Escalante-Sostre v. Lopez-Gutierrez

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IT IS HEREBY ADJUDGED and DECREED that the “aie ky

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below described is SO ORDERED. ac &.

Dated: May 09, 2025. | □ Pur

MICHAEL M. PARKER

UNITED STATES BANKRUPTCY JUDGE

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

IN RE: §

§

XIOMARA JANISSE ESCALANTE-SOSTRE, § CASE NO. 22-51025-MMP

§

DEBTOR. § CHAPTER 7

oS

§

XIOMARA ESCALANTE-SOSTRE & §

ALEJANDRO SOSTRE-ODIO, §

§

PLAINTIFFS, §

§

Vv. § ADVERSARY NO. 22-05101-MMP

§

ELOY NATALIO LOPEZ-GUTIERREZ & §

ERICKA PEREZ LOPEZ (AKA ERICKA LOPEZ), §

§

DEFENDANTS. §

§

§

§

JOSE CARLOS RODRIGUEZ-MARTINEZ, §

ARNULFO DE LA CRUZ, MIGUEL ANGEL §

PADILLA PEREZ, LUIS F. HERNANDEZ, §

ARTURO VALLADOLID RODRIGUEZ, FELIZ §

FERNANDO AUCES, VICTOR SANCHEZ, MARIA §

E. AGUILERA-RIOS, PEDRO MAURICIO §

VALDEZ-GONZALEZ, ISMAEL CASTILLEGO §

GRAJALES, JORGE LUIS SALAZAR-BRAVO, J. §

GUADALUPE GALVAN TORRES, FELIX HIRAM §

AUCES OVALLE, MARCELINO J. GARZA, JUAN §

ROMAN GONZALEZ DUQUE, EDUARDO §

ESEQUIEL LIMON REYES, FELIPE DE JESUS §

CARRILLO, LUIS ALONSO AGUILAR, RICARDO §

ALBERTO LONGORIA, JAHIRO ESMELY §

RODRIGUEZ PEREZ, OSCAR DANIEL FRANCO §

VACA, §

§

INTERVENORS, §

§

______________________________________ §

§

§

AGUSTIN CHIAPAZ ALVAREZ, §

§

INTERVENOR, §

§

V. §

§

MARKES E. KIRKWOOD, §

§

THIRD PARTY DEFENDANT. §

2

OPINION

I. INTRODUCTION

The Court simultaneously tried several adversary proceedings related to a civil action filed

in the 166th Judicial District Court of Bexar County, Texas, which was removed to this Court.

ECF No. 1.1 Among myriad claims and counter-claims that arose both while the action was in state

court and after removal, this Court tried a series of claims made by Debtor, Xiomara Janisse

Escalante-Sostre (“Escalante-Sostre”) and her non-filing spouse Alejandro Sostre-Odio (“Sostre-

Odio”) against Defendants Eloy Natalio Lopez-Gutierrez (“Gutierrez”), Ericka Perez Lopez

(“Lopez”) and the Intervenors. After a trial on the merits, the Court finds Defendants’ statements

to be defamatory and awards relief accordingly.

II. JURISDICTION

The Court has jurisdiction over this matter under 28 U.S.C. §§ 157 and 1334, and the

Standing Order of Reference of the United States District Court for the Western District of Texas,

dated October 4, 2013. Venue is proper under 28 U.S.C. § 1409. This is a non-core proceeding,

but Plaintiffs, Defendants, and the Intervenors have consented to the entry of final orders and a

judgment by this Court. ECF No. 64.

III. BACKGROUND

Plaintiff Escalante-Sostre solely practiced as an immigration lawyer in San Antonio from

2012 to 2020. She represented numerous clients before immigration courts and the United States

Citizenship and Immigration Service (“USCIS”). Escalante-Sostre and her spouse Sostre-Odio

originally brought an adversary proceeding in state court against Gutierrez and Lopez seeking

1 “ECF” denotes the electronic filing number.

3

damages for defamation and business disparagement, as well as a temporary restraining order

enjoining Gutierrez and Lopez’s defamatory speech.2 Gutierrez and his spouse Lopez (collectively

“Defendants”) responded with counterclaims raising various tort and contract claims against

Escalante-Sostre related to services Defendants claim she failed to provide or provided defectively.

Other former Escalante-Sostre clients (“Intervenors”) intervened on Lopez and Gutierrez’s side

of the docket making similar claims.3 The Court previously ruled on that portion of the dispute

(dischargeability claims) in a four-hour oral ruling.4

Although Intervenors and Sostre-Odio joined the fight, the trial made clear that all the

claims, counterclaims and cross claims predominately revolved around a dispute between Plaintiff

Escalante-Sostre and Defendants Gutierrez and Lopez. Thus, the Court will briefly detail the

background of Escalante-Sostre’s representation of Gutierrez and the ensuing events.

In February 2019, Defendants contracted with Escalante-Sostre for legal services.

Gutierrez entered the country without authorization in 2005 and remained undocumented at the

time of contracting. The contract between the parties provided that the services were to include

“consular process and court.” Def.’s Ex. 1. This meant that Escalante-Sostre would help Gutierrez

institute consular processing abroad (a necessary step in his goal of becoming a legal permanent

2 Application for Temporary Restraining Order and Original Petition for Temporary and Permanent Injunction,

Xiomara Escalante-Sostre et al v. Eloy N. L. Gutierrez et al, Case No. 2020-CI-03996 (filed Feb. 27, 2020). The Court

also previously dissolved one injunction and upheld another in this case. ECF No. 47.

3 Counterplaintiff’s Original Counter-Petition and Intervenor’s Original Petition for Intervention, Xiomara Escalante-

Sostre et al v. Eloy N. L. Gutierrez et al, Case No. 2020-CI-03996 (filed July 31, 2020).

4 Gutierrez’s claims for non-dischargeability were litigated under Adv. Proc. No. 23-05073. On February 4, 2025, the

Court orally ruled on all of the Defendants’ and Intervenors’ dischargeability proceedings (at least, those that reached

trial), which were litigated under Adv. Proc. Nos. 23-05048, 23-05049, 23-05050, 23-05051, 23-05052, 23-05053,

23-05054, 23-05055, 23-05056, 23-05057, 23-05058, 23-05059, 23-05060, 23-05061, 23-05062, 23-05063, 23-05064,

23-05065, 23-05066, 23-05067, 23-05068, 23-05069, 23-05070, 23-05071, 23-05072, and 23-05073. The initial

complaints in each of these proceedings sought multiple forms of relief, but the Court dismissed all relief other than

the dischargeability causes of actions in a series of determinations on several motions to dismiss. The Court also orally

ruled on a related third-party complaint brought by third party plaintiff and Intervenor Augustin Alvarez against third

party defendant, counsel Markes Kirkwood. The Court issued its oral ruling at a hearing held on February 4, 2025.

4

resident) and would also defend him in his pending removal proceedings. In exchange, Defendants

paid Escalante-Sostre $3,500. Although Gutierrez was the named client in the contract, Lopez was

authorized as his representative and appears to have initially been the primary client decision-

maker in the representation of Gutierrez.

At the time of contracting, Gutierrez already had an approved I-130 Petition for Alien

Relative on file with USCIS. He testified that at the initial meeting with Escalante-Sostre,

Gutierrez and Lopez wished to pursue an EOIR 42B Cancellation of Removal (“42B”) in his

removal case. Escalante-Sostre, on the other hand, testified that while they discussed the 42B at

the initial meeting, the parties also discussed Gutierrez’s desire to work and how filing an asylum

application could allow him to obtain work authorization. According to Escalante-Sostre,

Gutierrez did not have (and needed to obtain) authorization to work legally, so the asylum

application was a necessary step in getting work authorization.5 At trial, Defendants testified that

an asylum application was never discussed.

After contracting, Escalante-Sostre began work on Gutierrez’s I-589 Application for

Asylum and for Withholding of Removal and then “lodged but did not file”6 the application in

June 2019. Pl.’s Ex. 17. Escalante-Sostre also filed a G-28 Notice of Appearance disclosing her

representation of Gutierrez. Pl.’s Ex. 14. After lodging the I-589, Escalante-Sostre finally received

Gutierrez’s client file from Defendants’ previous attorney, Michael Morgan. The file contained

information that she alleges Defendants did not disclose to her in their initial intake meeting. The

5 Most undocumented immigrants are not automatically granted authorization to work in the United States, and

employers seeking to comply with employment law will not hire immigrants who lack work authorization. Asylum-

seekers, however, may obtain work authorization after lodging an asylum application and waiting for 180 days.

6 According to Escalante-Sostre’s uncontroverted expert witness Teresa Coles-Davila: “lodging but not filing” asylum

applications is a common strategy employed by immigration attorneys to obtain work authorization for their clients

while waiting for immigration determinations to be made. Pl.’s Ex. 60.

5

file showed that Defendants had hired two previous immigration attorneys, and that Morgan had

terminated his representation of Defendants for lack of responsiveness and for failure to pay filing

fees. Lopez testified that Defendants paid Morgan $5,000 in attorney fees, and that he did

“nothing” for them.

