monique rathbun v. scientology: appellant bench book

8/11/2019 Monique Rathbun v. Scientology: Appellant Bench Book

http://slidepdf.com/reader/full/monique-rathbun-v-scientology-appellant-bench-book 1/22

No. 03-14-00199-CV

______________________________________ COURT OF APPEALS

THIRD JUDICIAL DISTRICT OF TEXASAUSTIN, TEXAS

______________________________________

CHURCH OF SCIENTOLOGY INTERNATIONAL,

Appellant ,

v.

MONIQUE RATHBUN,

Appellee.

______________________________________

BENCH BOOK OF APPELLANT

CHURCH OF SCIENTOLOGY INTERNATIONAL

______________________________________

On Appeal from the 207th Judicial District Court

of Comal County, TexasTrial Court No. C-2013-1082B

Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding

______________________________________ Of Counsel:

Eric M. Lieberman

R ABINOWITZ, BOUDIN, STANDARD,K RINSKY & LIEBERMAN PC

45 Broadway, Suite 1700 New York, New York 10006

Telephone: 212.254.1111

Facsimile: [email protected]

Thomas S. Leatherbury

State Bar No. 12095275Marc A. Fuller

State Bar No. 24032210VINSON & ELKINS LLP

Trammell Crow Center 2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

Telephone: 214.220.7792Facsimile: [email protected]

[email protected]

A

03-14-0

THIRD COURT OF

AUSTI

9/23/2014 2:

JEFFREY



Ricardo G. Cedillo

State Bar No. 04043600Isaac J. Huron

State Bar No. 24032447

Les J. Strieber IIIState Bar No. 19398000

DAVIS, CEDILLO & MENDOZA, I NC.McCombs Plaza, Suite 500

755 E. Mulberry AvenueSan Antonio, Texas 78212

Telephone: 210.822.6666Facsimile: 210.822.1151

[email protected]@lawdcm.com

[email protected]

George H. Spencer, Jr.State Bar No. 18921001

CLEMENS & SPENCER

112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531Telephone: 210.227.7121


Attorneys for Appell ant Chur ch of Scientology I ntern ational



TABLE OF CONTENTS

Tab Document Page(s)

1. Texas Civil Practice & Remedies Code § 27.001 et seq.

1-6

2. The “Commercial Speech” Exemption Does Not Apply. 7

3. Timeline of Events. 8-9

4. The TCPA Applies to Plaintiff’s Claims. 10

5. Plaintiff’s Claims Must Be Dismissed. 11



Tab 1



Vernon's Texas Statutes and Codes Annotated Currentness

Civil Practice and Remedies Code (Refs Annos)

Title 2. Trial, Judgment, and Appeal

li Subtitle B. Trial Matters

-+ Chapter 27. Actions Involving the Exercise

o

Certain Constitutional Rights (Refs & Annos)

-+

§ 27.001. Definitions

In this chapter:

Page 1

(1) Communication includes the making or submitting o a statement or document in any form or medium, in

cluding oral, visual, written, audiovisual, or electronic.

(2) Exercise

o

the right o association means a communication between individuals who join together to collec

tively express, promote, pursue, or defend common interests.

(3) Exercise

o

the right

o

free speech means a communication made in connection with a matter

o

public

concern.

(4) Exercise o the right to petition means any o the following:

(A) a communication in or pertaining to:

(i) a judicia l proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

iii)

an executive or other proceeding before a department o the state or federal government or a subdivision o

the state or federal government;

(iv) a legislative proceeding, including a proceeding o a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings

o

that

entity;

(vi) a proceeding in or before a managing board

o

an educational or eleemosynary institution supported di

rectly or indirectly from public revenue;

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.



Page

(vii) a proceeding

of

the governing body of any political subdivision

of

this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi),

or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or

other matters

of

public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive,

ju-

dicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative,

executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely

to

enlist public participation in an effort to effect consideration

of

an issue

by a legislative, executive, judicial, or other governmental body or in another governmental or official proceed

ing; and

(E) any other communication that falls within the protection of the right to petition government under the Con

stitution

of

the United States or the constitution of this state.

