monique rathbun v. scientology: supreme court petition #2

8/20/2019 Monique Rathbun v. Scientology: Supreme Court petition #2

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No. 15-0966

IN THE SUPREME COURT OF TEXAS

STEVEN GREGORY SLOAT, ED BRYAN, CHURCH OF SCIENTOLOGY

INTERNATIONAL, DAVID J. LUBOW, AND MONTY DRAKE,

Petitioners,

v.

MONIQUE RATHBUN,

Respondent.

On Petition for Review from the

Third Court of Appeals at Austin, Texas

No. 03-14-00199-CV

PETITION FOR REVIEW OF STEVEN GREGORY SLOAT, ED BRYAN,

DAVID J. LUBOW, AND MONTY DRAKE

Jonathan H. HullState Bar No. 10253350

[email protected]

R EGAN BURRUS

401 Main Plaza, Suite 200 New Braunfels, Texas 78130

Telephone: (830) 625-8026

Facsimile: (830) 625-4433

Stephanie S. BasconState Bar No. 19356850

[email protected]

LAW OFFICE OF STEPHANIE S.

BASCON, PLLC297 W. San Antonio Street

New Braunfels, Texas 78730

Telephone: (830) 625-2940Facsimile: (830) 221-3441

Gary D. SarlesState Bar No. 17651100

[email protected]

O. Paul Dunagan

State Bar No. [email protected]

SARLES & OUIMET

370 Founders Square900 Jackson Street

Dallas, Texas 75202


ATTORNEYS FOR PETITIONERS STEVEN GREGORY SLOAT, ED BRYAN,

DAVID J. LUBOW, AND MONTY DRAKE

FILED

15-0966

2/19/2016 2:49:57 PM

tex-9199478

SUPREME COURT OF TE

BLAKE A. HAWTHORNE,


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NOTICE OF ADOPTION BY REFERENCE

Pursuant to Texas Rule of Appellate Procedure 9.7, Petitioners Monty Drake,

Steven Gregory Sloat, Ed Bryan, and David Lubow (the “Individual Defendants”)

hereby adopt by reference the petition for review filed in this case by the Church of

Scientology International. The Identity of Parties and Counsel, Statement of the

Case, Statement of Jurisdiction, Issues Presented, Reasons to Grant, Statement of

Facts, Summary of Argument, Argument, and Appendix identified in the Church’s

petition are equally applicable to the Individual Defendants, and are therefore not

repeated here.

However, the Individual Defendants write separately to illustrate how the

court of appeals’ failure to analyze the discrete claims asserted against each

Defendant violated their rights under the TCPA.


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TABLE OF CONTENTS

Notice of Adoption by Reference ............................................................................. 2

Table of Contents ...................................................................................................... 3

Index of Authorities .................................................................................................. 4

Summary of Argument ............................................................................................. 6

Argument................................................................................................................... 8

I. The TCPA requires courts to give individual consideration to eachclaim asserted against each defendant ............................................................ 8

A. Each TCPA movant is entitled to have his motion considered asto his specific conduct .......................................................................... 9

B. Courts must consider the context in which each movant’s

conduct occurred .................................................................................. 9

C. The TCPA requires courts to consider whether each discretecause of action asserted against a TCPA movant is based on

that individual movant’s covered conduct ......................................... 11

II. The Individual Defendants ........................................................................... 12

A. Monty Drake ....................................................................................... 13

B. Steven Gregory Sloat ......................................................................... 16

C. Ed Bryan ............................................................................................. 18

D. David Lubow ...................................................................................... 21

Conclusion and Prayer ............................................................................................ 24

Certificate of Service .............................................................................................. 27

Certificate of Compliance ....................................................................................... 28


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INDEX OF AUTHORITIES

Cases

Branzburg v. Hayes,

408 U.S. 665 (1972) ............................................................................................ 15

Cruz v. Van Sickle,

452 S.W.3d 503 (Tex. App.—Dallas 2014, pet. denied) .................................... 11

Gallanis-Politis v. Medina,152 Cal. App.4th 600 (Cal. App. 2007) .............................................................. 15

