Opposition ObjectionsCal. Super. - 6th Dist.February 1, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WALTERS LAW GROUP Christopher L. Walters, Esq. (SBN 205510) 1901 First Avenue, Second Floor San Diego, CA 92101 Telephone: (619) 888-5759 Email: clw@walters-law-gr0up.com Attorneysfor Defendant KrzysztofSywula Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/8/2022 10:07 AM Reviewed By: K. Nguyen Case #21 CH009837 Envelope: 8454702 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ALEXIS DACOSTA, an individual Plaintiff, V. KRZYSZTOF SYWULA, an individual, Defendant. Case N0. 21CH009837 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS Hearing Date: March 21, 2022 Hearing Time: 9:00 am. Crtrm: 1 1 Judge: Hon. Carol Overton OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Petitioner continues his efforts to conceal his own misconduct and mislead this Court. Respondent has served a subpoena t0 obtain documents that relate directly t0 the allegations made by Petitioner. Respondent seeks such evidence so that the Court may make an informed decision and deny Petitioner’s requested restraining order. This Court has already held that Respondent is permitted t0 conduct discovery, and this includes subpoenas upon third parties. The Court denied an earlier motion t0 quash and there is no reason for a different result here. As discussed below, the earlier subpoena obtained evidence that reveals that Petitioner is in fact the one harassing and stalking Respondent (and after this evidence was disclosed t0 the court, Petitioner admitted t0 the court that he had been at Respondent’s home 0n multiple occasions and Petitioner’s wife had called Respondent). So, it is no surprise that Petitioner is desperate to avoid the disclosure 0f any additional evidence. There was no good-faith basis for filing this Motion (and it is merely the latest procedural abuse engaged in by Petitioner as detailed below). Petitioner has made factual allegations that Respondent hacked certain company computer accounts and systems, and that despite being the Chief Technology Officer (in addition to being a substantial shareholder and a director), Respondent had n0 rights t0 access or utilize the computer systems and accounts of Teleport Mobility, Inc. Here, Respondent served a subpoena upon Google t0 obtain information and data concerning access t0 the accounts and systems that Petitioner has alleged were hacked. Respondent is confident that such information will show that Petitioner’s allegations are merit-less (and in fact Petitioner’s entire case has n0 factual support). Further, and just as importantly, Petitioner has accused Respondent of criminal activity and Respondent is entitled to obtain the documents that would prove his innocence. II. STATEMENT OF FACTS A review 0f the facts shows Why the Google subpoena issued by Respondent is proper. Petitioner should not be permitted t0 make allegations of hacking (so per Petitioner, Respondent already has access t0 the sensitive documents) and then prevent Respondent from obtaining evidence relating to the allegations Petitioner has made before this Court (which Respondent -1- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adamantly denies, in addition to his legal arguments 0n Why a restraining order is improper). Further, while Petitioner attempts t0 argue that the restraining order procedure is meant to be speedy, Petitioner is the one Who has caused delays by his improper conduct in this matter (including the instant Motion). Petitioner incorrectly states that this is a dispute between Petitioner and “his former employee.” The truth is that Petitioner and Respondent were, and remain, co-owners 0f two businesses and serve together as directors/manager 0f those businesses. [Respondent Will make note though that Petitioner has now taken the legal position that he was the employer 0f Respondent and therefore would be liable for any labor law violations] As set forth in the Background section of Petitioner’s Motion, this is a business/shareholder dispute. Petitioner and Respondent are shareholders/members in Teleport Mobility, Inc. and Northern Lights, LLC. The two 0f them also served as officers/managers 0f these companies. The allegations made by Petitioner d0 not support the issuance 0f a civil harassment restraining order. The core of Petitioner’s allegations are that Respondent improperly accessed the company servers/accounts. fl Petitioner’s Mem. of Pts & Auth, pg. 3:17-42 16. Similar allegations are made in Petitioner’s initial filings in this matter. On January 12 , 2021, DaCosta received multiple messages at his personal Gmail account from RamNode , LLC, Who provides cloud - based computer services for Teleport Mobility.3 At 3:18am , RamNode informed DaCosta as follows: Dear Alexis DaCosta (Teleport), This email is to confirm that we have received your cancellation request for the service listed below. Product /Service: 256MB SVZ Domain: tulip . The service Will be terminated within the next 24 hours. Regards, RamNode When DaCosta attempted t0 10g in to the RamNode server, he could not. When tried t0 reset his RamNode password using both his Teleport Mobility and personal Gmail addresses, he could not. DaCosta had never given Sywula permission or authorization t0 use 0r access his Gmail account, nor did Sywula have authorization to access, use, alter, 0r terminate the RamNode cloud services Attachment 7(a)(3) t0 February 1, 2021 Request for Civil Harassment Restraining Orders. Such allegations have been repeated in sworn declarations by Petitioner. Additionally. Sywula has harmed/harassed me and causing emotional distress by deleting/disabling my business email account 3 times since he resigned January 14. 