IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

TECHNOLOGY CREDIT UNION, )

)
)
Plaintiff and Respondent, )
)
v. )
) Case No.: H049471
MATTHEW MEHDI RAFAT, )
)
)
Defendant and Appellant. )
_____________________________________ )
)
)
)
)
)
)

Santa Clara County Superior Court No. 21CH009964

The Honorable Joseph Huber

APPELLANT’S OPENING BRIEF

MATTHEW RAFAT
Pro Se
willworkforjustice@yahoo.com
3974 Acapulco Dr
Campbell CA, 95008-3804
408 379 6069 (landline)

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 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 3
STATEMENT OF APPEALABILITY 4
STATEMENT OF THE CASE 4
STATEMENT OF FACTS 8
LEGAL ANALYSIS 10
CONCLUSION 18
Requests for Judicial Notice 19
Declaration in Support 21
CERTIFICATE OF WORD COUNT 23
PROOF OF SERVICE BY MAIL 24

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 TABLE OF AUTHORITIES

CASES Pages
Kenne v. Stennis, 230 Cal.App.4th 953 (2014) …………………………………… 13, 18
Ieradi v. Mylan Labs, Inc., 230 F.3d 594, 597 (3d Cir. 2000) …………………… 19

STATUTES and COURT RULES

California Code of Civil Procedure
CCP 425.16(e) …………………………………………………………… 10, 12
CCP 525 ………………………………………………………………… 4
CCP 527.8 ……………………………………………………..…. 8, 11, 12, 16, 18, 22
CCP 527.8(b)(2) ………………………………………………………… 8, 16
CCP 527.8(h) ……………………………………………………………. 12, 18, 22
CCP 904.1(6) ……………………………………………………………. 4
CCP 906 …………………………………………………………………. 4
CCP 909 …………………………………………………………………. 4, 10, 11
California Rules of Court
Rule 8.406 ………………………………………………………………. 4
Rule 8.122(a)(3) ………………………………………………………… 21
Rule 8.122(a)(2) ………………………………………………………… 22
California Financial Code
14002 …………………………………………………………………… 9
14806 …………………………………………………………………… 9

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MATTHEW RAFAT (pro se)
3974 Acapulco Dr
Campbell CA, 95008
408 379 6069
Pro Se

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

TECHNOLOGY CREDIT UNION, )

)
)
Plaintiff and Respondent, )
)
v. )
) Case No.: H049471
MATTHEW MEHDI RAFAT, )
)
)
Defendant and Appellant. )
_____________________________________ )

STATEMENT OF APPEALABILITY
This appeal follows the granting of a TRO/WRO against Matthew Rafat (“Appellant”) on
August 25, 2021 in Santa Clara County Superior Court, followed by an order on August 30, 2021
adding a personal conduct, sua sponte, TRO to the WRO originally requested by Technology
Credit Union (“Tech CU”). An appeal is authorized by CCP 525, 904.1(6), and CRC 8.406.
CCP 906 and 909 also apply.
STATEMENT OF THE CASE
Absent express clarification, all references are from either 1) Appellant’s narrative
testimony on August 11, 2021 as set forth in the court reporter Susan Yakushi’s transcript, pages
77-86; and/or 2) WV-120, Response to Petition for Workplace Violence Restraining Orders,
including Attachment 11, filed on April 14, 2021.

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 On March 24, 2021, around 2:00p.m., Appellant, a small business owner, attempted to
make a deposit and open a business checking account at Technology Credit Union (“Tech CU”).
Appellant was able to make a deposit but unable to open a business checking account. When the
employee appeared confused and unwilling to accept basic information relating to the business,
Appellant began recording her on his iPhone at a safe distance and behind a plexiglass barrier.
[Susan Yakushi transcript, pages 35-37: “THE COURT: how close was he to you? … THE
WITNESS: Um, probably four feet, four or five feet.” 35:18-27]
“No violent threats were made, no physical contact was made, and Respondent stayed in
position in the designated social distancing area at all times while interacting with the
employee.” See Attachment 11, page 3; Appellant’s narrative on August 11, 2021 as set forth in
Susan Yakushi’s transcript, pages 77-86; and cross-examination of Maria Leza on August 11,
2021, transcript by Susan Yakushi, page 44: 2-18 and 83:17-18:
Q. When you left your seat to go into [supervisor] April Conti's office and then return back to
me, did I ever move from my position in front of your desk?
A. No. You stayed in front of my desk.
Q. And when you provided me with the business card, did I take the business card from you?
A. Yes, you did.
Q. At no point in time, in your entire life, have I made any physical contact with you, right? …
THE WITNESS: Not correct. I helped you about two years ago.
BY MR. RAFAT:
Q. I meant physical contact with you. So at any point in time have I ever touched you?
A. Oh, no…
THE COURT: … I understand there's no physical contact. I get that.
The one and only conversation between Appellant and the employee in the last two years
took place on a single day for a total of about “five minutes.” [Yakushi transcript, 35:15-17] On
March 24, 2021, the same day the employee failed to open a business checking account,
Appellant contacted the employee’s manager, writing, “Please open an investigation and