Haight Ashbury Free Clinics, Inc. v. Happening H. Ventures,

110 Cal. Rptr.3d 129 (Cal. App. 2010)............................................................... 11

Hicks v. Grp. & Pension Adm’rs, Inc.,

478 S.W.3d 518 (Tex. App.—Corpus Christi 2015, no pet.) ............................... 9

In re Lipsky,460 S.W.3d 579 (Tex. 2015) .............................................................................. 10

Read v. Scott Fetzer Co.,

990 S.W.2d 732 (Tex. 1998) ................................................................................ 8

Rocha v. Faltys,69 S.W.3d 315 (Tex. App.—Austin 2002, no pet.) .............................................. 8

Shipp v. Malouf ,

439 S.W.3d 432 (Tex. App.—Dallas 2014, pet. denied) .................. 10, 15, 17, 21

Tervita, LLC v. Sutterfield ,

___ S.W.3d ___, No. 05-15-00469-CV, 2015 WL 9257035 (Tex.App.—Dallas Dec. 18, 2015, n.p.h.) .................................................................... 6

Ex parte Thompson,

442 S.W.3d 325 (Tex. Crim. App. 2014) ..................................................... 15, 16

Tichinin v. City of Morgan Hill,

177 Cal. App.4th 1049 (Cal. App. 2009) ............................................................ 14


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Statutes

TEX. CIV. PRAC. & R EM. CODE §27.001 ......................................................... 6, 12, 19

TEX. CIV. PRAC. & R EM. CODE §27.003 ................................................................. 6, 9

TEX. CIV. PRAC. & R EM. CODE §27.005 ............................................................ passim

TEX. CIV. PRAC. & R EM. CODE §27.006(a) .............................................................. 14


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SUMMARY OF ARGUMENT

Plaintiff Monique Rathbun sued Church of Scientology International (“CSI”)

and four Individual Defendants: Monty Drake and Steven Gregory Sloat, both

private investigators; and Ed Bryan and David Lubow, both Scientologists. This

petition is filed by the Individual Defendants.

Rathbun’s live pleading makes minimal reference to the Defendants as

individuals. CR10:1263–79. Instead, it treats them, along with the Church and

others, as an undifferentiated group labeled “Defendants.” Most of the petition’s

specific allegations are alleged to have been carried out by this group, without further

specification. The declaration Rathbun filed in opposition to Defendants’ TCPA

motions also relies heavily on generalized allegations. See CR11:1355–64. The most

attention-grabbing allegations were ascribed to “the defendants,” or simply “they.”

CR11:1359, 1361.

Rathbun’s aggregated pleading was problematic because the TCPA promises

each individual movant individual attention. See TCPA §27.003(a), §27.005(b).

Moreover, the TCPA requires that a movant’s motion be considered as to each cause

of action asserted against that defendant. See id. §27.001(6) (defining “legal action”

to include “cause of action”). Thus, before Rathbun, an unbroken line of cases had

held that TCPA motions had to be considered on a claim-by-claim basis. See, e.g.,

Tervita, LLC v. Sutterfield , ___ S.W.3d ___, No. 05-15-00469-CV, 2015 WL


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9257035, at *2 (Tex. App.—Dallas Dec. 18, 2015, n.p.h.); see also CSI Petition at

13 & nn.4–5.

However, the court of appeals repeated Rathbun’s error. Ignoring all

differentiation between the movants, it referred an astonishing 56 times to “the

Scientology Defendants” as the perpetrators of the alleged wrongs against Rathbun.

Outside the recitation of the parties’ names in the opinion’s first sentence, the

Individual Defendants are mentioned by name only once or twice, if at all.

By refusing to consider the Individual Defendants individually, the court of

appeals failed to consider whether, at step one, the factual basis for Rathbun’s suit

as to each Defendant was conduct covered by the TCPA.

The court of appeals proceeded to highlight several of the most salacious of

Rathbun’s general allegations—which had been stricken by the trial court as

unsupported by any evidence, CR38:4506–07—and concluded that the stricken

allegations described conduct not covered by the TCPA. Rathbun at *5, *7. The

court then held that because the “Scientology Defendants” had failed to explain why

these stricken allegations constituted covered conduct under the TCPA, the whole

suit was not covered by the Act. Id. at *7. The court’s failure to consider the factual

basis for each claim against each defendant was erroneous. See CSI Petition at 30–

33.


