July 21, 2015

                               NO. 03-14-000199-CV
                                                                      RECEIVED IN
                                                                 3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                   IN THE                        6/24/2015 5:24:39 PM
                          COURT OF APPEALS FOR THE                 JEFFREY D. KYLE
                       THIRD COURT OF APPEALS DISTRICT
                                                                         Clerk

                               AUSTIN, TEXAS
                               ______________

              CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
                             APPELLANTS

                                        VERSUS

                                MONIQUE RATHBUN
                                   APPELLEE
                                 ______________

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


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



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

     Supplemental Authority of Appellant Church of Scientology, respectfully showing

     the Court as follows:
     Appellant Church of Scientology International (“CSI”) filed its second Notice of

Supplemental Authority to bring to the Court’s attention four opinions applying the

Texas Citizen’s Participation Act (“TCPA”):

     • In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015);

     • Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex. App.—
       Austin, May 1, 2015, no pet. h.).

     • Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155
       (Tex. App.—Austin Apr. 7, 2015, no pet. h.); and

     • Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025 (Tex. Apr. 24,
       2015) (per curiam).

Because Mrs. Rathbun believes that CSI has misstated the relevance of these

opinions to the case before the Court, Mrs. Rathbun files this brief response to CSI’s

notice.

A.      In re Lipsky

     In In re Lipsky, No. 13-0928, 2015 WL 1870073 (Tex. Apr. 24, 2015), the Texas

Supreme Court recognized that “[t]he TCPA’s purpose is to identify and summarily

dispose of lawsuits designed only to chill First Amendment rights, not to dismiss

meritorious lawsuits.” Id. at *6 (emphasis added). The court then made clear that

when faced with a showing in a TCPA motion that the claims arise from protected

activity, the non-movant’s burden to come forth with “clear and specific evidence”

of her claims simply means that the non-movant must allege more than mere notice

pleading requires. Id. at *7 (emphasis added). CSI acknowledges the court’s

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holding “that a non-movant can rely on circumstantial evidence and rational

inferences to satisfy her burden.” CSI Notice of Supplemental Authority at 4. CSI

then states, however, that “[o]n this issue, Lipsky supports the Church’s position.”

Id.

      In fact, Lipsky is not consistent with CSI’s prior position at all. In its Brief of

Appellant, CSI had argued that Mrs. Rathbun “cannot rely on ‘presumptions,

inferences      or    intendment.’”       CSI      Brief   of   Appellant    at   36-37

(quoting Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—

Dallas 2013, pet. denied)). CSI also argued that Mrs. Rathbun “must present

evidence that is ‘unambiguous,’ ‘sure,’ and ‘free from doubt’ and that is ‘explicit.’”

Id. at 37.

      The Texas Supreme Court has now made clear that in fact, no elevated

evidentiary standard applies. In re Lipsky, 2015 WL 1870073, at *3-7. Rather, a

plaintiff can defeat a motion to dismiss under the TCPA merely by “provid[ing]

enough detail to show the factual basis for its claim.” Id. at *7. As the Texas

Supreme Court recognized, “Though the TCPA initially demands more information

about the underlying claim, the [TCPA] does not impose an elevated evidentiary

standard or categorically reject circumstantial evidence. In short, it does not impose

a higher burden of proof than that required of the plaintiff at trial.” Id. (emphasis




                                           – 3 –
added). The court disapproved “those cases that interpret the TCPA to require direct

evidence of each essential element of the underlying claim to avoid dismissal.” Id.1

     Although the district court did not reach the question of whether Mrs. Rathbun

offered clear and specific evidence of her claims, the record is clear that she met that

burden. The information and evidence that Mrs. Rathbun offered in support of her

claims, including circumstantial evidence and rational inferences, satisfied her

burden under the TCPA. Brief of Appellee at 50-56; see also Serafine v. Blunt, No.

03-12-00726-CV, 2015 WL 2061922, at *3 (Tex. App.—Austin, May 1, 2015, no

pet. h.) (recognizing that the term “clear and specific” relates only to the quality of

the evidence and that the non-movant is entitled to use rational inferences to “satisfy

the nonmovant’s minimal factual burden”).

B.      Serafine v. Blunt

     CSI uses this Court’s opinion in Serafine v. Blunt, No. 03-12-00726-CV, 2015

WL 2061922 (Tex. App.—Austin, May 1, 2015, no pet. h.), as an excuse to reurge

CSI’s positions regarding the proper applicability of the TCPA to (1) a “mixed”

claim based on both unprotected activity and protected activity and



1
  In its original briefing, CSI had relied for its allegation that a heightened evidentiary applied on
some of the cases expressly overruled by In re Lipsky. See CSI Brief of Appellant at 8, 36-37
(citing Rehak, 404 S.W.3d at 726; Farias v. Garza, 426 S.W.3d 808 (Tex. App.—San Antonio
2014, pet. filed); Rio Grande H2O Guardian v. Robert Muller Family P’ship, Ltd., No. 04-13-
00441-cv, 2014 WL 309776 (Tex. App.—San Antonio Jan. 29, 2014, no pet.)); CSI Reply Brief
at 11 n.10 (citing Shipp v. Malouf, 439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. denied)).



                                               – 4 –
(2) pre-suit investigations. Regarding the first point, CSI’s position is that a claim

based on both unprotected activity and protected activity that is not

“merely incidental” to the unprotected activity, is wholly subject to dismissal under

the TCPA. 2 Texas law is to the contrary. If a claim is based both on protected and

non-protected conduct, the portion of the claim based on non-protected conduct may

proceed without further analysis.             See Serafine, 2015 WL 2061922, at *4

(“Accordingly, we affirm in part the trial court’s order denying Serafine’s motion to

dismiss the tortious-interference counterclaim, and we will remand the cause for

consideration of the Blunts’ tortious-interference counterclaim to the extent that it is

based on Serafine’s alleged harassing and threatening conduct outside the context of

the lawsuit.”); see also id. at *29-30 (Pemberton, J. concurring) (concluding that the

Court correctly concluded in Serafine that a when a “‘legal action’ ‘is based on,

relates to, or is in response to’ (whatever that phrase may mean) both expression

protected by the Act and other unprotected activity, the ‘legal action’ is subject to




2
  CSI appears to have abandoned the position argued in its first Notice of Supplemental Authority,
that if even one of Mrs. Rathbun’s claims arises out of protected activity, “all of Ms. Rathbun’s
claims should be dismissed even if some of them do not arise out of protected activity.” First CSI
Notice of Supplemental Authority at 2. As Justice Pemberton recognized in his concurrence in
Serafine, CSI’s “grounds for dismissal . . . must be analyzed separately with respect to each of the
challenged [claims].” Serafine, 2015 WL 2061922, at *14 n.52 (citing Better Bus. Bureau of
Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.–Dallas 2013, pet. denied)); see also
In re Lipsky, 2015 WL 18700073, at *8-13 (considering on a claim-by-claim basis whether
dismissal was appropriate under the TCPA).


                                              – 5 –
dismissal only to the extent it ‘is based on, relates to, or is in response to’ the

protected conduct, as opposed to being subject to dismissal in its entirety”).

    CSI suggests the Court’s holding in Serafine resulted because the parties had

neither briefed nor argued the question of how “mixed claims” should be treated

under the TCPA and urges the Court to follow CSI’s take on California law on the

question. CSI’s Notice of Supplemental Authority at 6-7. CSI’s position both gives

the Court too little credit and ignores the purpose of the TCPA. No First Amendment

rights are impacted if a party who pled a “mixed” claim proceeds with the claim

when it may be established on unprotected activity. 3

    Regarding CSI’s position that pre-suit investigation is protected by the right to

petition, CSI again relies only on a single case from California, which itself

recognized that sham pre-suit investigation would not be entitled to protection.


3
 CSI further argues that “[a] non-movant, of course, could still go forward with that portion of his
mixed claim that is not encompassed within the Act by demonstrating, within the context of the
motion to dismiss brought under the Act, that his claim is supported by clear and specific evidence
of a prima facie case and is not otherwise subject to dismissal.” CSI’s Notice of Supplemental
Authority at 7-8 (emphasis added). CSI has it backwards. A non-movant need not, at the dismissal
stage, provide any evidence of claims that are not encompassed within the TCPA because the
burden never shifts to her to do so. See Serafine, 2015 WL 2061922, at *2 (recognizing that the
TCPA shifts to the non-movant the burden of establishing a prima facie case of the elements of
her claim only if the movant has “establish[ed] by a preponderance of the evidence ‘that the legal
action is based on, relates to, or is in response to the party’s exercise of ... the right to petition’”);
see also In re Lipsky, 2015 WL 1870073, at *3 (recognizing that the burden shifts to the non-
movant to come forward with support of her claims only “If the movant is able to demonstrate that
the plaintiff’s claim implicates” a protected right). And the non-movant may go forward even with
claims that are encompassed within the Act so long as those claims are supported by clear and
specific evidence. Id.; Tex. Civ. Prac. & Rem. Code § 27.005(c) (“The court may not dismiss a
legal action under this section if the party bringing the legal action establishes by clear and specific
evidence a prima facie case for each essential element of the claim in question.”).


                                                 – 6 –
See CSI’s Notice of Supplemental Authority at 8. As set forth in detail in her original

brief, Mrs. Rathbun urges the Court, on this issue of first impression in Texas, to

conclude that pre-suit investigation is not entitled to protection, or, in the alternative,

that sham investigation is not entitled to protection and CSI’s claim of pre-suit

investigation is a sham. See Brief of Appellee at 44-50; see also Serafine, 2015 WL

2061922, at *19-21 (Pemberton, J. concurring) (urging a traditional view of what is

meant by the right to petition and arguing for exclusion of sham petitioning from

protection).

