Memorandum Points and Authorities

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

wooqmowphme wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO Dmitry Stadlin, SBN 302361 STADLIN MARINHO LLP ElectronIFally FIled 111 N. Market Street. Suite 300 by suPer'or court 0f CA, San Jose, California 95113 county 0f santa Clara: Tel: (408) 645-7801 on 1/28/2022 4:49 PM FaXI (408) 645-7802 Reviewed By: K. Nguyen Email: ds@stadlinmarinh0.com case #21CH009337 Attorneys for Petitioner EnveloPe: 8169095 ALEXIS DACOSTA SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ALEXIS DACOSTA Case N0.: 21CH009837 Petitioner, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF And, PETITIONER’S MOTION TO QUASH DEPOSITION SUBPOENA FOR KRZYSZTOF SYWULA, PRODUCTION OF BUSINESS RECORDS Respondent. DATE: 03/21/2022 TIME; 9:000am DEPT: 4 11 I. INTRODUCTION This is a Civil harassment restraining order matter filed by Petitioner ALEXIS DACOSTA (“Petitioner”) against his former employee, Respondent KRZYSZTOF SYWULA (“Respondent”). On about January 24, 2022, Respondent, by and through his attorney 0f record, sent Petitioner a notice 0f his intent t0 subpoena documents pertaining t0 Petitioner’s Google account through Google, LLC (aka., Alphabet, 1110.). Petitioner files this instant motion t0 quash Respondent’s Deposition Subpoena for Production of Business Records because 1). California Code 0f Civil Procedure §527.6 does not permit discovery under civil harassment scheme; 2). The records sought in the subpoena are irrelevant, immaterial, prejudicial, and overbroad; and 3). Respondent failed to properly notify Petitioner 0f his subpoena request t0 Google. II. BACKGROUND In around 2016, Petitioner and his then partner. Mr. Vince Coletti, founded Teleport Mobility, Inc. (“Teleport”). Teleport is an industry-leading innovator in real- 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmml-POONH wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO time intelligent dispatching technology in the mobility industry. Respondent was employed by Teleport as a consultant since 2016. Respondent signed a Consulting Agreement August 2016. Respondent’s primary job was t0 assist With technical support and developing software code. In around the end 0f 2018, Mr. Coletti exited. As the business grew, Respondent eventually became a shareholder 0f Teleport in around July 2019. Respondent assumed the role of secretary and treasurer 0f the company and signed a “Teleport Mobility, Inc. Employee Proprietary Information and Inventions Agreement” 0n November 19, 2019. The agreement imposed strict confidentiality, non- disclosure, and invention and copyright assignment obligations upon Respondent. Respondent’s equity stake in Teleport was approximately 45%. The underlying dispute that led Petitioner t0 file this instant Civil Harassment Restraining Order request started in late 2020. During several meetings in November 2020 t0 discuss pending patent applications, Respondent became upset and insisted that the inventions were his and demanded t0 list his name on all patent applications as the sole inventor and refused t0 accept accommodations to list Respondent as joint inventor 0n pending patent applications. The parties’ relationship deteriorated rapidly. On about December 9, 2020, Petitioner met With Respondent in an effort to ease tensions. Later, Petitioner requested Respondent to take time off from work. Unbeknownst t0 anyone, Respondent removed all his belongings from company offices. On about December 23, 2020, Petitioner was scheduled t0 present Teleport to prospective investor, Who had already contributed $100,000 t0 the company. The meeting was well known t0 all board members, including Respondent. In the days and weeks leading up t0 the meeting, Petitioner confirmed that he still had access t0 the software and that the software was properly functioning. However, 0n the day 0f the meeting, Petitioner discovered that the software was disabled. Petitioner immediately contacted Respondent about the issue, but Respondent casually dismissed the malfunction as insignificant and beyond his control. Unable t0 reschedule and 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmml-POONH wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO understandably embarrassed, Petitioner went ahead With the meeting, even though he could not demonstrate the software. Petitioner strongly believes that the fact the software coincidentally and mysteriously malfunctioned the morning 0f the investor meeting was Respondent’s doing. Respondent had access and control 0f the software and prior t0 the dispute, the