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Mark D. Piesner, SBN: 251079
ARC POINT LAW PC
22287 Mulholland Hwy #198
Calabasas, CA 91302-5157
Email: Mark@ arcpointlaw.com
Phone: 818-638-4456
Attomey for Plaintiff Maya Castro
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
MAYA CASTRO, an individual, Case No. SCV -269513
Plaintiff, AMENDED PLAINTIFF’S REQUEST
10 FOR JUDICIAL NOTICE IN SUPPORT
vs. OF PLAINTIFF’S MOTION FOR
11 SANCTIONS FOR $15,895 FOR BAD
SPURGEON PAINTING, INC., a Califomia
Corporation; THOMAS BOY D MEACHAM
FAITH AND DELAY ACTIONS
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IIL, an individual; TIJA BUCKALEW, an AGAINST DEFENDANTS’ ATTORNEY
13 individual and DOES 1-50, DIANE AQUI; MOTION TO
DISQUALIFY OPPOSING COUNSEL
14 Defendants. DIANE AQUI FOR BAD FAITH AND
DELAY ACTIONS.
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Date:
16 Time:
Dept: 18
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19 Pursuant to Section 450 et Seq, and Califomia Rules of Court, Rule 3.1306(c), Plaintiff
Maya Castro (“Plaintiff”) hereby respectfully amends her request that the court take judicial
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notice of the documents listed below. Evidence Code Section 453 states that “the trial court shall
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take judicial notice of any matter specified in Section 452 if a party requests it” and the
22 requesting party (1) gives adequate notice to the adverse party and (2) includes sufficient
23 information to enable the Court to take judicial notice. (Evid. Code, §§ 451, 452, 453.)
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Request for Judicial Notice
Mark D. Piesner, SBN: 251079
ARC POINT LAW PC
22287 Mulholland Hwy #198
Calabasas, CA 91302-5157
Email: Mark@ arcpointlaw.com
Phone: 818-638-4456
Attomey for Plaintiff Maya Castro
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FORTHE COUNTY OF SONOMA
MAYA CASTRO, an individual, Case No. SCV -269513
Plaintiff, AMENDED PLAINTIFF’S REQUEST
10 FOR JUDICIAL NOTICE IN SUPPORT
vs. OF PLAINTIFF’S MOTION FOR
11 SANCTIONS FOR $15,895 FOR BAD
SPURGEON PAINTING, INC., a Califomia
Corporation; THOMAS BOY D MEACHAM
FAITH AND DELAY ACTIONS
12
IIL, an individual; TIJA BUCKALEW, an AGAINST DEFENDANTS’ ATTORNEY
13 individual and DOES 1-50, DIANE AQUI; MOTION TO
DISQUALIFY OPPOSING COUNSEL
14 Defendants. DIANE AQUI FOR BAD FAITH AND
DELAY ACTIONS.
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Date:
16 Time:
Dept: 18
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19 Pursuant to Evidence Code Section 450 et. seg. and Califomia Rules of Court, Rule
3.1306(c), Plaintiff Maya Castro (“Plaintiff”) hereby respectfully request that the Court take
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judicial notice of the documents listed below. Evidence Code Section 453 states that “the trial
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court shall take judicial notice of any matter specified in Section 452 if a party requests it” and
22 the requesting party (1) gives adequate notice to the adverse party and (2) includes sufficient
23 information to enable the Court to take judicial notice. (Evid. Code, §§ 451, 452, 453.)
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The documents listed below fall directly within the category of matters appropriate for
judicial notice under Sections 451 and 452 of the Evidence Code. Courts are entitled to take
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judicial notice of its own records. Dwanv. Dixon, 216 Cal.A pp.2d 260 (1963). (Evid. Code, §
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452, subd. (d).) And Evidence Code § 451(a) requires judicial notice of the decisional law of
