Memorandum Points and Authorities

Cal. Super. - 6th Dist.February 1, 2021

IQ Lu Alexis J. DaCosta (pro se) dacosta.alcxis@ gmail.com 1292 Kifcr Road. Suite 802 Sunnyvale. Califomia 94086 F I L E D'I‘clcphonc: 858-736-7618 APR 2 1 2021 Cler of the Court Superior C Co ly o! Santa aura BY DEPUTY K. NGUYEN Plaintiff ALEXIS DaCOSTA SUPERIOR COURT OF Tl IE STATE OF CALIFORNIA COUNTY ()l“ SANTA CLARA ALEXIS DaCOSTA. an individual. Case N0. 21CH009837 Plaintiff. MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F v. MOTION T0 QUASH DEPOSITION SUBPOENA FOR CONSUMER KRZYSZTOF SYWULA. an individual. RECORDS ()F PLAINTIFF ALEXIS l)a(‘OSTA Defendant. Date: 5 flz’ Time: Crtrm: q Judge: Hon. EFuK s. Jo NSON Pursuant t0 California Code of Civil Procedure sections 1987.1 and 1985.3(g). Plaintiff ALEXIS DaCOSTA ("DaCosla") respectfully submits the following Memorandum of Points and Authorities in Support 0f DaCosla‘s Motion 10 Quash the Deposition Subpoena for Consumer Records ol' DaCosta. served by Defendant KRZYSZTOF SYWULA (“Syxwla”) in the above- cntitlcd action. l. Introduction. Sywula cannot game the system t0 gain access to private. sensitive personal records. which will put [)aCosta in danger by revealing his physical location data and that 0f his family. while at the same time Sywula actively evades service ofprocess and flaunts his contempt for this Court by continuing t0 harass and intimidate DaCosIa. Nevertheless. that is precisely what Sywula seeks to POINTS AND AUTHORI | II‘S IN Sl IPPURI ()l4 M( )l |()N T( b QUASH SUBPOFNA FOR (‘UNSl lMl-LR RECORDS Case N0. 2|(‘H()(|9837 DJ 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do. by way 0f a sham personal records subpoena for cell phone records and data, served on T- Mobilc USA. Inc. Disclosing the data Sywula demands would threaten the personal safety and wellbeing 0f DaCosta and his family and lead t0 a substantial. unwarranted invasion of privacy. Compounding the problem arc the numerous procedural defects in the subpoena. As shown below. this Court can and should grant DaCosta‘s motion and quash the subpoena. entirely. II. Factual Background. A. The T-Mobile Subpoena. ()n February 1. 202 l . this Court entered a Temporary Restraining Order. "based on unlawful violence. a credible threat 0f Violence. 0r stalking.“ which enjoined Defendant Krzysztof Sywula from coming withing 300 yards of DaCosta. his home. his place workplace. and his vehicle (the "Order"). See Docket #l. The Order also required that Sywula nit "harass. intimidate. attack. stalk. threaten, abuse. destroy personal property 0f. 0r disturb the peace ot‘the person.“ Id. The Court renewed the Order. following Sywula‘s failure t0 appear at a March 23. 2021 Order to Show Cause hearing. See Docket #10. ()n March 23. 2021. law enforcement filed a Declaration: Re: Diligence. demonstrating efforts to personally serve Sywula. who had evaded service. not personally appeared in this matter, and had n0 attorney appear on his behalf. Docket ##7-8: Declaration ofAlexis DaCosta. 1} 5. Despite his lack of appearance in this case and lack of an attorney-of-record. 0n April l. 202 1 . through his counsel. Christopher Walters. Sywula served DaCosta and his family with copies of three Notices Io Consumer 0r Employee and Objection and a Deposition Subpoena for Production 0f Business Records under C.C.P. § 2020.020(b). commanding T-Mobile USA. Inc. produce ofbusiness and consumer records pertaining t0 DaCosta and his family. DaCosta Decl.. 1] 6. The subpoena called for the production of said records by T-Mobile by May 3. 2021. ld.. Ex. A. The subpoena sought consumer-related records as defined in C.C.P. § 1985.3 pertaining to DaCosta. in as much as it demanded. "Documents and records sufficient t0 show the location and coordinates for the use and presence Ofthe phones associated with phone numbers (858) 736-761 8, 1 POINTS AND AU'I'HURI'I‘H'IS IN SUPPORT ()F M()|'I()N ‘I‘U QUASH SUBPOENA FOR CONSUMER RECORDS Case No. 2|(‘H009837 \OOOVON 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (858) 951-2347. and (408) 466-9922 for the time period 0f January 1. 2021 to the present.” DaCosta Decl., 1] 7. Ex. A. Such phone numbers belonged to DaCosta and his wife. DaCosta was outraged by Sywula and Mr. Walter‘s attempts to use the subpoena power 0f this Court to gain access to his sensitive. private. personal location and association data. particularly when this Court’s Order prohibited him from coming within 300 yards 0f DaCosta. Disclosing personal location and association data would threaten DaCosta‘s personal safety and that 0f his family. DaCosta Decl. 11 8. DaCosta genuinely fears for his personal safety and that of his family’s. given the threat of stalking and possible violence Sywula represents. DaCosta Decl.. 1] 9. Sywula continues to intimidate and harass DaCosta by selectively contacting his business investors with false allegations at any time he pleases. leaving DaCosta t0 deal with the fallout while continuing t0 operate the company. ld., at 10. One example is the February 18, 2021 defamatory email message Sywula sent to a handful ofinvestors. after he freely and willingly resigned. Id. An existing investor tried t0 respond t0 Sywula‘s email four days later. but it seems Sywula is in hiding: “Subject: autoresponder - unable to receive an email or phone call Re: Teleport. Dear sender. l live outside 0f USA and I‘m unable to receive this email or phone call.“ Id. Sywula‘s email response is particularly surprising. because previously claimed residence in San Jose. California but now purportedly “resides outside the country.“' ld.. Ex. B. Another example of Sywula‘s ongoing crusade ofharassment against DaCosta is found in the March 29. 2021 email message Sywula sent to not only existing investors, but prospective investors and business partners, too, accusing DaCosta 0f false allegations. ld.. at 1 1. The harm to DaCosta. his company. existing investors, and future fundraising prospects is immeasurable. Id. Sywula‘s conduct and ongoing, vicious acts 0f harassment are greatly disturbing t0 DaCosta; He is scared and feels n0 one can stop Sywula from trying to ruin his life. his family‘s lives. and his business. 1d“ at 13. ' Whether Sywula is lying about his whereabouts is unknown. DaCosta DeclJ] 12. The fact that Sywula is employed by Intel and married with young children in grade school in the San Jose area, leads DaCosta to question the veracity 0f Sywula‘s statements. Id. Despite what Sywula claims, he very well could still be in the San Jose area. Id. 2 POINTS AND AU'I‘HORI'I’IES IN SUPPORT OF MOTION 'l'() QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2 |CH009837 DaCosta knows of no legitimate reason why Syvmla would want. need. or otherwise be entitled t0 the infommtion sought by way 0f tho subpoena. DaCosta Decl.. fl l4. Apart from protecting his personal safety. other grounds for this motion include. without limitation: B. a. The deposition subpoena for the production 0f business records and things is not reasonably calculated t0 lead 10 the discovery 0f admissible evidence: The deposition subpoena for the production 0f business records and things seeks DaCosta‘s personal identifying information and violates his Califomia constitutional right ofprivacy (Cal. Code Civ. Proc. Section 1987.1(b)): The deposition subpoena for the production 0f business records and things is objectionable under Cal. Code Civ. Proc. Section 1985.3(g). to the extent it seeks non-party consumer records; The deposition subpoena for the production of business records and things is procedurally improper and ineffective; The deposition subpoena for the production 0f business records and things has not been properly served: and The deposition subpoena for the production 0f business records and things violates the Stored Communications Act (l8 U.S.C. section 2701, e! seq.). DaCosta Decl., fl IS. Meet and Confer. DaCosta's attempts t0 reach an informal resolution to this matter by requesting Sywula and Mr. Walters withdraw the subpoena have failed. First. 0n April 1. 