; 22CR2572-82, 2583-2629; 26CR3185-86; 11RR6-75.
Then came the motion under the Texas Citizens Participation Act, a tool intended
by the legislature as a shield for citizens like Mrs. Rathbun, but wielded as a sword
against her by Appellants. 1CR102-66; 2CR191-307.

20
ARGUMENT
Appellants sought dismissal under the Texas Citizens Participation Act,
Tex. Civ. Prac. & Rem. Code 27.001, et seq. (the Act). Under the Act, the
Court has an equal duty to safeguard the constitutional rights of persons to petition,
speak freely, associate freely and otherwise participate in government to the
maximum extent by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury. See Tex. Civ. Prac. & Rem. Code
27.002; Whisenhunt v. Lippincott, 416 S.W.3d 689, 697 n.11 (Tex. App.
Texarkana 2013, pet. filed) (acknowledging that the Act has a stated dual purpose
and that courts must give effect to all words so that none of the statutes language
is treated as surplusage). As the trial court recognized, courts are required to
liberally construe the entirety of the Act. 31CR3764 (citing Tex. Civ. Prac. &
Rem. Code 27.011(b)).
The trial court found that Mrs. Rathbun was personally harmed and injured as
a result of [Appellants] activities. 31CR3760. The trial court further found that
Appellants motions under the Texas Citizens Participation Act were either barred
by the commercial dispute or bodily injury exemption to the Act or were barred
because Mrs. Rathbuns claims are not based on, related to, or in response to a
freedom of expression protected by the Act, either because the claims were
independent of Appellants expressions or because those expressions were not
21
protected. 31CR3753-77. The trial courts conclusions are consistent with the
facts and the law and should be affirmed.
I. THE TRIAL COURT DID NOT ERR IN FINDING THAT MRS. RATHBUNS
COMPLAINTS WERE EXEMPT FROM THE TEXAS CITIZENS PARTICIPATION
ACT
The trial court found that the facts of this case fell within two exemptions to the
Texas Citizens Participation Act: the exemption for commercial disputes and the
exemption for claims of bodily injury. 31CR3766-71. Neither conclusion was
erroneous and the trial courts opinion should be affirmed on these grounds.
A. The Trial Court Did Not Err in Finding That This Case Falls Within the
Commercial Exemption

The trial court concluded that Mrs. Rathbuns claims fall within the commercial
activity exemption to the Act, which provides:
This chapter does not apply to a legal action brought against a person
primarily engaged in the business of selling or leasing goods or
services, if the statement or conduct arises out of the sale or lease of
goods, services . . . or a commercial transaction in which the intended
audience is an actual or potential buyer or customer.

Tex. Civ. Prac. & Rem. Code 27.010(b). As the trial court recognized,
Appellants repeatedly argued that their harassing activities were connected with,
or in relation to, Mr. Rathbuns involvement in offering unauthorized Scientology
services including auditing, using Scientology technology in a manner not
approved by the Church of Scientology, and making a business of such services.
31CR3761; 36CR4246-50, 4253-55; 38CR4461-63, 4470-72, 12CR146-47, 151,
22
158-59. In other words, CSI claimed that Mr. Rathbun engaged in business doing
precisely what CSI does delivering some form of Scientology counseling.
Indeed, counsel for CSI informed the trial court early on that CSI was
an administrative business entity. 4RR104 (THE COURT: What does CSI do
then?
MR. STRIEBER: CSI is an entity that is a -- kind of a -- an administrative
business entity.).
CSI alleged Mr. Rathbuns business activity was offered from and provided at
the Rathbuns residences first in Ingleside on the Bay, Texas and later in Bulverde,
Texas. 31CR3761. If, as Appellants insist, Mr. Rathbuns activity of offering
Scientology services is a business, then the trial court correctly concluded that the
Churchs own activity of offering Scientology services, and selling related books
and other goods, is also a business.
As the trial court found, CSI, through, among others, its Legal Director for its
Office of Special Affairs, claims that CSI was concerned that Mr. Rathbun was
engaged in the unauthorized sale of Scientology services, intellectual property
infringement, and other commercial piracy, and began investigating Mr. Rathbun
as early as 2007. 31CR3767. The trial court concluded, therefore, that
a preponderance of the evidence demonstrates that CSI and its agents are
primarily engaged in the business of selling or leasing goods or services.
23
31CR3766. The investigator Appellants testified that they were investigating Mr.
Rathbuns business practices that competed with those offered by the Church of
Scientology. 38CR4478-79, 4480-81, 4461, 4462-63; 3CR420. The trial court
was also presented with declaration testimony of Church official Alan Cartwright
and Church member J ohn Allender, both of whom explained the business nature of
the Churchs objection to Mr. Rathbuns activities. 36CR4253-52, 38CR4471,
4473.
The Church of Scientology itself has advertised the money that one can make
from auditing.
18
Prior courts have recognized that the Church of Scientology
derives income from the sale of auditing and training services. See, e.g.,
Hernandez v. Commr, 490 U.S. 680, 685 (1989) (The Church charges a
fixed donation, also known as a price or a fixed contribution, for participants
to gain access to auditing and training sessions. These charges are set forth in
schedules, and prices vary with a sessions length and level of sophistication.); id.
at 692 (finding that the Church categorically barred provision of auditing or
training sessions for free); Church of Spiritual Technology v. United States,
26 Cl. Ct. 713, 727 (1992), affd 991 F.2d 812 (Fed. Cir. 1993) (recognizing that a
prior Tax Court decision found that the church of Scientology was operated for
18
See http://web.archive.org/web/20060818060116/http://www.scientology-
asho.org/AuditingAsACareer.htm (last visited August 7, 2014).
24

the substantial commercial purposes of tax evasion, making money, and criminally
manipulating the IRS as a method of financial planning). Auditing is the same
type of service Appellants complain that Mr. Rathbun was providing.
The trial court concluded that the complained-of conduct arose out of the sale of
goods, services, or a commercial transaction consistent with the intent and
meaning of the Act. 31CR3766-69. As the court held, without
CSIs apprehension of intellectual property rights by . . . Mark Rathbun and his
alleged sale of unauthorized Scientology services, the extensive-type of
commercial piracy investigation such as that declared by Drake and/or Lubow,
instigated as early as 2007, to protect CSIs primary business interests would
clearly not have occurred. 31CR3767. The trial court relied for this conclusion
upon CSIs own representations that its harassment campaign was in large part a
wholly commercial, intellectual property ownership investigation. 31CR3767-68.
CSI cannot have it both ways. If it wishes to claim that its actions in harassing
Mrs. Rathbun had a commercial, business purpose it must suffer whatever
consequences come with that decision.
The court also correctly concluded that the majority of the conduct about which
Mrs. Rathbun complains was, by Appellants own admission, intended to
communicate to actual or potential customers of the Churchs own services the
Churchs displeasure with what it characterizes as commercial activities of
25
Mrs. Rathbun and her husband that somehow compete in commerce with
Scientologys own. 31CR3762, 3768-69. Specifically, the complained-of activity
that Appellants claim was documentary making, reporting, and protesting was
intended to have an effect on a very specific public, consisting of Scientology
members and potential members. 31CR3762; 36CR4253-54; 38CR4463-64, 4470-
71; 2CR294.
In challenging the trial courts order, Appellants raise three arguments.
First, Appellants rely upon the recent decisions from this Court and other Texas
appellate courts regarding the interpretation of the commercial speech
exemption. CSI Brief at 13-20. This analysis is flawed. In Kinney v.
BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998
(Tex. App.Austin Apr. 11, 2014, pet. filed) (mem. op.), this Court held that the
exemption did not apply because in that case, the defendants statements were not
made with the intent and purpose to persuade actual or potential customers to
purchase the defendants products or services. Id. at *20. This Court noted that
the anonymous statements in question made no reference whatsoever to
[the defendants] business or the sale of his services. Id. In this case, however,
CSI expressly undertook efforts to demonstrate the differences between the
services provided by CSI and Mr. Rathbun and to convince current and potential
Scientology customers that they should purchase auditing services from the
26
Church. 31CR3762-63. The trial court relied upon this evidence to find that
Appellant CSI undertook its actions to protect and promulgate its own services,
while attempting to destroy the competition provided by Mr. Rathbun. Id.
Unlike the defendant in Kinney, certain of the activities that Mrs. Rathbun
complains about in this lawsuit were, according to Appellant CSIs own testimony,
undertaken to promote CSIs own business interests. Thus, this Courts decision in
Kinney is inapplicable to the facts of this case.
The other appellate cases relied upon by Appellants are further distinguishable
by the fact that none involved the undertaking of competitive services.
See Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71
(Tex. App.Houston [1st Dist.] 2013, pet. denied) (movants seeking protection
under the Act were newspaper company and service provider to plaintiff;
statements did not promote the business of either defendant); Better Bus. Bureau of
Metro. Houston, Inc. v. John Moore Servs., Inc., No. 01-12-00990-CV, 2013 Tex.
App. LEXIS 8756 (Tex. App.Houston [1st Dist.] J uly 16, 2013, pet. denied)
(defendant provided rating services for companies, while plaintiff was in the
business of home repair and maintenance services); Better Bus. Bureau of Metro.
Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex. App.Dallas 2013, pet.
denied) (defendant provided rating services for companies, while plaintiff was in
the business of building swimming pools). In each of these cases, the appellate
27
court found that the activity undertaken by the movant was not intended to promote
its own business opportunities, so the commercial speech exemption was not
applicable. In this case, however, the trial court relied upon multiple, repeated
statements made by Appellants to determine that their intent in undertaking the
complained-of activities was to promote their own practices of Scientology over
the practices of Mr. and Mrs. Rathbun. In fact, the activities of the Church in this
case, through its admitted attempt to create a documentary for others, more closely
resembled the advertisements that the Fifth Circuit found was within the
commercial speech exemption in NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742 (5th Cir. 2014) (advertisements that sought to obtain plaintiffs
former customer as clients for the law firm by advertising that the plaintiff had
committed Medicaid fraud and bad medical provision). Appellants undertook their
activities to promote the Church as the only provider of Scientology, which falls
within the commercial speech exemption of section 27.010(b) of the Act.
Appellants second argument is that the only way to reconcile the Acts
exclusion of commercial disputes with the Acts inclusion of speech regarding
a good, product, or service in the marketplace within the definition of matters of
public interest, is to limit the commercial exception to claims challenging the
advertisement of a partys goods or services. CSI Brief at 17. CSI cites no case in
support of this analysis and offers no explanation for why, if the legislature
28
intended to limit the commercial exemption to advertisements, it would not have
just said so.
Finally, Appellants claim that the Churchs federal tax-exempt designation
under 26 U.S.C. 170(c)(2) and 501(c)(3) effectively renders the receiving entity
not one engaged in the business of selling or leasing goods or services for the
purpose of section 27.010(b). CSI Brief at 18-19. Section 501(c)(3) inquires into
an organizations purpose. It provides:
Corporations, and any community chest, fund, or foundation,
organized and operated exclusively for religious, charitable, scientific,
testing for public safety, literary, or educational purposes, or to foster
national or international amateur sports competition (but only if no
part of its activities involve the provision of athletic facilities or
equipment), or for the prevention of cruelty to children or animals, no
part of the net earnings of which inures to the benefit of any private
shareholder or individual, no substantial part of the activities of which
is carrying on propaganda, or otherwise attempting, to influence
legislation (except as otherwise provided in subsection (h)), and which
does not participate in, or intervene in (including the publishing or
distributing of statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.