27 California and the United States.
28 In addition, pursuant to Evidence Code Section 350, these materials are relevant to the
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
Court’s disposition of matters in dispute in this action. (Evid. Code, § 350.) (1) Attomey Diane
Aqui filed a Motion to Quash in which she made misstatements of the facts; (2) The Plaintiff’s
Opposition to the Motion to Quash AT&T subpoena contains Plaintiff’s contemporaneous
arguments made at that time which are relevant to the instant action; (3) The Plaintiff’s
Supplemental Opposition to the Motion to Quash AT&T subpoena contains Plaintiff’s
contemporaneous arguments made at that time which are relevant to the instant action; (4) the
Declaration of A ttomey Diane A qui, submitted in support of the opposition to the motion to
quash deposition subpoena notices for business records contains statements as if she were a
direct witness to the case's underlying facts; (5) The Plaintiff's Motion to Strike the A nswer of
Defendants Spurgeon Painting Inc., Thomas Boyd Meacham III, and Tija Buckalew, seeks
sanctions against the defendants for alleged misconduct, including evidentiary issues and
10 termination sanctions. This motion provides crucial insights into the plaintiff's claims of
11 wrongdoing by the defendants, which are pertinent to the current proceedings; and (6) The
decision of the U.S. District Court, Northem District, in the case of Knightv. Aqui, A ttomey
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Aqui’s past legal transgressions, including professional negligence, breach of fiduciary duty,
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breach of contract, conversion, and negligent misrepresentation, paint a picture of a pattem of
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misconduct. and addresses similar legal issues that may be relevant to the present case.
15 For the foregoing reasons, Plaintiffs respectfully requests that this Court take judicial
16 notice
of the following:
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1 Memorandum of Points and Authorities of the Defendant’s Motion to Quash Deposition
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Subpoena for production of business records from AT&T filed October 27, 2022, at page
19 5, lines 14-18; page 5, line 23-24, page 5, line 27-page 6, line 3. A true and correct copy
20 of the Defendant’s Motion to Quash Deposition Subpoena for production of business
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records from AT&T filed October
27, 2022, attached hereto as Exhibit 1. In that, such
documents are all in the Court records in the above-entitled matter. (Evidence Code §
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452(d)(1) permits discretionary judicial notice of records of any Califomia Court.)
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Memorandum of Points and Authorities of the Plaintiff’s Opposition to Defendant's
24 Motion to Quash Deposition Subpoena for production of business records from AT&T
25 filed February 21, 2023, at page 3, lines 1-page 9, line 24. A true and correct copy of
Plaintiffs Opposition to Defendant's Motion to Quash Deposition Subpoena for
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production of business records from AT&T filed February 21, 2023, attached hereto as
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Exhibit 2. In that, such documents are all in the Court records in the above-entitled
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
matter. (Evidence Code § 452(d)(1) permits discretionary judicial notice of records of
any Califomia Court.)
Memorandum of Points and Authorities of the Plaintiff's Supplemental Opposition to
Defendant's Motion to Quash Deposition Subpoena for production of business records
from AT&T filed February 23, 2023, at page 1, lines 17-page 7, line 16. A true and
correct copy of Plaintiffs Supplemental Opposition to Defendant's Motion to Quash
Deposition Subpoena for production of business records from AT&T filed February 23,
2023, attached hereto as Exhibit 3. In that, such documents are all in the Court records in
the above-entitled matter. (Evidence Code § 452(d)(1) permits discretionary judicial
notice of records of any California Court.)
The Declaration of Diane A qui, in Support of Opposition to Motion to Quash Deposition
10 Subpoena Notices for Business Records, Staying the Production of Business Records by
11 Windsor Hospitality, Pasha Group, and Robert, Half Intemational Inc. and for A
Protective Order regarding same, filed on January 5, 2023, at page 1, 9/2, lines 26-27,
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page 2, 43, lines 1-6, 4/4, lines 7-8, 5, lines 9-11. A true and correct copy of The
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Declaration of Diane A qui, in Support of Opposition to Motion to Quash Deposition
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Subpoena Notices for Business Records, Staying the Production of Business Records by
15 Windsor Hospitality, Pasha Group, and Robert, Half Intemational Inc. and for A
16 Protective Order regarding same, filed on January 5, 2023, attached hereto as Exhibit 4.
In that, such documents are all in the Court records in the above-entitled matter.
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(Evidence Code § 452(d)(1) permits discretionary judicial notice of records of any
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Califomia Court.)
19 Memorandum of Points and Authorities in support of the Plaintiff's Motion to Strike the
20 Answer of Defendants Spurgeon Painting Inc., Thomas Boyd Meacham III, and Tija
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Buckalew, for Evidentiary Issues Sanctions A gainst All Named Defendants and
Termination Sanctions filed January 5, 2024, at page 9, lines 1-page 22, line 6. A true and
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correct copy of Plaintiff’s Motion to Strike the Answer of Defendants Spurgeon Painting
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Inc., Thomas Boyd Meacham III, and Tija Buckalew, for Evidentiary Issues Sanctions
24 Against All Named Defendants and Termination Sanctions filed January 5, 2024,
25 attached hereto as Exhibit 5. In that, such documents are all in the Court records in the
above-entitled matter. (Evidence Code § 452(d)(1) permits discretionary judicial notice
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of records of any California Court.)
27
The U.S. District Court, Northem District's decision in Knightv. Aqui (N.D. Cal. 2013)
28 966 F.Supp.2d 989, Case No. 11-cv—06337-JST (September 5, 2013). A true and correct
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
copy of the U.S. District's decision in Knightv. Aqui (N.D. Cal. 2013) 966 F.Supp.2d
989, Case No. 11-cv—-06337-JST (September 5, 2013) attached hereto as Exhibit 6.
(Evidence Code § 451(a) requires judicial notice of the decisional law of Califomia and
the United States.)
ARC POINT LAW PC,
DocuSigned by:
10 Dated: 2/14/2024 By a. Mark
oe |Pirsmer
ye Piesneps
11 Attomey for Plaintiff
MAYA CASTRO
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
Mark D. Piesner, SBN: 251079
ARC POINT LAW PC
22287 Mulholland Hwy #198
Calabasas, CA 91302-5157
Email: Mark@ arcpointlaw.com
Phone: 818-638-4456
Attomey for Plaintiff Maya Castro
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FORTHE COUNTY OF SONOMA
MAYA CASTRO, an individual, ) Case No. SCV -269513
Plaintiff,
10 ) [PROPOSED] ORDER
vs.
11 Date:
SPURGEON PAINTING, INC., a Califomia Time:
12 Corporation; THOMAS BOY D MEACHAM Dept: 18
IIL, an individual; TIJA BUCKALEW, an
13 individual and DOES 1-50,
14 Defendants.
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19 This matter came on regularly before the Court for hearing on -a- a+
Mark D. Piesner, Esq. appeared for Plaintiff, Diane A qui, Esq. appeared for Defendants.
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The Court, having reviewed the moving and opposing papers on Plaintiff's A mended
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Request for Judicial Notice in Support of Plaintiff’s Motion for Sanctions for $15,895 for Bad
22 Faith and Delay Actions Against Defendants’ Attorney Diane Aqui; Motion to Disqualify
23 Opposing Counsel Diane A qui for Bad Faith and Delay Actions; and oral argument of counsel
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having been received by the Court:
The Court finds, adjudges and orders as follows:
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1. That Plaintiff’s Request to Take Judicial Notice is hereby GRANTED as to the
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following documents:
27 Exhibit 1: Defendant’s Motion to Quash Deposition Subpoena for production of
28 business records from AT&T filed October 27, 2022.
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
Exhibit 2 Plaintiff’s Opposition to Defendant's Motion to Quash Deposition
Subpoena for production of business records from AT&T filed February
21, 2023.
Exhibit 3 Plaintiff’s Supplemental Opposition to Defendant's Motion to Quash
Deposition Subpoena for production of business records from AT&T filed
February 23, 2023.
Exhibit 4: Declaration of Diane A qui, in Support of Opposition to Motion to Quash
Deposition Subpoena Notices for Business Records, Staying the
Production of Business Records by Windsor Hospitality, Pasha Group,
and Robert, Half Intemational Inc. and forA Protective Order regarding
same, filed on January 5, 2023.
10 Exhibit 5 Plaintiffs Motion to Strike the Answer of Defendants Spurgeon Painting
11 Inc., Thomas Boyd Meacham III, and Tija Buckalew, for Evidentiary
Issues Sanctions A gainst All Named Defendants and Termination
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Sanctions filed January 5, 2024.
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Exhibit 6: The U.S. District Court, Northem District's decision in Knightv. Aqui
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(N.D. Cal. 2013) 966 F.Supp.2d 989, Case No. 11—cv-06337-JST
15 (September 5, 2013).
16 ITIS SO ORDERED.
IT IS FURTHER ORDERED as follows: ao
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Dated -- a eq 5
Judge of the Superior Court
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Request for Judicial Notice
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF SONOMA
I am a resident of the state of Califomia and over the age of 18 and not a party to the
within action. My business address is: 777 Silver Spur Rd. Suite 235 Rolling Hills Estates CA
90274
were
On a 02/14/24
SEE , | served the following documents:
AMENDED PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
PLAINTIFF’S MOTION FOR SANCTIONS FOR $15,895 FOR BAD FAITH AND
DELAY ACTIONS AGAINST DEFENDANTS’ ATTORNEY DIANE AQUI; MOTION
TO DISQUALIFY OPPOSING COUNSEL DIANE AQUI FOR BAD FAITH AND
DELAY ACTIONS.
10 By Personal Service.
I personally delivered the documents listed above to the parties or person authorized to
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receive service of process for the party on (date) —-- a at (time) Jo
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By United States Mail.
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Iplaced the envelope forcollection and mailing, following our ordinary business practices.
14 I am readily familiar with this business practice forcollecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it is deposited
15 in the ordinary course of business with the United States Postal Service, in a sealed envelope with
postage fully prepaid. The envelope or package was placed in the mail at
16 , Califomia.
17
X
By Email.
18 I caused the above-transcribed documents to be transmitted by email to
daqui@ smithdollar.com.
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I declare under penalty of perjury under the laws of the state of Califomia that the
foregoing is true and correct.
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02/14/24
Executed on SA , at_Rolling Hills Estates , Califomia.
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24 DocuSigned by:
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Luis Castro (wis Castro
Name of Declarant Signaturtof Declarant
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DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1
CASTRO vs. SPURGEON PAINTING, INC., etal.
Court Case No.: SCV -269513
MAILING LIST
Diane
A qui, Esq.
SMITH DOLLAR PC
418 B Street, 4th Floor
Santa Rosa, CA 95401
ATTORNEY FOR DEFENDANTS
SPURGEON PAINTING, INC.;
THOMAS BOYD MEACHAM
Il; and TIA BUCKALEW.
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Request for Judicial Notice
Exhibit |
Diane Aqui, SBN 217087
daqui@smithdollar.com
Trina N. Dresden 168088
tdresden@smithdollar.com
SMITH DOLLAR PC
Attorneys at Law
418 B Street, Fourth Floor
Santa Rosa, California 95401
Telephone: (707) 522-1100
Facsimile: (707) 522-1101
Attorneys for Defendants
SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM IIL, and TTA BUCKALEW
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
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MAYA CASTRO, an individual, CASE NO.: SCV-269513
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Plaintiff, DEFENDANTS’ NOTICE OF MOTION AND
12 V. MOTION TO QUASH DEPOSITION
SUBPOENA FOR PRODUCTION OF
13 SPURGEON PAINTING, INC., a California BUSINESS RECORDS FROM AT&T
Corporation; THOMAS BOYD MEACHAM WIRELESS; MEMORANDUM OF POINTS
14 III, an individual; TIA BUCKALEW, an AND AUTHORITIES IN SUPPORT AND
individual and DOES 1-50 REQUST FOR SANCTIONS
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Defendants. Date:
16 Time: 3:00 p.m.
Dept.: 18
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Judge: Hon. Jennifer V. Dollard
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Complaint Filed: October 15, 2021
19 Trial Date: March 17, 2023
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21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22 PLEASE TAKE NOTICE that on , 2023, at 3:00 p.m., or as soon
23 thereafter as the matter can be heard in Department 18 of the above-entitled Court, Defendants
24 SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIJA BUCKALEW
25 (together as “Defendants”) will move the Court for an order quashing Plaintiff MAYA CASTRO’S
26 Deposition Subpoena For Production Of Business Records From AT&T Wireless:
27 The Motion to Quash Plaintiff's Subpoena (the “Motion’) will be made on the grounds that
$) 1285298 -1-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
the Subpoena requires the production of business records that are privileged under California
Evidence Code section 350, and pursuant to Code of Civil Procedure section 1987.1, it is
unreasonable and oppressive. The discovery is intrusive and irrelevant, and invades Defendants’
federal and state constitutional rights to privacy. The Motion will be based upon this Notice of
Motion and Motion, the Memorandum of Points and Authorities in Support, Declarations of Diane
Aqui and Trina Dresden, the files and records in this action, and any further evidence or argument
that the Court may properly receive at or before the hearing.
On the afternoon of the court day preceding each law and motion calendar commencing at
2:00 p.m., the Assigned Judge will cause to be recorded a tentative ruling (if available) on each
10 motion on the next day's law and motion calendar. The tentative ruling may be obtained by
11 telephoning (707) 521-6881 (tape-recorded message) or at the court’s web page
12 www.sonoma.courts.ca.gov. A copy of the tentative ruling will also be posted at the Assigned
13 Judge’s courtroom. The tentative ruling shall become the ruling of the court, unless any party
14 desiring to be heard so advises the judicial assistant for the Assigned Judge no later than 4:00 p.m.
15 on the court day preceding the law and motion calendar, and further advises the judicial assistant
16 for the Assigned Judge that such party has notified all opposing parties of her/his intention to
17 appear. Where appearance has been required or invited by the court, then oral argument may be
18 presented. Appearance is always required on small claims law and motion matters and on all claims
19 of exemption, unless otherwise stated on the tentative ruling.
20 Dated: October 27, 2022
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SMITH DOLLAR PC
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. Desre Ay
Diane Aqui
25 Attorneys for SPURGEON PAINTING, INC.,
THOMAS BOYD MEACHAM III, and TIJA
26 BUCKALEW
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$) 1285298 -2-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
MEMORANDUM OF POINTS AND AUTHORITIES
Defendants’ SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIA
BUCKALEW (together as “Defendants”) submit the following Memorandum of Points and
Authorities in Support of their Motion to Quash Plaintiff's October 12, 2022, Deposition
Subpoenas for Production of Business Records to AT&T Wireless (the “Subpoena”) as follows:
I INTRODUCTION & RELEVANT FACTS
On October 15, 2021, Plaintiff Maya Castro filed a Complaint for Breach of Contract,
Breach of Duty of Good Faith and Fair Dealing, Intentional Infliction of Emotional Distress,
10 Discrimination, Failure to Accommodate a Medical Condition, Wrongful Termination and
11 Unlawful Business Practice with regard to her employment with Defendants between the dates of
12 April 19, 2018 through August 2018 and January 18, 2021 through April 9, 2021.
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On October 12, 2022, Plaintiff Maya Castro issued a Deposition subpoena for production of
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business records from AT&T Wireless Subpoena Compliance Center. (Declaration of Diane Aqui,
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4 3, Exhibit 1.) The records to be produced are stated in Attachment 3 as:
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Any and all billing and phone records of incoming and outgoing text messages, including
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but not limited to the location where the messages were placed and received, time, date and
18 duration of messages, the actual text and picture message sent or received by mobile number
(707) 228-8910 to mobile number (707) 481-6314 during the period from December 15,
19 2021 to January 1, 2022 including but not limited to, any records or documents that may be
stored digitally and/or electronically, Account Holders are Thomas Boyd Meacham III and
20 Tija Buckalew. Account numbers are unknown.
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On October 19 2022, Defendants sent a meet and confer letter to Plaintiff asking her to
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withdraw her subpoena to AT&T based on relevance and invasion of privacy. (Declaration of
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Diane Aqui, 94, Exhibit 2.)