More importantly, Escalante-Sostre discovered that Gutierrez had been arrested for felony

assault of a child, and that he had received the equivalent of a conviction for that offense, from the

perspective of immigration law.7 She also discovered that Gutierrez had later been arrested (but

not convicted) for misdemeanor assault of a family member.

These revelations made Gutierrez’s immigration case much more difficult. These

revelations put Defendants’ stated goal (a 42B) out of reach—42B applications are adjudicated

with a very stringent standard and the relief granted is discretionary and rare.8 Based on that

standard, Escalante-Sostre reasonably understood that 42B relief was very unlikely and she would

need to pursue other legal avenues for Gutierrez.

Undeterred, Escalante-Sostre continued the representation, resetting a biometric capture

appointment for Gutierrez from September 2019 to December 2019. In November, Lopez

confronted Escalante-Sostre at her office, accusing Escalante-Sostre of “doing nothing on the case”

and belligerently demanding Gutierrez’s file. Corroborated and unrebutted testimony showed that

Lopez arrived without an appointment, scared Escalante-Sostre’s staff, and refused to leave

7 Gutierrez received a “deferred adjudication” for the felony assault of a child, which required Gutierrez to either plead

guilty or no contest. Immigration law treats this type of disposition of a criminal case as a “conviction.” 8 U.S.C.

§ 1101(a)(48)(A); Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir. 1999) (concluding that a Texas deferred

adjudication qualified as a “conviction” under § 1101(a)(48)(A)).

8 To receive relief via a 42B, the alien must establish that removal would impose “exceptional and extremely unusual

hardship” (a standard which does not view mere family separation as sufficient), as well as a showing of (among other

things): (1) good moral character for the past ten years and (2) no convictions of certain “crimes of moral turpitude”

as defined in statute and case law. 8 U.S.C. § 1229b(b)(1).

6

Escalante-Sostre’s office unless Escalante-Sostre met with her and complied with her demand for

a full refund of amounts paid. Lopez testified that she wanted a refund so Defendants could hire a

different attorney.

After Escalante-Sostre met with Lopez but refused her full refund request, Lopez persisted

and refused to leave Escalante-Sostre’s office without a full refund. Lopez remained until

Escalante-Sostre threatened to call the police, at which point Lopez departed without her

demanded full refund. Escalante-Sostre later met with Gutierrez and threatened to terminate the

representation unless Gutierrez de-authorized Erika Lopez from access to his case. Gutierrez

testified that he agreed to this de-authorization because he soon had an immigration hearing at

which he needed Escalante-Sostre’s assistance, so he needed her immediate continued

representation. Pl.’s Ex. 2.

Then, Escalante-Sostre made a mistake. Gutierrez had a hearing in his removal case set for

December 5, 2019, and when the case was called, Escalante-Sostre failed to appear on his behalf.

Fortunately, as established via a recording introduced into evidence, this did not immediately

impact Gutierrez’s immigration case. The immigration judge simply telephoned Escalante-Sostre,

and rather than wait for her to arrive in court as she committed to, he simply continued the

proceedings to March 2020. See also Pl.’s Ex. 23. Incensed at the mistake, Gutierrez and Lopez

promptly fired Escalante-Sostre. Escalante-Sostre would not again appear in Gutierrez’s

immigration case.

Lopez testified that after the firing, she filed suit against Escalante-Sostre in small claims

court, accusing Escalante-Sostre of fraud and theft, and seeking a full refund of the retainer paid

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to Escalante-Sostre. Pl.’s Ex. 3. She also testified that she first met with her new immigration

attorney, Lorenzo Tijerina, in December 2019.

On January 6, 2020, Lopez created a Facebook page entitled “XIOMARA ESCALANTE

FRAUD” (“Facebook Page”). According to Lopez, she created the Facebook Page to “let people

know the things that Ms. Escalante was doing to other people, in their immigration process, and

that they needed to speak out and not be afraid.” The page included a picture of Escalante-Sostre

from the Escalante-Sostre Law Office (“Law Office”) Facebook page and a picture of Escalante-

Sostre’s family, including her husband and children. Lopez testified that this was “fair game”

because Escalante-Sostre had linked her Law Office business page to her personal Facebook page.

After creating the Facebook Page, Lopez shared links to the page on multiple other

Facebook pages frequented by Spanish speakers in San Antonio.9 In these distributive posts, she

included statements which the Plaintiffs argue are defamatory, including:

“This page is for the people that Xiomara Escalante has done wrong to their immigration

case and has robbed your money. Please tell your story.”

“Go to this page if this lawyer did fraud to you or your family members. I want to help you.

And plus start a law suit for her stealing your money.”

“I myself am suing her for the same because she is robbing money from people she is not

doing anything in the cases.”

“Don’t believe anything this lady [Escalante-Sostre] says. She is doing this because she

needs more clients to continue with her bad things and robbing from people.”

“This woman who is robbing a lot of people.”

“Don’t be afraid because this lady [Escalante-Sostre] must face justice for all those she has

robbed their money.”

“Today I saw an 18 year old girl that is graduating in her high school class number #6, but

it’s a shame that her father cannot be present to see his daughter graduate from her school

9 These included “LA PULGA HISPANA” and “El Mercadito San Antonio.”

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with good grades and also seeing the universities that are offering scholarships to her. It is

Xiomara’s fault that this man was deported because of bad practices of Xiomara. This man

doesn’t have criminals, nor tickets against him only that Xiomara never appealed the case

of the man and was never aware of the things she was doing. Very soon we will have our

court with her and show that many things are fraud.”

Intervenor Oscar Franco Vaca also posted a message in response to an unknown person

who was asking for further information:

“Sue her old man…she’s committing fraud the Marshals will notify her she is not registered

to practice.”

On January 10, 2020, Lopez coordinated with other clients who reached out to her after

seeing the Facebook Page to go to Escalante-Sostre’s office and stage a protest to demand their

money back. Lopez also contacted the media, and Univision sent a reporter and a camera operator

to report on the conflict. Lopez testified that she contacted the media to spread awareness of

Escalante-Sostre’s alleged fraud so that other clients would bring claims against Escalante-Sostre.

She also testified that the reason for starting the campaign was that she “just wanted her money

back.” Univision ran a story that same evening describing the confrontation at Escalante-Sostre’s

offices, detailing the clients’ accusations that Escalante-Sostre did nothing in their cases despite

them paying, and stating that the clients’ cases were left “in limbo” by Escalante-Sostre’s failure

to do things in their cases.

That same day, Lopez filed a police report at the Castle Hills Police Department, accusing

Escalante-Sostre of theft and alleging that Escalante-Sostre stole $3,500 from her. Pl.’s Ex. 51.

Neyda Sandoval (wife of Intervenor Jorge Salazar Bravo), Intervenor Maria Aguilera-Rios, and a

Ronald Ramirez joined the police complaint with their own assertions of theft. Lopez also reached

out to associates of Escalante-Sostre and her family, including sending a message over social

media to the director of Miss Texas Petite (a beauty pageant that Escalante-Sostre’s daughter was

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participating in) warning the director of the lawsuit and accusing Escalante-Sostre of fraud. Pl.’s

Ex. 9.

Escalante-Sostre then began these legal proceedings against the Defendants in the 166th

District Court of Bexar County, Texas. The initial complaint sought a temporary restraining order

enjoining the harassment by Lopez, a declaratory judgment for breach of contract, and relief related

to the defamation, including damages and a permanent injunction. The litigation continued in state

court, with the Defendants joining the Intervenors to the lawsuit and counterclaiming for breach

of contract and fraud. Escalante-Sostre testified that the Law Office stopped taking new clients in

2020 and any remaining work that was done by the Law Office was to complete existing cases.

Over the course of the litigation, Lopez sent a message to the political campaign of Marc

LaHood, trying to create a political story by saying that Misty Spears (who was running for district

clerk) was representing Escalante-Sostre, “an immigration attorney who she lied and did not

comply with their cases.” Pl.’s Ex. 4 at 58 [sic]. Misty Spears was not representing Escalante-

Sostre, but her husband, Adrian Spears, was. Lopez also organized multiple other Univision news

stories to publicize her and the Intervenors’ efforts against Escalante-Sostre.

In September 2022, Escalante-Sostre and the Law Office each filed for chapter 7

bankruptcy. Case Nos. 22-51025-mmp (In re Xiomara Janisse Escalante-Sostre), 22-51023-mmp

(In re Law Office of Xiomara Escalante-Sostre, PLLC). In the Law Office’s chapter 7 case, the

Trustee abandoned any causes of action back to the Debtor, including this action. Case No. 22-

51023-mmp, ECF No. 31. The Law Office’s bankruptcy case closed with no distribution, and the

Law Office was shut down.