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determine the reason for the refusal and/or incompetence. A credit union is subject to
government charter and cannot reject applicants who have proper documentation.” [Yakushi
transcript, pages 80:18-28, page 81:1-9] To facilitate a resolution and provide information
regarding small business issues at a government-chartered institution, Appellant uploaded the
video of the interaction on YouTube, which is owned by Google. [Appellant’s narrative, Yakushi
transcript, pages 77-86]
On March 26, 2021, Appellant received an email from “YouTube Support Team,”
stating, “This is to notify you that we have received a privacy complaint from an individual
regarding your content,” referring to the video Appellant posted of the incident on Tech CU’s
premises. Google/YouTube provided 48 hours to address the privacy complaint and prevent a
takedown. [Declaration in Support below, 5; employee testimony, Yakushi transcript, 30:23-25]
After receiving YouTube’s email, on or around March 26, 2021, Appellant returned to
Tech CU and took another video proving the first video was taken in an area accessible to the
public and viewable from outside the building. [Yakushi transcript, page 83: 23-25] Only thirty
seconds of the video include Appellant entering Tech CU’s premises, and at no point in time did
Appellant interact with or engage in any way with the employee recorded in the first video. After
posting the second video online, which includes commentary relating to “citizen journalism” and
holding bad actors accountable, Google/YouTube did not remove any of Appellant’s videos. On
March 30, 2021, Appellant successfully opened a business checking account at a different credit
union using the same business documents he brought with him to Tech CU on March 24, 2021.
[See Declaration in Support below, 8.]
On April 5, 2021, having failed to remove Appellant’s videos on YouTube and almost
two weeks after the alleged incident, Tech CU filed a Request for a Workplace Restraining Order
against Appellant. The order was granted ex parte by a court commissioner while Appellant was
out-of-state with no actual notice of the request.
On June 1, 2021, the date of the OSC hearing on the application, Tech CU’s counsel
refused to consent to a commissioner hearing the matter and the hearing was re-scheduled to

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August 2, 2021 in Dept 22. The commissioner rejected a request by Appellant for an earlier
hearing date. [See “Minute Order,” June 17, 2021 and Appellant’s Declaration below, 7.]
On August 2, 2021, the parties appeared in Dept 22 but not in front of the judge regularly
sitting in that department. The judge, Mary Arand, indicated time constraints and re-scheduled
the hearing for later that same afternoon. Despite rescheduling the hearing for later that same day
to give herself more time to review the papers, when the parties returned, the judge admitted she
had “not read all the papers.” She re-scheduled the hearing again to a later date in order to review
the papers fully. [See SCC court records, August 2, 2021, “Declaration: In Support.”]
On August 2, 2021, Appellant filed a CCP 170.6 motion, requesting a judge who had
time to read all the papers. The matter was continued to Judge Joseph Huber on August 11, 2021.
[See SCC court records, August 4, 2021, “Request: Action.”]
On August 11, 2021, Judge Huber heard testimony from the parties but refused to allow
oral argument. At one point, Judge Huber told Appellant that he could not use the word
“violated” in a question referring to the employee’s admitted violation of COVID19 regulations.
[Yakushi transcript, 43: 21-24 and 44: 1]
On August 11, 2021, Judge Huber scheduled another court date and ordered the parties to
return on August 25, 2021 for his ruling.
On August 25, 2021, Judge Huber granted an injunction and restraining order, finding
that “defendant was rude, impatient, and overly aggressive towards the plaintiff; Plaintiff has met
its burden; Plaintiff’s request for a restraining order is granted, as requested… [and] shall expire
on December 31, 2022 @ 5:00p.m.” Judge Huber returned Exhibits A and B to Appellant, which
contained the videos posted on YouTube in a USB format. [See SCC court records, August 25,
2021, “Minute Order.”]
On August 28, 2021, in an order filed on August 30, 2021, Judge Huber entered an
additional order beyond the scope of Tech CU’s original workplace harassment request. Judge
Huber, sua sponte, entered not only a WRO but a general TRO against Appellant, including a

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Personal Conduct order. [See SCC court records, August 30, 2021: “Order: Restraining Order
After Hearing.”]
On September 20, 2021, Appellant timely filed a notice of appeal at SCC Superior Court
and on October 11, 2021, e-filed a case information statement with the appellate court.
STATEMENT OF FACTS
Appellant Matthew Rafat is an active member of the International Federation of
Journalists and the California State Bar. (Appellant was a member of the D.C. Bar but
voluntarily resigned in protest of 2018’s Trump vs. Hawaii.) Appellant’s work has been featured
in Yahoo! Finance through a third party [Attachment 11, page 3], and the business for which
Appellant was seeking a checking account is journalism-related. Since the business, Lononaut
aka Lononaut Agency, opened in February 2021, it has already published unique content of
significant public interest. Such content includes a timeline of the Freedom Summer ’64
homicides of Schwerner, Goodman, and Chaney using recently declassified files. [See
“Mississippi Burning,” posted at lononaut.substack.com/p/mississippi-burning] Appellant’s
business content also includes a YouTube video taken at the Jimmy Carter Presidential Museum
in Atlanta and an interview with a Rosa Parks guide in Montgomery, Alabama. The two videos
posted relating to Tech CU’s alleged misconduct are part of a consistent effort by Appellant to
hold actors accountable and to make facts plain. Despite not having purchased any advertising
through YouTube, Appellant’s business YouTube channel already has over 1,000 views, with
one of the popular videos being of MLK’s memorial.
Where no physical contact occurred and no violent threats were made against an
employee, CCP 527.8 does not allow a trial court judge to issue a WRO, then add an unsolicited
TRO. The expedited WRO/TRO process requires evidence of a credible threat of violence. See
CCP 527.8(b)(2). Strong, even aggressive, criticism relating to employee performance, in and of
itself, does not meet the required standard. Additionally, CCP 527.8(c) protects Appellant’s
speech because his second video—cited as part of alleged pattern of conduct against the
employee—is an example of citizen journalism California’s legislature intended to protect: “This

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section does not permit a court to issue a temporary restraining order or order after hearing
prohibiting speech or other activities that are constitutionally protected, or otherwise protected
by Section 527.3 or any other provision of law.” (See Exhibit B, second USB drive.)
The court may ask, “How is a video of alleged employee misconduct at a credit union
relevant to the public interest?” First, all financial institutions deserve scrutiny, in particular
credit unions, which are quasi-governmental entities Congress set up as alternatives to
shareholder-owned banks. When a community-based, member-based, and government-chartered
institution denies a member a new checking account, the fact that the institution was authorized
specifically to provide more accessible financial options means speech relating to its practices is
a matter of public concern ipso facto. (See California Financial Code 14002 and 14806.)
Additionally, Tech CU has a history of refusing to acknowledge failure and thus a motive
to cover up employee misconduct and/or incompetence. (As stated above, Tech CU initially
attempted to remove Appellant’s YouTube video through a privacy complaint.) Appellant
reported on Tech CU’s management failures as early as 2018. [See Attachment 11, page 6: “In
2018, Respondent published an online article that opened with the following two sentences: ‘All
of us suspect financial institution executives are SOBs, but most of them have the decency to act
dignified in public. Not San Jose, California-based Tech CU.”] A more in-depth discussion of
the differences between credit unions and banks can be found on page 6 in Attachment 11 filed
with the trial court.
On May 3, 2021, Appellant published an article asking California’s Division of Financial
Institutions to increase oversight. Though Appellant has been unsuccessful thus far with respect
to California regulators, a separate article relating to Barclays Banking on June 23, 2021 resulted
in an admission of error and an email from the Office of the President. [See
lononaut.blogspot.com/2021/06/small-business-chronicles-barclays.html] In short, Appellant’s
work, whether before as an individual before 2021 or as a business after 2021 has consistently
addressed public issues.

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 Second, a WRO/TRO was never intended to allow financial institutions to chill speech.

The two-part YouTube videos involving Tech CU and Appellant pertain to free speech,

corporate accountability, and managerial oversight. The videos are particularly significant post-

2008-2009. Yet, on August 25, 2021, Judge Huber admitted he did not listen to the second video

(labeled Exhibit B) in its entirety. [Susan Stevenson transcript, 5: 2-5] Had he done so, he would

have recognized not only issues involving California’s anti-SLAPP law, but clear and reversible

flaws in his own ruling. Judge Huber’s failure to review a video he himself cited in his decision

is not the only oddity surrounding lower court proceedings. On August 25, 2021, Judge Huber

was unable to recognize the employee whose testimony he evaluated just two weeks earlier.

Stevenson transcript, 4: 18-22:

THE COURT: “So Ms. Leza you are here. Is your counsel here?”

COUNSEL FOR EMPLOYEE: “No, I am not Ms. Leza… Ms. Leza is not here.”

Even if the court does not believe CCP 425.16(e) applies to a registered journalist with a

proven, effective history of muckraking, the testimony of all parties is undisputed regarding

violence or threats of physical harm: none occurred. Thus, it was clear error to issue a WRO—

which is literally titled, “Petition for Workplace Violence Restraining Orders, Workplace

Violence Prevention”— when no violence or threats of violence are involved.