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ARGUMENT

I. The TCPA requires courts to give individual consideration to each claim

asserted against each defendant.

“It is a basic principle of legal responsibility that ‘individuals should be

responsible for their own actions and should not be liable for others’ independent

misconduct.’” Rocha v. Faltys, 69 S.W.3d 315, 321 (Tex. App.—Austin 2002, no

pet.) (quoting Read v. Scott Fetzer Co., 990 S.W.2d 732, 739 (Tex. 1998) (Hecht, J.,

dissenting)).

In light of this “basic principle,” it is remarkable that after the opinion’s first

sentence defining the parties, the court of appeals mentioned the Individual

Defendants a grand total of four times. Instead, the court lumped the individuals and

the Church together, and assumed that each was responsible for everything. Fifty-six

times the court thus referred to the “Scientology Defendants.”

For three reasons, this was error. Worse, it was error that had an especially

pernicious effect on the Individual Defendants because, contrary to the TCPA’s

command, the court of appeals refused to look beyond Plaintiff’s vague—and in

many cases stricken—allegations to conduct in which the Individual Defendants

actually engaged.


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A. Each TCPA movant is entitled to have his motion considered as tohis specific conduct.

The TCPA permits “a party” to move for dismissal when the legal action

against it is based on that “party’s exercise of the right to free speech, right to

petition, or right of association.” TCPA §27.003(a). Likewise, the TCPA’s step-one

burden is satisfied “if the moving party shows” that the “legal action against the

moving party . . . is based on, relates to, or is in response to the party’s” covered

conduct. Id. §27.005(b). Thus the court in Hicks v. Group & Pension Administrators,

Inc., correctly gave separate consideration to each TCPA movant’s motion to

dismiss, considering the particular facts on which the claims against each defendant

were based. 478 S.W.3d 518, 526, 534 (Tex. App.—Corpus Christi 2015, no pet.).

Here, by contrast, the court of appeals gave no separate consideration

whatsoever to the five distinct movants. Rather, all of the court’s conclusions were

made as to an undifferentiated group. Rathbun at *9 (holding that “the Scientology

Defendants” failed to show that Rathbun’s claims were based on “the Scientology

Defendants’” covered conduct). This was error.

B. Courts must consider the context in which each movant’s conduct

occurred.

The court of appeals not only ascribed every unspecific allegation made by

Rathbun to every Individual Defendant, it divorced entirely the Individual

Defendants’ conduct from its context. In essence, the court of appeals held that even


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if Defendants had engaged in activity covered by the TCPA, Rathbun was not suing

them for that conduct, but was suing Defendants for conduct the court of appeals

believed not to be covered. Id. at *8 (“Rathbun’s suit is not based on the Scientology

Defendants’ attempts to discover facts related to Marty Rathbun’s alleged cloak-

and-dagger activities.”). Not only was this contrary to Rathbun’s pleadings and

evidence, CSI Petition at 32, it was contrary to the law.

Evading the TCPA would be far too easy if plaintiffs are able to sue

defendants for allegedly non-covered conduct that occurs in the course of the

defendants’ covered conduct. Other courts of appeals actively avoid such a result.

In Shipp v. Malouf , for instance, Malouf, a dentist, sued Shipp, an

investigative reporter, for defamation regarding comments made during a broadcast

about fraud allegations against Malouf. See 439 S.W.3d 432, 436 (Tex. App.—

Dallas 2014, pet. denied), disapproved on other grounds, In re Lipsky, 460 S.W.3d

579 (Tex. 2015). In particular, Malouf sued Shipp for saying that Malouf had filed

for bankruptcy, something that Malouf claimed was false. See id. When Shipp

moved to dismiss under the TCPA, Malouf argued that his suit focused solely on the

bankruptcy comment, and Malouf’s individual financial status was not a matter of

public concern. See id. at 438.