26 U.S.C. 501(c)(3). The statutory language does not indicate that in order to
qualify for tax exempt status an entity must not engage in business activities, in
fact it assumes that a non-profit may have net earnings that would traditionally
benefit equity holders. One need only consider that donations to Goodwill stores
are tax deductible to see that an entity may be both a charity and involved in
commerce. In order for an organization to maintain its status as a non-profit, any
29
excess revenue must merely be invested for the benefit of the organization.
The only prohibition on a non-profits activity is the avoidance of any propaganda
to influence legislation or intervene in any political campaign.
CSIs tax-exempt status came in a settlement with the Internal Revenue Service
after more than a decade of judicial and extra-judicial warfare.
19
See Sklar v.
Commr, 282 F.3d 610 (9th Cir. 2002); see also Peter J . Reilly, IRS Scientology
Thirty Years War Forbes at http://www.forbes.com, (J uly 14, 2012). Assuming
for the sake of argument that the settlement agreement means CSI is a charitable
organization under federal law, the fact that CSI may have a religious or charitable
purpose is not dispositive. The Texas Citizens Participation Act does not inquire
about purposes, it inquires about activities. And it is undisputed that Scientology
engages in commercial activities. Courts have repeatedly described the
commercial, quid pro quo nature of the services by which Scientology has enriched
itself and its leadership. See, e.g., Church of Scientology of California v. Commr,
83 T.C. 381 (1984), affd 823 F.2d 1310 (9th Cir. 1987). Regardless of
Scientologys bona fides as a religion, it has a phenomenal preoccupation with
19
Prior to the settlement, the United States Supreme Court held that Scientologys claim that
customers should be entitled to claim charitable deductions for purchases of services from the
Church was contrary to the Internal Revenue Code and the U.S. Constitution. Hernandez v.
Commr, 490 U.S. 680 (1989). Courts are bound by the Supreme Courts holding, rather than by
an IRS settlement. Sklar, 282 F.3d at 619-20. In fact, the Ninth Circuit has noted that, given the
opportunity to rule on the IRSs deal with Scientology, it would likely invalidate the tax-
exemption deal. Id.
30

money and the way in which Scientology operates is often indistinguishable
from any commercial activity. Church of Spiritual Technology, 26 Cl. Ct. at 726,
735.
The designation of an organization as a church does not end the inquiry into
whether that organization is conducting commercial activities. Indeed, the
Supreme Court has expressly held that an organization recognized as one with a
religious purpose under 26 U.S.C. 501(c)(3) can nevertheless be one that engages
in commercial activities. For example, a religious organization is subject to the
Fair Labor Standards Act because when it engage[s] in ordinary commercial
activities . . . the business activities will be treated under the Act the same as when
they are performed by the ordinary business enterprise. Tony & Susan Alamo
Foundation v. Secretary of Labor, 471 U.S. 290, 297 (1985); see also Murdock v.
Pennsylvania, 319 U.S. 105, 110-11 (1943) (Situations will arise where it will be
difficult to determine whether a particular activity is religious or purely
commercial. The distinction at times is vital. As we stated only the other day, in
Jamison v. Texas, 318 U.S. 413, 417, The states can prohibit the use of the streets
for the distribution of purely commercial leaflets, even though such leaflets may
have a civic appeal, or a moral platitude appended.).
31
The Act does not define what it means to be primarily engaged in selling or
leasing goods or services.
20
Nor does the Act require that one primarily engaged
in selling or leasing goods or services do so purely for financial gain. What is
clear is that the actions Appellants claim are protected by the Act are the same
actions Appellants claim were directed toward existing and potential customers
CSI thought might seek services from Mr. Rathbun rather than the Church.
Each of the cases cited by Appellants in support of their claim that a church
cannot be a business
21
involved the federal district court undertaking a fact-specific
analysis of whether, for purposes of the Fair Labor Standards Act, the defendant
was engaged in commerce or engaged in the production of goods for commerce.
None of these cases stands for a blanket characterization that an entity that calls
itself a church or undertakes a charitable or religious purpose cannot be one that is
primarily engaged in selling or leasing goods or services for purposes of the Fair
Labor Standards Act, let alone for purposes of the Texas Citizens
Participation Act.
20
In rejecting a Scientology-related entitys claim for tax exemption, the United States Tax
Court recognized that Congress did not intend for mere quantity of dedicated resources to be the
deciding factor in whether an organization is operated for exclusively exempt purposes.
Church of Spiritual Technology, 26 Cl. Ct. at 732-33 (discussing at length Scientologys
preoccupation with making money).
21
Kitchings v. Florida United Methodist Childrens Home, 393 F. Supp. 2d 1282 (M.D. Fla.
2005); Genarie v. PRD Mgmt., Civ. No. 04-2082 (J BS), 2006 U.S. Dist. LEXIS 9705
(D.N.J . Feb. 17, 2006); Locke v. St. Augustine's Episcopal Church, 690 F. Supp. 2d 77 (E.D.N.Y.
2010); Malloy v. Assn of State & Terr. Solid Waste Mgmt. Officials, 955 F. Supp. 2d 50
(D.D.C. 2013).
32

Appellants allege that the activities undertaken by the Rathbuns were
commercial activities that potentially impinged upon Scientologys wholly
commercial intellectual property interests. After examining the evidence of the
activities undertaken by the Rathbuns and the activities of the Church, the trial
court came to the rational conclusion that if the Rathbuns were conducting
commercial transactions as the Church repeatedly asserted and the Church
undertook those exact same activities, then both parties must be engaged in
commercial activity. The type of examination undertaken by the trial court in this
case is similar to the Supreme Courts analysis in Tony & Susan Alamo
Foundation, where the Supreme Court compared the activities undertaken by a
non-profit, religious organization to ordinary commercial activities in determining
that the non-profit, religious organization was a business enterprise for the
purposes of the Fair Labor Standards Act. 471 U.S. at 306.
The trial court correctly concluded that the Texas Citizens Participation Act
statute does not apply to Mrs. Rathbuns allegations because Mrs. Rathbuns suit is
brought against the Church, which is primarily engaged in the business of selling
or leasing goods or services, complaining of activity that Appellants themselves
contend was triggered by Mrs. Rathbuns husbands allegedly similar commercial
activities and was allegedly intended to communicate the Churchs displeasure
with those commercial activities to actual or potential customers of the Churchs
33
own services. The trial courts determination that the commercial speech
exemption applied to the Appellants activities should be affirmed.
B. The Trial Court Did Not Err in Finding That This Case Falls Within the
Bodily Injury Exemption