LEGAL ANALYSIS

First, this appellate court has broad discretion in reversing the trial court. In California, a

petition for WRO/TRO does not entitle the accused to a jury. Consequently, under CCP 909, the

appellate court may consider additional facts or evidence, even when such determinations are

contrary to those made by the trial court:

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 “In all cases where trial by jury is not a matter of right or where trial by jury has
been waived, the reviewing court may make factual determinations contrary to
or in addition to those made by the trial court. The factual determinations may
be based on the evidence adduced before the trial court either with or without the
taking of evidence by the reviewing court. The reviewing court may for the
purpose of making the factual determinations or for any other purpose in the
interests of justice, take additional evidence of or concerning facts occurring at
any time prior to the decision of the appeal, and may give or direct the entry of
any judgment or order and may make any further or other order as the case may
require. This section shall be liberally construed to the end among others that,
where feasible, causes may be finally disposed of by a single appeal and without
further proceedings in the trial court except where in the interests of justice a new
trial is required on some or all of the issues.” [CCP 909, Emphasis added]

A diligent review of the lower court’s filings will show no objective or rational basis for a
WRO/TRO, much less one including a personal conduct order when the record is undisputed that
no interactions have ever occurred between the employee and Appellant outside of work.
Second, as will be explained, though this court can void the TRO/WRO on procedural
grounds, it should take advantage of this opportunity to clarify whether anti-SLAPP protections
apply to the restraining order process. Case law is not voluminous or clear on the issue.
Third, though the Legislature intended CCP 527.8 to be an expedited process using
Judicial Council forms, it took approximately five months from the date of the Petition to the
final injunction. On May 3, 2021, Appellant filed an objection to Tech CU’s rendering of a
simple OSC into a full-blown trial, which was ignored by the lower court:

“the TRO/WRO process is designed as a separate, expedited process from

regular civil litigation. Once a court allows [Tech CU] additional briefs not
contemplated by the legislature—or, for that matter, any of the Judicial
Council’s own online guides—it renders the TRO/WRO process similar
to ordinary litigation but without an opportunity for Respondent to utilize
its benefits, such as discovery.” [Objection to Petitioner’s Reply, Page 1]

The lower court’s failure to rein in Tech CU restricted Appellant’s movements in his own
neighborhood for months and exposed him to financial harm. As expressed in an article
published on May 3, 2021 and in Attachment 11 (page 7) filed with the lower court, Appellant’s
membership agreement allows its law firm, a professional corporation, to sue for attorneys’ fees

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and court costs “if any of the following occur: …You fail to conduct your business with Tech
CU in a civil and businesslike way… You agree to pay any attorney’s fees and court costs we
incur to enforce our member policy.” Given the one-sided terms of Tech CU’s membership
agreement; the lower court’s failure to heed the legislature’s intended process; and Judge
Huber’s scheduling of an unnecessary in-person hearing on August 25, 2021, this appeal is not
academic to Appellant, nor should it be to this Court.
The time from April 7, 2021, when the temporary restraining order was granted, to June
1, 2021, the first scheduled hearing, is also not academic. CCP 527.8(h) requires a hearing to be
held 21 or 25 days “from the date that a petition for a temporary restraining order is granted or
denied.” Almost twice the allowable time transpired between the granting of a WRO/TRO and
the first hearing. Tech CU did not apply for an OST, and its rejection of the commissioner at the
first hearing caused the hearing to be held on August 11, 2021—approximately four times
greater the legislature’s intent. The ostensible reason for the legislature’s restricted timeframe is
to avoid what occurred here, which is unnecessary attorneys’ fees and unnecessary filings
rendering a simplified process using judicial council forms into a regular trial. Put simply, the
lower court violated the specific process dedicated to the WRO/TRO and in doing so, harmed
Appellant by unduly restricting his movements and unnecessarily increasing the amount of
potentially recoverable attorneys’ fees under CC 1717. In short, Tech CU directly violated CCP
527.8(h) when it rejected a commissioner and did not apply for an OST.
Though this appellate court should reverse the lower court under CCP 527.8(h) and
dispose of this matter procedurally, Appellant also asks for a substantive ruling on whether the
spirit of CCP 527.8(c) allows anti-SLAPP principles to be applied to the expedited WRO/TRO
process. Appellant raised the issue in Attachment 11, pages 5 and 6: “Under CCP 425.16(e), ‘an
act in furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: “(4) any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.”