The Dallas Court rejected this argument, holding that “in deciding whether

the lawsuit is related to the exercise of free speech under the broad language of the


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TCPA,” it had to “look to the context of the communication in which the alleged

defamatory statement is made.” Id. (emphasis added). Because that context was a

broadcast regarding a matter of public concern, the court held that the TCPA applied.

Id. (“We agree with Shipp that the entire communication—not just the allegedly

defamatory portion— and the surrounding circumstances must be considered in

determining whether the lawsuit relates to Shipp’s exercise of his right to free

speech.” (emphasis added)); see also Cruz v. Van Sickle, 452 S.W.3d 503, 514 (Tex.

App.—Dallas 2014, pet. denied) (same); Haight Ashbury Free Clinics, Inc. v.

Happening House Ventures, 110 Cal. Rptr.3d 129, 139 (Cal. App. 2010) (holding

that where “a cause of action is based on both protected and unprotected activity,” it

is covered by California’s anti-SLAPP statute “unless the protected conduct is

merely incidental to the unprotected conduct” (internal quotations omitted)).

The Dallas Court’s rule is undoubtedly correct, as it prevents plaintiffs from

artfully pleading their way out of the TCPA’s coverage. Here, the court of appeals’

holding, affirmatively removing the Individual Defendants’ conduct from its

context, was error.

C. The TCPA requires courts to consider whether each discrete cause

of action asserted against a TCPA movant is based on thatindividual movant’s covered conduct.

Although Rathbun asserted four causes of action against each Defendant, and

although each of these causes of action has different elements, the court of appeals


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considered Rathbun’s suit against the Defendants as if it were an indivisible whole,

without considering the alleged conduct on which Rathbun’s discrete causes of

action were based.

The court of appeals erred in failing to consider the causes of action

separately. The TCPA defines “legal action” to include a “cause of action.” TCPA

§27.001(6). Thus, when the TCPA directs courts to consider whether a “legal action”

against a movant is based on covered conduct, it necessarily requires the court to

consider whether each discrete cause of action is based on covered conduct. Id.

§27.005(b). This comports with the TCPA’s step-two analysis, which contemplates

a claim-by-claim analysis. Id. 27.005(c) (requiring the non-movant to produce

evidence of “each essential element of the claim in question” (emphasis added)).

Before Rathbun, every court of appeals to consider the matter—including the

Austin Court—had employed a granular analysis and had refused to ask simply

whether a lawsuit, as a whole, was based on covered conduct. See CSI Petition at 13

& nn.4–5. The court of appeals’ decision to disregard this precedent was error.

II. The Individual Defendants

As the above analysis and the Church’s petition demonstrate, the Individual

Defendants were entitled to individual consideration. The court of appeals had an

obligation to consider each discrete claim asserted against each Individual

Defendant. Moreover, it was required to consider the conduct on which those


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discrete claims were based in the context of each Defendant’s own activities. The

court of appeals failed to perform such an analysis.

Below, the Individual Defendants show why the court of appeals’ failure to

treat them as individuals resulted in the erroneous denial of their motions to dismiss.

A. Monty Drake

Monty Drake is not a Scientologist; the court of appeals nevertheless lumped

him in with the “Scientology Defendants.” Rathbun at *1. In fact, the court of

appeals did not even mention Drake after the opinion’s first sentence. Id.

Drake is a private investigator licensed in Texas and Oklahoma who has never

been sanctioned or disciplined for his work. CR38:4477–78. In his 30-year career,

he has been involved with hundreds of investigations into trademark and other

intellectual property rights violations. CR38:4478. Drake’s extensive work in this

field—which he has often performed side-by-side with law enforcement—has led to

numerous arrests, criminal charges, and civil suits. Id.

Rathbun’s live pleading makes minimal reference to Drake. Her sole

allegation against him is that he leased a house from which he surveilled the

Rathbuns’ home/office. CR10:1273. Rathbun’s declaration added no additional


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detail apart from a conclusory allegation—which the trial court duly struck,

CR38:45091 —that Drake “direct[ed]” the Squirrel Busters’ actions. CR11:1361–62.

It is with regard to the scant remaining, unstricken allegations, as well as

Drake’s own evidence, that Drake’s TCPA motion should have been considered.