2021. Teleport Mobility‘s legal counsel. Frederic G. Ludwig. lll. sent an email message t0 Mr. Walters. demanding that he withdraw the subpoena. He did not. DaC‘osta Decl..1} 16. On April l6. 202 l. at approximately 1:30 p.m.. DaCosta had a telephone conversation with Mr. Walters. wherein he demanded that Mr. Walters and Sywula withdraw the subpoena. Mr. Walters refused to withdraw the subpoena. DaCosta Decl.. 1T_. 3 POINTS AND AUTIIORITIFS IN SUPPORT ()F MOTION TO QUASH SLFBPOENA FOR CONSUMER RFCORDS Cast: N0. 2 I('H()09837 N Ab.) OOOONONQJI 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 As the result 0f Sywula’s refusal t0 withdraw the subpoena. DaCosIa had to write emails and make phone calls t0 Mr. Walters. in attempts to resolve this dispute. DaCosta was also compelled to make the instant motion. DaCosta Decl.. fl 19. ln all. he expended approximately fifteen ( 1 5) hours in pursuit 0f this matter. including drafting ofthis motion. Id. DaCosta expects to spend another five (5) hours drafting any reply that might be necessitated and appearing at the hearing ofthis motion. 1d. These are hours DaCosta needlessly devoted t0 this effort, rather than t0 his company. Teleport Mobility. DaCosta has an effective hourly compensation rate of $100. In addition, DaCosta paid a $9.83 e-filing fee and $56.53 in postage. Id. Therefore, DaCosta requests Sywula and/or his counsel. Mr. Walters. be ordered to pay monetary sanctions t0 DaCosta in the sum 0f$2066.36. 1d. III. Analysis. A. Legal Standard. California law bestows 0n this Court the power and authority to quash Sywula’s subpoena. in its entirety. Specifically. “[i]f a subpoena requires the production of books. documents or other things the court may make an order quashing the subpoena entirely. . Cal. Code Civ. Proc. § 1987. 1. Further. "[a]ny consumer whose personal records are sought by a subpoena duces tecum and who is a party l0 the civil action in which this subpoena duces tecum is served may, prior 10 the date for production. bring a motion under Section 1987.] t0 quash 0r modify the subpoena duces tecum. Notice of the bringing 0f that motion shall be given to the witness and deposition officer at least five days prior t0 production.“ Code Civ. Proc. § 1985.3(g). Given the severity ofthis situation and the danger the subpoenaed records pose t0 DaCosta, this Court should not hesitate to exercise its power t0 quash the subpoena entirely. B. Numerous Grounds Exist to Quash Sywula’s Improper Subpoena. l. The Subpoena ls Premature and Procedural Defective. Sywula cannot serve a deposition notice 0r subpoena before he is served or makes his first appearance. The Califomia Code of Civil Procedure states. “defendant may serve a deposition notice without leave 0f court at any time after that defendant has been served or has appeared in 4 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASII SUHPOENA FOR CONSUMER RECORDS Case N0. 2|CH009837 OONOMAWN \O 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the action. whichever occurs first.“ Cal. Code Civ. Proc. § 2025.210(a). “Based on the foregoing language. under the plain meaning rule. the Act contemplates that discovery conducted by way 0f a business records subpoena is a "deposition." Unzipped Apparel. LLC v. Bader (2007) 156 Cal. App. 4th 123, l3]: ('ulifbrnia Shellfish, Inc. v. United Shellfish ('0. (1997) 56 Cal. App. 4th l6 (Holding that plaintiff improperly served business records subpoenas 0n a nonparty, before any defendant had been served with process or appeared.) In the case 0f Sywula, he has yet t0 appear and has evaded service of process. Accordingly, Sywula has n0 power 0r authority t0 avail himself of the discovery process. while he simultaneously actively avoids service. The subpoena to T- Mobile is invalid. because it was issued before Sywula was personally served; this Court should not hesitate t0 grant DaCosta's motion t0 quash. 