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 Here, this appellate court is able to 1) reverse and vacate the lower court’s ruling pursuant
to CCP 527.8(h); and 2) tame the unfairness of Kenne v. Stennis, 230 Cal.App.4th 953 (2014),
which held invalid a malicious prosecution action even if a TRO/WRO was clearly frivolous and
malicious. In other words, this court should affirm the strict, simplified TWO/WRO process and
uphold the 25 days’ hearing limit--which was violated when the lower court and Tech CU
allowed months to pass from the initial WRO filing and final injunction--and it should also
clarify CCP 527.8(c)’s role in the overall process. Note that Appellant is not asking this court to
allow anti-SLAPP motions and procedures in the TRO/WRO process; at the same time, the facts
herein are an ideal foundation on which to guide lower courts on the application of CCP
527.8(c). In short, this court has an opportunity to address Kenne as well as clarify, in practical
terms, the state legislature’s intent.
Appellant requests if this court rules CCP 527.8(h) applies and the lower court failed to
respect the legislature’s unique, expedited process balancing protection of victims of alleged
violence and due process for the accused, that this court also order lower courts to consider
testimony on the matter of speech suppression when presented with evidence that the accused in
a WRO or TRO is 1) a registered journalist with a history of publishing content on matters of
public concern; and/or 2) a non-journalist with a history of publishing content on matters of
public concern.
Even if this court wishes to avoid Kenne and the free speech issues presented herein, it
should consider other items ignored by the lower court. As stated in Appellant’s WV-120 and
Attachment 11, the employee perjured herself in an attempt to make it appear Appellant was
romantically interested in the employee. (See Requests for Judicial Notice herein, number 2.)
Despite video proving the perjury, the lower court did not address it. (See Exhibit A, employee’s
WRO declaration, and Yakushi transcript, 48: 1-23.) Appellant does not wish to repeat the
arguments made in Attachment 11, particularly on pages 2 and 3, and requests the court read the
Response to Petition for Workplace Violence and Attachment 11, filed April 13, 2021, in its
entirety.

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 Tech CU’s employee perjured herself both in the declaration used to garner a WRO
and also in court: “Q. What did I say when I asked you to write down my phone number,
according to you? A. What did you say? Um, you pretty much just told me to write down your
phone number.” [Yakushi transcript, 48: 16-19] Yet, in the video of the incident admitted into
evidence, at no point does Appellant ever tell the employee “to write down” his phone number.
Moreover, there would be no point in asking the employee to write down Appellant’s phone
number because the employee admitted she already had access to the number. [Yakushi
transcript, 47: 6-18: Q. So you were able to write down my phone number based on the
information that you had on the screen, correct? A. Yes. Q. And you did not do so? A. No.]
Incredibly, the employee perjured herself again through her own direct testimony in
court. [Yakushi transcript, 49: 4-15] Employee Leza agreed she stated in her WRO declaration,
based on her personal knowledge, that Appellant “frequently visit[s]” her branch. Moments later,
she admitted her statement was false:
Q. So, from 2017 until today, I've only -- as far as you know, you've only seen me two times in
that branch?
A. From my point, yes.
Q. What does the word "frequently" mean to you?
A. Multiple times.
Q. Does it mean often, many times?
A. Um, just multiple times.
Q. Would that be more than two times?
A. Sure. Yeah.
See also Yakushi transcript, 75: 16-18, in which the branch’s lead manager admits, in
cross-examination, that she only dealt with Appellant four or five times in the last six years and
had a 100% success rate in handling Appellant’s transactions. [Yakushi transcript, 76: 1-7]

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 Additionally, the record is currently undisputed that Appellant, over the last six years,
only visited the relevant Tech CU employee area 25 times total—in other words, not even once a
month. [Yakushi transcript, 85: 11-25]
The employee’s dissembling did not stop there. At the hearing, the employee attempted
to raise, for the first time, a controversial conversation with Appellant that allegedly occurred
years ago. When Appellant, who did not remember meeting the employee prior to 2021, asked
for clarification, he was given an answer indicating yet another lie: “Q. What specifically did I
mention about the borders? A. That they should be up or should not be up. Q. You just said two
different things completely.” [Yakushi transcript, page 57: 28, 58: 1-4] (For the record,
Appellant is an immigrant.)
Though multiple instances of perjury ought to be enough to void a WRO/TRO, Appellant
will now address Judge Huber’s specific decision. Judge Huber ruled a WRO could be granted
on a finding of a credible threat of violence under a clear and convincing standard from the
perspective of a reasonable person in fear for her safety. He then stated that Appellant appearing
at Tech CU two times in one week evidenced a continuity of purpose, which, when combined
with Appellant’s rude, impatient, belittling, and sarcastic behavior, met the legal standard of both
clear and convincing as well as reasonableness. He also cited the fact that the YouTube video
online showing the employee’s face as well as her business card made the employee’s fear for
her safety reasonable. The judge stated he believed Appellant asked the employee’s manager to
fire her, which further gave credence to the reasonableness of the employee’s fear.
Unfortunately for the lower court, it is undisputed that no contact occurred between
Appellant and the employee outside of work, and thus under no reasonable standard can a
second visit to a workplace, during which no conversation or targeted action occurred,
whether attempted or otherwise, with the affected employee constitute a “continuity of
purpose” for the granting of a TRO/WRO. See Yakushi transcript, 83: 20-25:
APPELLANT: “So I've never contacted Maria Leza. I've never had any interactions with her
other than on the 24th and the 25th. Although, on the 25th, I had no interaction with her,