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Escalante-Sostre removed the state court action to this Court in her personal bankruptcy

case. In her personal case, Escalante-Sostre received a full discharge. The Defendants and many

of the Intervenors filed non-dischargeability complaints under § 523(a)(4), which were heard by

this Court along with the instant defamation action.10 These dischargeability actions largely

replaced the counterclaims raised in this action, as virtually all of the counterclaims raised by

Defendants and Intervenors in the state court proceedings would have been discharged by the

bankruptcy.

All of the non-dischargeability complaints ended with a result in Escalante-Sostre’s

favor—the complaints were either dismissed before trial or the underlying debts were held to be

dischargeable by this Court in its oral ruling on February 4, 2025. Prescient to this case, Eloy

Lopez-Gutierrez sought to have his claim against Escalante-Sostre for “fraud while acting in a

fiduciary capacity” declared non-dischargeable.11 In this Court’s oral ruling on his dischargeability

complaint, the Court held not only that Gutierrez failed to prove the elements of § 524(a)(4), but

also found that Gutierrez failed to prove that: (1) Escalante-Sostre had committed any fraud against

him, and (2) he held an actionable debt against Escalante-Sostre.

IV. DISCUSSION

Plaintiffs raise multiple claims against Defendants. Both Plaintiffs seek damages for

defamation and civil conspiracy, and Escalante-Sostre also brings a business disparagement claim

on behalf of the Law Office.12 Finally, Plaintiffs seek to permanently enjoin the Defendants from

intimidating, bullying, or harassing the Plaintiffs, the Plaintiffs’ children, and Plaintiffs’

10 Supra note 4.

11 Eloy Lopez-Gutierrez’s dischargeability proceeding was litigated under Adv. Proc. 23-05073.

12 With the Trustee’s abandonment of all assets back to the Debtor, including any causes of action raised in this case,

along with the dissolution of the Law Office, these claims reverted to Escalante-Sostre personally.

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“associates, employees, contractors, and/or third parties.” Both Plaintiffs also ask that the

permanent injunction require that Defendants remove any prior defamatory statements from

publication and to actively report to any media source with which Defendants have previously

dealt that their previous statements had been found to be defamatory.

A. Defamation

Plaintiffs’ first claim is for libel, levied against Defendants and Intervenors. Despite

pleadings suggesting defamation claims against all Intervenors, Plaintiffs’ post-trial briefing

directs the Court to allegedly defamatory statements made by Defendants Lopez and Gutierrez, by

Intervenors Oscar Daniel Franco Vaca and Maria Aguilera-Rios, and by two parties not joined to

this action, Pearl Auces and Neyda Sandoval.

Libel, the written form of defamation, is defined by Texas statute as “a defamation

expressed in written or other graphic form that…tends to injure a living person’s reputation and

thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach

any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone

and thereby expose the person to public hatred, ridicule, or financial injury.” TEX. CIV. PRAC. &

REM. CODE § 73.001. To succeed in an action for libel, a plaintiff must prove that the defendant

(1) published a written statement, (2) that was defamatory, (3) while acting with either actual

malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff was a

private individual) regarding the truth of the statement. WFAA-TV, Inc. v. McLemore,

978 S.W.2d 568, 571 (Tex. 1998).

To begin, the Court finds that Plaintiff Sostre-Odio failed to point to any defamatory

statements which could give rise to a claim. Although Sostre-Odio repeatedly referenced his

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inclusion in the photo that was put on the Facebook Page, the Court does not believe the collateral

inclusion of Sostre-Odio’s photo on the Facebook Page with “fraud” in the title constitutes an

actionable defamatory statement against Sostre-Odio. The context of the photo and the clear focus

of the Facebook Page was to assert the “fraud” Escalante-Sostre was alleged to have perpetrated.

No specific allegations against Sostre-Odio were ever articulated. Therefore, the Court will not

award damages in Sostre-Odio’s favor for defamation. As to his claims for civil conspiracy and a

permanent injunction, the Court will similarly deny those claims to the same extent and for the

same reasons the Court denies them as to Escalante-Sostre, detailed below.

The Court will dismiss the defamation claim against Pearl Auces.13 The record both in this

Court as well as in state court do not show that Pearl Auces was ever joined to this action as an

Intervenor. Although she testified at trial, she testified on behalf of Intervenors Feliz Fernando

Auces and Felix Hiram Auces (her husband and son, respectively). Plaintiffs fail to explain how

this Court can afford them relief against a party who was never joined to the action and who

presumably never received notice of the claims against her personally. But even had Auces been

properly joined, the Court struggled to find the identified defamatory statements in the record from

Auces. There is one social media post from Auces which states: “This lady has just had us going

for 3 years on a loop no one never answer and she called me 2 ½ weeks and she just said I’ll call

u back on Friday cuz we’re moving and I’ve never heard anything.” Pl.’s Ex. 4 [sic]. The Court

finds that this statement does not rise to the level of defamation per se because it is not so

“obviously hurtful to a plaintiff’s reputation that a jury may presume general damages.” Hancock

v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013). Because the action would therefore be for

13 Feliz Fernando Auces Ovalle is an intervenor, but his wife Pearl Auces is not.

13

defamation per quod14 as opposed to per se, actual damages must be shown. Brady v. Klentzman,

515 S.W.3d 878, 886 (Tex. 2017) (“Absent evidence of actual damages in a case of defamation

per quod judgment should be rendered for the defendant.”). The Plaintiffs provided insufficient

evidence of actual damages that resulted from Pearl Auces’ statement specifically. Moreover, the

Court finds that some aspects of the statement were proven to be true on the record—Escalante-

Sostre was, at times, slow to respond to her clients. Therefore, the Court will dismiss the claim of

defamation against Auces.

The Court will also dismiss defamation claims against Nevda Sandoval and Intervenor

Aguilera-Rios. Similar to Auces above, the Court is concerned that Sandoval was never properly

joined to this action as an Intervenor, and although she also testified at trial, she testified on behalf

of her husband, Intervenor Jorge Luis Salazar Bravo. Sandoval did not appear in the caption of the

pleadings, and also likely did not receive notice of claims against her individually. Therefore, the

Court will dismiss the defamation claim against Sandoval.

Plaintiffs have argued that the basis for their defamation claim against Aguilera-Rios was

simply the police report filed at Castle Hills Police Department which accused Escalante-Sostre of

theft. The incident report details that Aguilera-Rios accused Escalante-Sostre of doing “nothing”

in her immigration case, and that she sought to press charges against Escalante-Sostre for theft.

Pl.’s Ex. 51.

14 Defamation per quod means a statement that is not on its face slanderous but only appears slanderous and still needs

to be proved slanderous to be actionable. Libelous Per Quod, BLACK’S LAW DICTIONARY (2d. ed) (last visited April

28, 2025), available at: https://thelawdictionary.org/?s=per+quod.

14

A “qualified privilege” from defamation liability attaches to statements made to police

about the possible commission of a crime.15 Pease v. Bembry, No. 03-02-00640-CV, 2004 Tex.

App. LEXIS 6257 at *8 (Tex. App.—Austin July 15, 2004) (“One such occasion giving rise to the

qualified privilege occurs when a person makes a statement to police identifying someone as a

potential suspect in the commission of a criminal offense.”). Qualified privilege is a middle ground

between absolute immunity and no privilege, in that it “cast[s] upon the plaintiff the burden of

proving that malice prompted the act—not merely malice which arises by implication of law, but

malice in fact, otherwise denominated actual malice.” Cranfill v. Hayden, 80 S.W. 609, 613 (Tex.

1904); see also Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (holding that

a qualified privilege attached to communications made in the course of an investigation following

a report of employee wrongdoing, and that proof of actual malice “defeats the privilege.”).

It is true that a party must raise qualified privilege as an affirmative defense at trial, but a

defendant only bears the burden of proving privileged publication if the plaintiff’s petition fails to

affirmatively demonstrate the privilege. Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014)

(citing Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970)). Here, the Court finds that

the privilege both appears on the face of Plaintiffs’ petition, and the Defendants and Intervenors

adequately (if obliquely and without citing authority) claimed privilege for filing police reports.

Further, Plaintiffs failed to show at trial that Intervenor Aguilera-Rios acted with actual malice

15 The Court does not condone the filing of false police reports, but such reports are privileged against civil defamation

liability. Evidence presented suggested that the police reports filed by Lopez, Sandoval and Aguilera-Rios with the

Castle Hills Police Department were false, which may itself have been a criminal act. TEX. PENAL CODE § 37.08.

Lopez, Sandoval and Aguilera-Rios attempted to use a false report of theft to the police to create leverage against

Escalante-Sostre in their battle to obtain a complete refund of the monies they paid to Escalante-Sostre to represent

them. When they became unsatisfied with the representation, they accused her of fraud and filed police reports.

Evidence presented also suggested they filed police reports to further their pursuit of U-Visa applications.

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when filing the police report. Therefore, the Court will dismiss the defamation claim against

Intervenor Aguilera-Rios.

The Court will now consider the remaining defamation claims against Defendants Lopez

and Gutierrez, as well as against Intervenor Vaca.

