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:

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/24/2015 5:24:39 PM JEFFREY D. KYLE Clerk
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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 
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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)).
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(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).
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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 nonmovant 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.”).
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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.
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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
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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

HAYNES & BOONE, LLP

112 East Pecan Street, Suite 1200

San Antonio, Texas 78205-1540

Wallace B. Jefferson

Rachel Ekery

ALEXANDER DUBOSE JEFFERSON &

TOWNSEND, LLP

515 Congress Avenue, Suite 2350

Austin, Texas 78701

J. Iris Gibson 

HAYNES & BOONE, LLP

600 Congress Avenue, Suite 1300

Austin, Texas 78701

Ricardo Cedillo

Les J. Strieber III

Isaac J. Huron

DAVIS CEDILLO & MENDOZA, INC.

McCombs Plaza, Suite 500

755 East Mulberry Avenue

San Antonio, Texas 78212

George H. Spencer, Jr.

CLEMENS & SPENCER

112 E. Pecan St., Suite 1300

San Antonio, Texas 78205-1531

Jonathan H. Hull

Ashley B. Bowen

REAGAN BURRUS

401 Main Plaza, Suite 200

New Braunfels, Texas 78130

Bert H. Deixler

KENDALL BRILL & KLEIGER LLP

Suite 1725

10100 Santa Monica Boulevard

Los Angeles, California 90067

Stephanie S. Bascon

LAW OFFICE OF STEPHANIE S. BASCON 

PLLC

297 West San Antonio Street

New Braunfels, Texas 78130
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Gary D. Sarles

O. Paul Dunagan

SARLES & OUIMET

370 Founders Square

900 Jackson Street

Dallas, Texas 75202

Thomas S. Leatherbury

Marc A. Fuller

VINSON & ELKINS LLP

Trammell Crow Center

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

/s/ Leslie Sara Hyman Leslie Sara Hyman