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25 Plaintiff
has failed to withdraw her Subpoena or communicate to Defendants regarding said
26 Subpoena, thus necessitating the instigation of the present motion.
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$) 1285298 -3-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
IL. LEGAL ARGUMENT
A A Party May Move for an Order Quashing a Subpoena
“If a subpoena requires the attendance of a witness or the production of books, documents
or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the
court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s
own motion after giving counsel notice and an opportunity to be heard, may make an order
quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or
conditions as the court shall declare, including protective orders.” Cal. Code Civ. Proc. § 1987.1.
B Good Cause Exists for Quashing the Subpoena
10 1 The Subpoena Seeks Information Not Relevant to the Case at Issue.
11 Relevant matters are discoverable pursuant to Cal. Code Civ. Proc. §2017. The section
12 states in pertinent part that “any party may obtain discovery regarding any matter not privileged that
13 is relevant to the subject matter involved in the pending action or to the determination of any
14 motion made in that action, if the matter either is itself admissible in evidence or appears
15 reasonably calculated to lead to the discovery of admissible evidence.”
16 “The court shall limit the scope of discovery if it determines that the burden, expense, or
17 intrusiveness of that discovery clearly outweighs the likelihood that the information sought will
18 lead to the discovery of admissible evidence.” Cal. Code Civ. Pro. § 2017.020(a).
19 Here, Plaintiff's request is irrelevant, unnecessary, overbroad, and unduly burdensome in
20 that it seeks the content, time, date, location, and duration of any and all text messages between the
21 two individual defendants for over a two-week period, eight months after plaintiff's employment
22 ended.
23 It should also be noted that Plaintiff
has not asked for specific messages related to her and or
24 her employment, but seeks an overreaching request of any and all messages sent and received
25 between the two mobile phone numbers listed (i.e., “any and all billing and phone records...sent or
26 received by [one mobile number to the other.]”). Additionally, the material sought is overbroad
27 seeking, “location where the messages were placed and received, time, date, and duration of
$) 1285298 -4-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
messages...” and “the actual text and picture message...” Further Plaintiff has failed to address
what relevance any communication between the Defendants, eight months after her employment,
bears on this matter.
Defendants respectfully requests that the Subpoena be quashed on the above cited grounds.
2. The Subpoena Seeks Documents Invasive of the Defendants Privacy
“California accords privacy the constitutional status of an inalienable right, on a par with
defending life and possessing property. Courts must balance right of civil litigants to discover
relevant facts against privacy interests of persons subject to discovery.” (California Constitution,
Article I, Section 1; Vinson v. Superior Court, 43 Cal. 3d 833, 239 Cal. Rptr. 292, 740 P.2d 404
10 (1987))
11 “..the court may make any other order as may be appropriate to protect the person from
12 unreasonable or oppressive demands, including unreasonable violations of the right of privacy of
13 the person.” CCP Section 1987.1.
14 The discovery sought here (actual text and picture messages, time, date, location, and
15
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17 I, Section 1 of the California Constitution. Cobb v. Superior Court, 99 Cal.App. 3d 543, 160
18 Cal.Rptr. 561 (2d Dist. 1979).
19 The California Supreme Court has decided the analytical framework for assessing a privacy
20 claim: 1) there must be a specific legally, protected privacy interest; 2) a reasonable expectation of
21 privacy must exist; and 3) the invasion of the privacy interest must be serious. Hill v. National
22 Collegiate Athletic Assn.,7 Cal.4" 1, 39-40 (1994).
23 ‘Here, Defendants have a legally protected privacy right in their personal cell phones, |
24 including call records, and text messages. City of Ontario v. Quon, 130 S.Ct. 2619 (2010), Theofel
25 v. Farey-Jones, 359 F.3d 1066 (9" Cir. 2004). And, Defendants have a reasonable expectation of
26 privacy in their cell phone records. See Carpenter v. United States (2018), 138 S. Ct. 2206.
27 Producing the text and picture messages from a party’s personal cell phones is a serious
1285298 -5-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND.