TCPA §27.006(a) (directing the trial court to consider “supporting and opposing

affidavits” (emphasis added)). To this end, Drake admitted to the surveillance of the

area outside of the Rathbun home/office but clarified that its purpose was

“gather[ing] facts which might be applicable to bringing both potential civil and

criminal actions against Mark Rathbun.” CR38:4479. Drake denied ever trespassing

on the Rathbuns’ property, aiming cameras into their home, using listening or

tracking devices, or otherwise engaging in illegal activities. CR38:4479–80. No

contrary evidence was admitted against Drake. See CR35:4170.

Thus the only activity Drake is alleged to have participated in is pre-litigation

investigative conduct. The trial court expressly found this to be true. CR31:3759;

see also CR38:4480. Pre-petition investigative activities are covered by the TCPA.

See TCPA §27.005(b) (protecting “the right to petition”); see also Tichinin v. City

of Morgan Hill, 177 Cal. App. 4th 1049, 1068, 1074 (Cal. App. 2009) (holding that

1 The trial court also struck generalized, baseless allegations regarding the Defendants’ supposed

use of electronic surveillance equipment and the sending of a sex toy to Rathbun’s work, as wellas hearsay statements about what unspecified Defendants told other people. CR38:4505–09.


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California’s anti-SLAPP statute covers non-communicative pre-litigation

investigatory activity, even if suit is never filed, because such activity “intrinsically

facilitates the exercise of free speech”); Gallanis-Politis v. Medina, 152 Cal.

App. 4th 600, 612 (Cal. App. 2007) (holding that anti-SLAPP statute covered

investigatory activities); cf. Branzburg v. Hayes, 408 U.S. 665, 681 (1972)

(recognizing that the First Amendment protects the right to gather information); Ex

parte Thompson, 442 S.W.3d 325, 337 (Tex. Crim. App. 2014) (recognizing that the

First Amendment protects the act of creating “photographs and visual recordings”).

To the extent the court of appeals believed Drake to have engaged in other

activities, those activities would nonetheless have been covered because they

occurred in the context of his protected, pre-litigation activity. Shipp, 439 S.W.3d at

438. For this reason, the court of appeals erred in not holding Rathbun’s suit against

Drake to be covered by the TCPA.

Considering the discrete claims asserted against Drake yields the same result.

The first is intentional infliction of emotional distress. CR10:1274. Given the paucity

of specifics regarding Drake, the only possible factual basis for this claim is Drake’s

pre-litigation investigative activities. The TCPA therefore applies, and Rathbun

must satisfy her step-two burden as to this claim.

Likewise, Rathbun’s tortious interference claim against Drake, CR10:1275,

must be based on this protected conduct, as it is the only conduct for which Drake is


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sued. Because Drake’s conduct had nothing to do with any of Rathbun’s contractual

relationships, this claim will undoubtedly be dismissed at step two.

Finally, Rathbun sues Drake for invasion of privacy, both through intrusion

on seclusion and public disclosure of private facts. Id. These claims are based on

Drake’s surveillance of the area outside the Rathbun home/office. Because this

conduct was covered by the TCPA, so too are these claims.

Properly considered, each of the causes of action Rathbun asserted against

Drake is based on conduct covered by the TCPA. The court of appeals should have

reviewed the evidence and determined whether Rathbun met her step-two burden.

B. Steven Gregory Sloat

Steven Gregory Sloat—a non-Scientologist—is a former Deputy United

States Marshal who was retained by a licensed private investigator. CR2:302. Like

Drake, Sloat was improperly lumped together with the “Scientology Defendants,”

and thus held responsible for all of the conduct of all of the Defendants in this case.

Rathbun at *1.

This, despite the fact that Rathbun’s live pleading contains no specific

allegations against Sloat. CR10:1263–79. The declarations Rathbun filed contain

little additional detail, stating only that Sloat engaged in off-site surveillance, made

false statements regarding his identity, and asked Marty Rathbun—not Plaintiff

Monique Rathbun—whether the couple had children, a question to which Monique


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assigns a motive unsupported by any record evidence. CR11:1362–63, 1386. There

is no evidence in the record of communications directly between Sloat and Plaintiff.

Sloat admits to surveilling the Rathbun home/office in Bulverde, Texas.

CR2:302–04. As the trial court found, Sloat had been hired to investigate the

independent Scientology services that Marty Rathbun was offering out of his

home/office. CR31:3760. Like Drake’s surveillance of Marty Rathbun in Ingleside-

on-the-Bay, Sloat’s surveillance was for the purpose of determining whether a civil

suit or criminal charges should be filed against Marty for trademark infringement or

other intellectual property violations. CSI Petition at 20–24.

Sloat’s surveillance activities constitute pre-litigation activity covered by the

TCPA. Sloat disputes some details of Rathbun’s claims, see CR2:303–04, but to the

extent he is alleged to have engaged in non-covered conduct, Sloat would have done

so as part and in the context of his covered pre-litigation activities. Thus, any limited,

non-covered conduct on Sloat’s part would not have taken his activities outside of

the TCPA’s zone of coverage. Shipp, 439 S.W.3d at 438.

As with Drake, a look at the discrete claims asserted against Sloat confirms

that the court of appeals erred in refusing him the TCPA’s protection. If Sloat

inflicted emotional distress on Rathbun, he did so through his surveillance activities

or through comments he made in the course of those activities. The intentional


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infliction of emotional distress claim is therefore based on conduct covered by the

TCPA.

Similarly, if Sloat interfered with Rathbun’s contractual relations, he did so

through his surveillance or other investigative activities. This claim, too, is thus

based on protected conduct. But as with Drake, Rathbun’s failure to produce

evidence that Sloat, as opposed to a generalized group of Defendants, engaged in

tortious interference, means that she will be unable to meet her step-two burden on

this claim.

Finally, with regard to the invasion of privacy claims, they must be based on

Sloat’s surveillance activities and related conduct. Because these are covered by the

TCPA, her invasion of privacy claims are also covered.

The court of appeals thus erred in failing to find that each discrete claim

asserted against Sloat was based on conduct covered by the TCPA. The court of

appeals should have determined whether Rathbun met her step-two burden as to each

of the claims against Sloat.

C. Ed Bryan

Ed Bryan is a Scientologist and member of the Squirrel Busters, a group that

protested and produced documentary videos about Marty Rathbun’s anti-

Scientology activities, including his attempts to provide Scientology services outside

of the Church’s auspices. CR10:1271–72; CR35:4176.


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Rathbun’s live pleading makes no specific allegations of actionable conduct

against Bryan. Instead, it alleges that he was a member of the Squirrel Busters and

that he wrote an email that conveyed doubts about the effectiveness of the group’s

activities vis-à-vis Marty but expressed genuine concern about the damage that

Marty was doing to the Church. CR10:1270–71; CR12:1522. The only detail added

by Plaintiff’s declaration is that Bryan “confronted” her “on a number of occasions.”

CR11:1357.

While Rathbun failed to address the content of these confrontations, Bryan

did. In large part, they consisted of the Rathbuns cursing at a peaceful Bryan on a

public street. See, e.g., RR14, Exh. 3 (video); RR3:202–03 (plaintiff’s authenticating

testimony identifying Bryan as the individual in the video). In other instances, these

exchanges were, in the trial court’s words, “civil with both sides either initiating or

reciprocating.” CR31:3755. What is important is that the subject matter of these

“confrontations,” whatever their tenor, was religious debate. Rathbun admitted as

much, agreeing that they constituted “religious discourse.” RR3:199.

Unsurprisingly, then, Bryan’s motivation was a concern that Marty’s public

statements were hurting the Church. CR10:1271–72. Bryan and the Squirrel Busters

produced videos regarding these debates and concerns, uploading them to YouTube

for both a general and specifically Scientologist viewership. CR26:3156;

CR37:4417–18.


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These kinds of communications are at the heart of the First Amendment, and

they are protected by the TCPA. See TCPA §27.005(b)(1) (protecting “the right of

free speech”); §27.001(b)(3) (protecting “the right of association”).

The court of appeals held Rathbun’s suit against “the Scientology

Defendants” was not based on the Squirrel Busters’ “protest or their activities of

filming and producing a documentary in support of their religion.” Rathbun at *6.

But as to Bryan, there is no conduct outside of these activities on which Rathbun’s

suit could be based. The evidence before the court of appeals was that Bryan engaged

in protest and filmmaking activities. Even if he also engaged in non-covered

conduct—and there is no evidence that he did—it would have to be understood as

emerging in the context of his covered First Amendment activities. Accordingly, the

court of appeals erred in finding Rathbun’s suit against Bryan not based on covered

conduct under the TCPA.

Once again, had the court of appeals engaged in the claim-by-claim analysis

required by the TCPA, it would have seen this fact. Rathbun’s intentional infliction

of emotional distress claim could only be based on Bryan’s covered

protest/filmmaking activities, or the comments that he made in the course of those

activities. The claim is therefore covered by the TCPA.


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Likewise, the tortious interference claim against Bryan is necessarily based

on his filmmaking/protest activities, as those are the only activities in which he is

alleged to have engaged. This claim, too, is covered by the TCPA.

So too are the invasion of privacy claims. Because the evidence shows only

that Bryan engaged in filmmaking and protest activities, those activities must be the

basis for Rathbun’s invasion of privacy claims. They are also therefore covered by

the TCPA.

With regard to each cause of action asserted against Bryan, the court of

appeals should have determined whether Rathbun met her step-two burden.

D. David Lubow

David Lubow is a Scientologist, a member of the Squirrel Busters, and a

private investigator. CR2:277, 280–281. There are no specific allegations of

actionable conduct against Lubow in Rathbun’s live pleading. See CR10:1263–79.

She mentions him only to allege that he told a third party he intended to make Marty

Rathbun’s “life a living hell.” CR10:1272. Lubow denies making such a statement.

CR2:282. In her declaration, Rathbun says that Lubow “often led” the Squirrel

Busters, “confronted” her and her husband one night at dinner, and “spoke with”

some of her “former co-workers.” CR11:1357, 1358, 1360. Rathbun assigns motive

to some of these actions, but she does so based on her own speculation, not evidence.

See, e.g., CR11:1360.


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Though he denies many of the specifics, see CR37:4384, Lubow admits to

being a member of the Squirrel Busters and to having investigated Marty Rathbun,

CR2:279, 281; CR37:4415. Lubow’s purpose, like that of the other Squirrel Busters,

was to protest Marty’s anti-Church activities. CR2:281. Lubow is an experienced

documentarian, and his plan was to make a series of short films about the Squirrel

Busters’ protests and Marty’s activities. CR2:277, 281, 287. Of course, Lubow’s

filmmaking and protest activities, whatever their tenor, were exercises of his right

of free speech and right of association. They are therefore protected under the TCPA,

as are any other activities related to that covered conduct. Shipp, 439 S.W.3d at 438.

Lubow also admits to interviewing some of Rathbun’s former co-workers,

though he clarifies that he did so as part of his investigation into Marty’s intellectual

property violations. CR37:4414–16; see also CSI Petition at 20–24. Thus any

statements that Lubow made to Rathbun’s former co-workers were made in the

course or context of Lubow’s pre-litigation conduct, which was covered by the

TCPA.

It is with this understanding of Lubow’s conduct that the court of appeals

should have considered the discrete claims against him. The only bases for

Rathbun’s emotional distress claim as to Lubow are his covered filmmaking, protest,

and investigative activities. The claim should have been deemed covered.


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The tortious interference claim against Lubow appears from Rathbun’s

affidavit to be based on Lubow’s conversations with Rathbun’s former co-workers,

which she “felt strongly” were intended to get Rathbun fired. CR11:1360. But

whatever comments Lubow made to those former co-workers arose in the context of

his covered, pre-litigation investigation. Even if some of the specific comments

Lubow made were not covered by the TCPA, the claim is covered by the TCPA

because the comments were made in the context of covered conduct. Rathbun should

have been required to meet her step-two burden.2

The only possible basis for Rathbun’s invasion of privacy by intrusion upon

seclusion claim are Lubow’s covered activities, presumably in the course of

“leading” the Squirrel Busters. But the core of this conduct was protected by the

TCPA, and so the claim against Lubow was covered in its entirety. Again, Rathbun

should have been required to meet her step-two burden.

Finally, Rathbun’s claim against Lubow for invasion of privacy through

public disclosure of private facts could only be based on Lubow’s statements about

Marty to Rathbun’s former co-workers. But if such a statement was made, it was

2 She could not have done so. Evidence supports Lubow only having spoken with two of Rathbun’s

co-workers. CR28:3364–66; CR42:4883. But one of these worked with Rathbun years earlier at a

company different from the one from which she resigned; the other was spoken to after Rathbun’sresignation. CR23:2765; CR42:4883.


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made in the course of covered pre-litigation activity. The public disclosure claim is

therefore also covered, and Rathbun was required to meet her step-two burden.

Each discrete claim against Lubow was thus based on or related to conduct

covered by the TCPA. Each claim should have been deemed covered and the court

of appeals should have determined whether Rathbun met her step-two burden.

CONCLUSION AND PRAYER

This Court should grant this and the Church’s petitions for review and clarify

the step-one analysis under the TCPA, giving special attention to the need for courts

to consider the TCPA’s application to each claim asserted against each defendant. It

should further reverse in part the court of appeals’ judgment, hold that Monique

Rathbun’s claims against the Individual Defendants are covered by the TCPA and

no exemption applies, and remand to the court of appeals for a determination of

whether Rathbun met her step-two burden; alternatively, the Court should reverse

and remand to the court of appeals for further proceedings.


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Respectfully submitted,

/s/ Gary D. Sarles

Gary D. Sarles

State Bar No. [email protected]

O. Paul DunaganState Bar No. 06202700

[email protected] & OUIMET

370 Founders Square900 Jackson Street

Dallas, Texas 75202Telephone: (214) 573-6300

Facsimile: (214) 573-6306

ATTORNEYS FOR PETITIONER

MONTY DRAKE

/s/ Stephanie S. Bascon

Stephanie S. BasconState Bar No. 19356850

[email protected]

LAW OFFICE OF STEPHANIE S. BASCON, PLLC297 W. San Antonio Street New Braunfels, Texas 78730


ATTORNEY FOR PETITIONER

DAVID J. LUBOW


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/s/ Jonathan H. Hull

Jonathan H. HullState Bar No. 10253350 [email protected]

R EGAN BURRUS 401 Main Plaza, Suite 200

New Braunfels, Texas 78130Telephone: (830) 625-8026

Facsimile: (830) 625-4433

ATTORNEY FOR PETITIONERS

STEVEN GREGORY SLOAT AND

ED BRYAN


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CERTIFICATE OF SERVICE

I hereby certify that on February 19, 2016, I filed this Petition for Review with

the Clerk of the Court using the eFile.TXCourts.gov electronic filing system, which

will send notification of such filing to the following (unless otherwise noted below):

Monique Rathbun501 Sunset

Ingleside on the Bay, Texas [email protected]

(served by e-mail and certified mail)

Respondent

Douglas W. AlexanderState Bar No. 00992350

[email protected] Nicholas Bacarisse

State Bar No. 24073872

[email protected]

ALEXANDER DUBOSE JEFFERSON& TOWNSEND LLP

515 Congress Avenue, Suite 2350Austin, Texas 78701-3562


Thomas S. LeatherburyState Bar No. 12095275

[email protected] A. Fuller

State Bar No. 24032210

[email protected]

VINSON & ELKINS LLPTrammell Crow Center

2001 Ross Avenue, Suite 3700Dallas, Texas 75201



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George H. Spencer, Jr.

State Bar No. [email protected] & SPENCER

112 E. Pecan Street, Suite 1300San Antonio, Texas 78205-1531


Attorneys for Petitioner Church of

Scientology International

/s/ Gary D. SarlesGary D. Sarles

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2013, this brief contains 4,153

words, excluding the portions of the brief exempt from the word count under Texas

Rule of Appellate Procedure 9.4(i)(1).

/s/ Gary D. SarlesGary D. Sarles

monique rathbun v. scientology: supreme court petition #2

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