(5) Governmental proceeding means a proceeding, other than a judicial proceeding, by an officer, official, or body

of

his state or a political subdivision of this state, including a board or commission, or by an officer, official, or

body of the federal government.

(6) Legal action means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other

judic ial pleading or filing that requests legal or equitable relief.

(7) Matter ofpublic concern includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.




Page 3

(8) Official proceeding means any type

of

administrative, executive, legislative, or judicial proceeding that may

be conducted before a public servant.

(9) Public servant means a person elected, selected, appointed, employed, or otherwise designated as one of the

following, even i f he person has not yet qualified for office

or

assumed the person's duties:

(A) an officer, employee, or agent of government;

B)

ajuror

(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or de

termine a cause or controversy;

D) an attorney or notary public when participating in the performance of a governmental function; or

(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

-+§ 27.002. Purpose

The

of

this chapter is to encourage and safeguard the constitutional rights

of

persons to petition, speak

freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the

same time, protect the rights ofa person to file meritorious lawsuits for demonstrable injury.

-+§ 27.003. Motion to Dismiss

(a)

f

a legal action is based on, relates to, or is in response

to

a party's exercise of the right of free speech, right to

petition, or right of association, that party may file a motion to dismiss the legal action.

(b) motion to dismiss a legal action under this section must be filed not later than the 60th day after the date

of

service of he legal action. The court may extend the time to file a motion under this section on a showing of good

cause.

( c) Except s provided by Section 27 .006(b ), on the filing of a motion under this section, all discovery in the legal

action is suspended until the court has ruled on the motion to dismiss.

-+§ 27.004. Hearing

(a) A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service

of

he

motion unless the docket conditions of the court require a later hearing, upon a showing of good cause,

or

by

agreement of the parties, but in no event shall the hearing occur more than 90 days after service of he motion under

©

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.



Page4

Section 27.003, except as provided by Subsection (c).

(b) In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take ju

dicial notice that the court s docket conditions required a hearing at a later date, but in no event shall the hearing

occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).

(c) f he court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery

under that subsection, but in

no

event shall the hearing occur more than 120 days after the service of the motion

under Section 27.003.

- §

27.005.

uling

(a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of he

hearing on the motion.

(b) Except as provided by Subsection (c), on the motion ofa party under Section 27.003, a court shall dismiss a legal

action against the moving party ifthe moving party shows by a preponderance of he evidence that the legal action s

based on, relates to, or is in response to the party s exercise of:

( 1) the right of free speech;

(2) the right to petition; or

(3) the right

of

association.

(c) The court may not dismiss a legal action under this section

ifthe

party bringing the legal action establishes by

clear and specific evidence a prima facie case for each essential element of the claim in question.

(d) Notwithstanding the provisions

of

Subsection (c), the court shall dismiss a legal action against the moving party

if the moving party establishes by a preponderance of he evidence each essential element of a valid defense to the

nonmovant s claim.

-+§

27.006. Evidence

(a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the

pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.

(b)

On

a motion by a party or on the court s own motion and on a showing of good cause, the court may allow

specified and limited discovery relevant to the motion.




Page 5

-+ § 27.007. Additional Findings

(a) At the request

ofa

party making a motion under Section 27.003, the court shall issue findings regarding whether

the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought

for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost

of

litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that

subsection is made.

-+§ 27.008.

Appeal

(a)

Ifa

court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the

motion is considered to have been denied by operation of law and the moving party may appeal.

(b) n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on

a motion to dismiss a legal action under Section 27.003 or from a trial court s failure to rule on that motion in the

time prescribed by Section 27.005.

(c) Repealed by Acts 2013, 83rd Leg., ch. 1042 {H.B. 2935), § 5 .