software has been consistently reliable and relatively error-free. Due t0 the growing animosity between the Parties, Petitioner suspected that Respondent purposefully disable the software in an act 0f retribution against Petitioner and Teleport. On about December 80, 2020, Respondent informed Petitioner of his decision t0 n0 longer work With Teleport. However, the very next day, Respondent emailed Petitioner and demanded t0 resume work. Throughout the month 0f January 2021, Respondent became increasingly hostile and belligerent towards Petitioner and wrongfully claimed that he not only invented all the technologies described in the patents, but he also “invented” Teleport’s trademark too. Respondent’s communication devolved further into threats with Respondent threaten Petitioner that he would “g0 t0 jail”. On about January 12, 2021, Petitioner received multiple messages at his personal Gmail account from RamNode, LLC that provides cloud-based computer services for Teleport. RamNode informed Petitioner that they have received a cancellation request 0f the service and they would terminate the service within the next 24 hours. Petitioner tried to access RomNode serve by resetting his RamNode password using both his Teleport and personal Gmail addresses Without any success. Petitioner never granted Respondent any permission 0r authorization t0 use 0r access his Gmail account, nor did Respondent have authorization t0 access, use, alter 0r terminate the RamNode Cloud services. Two days after terminating RamNode server account, Respondent sent Petitioner 0n January 14, 2021, stating: 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmowphme wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO “I’m stepping down, I’m quitting Teleport. I’m taking With me all of my inventions, intellectual property, diagrams, trade secrets, internet domains, software, and everything that I conceived before Teleport incorporated. Effective immediately. I Will be in touch With investors.” Petitioner then discovered that Respondent had disabled his company email account. Respondent temporary restored the email account after Petitioner’s father’s personal request t0 d0 so. However, 0n about January 29, 2021, Respondent permanently deleted the email account. Furthermore, Respondent made himself the sole administrator for Teleport’s internal network, switch, access point, on-site servers, and multiple cloud-based server accounts. Respondent further granted himself exclusive access t0 and control of Teleport’s “G Suit/Google Workspace” productivity software, Which hosts the entirety 0f Teleport’s software, intellectual property materials, business documents, financial data, personnel files, books, records, and other confidential, proprietary information. Respondent took down and blocked access t0 Teleport’s domain names and websites - teleportnow.io and xelerateio. Respondent’s actions caused Teleport t0 cease operation. Respondent also refused multiple demands by Petitioner to relinquish his control. On about January 27, 2021, Respondent confronted Petitioner saying, “you have a very poor understanding of what ‘belongs to’ means.”. On about January 28, 2021, Respondent threatened t0 file a crime report With the police against Petitioner. As a matter 0f fact, Respondent is not an inventor to any of the claimed inventions in the applications for patents licensed t0 01" owned by Teleport. Due t0 Respondent’s actions and increasing threats, Petitioner had n0 other choice but t0 file this instant Civil Harassment Restraining Order against Respondent. III. STATEMENT OF FACTS On February 1, 2021, Petitioner filed this instant Civil Harassment Restraining Order (“CHRO”) request against Respondent alleged Respondent stolen Teleport’s 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmowphme wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO intellectual property, software, and other business-related documents and files. Petitioner further alleged Respondent impersonated him t0 shut down cloud-servers. The court granted Temporary Restraining Order against Respondent and set hearing for March 28, 2021. Immediately after, the Santa Clara Sheriff’s Office made three service 0f process attempts on Respondent but was not successful. On about March 12, 2021, Petitioner’s civil attorney received an email from Respondent’s attorney telling him t0 send this CHRO request t0 Polska and Petitioner’s civil attorney did so on March 24, 2021. Because personal service 0f the CHRO was not successful prior to the first hearing on March 23, 2021, the court continued the hearing to May 25, 2021 to allow additional time for Petitioner t0 serve Respondent. Soon after, Petitioner hired a private investigator t0 track Respondent’s whereabouts in order t0 effectuate service 0f the CHRO request 0n Respondent. It was discovered that Respondent was employed by Intel. On about April 2, 2021, the private investigator went to Intel headquarters and served Respondent With the CHRO request. Prior t0 effectuating service 0n Respondent, Respondent’s counsel served Petitioner two subpoenas for cellphone records from T-Mobile and Verizon on about March 30, 2021. Petitioner who was Pro. Per. at the time filed two Motions t0 Quash the subpoenas. On May 25, 2021, the court denied Petitioner’s Motion t0 Quash and ordered a protective order t0 be signed by the Parties and the Court. On about July 19, 2021, Petitioner filed objection t0 the protective order. The court heard the matter 0n August 10, 2021 and continued the hearing to October 19, 2021. On October 19, 2021, Respondent filed a cross-request for CHRO against Petitioner. Respondent’s cross-request was denied. Since then, the court continued the hearing twice more. On January 11, 2022, the court set this matter for trial on March 21, 2022. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ©OOQOUOTI-PODNI-l NNNNNNNNNr-II-tr-Ir-II-tr-Ir-Ir-tr-II-t mflmmfiwNI-‘OCDOONGDmb-PCDNHO On January 24, 2021, Petitioner received an email notice 0f a Deposition Subpoena for Production 0f Business Records t0 Google, LLC. The subpoena included the following requests: 1. Documents sufficient t0 show all access (including but not limited to 10g in, 10g out, access the account, change a password) t0 google account dacosta.a1exia@gmail.com, including but not limited to date/time, IP addresses/locations/MAC address of device used, hostname 0f devise, for the time period of January 1, 2021 t0 the present. Documents sufficient t0 show all access (including but not limited to 10g in, 10g out, access the account, change a password) t0 Google account aleXisidacosta@gmail.com, including but not limited t0 date/time, IP addresses/locations/MAC address 0f device used, hostname 0f device, for the time period 0f January 1, 2021 t0 the present. Documents sufficient t0 show all access (including but not limited t0 10g in ,log out, access the account, change a password) to Google account aleXis@tele1oorn0W.io, including but not limited t0 date/time, IP addresses/locations/MAC address 0f device used, hostname 0f device, for the time period of January 1, 2021 t0 the present. Documents sufficient t0 show details 0f a registration 0f account aleXisidacosta@gmail.com, including but not limited t0 the date/time, IP address 0f a device, hostname 0f a device, MAC address 0f a device used for registering this account. Documents sufficient t0 show all access (including but not limited t0 10g in, 10g out, access the account, change a password) t0 Google account krz@telep0rtnow.io, including but not limited t0 date/time, IP addresses/locations/MAC address of device used, hostname 0f device, for the time period 0f January 1, 2021 to the present. 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ©OOQOUOTI-POONI-l wwmwwwwri-In-tr-Ir-II-tr-Ir-Ir-tr-II-t mflmmrthHOCDOONGDmb-PCDNHO 6. Documents sufficient t0 show details of the suspension or removal 0f account krz@telep0rtnow.io, including but not limited to the date/time, IP address 0f a device, hostname 0f a device, MAC address of a device, Google account name used for suspending or removing this account. ’7. Documents sufficient t0 show all files (including but not limited t0 files on Google Drive) accessed, edited, removed and all access 0r file permission changes including blocking, restricting 0r removing access t0 a file by dacosta.aleXis@gmail.com, for the period 0f January 1, 2021 t0 present. 8. Documents sufficient t0 show all files (including but not limited t0 files on Google Drive) accessed, edited, removed and all access 0r files permission changes including blocking, restricting or removing access to a file by aleXiSidacosta@,qmafl.com, for the period of January 1, 2021 to present. 9. Documents sufficient t0 show all files (including but not limited t0 files 0n Google Drive) accessed, edited, removed and all access 0r file permission changes including blocking, restricting 0r removing access to a file by aleXis@tele1oortn0W.i0, for the period 0f Januaryl, 2021 t0 present. Respondent’s subpoena requested Google, LLC t0 produce these documents by February 4, 2022. Petitioner immediately met and conferred with Respondent and requested their Withdrawal 0f the subpoenas. However, Respondent refused. Petitioner have n0 other choice but t0 file this instant Motion t0 Quash Respondent’s subpoena t0 Google, LLC. IV. ARGUMENTS A. There is No Right t0 Discovery Under CCP 6527.6 Pursuant t0 California Code 0f Civil Procedure (“CCP”) §527.6 “there is n0 provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in Which t0 conduct discovery.” (Thomas v. Quintero (2005) 126 Ca1.App.4th 635, £11.11; See generally: Byers v. Cathcart (2002) 57 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmml-POONH wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO Ca1.App.4th at p.811; Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 619- 620, fn.8) Section 527.6, subdivision (d) requires the trial court t0 “receive any testimony that is relevant” at the hearing. The court in Schraer commented in a footnote that this could be in the form 0f oral or written testimony, including affidavits, declarations 0r deposition. (Schraer v. Berkeley Property Owners’Assn. (1989) 207 Cal.App.3d at p. 733, fn. 6.) This statement is mystifying inasmuch as n0 case holds that discovery is allowed under section 527.6, and the general testimonial statute allowing for testimony in the form 0f affidavits, deposition, 0r oral testimony was earlier found by the Schraer court t0 be inapplicable to section 527.6 proceedings. (Id. At p.731, 255 Cal. Rptr. 453.)” (Thomas v. Quintero, supra, at p. 650.) Here, the underlying matter is CHRO against Respondent. Pursuant t0 above referenced CCP section and relevant case laws, Respondent does not have the right to seek discovery whatsoever. Therefore, Respondent’s subpoena t0 Google, LLC should be quashed. B. The Court is Empowered t0 Quash Irrelevant Subpoenas If the Court Sides with Respondent that they are permitted t0 seek above mentioned records from Google, LLC, this court should quash Respondent’s subpoena under CCP §1987.1, Which provides in pertinent part: “When a subpoena requires the attendance 0f a Witness 0r the production 0f books, documents 0r other things... at the taking 0f a deposition, the court, upon motion reasonably made by the party, the Witness, 0r any consumer described in Section 1985.3...may make an order quashing the subpoena entirely, modifying it, or directing compliance With it upon such terms 0r conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the Witness, 0r the consumer from unreasonable or oppressive demands including unreasonable Violations 0f a witness’s 0r consumer’s right of privacy.” Furthermore, CCP §1985.3(g) provides in pertinent part that: “Any consumer Whose personal records are sought by a subpoena duces tecum and Who is a party to the civil action in Which the subpoena duces tecum is served may, prior t0 the date for production, 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmowphme wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice... shall be given tot eh Witness and deposition officer at least five days prior t0 production. No Witness or deposition officer shall be required t0 produce personal records after receipt of notice that the motion has been brought by a consumer...except upon order 0f the court...” C. Respondent’s Subpoena is Overbroad and Undulv Burdensome CCP §2020.410(a) requires a subpoena to describe the documents or things to be produced With reasonable particularity. The request cannot generally request all documents related the subject, but rather must specifically describe the requested item 0r reasonably particularize the category 0f item. In this instant matter, Respondent’s request for production 0f documents in the subject subpoena demands “Documents sufficient t0 show all access....” Or “Documents sufficient to show all files...” These requests are fatally overbroad in that is requests all documentation related t0 an Email address. Even the list 0f documents does not narrow the request for records in any manner as it includes the overly broad language 0f “including, but not limited t0.” Respondent’s document requests in the subpoena is overbroad and simply designed to burden, oppress, and harass Petitioner. These requests d0 not specifically describe any item and does not reasonably particularize any category of item. As such, Respondent’s deposition subpoena for production 0f business records t0 Google, LLC should be quashed by the Court. D. The Information Sought is Irrelevant Discoverable information must be both unprivileged, and either be “relevant t0 the subject matter 0f the action 0r reasonably calculated t0 reveal admissible evidence.” (CCP §2017.010). Additionally, “improper methods 0f ‘fishing’ may be (and should be) controlled by the trial court under the powers granted t0 it by the statute.” (Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 384-85.) When a party insufficiently identifies the 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wooqmml-POONH wwwwmwmer-II-tr-Iv-II-tr-Iv-tr-Ir-Iv-t OOQGDO‘lv-POOND-‘OCDOONGDOTr-PCJONHO requested information to acquaint the other party with the nature of information desired, such “fishing expeditions” are improper. (Id.) Here, the documents sought are not relevant t0 the case at bar, or reasonably calculated t0 reveal admissible evidence. This case concerns harassment of Petitioner by Respondent. Although, Petitioner filed the CHRO request alleging Respondent used Petitioner’s email accounts t0 cancel and alter services It is mere a description 0f the type 0f harassment Respondent has done t0 Petitioner. The records sought by Respondent in his subpoena t0 Google is not relevant and are being used as a method t0 further harassment Petitioner. E. Respondent Failed t0 Properly Notify Petitioner 0f His Intent t0 Subpoena Records CCP §1985.3 (e) states: “Every copy of the subpoena duces tecum and affidavit, if any, served 0n a consumer 0r his or her attorney in accordance With subdivision (b) shall be accompanied by a notice, in a typeface designed t0 call attention t0 the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena; (2) if the consumer objects t0 the Witness furnishing the records t0 the party seeking the records, the consumer must file papers With the court or serve a written objection as provided in subdivision (g) prior to the date specified for production 0n the subpoena; and (3) if the party Who is seeking the records Will not agree in writing to cancel 0r limit the subpoena, an attorney should be consulted about the consumer’s interest in protecting his 0r her rights 0f privacy. If a notice 0f taking 0f deposition is also served, that other notice may be set forth in a single document With the notice required by this subdivision.” Here, Respondent’s attorney simply emailed a copy 0f the subpoena that was going out for service to Google Without providing the required notice t0 consumer. Furthermore, the subpoena itself is defective as it does not allow the statutorily required waiting period t0 produce records. Therefore, Respondent’s subpoena must be quashed by this court. F. Respondent’s subpoena Should be Quashed in Its Entiretv Based 0n the above, Petitioner respectfully request that his Court issue an order quashing Respondent’s subpoena 0n the grounds and objections set forth in this motion. Respondent is not permitted to conduct any type 0f discovery under the Civil Harassment 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS wmflmmfiwNI-l wwmwwwwri-In-tr-Ir-In-tr-Ir-Ir-tr-II-t mflmmrthHOCDOONGDmb-Pwa-lo scheme. If the Court does allow Respondent t0 conduct discovery that the same is overbroad in scope, burdensome, oppressive, and harassing. The requests failed t0 describe With reasonable particularity the material or each category of material to be produced. Further, the requests seek information that is not reasonably calculated t0 lead t0 the discovery 0f admissible evidence and is irrelevant. Lastly, Respondent failed t0 properly serve Petitioner a notice 0f their intent t0 seek records pertaining t0 Petitioner. G. Respondent’s Blatant Abuse 0f the Discovery Process Justifies an Award 0f Reasonable Attorney Fees Pursuant to CCP §1987.2, a court may, at its discretion, award reasonable attorney fees and expense in connection With making 0r opposing a motion to quash. This is particularly appropriate Where one or more aspects of the subpoenas are oppressive. This is precisely the case. Respondent has misused the discovery process. Petitioner informed Respondent that under the Civil Harassment scheme discovery is not available and Respondent refused to Withdraw its subpoena forcing Petitioner to file this instant motion. Furthermore, Respondent’s requests are overbroad, unduly burdensome, and entirely irrelevant t0 the subject matter 0f this action. They are overly intrusive and intended t0 further harass Petitioner. Respondent’s behavior is entirely improper and should not be rewarded. Accordingly, Petitioner respectfully requests $ in expenses and attorney fees related t0 this motion. V. CONCLUSION For the reasons stated herein above, Petitioner respectfully request this court t0 issue an order quashing Respondent’s Deposition Subpoena for Production 0f Business Records to Google. Dated: January 28, 2022. Respectfully submitted, I..- 7w ugifi'v k Dmitry Stadlin Attorney for Petitioner 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS