An appellate attorney looks at Scientology's slam on Leah Remini's lawsuit

Yesterday afternoon we posted the appeal brief that Scientology submitted in Leah Remini’s lawsuit.

Scientology is asking a California appeals court to overturn a preliminary ruling that had removed some of the allegations in Leah’s case, but had largely kept her case intact. Both sides were unhappy with that ruling by Judge Randolph Hammock (who is no longer handling the matter), and Leah’s lawyers will submit their own appeal brief later.

For now, we have Scientology’s arguments for why its attempt to essentially gut this lawsuit should succeed, and in typical fashion it’s an angry, vicious attack on Leah and the work she’s done to expose the church’s controversies and abuses.

As we indicated in our brief introduction yesterday, we found the document repulsive. But could it be effective as a legal instrument? For some help on that, we turned once again to a longtime member of our community here at the Bunker, an appellate attorney who goes by the handle TX Lawyer and who not only specializes in this kind of thing, but has a good familiarity with the litigation we’ve covered over the years.

Here are his thoughts…

The tone of this brief is so ugly that I think it is actually counterproductive to the appeal. I don’t think I have ever used a curse word in an appellate brief, and certainly would have hidden it behind asterisks even if I did. But boy, they are just absolutely gleeful in repeating all the naughty words Leah is alleged to have used, and they do it so gratuitously. It’s a full-on rhetorical assault against her character, which ends up mostly confirming that Scientology really is as nasty as Leah’s case makes the Church out to be.

“Faced with no choice, the Church fought back.” Um, really, Scientology? No choice? You couldn’t just put out a statement denying her claims and inviting people to see for themselves at their local Scientology Org? Pretty rich, that one.

One thing that really stood out to me is that the brief takes the position that the First Amendment means “Speech is actionable in tort only if it is a provably false assertion of fact.” That’s crazy, and the case they cite for it (Seelig v. Infinity Broadcasting) says no such thing. That is the law only for defamation, not tort law in general. For instance, I don’t have to prove that Scientology is lying about me to prevail on a claim for intentional infliction of emotional distress or tortious interference with contract, both of which Leah alleges in her lawsuit. I just have to prove that Scientology is using its words to cause me extreme distress or to deliberately mess with my economic relationships. So even if a lot of the statements they’re challenging are statements of opinion, they can still be used to support Leah’s claims other than defamation.

There’s also some sleight of hand going on with the test for “actual malice,” which Leah has to establish if she’s going to prevail on her defamation claim because she’s a public figure. The brief correctly states that “actual malice” means proving that the defamation defendant either (i) knew the statement was false, or (ii) made the statement with reckless indifference to its truth or falsity. That’s fine. The problem is that they go on to say that the “reckless indifference” in item (ii) there actually requires Scientology to have had “a high degree of awareness of probable falsity” or “entertained serious doubts as to the truth.” Those are, of course, two ways to arrive at reckless indifference to the truth, but they are not exclusive, as the brief tries to make it seem. The Supreme Court case they cite (Harte-Hanks) even states, right before the bits they quote, that “the concept of ‘reckless disregard’ cannot be fully encompassed in one infallible definition.” And in my experience, reckless disregard most often happens when the defendant made or repeated the defamatory statement without bothering to check into it at all because they don’t care whether it’s true – they just want to talk s**t about the plaintiff.

(See, I meant what I said about those asterisks.)

As to the individual statements the Church is challenging here, I think it’s a bit of a mixed bag. There are some that seem pretty likely to succeed and some that don’t. I kind of expect the Court of Appeal to split the baby here. But what strikes me is that so many of them were generated by Scientology themselves putting Leah’s former friends and still-in family on video to recount all of her wicked, wicked ways. Given that Scientology is acting like a publisher here, Leah might succeed in arguing that it had an obligation to try and verify the stories rather than just accepting them as true based on whatever its brainwashed and under-pressure adherents were willing to say.

All in all, it strikes me as a pretty plausible appeal. But it’s rarely a good idea to draw a firm conclusion on an appeal from the opening brief. Let’s see what Team Leah has to say about it a month or two from now.

And let me add, I spent like 2 to 3 hours reading and researching this thing. I would spend a full month diving down into it if I was really trying to win this appeal, on either side. This is just informed short-term commentary. The real parties will spend hundreds of hours shaking this out. I am fully prepared to be shown wrong.

— TX Lawyer

Thank you for that assessment, Tex. It’s a relief to hear that it isn’t just us, and that the tone and verbiage of that legal document does seem ridiculously vicious.

But it’s easy to understand why. Attorney Jeremy P. Rosen might have submitted that appeal brief to the Second Appellate District court, but there’s no doubt who he was really writing for, and that’s Scientology leader David Miscavige.

All of the name-calling, and all of the bogus attacks would have been required by Dave.

Just one small example of what we mean by a disproven allegation that Scientology repeats over and over, and simply because Dave demands it: In August 2013, a couple of months after news broke here at the Bunker that Leah had defected from Scientology, she submitted her missing-person report to the LAPD about her friend Shelly Miscavige, wife of David Miscavige.

As our reporting has shown, she submitted that report on a Monday. New reporting by Yashar Ali shows how serious the LAPD took that report: They met with Shelly at a coffee shop in West Covina, and Shelly was accompanied by Dave’s personal attorney Jeffrey Riffer.

Your proprietor got a copy of the missing-person report two days after it was filed, on Wednesday night. The next morning, Thursday, we broke the news of the report at the Bunker. A media feeding frenzy ensued, and by that afternoon the LAPD was telling reporters hounding them for information that the matter had been looked into and was “unfounded.”

Some of those reporters, in a misunderstanding of the time that had passed, gave the impression that the report had been filed that morning and cleared up by the afternoon, making it look like Leah’s report was somehow frivolous.

We know that’s not the case. The report, again, took several days for the LAPD to handle, and they took it seriously enough to meet with Shelly, who told them she didn’t want to make a public statement.

And of course the most important point is that to this day, almost twelve years since Leah filed that report, Shelly has never been seen at a Scientology event or in public. She is still being held out of sight, we believe, at a small Scientology compound in the San Bernardino Mountains.

Scientology continues to push its bogus version of what happened: “Remini filed a false missing person report alleging Shelly Miscavige, the wife of the ecclesiastical leader of Scientology, was missing. Within hours, police determined Remini’s report was “unfounded.”

No, that’s not what happened. And Scientology to this day has still not proved to anyone’s satisfaction that Leah’s concern about her friend Shelly is false.

But there might be a downside to Rosen, and Scientology, pushing these bogus narratives in a legal document. This is the same appellate court, after all, that saw through Scientology’s “religious arbitration” trap and restored the lawsuit filed by Danny Masterson’s victims back in 2021.

This court is not naive about Scientology. And maybe that’s the most interesting thing going forward.

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Source Code: Actual things founder L. Ron Hubbard said on this date in history

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