-+

§ 27.009. Damages and Costs

(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

{l

court costs, reasonable attorney s fees, and other expenses incurred in defending against the legal action as jus

tice and equity may require; and

(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who

brought the legal action from bringing similar actions described n this chapter.

(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the

court may award court costs and reasonable attorney s fees to the responding party.

-+§ 27.010. Exemptions

(a) This chapter does not apply to an enforcement action that is brought in the name of his state or a political sub

division of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.

(b) \Ibis 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 ofgoods, services, or an in-




Page 6

surance product, insurance services, or a commercial transaction in which the intended audience is an actual or

potential buyer or customer.

c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to

statements made regarding tha t legal action.

d) This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance

contract.

- §

27.011.

onstruction

a) This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other

constitutional, statutory, case, or common law or rule provisions.

b) This chapter shall be construed liberally to effectuate its purpose and intent fully.

END OF DOCUMENT




Tab 2



The “Commercial Speech” Exemption

Does Not Apply.

Is the Defendant

“primarily engaged in the

business of selling or

leasing goods or

services”?

Does “the statement or

conduct arise[] out of the

sale or lease of goods,

services, . . . or a

commercial transaction in

which the intended audienceis an actual or potential

buyer or customer.”

No

No

Yes

ExemptionDoes Not

Apply.

TCPA § 27.010(b)



Tab 3



004 2005 2006 2007 2008 2009 2010 2011

Rathbun leavesChurch staff.(1CR148)

Monty Drake begins investigationor potential trademark violations.(3CR395-396; 1CR152-53)

J a n

2 1

F e b

J u n

2 1

O c t 2 2

M a r 2 9

ABC Nightline airsinterview with Rathbun,

attacking the Church.(1CR150)

A p r 1 4

A p r

A u g

2 6

S e p

O c t

A p r 1

R a t h b u n s a c t i o n s

D e f e n D a n t s a c

t i o n s

S e p

D e c

A p r 1 8

J u n

J u n 1 0

J u n - S e p

Squirrel Busters’ first visit to Rathbun’shome. Tey leave three days later anddo not return until June. (2CR283)

Squirrel Busters returnto Ingleside. (26CR312

An investigatorinterviews Franklyn

Carle as part oRathbun investigation.(47CR5398)

Rathbun moves to “Casablanca,” “inorder to be better prepared to deliver” his version o Scientology services. (1CR150)

Monty Drake investigates rumors oMarty Rathbun’s death. Afer a dayor two, Drake determines Rathbunis alive and ends investigation.(21CR2507-08)

M a y

Te same man comesto Monique’s door asecond time whenRathbun is out o town.(29CR3503-04)

A man comes to Monique’sdoor at night when Rathbunis out o town, and asks herabout Rathbun’s connection toScientology. (29CR3503-04)

A p r

J a n

1 5

J u n 2

J

u n - S e p

S e p

2 9

Lubow interviews ormerco-worker anya orrezas part o Rathbuninvestigation. (49CR5595)

John Brousseau leavesChurch staff, stealingcomputer files and bringingthem to Rathbun. (4SCR81)

Rathbun posts a craigslist adoffering “Scientology” counseling.(4CR472)

Rathbun begins Internet blog, whichrequently publishes attacks on theChurch. (1CR152)

Rathbun appears on CNN,attacking the Church.(1CR151)

Rathbun issued policewarning or trespassingat the Church’s acility inClearwater, FL. (1CR153)

Rathbun gives interview orampa Bay imes article,attacking the Church.(15CR1882)

Rathbun posts videos o the SBusters on You

(44CR5072)

Monique gives notice ather job. (40CR4698)

A woman named “Anna” comes tothe porch o the house when Rathbunis out o town. Monique ollows herand photographs the man in her car.

(29CR3503-04)

Criminal complaint filedagainst Montalvo or thefo hard drives. (33CR4012;34CR4067-74)

A man knocks on the door to Monique’shouse when Rathbun is out o town.He starts to scream at her, then walksaway. Monique ollows him down thestreet with her camera, taking photos.(29CR3503)

Squirrel Busters postat least 14 videos onYouube. (44CR5072)

Lubow interviews Melissa Montanaas part o Rathbun investigation, aferMonique lef her job. (48CR5532-33)

Criminal complaint made toRiverside Sheriff’s Departmentregarding Brousseau’s thefo proprietary materials.(10CR1204-05)

Rathbun involves himsel in litigationagainst CSI and other Scientology entities.(36CR4252)

Rathbun goes to Church acilityin Caliornia, and impersonatesChurch executive in unsuccessul

attempt to get a staff member toleave the Church. (44CR5069)

Staff member Daniel Montalvo steals hard drivesrom Church, taking them to a house whereRathbun is waiting (with Monique present).(1CR153-54)

Rathbun blog post encourages Church staffmembers who decide to leave the Church tosteal documents. (1CR153)

* Plaintiff attributes some o these actions to Deendants withoutclear and specific evidence o Deendants’ involvement.



2012 2013

Rathbun states he is in“year three” o a 5 year planto “make irrelevant” theChurch. (37CR4347) M

a r 1 8

Rathbun publishesTe Scientology Reformation.(33CR3983)

O c t 1 0

O c t 2 5

Rathbuns move to Comal County.(38CR4509)

D e c 1

D e c 1 1

Sloat sets up camera that takesphotos o Rathbuns’ driveway.(2CR302-04) E

a r l y

2 0 1 3

J u n

1 7

J u l 2 7

Rathbun discovers Drake’scameras. (40CR4700) O

c t

Rathbun and Monique fly toGermany so that Rathbun cantake part in anti-Scientologypress conerence. (1CR108)

S e p

German V show airs, showingMonique being interviewed in herliving room. (33CR3985; 4CR512)

Last photo taken bySloat’s camera. (2CR304)

A u g

1 6 , 2 0 1 1

Squirrel Busters leave inSeptember, and Monique’slie goes “back to beingnormal.” (26CR3124,3RR156)

S e p

J u l

Channel 4 in the UK airs a showabout the Rathbuns, eaturinginterviews with them inside theirhome. (33CR3984-85)

Rathbun discovers Sloat’scamera. (41CR4847-49) J

u l

According to Monique,unknown “agents” ollowher by car and ollow herinto her workplace and intoSam’s Store. (41CR4848)

August 16, 2011

Cut-off date for statute of

limitations for all claims.

August 16, 2013

Lawsuit fled.

Rathbun posts “A alk to OSA” videoencouraging Church staff to leave, stealdocuments, and bring them to Rathbun.(14RR Ex. 2)

Rathbun voluntarily gives an “examination underoath,” in a case in Florida, disclosing alleged

attorney-client inormation later publicly reutedby a Florida state judge. (25CR2999) N

o v 9

Rathbun files two declarationsin another case in Florida.(36CR4280)

M a r / A p r

UK Indepedent publishesanti-Scientology article basedon interview o Rathbun at his

home. (4CR516, 33CR3985) A p r 7



Tab 4



The TCPA Applies to Plaintiff’s Claims.

OR

OR

Speech on a matter of public concern . . . Speech related to a public figure, TCPA § 27.001(7)(D);

or

Speech related to an issue of “community well-being,” TCPA §

27.001(7)(B).

Exercise of the right of association . . .

“. . . a communication between individuals who join together to

collectively express, promote, pursue, or defend common interests.”

TCPA § 27.001(2)

Exercise of the right of petition . . .

Investigation relating to potential civil proceedings, TCPA §

27.001(4)(A)(i);

or

Investigation relating to law enforcement or other official

proceeding, TCPA § 27.001(4)(A)(ii);

or

Any other communication that falls within the protection of theright to petition government under the Constitution of the

United States or the constitution of this state, TCPA §27.001(4)(A)(E).



Tab 5



Plaintiff’s Claims Must Be Dismissed.

Public Disclosure of Private Facts:

Plaintiff’s claim is barred by the two-year statute of limitations.