(i) Defendants and Intervenor Vaca published a statement.

Lopez published many statements about Escalante-Sostre and her dissatisfaction with the

legal services that her husband received. Lopez created the Facebook Page, the substance and title

of which accused Escalante-Sostre of fraud. Over time, Lopez published multiple statements both

on the Facebook Page and on other pages which described her dissatisfaction with Escalante-Sostre

and accused her of fraud and theft. It is undisputed that Lopez published these statements about

Escalante-Sostre.

As stated above, Lopez was the primary driver of Defendant Gutierrez’s immigration case

and generally of his legal dealings with others. The only statement which could be considered

defamatory that came from Gutierrez himself was stated on one of the Univision programs, where

Gutierrez asserted that Escalante-Sostre “did nothing” on his case.

Intervenor Vaca made one published statement included in evidence, a comment on a post

on the Facebook Page which urged an unknown poster to sue Escalante-Sostre because she was

“committing fraud,” and stating that Escalante-Sostre was “not registered to practice.”

(ii) Defendants’ and Vaca’s published statements were defamatory per se.

The Court finds that many statements published by Lopez were defamatory per se. As

stated above, a statement is defamatory if “the words tend to injure a person’s reputation, exposing

the person to public hatred, contempt, ridicule, or financial injury.” Einhorn v. LaChance,

16

823 S.W.2d 405, 410-11 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.). Statements

are defamatory per se when they are “so obviously hurtful to a plaintiff’s reputation that the jury

may presume general damages, including for loss of reputation and mental anguish. A statement

that injures a person in her office, profession, or occupation is typically classified as defamatory

per se.” Hancock, 400 S.W.3d at 63–64. Some courts have also included in this category

statements which impute the commission of a crime. Gray v. HEB Food Store No. 4, 941 S.W.2d

327, 329 (Tex. App.—Corpus Christi 1997, writ denied).

Many of Lopez’s statements squarely fall under the definition of defamation per se. Lopez

repeatedly accused Escalante-Sostre of “stealing money from her clients” and “robbing people.”

She frequently claimed that Escalante-Sostre had committed fraud (including in the title of the

Facebook Page) and said that she was exposing “all of the bad things” that Escalante-Sostre was

doing as an immigration attorney. Unlike Hancock v. Variyam, where the Texas Supreme Court

held that statements attacking a physician’s honesty did not qualify as defamation per se because

the statements did not injure the physician in his occupation, Lopez’s statements directly attack

Escalante-Sostre’s dealings with her clients as an attorney and accuse her of fraud while acting as

their attorney. The Court therefore finds that Lopez’s statements were defamatory per se.

The Court also finds that Gutierrez’s statement was defamatory per se. Gutierrez’s

statement to Univision that Escalante-Sostre did “nothing” in his case was both untrue and attacked

Escalante-Sostre in her profession, implying that she was not doing the job she was hired to do.

Gutierrez’s statement was therefore defamatory per se.

17

The Court similarly finds that Intervenor Oscar Franco Vaca’s statements that Escalante-

Sostre is “committing fraud” and was “not licensed to practice” are defamatory per se because they

injure Escalante-Sostre in her profession.

(iii) Escalante-Sostre was not a “public figure” and therefore the standard for

defamation is negligence.

The Supreme Court has frequently wrestled with the tension between defamation and the

First Amendment. Through its cases on the subject, the Court has sought to strike a balance

between the states’ interest in providing remedies for statements which falsely tarnish one’s

reputation and the federal interest in protecting speech. As to the states’ interest, the remedies for

defamation “reflect no more than our basic concept of the essential dignity and worth of every

human being – a concept at the root of any decent system of ordered liberty. The protection of

private personality, like the protection of life itself, is left primarily to the individual States under

the Ninth and Tenth Amendments…” Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (concurring

opinion). The First Amendment, on the other hand, “was fashioned to assure unfettered

interchange of ideas for the bringing about of political and social changes desired by the people.”

New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).

Pursuant to this federal interest, in New York Times, the Court imposed a higher standard

of culpability that defamation plaintiffs must prove to recover. This higher standard was termed

“actual malice,” which requires that where the defamation plaintiff is a “public official” or “public

figure,” the plaintiff must show that the defamatory statement was made “with knowledge that it

was false or with reckless disregard of whether it was false or not.” Id. at 280. Later opinions by

both the Supreme Court and lower courts would delineate public figures into “all-purpose public

figures” and “limited-purpose public figures.” Gertz v. Welch, 418 U.S. 323, 345 (1974). Whether

18

or not a plaintiff is a “public figure” is a matter of law to be decided by the court. WFAA-TV,

978 S.W.2d at 571.

Both parties agree that Escalante-Sostre was not an “all-purpose public figure,” but

disagree as to whether she was a “limited-purpose public figure.” The Fifth Circuit has

promulgated a three-part test to determine whether a plaintiff is a “limited-purpose public figure”:

(1) the controversy at issue must be public both in the sense that people are discussing it

and people other than the immediate participants in the controversy are likely to feel

the impact of its resolution;

(2) the plaintiff must have more than a trivial or tangential role in the controversy; and

(3) the alleged defamation must be germane to the plaintiff’s participation in the

controversy.

Trotter v. Jack Anderson Enters., 818 F.2d 431, 433 (5th Cir. 1987).

The definition and scope of the controversy at issue is a pivotal step in the “limited-purpose

public figure” analysis. A court must “examine whether persons actually were discussing some

specific question. A general concern or interest will not suffice. The court can see if the press was

covering the debate, reporting what people were saying and uncovering facts and theories to help

the public formulate some judgment.” WFAA-TV, 978 S.W.2d at 572 (quoting Waldbaum v.

Fairchild Publications, 627 F.2d 1287, 1297 (D.C. Cir. 1980)).

In WFAA-TV, the plaintiff McLemore was a local journalist reporting on the failed ATF

raid of the Waco Branch Davidian compound in 1993. McLemore sued multiple media defendants

for suggesting that he tipped off those inside the compound ahead of the raid in exchange for media

access. In examining whether McLemore was a “limited-purpose public figure,” the Texas Court

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of Appeals for the Tenth District in Waco defined the “controversy” at issue narrowly, limiting it

to “McLemore’s personal ethical standards as a journalist.” But the Texas Supreme Court reversed,

instead defining the “controversy” as the broader question of “why the ATF agents failed to

accomplish their mission.” 978 S.W.2d at 572.

In this case, there was no such “public controversy” that Escalante-Sostre was taking part

in. Escalante-Sostre was a private citizen conducting business and providing legal services who

became involved in what amounts to a fee dispute or a malpractice accusation. Rather than first

pursuing judicial or disciplinary remedies against Escalante-Sostre, the Defendants took their case

to the court of public opinion and published defamatory statements to pressure Escalante-Sostre

into refunding fees paid.

Defendants argue that the “controversy” here should be defined as “Escalante-Sostre’s

provision of fraudulent immigration services.” Even if the Court agreed a private controversy

existed regarding Escalante-Sostre’s services preceding the defamation, Defendants submitted no

evidence showing that it was a “public controversy” when the defamatory statements were made.

The Supreme Court has made clear that essentially private concerns or disagreements do not

become public controversies simply because they attract attention. Time, Inc. v. Firestone,

424 U.S. 448, 454-55 (1976).

It is true that there has been media coverage of this case, even before it was filed. Lopez,

after creating the Facebook Page and making some of the defamatory statements, contacted

Univision to join her at a protest at Escalante-Sostre’s office. Univision has since run multiple

stories related to this case. But inviting the media into what is essentially a private dispute between

Defendants and Escalante-Sostre does not transform Escalante-Sostre from a private figure to a

20

limited-purpose public figure. Escalante-Sostre took no action to thrust herself into a particular

public controversy but was instead unwillingly dragged into the public eye by Lopez’s defamatory

statements and by Lopez’s recruitment of Univision to publicly broadcast her private complaints.

Lopez is precluded from claiming that Escalante-Sostre is a limited-purpose public figure when

she herself was the one who attempted to make the controversy public. See Hutchinson v.

Proxmire, 443 U.S. 111, 135 (1979) (“Clearly, those charged with defamation cannot, by their

own conduct, create their own defense by making the claimant a public figure.”); Neely v. Wilson,

418 S.W.3d 52, 71 (Tex. 2013) (“In other words, the allegedly defamatory statement cannot be

what brought the plaintiff into the public sphere; otherwise, there would be no private figures

defamed by media defendants.”).

Defendants direct this Court to Escalante-Sostre’s local advertising efforts as evidence of

her position as a “limited-purpose public figure.” Defendants argue that “if a party voluntarily

engages in activities such as advertising their services to the public, that party must recognize it is

subject to increased scrutiny, and accept a risk of increased exposure and injury to its reputation.”

In other words, Defendants argue that any person who advertises becomes a “limited-purpose

public figure” for any defamation disputes related to their services, triggering the New York Times

“actual malice” standard. The Court declines at this time to adopt such an expansive view of the

“actual malice” doctrine.

To begin, focusing on a defamation plaintiff’s own advertising ignores the Trotter standard

which limits the inquiry to a “public controversy” that is both ascertainable and inherently limited

in scope. National Rifle Assoc. of Am. v. Ackerman McQueen, Inc., Case No. 19-CV-2074,

2021 WL 3618113, at *13 (N.D. Tex. Aug. 16, 2021). But further, expanding “actual malice” to

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any party who has engaged in advertising does not align with the reasons the Supreme Court laid

down for creating the standard in New York Times and its progeny. The First Amendment was

“fashioned to assure unfettered interchange of ideas for the bringing about of political and social

changes desired by the people.” New York Times, 376 U.S. at 269. “In contrast, speech on matters

of purely private concern is of less First Amendment concern…the role of the Constitution in

regulating state libel law is far more limited when the concerns that activated New York Times and

Gertz are absent.” Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 759 (1985). Such

private speech receives less stringent constitutional protections, and the state interest in awarding

presumed and punitive damages is “substantial” relative to the “incidental effect these remedies

may have on speech of significantly less constitutional interest.” Id. at 760.

Viewing Escalante-Sostre as a private plaintiff also aligns with some reasons given in New

York Times and its progeny for raising the standard of proof in defamation cases involving public

figures. In many of the Supreme Court’s cases on the subject of “actual malice,” the Court reasoned

that the standard of proof could be raised because public figures have greater access to the media

and therefore have an increased ability to “set the record straight.” See, e.g., Gertz, 418 U.S. at 344

(“Public officials and public figures usually enjoy significantly greater access to the channels of

effective communication and hence have a more realistic opportunity to counteract false

statements than private individuals normally enjoy.”). In this case, none of that reasoning applies.

Not only did Escalante-Sostre lack ready access to the media, but her ethical obligations to keep

client information confidential prevented her from access to the media to influence public opinion.

Faced with the defamatory statements made both on social media and on the news, Escalante-

Sostre could not ethically respond to the accusations with her side of the story without risking

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disciplinary action. Because of this, many of the circumstances animating the Supreme Court’s

opinions on “actual malice” do not exist here. Escalante-Sostre is not a “limited-purpose” public

figure, and therefore the Court will apply a negligence standard to this defamation action.

(iv) Defendants and Intervenor Vaca were negligent in making the defamatory

statements.

Because Escalante-Sostre is a private plaintiff, she must prove that the Defendants and

Intervenor Vaca acted with negligence. Hancock, 400 S.W.3d at 63–64 (citing Foster v. Laredo

Newspapers, Inc., 541 S.W.2d 809, 820 (Tex. 1976)). “After Gertz and Dun & Bradstreet, there

must still be a showing of fault in a defamation per se claim between private parties over a matter

of private concern.” Hancock, 400 S.W.3d at 63–64 (citing RESTATEMENT (SECOND) OF TORTS

§ 580B (1977)).

In a defamation case, negligence is defined as “the failure to investigate the truth or falsity

of a statement before publication, and the failure to act as a reasonably prudent person.” Day v.

Fed’n of State Med. Bds. of the United States, Inc., 579 S.W.3d 810, 822 (Tex. App.—San

Antonio 2019, pet. filed); Terrell v. Mazaheri, 676 S.W.3d 116, 129 (Tex. App.—San Antonio

2023, no pet.). In other words, the question is whether the Defendants and Intervenor Vaca knew

or should have known that their defamatory statements were false, and whether they acted

reasonably.

The Court finds that Lopez acted negligently in making the defamatory statements. Taken

in the best light, Lopez should have known the statements she made were false, and she acted

unreasonably. Lopez’s actions were both in response to disagreement with her husband’s attorney

and in frustration with the results the immigration system had to offer. At best, Lopez failed to act

reasonably in response to this adversity. Rather than communicate reasonably with Escalante-

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Sostre to address the issues in the relationship, seek alternative counsel, or pursue legal remedies

for alleged malpractice, Lopez decided the best course of action was to publicly defame Escalante-

Sostre online to her clients, family, and to the public generally, as well as to discredit her practice.

Moreover, Lopez intentionally ratcheted-up the pressure on Escalante-Sostre by inviting Univision

to her protests and by filing a privileged police report.

Lopez made false, inflammatory statements that she knew could cause other clients of

Escalante-Sostre to question the services they had received. At the very least, even if Lopez’s

statements contained some truth (and they don’t), the Court would still not be able to condone this

form of vigilante justice. In short, it was unreasonable and negligent conduct.

But there is further circumstantial evidence that suggests Lopez knew that what she was

saying was false and said it anyway. As the Court stated in its oral ruling on Eloy Lopez-

Gutierrez’s dischargeability case against Escalante-Sostre, the availability of a U-Visa for victims

of crimes in the United States looms large over the circumstances of this case. U-Visas can be

awarded to victims of certain “qualifying crimes” committed in the United States. Unlike many

other forms of relief, the U-Visa (and its accompanying waivers) can be used to overcome more

serious immigration violations than other forms of relief, making it desirable for immigrants who

do not have many other options to legalize their status. During testimony, Lopez stated that her

dischargeability case against Escalante-Sostre for fraud while acting in a fiduciary capacity was

intended to help secure her husband immigration relief via the U-Visa.

The evidence also showed that this was not the Defendants’ first interaction with

immigration attorneys. The Defendants had hired two other immigration attorneys before hiring

Escalante-Sostre, including Michael Morgan. Lopez testified that they paid Morgan $5,000 and he

24

did “nothing” in their case. When asked why she didn’t file suit against Morgan as she had against

Escalante-Sostre (who she paid only $3,500 and who demonstrably did work in Gutierrez’s case),

Lopez responded that she just “let it slide.”

With this background, the Court cannot help but question the motives for the defamatory

campaign against Escalante-Sostre. The Court finds it likely that, as suggested by Escalante-

Sostre’s uncontroverted expert witness, the Defendants defamed Escalante-Sostre as an attempt to

create a criminal investigation into and prosecution of Escalante-Sostre to facilitate obtaining a U-

Visa for Gutierrez as a victim of a “crime.”16

This finding is bolstered by further testimony from Lopez. When asked why she posted the

statements and why she began litigation against Escalante-Sostre, Lopez vacillated between

various conflicting reasons. At one point, she stridently testified (before an attempt to backpedal

on redirect with her counsel) that the reason for pursuing a lawsuit against Escalante-Sostre was

to get her husband immigration relief via the U-Visa. Lopez also stated that the goals of the

campaign were to get “justice” for other wronged clients, and to protect potential future clients

from harm. Then again, Lopez would sometimes testify that all that she and Eloy wanted was their

money back, and that they created the Facebook page and posted the defamatory statements

because they assumed they wouldn’t get their money back and needed another way to pressure

Escalante-Sostre into a refund.

The latter two reasons have clear remedies. If Lopez was concerned about protecting

others, she could report the conduct to the Texas Disciplinary Board or the Puerto Rico Supreme

16 This effort appears to have been misguided, as it’s unclear to the Court how Escalante-Sostre committing “fraud”

or even “theft” would allow Gutierrez to obtain a U-Visa, as neither are “qualifying crimes” under 8 U.S.C.

§ 1101(a)(15)(U)(iii).

25

Court (as she did) and await resolution of those grievances. If Lopez only wanted her money back,

she could have initiated a malpractice suit (which she later did) and similarly awaited the results.

But the creation of a Facebook page whose title accused Escalante-Sostre of fraud, the publishing

of numerous defamatory statements imputing criminal conduct to Escalante-Sostre, and the

repeated attempts to label Escalante-Sostre a liar and a fraud to members of the community who

might have sought Escalante-Sostre’s legal services were steps that were beyond reasonable. These

were measures which the law does not condone, and which amount to negligence.

The Court further finds that the statements made by Defendant Gutierrez and Intervenor

Vaca were negligently made. Gutierrez is subject to the same motivations detailed above

concerning his need of a U-Visa, and therefore the Court views his appearance on Univision

accusing Escalante-Sostre of doing “nothing” in his case as both self-serving and unreasonable

based on the circumstances. As to Intervenor Vaca, the Court similarly finds that urging others to

baselessly sue Escalante-Sostre for non-existent “fraud” and further accusations of lack of

licensure were negligently done—Escalante-Sostre has been licensed to practice law by the

Supreme Court of Puerto Rico since 2004.17

(v) Defendants’ appeal to the Texas Citizens’ Participation Act is inapposite.

In post-trial briefing but not in trial, Defendants raised defenses under the Texas Citizens’

Participation Act (“TCPA”). Defendants argue that under the TCPA, they have a right to

17 Although there was some discussion in this case of Escalante-Sostre’s recent suspension from practice before the

courts of the Western District of Texas due to an error in her admission, this had no impact on her ability to practice

immigration law in San Antonio. As mentioned in the Court’s oral ruling on the dischargeability proceedings, all that

is necessary for an attorney to represent immigration clients in immigration court and before USCIS is to be in “good

standing” of the bar of the highest court of any State, D.C., a U.S. possession, territory, or commonwealth. 8 C.F.R.

§§ 1001.1(f); 1292.1(a)(1). Escalante-Sostre met those requirements, and was lawfully practicing.

26

“communicate relevant issues to the public” and that because their actions fall under the definition

of “matters of public concern” under the TCPA, they cannot be held liable for their actions.

The TCPA does not apply in federal court. Klocke v. Watson, 936 F.3d 240, 245 (5th Cir.

2019) (“Because the TCPA’s burden-shifting framework imposes additional requirements beyond

those found in Rules 12 and 56 [of the Federal Rules of Civil Procedure] and answers the same

question as those rules, the state law cannot apply in federal court.”). In Defendants’ pretrial

attempt to apply TCPA, this Court previously directed the Defendants to Klocke,18 but such

direction did not seem to deter Defendants’ redeployment of the TCPA arguments in post-trial

briefing. If unclear then, it should be made clear now: Defendants cannot raise defenses under the

TCPA in federal court.19

(vi) Defendants’ and Intervenor Vaca’s further defenses of truth and of belief fall short.

Defendants obliquely argue that they should not be held liable for defamation because the

defamatory statements were substantially true. Defendants also argue, without authority, that they

honestly believed the statements to be true, and therefore should not be held liable. Both arguments

fail.

18 Order on Defendants’ Motion to Dissolve Temporary Injunctions Pursuant to Federal Rules of Civil Procedure

Rules 52 and 65 (ECF No. 30) (ECF No. 47) at *6 n.3.

19 Even if this suit were being heard in state court, the TCPA would not apply at this stage of the litigation. The TCPA

provides defendants a way to dismiss an action that is “based on or is in response to a party’s exercise of the right of

free speech, right to petition, or right of association…” TEX. CIV. PRAC. & REM. CODE § 27.003. The TCPA provides

no other remedies beyond the right to file a motion to dismiss, a motion which must be filed “not later than the 60th

day after the date of service of the legal action.” Not only was no such motion filed in this case, but the legal action

was also filed over five years ago at the time of the entry of this Opinion. Defendants also grasp at the definitions set

forth in the TCPA, arguing for their applicability in this adversary proceeding. The definitions section of the TCPA,

however, only applies for the Act itself (Chapter 27 of the TEX. CIV. PRAC. & REM. CODE), and does not provide this

Court with substantive definitions of “public concern” when confronted with a defamation action. To the contrary, the

Act itself states that “[t]his chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege

available under other constitutional, statutory, case, or common law or rule provisions.” TEX. CIV. PRAC. & REM.

CODE § 27.011(a). This Court, when faced with a defamation action that has been fully tried, must apply the

jurisprudence as set forth by the Supreme Court, the 5th Circuit, and the Texas Supreme Court.

27

Generally, defamation plaintiffs must prove that a statement was defamatory but need not

prove its falsity; the defendant bears the burden of proving truth as an affirmative defense. See

TEX. CIV. PRAC. & REM. CODE § 73.005(a) (“The truth of the statement…is a defense to the

action.”); Neely v. Wilson, 418 S.W.3d 52, 56 (Tex. 2013) (“Truth is a defense to all defamation

suits.”). This Court has already rendered a take-nothing judgment in Eloy Lopez-Gutierrez’s

dischargeability case.20 In that adversary proceeding, the Court found that his claims against

Escalante-Sostre for “fraud while acting in a fiduciary capacity” under 11 U.S.C. § 523(a)(4) were

not proven and went even further to hold that there was no evidence Escalante-Sostre even owed

him a debt. Moreover, in the defamation case, Defendants failed to show that Escalante-Sostre had

“stolen money” from them, or that she had committed fraud beyond what was alleged in the

dischargeability action. Therefore, Defendants’ defense of substantial truth fails.

Gutierrez’s statements are demonstrably false. In the Univision report, Gutierrez claimed

Escalante-Sostre had done “nothing” in his case. That claim is refuted not only by Escalante-

Sostre’s testimony, but also by Plaintiff’s Exhibits 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, all

exhibiting legal services performed by Escalante-Sostre.

Intervenor Vaca’s statement was also false. As stated in Vaca’s dischargeability

proceeding, Vaca failed to prove that Escalante-Sostre committed any fraud in his case. Further,

this Court held that Vaca failed to show he was owed a debt. As to the attack on Escalante-Sostre’s

licensure, as mentioned above, Escalante-Sostre has been licensed to practice law since 2004 and

was lawfully practicing at all times before Vaca’s statement.

20 Adv. Proc. No. 23-05072-mmp.

28

Defendants also repeatedly allege that when they published the defamatory statements,

they “believed them to be true,” and imply that this belief should negate liability. Lopez also

specifically defends her statements that accuse Escalante-Sostre of “fraud” and “theft” by claiming

that because she did not know the legal definition of fraud and theft, she cannot be held liable for

the accusations. These arguments miss the mark. Ignorance of the law is not a defense, even if it

might be a mitigating circumstance in a criminal matter.

A statement is defamatory only if it is reasonably capable of a defamatory meaning from

the perspective of an ordinary reader in light of the surrounding circumstances. Hancock,

400 S.W.3d at 66. Defendants’ subjective opinion of their own statements is of little importance

compared to how those statements are interpreted by “an ordinary reader.” Whether or not Lopez

herself thought she was accusing Escalante-Sostre of criminal fraud or civil fraud, or whether she

did not appreciate the differences between a breach of contract and theft has no bearing on whether

the statements were defamatory, nor on her liability for those statements.

Furthermore, statements that an attorney “is a fraud” or is “stealing money” carry weight

even without their legal definition. Both imply that Escalante-Sostre acted dishonestly and lied to

her clients, neither of which were true in this case. Defendants’ repeated statements that Escalante-

Sostre “did nothing” in their case do not require specialized legal knowledge to parse nor to

understand their falsity—Escalante-Sostre filed many pleadings and documents in Gutierrez’s and

Vaca’s immigration cases and provided legal services under their engagement agreements.

Defendants’ and Intervenor Vaca’s defamatory statements are false now and were false when they

were made.

(vii) Damages

Plaintiffs seek damages as a result of Defendants’ and Intervenor Vaca’s defamation.

29

There are three types of damages at issue in a defamation per se proceeding: (1) nominal

damages; (2) actual or compensatory damages; and (3) exemplary damages. Hancock, 400 S.W.3d

at 65. Nominal damages are only permitted for, and are presumed in, cases where defamation per

se is proven. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). Actual damages compensate a

plaintiff for the injury she incurred and include general damages (non-economic damages, i.e. loss

of reputation or mental anguish) and special damages (economic damages such as for lost income).

Exemplary damages are damages “awarded as a penalty or by way of punishment but not for

compensatory purposes. Exemplary damages are neither economic nor noneconomic damages.”

TEX. CIV. PRAC. & REM. CODE § 41.001.

(a) The Court will award Escalante-Sostre actual damages from Lopez, Gutierrez,

and Vaca.

In defamation per se cases, Texas law permits an award of nominal damages without proof

of actual injury because mental anguish and loss of reputation are presumed. Brady v. Klentzman,

515 S.W.3d 878, 886 (Tex. 2017) (citing In re Lipsky, 460 S.W.3d at 596). But the First

Amendment requires competent evidence to support an award of actual or compensatory damages

when the speech is public or the level of fault is less than actual malice. Hancock, 400 S.W.3d

at 65; see also Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (“However, even if some

mental anguish can be presumed in cases of defamation per se, and if we assume the Telemundo

statement was defamatory per se, the law does not presume any particular amount of damages

beyond nominal damages.”). If a plaintiff seeks actual damages or special damages beyond

nominal damages, the plaintiff must present evidence of the existence and amount of these

damages. Brady, 515 S.W.3d at 886. Courts are cautioned to only award compensatory damages

in defamation cases which compensate for “actual injuries,” and such damages cannot be used as

30

a “disguised disapproval of the defendant.” Burbage, 447 S.W.3d at 259 (quoting Bentley v.

Bunton, 94 S.W.3d 561, 605 (Tex. 2002)) (emphasis in original).

That said, evidence of loss of reputation need not be presented with mathematical precision.

In Texas, a defamation factfinder “must be given some latitude because these general damages are,

by their nature, incapable of precise mathematical measure.” Waste Mgmt. of Tex., Inc. v. Tex.

Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 159-60 (Tex. 2014). Loss of reputation must be

“more than theoretical,” but a defamation plaintiff seeking actual damages may succeed if there is

“evidence that people believed the statements and the plaintiff’s reputation was actually affected.”

Burbage, 447 S.W.3d at 261–62. In Brady, the court found that because “some people thought

less of Wade [the plaintiff] after the article was published and that his employer asked him to quit

his job shortly after reading the article is evidence of damages for loss of reputation.” Brady,

515 S.W.3d at 887–88.

Here, the Court finds that there was sufficient evidence of reputational harm done by

Lopez’s defamatory statements. Not only was there extensive testimony by the Plaintiffs as to the

effect the Defendants’ defamatory campaign had on the Law Office and legal practice of Escalante-

Sostre (both of which ceased to operate), the mere existence of the over twenty unsuccessful

dischargeability claims in Escalante-Sostre’s bankruptcy case are evidence that a notable portion

of her former clients began to question the services they received after the Defendants defamed

Escalante-Sostre. In those dischargeability proceedings, the vast majority of the former clients

repeatedly mentioned that they only got the idea to sue Escalante-Sostre after seeing either the

Facebook Page or one of the Univision reports. Not only did others appear to believe the statements

of “fraud” and “theft” propounded by the Defendants, but they also acted on that belief by filing

31

dischargeability actions and police reports that were ultimately unsuccessful. Therefore, the Court

will award $150,700.00 in actual damages to compensate Escalante-Sostre for the damage done to

her reputation by Lopez.

The Court arrived at this number by adding together the Law Office’s net “ordinary

business income” (gross income minus deductions) for 2018 and 2019, based on the Law Office’s

federal income tax returns. Pl.’s Exs. 53 and 54. The Court recognizes that over time the damage

done by a defamatory action will dissipate such that while actual damages might continue to accrue

over 5 to 10 years, but the immediate impact of such actions is felt nearest in time to those actions.

The Court also has considered the potentially contributory effects of the COVID-19 shutdowns

during 2020 and 2021. This results in a sum of $151,700, a sum which the Court considers to

approximate the relative value of Escalante-Sostre’s reputation at the time of the defamation.

Because the defamation almost single-handedly put the Law Office out of business and ended

Escalante-Sostre’s law practice, it also made the value of Escalante-Sostre’s professional

reputation essentially $0 (if not a negative). The Court therefore considers the actual damages for

loss of reputation to Escalante-Sostre to be $151,700, calculated by awarding: $150,700 against

Lopez, $500 against Gutierrez, $500 against Vaca.

In considering Gutierrez’s and Vaca’s statements, the Court finds that while nearly all of

the damages were caused by Lopez and her defamatory campaign, Gutierrez and Vaca also

contributed to Escalante-Sostre’s loss of reputation through their statements in ways which exceed

a mere nominal award of damages. Gutierrez’s statements to Univision that Escalante-Sostre did

“nothing” and Vaca’s encouragement for others to sue likely emboldened others to join the

ultimately meritless lawsuit and further tarnished Escalante-Sostre’s reputation by adding to the

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chorus of unfounded complaints. Therefore, the Court separately awards Escalante-Sostre $500 in

actual damages for defamation perpetrated by Gutierrez, and $500 in actual damages for

defamation perpetrated by Vaca.

To the extent Escalante-Sostre seeks actual damages for mental anguish, there must be

evidence of the existence of mental anguish and evidence to justify the amount awarded. Bentley,

94 S.W.3d at 606. Mental anguish is only compensable on a showing of a “substantial disruption

in…daily routine” or “a high degree of mental pain and distress.” Parkway Co. v. Woodruff,

901 S.W.2d 434, 444 (Tex. 1995). That showing must also include evidence of the “nature,

duration, and severity” of the mental anguish. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231

(Tex. 2011).

In Bentley, the court awarded damages for mental anguish to a judge falsely accused of

corruption, because he experienced embarrassment in the community where he spent all of his life,

was distressed and depressed, lost sleep, suffered a major change in demeanor, and would never

be the same. 94 S.W.3d at 576, 606–07. The court in Bentley also considered that the judge’s

family was disrupted, his children bothered by peers discussing the allegations, and testimony that

wherever he went, people would stop and tell the judge that they heard he was corrupt. Id. at 606.

In contrast, the court in Hancock did not award damages for mental anguish because the

plaintiff “did not elaborate on the impact of anxiety or depression on his life, nor did other

witnesses corroborate an outward manifestation of the mental anguish Variyam [the plaintiff]

allegedly experienced.” Hancock, 400 S.W.3d at 70. There was also testimony that Variyam

continued “interacting with the recipients of the [defamatory] letter and he testified that the letter

did not affect his care of patients.” Id.

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Here, the Court finds that there was sufficient testimony for an award of actual damages

for mental anguish. Escalante-Sostre and her husband Sostre-Odio testified to how the defamation

affected Escalante-Sostre’s daily habits. Escalante-Sostre herself testified about her fear to return

to work and her need for a psychiatrist and medication as a result of the defamation. Sostre-Odio

testified that Escalante-Sostre essentially became a different person, from a confident immigration

attorney to a withdrawn and shy recluse. There was even testimony that during the fallout of the

defamation and ensuing litigation, Escalante-Sostre and Sostre-Odio were in marital distress due

to the stress the case had on the household. The Court therefore finds Escalante-Sostre made a

sufficient showing of mental anguish, and therefore will award $20,000 in damages for mental

anguish against Lopez, $200 against Gutierrez, and $200 against Vaca.

(b) The Court will not award exemplary damages.

Exemplary damages (also known as punitive damages) are available to plaintiffs who prove

actual damages and who seek damages which aim to punish the defendant. Fed. Express Corp. v.

Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993) (“Recovery of punitive damages requires a

finding of an independent tort with accompanying actual damages.”); TEX. CIV. PRAC. & REM.

CODE §§ 41.001(5), 41.004(a).

In Gertz, the Supreme Court held that the First Amendment precludes an award of punitive

damages without a showing of actual malice, even for private plaintiffs. Gertz, 418 U.S. at 349–

50 (holding that under any state-created defamation standard lower than actual malice, a plaintiff

may recover “only such damages as are sufficient to compensate him for actual injury.”). “Actual

malice” is a term of art which focuses on the defamation defendant’s own attitude toward the

defamatory statement, requiring a showing that the statement was made “with knowledge of its

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falsity or with reckless disregard for the truth.” Id. at 342. “Reckless disregard” is yet another term

of art, which requires not merely a showing of lack of care for the truth or lack of investigation,

but a higher showing that “the defendant in fact entertained serious doubts as to the truth of his

publication.” Einhorn, 823 S.W.2d at 413–14. Understandable misinterpretations of ambiguous

facts do not show actual malice, but “inherently improbable assertions and statements made on

information that is obviously dubious may show actual malice. A failure to investigate fully is not

evidence of actual malice; purposeful avoidance of the truth is.” Bentley, 94 S.W.3d at 597.

Thus in Texas, defamation plaintiffs who seek exemplary damages must prove both the

“traditional malice” required to obtain exemplary damages for any tort,21 and “actual malice” to

satisfy the First Amendment.

Here, the Court finds that there is insufficient evidence of state law “malice” for a finding

of exemplary damages. There is insufficient evidence that Lopez had a “specific intent to cause

substantial injury or harm” to Escalante-Sostre. Lopez either knew that the statements she was

making was false in an attempt to secure a U-Visa and a refund from Escalante-Sostre, or

purposefully avoided knowing its truth. Although the Court agrees with the Plaintiffs that attaining

a U-Visa and refund was the motive for Lopez’s actions, the Court cannot agree that Lopez acted

with a specific intent to harm Escalante-Sostre. Therefore, the Court shall not award exemplary

damages.

21 See TEX. CIV. PRAC. & REM. CODE § 41.003 (conditioning exemplary damages on proof by “clear and convincing

evidence” of fraud, malice, or gross negligence); see also id. § 41.001(7) (defining “malice” as “a specific intent by

the defendant to cause substantial injury or harm to the claimant”).

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B. Business Disparagement

Plaintiffs also raise claims of business disparagement against Defendants. Business

disparagement in Texas is a similar tort to defamation, except that the falsehoods concern “the

condition or quality of a business’s products or services” and the falsehoods “are intended to, and

do in fact, cause financial harm.” Innovative Block of S. Tex., Ltd. v. Valley Builders Supply,

Inc., 603 S.W.3d 409, 417 (Tex. 2020). To succeed, a plaintiff must show that a defendant (i) made

a statement, (ii) concerning a product or service of another, (iii) that is false, (iv) published with

malice, (v) with the intent that the publication cause pecuniary loss or the reasonable recognition

that it will, and (vi) pecuniary loss does in fact result. Id. Although there is overlap between the

two claims, defamation is concerned with a protection of reputation, while business disparagement

“seeks to protect economic interests against pecuniary loss.” Waste Mgmt. of Tex., Inc. v. Tex.

Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). Because of this, in a claim of

business disparagement, proof of special damages is seen as a “fundamental element of the tort.”

Id. Special damages, synonymous with economic damages, represent specific economic damages

that must be proven. In re Lipsky, 460 S.W.3d at 593.

