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Behaving Badly Didn’t Justify Restraining Order—C.A.
‘Rude, Impatient, Aggressive, and Derogatory’ Conduct, Standing Alone, Doesn’t Amount to a ‘Threat of Violence,’ Opinion Says, Lifting Restrictions on Lawyer Who Berated Clerk at Credit Union, Recording Encounter on iPhone
By a MetNews Staff Writer
An attorney who became antagonistic and offensive in dealing with a clerk at a credit union, and videotaped her over her repeated objection, then uploaded the video to YouTube, was improperly subjected to a workplace violence restraining order, the Sixth District Court of Appeal decided yesterday.
There was “no evidence” that appellant Matthew Mehdi Rafat “made a credible threat of violence,” which is the requisite under Code of Civil Procedure §527.8 for the issuance of such an order, Justice Allison M. Danner wrote in an opinion that reverses a decision by Santa Clara Superior Court Judge Joseph Huber.
The order was secured by Technology Credit Union (“TCU”) for the protection of its employee, Maria Leza.
Respondent’s Brief
The incident was summarized in TCU’s appellate brief by San Francisco attorney Venus Burns in these words:
“On March 24, 2021, Mr. Rafat walked into the Campbell branch of Technology Credit Union…and requested to open a new business account. He was helped by one of Tech CU’s employees, Maria Leza. During the course of the interaction, Mr. Rafat became frustrated at the ‘Know Your Customer’ questions and began filming Ms. Leza on his iPhone. As can be seen on the video tape, Mr. Rafat belittled Ms. Leza, stood over her and used an extremely aggressive tone. As if this alone wasn’t enough to cause Ms. Leza to have concerns for her personal safety, Mr. Rafat then posted the video to YouTube, including a clear image of Ms. Leza’s face, accompanied by her business card with her contact information on it.”
She accused Rafat of “bullying and frightening Ms. Leza.”
Burns, of the law firm of Joseph & Cohen, P.C., maintained:
“While Mr. Rafat argues that he did not intend to be threatening, that is not the legal standard upon which an injunction under Code of Civil Procedure section 527.8 can be issued. What needs to be shown and was demonstrated during a three-hour hearing before Judge Huber was a ‘credible threat of violence’. Any factual conflicts and questions of credibility must be resolved in Tech CU’s favor and in support of the trial court’s findings. When this is done, it becomes clear that the restraining order was proper and should not be disturbed.”
Danner’s Opinion
Rejecting that reasoning, Danner wrote:
“Rafat’s conduct on March 24 was indisputably rude, impatient, aggressive, and derogatory. Further, he had a history of using aggressive language, including making offensive remarks. However, while he appeared angry and frustrated during the March 24 incident and its aftermath, there was not sufficient evidence produced by TCU linking any of Rafat’s statements or conduct to any implied threat of violence. The only threats he made were of litigation and complaints to a federal agency. His actions toward M.L. consisted of berating her, complaining to her supervisor, and posting an accurate video of their March 24 interaction on YouTube.”
She said that while Leza—whom she referred to as “M.L.”—and TCU “found the conduct extremely troubling,” §527.8 requires “a ‘credible threat of violence’ that would cause a reasonable person to ‘fear for his or her safety.’ ” Danner declared:
“Here, Rafat’s conduct reasonably caused M.L. to want to avoid any further encounters with him due to his aggressive and rude conduct. In addition, there is substantial evidence that M.L. was actually afraid of Rafat. But we find insufficient evidence in the record to support a factual finding that a reasonable person would believe Rafat would resort to violence against M.L. or would encourage anyone else to do so.”
The case is Technology Credit Union v. Rafat, H049471.
Rafat, who practices business and employment law, represented himself.
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