Plaintiff cannot rely on allegedly false statements.

Plaintiff cannot rely on statements about others (e.g., her husband or hisfamily).

Plaintiff cannot rely on statements that were not widely publicized .

Intrusion into Seclusion

Plaintiff fails to identify any trespass or other actionable intrusion.

Tortious Interference with Contract

Plaintiff’s claim is barred by the two-year statute of limitations.

Plaintiff does not identify any breach of contract by her employer.

Plaintiff does not identify any action by Defendants that caused a breach of

contract.

Intentional Infliction of Emotional Distress

Plaintiff’s claim is an improper “gap filler.”

Plaintiff fails to identify any outrageous conduct by Defendants.

The First Amendment protects Defendants’ public protests and documentary

filmmaking.



Respectfully submitted,

/s/ Thomas S. Leatherbury


State Bar No. 12095275Marc A. Fuller

State Bar No. 24032210VINSON & ELKINS L.L.P.

2001 Ross Avenue, Suite 3700Dallas, Texas 75201-2975

Telephone: 214.220.7792Facsimile: 214.999.7792

[email protected]@velaw.com

Ricardo G. Cedillo

State Bar No. 04043600

Isaac J. Huron

State Bar No. 24032447Les J. Strieber III

State Bar No. 19398000Davis, Cedillo & Mendoza, Inc.

McCombs Plaza, Suite 500

755 E. Mulberry Avenue

San Antonio, Texas 78212Telephone: 210.822.6666


[email protected]



George H. Spencer, Jr.

State Bar No. 18921001Clemens & Spencer

112 E. Pecan Street, Suite 1300

San Antonio, Texas 78205-1531Telephone: 210.227.7121


Of Counsel:

Eric M. Lieberman

R ABINOWITZ, BOUDIN, STANDARD,K RINSKY & LIEBERMAN PC

45 Broadway, Suite 1700 New York, New York 10006

Telephone: 212.254.1111

Facsimile: 212.674.4614

[email protected]

Attorneys for A ppell ant Chur ch of

Scientology I nter national



CERTIFICATE OF SERVICE

The undersigned certifies that on the 23rd day of September 2014, theforegoing Bench Book for Appellant Church of Scientology International was

served on the following attorneys in accordance with the requirements of the Texas

Rules of Appellate Procedure via electronic filing or email.

Ray B. Jeffrey

JEFFREY & MITCHELL, P . C .2631 Bulverde Road, Suite 105

Bulverde, TX 78163

Marc F. Wiegand

THE WIEGAND LAW FIRM, P.C.434 N. Loop 1604 West,

Suite 2201San Antonio, TX 78232

Elliott S. Cappuccio

PULMAN, CAPPUCCIO PULLEN

& BENSON, LLP

2161 N.W. Military Hwy., #400San Antonio, TX 78213

Lamont A. Jefferson

HAYNES & BOONE LLP112 E. Pecan Street, Suite 1200

San Antonio, TX 78205-1540

J. Iris Gibson

HAYNES & BOONE LLP600 Congress Ave., Suite 1300

Austin, TX 78701

Jonathan H. Hull

R EAGAN BURRUS

401 Main Plaza, Suite 200

New Braunfels, TX 78130

O. Paul DunaganSARLES & OUIMET

370 Founders Square

900 Jackson StreetDallas, TX 75202

Bert H. Deixler K ENDALL BRILL K LIEGER

10100 Santa Monica Blvd.,

Suite 1725Los Angeles, CA 90067

Stephanie S. Bascon

LAW OFFICE OF STEPHANIE S.BASCON, PLLC

297 W. San Antonio Street New Braunfels, TX 78130

Wallace B. Jefferson

Rachel EkeryALEXANDER DUBOSE JEFFERSON

& TOWNSEND, LLP515 Congress Avenue, Suite 2350

Austin, TX 78701

/s/ Thomas S. Leatherbury


monique rathbun v. scientology: appellant bench book

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