The trial court also correctly found that because Mrs. Rathbun complains of
actions that caused her bodily injury, Appellants motions are precluded by the
provision of the Texas Citizens Participation Act exempting from the reach of the
statute legal action[s] seeking recovery for bodily injury. Tex. Civ. Prac. &
Rem. Code 27.010(c). Bodily injury is not defined in the Texas Citizens
Participation Act. The Texas legislature has defined bodily injury in another
statute, however. See Tex. Penal Code 1.07(8) (defining bodily injury as
physical pain, illness, or any impairment of physical condition).
Texas courts give words in statutes their common ordinary meaning, unless the
statute clearly indicates a different result. Jaster v. Comet II Const., Inc., No. 12-
0809, 2014 Tex. LEXIS 567 at *12-14 (Tex. J uly 3, 2014). When a statute does
not define a word it uses, courts must determine and apply the words common,
ordinary meaning. Id. In doing so, courts look to a wide variety of sources,
including[the courts] own prior constructions of the word in other contexts
[and] the use and definitions of the word in other statutes and ordinances. Id.
(emphasis added).
34
Bodily injury has been defined by the legislature in the Texas Penal Code and
Texas courts have addressed it in case law. Tex. Penal Code 1.07(8);
Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex. 1997). In Trinity,
the Texas Supreme Court held that bodily injury, construed in an insurance policy,
requires injury to the physical structure of the human body. Id. The Texas
Supreme Court implied that allegations of physical manifestations of emotional
distress could be considered bodily injury under an insurance policy.
Moreover, the Texas Supreme Court has held that emotional distress can cause
bodily injury without any physical contact. City of Tyler v. Likes, 962 S.W.2d 489,
495-96 (Tex. 1997) (citing Hill v. Kimball, 13 S.W. 59 (Tex. 1890), involving a
plaintiff who miscarried after witnessing an altercation).
The trial court did exactly what the Texas Supreme Court requires. It analyzed
bodily injury undefined by the Texas Citizens Participation Act by looking to
other cases and other statutes. 31CR3769-71. Mrs. Rathbun introduced evidence
showing the physical manifestations resulting from Appellants conduct, such as
nausea, severe migraine headaches, and sensitivity to light. 31CR3770-71;
41CR4849. Those physical manifestations fall squarely within definitions of
bodily injury provided by the Texas Supreme Court and the Texas Legislature.
Appellants cite no case defining bodily injury differently. Rather, by arguing
the Texas Citizens Participation Acts exemptions ought to be limited toother
35
bodily injury claims, they tacitly admit that physical manifestations of emotional
distress do in fact fit within the plain meaning of bodily injury. CSI Brief at 23
(emphasis added). Appellants ask the Court to disregard the plain meaning of the
Texas Citizens Participation Act and, essentially, re-write it. That invitation must
be declined, as that would contravene all Texas case law regarding statutory
interpretation.
II. THE TRIAL COURT CORRECTLY RELIED UPON LIMITATIONS TO THE FIRST
AMENDMENT

Assuming for the sake of argument that the trial court erred in concluding that
the commercial speech and bodily injury exemptions to the Texas Citizens
Participation Act apply, the trial courts order denying Appellants motions should
nonetheless be affirmed. The trial court conducted an extensive review of the
evidence presented and determined that the proper balance between Appellants
First Amendment rights and Mrs. Rathbuns right to prosecute her claims, resulted
in the conclusion that Mrs. Rathbuns claims should be allowed to proceed. This is
particularly true given the early stage of litigation in which motions under the Act
must be made and heard. Applying the analysis conducted by the United States
Supreme Court in Snyder v. Phelps, 131 S. Ct. 1207 (2011), the trial court held that
numerous fact issues are substantiated with enough evidence that if allowed to be
fully developed could possibly ripen into one of the limitations discussed by the
36
Supreme Court in Snyder. 31CR3775. These limitations include the captive
audience doctrine,
22
fighting words, and speech that while purportedly about
public issues is actually intended to address private issues. As the United States
Supreme Court recognized, even protected speech is not equally permissive in all
places and at all times. Snyder, 131 S. Ct. at 1218. And as the trial court
recognized, preemptively dismissing Mrs. Rathbuns lawsuit at this stage of the
proceedings simply because it is somehow based on, related to, or in response
to the defensive issue of freedom of expression would lead to an absurd result
with the end unjustifiably controlling the means.
23
31CR3775. Given the Acts
express recognition of the courts equal duty to safeguard the constitutional rights
of persons to petition, speak freely, associate freely and otherwise participate in
government to the maximum extent by law and, at the same time, protect the rights
of a person to file meritorious lawsuits for demonstrable injury, Tex. Civ. Prac. &
22
The captive audience doctrine is applied to protect unwilling listeners from protected speech.
Snyder, 131 S. Ct. at 1220. It often arises where, as here, the speech in question is directed at an
individual in her home. Id.; see also Frisby v. Schultz, 487 U.S. 474, 484-85 (1988)
(Although in many locations, we expect individuals simply to avoid speech they do not want to
hear, the home is different.). The fact that certain of the complained-of activity took place in
public places is, contrary to Appellants position, not determinative as it was aimed at
Mrs. Rathbun inside her home. Id. (holding that protesting and picketing outside someones
home may be regulated consistent with the constitution).
23
The trial courts conclusion that Appellants motions should be denied on the merits meant
that the court did not dive headlong into the much lengthier and potentially complex ultimate
issue regarding the constitutionality of the Act from either a Seventh Amendment perspective
from the federal side or an open courts perspective from the state constitution. 56 CR 6442.
37

Rem. Code 27.002, the trial courts methodology and conclusion is appropriate
and should be affirmed.
In the alternative, should this Court conclude that the trial courts methodology
is flawed, this Court should remand to the trial court to allow the trial court to
conduct further analysis. The trial courts conclusion rendered it unnecessary to
consider the shifting evidentiary burdens on Appellants and Mrs. Rathbun under
the Act. 31CR3763-77. The court expressly indicated that given time, it could
enter additional Findings of Fact and Conclusions of Law in support of [its] ruling
and the analysis supportive thereof that the time constraints of Texas Civil
Practices & Remedies Chapter 27 did not allow in view of the vast amount of
evidence and evidentiary rulings considered by the Court in the case.
24
1SCR27.
It would be inappropriate for this Court to review what the trial court has not yet
done.
III. Denial of Appellants Texas Citizens Participation Act Motions Was
Proper Because Mrs. Rathbuns Claims Do Not Arise From Appellants
Exercise of First Amendment Rights

In the further alternative, the trial courts order denying Appellants Texas
Citizens Participation Act Motions should be affirmed because Appellants failed to
show by a preponderance of the evidence that Mrs. Rathbuns claims are based on,
24
The Texas Citizens Participation Act requires that the hearing on a motion to dismiss under the
Act be commenced no later than 120 days after service of the motion and that the court must rule
on the motion not more than 30 days after the hearing. Tex. Civ. Prac. & Rem. Code 27.004,
27.005(a).
38

relate to, or are in response to Appellants exercise of the right of free speech, right
to petition, or right of association. See Tex. Civ. Prac. & Rem. Code 27.003(c)
& 27.005(b). A lawsuit seeking redress for stalking and harassment designed to
take down Mr. Rathbun, make the Rathbuns life a living hell, and to
turn their neighbors against them so that they would be forced to move,
23CR2818; 31CR3755; 40CR4678, is not a lawsuit that is based on or in response
to the exercise of First Amendment rights.
A. Mrs. Rathbuns Claims Are Not Related to Appellants Free Speech Rights

While certain Appellants did engage in speech regarding Mrs. Rathbun, the
Texas Citizens Participation Act does not apply because her claims are not based
on, related to, or in response to a communication made by Appellants in
connection with a matter of public concern. See Tex. Civ. Prac. & Rem. Code
27.001(3). A communication is the making or submitting of a statement or
document in any form or medium, including oral, visual, written, audiovisual, or
electronic. Id. 27.001(1). Appellants have failed to identify any
communications regarding matters of public concern that are the subject of
Mrs. Rathbuns claims. Monty Drake alleges that his speech had no public
audience and were instead limited to the Church and its counsel. Drake Brief at
7 (emphasis in original). Clearly, Drakes communications with the Church do not
form the basis of Mrs. Rathbuns claims. The only communications complained of
39
concern Mrs. Rathbuns marriage, Mr. Rathbuns alleged sexual preferences and
practices, Mrs. Rathbuns fertility issues, Mrs. Rathbuns husband, and the mental
health of Mrs. Rathbuns husbands family. These are not matters of public
concern.
25