2. The Subpoena Represents an Egregious Invasion of Privacy. Even if the subpoena were timely. the discovery Sywula demands 0f T-Mobile invades the privacy rights 0f DaCosta. his wife. and his parents. The right t0 a protected zone 0f privacy is codified. among other places. at Evid. Code § 1010.5 (regarding educational psychological records): Evid. Code § 1040 (regarding official records): and Ed. Code § 49076 (regarding academic records). Further. “California accords privacy the constitutional status of an inalienable right. 0n a par with defending life and possessing property. Courts must balance right of civil litigants to discover relevant facts against privacy interests 0f persons subject t0 discovery." California Constitution. Article I, § 1; Vinson v. Superior Court. 43 Cal. 3d 833 (1987). Thus. "...the court may make any...0rder as may be appropriate t0 protect the person from unreasonable or oppressive demands. including unreasonable violations 0f the right 0f privacy of the witness. consumer, or employee." Code Civ. Proc. § 1987.1. Here. disclosure 0f personal cell phone account information. including location and association data would represent an offensive, invasive encroachment of DaCosta' private affairs. brought about by the unreasonable gamesmanship of Sywula. The balance ofDaCosta‘s right Io privacy far exceeds any right t0 discovery Sywula might have. As such. this Court should quash the subpoena. 5 POINTS AND AUTHORITIES IN SUPPORT ()F MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2 1CH009837 OOVO 00 a) Sywula Has N0 Right to Demand Discovery 0n DaCosta ’s Associations and Affiliations. There is no justification 0r legal authority for Sywula to obtain information regarding DaCosta‘s personal associations and affiliations. or those 0f his family. T0 warrant the disclosure of private associations. affiliations and activities. such disclosure must not only “serve a 'compelling‘ state purpose. but such purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker. 364 U.S. 479 (1960). tiled in Brill v. Superior ('ourl. 20 Cal. 3d 844 (1978). There simply is no possible compelling purpose l‘or the disclosure 0f DaCosta‘s ccll phone account and location data, particularly when Sywula is restrained from coming within 300 yards of DaCosta. Allowing Sywula t0 obtain the data sought through the subpoena would violate DaCosta's fundamental personal liberties t0 be safe and secure in his home. place ofbusiness. 0r with family. This reason. in and of itself. is sufficient for the Court t0 quash the subpoena and DaCosta anticipates the Court will so rule. b) The Subpoena Is Unduly Intrusive. For similar reasons. the subpoena is unduly intrusive. "The court shall limit the scope 0f discovery if it detemlines that the burden. expense. 0r intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." Cal. Code Cix'. Proc. § 201 7.020(a). As shown in the attached Declaration ofDaCosta. the matters sought by Sywula by means OfIhc subject subpoena consist of matters protected by the right to privacy 0f DaCosta’s personal physical location and that of his family and are not sufficiently relevant t0 the issues in this litigation t0 support such intrusive discovery. This Court should grant DaCosta‘s motion to quash. accordingly. 3. The Subpoena Seeks Irrelevant, lnadmissible Evidence. The subpoena is also improper because the information Sywula demands from T-Mobile is irrelevant t0 the matter at hand. "Unless otherwise limited by order ofthe court in accordance with this article. any party may obtain discovery regarding any matter. not privileged. that is relevant to 6 POINTS AND AU'I'IIORI'I’IES IN SUPPORT ()F MOTION THOMAS“ SUBPOENA FOR CONSUMER RECORDS Case N0. 2|CH009837 Ix) the subject matter involved in thc pending action..." Cal. Code Civ. Proc. § 2017.010. emphasis added. Further. “[n]o evidence is admissible except relevant evidence." Cal. Evid. Code § 350. “Relevant evidence‘ means evidence. including evidence relevant t0 the credibility ofa witness 0r hearsay declarant. having any tendency in reason to prove 0r disprove any disputed fact that is 0f consequence t0 the determination ot‘the action." Cal. Evid. Code § 210. In a matter concerning DaCosta‘s personal safety relative t0 Sywula. cell phone account and location data 0f DaCosta and his family have no relevance whatsoever. The subpoena. therefore. is not proper and the Court should quash it. 4. Even if the Subpoena Targeted Relevant Information, the Burden, Expense and lntrusiveness 0f lt Outweighs the Likelihood the Information Sought Will Lead t0 Admissible Evidence. Sywula is not entitled t0 deference 10 "fish" for potentially relevant. admissible evidence. Section 2017.010 permits only discovery 0f relevant matter. which “either is itselfadmissible in evidence 0r appears reasonably calculated to lead to the discovery ofadmissible evidence." Cal. Code Civ. Proc. § 201 7.01 0. Further. this Court "shall limit the scope ofdiscovery ifit determines that the burden. expense. 0r intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery ofadmissible evidence." Cal. Code Civ. Proc. § 20] 7.020(a). The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either 0f the following: (1) The discovery sought is unreasonably cumulative or duplicative, or ls obtamable from some other source that ls more convenient. less burdensome. 0r less expensive. (2) The selected method 0f discovery is unduly burdensome 0r expensive. taking into account thc needs 0f the case. the amount in controversy. and thc importance 0f the issues at stake in the litigation. Cal. Code Civ. Proc. § 201 9.030(a): See also ('ulcnr Space Facility. Inc. v. Superior Court ( 1997) 53 Cal. App. 4th 216. As shown herein. Sywula's subpoena seeks disclosure 0f sensitive. private information. which would compromise the safety of DaCosta and his family. Moreover, the 7 POINTS AND AU'I'HORITlliS IN Sl II’I’UR'I' ()|-' MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2|(‘HOO9837 OOOOVON 11 12 13 l4 15 16 17 18 l9 20 21 22 24 25 26 27 28 discovery Sywula desires is irrelevant and n01 likely t0 lead t0 admissible evidence. As such. the subpoena is unduly burdensome and the Court should quash i1. entirely. 5. The Subpoena Violates the Stored Communications Act. Sywula‘s intrusive. abusive subpoena violates the Stored Communications Act, 18 United States Code sections 2701-2712 (the SCA). "Congress passed the SCA to fill a gap in the protections afforded b)" the Fourth Amendment." Juror Number ()ne v. Superior Court (2012) 206 Cal.App.4th 854. 860 (Juror Number ()ne).) "The Fourth Amendment provides no protection for information voluntarily disclosed t0 a third party. such as an Internet service provider (ISP). [Citations] T0 remedy this situation. the SCA creates a set 0f Fourth Amendment-like protections that limit both the government's ability to compel lSP‘s to disclose customer information and the ISP's ability to voluntarily disclose it." Id. at p. 860. citing Kerr. A User’s Guide m the Stored Communications Act. and a Legislatoris Guide m Amending l! (2004) 72 Geo. Wash. L.Rev. 1208. 1212-1 213 (Kerr User's Guide). "‘The [SCA] reflects Congress's judgment that users have a legitimate interest in the confidentiality 0f communications in electronic storage at a communications facility. Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents. [citation]. thc [SCA] protects users whose electronic communications are in electronic storage with an [SP 0r other electronic communications facility.’ [Citation.]" Juror Number One. supra. 206 Cal.App.41h at p. 860. Importantly. the SCA "is not a catch-all statute designed to protect the privacy of stored Internet communications: instead it is narrowly tailored t0 provide a set of Fourth AmendmenI-like protections for computer networks.“ Kerr User's Guide, supra. 72 Geo. Wash. L.Rev. at p. 1214. These protections. contained in sections 2702 and 2703. provide network account holders with “statutory privacy rights against access t0 stored account information held by network service providers." Kerr User's Guide. supra. 72 Geo. Wash. L.Rev. at p. 1212. Section 2703 “creates limits 0n the government's ability t0 compel providers to disclose information in their possession about their customers and subscribers." Kerr User's Guide. supra. at p. 121 2. fn. omitted. Here. 8 POINTS AND AUHK )RI'I‘II’S IN SUPPORT ()F MOI ION 'l’() ()UASH SUBPOIENA FOR CONSUMER RECORDS Case No. 2|CIIOO9837 10 ll l3 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 the electronic cell phone account. location. and content data sought by Syvmla falls within the scope Ofthe SCA and is improper. This Court should quash the subpoena. accordingly. C. DaCosta’s Motion t0 Quash ls Timely Made. DaCosta files his instant motion in a timely manner. Notice 0f bringing 0f a motion to quash shall be given t0 the witness and the deposition officer (whether a copy service or attorney as deposition officer) "at least five days prior 10 production." Cal. Code Civ. Proc. §§ 1985.3(g). 1985.6(0. DaCosta complies with this notice provision. D. Witness and Deposition Officer Relieved 0f Duty to Comply with Subpoena. T-Mobile must n01 provide the records requested by Sywula. No witness 0r deposition officer shall be required 10 produce personal records 0r employment records after receipt of notice that the motion has been brought by a consumer 0r employee except upon order ofthe court 0r by agreement ot‘the parties. witnesses. and consumers/employees affected. Cal. Code Civ. Proc. §§ 1985.3(g). 1985.6(t). Here. DaCosta directs T-Mobile t0 not comply with the subject subpoena without a court order directing compliance. 0r an agreement between the parties. E. This Court Should Award DaCosta Monetary Sanctions Against Sywula and His Counsel. Sywula‘s conduct. as aided by his counsel. is sanctionable. "The court may impose a monetary sanction ordering that one engaging in the misuse 0f the discovery process, or any attorney advising that conduct. 0r both pay the reasonable expenses. including attomey‘s fees, incurred by anyone as a result ot‘that conduct." Cal. Code Civ. Proc. § 2023.030(a). Misuses 0f the discovery process include...(a) Persisting. over objection and without substantial justification. in an attempt t0 obtain information 0r materials that are outside the scope of pemlissiblc discovery. (b) Using a discovery method in a manner that does nol comply with its specified procedures. (c) Employing a discovery method in a manner or t0 an extent that causes unwarranted annoyance. embarrassment. 0r oppression. 0r undue burden and expense...(h) Making 0r opposing. unsuccessfully and without substantial justification. a motion lo compel or t0 limit discovery. Cal. Code Civ. Proc. § 2023.010. Section 1987.2 provides: "In making an order pursuant to a 9 POINTS AND AU‘I'HORI I'IIiS IN SUPPUR'I ()1: MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2|CH009837 N OOONQUIAUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion made under...Section 1987.1 [motion for order quashing a subpoena duces tecum]. the court may in its discretion award the amount 0f the reasonable expenses incurred in making...the motion. including reasonable attorneys‘ fees. if the court finds the motion was...0pposed in bad faith 0r without substantial justification...“ Cal. Code Civ. Proc. § 1987.2. Sywula‘s refusal over DaCosta‘s objections t0 withdraw the subpoena. without substantial justification. subjects that party t0 monetary sanctions for misuse Ofthe discovery process. See Cal. Code Civ. Proc. § 2023.010(a). Monetary sanctions should also be imposed under sections 2023.010(b). 2023.010(c) and 2023.010(h), as well as under section 1987.2. as stated above. As stated in his declaration, DaCosta has and/or will incur expenses and fees because 0f the Sywula and Mr. Walter’s conduct as described herein. in the sum of $2,066.36. IV. Conclusion. For the foregoing reasons, Plaintiff DaCosta respectfully request this Court quash the entirety 0f the improper. defective. abusive. and intrusive subpoena to T-Mobile and impose sanctions on Sywula and his counsel in the amount 0f $2,066.36. Dated: April 19. 2021 Respectfully Submitted By: /s/ Alexis DaCosta ALEXIS DACOSTA, Plaintiff 10 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA FOR CONSUMER RECORDS Case N0. 2|CH009837