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specifically. I happened to go into the branch in order to show that anyone can pick up a business
card of any employee at that branch.”
California’s legislature wisely balanced the need for due process with the need for
protection of victims by requiring a “credible threat of violence.” The legislature defined the
term as a “knowing and willful statement or course of conduct that would place a reasonable
person in fear for his or her safety, or the safety of his or her immediate family, and that serves
no legitimate purpose.” (See CCP 527.8(2), emphasis mine, also cited in Attachment 11, page 3.)
As stated above and in his declaration below, Appellant returned to the premises as a result of a
privacy take-down notice filed by Tech CU against his YouTube video. A legitimate purpose
was clearly present in Appellant showing Google/YouTube that the premises recorded were
viewable from outside the building and that any member of the public could walk into Tech CU
and take a business card. (Appellant did not take the business card of employee Leza on the
second visit.) [Yakushi transcript, 55: 27-28 and 56: 1-19] Appellant’s legitimate purpose was
effectuated when Google/YouTube did not remove Appellant’s videos from his business
YouTube channel after Appellant posted the second video proving a lack of reasonable
expectation of privacy in the employee area. [Declaration, see below, 5]
Moreover, the undisputed timeline of events belies any “purpose” involving a credible
threat. Over one week passed from the time of Appellant’s second visit to Tech CU to his first
notice of the WRO request, during which no barrier existed preventing him from visiting Tech
CU’s Campbell branch. Yet, from the date of the second visit until now, it is undisputed
Appellant never contacted nor attempted to contact the employee or visit Tech CU’s Campbell
branch, and the employee admitted during cross-examination that no one called her as a result of
the videos being posted. [Yakushi transcript, 56: 16-27] A “continuity of purpose”—more
accurately stated as a “willful… course of conduct… that serves no legitimate purpose”—
cannot logically include only a single willful interaction between an employee and a
customer lasting about five minutes. See CCP 527.8(b)(2). On its face, Judge Huber’s
reasoning fails to meet the elements required for a WRO.

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 Furthermore, the legislature did not cite a reasonable person’s fear of losing her job, nor
subjectively rude or disrespectful behavior to be part of the allowable criteria considered by a
court. It is undisputed herein that the employee was distracted and unable to fulfill a simple
request. [Yakushi transcript, 64: 24-27] Not to belabor the point, but we are dealing with a
unique, expedited process attempting to balance the rights of reasonable persons fearing violence
with the rights of the accused. Fearing termination from one’s job, as cited by Judge Huber,
cannot be a basis for a WRO/TRO, nor is it relevant. Were it so, every whistleblower in the state
could be silenced by a bad actor’s subjective complaints of emotional harm. (Lest this court
believe such a result is unrealistic, note that Theranos’ whistleblower Tyler Schultz has said he
required 400,000 USD to defend himself against litigation seeking to silence him.) To allow
Judge Huber’s criteria to be an allowable part of the WRO analysis would limit the ability of
customers as well as coworkers to complain vigorously about employee misconduct or
incompetence. Such a rationale is particularly flawed with respect to a credit union, which has
members and owners with voting rights, nor mere customers.
Even if Tech CU’s employee could somehow be considered credible, almost all of her
testimony was irrelevant. A WRO/TRO does not allow for an “eggshell skull” plaintiff. Only a
reasonable person with a credible threat of violence may receive a temporary WRO/TRO, after
which the accused is entitled to a substantive hearing within 25 days. Yet, almost all of the
employee’s testimony—when she wasn’t admitting to multi-tasking during the interaction with
Appellant—involved unsupported, subjective statements about her alleged emotional state or
inadmissible character evidence relating to Appellant.
Indeed, all relevant facts supported Appellant’s sincere request to Tech CU for a root
cause analysis to be performed regarding its employee’s conduct. On March 24, 2021, he sent an
email to the employee’s manager stating in part, “Your employee, Maria Leza, refused to open
the account after being told I had necessary documentation and after answering the type of
business (sole proprietorship) and tax classification. Please open an investigation…” On March
26, 2021, after posting the video on YouTube, Appellant again wrote the employee’s manager,

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citing “negligent service” and “negligence,” and asked the manager to review the video and take
action (after an investigation). During her testimony, the lead manager admitted she never
performed or requested an investigation by an impartial expert. [Yakushi transcript, 4-10] A
member consistently and politely requesting an investigation is using nonviolent methods to
resolve conflict, which is logically inconsistent with a violent “purpose.”
Finally, in her testimony, the employee admitted she knowingly and voluntarily came
within six feet of Appellant during their one and only interaction, an act that violated COVID19
workplace regulations. [Yakushi transcript, 43: 21-28, 44: 1] Testimony confirms at all times,
Appellant remained in place behind a plexiglass barrier and never breached any barrier other
than to use a slot at the plexiglass bottom to return a Post-It notepad to the employee. In contrast,
when Appellant requested a manager’s business card, the employee admitted to handing him the
business card by approaching him with a few feet, then returning to her chair. As the second
video shows, the employee had plenty of space to avoid Appellant rather than approach him
directly, if indeed she was concerned for her safety at any time.
CONCLUSION
Appellant respectfully requests that this court independently review the entire record on
appeal pursuant to CCP 909 and reverse the injunction on procedural [CCP 527.8(h)] and
substantive grounds [i.e., clear error, no basis in law or fact]. Given the relatively limited trial
court record, Appellant assumes this court will carefully review WV-120, Response to Petition
for Workplace Violence Restraining Orders, including Attachment 11, filed on April 14, 2021.
Additionally, the lower court’s granting of a CLETS personal conduct order violates due
process and common sense. No interactions between the employee and Appellant occurred
outside a workplace. Now is the time to reverse Kenne and decide whether and how the spirit of
the anti-SLAPP law applies to the WRO/TRO process.
Dated: December 6, 2021
___________________________
MATTHEW MEHDI RAFAT
Appellant
Pro se

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 Requests for Judicial Notice

Evidence Code 452(h) allows notice of “Facts and propositions that are not reasonably

subject to dispute and are capable of immediate and accurate determination by resort to sources

of reasonably indisputable accuracy.” Judicial notice of media publications is common in all

courts. See Ieradi v. Mylan Labs, Inc., 230 F.3d 594, 597 (3d Cir. 2000).

1. Existence of YouTube media of incident references in WRO: “Opening a Small Business,

The Chronicles,” Part 1 and Part 2.

Link to Part 1: https://youtu.be/-zIvzCMIeCc

Link to Part 2: https://youtu.be/8WbUpkblRM0

Reason for notice: most TROs/WROs are he said/she said matters. In this case, public
videos exist that improve the court’s role as fact finder and should be considered by the
court. The videos posted are also admissible to impeach the employee’s declaration and
testimony. Above all, the court needs to see the YouTube videos to ensure it is
reviewing the correct videos on the USB drives, which contain the originals.

Authentication: The videos referenced above in Parts 1 and 2 are available on YouTube

and were taken by Appellant on his iPhone at Tech CU’s premises on March 24, 2021. They

include a true and accurate representation of the incident discussed in Maria Leza’s declaration

filed in support of Tech CU’s WRO request and have not been altered or manipulated in any way

from the original recording except for the addition of a face-blurring option added to Part 1.

Part 1, uploaded by Appellant to YouTube on or around March 25, 2021, proves the

employee has committed perjury, and impeachment is a hearsay exception. (See Maria Leza

declaration, dated April 2, 2021: “He… demanded that I write down his number instead of

saying it verbally.”) Exhibit A proves Appellant never asked Leza to write down his number and

that Tech CU submitted a perjured statement to the court. In its reply brief (8:24-25), Tech CU

admitted its employee committed perjury, but asked the court to ignore its attempt to cast

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Appellant as a would-be paramour rather than a distressed customer: “Whether Mr. Rafat

demanded Ms. Leza write down his phone number or her manager’s phone number is irrelevant.”

2. Existence of article criticizing Tech CU and other publications on public issues.

a. 2018 article written by Appellant criticizing Tech CU’s management, which include

the following lines: “All of us suspect financial institution executives are SOBs, but

most of them have the decency to act dignified in public. Not San Jose, California-

based Tech CU… the loan portfolio CEO Harris highlighted as part of his successful

management might be its most risky.”

Link is here: https://willworkforjustice.blogspot.com/2018/04/technology-credit-

union-tech-cu-annual.html

b. Link to unique, never-before-published research re: 1964 murders of civil rights

workers is here: lononaut.substack.com/p/mississippi-burning

c. Link to article criticizing major bank and receiving acknowledgment of error is here:
lononaut.blogspot.com/2021/06/small-business-chronicles-barclays.html

Reason for notice: Appellant alleges a pattern of Tech CU attempting to silence his

Constitutionally-protected speech. The articles above prove Appellant has criticized Tech

CU’s management since 2018, supporting Respondent’s argument that Petitioner’s

TRO/WRO is invalid because it a) involves Constitutionally-protected speech and b)

would chill further investigative publications by Appellant. The other articles show

Appellant’s pattern of publishing articles on publicly important issues in a personal style

similar to Hunter S. Thompson, in which the journalist uses his own personal experiences

to express opinions on political matters, proving a record of independent reporting.

Authentication: The links referenced above point to and include articles written by

Appellant personally and published by Appellant personally.