2021. Even after Sywula resigned, he retained higher admin access t0 a company he left, Which is unauthorized access. The first time he disabled/deleted is further evidenced in Exhibit G. Sywula has/had unfettered access t0 my personal email -2- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accounts and business email account over the past 5-6 months. Sywula clandestinely kept copies of my personal data Without my consent. I found my personal data under his business folder that I was able to download/copy from G-Suite on 4/30/21. Sywula kept copies of my marriage certificate in addition t0 various other personal data that I don't want public. I have a screenshot from May 7, 2021, When I became aware 0f Sywula having my marriage certificate and other documents. further evidenced by EXHIBIT L. I’m scared for What he Will do With my personal data and that ofmy family’s data too.” DaCosta May 25, 2021 Declaration, 111114-151 To the extent that the factual allegations and declarations that this Court relied upon in granting the initial temporary restraining order are false 0r Petitioner is unable t0 support his burden of proof, the restraining order should be denied. This is the type of evidence that Respondent seeks in the Google subpoena. E.g., “Documents sufficient to show all access (including but not limited t0 10g in, 10g out, access the account, change a password) to Google account alexis@teleportnow.io, including but not limited to date/time, IP addresses/locations/MAC address of device used, hostname 0f device, for the time period of January 1, 2021 t0 the present”; “Documents sufficient t0 show details 0f the suspension 0r removal 0f account krz@teleportnow.io, including but not limited t0 the date/time, IP address 0f a device, hostname of a device, MAC address 0f a device, Google account name used for suspending or removing this account.” Petitioner’s statements 0f facts shows: (1) this is a business dispute and should not be in this forum (but instead should be resolved in the ongoing civil litigation matters, including one initiated by Petitioner); and (2) the documents sought by the Google subpoena relate directly to Petitioner’s allegations and Respondent’s defenses in this matter? Petitioner does not allege any type 0f physical harm or even threat of such harm, the alleged misconduct all involves Respondent’s access to computer systems/accounts (mainly those associated With Teleport Mobility, Inc.). This is Why evidence regarding such accounts, including who accessed the files and made any deletions/alterations, is critically important t0 the determination of whether a restraining order should be issued. This case has been ongoing for over a year. That is largely due to Petitioner’s intentional refusal to comply With the requirements of civil procedure (which he ironically now accuses 1 Petitioner never provides any explanation 0n why his personal documents were allegedly stored 0n the Company servers. 2 Respondent denies the factual allegations made by Petitioner and further opposes the legal conclusions made, including the inventorship and ownership arguments. Those matters Will be resolved in litigation matters pending in San Diego. -3- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent of). This includes the failure to properly serve the application for restraining order upon Respondent and then fraudulently obtaining an order from this Court granting the application. Petitioner knew where Respondent was but refused to properly serve him. Service was not effectuated until September 2021 (7 months after the application was filed). The Court continued hearings several times because 0f the failure t0 serve Respondent. This is What has caused delays in this matter, not anything that Respondent has done. III. RESPONDENT IS ENTITLED TO THE REQUESTED DOCUMENTS A. Respondent Has The Right T0 Conduct Discovery. Respondent is entitled t0 conduct discovery regarding Petitioner’s allegations. This right has already been recognized in this matter. The Court permitted Respondent t0 obtain documents pursuant to a subpoena over Petitioner’s objection in this matter. While Respondent understands Why Petitioner is fearful of discovery exposing the baseless nature 0f Petitioner’s allegations, that is not a sufficient reason to deny Respondent the right to obtain such evidence. Respondent should be permitted t0 submit all relevant evidence to this Court regarding Petitioner’s allegations. A protective order was entered by the Court in this matter 0n May 25, 2021 t0 protect the confidentiality/privacy 0f documents produced in discovery. While there may be a public policy to resolve restraining orders quickly, and not permit the conducting 0f discovery t0 slow down such proceedings, that is not the case here. Here, the subpoena does not slow down the proceedings (although Petitioner’s Motion does) and the delays in final resolution of these matters have been caused by Petitioner’s misconduct, including