Here, plaintiffs failed to specifically prove economic losses in a way that justifies an award

of special damages. As evidence of damages, Escalante-Sostre has merely gestured the Court

toward the Law Office’s yearly tax returns. Pl.’s Exs. 52–57. The tax returns show a significant

drop in revenue from tax year 2019 to the subsequent tax years. But this coupled with Escalante-

Sostre’s testimony that the disparagement caused the loss of business is insufficient evidence of

special damages. While the Court acknowledges that some of the lost revenue could have come

from the Defendants’ defamatory campaign, the Court also acknowledges that many small

businesses suffered as a result of the COVID-19 pandemic and its accompanying lockdowns which

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began in March 2020. This is even more undercut by testimony from Escalante-Sostre and a former

employee, Jose Kadar, that in 2019, Escalante-Sostre had to let go some of her staff because they

could not afford to keep them on the payroll. It is therefore difficult to determine from the evidence

provided what business was lost due to the Defendants’ statements and what business was lost

because of other factors.

Moreover, the Court must avoid double-dipping on damages where all revenue from Law

Office flows to Escalante-Sostre. Ultimately here, the Court used business tax returns to gauge

damages done to Escalante-Sostre personally. When a solo practicing lawyer’s primary source of

income is always her firm’s income, separating the two for damages purposes requires a keen eye

to avoid allowing a plaintiff to double-dip in its request for damages.

The plaintiffs have provided insufficient evidence to grant special damages, and therefore

the Court will not award damages on their claim of business disparagement.

C. Civil Conspiracy

Plaintiffs also raise claims of civil conspiracy against the Defendants, as well as against a

number of the Intervenors. An actionable civil conspiracy occurs when a group of two or more

persons seek to “accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful

means.” Cotton v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701 (Tex. App.—Fort Worth

2006, pet. denied) (overruled on other grounds). A successful civil conspiracy plaintiff proves that

the group had a “meeting of minds on the object or course of action,” and that they undertook “one

or more unlawful, overt acts” which resulted in proximate damages to the plaintiff. Id. A civil

conspiracy claim may be proved by circumstantial evidence and reasonable inferences from the

parties’ actions. Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex. 1963).

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The Court finds that the plaintiffs failed to establish through clear and specific evidence

that the Defendants and the Intervenors agreed on the objective to defame Escalante-Sostre. No

meeting of the minds was shown, although it appeared the Intervenors where “piling on.” Inherent

to the “meeting of the minds” element of conspiracy is an assumption that the conspirators

understood that their shared purpose was unlawful or that the means to accomplish a shared lawful

purpose was unlawful. The Court can find no evidence here that the Intervenors agreed with the

Defendants to unlawfully defame Escalante-Sostre to jointly take her down. Instead, it appears to

the Court that while the Defendants may have intended to defame Escalante-Sostre to gain

immigration benefits and get their money back, they persuaded the Intervenors to join the lawsuit

by telling them Escalante-Sostre had defrauded them and encouraging them to “assert their rights.”

D. Permanent Injunction

Finally, Plaintiffs seek a permanent injunction against the Defendants. Plaintiffs request an

injunction that prohibits the Defendants from:

i. Bullying and harassing Plaintiffs and their agents, associates, contacts, friends and third

parties by showing up at their children’s events and causing disruption to Plaintiffs and

their places of business.

ii. Intimidating, bullying and harassing Plaintiffs’ friends, associates and third parties

related to them in order to interfere with Plaintiffs and their children’s ability to perform

their jobs, hobbies and extracurricular activities.

iii. Disrupting Mrs. Escalante-Sostre’s law office in order to try to intimidate and discredit

Plaintiffs.

iv. Bullying and harassing Plaintiffs, its associates, employees, contractors, and/or third

parties.

v. Bullying and harassing Plaintiffs, its agents, employees, contractors and/or third parties

with the purpose of interfering with the progress and work of Mrs. Escalante-Sostre’s

office or hobbies or personal activities or that of her minor children.

Plaintiffs also seek an order requiring the removal of any prior defamatory statements made

against Plaintiffs or the Law Office and requiring that the Lopezes “report to any media source

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Defendants previously dealt with that the statements were determined to be false and defamatory

by the Court.” The Court finds that the request for a permanent injunction should be granted in

part and denied in part.

Injunctions on future speech, also known as “prior restraints,” are heavily disfavored. Both

the Texas Supreme Court and United States Supreme Court have long held that prior restraints are

presumptively unconstitutional and represent a gross infringement on free speech rights under both

the U.S. and Texas Constitutions. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“The

thread running through all these cases is that prior restraints on speech and publication are the most

serious and least tolerable infringement on First Amendment rights.”); Davenport v. Garcia,

834 S.W.2d 4, 9 (Tex. 1992) (“The presumption in all cases under section eight [of article I of the

Texas Constitution] is that pre-speech sanctions or ‘prior restraints’ are unconstitutional.”). The

party who seeks prior restraints “carries a heavy burden of showing justification for the imposition

of such a restraint.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Kinney v. Barnes is the leading Texas Supreme Court case regarding actions for a

permanent injunction enjoining speech deemed defamatory. 443 S.W.3d 87 (Tex. 2014). In

Kinney, a legal recruiter sued a former employer for defamation. Kinney, however, sought no

damages and only sought a permanent injunction enjoining future publication of the speech held

to be defamatory. Kinney sought an order requiring Barnes to (i) remove the allegedly defamatory

statements from Barnes’ websites, (ii) contact third-party republishers of the statements to have

them remove the statements, and (iii) conspicuously post a copy of the permanent injunction on

Barnes’s website for six months. Kinney further sought an order permanently enjoining Barnes

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from making statements similar to the speech held to be defamatory. The Texas Supreme Court

addressed the constitutionality of the relief sought, assuming that the speech was defamatory.

The court first held that an order requiring Barnes to remove the defamatory statements

from his website and request that third-party republishers do the same was constitutionally

permissible. The court considered such an order as “requir[ing] the erasure of past speech that has

already been found to be unprotected in the context in which it was made,” that it was “accurately

characterized as a remedy for one’s abuse of the liberty to speak,” and was therefore “not a prior

restraint.” Id. at 93.

The court also acknowledged the limited circumstances in which prior restraints are

constitutionally permissible. The court (and Escalante-Sostre in this case) cited to Ex parte

Tucker, 220 S.W. 75 (Tex. 1920), a case in which the Texas Supreme Court suggested that prior

restraints may be permissible to prevent interference of the “exercise of natural and contractual

rights” via “[v]erbal or written threats.” But in Kinney, the court cabined this exception by noting

that it is permissible “only when essential to the avoidance of an impending danger” and “only

when it is the least restrictive means of preventing that harm.” Kinney, 443 S.W.3d at 95 (citing

Davenport, 834 S.W.2d at 9, and Ex parte Tucci, 859 S.W.2d 1, 6 (Tex. 1993)).

But broadly, Kinney holds that while an injunction may order removal of speech previously

held to be defamatory, the proper remedy for future defamation is damages from a new defamation

action. The Kinney court was especially concerned about the possibility of an overbroad

injunction, as “[g]iven the inherently contextual nature of defamatory speech, even the most

narrowly crafted of injunctions risks enjoining protected speech because the same statement made

at a different time and in a different context may no longer be actionable. Untrue statements may

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later become true; unprivileged statements may later become privileged.” Kinney, 443 S.W.3d

at 98. Moreover, even where a defamation plaintiff is concerned that damages will not provide an

effective remedy against a defendant (as when the defendant is judgment-proof), such a concern

is insufficient to justify a prior restraint. Id.

Here, most of Escalante-Sostre’s requested injunction does not meet the very limited

exception to the rule against prior restraints, and therefore must largely be denied.

As in Kinney, the Court will include in its judgment an injunction requiring the removal of

statements adjudicated defamatory from any places they were posted by the Defendants. The

injunction will also require, similar to Kinney, that the Defendants request from any third party

republisher that the defamatory statements already made be removed from publication because a

court found them to be defamatory.

All other requested injunctive relief must be denied. The Court finds that the requested

language for the injunction is overbroad and is not sufficiently justified by an imminent danger to

the plaintiffs. Although this Court does not condone “bullying,” “harassment,” or “disrupting,”

the injunction, as crafted, will chill protected speech. Moreover, the plaintiffs have sufficient

remedies available to them should the Defendants engage in subsequent defamatory behavior.

Defendants’ and Intervenors’ continued defamation could be considered evidence of malice

necessary to impose exemplary damages.

V. CONCLUSION

In conclusion, the Court finds that Defendants and Intervenor Vaca defamed Escalante-

Sostre and that such defamation was defamation per se. The Court awards Escalante-Sostre actual

damages from Defendant Gutierrez and Intervenor Vaca in the amount of $700 each ($500 in loss

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of reputation, and $200 in mental anguish), and awards actual damages against Defendant Lopez

in the amount of $150,700 for loss of reputation and $20,000 for mental anguish. The Court denies

Plaintiffs’ requests for exemplary damages, the claim of business disparagement, and the claim of

civil conspiracy. Finally, in its Judgment pursuant to this Opinion, the Court will issue an

injunction requiring the removal from all platforms of all statements deemed defamatory but will

not enjoin future speech.

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