C.     Neyland v. Thompson

     CSI relies on this Court’s opinion in Neyland v. Thompson, No. 03-13-00643-

CV, 2015 WL 1612155 (Tex. App.—Austin Apr. 7, 2015, no pet. h.), for the

proposition that Mrs. Rathbun’s claims were based on communications that fall

within CSI’s right of association. As CSI recognizes, and the Court is aware,

Neyland concerned whether communications among members of a homeowner’s

association were protected by the TCPA. CSI fails now, as it has always failed, to

identify a single complaint by Mrs. Rathbun regarding communications among

members of CSI.        This is because Mrs. Rathbun’s claims do not concern

communications among members of CSI.                See Brief of Appellee at 42-43

(“The activity Mrs. Rathbun complains of does not fall within this description [of the




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right of association] and Appellants have failed to identify even one such

communication that is the subject of Mrs. Rathbun’s claims.”).




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D.      Lippincott v. Whisenhunt

     Finally, CSI alleges that Lippincott v. Whisenhunt, 13-0926, 2015 WL 1967025

(Tex. Apr. 24, 2015), “resolves one of the main legal disputes in this appeal, i.e.,

whether the Act applies only to a ‘communication’ that is made to the public.” CSI

Notice of Supplemental Authority at 1-2. In support of its position that this question

is disputed, CSI cites to pages 39-42 of Mrs. Rathbun’s brief and pages 20-24 of the

district court’s opinion.

     In fact, neither of those documents contains a contention that the TCPA does not

apply to private communications. The discussion on pages 39-42 of Mrs. Rathbun’s

brief establishes that Mrs. Rathbun’s claims do not arise from speech on matters of

public concern. Brief of Appellee at 39-42 (“The only communications complained

of concern Mrs. Rathbun’s marriage, [Mrs.] Rathbun’s alleged sexual preferences

and practices, Mrs. Rathbun’s fertility issues, Mrs. Rathbun’s husband, and the

mental health of Mrs. Rathbun’s husband’s family. These are not matters of public

concern.”). Pages 20-24 of the district court’s opinion address the district court’s

attempt to find the proper balance between Mrs. Rathbun’s “right to prosecute her

common law claims for personal injury” and CSI’s “rights of freedom of

expression.” Far from questioning whether private communications would give rise

to a claim under the TCPA, the district court stated that “[f]or the limited purpose of

this inquiry, the [c]ourt presumes that the Defendants’ expressions of speech,



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petition and association were, to the extent necessary, public in nature.” 31CR3774.

Contrary to CSI’s description of “one of the main legal disputes in this appeal,” there

in fact was no dispute as to whether the TCPA may apply to speech to private

individuals because the question was not germane to the outcome of CSI’s motion.

    CSI’s conclusion that in light of the evidence, “Lippincott leaves no room for

Appellee to argue that Appellants’ communications were not ‘made in connection

with a matter of public concern’ within the TCPA,” likewise does not follow from

Lippincott. In Lippincott, the Texas Supreme Court acknowledged the unremarkable

conclusion that emails regarding whether a nurse properly provided care to her

patients addressed a matter of public concern. Lippincott, 2015 WL 1967025, at *2

(“We have previously acknowledged that the provision of medical services by a

health care professional constitutes a matter of public concern.”). Nothing in

Lippincott would render communications about an individual’s spouse, marriage, or

fertility issues matters of public concern.4




4
  CSI claims in this portion of its Notice that Mrs. Rathbun conceded she is a public figure by not
responding to CSI’s claim that she was. CSI Notice of Supplemental Authority at 3. Mrs. Rathbun
did not concede anything. She did not address in her Brief of Appellee whether she was a public
figure simply because it was not determinative. Nevertheless, it is clear that Mrs. Rathbun is not
a public figure. See, e.g., Neyland, 2015 WL 1612155, at *6-7.


                                             – 10 –
   Respectfully submitted,

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

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


– 11 –
                             CERTIFICATE OF SERVICE

   I certify that on the 24th day of June 2015, the foregoing Appellee’s Response to

Notice of Supplemental Authority of Appellant Church of Scientology has been

transmitted by electronic service in accordance with the requirements of the Texas

Rules of Appellate Procedure addressed as follows:

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

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

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

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




                                      – 12 –
Gary D. Sarles           Thomas S. Leatherbury
O. Paul Dunagan          Marc A. Fuller
SARLES & OUIMET          VINSON & ELKINS LLP
370 Founders Square      Trammell Crow Center
900 Jackson Street       2001 Ross Avenue, Suite 3700
Dallas, Texas 75202      Dallas, Texas 75201


                         /s/ Leslie Sara Hyman
                         Leslie Sara Hyman




                      – 13 –