the failure t0 properly and timely serve Respondent. The discovery here is necessary t0 get to the truth of the matter. While certain restraining order cases may revolve around the court’s consideration 0f Witnesses and Who to believe in a he said-she said situation, that is not the case here. There is technical evidence and data Which will establish whether or not Petitioner’s allegations of computer hacking are correct. There is undisputable evidence that addresses Petitioner’s allegations, but Petitioner seeks t0 conceal such evidence from both Respondent and this Court. Pursuant t0 Cal. Code of CiV. Pro. §527.6(i), Respondent has the right t0 present evidence to the Court regarding the allegations. This is clearly -4- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stated in the Schraer V Berkeley Propertv Owners Ass’n (1989) 207 Cal.App.3d 733 fn. 6 decision. While Petitioner attempts to avoid the effects of that decision, that court specifically refers t0 “depositions” being permitted and that decision has been followed by a number 0f courts. “mudges are required to “receive anV testimonv that is relevant” and are authorized to “make an independent inquirv.” (S 527.6. subd. (DJ This provision has been interpreted to mean hearsaV evidence. such as a declaration 0r police report. is admissible during hearings conducted pursuant t0 section 527.6. (Duronslet V. Kamns (2012) 203 Cal.ADD.4th 717. 728- 729. 137 Ca1.RDtr.3d 756: see Kaiser Foundation Hospitals V. Wilson (201 1) 201 Cal.ADD.4th 550. 557. 133 Cal.RDtr.3d 830.) Under this less formal approach t0 the admission 0f evidence. “[b10th sides maV offer evidence bV deposition. affidavit. 0r oral testimonv. and the court shall receive such evidence. subiect onlv t0 such reasonable limitations as are necessarv t0 conserve the expeditious nature 0f the harassment procedure set forth bV section 527.6” (Schraer V. Berkelev Prooertv Owners' Assn. ( 1989) 207 Ca1.App.3d 719, 733, fn. 6, 255 Ca1.Rptr. 453, italics omitted (Schraer).)” Yost V Ferestiere (2020) 51 Cal.App.5th 509, 521;m Smith V. Hilliard (2008) 2008 WL 2589194, *4 (“Nothing in section 527.6 expressly limits “testimony” to oral testimony. (m, s_um, at p. 733, fn. 6 [“Both sides may offer evidence by deposition, affidavit, 0r oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary t0 conserve the expeditious nature 0f the harassment procedure set forth by [section 527.6].”]”).; Duronnslet V Kapms (2012) 203 Cal.App.4th 717, 729; Ortega V Dixon (2003) 2003 WL 22146508, *7 (“As the court explained in Schraer V. Berkeley Property Owners' Assn. (1989) 207 Ca1.App.3d 719, 730-731, despite the expedited nature of proceedings under section 527.6, “they contain certain important due process safeguards.” Thus, “[b]0th sides may offer evidence by deposition, affidavit, 0r oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary t0 conserve the expeditious nature 0f the harassment procedure set forth by section 527.6.” (Id. at p. 733, fn. 6, italics 0mitted.)”); Bauer V Gharib (2021) 2021 WL 194136, Fn. 10; Spinetta V Disney (2007) 2007 WL 3077298, *10; Banda V Wash (2020) 2020 WL 7041566, *18; Muldrow V Kingori (2009) 2009 WL 804763, *3; Kennell V Grillo (2015) 2015 WL 3965617, Fn. 12; McKinley V Contursi (2007) 2007 WL 2069929, Fn. 7; Puthukkeril V Allen (2007) 2007 WL 31 12412, Fn. 4. In this matter, Respondent’s subpoena did not delay the proceedings, there was sufficient time t0 conduct discovery due to Petitioner’s improper conduct in the litigation. -5- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This subpoena is targeted and focused 0n gathering evidence for Respondent to rebut Petitioner’s allegations. “On January 12 , 2021 , DaCosta received multiple messages at his personal Gmail account from RamNode , LLC , who provides cloud - based computer services for Teleport Mobility.3 At 3:18am , RamNode informed DaCosta as follows: Dear Alexis DaCosta (Teleport), This email is to confirm that we have received your cancellation request for the service listed below . Product /Service: 256MB SVZ Domain : tulip . The service will be terminated within the next 24 hours. Regards, RamNode When DaCosta attempted t0 10g in t0 the RamNode server, he could not. When tried t0 reset his RamNode password using both his Teleport Mobility and personal, Gmail addresses , he could not . DaCosta had never given Sywula permission 0r authorization t0 use 0r access his Gmail account, nor did Sywula have authorization to access, use, alter , 0r terminate the RamNode cloud services” *** “You then disabled DaCosta's company email account, but eventually restored access t0 it 0n January 20, only after DaCosta’s father personally requested you d0 so. Such access was short - lived; you deleted the email account altogether 0n January 29.” Attachment 7(a)(3) t0 February 1, 2021 Request for Civil Harassment Restraining Orders “Additionally. Sywula has harmed/harassed me and causing emotional distress by deleting/disabling my business email account 3 times since he resigned January 14. 