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 Declaration in Support

I, Matthew Mehdi Rafat, am over 18 years of age, have personal knowledge of the facts
herein, am competent to testify to the statements herein, and would do so if called.
1. I am an active member of the International Federation of Journalists. My card number, on
which “PRESS” is written, is US1988. Though I am a member of the State Bar of
California as of the date below, I have no clients and no IOLTA account. From on or
around February 2021, I have worked full-time in my own publishing and freelance
writing business, “Lononaut” aka “Lononaut Agency.”
2. The lower court ignored the right to speak on matters of public concern, thus
contradicting the legislature’s intent. [See Yakushi transcript, page 83: 5-7] If lower
courts feel comfortable disregarding an expressly expedited process, then this appellate
court ought to consider whether judges and commissioners must consider anti-SLAPP
policy when TROs/WROs are filed against active journalists or persons with a substantial
history of publishing on matters of public concern.
3. On September 22, 2021, I attempted to return Exhibit A (admitted) and Exhibit B
(labeled and reviewed by Judge Huber) to the Superior Court clerk at 191 N. First Street,
San Jose, CA. Despite informing the clerk at the window of CRC 8.122(a)(3), I was told
she could not accept the two USB drives.
4. On or around September 23, 2021, I hand-delivered a letter addressed to Presiding Judge
Zayner regarding the matter of the USB drives. On or around October 19, 2021, I
delivered the two USB drives returned to me at the final hearing in the above-captioned
matter to a “Henry” at Santa Clara County Superior Court, who confirmed the drives
would be part of the record sent to the Sixth District Appellate Court. I confirm the
“Authentication” sections of the requests for judicial notice herein under penalty of
perjury and confirm Exhibit A as set forth in the USB is a true and accurate iPhone
recording of the incident involved in the WRO/TRO. I also confirm Exhibit B is a true
and accurate iPhone recording of myself showing and intending to show

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 Google/YouTube’s legal team that no reasonable expectation of privacy exists for tellers
working at Tech CU’s San Jose/Campbell branch.
5. On March 26, 2021, Appellant received an email from “YouTube Support Team,”
stating, “This is to notify you that we have received a privacy complaint from an
individual regarding your content,” referring to the video Appellant posted of the
incident. Google/YouTube provided 48 hours to address the privacy complaint and
prevent a takedown, prompting Appellant’s second visit to Tech CU’s premises. As set
forth in Exhibit B, the second USB drive, at no point in time during the second visit did
Appellant engage employee Maria Leza. Both videos are still publicly available.
6. California Rule of Court 8.122(a)(2) required Tech CU “to serve and file a notice in
superior court designating any additional documents the respondent wants included in the
transcript” within 10 days after Appellant served its notice designating the record on
appeal. The record shows Appellant filed and served its notice designating the record on
appeal on September 20, 2021. Tech CU filed and served its notice designating the record
on October 22, 2021, which is untimely. This is not the only procedural violation in this
case. CCP 527.8(h) requires a hearing to be held 21 or 25 days “from the date that a
petition for a temporary restraining order is granted or denied.” (See WV-110 filed in
Superior Court, with first page listing filing date and first hearing date.)
7. Almost twice the allowable time transpired between the granting of a WRO/TRO (April
7, 2021) and the first appearance by both parties (June 1, 2021); additionally, the first
substantive hearing did not occur until August 2, 2021, because Tech CU rejected a
commissioner assigned to the matter while Appellant was prepared to move forward on
June 1, 2021. Appellant’s request for an earlier hearing date was rejected.
8. Appellant has opened a business checking account at a different credit union.
I declare under penalty of perjury under California law that the foregoing is true and correct.
Dated: December 6, 2021
___________________________
MATTHEW MEHDI RAFAT

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 CERTIFICATE OF WORD COUNT

I certify that, according to my word processing software, this brief contains 6,906 words

including the cover page, tables and the case caption and the proof of service.

Dated: December 6, 2021

___________________________
MATTHEW MEHDI RAFAT
Appellant

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 PROOF OF SERVICE BY MAIL

At the time of service, I was at least 18 years of age.

My residence is at 3974 Acapulco Dr, Campbell, CA 95008.

I mailed copies of the “APPELLANT’S OPENING BRIEF” and “CERTIFICATE OF

INTERESTED ENTITIES OR PERSONS” in H049471 by enclosing a copy of the
aforementioned documents and all attachments in a sealed envelope with the United States Postal
Service, with the postage fully prepaid.

I am a resident in the county where the mailing occurred and am not a party to this legal action.

The envelope was addressed and mailed as follows on December 6, 2021:

Venus Burns and Jon Cohen

1855 Market St.
San Francisco, CA 94013-1112

I declare under penalty of perjury under California law that the foregoing is true and correct
within this proof of service.

December 6, 2021 _________________

Hassan Rafat

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