Not all speech is of equal First Amendment importance . . . and where
matters of purely private significance are at issue, First Amendment protections are
often less rigorous. Snyder, 131 S. Ct. at 1215 (quoting Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 56 (1988)). Private speech does not implicate the same
constitutional concerns of limiting matters of public interest, such as free and
robust debate of public issues. Id. Matters of public concern must [relate] to
any matter of political, social, or other concern to the community. Id. at 1216.
The context, content, and form of the speech must be examined to determine if
speech is a matter of public concern. Id.; see also Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 761-62 (1985) (holding that false credit
reports that were made available to only five subscribers were purely private
matters because they concern no public issue and were instead speech solely for
the individual interest of the speaker and its specific business audience).
25
CSIs citing to media coverage of their antics in support of their claim that its behavior
towards the Rathbuns involved a matter of public concern is particularly ludicrous. The only
media interest was in CSIs unprecedented harassment of the Rathbuns. 40CR4690-91. And
CSIs only involvement in that media coverage was to deny any connection to it. Not until this
suit was filed did CSI two years after the fact admit to having conceived, financed and
directed the entire affair.
40

Of particular relevance to this case, the relevant context of speech includes
whether a relationship or conflict between the parties existed before the speech
arose. See Snyder, 131 S. Ct. at 1217; Connick v. Meyers, 461 U.S. 138, 153
(1983). This factor allows the courts to distinguish between speech that is truly
regarding matters of public concern and speech that is contrived to insulate
speech on a private matter from liability. Snyder, 131 S. Ct. at 1217. In Snyder,
for example, the Supreme Court held that the absence of a pre-existing relationship
between the plaintiff and the Westboro Baptist Church, which frequently picketed
military funerals, obviated any concern that the Westboro Baptist Churchs actions
in picketing the plaintiffs sons funeral was intended to mask an attack on
[the plaintiff] over a private matter, Id. Here, in stark contrast, there was a very
long-standing relationship between Mr. Rathbun and Scientology and years of
conflict. 31CR3753-63;40CR4688, 4698. Under the Supreme Courts analysis,
such relationship does suggest that any of Appellants speech that appeared to
relate to public matters was, in actuality, a personal attack on the Rathbuns.
Certainly the investigators discussions with Moniques mother, ex-husband,
and co-workers were on purely private matters. There is no evidence that those
discussions were intended for someone other than the person spoken to and they
did not take place in a public environment. 40CR4684, 4686; 41CR4844-45,
4820-21, 42CR4883. The content of the statements that Mr. Rathbun only uses
41
Mrs. Rathbun for her finances and personal matters related to Mr. Rathbuns
mother certainly are not matters of public interest.
Assuming for the sake of argument that Appellants had made some
communications in connection with a matter of public concern, and that
Mrs. Rathbuns claims arose from or related to those communications, the
First Amendment still would not bar Mrs. Rathbuns claims. When a partys
rights of free speech [are] exercised in close proximity to individual[s] . . . so as
to tortiously assault or harass them, [the speakers] rights ended where those
womens rights began. Pro-Choice Network v. Schenk, 67 F.3d 377, 392-93
(2d Cir. 1995) (en banc) (quoting New York State NOW v. Terry, 886 F.2d 1339,
1343 (2d Cir. 1989)).
B. Mrs. Rathbuns Claims Are Not Related to Appellants Exercise of the
Right of Association

Mrs. Rathbuns tort claims against Appellants for invasion of privacy,
intentional infliction of emotional distress, and interference with contract are not
based on, related to, or in response to a communication made by Appellants in
exercising their right of association. Mrs. Rathbuns claims are not based on,
related to, or in response to a communication between individuals who join
together to collectively express, promote, pursue, or defend common interests.
See Tex. Civ. Prac. & Rem. Code 27.001(2). The activity Mrs. Rathbun
complains of does not fall within this description and Appellants have failed to
42
identify even one such communication that is the subject of Mrs. Rathbuns
claims.
26

In any event, [t]he freedom of association protected by the First Amendment
does not extend to joining with others for the purpose of depriving third parties of
their lawful rights. Madsen v. Womens Health Ctr., Inc., 512 U.S. 753, 775
(1994). Even if Mrs. Rathbuns claims arose from Appellants communications
with individuals who join together to collectively express, promote, pursue, or
defend common interests, those communications resulted in a deprivation of
Mrs. Rathbuns right to be let alone and thus, Appellants actions are not protected
by the First Amendment.
C. Mrs. Rathbuns Claims Are Not Related to Appellants Right to Petition

Nor are Mrs. Rathbuns claims based on, related to, or in response to any
activity by Appellants that qualifies as the exercise of the right to petition.
See Tex. Civ. Prac. & Rem. Code 27.001(4). The only communications
complained of concern Mrs. Rathbuns marriage, Mrs. Rathbuns husband, and the
mental health of Mrs. Rathbuns husbands family. These communications were
not in or pertaining to a judicial proceeding, were not made in connection with an
issue under consideration or review by a governmental body, were not reasonably
26
To the extent that such activity was directed at Mrs. Rathbun in her home, it is not entitled to
First Amendment protection. See Frisby, 487 U.S. at 485 ([W]e have been careful to
acknowledge that unwilling listeners may be protected when within their own homes.).
43

likely to effect consideration of an issue by a governmental body, and were not
likely to enlist public participation in an effort to effect consideration of an issue
by a governmental body. See id.
Appellants have alleged that their activities constituted pre-suit investigation of
intellectual property infringement. This argument fails for two reasons. First, the
argument fails because even if pre-suit investigation can sometimes be protected as
petitioning activity, sham investigation such as that alleged here is not entitled to
such protections. And second, the argument fails because this Court should hold,
in a matter of first impression, that pre-suit investigation is not covered by the
Texas Citizens Participation Act.
Assuming first for the sake of argument that pre-suit investigation may qualify
as the exercise of the right to petition, such protection should be available only
when the activity is not a sham. See Tichinin v. City of Morgan Hill, 177 Cal. App.
4th 1049, 1065 (2009). The Tichinin court applied the Noerr-Pennington doctrine
to determine whether the pre-suit investigation at issue was a sham. Id. at 1064-74.
Noerr-Pennington is an antitrust doctrine that shields defendants from antitrust
liability for lobbying, litigating, or engaging in other government-petitioning
activities for anticompetitive purposes. BE & K Constr. Co. v. Natl Labor
Relations Bd., 536 U.S. 516, 525 (2002). Sham petitions, however, are excluded
from protection under the Noerr-Pennington doctrine. Id. at 252-26. The Noerr-
44
Pennington doctrine does not immunize defendants engaging in pre-suit activities
if the suit itself is a sham. See id.; see also Tichinin, 177 Cal. App. 4th at 1065.
Litigation is a sham if it is (1) objectively baseless; and (2) subjectively motivated
by improper purposes. BE & K, 536 U.S. at 526.
Here, the evidence before the trial court established that Mrs. Rathbuns claims
do not arise from or relate to legitimate pre-suit investigation. The evidence
considered by the trial court, after sustaining of many of Mrs. Rathbuns
evidentiary objections, consisted only of conclusory statements about Appellants
activities.
27
38CR4460, 38CR478-79. Conclusory statements in affidavits are not
probative in an analysis under the Act. Herrera v. Stahl, No. 04-14-00018-CV,
2014 Tex. App. LEXIS 7683 at *12-13 (Tex. App.San Antonio J uly 16, 2014,
no pet. h.). Appellants failed to provide any underlying details regarding their
claim of investigating potential litigation and thus their claim of protected
petitioning is properly rejected. Herrera, 2014 Tex. App. LEXIS at *12
(holding that the trial court did not err in denying the defendants motion to
27
Appellants cite to CSIs Anti-SLAPP Motion, a declaration of CSI representative Allan
Cartwright that refers to a privilege log, and the affidavits of David Lubow and Monte Drake in
their attempt to show that the harassment campaign was actually pre-litigation investigation. CSI
Brief at 36. Cartwright relied in part upon a privilege log, that does not reveal any information
about the purported investigations other than their existence. 27CR3213-14. Cartwright in fact
stated that he was not revealing the details of such privileged communications, while at the
same time using CSIs privilege log to affirmatively assert facts. Id.
45

dismiss under the Texas Citizens Participation Act because the defendant did not
provide any underlying details in support of his contentions).
In addition to being conclusory, CSIs claims of pre-suit investigation are not
credible. CSI admitted that it has known of Mr. Rathbuns use of Scientology
technology, including auditing, and the delivery of Scientology-related services
since 2009. 36CR4247, 4248, 4250-51, 4254-55; 38CR4462-63. Nevertheless, the
alleged investigation did not result in so much as a cease and desist letter despite
having continued beyond the limitations periods for any such claims. 40CR4690-
91. The communications between the investigators and Mrs. Rathbuns family,
friends, and co-workers were not in the nature of investigation and were unrelated
to any allegation of intellectual property infringement. 40CR4684, 4686;
42CR4883. As a matter of law, the alleged pre-suit investigation was a sham,
undeserving of First Amendment protections.
Whether or not Appellants investigations were a sham, Mrs. Rathbuns
complaints regarding those investigations do not fall within the Texas Citizens
Participation Act either facially or as applied. The question of whether pre-suit
investigation can ever qualify as the protected exercise of the right to petition is a
matter of first impression in Texas. The courts outside of Texas are split on the
scope of First Amendment protection available to pre-suit activity.
In Cardtoons, L.C. v. Major League Baseball Players Association, for example, the
46
court held that the plain meaning of the First Amendment protects only those
petitions which are made to the Government. 208 F.3d 885, 892 (10th Cir.
2000) (en banc). The court therefore rejected the contention that statements made
in a pre-litigation demand letter were protected under the First Amendments
petition clause. Id. at 893 (purely private threats of litigation are not protected [by
the First Amendment] because there is no petition addressed to the government).
Because the alleged petitioning conduct was between private parties, not directed
towards the government, the issue of immunity collapses into the issue of state
law liability. Id.
Even statements made in actual petitions to the government are not fully
protected. In McDonald v. Smith, 472 U.S. 479, 484 (1985), the United States
Supreme Court held that libelous and malicious statements contained in letters
petitioning government officials are not insulated by the right to petition under the
First Amendment. Id. at 485. The right to petition was founded under the same
ideals of liberty and democracy that gave us the freedoms to speak, publish, and
assemble. Id. Giving statements in petitions absolute immunity would elevate
the Petition Clause to special First Amendment status. Id. (The right to petition
is guaranteed; the right to commit libel with impunity is not.).
Appellants rely on Tichinin v. City of Morgan Hill for the proposition that pre-
suit investigation qualifies as the exercise of the right to petition. Contrary to
47
Appellant Drakes assertions, Drake Brief at 6-7, the Tichinin court did not hold
that pre-suit investigations were protected by Californias anti-SLAPP statute.
Rather, the court was evaluating whether the plaintiff had shown that he was likely
to prevail on his claims, so as to defeat an Anti-SLAPP motion. In that context, the
court held that pre-suit investigations are protected petitioning activities such that
the deprivation of the right to engage in such conduct could give rise to claims
under 42 U.S.C. 1983. Tichinin, 177 Cal. App. 4th at 1073-74 (The issue here
is not whether Tichinins conduct qualifies for protection under the anti-SLAPP
statute but whether his conduct can be considered protected activity for purposes of
his [42 U.S.C. ] 1983 claim.). Because the plaintiff established a prima facie
case that he was engaged in constitutionally-protected conduct that the defendants
actions would deter or chill, the court concluded that the plaintiff had met his
burden and reversed the lower courts dismissal under the California anti-SLAPP
statute. Id. at 1088.
Even under Californias Anti-SLAPP statute, pre-suit conduct is not necessarily
protected. The plaintiff in People ex rel. 20th Cent. Ins. Co. v. Bldg. Permit
Consultants, Inc., 86 Cal. App. 4th 280 (2000), filed a lawsuit alleging the
defendants created damage reports that fraudulently attributed property damage to
an earthquake. Id. at 282-83. At the time defendants created and submitted their
reports and claims, there was no issue under consideration pending before any
48
tribunal. The defendants moved for dismissal under Californias anti-SLAPP
statute, claiming that the damage reports were made for potential litigation, and
therefore were protected petitioning activities. Id. In rejecting the defendants
argument, the court held that the pre-suit damage reports were not protected
because they were not created before or in connection with issues under
consideration or review by the courts or other governmental bodies. Id.
Even those documents that eventually were used in litigation were not immunized
by the anti-SLAPP statute because the ligation was not ongoing when the
documents were created. Id.
As applied to Mrs. Rathbuns specific complaints, Appellants claim that they
were engaged in pre-suit investigations does not preclude this litigation.
The Texas Act carefully defines the exercise of the right to petition. Tex. Civ.
Prac. & Rem. Code 27.001. Nothing in that definition covers pre-suit
investigation. Mrs. Rathbun clearly does not complain of any communications in
or pertaining to a judicial or governmental proceeding. She does not complain of
any communications made in connection with an issue under consideration or
review by a governmental body. She does not complain of any communications
that were reasonably likely to effect consideration of an issue by a governmental
body or likely to enlist public participation in an effort to effect consideration of an
issue by a governmental body. She does not complain about any communications
49
remotely having anything to do with discernment of possible intellectual property
infringement. The petitioning protections the Act was intended to afford simply do
not apply to Mrs. Rathbuns claims.
IV. THE TRIAL COURTS ORDER DENYING APPELLANTS TEXAS CITIZENS
PARTICIPATION ACT MOTIONS WAS APPROPRIATE BECAUSE MRS. RATHBUN
PRESENTED CLEAR AND CONVINCING EVIDENCE OF THE ELEMENTS OF HER
CLAIMS

Assuming for the sake of argument that the Court concludes Appellants met
their burden to establish that Mrs. Rathbuns claims arose from speech, petition, or
assembly activities and that the Court concludes it should consider the evidence
Mrs. Rathbun presented, rather than remand the case for the trial court to do so in
the first instance, a careful analysis of the evidence demonstrates that Appellants
motions were properly denied because Mrs. Rathbun demonstrated by clear and
specific evidence a prima facie case for each essential element of her claims.
Under the Texas Citizens Participation Act, prima facie evidence is the minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true. See In re Lipsky, 411 S.W.3d 530 (Tex. App.Fort Worth 2013,
orig. proceeding [mand. pending]) (quoting In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218, 223 (Tex. 2004)). Clear and specific evidence is evidence
unaided by presumptions, inferences or intendments. Sierra Club v. Andrews
County, 418 S.W.3d 711, 715 (Tex. App.El Paso, pet. filed). The requirement in
the Act that a plaintiff present clear and specific evidence of a prima facie case
50
refers to the plaintiffs burden of proof. There is nothing in the Act requiring, or
even permitting, a court to strike individual pieces of evidence that might not
individually constitute clear and specific evidence of a prima facie case.
A. Mrs. Rathbun Presented Clear and Specific Evidence of Intentional
Infliction of Emotional Distress

Contrary to Appellants arguments, Mrs. Rathbun presented clear and specific
evidence of the elements of her intentional infliction of emotional distress claim.
The elements of a claim of intentional infliction of emotional distress are:
(1) the plaintiff is a person; (2) the defendant acted intentionally or recklessly;
(3) the emotional distress suffered by the plaintiff was severe; (4) the defendants
conduct was extreme and outrageous; (5) the defendants conduct proximately
caused the plaintiffs emotional distress; and (6) no alternative cause of action
would provide a remedy for the severe emotional distress caused by the
Defendants conduct. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796
(Tex. 2006) (elements 2-5); Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d
438, 447 (Tex. 2004) (element 6); Haygood v. Chandler, No. 12-02-00239-CV,
2003 Tex. App. LEXIS 9344 (Tex. App.Tyler Oct. 31, 2003, pet. denied) (mem.
op.) (element 1).
It is undisputed that the complained of activity was intentional and aimed at a
person. Mrs. Rathbun presented clear and specific evidence of emotional distress
caused by the complained-of activity including alarm, anxiety, feeling physically
51
threatened, being unable to concentrate at work and increasingly unable to rest or
sleep, severe migraine headaches (with nausea and sensitivity to light), constant
fear for personal safety, fearful of leaving home, fear of strangers and an inability
to trust others, feeling overwhelmed by a feeling of helplessness, and depression.
41CR4842-49.
Mrs. Rathbun presented clear and specific evidence that the complained of
activity was extreme and outrageous, including being followed, subjected to
ongoing, real-time surveillance, public harassment, having her family, ex-husband,
and friends visited, being threatened, being visited at night by unidentified males
every time her husband was out of town, being attacked on web sites, learning that
Appellants had leased the house across the street equipped with still and video
cameras filming her familys every move 24/7/365 over several years, and after
going to extraordinary measures to get out of harms way in Comal County
discovering cameras on property adjacent to hers aimed at her home. Id.;
40CR4684, 4686, 4695-4702.
Mrs. Rathbuns claim for intentional infliction of emotional distress is not a
gap filler. Mrs. Rathbun has presented prima facie evidence that the purpose of
Appellants activities was to cause severe emotional distress. The years-long
concerted efforts to harass her using various methods, and the refusal to cease such
harassment, even after the Rathbuns moved from their home in Ingleside on the
52
Bay, Texas to Bulverde, Texas, cannot be fully redressed by any other torts.
Where, as here, a person is subjected to conduct intended or primarily likely to
produce severe emotional distress, Section 46 of the Restatement of Torts is the
applicable theory of recovery, even if the actors conduct also produces some other
harm. See Conley v. Driver, 175 S.W.3d 882, 888 (Tex. App.Texarkana 2005,
pet. denied).
B. Mrs. Rathbun Presented Clear and Convincing Evidence of Invasion of
Privacy by Intrusion on Seclusion

Mrs. Rathbun also presented sufficient evidence of the elements of intrusion on
seclusion. The elements of a claim for invasion of privacy by intrusion on
seclusion are: (1) the defendant intentionally intruded on the plaintiffs solitude,
seclusion, or private affairs; (2) the intrusion would be highly offensive to a
reasonable person; and (3) the plaintiff suffered an injury as a result of the
defendants intrusion. See Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993)
(elements 1, 2); Robinson v. Brannon, 313 S.W.3d 860, 867 (Tex. App.Houston
[14th Dist.] 2010, no pet.) (elements 1-3); K-Mart Corp. v. Trotti, 677 S.W.2d 632,
638 (Tex. App.Houston [1st Dist.] 1984), writ refd n.r.e., 686 S.W.2d 593
(Tex. 1985) (element 3). Mrs. Rathbun presented clear and specific evidence that
when her husband was out of town, Scientologists would come to her house to
question her, and that the Squirrel Busters harassment occurred starting in 2011
and continued for 199 days. 41CR4842-44; 40CR4698. Mrs. Rathbun was subject
53
to surveillance, was followed, was threatened, was followed by 5-6 men in golf
carts, was watched and filmed from a small boat in the canal behind the house, was
called names, was harassed and filmed at restaurants and the beach, and was
subjected to surveillance cameras directed at her Comal County home. 40CR4695,
4698-4700, 4702; 41CR4842-43, 4846-47. Mrs. Rathbun presented clear and
specific evidence that this activity caused her to leave her job, resulting in lost
income, and caused her to move, which caused economic damage. 40CR4701;
41CR4846-47.
The evidence of Appellants actions from 2009 to 2013, of repeatedly
photographing and videotaping Mrs. Rathbun openly and from hidden cameras,
following her to and from her place of work, following her to and from shopping,
following her to and from restaurants, visiting her family and friends, and visiting
her home when her husband was out of town constitutes a prima facie case of
invasion of privacy. See, e.g., Kramer v. Downey, 680 S.W.2d 524 (Tex. App.
Dallas 1984, writ refd n.r.e.) (persistent following of plaintiff in public places,
even though defendant kept her distance, held to be invasion of privacy warranting
injunction and damages).
C. Mrs. Rathbun Presented Clear and Specific Evidence of Invasion of
Privacy by Public Disclosure of Private Facts

The elements of a cause of action for invasion of privacy by public disclosure
of private facts are (1) the defendant publicized information about the plaintiffs
54
private life; (2) the publicity would be highly offensive to a reasonable person;
(3) the matter publicized is not of legitimate public concern; and (4) the plaintiff
suffered an injury as a result of the defendants disclosure. See Star-Telegram,
Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex.1995) (elements 1-3); K-Mart Corp.,
677 S.W.2d at 638 (intrusion-on-seclusion case; element 4). Mrs. Rathbun
presented clear and specific evidence that Scientology representative David Lubow
and other agents of CSI contacted her friends and family, spreading false
information about her husband telling them he was violent, after Mrs. Rathbuns
money, and that she was at risk. 41CR4820-21; 42CR4883. She presented clear
and specific evidence that Scientology investigators visited her mother, former
husband, and friends, claiming that her life was at risk as long as she remained
with her husband and disclosing private information about her husbands family.
40CR4684, 4686; 42CR4883. These disclosures would be highly offensive to a
reasonable person and are not of legitimate public concern.
D. Mrs. Rathbun Presented Clear and Convincing Evidence of Tortious
Interference

Finally, Mrs. Rathbun presented clear and specific evidence in support of her
tortious interference claim. The elements of a claim for tortious interference with
contract are (1) the plaintiff had a valid contract; (2) the defendant willingly and
intentionally interfered with the contract; (3) the interference proximately caused
the plaintiffs injury; and (4) the plaintiff incurred actual damage or loss.
55
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002). Mrs. Rathbun
presented clear and specific evidence that she was employed and that Appellants
went to the homes of, or spoke with, several co-workers, including the human
resources director, and inquired about and made accusations about
Mrs. Rathbuns relationship with her husband and their financial condition.
41CR4820-21; 42CR4883. Mrs. Rathbuns co-workers were told that Mr. Rathbun
was violent and that Mrs. Rathbun was at risk. 42CR4883. Mrs. Rathbun
presented clear and specific evidence that she left her job to make the harassment
stop and that she therefore lost income. 41CR4846.
V. THE TRIAL COURTS AWARD OF ATTORNEYS FEES WAS JUSTIFIED

The trial court properly awarded fees to Mrs. Rathbun, finding that
the methods in which the motions were litigatedresulted in hours of courtroom
time that could have been better spent elsewhere. 31CR3776. Section 27.009(b)
of the Texas Citizens Participation Act expressly allows an award of reasonable
attorneys fees and costs against the movant if the court finds the motion was
frivolous or solely intended to delay. CSI claims that the award of fees was
erroneous because the trial court found that the motion was not frivolous.
CSI Brief at 58-59. But the Act does not require that the motion be frivolous.
The use of the word or means that either finding is sufficient. The trial courts
finding that the motions were litigated in such a way as to intentionally cause delay
56
was supported by the evidence. Indeed, CSI does not even deny that fact.
Nor could it. Appellants failed to comply with Mrs. Rathbuns discovery requests,
even though the Texas Citizens Participation Act expressly allows limited
discovery, necessitating court intervention. 11RR6-75; 26CR3185-86
The courts finding warrants the award of fees under the statute. In the
alternative, should the Court find that the trial courts findings of fact did not
adequately address the issue, the Court should remand for further proceedings on
the issue of attorneys fees.
CONCLUSION AND PRAYER
The trial court carefully considered the facts before it and thoroughly analyzed
the applicable law. Its conclusion that Appellants motions under the Texas
Citizens Participation Act were without merit was correct and should be affirmed.
Should this Court conclude that the trial courts analysis was somehow in error, it
should remand the case to the trial court for further analysis of the parties shifting
burdens under the Act.
Monique Rathbun therefore prays that the Court affirm the trial courts order
denying Appellants motions to dismiss and awarding fees and costs against
Appellants and for such other and further relief to which she may be entitled.
57
Respectfully submitted,
PULMAN, CAPPUCCIO,
PULLEN, BENSON & JONES, LP
2161 NW Military Highway, Suite 400
www.pulmanlaw.com
(210) 222-9494 Telephone
(210) 892-1610 Facsimile
By: /s/ Leslie Sara Hyman
Elliott S. Cappuccio
Texas State Bar No. 24008419
ecappuccio@pulmanlaw.com
Leslie Sara Hyman
lhyman@pulmanlaw.com
Etan Z. Tepperman
etepperman@pulmanlaw.com
JEFFREY & MITCHELL, P. C.
Ray B. J effrey
Texas State Bar Number 10613700
A. Dannette Mitchell
Texas State Bar Number 24039061
2631 Bulverde Road, Suite 105
Bulverde, Texas 78163
(830) 438-8935 Telephone
(830) 438-4958 Facsimile
rjeffrey@sjmlawyers.com
dmitchell@sjmlawyers.com
THE WIEGAND LAW FIRM, P.C.
Marc F. Wiegand
434 North Loop 1604 West, Suite 2201
(210) 998-3289 Telephone
(210) 998-3179 Facsimile
marc@wiegandlawfirm.com
ATTORNEYS FOR APPELLEE
MONIQUE RATHBUN
58
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that,
excluding those parts allowed to be excluded, the foregoing Brief of Appellee
contains 13,524 words.

/s/ Leslie Sara Hyman
Leslie Sara Hyman

59
CERTIFICATE OF SERVICE
I certify that on the 31st day of J uly 2014, the foregoing Brief of Appellee has
been transmitted by electronic service and by e-mail or facsimile in accordance
with the requirements of the Texas Rules of Appellate Procedure addressed as
follows:
Mr. J onathan H. Hull
jhull@reaganburrus.com
Ms. Ashley B. Bowen
abowenl@reaganburrus.com
Reagan Burrus
401 Main Plaza, Suite 200
New Braunfels, Texas 78130

Mr. Eric M. Lieberman
rlieberman@rbskl.com
Rabinowitz, Boudin, Standard, Krinsky
& Lieberman PC
45 Broadway, Suite 1700
New York, New York 10006

Mr. Thomas S. Leatherbury
tleatherbury@velaw.com
Mr. Marc A. Fuller
mfuller@velaw.com
Vinson & Elkins LLP
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201

Mr. Ricardo Cedillo
rcedillo@lawdcm.com
Mr. Isaac J . Huron
ihuron@lawdcm.com
Mr. Les J . Strieber III
lstrieber@lawdcm.com
Davis Cedillo & Mendoza, Inc.
McCombs Plaza, Suite 500
755 East Mulberry Avenue

Mr. George H. Spencer, J r.
spencer@clemens-spencer.com
Clemens & Spencer
112 East Pecan Street, Suite 1300
San Antonio, Texas 78205-1531

Mrs. Stephanie S. Bascon
sbascon@att.net
Law Office of Stephanie S. Bascon
PLLC
297 West San Antonio Street
New Braunfels, Texas 78130

60

Mr. Gary D. Sarles
gsarles@sarleslaw.com
Mr. O. Paul Dunagan
dunagan@sarleslaw.com
900 J ackson Street, Suite 370
5202Dallas, Texas

/s/ Leslie Sara Hyman
61
NO. 03-14-00199-CV

IN THE
COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
______________
CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
APPELLANTS

VERSUS

MONIQUE RATHBUN
APPELLEE
____________________________

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

APPENDIX TO BRIEF OF APPELLEE

Tab Description
1 Chapter 27 of the Texas Civil Practice
and Remedies Code The Texas
Citizens Participation Act

CI VI L PRACTI CE AND REMEDI ES CODE

TI TLE 2. TRI AL, J UDGMENT, AND APPEAL

SUBTI TLE B. TRI AL MATTERS

CHAPTER 27. ACTI ONS I NVOLVI NG THE EXERCI SE OF CERTAI N
CONSTI TUTI ONAL RI GHTS

Sec. 27. 001. DEFI NI TI ONS. I n t hi s chapt er :
( 1) " Communi cat i on" i ncl udes t he maki ng or submi t t i ng
of a st at ement or document i n any f or mor medi um, i ncl udi ng
or al , vi sual , wr i t t en, audi ovi sual , or el ect r oni c.
( 2) " Exer ci se of t he r i ght of associ at i on" means a
communi cat i on bet ween i ndi vi dual s who j oi n t oget her t o
col l ect i vel y expr ess, pr omot e, pur sue, or def end common
i nt er est s.
( 3) " Exer ci se of t he r i ght of f r ee speech" means a
communi cat i on made i n connect i on wi t h a mat t er of publ i c
concer n.
( 4) " Exer ci se of t he r i ght t o pet i t i on" means any of
t he f ol l owi ng:
( A) a communi cat i on i n or per t ai ni ng t o:
( i ) a j udi ci al pr oceedi ng;
( i i ) an of f i ci al pr oceedi ng, ot her t han a
j udi ci al pr oceedi ng, t o admi ni st er t he l aw;
( i i i ) an execut i ve or ot her pr oceedi ng
bef or e a depar t ment of t he st at e or f eder al gover nment or a
subdi vi si on of t he st at e or f eder al gover nment ;
( i v) a l egi sl at i ve pr oceedi ng, i ncl udi ng a
pr oceedi ng of a l egi sl at i ve commi t t ee;
( v) a pr oceedi ng bef or e an ent i t y t hat
r equi r es by r ul e t hat publ i c not i ce be gi ven bef or e pr oceedi ngs
of t hat ent i t y;

( vi ) a pr oceedi ng i n or bef or e a managi ng
boar d of an educat i onal or el eemosynar y i nst i t ut i on suppor t ed
di r ect l y or i ndi r ect l y f r ompubl i c r evenue;
( vi i ) a pr oceedi ng of t he gover ni ng body of
any pol i t i cal subdi vi si on of t hi s st at e;
( vi i i ) a r epor t of or debat e and st at ement s
made i n a pr oceedi ng descr i bed by Subpar agr aph ( i i i ) , ( i v) , ( v) ,
( vi ) , or ( vi i ) ; or
( i x) a publ i c meet i ng deal i ng wi t h a publ i c
pur pose, i ncl udi ng st at ement s and di scussi ons at t he meet i ng or
ot her mat t er s of publ i c concer n occur r i ng at t he meet i ng;
( B) a communi cat i on i n connect i on wi t h an i ssue
under consi der at i on or r evi ew by a l egi sl at i ve, execut i ve,
j udi ci al , or ot her gover nment al body or i n anot her gover nment al
or of f i ci al pr oceedi ng;
( C) a communi cat i on t hat i s r easonabl y l i kel y t o
encour age consi der at i on or r evi ew of an i ssue by a l egi sl at i ve,
execut i ve, j udi ci al , or ot her gover nment al body or i n anot her
gover nment al or of f i ci al pr oceedi ng;
( D) a communi cat i on r easonabl y l i kel y t o enl i st
publ i c par t i ci pat i on i n an ef f or t t o ef f ect consi der at i on of an
i ssue by a l egi sl at i ve, execut i ve, j udi ci al , or ot her
gover nment al body or i n anot her gover nment al or of f i ci al
pr oceedi ng; and
( E) any ot her communi cat i on t hat f al l s wi t hi n
t he pr ot ect i on of t he r i ght t o pet i t i on gover nment under t he
Const i t ut i on of t he Uni t ed St at es or t he const i t ut i on of t hi s
st at e.
( 5) " Gover nment al pr oceedi ng" means a pr oceedi ng,
ot her t han a j udi ci al pr oceedi ng, by an of f i cer , of f i ci al , or
body of t hi s st at e or a pol i t i cal subdi vi si on of t hi s st at e,
i ncl udi ng a boar d or commi ssi on, or by an of f i cer , of f i ci al , or
body of t he f eder al gover nment .
( 6) " Legal act i on" means a l awsui t , cause of act i on,
pet i t i on, compl ai nt , cr oss- cl ai m, or count er cl ai mor any ot her

j udi ci al pl eadi ng or f i l i ng t hat r equest s l egal or equi t abl e
r el i ef .
( 7) " Mat t er of publ i c concer n" i ncl udes an i ssue
r el at ed t o:
( A) heal t h or saf et y;
( B) envi r onment al , economi c, or communi t y wel l -
bei ng;
( C) t he gover nment ;
( D) a publ i c of f i ci al or publ i c f i gur e; or
( E) a good, pr oduct , or ser vi ce i n t he
mar ket pl ace.
( 8) " Of f i ci al pr oceedi ng" means any t ype of
admi ni st r at i ve, execut i ve, l egi sl at i ve, or j udi ci al pr oceedi ng
t hat may be conduct ed bef or e a publ i c ser vant .
( 9) " Publ i c ser vant " means a per son el ect ed,
sel ect ed, appoi nt ed, empl oyed, or ot her wi se desi gnat ed as one of
t he f ol l owi ng, even i f t he per son has not yet qual i f i ed f or
of f i ce or assumed t he per son' s dut i es:
( A) an of f i cer , empl oyee, or agent of
gover nment ;
( B) a j ur or ;
( C) an ar bi t r at or , r ef er ee, or ot her per son who
i s aut hor i zed by l aw or pr i vat e wr i t t en agr eement t o hear or
det er mi ne a cause or cont r over sy;
( D) an at t or ney or not ar y publ i c when
par t i ci pat i ng i n t he per f or mance of a gover nment al f unct i on; or
( E) a per son who i s per f or mi ng a gover nment al
f unct i on under a cl ai mof r i ght but i s not l egal l y qual i f i ed t o
do so.

Added by Act s 2011, 82nd Leg. , R. S. , Ch. 341 ( H. B. 2973) , Sec.
2, ef f . J une 17, 2011.

Sec. 27. 002. PURPOSE. The pur pose of t hi s chapt er i s t o
encour age and saf eguar d t he const i t ut i onal r i ght s of per sons t o
pet i t i on, speak f r eel y, associ at e f r eel y, and ot her wi se

par t i ci pat e i n gover nment t o t he maxi mumext ent per mi t t ed by l aw
and, at t he same t i me, pr ot ect t he r i ght s of a per son t o f i l e
mer i t or i ous l awsui t s f or demonst r abl e i nj ur y.

2, ef f . J une 17, 2011.

Sec. 27. 003. MOTI ON TO DI SMI SS. ( a) I f a l egal act i on i s
based on, r el at es t o, or i s i n r esponse t o a par t y' s exer ci se of
t he r i ght of f r ee speech, r i ght t o pet i t i on, or r i ght of
associ at i on, t hat par t y may f i l e a mot i on t o di smi ss t he l egal
act i on.
( b) A mot i on t o di smi ss a l egal act i on under t hi s sect i on
must be f i l ed not l at er t han t he 60t h day af t er t he dat e of
ser vi ce of t he l egal act i on. The cour t may ext end t he t i me t o
f i l e a mot i on under t hi s sect i on on a showi ng of good cause.
( c) Except as pr ovi ded by Sect i on 27. 006( b) , on t he f i l i ng
of a mot i on under t hi s sect i on, al l di scover y i n t he l egal
act i on i s suspended unt i l t he cour t has r ul ed on t he mot i on t o
di smi ss.

2, ef f . J une 17, 2011.

Sec. 27. 004. HEARI NG. ( a) A hear i ng on a mot i on under
Sect i on 27. 003 must be set not l at er t han t he 60t h day af t er t he
dat e of ser vi ce of t he mot i on unl ess t he docket condi t i ons of
t he cour t r equi r e a l at er hear i ng, upon a showi ng of good cause,
or by agr eement of t he par t i es, but i n no event shal l t he
hear i ng occur mor e t han 90 days af t er ser vi ce of t he mot i on
under Sect i on 27. 003, except as pr ovi ded by Subsect i on ( c) .
( b) I n t he event t hat t he cour t cannot hol d a hear i ng i n
t he t i me r equi r ed by Subsect i on ( a) , t he cour t may t ake j udi ci al
not i ce t hat t he cour t ' s docket condi t i ons r equi r ed a hear i ng at
a l at er dat e, but i n no event shal l t he hear i ng occur mor e t han

90 days af t er ser vi ce of t he mot i on under Sect i on 27. 003, except
as pr ovi ded by Subsect i on ( c) .
( c) I f t he cour t al l ows di scover y under Sect i on 27. 006( b) ,
t he cour t may ext end t he hear i ng dat e t o al l ow di scover y under
t hat subsect i on, but i n no event shal l t he hear i ng occur mor e
t han 120 days af t er t he ser vi ce of t he mot i on under Sect i on
27. 003.

2, ef f . J une 17, 2011.
Amended by:
Act s 2013, 83r d Leg. , R. S. , Ch. 1042 ( H. B. 2935) , Sec. 1,
ef f . J une 14, 2013.

Sec. 27. 005. RULI NG. ( a) The cour t must r ul e on a mot i on
under Sect i on 27. 003 not l at er t han t he 30t h day f ol l owi ng t he
dat e of t he hear i ng on t he mot i on.
( b) Except as pr ovi ded by Subsect i on ( c) , on t he mot i on of
a par t y under Sect i on 27. 003, a cour t shal l di smi ss a l egal
act i on agai nst t he movi ng par t y i f t he movi ng par t y shows by a
pr eponder ance of t he evi dence t hat t he l egal act i on i s based on,
r el at es t o, or i s i n r esponse t o t he par t y' s exer ci se of :
( 1) t he r i ght of f r ee speech;
( 2) t he r i ght t o pet i t i on; or
( 3) t he r i ght of associ at i on.
( c) The cour t may not di smi ss a l egal act i on under t hi s
sect i on i f t he par t y br i ngi ng t he l egal act i on est abl i shes by
cl ear and speci f i c evi dence a pr i ma f aci e case f or each
essent i al el ement of t he cl ai mi n quest i on.
( d) Not wi t hst andi ng t he pr ovi si ons of Subsect i on ( c) , t he
cour t shal l di smi ss a l egal act i on agai nst t he movi ng par t y i f
t he movi ng par t y est abl i shes by a pr eponder ance of t he evi dence
each essent i al el ement of a val i d def ense t o t he nonmovant ' s
cl ai m.

2, ef f . J une 17, 2011.
Amended by:
ef f . J une 14, 2013.

Sec. 27. 006. EVI DENCE. ( a) I n det er mi ni ng whet her a
l egal act i on shoul d be di smi ssed under t hi s chapt er , t he cour t
shal l consi der t he pl eadi ngs and suppor t i ng and opposi ng
af f i davi t s st at i ng t he f act s on whi ch t he l i abi l i t y or def ense
i s based.
( b) On a mot i on by a par t y or on t he cour t ' s own mot i on
and on a showi ng of good cause, t he cour t may al l ow speci f i ed
and l i mi t ed di scover y r el evant t o t he mot i on.

2, ef f . J une 17, 2011.

Sec. 27. 007. ADDI TI ONAL FI NDI NGS. ( a) At t he r equest of
a par t y maki ng a mot i on under Sect i on 27. 003, t he cour t shal l
i ssue f i ndi ngs r egar di ng whet her t he l egal act i on was br ought t o
det er or pr event t he movi ng par t y f r omexer ci si ng const i t ut i onal
r i ght s and i s br ought f or an i mpr oper pur pose, i ncl udi ng t o
har ass or t o cause unnecessar y del ay or t o i ncr ease t he cost of
l i t i gat i on.
( b) The cour t must i ssue f i ndi ngs under Subsect i on ( a) not
l at er t han t he 30t h day af t er t he dat e a r equest under t hat
subsect i on i s made.

2, ef f . J une 17, 2011.

Sec. 27. 008. APPEAL. ( a) I f a cour t does not r ul e on a
mot i on t o di smi ss under Sect i on 27. 003 i n t he t i me pr escr i bed by

Sect i on 27. 005, t he mot i on i s consi der ed t o have been deni ed by
oper at i on of l aw and t he movi ng par t y may appeal .
( b) An appel l at e cour t shal l expedi t e an appeal or ot her
wr i t , whet her i nt er l ocut or y or not , f r oma t r i al cour t or der on
a mot i on t o di smi ss a l egal act i on under Sect i on 27. 003 or f r om
a t r i al cour t ' s f ai l ur e t o r ul e on t hat mot i on i n t he t i me
pr escr i bed by Sect i on 27. 005.
( c) Repeal ed by Act s 2013, 83r d Leg. , R. S. , Ch. 1042, Sec.
5, ef f . J une 14, 2013.

2, ef f . J une 17, 2011.
Amended by:
ef f . J une 14, 2013.

Sec. 27. 009. DAMAGES AND COSTS. ( a) I f t he cour t or der s
di smi ssal of a l egal act i on under t hi s chapt er , t he cour t shal l
awar d t o t he movi ng par t y:
( 1) cour t cost s, r easonabl e at t or ney' s f ees, and
ot her expenses i ncur r ed i n def endi ng agai nst t he l egal act i on as
j ust i ce and equi t y may r equi r e; and
( 2) sanct i ons agai nst t he par t y who br ought t he l egal
act i on as t he cour t det er mi nes suf f i ci ent t o det er t he par t y who
br ought t he l egal act i on f r ombr i ngi ng si mi l ar act i ons descr i bed
i n t hi s chapt er .
( b) I f t he cour t f i nds t hat a mot i on t o di smi ss f i l ed
under t hi s chapt er i s f r i vol ous or sol el y i nt ended t o del ay, t he
cour t may awar d cour t cost s and r easonabl e at t or ney' s f ees t o
t he r espondi ng par t y.

2, ef f . J une 17, 2011.

Sec. 27. 010. EXEMPTI ONS. ( a) Thi s chapt er does not appl y
t o an enf or cement act i on t hat i s br ought i n t he name of t hi s

st at e or a pol i t i cal subdi vi si on of t hi s st at e by t he at t or ney
gener al , a di st r i ct at t or ney, a cr i mi nal di st r i ct at t or ney, or a
count y at t or ney.
( b) Thi s chapt er does not appl y t o a l egal act i on br ought
agai nst a per son pr i mar i l y engaged i n t he busi ness of sel l i ng or
l easi ng goods or ser vi ces, i f t he st at ement or conduct ar i ses
out of t he sal e or l ease of goods, ser vi ces, or an i nsur ance
pr oduct , i nsur ance ser vi ces, or a commer ci al t r ansact i on i n
whi ch t he i nt ended audi ence i s an act ual or pot ent i al buyer or
cust omer .
( c) Thi s chapt er does not appl y t o a l egal act i on seeki ng
r ecover y f or bodi l y i nj ur y, wr ongf ul deat h, or sur vi val or t o
st at ement s made r egar di ng t hat l egal act i on.
( d) Thi s chapt er does not appl y t o a l egal act i on br ought
under t he I nsur ance Code or ar i si ng out of an i nsur ance
cont r act .

2, ef f . J une 17, 2011.
Amended by:
ef f . J une 14, 2013.

Sec. 27. 011. CONSTRUCTI ON. ( a) Thi s chapt er does not
abr ogat e or l essen any ot her def ense, r emedy, i mmuni t y, or
pr i vi l ege avai l abl e under ot her const i t ut i onal , st at ut or y, case,
or common l aw or r ul e pr ovi si ons.
( b) Thi s chapt er shal l be const r ued l i ber al l y t o
ef f ect uat e i t s pur pose and i nt ent f ul l y.

2, ef f . J une 17, 2011.

Monique Rathbun v. Scientology: Brief of Appelle e

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