2021. Even after Sywula resigned, he retained higher admin access t0 a company he left, which is unauthorized access. The first time he disabled/deleted is further evidenced in Exhibit G. Sywula has/had unfettered access to my personal email accounts and business email account over the past 5-6 months. Sywula clandestinely kept copies 0fmy personal data without my consent. I found my personal data under his business folder that I was able to download/copy from G-Suite on 4/30.’2 I . Sywula kept copies ofmy marriage certificate in addition t0 various other personal data that I don't want public. I have a screenshot from May 7, 2021. When I became aware 0f Sywula having my marriage certificate and other documents. further evidenced by EXHIBIT L. I’m scared for what he Will d0 With my personal data and that ofmy family’s data too.” DaCosta May 25, 2021 Declaration, W14-15. One 0f the allegations made by Petitioner is that Respondent has hacked his Gmail and improperly accessed G Suite. Petitioner’s Mem. of Pts & Auth, pg. 3: 17-4: 16. This is the type of evidence that Respondent seeks With the subpoena. Petitioner’s allegations are broad and vague as to time, but Respondent’s subpoena is focused upon such allegations. The only misconduct alleged by Petitioner involves access and tampering with online accounts. There are n0 allegations of Violence, or even threats of Violence. Respondent denies that he improperly accessed any accounts or files and seeks evidence t0 support that defense. The subpoena requests only 9 categories 0f documents and these requests are focused 0n Who accessed, removed files. This would reveal that t0 the extent there was any access/deletion, it was caused by Petitioner, and Respondent did not engage in any improper conduct. -6- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is seeking to bar Respondent from uncovering the evidence that relates t0 Petitioner’s allegations (and would show that there is no merit 0r proof t0 support such allegations). It is n0 surprise that Petitioner does not want such evidence revealed. As mentioned above, Petitioner sought t0 quash an earlier subpoena Which the Court denied. The documents produced pursuant t0 that subpoena evidence that Petitioner and his wife had been stalking Respondent’s apartment and support Respondent’s cross-petition for a restraining order. B. Respondent Had N0 Obligation T0 Serve a Notice 0f Consumer For The Subpoena Upon Google. Pursuant t0 the applicable statutes, there was n0 requirement for service of a notice t0 consumer being served in relation to the Google subpoena. The notice t0 consumer is only required “for the production 0f personal records.” Cal. Code of CiV. Pro. §1985.3(b). The definition of “personal records” involves documents produced by medical providers, banks, insurance companies, attorneys, accountants, telephone corporations, schools and the like. Ca. Code 0f CiV. Pr. §1985.3(a)(1). Here, the subpoena did not seek “personal records” so there was no need to serve a notice t0 consumer. The subpoena is proper. It is narrowly tailored and focused upon documents Which relate directly to Petitioner’s allegations and the issues that Petitioner has raised in this matter. Respondent is entitled t0 such documents so that the Court can make the equitable decision in this matter after consideration 0f all relevant evidence. C. Petitioner Is The One Who Should Be Sanctioned In This Matter. Respondent has acted reasonably, including issuing subpoenas as he was previously permitted to in this matter. The subpoena is focused upon the documents that relate directly t0 Petitioner’s allegations and sworn testimony. Petitioner should not be permitted t0 prevent Respondent from obtaining documents relating t0, and uncovering the truth of, Petitioner’s allegations. There was n0 legitimate, good faith basis for Petitioner’s motion, especially in light of prior rulings in this matter. IV. CONCLUSION -7- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion t0 Quash should be denied and the Court should order the subpoenaed party to produce all requested documents within 30 days. Respondent requests that the evidentiary hearing in this matter be continued 90 days. DATED: March 8, 2022 Submitted by, WALTERS LAW GROUP s/Christopher L. Walters, Esq. CHRISTOPHER L. WALTERS, ESQ. Attorneysfor Defendant KrzysztofSywula -8- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SERVICE I, the undersigned, declare: 1. I am over 18 years of age and not a party t0 this action. My business address is 1901 First Avenue, Second Floor, San Diego, California 92101 Which is located in the county Where the service described below took place. 2. On March 8, 2022, I served the following documents: OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ( X ) BY ELECTRONIC SERVICE pursuant t0 agreement between the Parties. I certify and declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed 0n March 8, 2022, at San Diego, California. s/Christopher L. Walters, Esq. CHRISTOPHER L. WALTERS, ESQ. -9- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST DaCosta v. Sywula, Case No.2 21CH009837 COUNSEL FOR PETITIONER: Dmitry Stadlin, SBN 302361 STADLIN MARINHO LLP 111 N. Market Street. Suite 300 San Jose, California 951 13 Tel: (408) 645-7801 Fax: (408) 645-7802 Email: ds@stadlinmarinho.com Attorneys for Petitioner ALEXIS DACOSTA COUNSEL FOR DEFENDANT: WALTERS LAW GROUP Christopher L. Walters, Esq. 1901 First Avenue, Second Floor San Diego, CA 92 1 01 Telephone: (619) 888-5759 Email: clw@walters-1aw-group.com Attorneysfor Defendant -10- OPPOSITION TO MTN TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS