                                                                                                    ACCEPTED
                                                                                               03-14-00199-CV
                                                                                                      3555231
                                                                                     THIRD COURT OF APPEALS
                                                                                                AUSTIN, TEXAS
January 6, 2015                                                                          12/19/2014 4:39:26 PM
                                                                                             JEFFREY D. KYLE
                                                                                                        CLERK
                                   NO. 03-14-000199-CV

                                                                              FILED IN
                                       IN THE                          3rd COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                              COURT OF APPEALS FOR THE                 12/19/2014 4:39:26 PM
                           THIRD COURT OF APPEALS DISTRICT                 JEFFREY D. KYLE
                                   AUSTIN, TEXAS                                Clerk
                                         ______________

                   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 MOTION FOR LEAVE TO FILE
                  RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY
                OF APPELLANT CHURCH OF SCIENTOLOGY INTERNATIONAL



        NOW COMES Appellee Monique Rathbun and files this Motion for Leave to File

     Response to Notice of Supplemental Authority of Appellant Church of Scientology

     International, and in support thereof would respectfully show the Court as follows:

        Appellee Monique Rathbun requests leave to file the attached Response to the

     Notice of Supplemental Authority filed by Appellant Church of Scientology

     International (“COS”). COS contends that the supplemental authority – a decision

     by a California trial court – is relevant to the Court’s questions during oral
argument regarding how Texas’s anti-SLAPP statute should be applied in cases in

which some claims arise from activities protected by the statute and some claims

do not. As explained in the proposed Response, a copy of which is attached hereto

as Exhibit 1, Appellee does not believe that the California trial court’s opinion

supports COS’s position or adds any clarity to the issues before the Court.

   WHEREFORE, Appellee Monique Rathbun prays that this Motion be granted,

Appellee’s Response to Notice of Supplemental Authority of Church of

Scientology International Brief of Appellee be filed in the papers of this appeal,

and this Court award her such other and further relief, both general and special, at

law or in equity, to which she may be entitled.




                                       – 2 –
  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
  JEFFREY & MITCHELL, P. C.
  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


– 3 –
                            CERTIFICATE OF CONFERENCE
   Pursuant to Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I have

conferred with counsel for Appellants, who indicated that they are not opposed to

the motion for leave to file.

                                        /s/ Leslie Sara Hyman
                                        Leslie Sara Hyman




                                      – 4 –
                            CERTIFICATE OF SERVICE

   I certify that on the 19th day of December 2014, the foregoing Appellant’s

Motion for Leave to File Response to Notice of Supplemental Authority of

Appellant Church of Scientology International 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




                                     – 5 –
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




                      – 6 –
Exhibit 1




Exhibit 1
                              NO. 03-14-000199-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



             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 (“COS”) filed its Notice of

Supplemental Authority to bring to the Court’s attention a California trial court’s

decision in Woodward v. Church of Scientology Int’l, Case No. BC540097, in the

Superior Court for the State of California for the County of Los Angeles.

Appellant COS argues that this opinion supports COS’s position that “all of
Ms. Rathbun’s claims should be dismissed even if some of them do not arise out of

protected activity.” Notice at 2.

   For several reasons, Ms. Rathbun believes that the cited authority is not helpful

to the Court’s analysis of the issues before it. First, the trial court’s order in

Woodward is the subject of a motion to reconsider that will not be heard until

January 7, 2015. See Exhibit A.

   Second, the trial court in Woodward found that Woodward’s “causes of action

all arise from Defendants’ religious activities,” that Woodward’s “claims all relate

to religious instruction, counseling and related religious services,” and that his

“religious challenges have infused all of his causes of action and are . . .

predominant in his arguments.” Ms. Rathbun’s claims, on the other hand, relate to

stalking and harassment, not religious instruction, counseling, or services. To the

extent that she incidentally references COS’s arguably protected speech, that

speech does not form the basis of her claims.

   Third, contrary to COS’s position, the courts in California do not hold that

where a plaintiff raises some claims that arise from protected activity and some

claims that do not arise from protected activity, all of the plaintiff’s claims should

be dismissed. It is true that the California appellate courts hold that when a

plaintiff’s cause of action “is based on both protected activity and unprotected

activity, it is subject to [dismissal under California’s Anti-SLAPP statute] unless



                                        – 2 –
the protected conduct is “merely incidental” to the unprotected conduct.”1

Haight Ashbury Free Clinics v. Happening House Ventures, 184 Cal. App. 4th

1539, 1551 (Cal. Ct. App. 2010); see also Martinez v. Metabolife Internat., Inc.,

113 Cal. App. 4th 181, 188 (Cal. Ct. App. 2003) (“We conclude it is the principal

thrust or gravamen of the plaintiff’s cause of action that determines whether the

anti-SLAPP statute applies and when the allegations referring to arguably

protected activity are only incidental to a cause of action based essentially on

nonprotected activity, collateral allusions to protected activity should not subject

the cause of action to the anti-SLAPP statute.”).

    But it does not follow that when one cause of action is subject to dismissal, the

entire petition is subject to dismissal. Rather, each claim or cause of action is to be

analyzed separately and, at most,2 only those claims or causes of action that arise

from protected acts are subject to dismissal (and even then, only if the plaintiff has

insufficient evidence to support them). See, e.g., Graham-Sult v. Clainos, 738 F.3d

1131, 1142 (9th Cir. 2013) (holding that to determine whether a cause of action


1
  It does not appear that the California Supreme Court has yet determined whether the
California Courts of Appeals are correct in having reached this conclusion.
2
  At least one California Court of Appeals has held that where a plaintiff alleges several causes
of action that are factually and legally intertwined and at least one cause of action survives
scrutiny under an Anti-SLAPP motion, all the causes of action should go forward. M. G. v.
Time Warner, Inc., 89 Cal. App. 4th 623, 637 (Cal. Ct. App. 2001) (holding that because the
plaintiffs had “shown the propriety of their invasion of privacy claim . . . it cannot be said their
lawsuit is meritless and ‘brought primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances’” so their emotional distress
claims also survived).


                                              – 3 –
arises from protected activity the court should “first ask what activities form the

basis for each of Plaintiffs’ causes of action [and] then ask whether those activities

are ‘protected,’ bringing the cause of action within the scope of the anti-SLAPP

statute”) (emphasis added); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th

993, 997-98 (Cal. Ct. App. 2001) (reversing the denial of an Anti-SLAPP motion

to dismiss those of the plaintiff’s claims that arose from protected activity and for

which the plaintiff had failed to show a probability of success but affirming the

denial of the motion as to those of the plaintiff’s claims that did not arise from

protected activity).

   For example, in Graham-Sult v. Clainos, 738 F.3d 1131 (9th Cir. 2013), the

Ninth Circuit reviewed the plaintiffs’ complaint and concluded that six of the

plaintiffs’ causes of action arose from protected activity and were the proper

subject of the defendants’ Anti-SLAPP motion while other causes of action did not

arise from protected activity and could not be subjected to the motion.




                                        – 4 –
  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


  JEFFREY & MITCHELL, P. C.
  Ray B. Jeffrey
  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




– 5 –
  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




– 6 –
Exhibit A




Exhibit A