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
‘invasion
of privacy. Plaintiff has failed to allude to any reasoning to justify such an invasion, nor
has she carried her burden of showing a ‘plausible justification’ for acquiring documents from this
third party. Facebook, Inc. v. the Superior Court of San Diego County, 10 Cal.5" 329 (2020).
Further, Plaintiff doesn’t just request the content of the messages. She is requesting the
actual location where text messages were sent and received. In Carpenter v. United States (2018)
138 S. Ct. 2206, the United States Supreme Court held that phone subscribers have a legitimate
expectation of privacy regarding a telephone company's records of their cellphone location data.
“The time-stamped data from a wireless provider's mobile tracking technology provides "an
intimate window into a person's life," revealing not only his or her particular movements, but
10 through them his "familial, political, professional, religious, and sexual associations.” Id. at 2217.
11 Defendants’ privacy claim is legitimately based on their reasonable expectation of privacy |
12 (in
personal
their cell phones.) Plaintiff has stated zero rationale for her need to acquire and inspect
13 the private text messages between these parties. Even if Plaintiff could assert a plausible
14 justification, an appropriate inquiry would consider whether such a significant intrusion is
15 warranted and necessary to facilitate said justification.
16 For these reasons, the Subpoena must be quashed.
17 Defendant is Entitled to Sanctions Against Plaintiff for Willful Failure to
Cancel the Subpoena.
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If the motion to quash is granted, the court may in its discretion award the amount of the
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reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s
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fees, if the court finds the motion was made or opposed in bad faith or without substantial
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justification... Cal. Code Civ. Proc. §1987.2
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‘There is no justification for subpoenaing the personal cell phone records of defendants in a |
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“wrongful termination case fora period of time eight months after Plaintiff was terminated, Further
United States Supreme Court precedent holds that location data maintained by cell phone carriers is
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so protected that even law enforcement requires a warrant to access it.
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Plaintiff also failed to respond to Defendants’ meet and confer efforts. Plaintiff served three
27
1285298 -6-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND.
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
(3) subpoenas to three (3) different entities. Defendants only objected to the current subpoena for
the above cited reasons. Defendants timely advised Plaintiff of the failings in her subpoena and
sought confirmation of its withdrawal. Plaintiff has failed to withdraw the subpoena and/or
communicate to Defendants regarding its relevance, thus necessitating the current motion.
Defendants should not bear the expense of Plaintiffs non-responsiveness. Sanctions are
warranted.
D. Amount of Monetary Sanctions
As noted in the Dresden Declaration at 42, Defendants request monetary sanctions against
Plaintiff
for no less than $2,860.00 (7 hours multiplied by counsel’s hourly rate of $400 plus the
10 cost of filing) for bringing this motion. Defendant reserves the right to request a greater amount of
11 fees should additional issues arise or additional work is required to prosecute the relief sought
12 herein.
13 lll. CONCLUSION
14 The October 12, 2022, Deposition Subpoenas for Production of Business Records to AT&T
15 Wireless should be quashed. The Subpoena seeks documents that are not relevant nor reasonably
16 calculated to lead to the discovery of admissible evidence. The Subpoena seeks to impermissibly
17 invade Defendants’ federal and state constitutional rights to privacy and are overbroad. The Court
18 should issue a monetary sanction against Plaintiff in the amounts requested herein as Plaintiff is
19 without substantial justification for failing to respond to Defendants request to withdraw her
20 Subpoena.
21 Dated: October 27, 2022
SMITH DOLLAR PC
22 ‘
23 qe
By.
Diane Aqui
24 Attorneys for SPURGEON PAINTING, INC.,
THOMAS BOYD MEACHAM III, and TIJA
25 BUCKALEW
26
27
$) 1285298 -T-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS
Exhibit 2
|
DocuSign Envelope ID: C8D2A497-7209-48D9-ADFF-8FBD8D4878A5
Maya Castro ELECTRONICALLY FILED
1619 Wishing Well Way Superior Courtof California
kM
County of Sono}
Santa Rosa, CA 95403 2/21/2023 8:00
Email: mayas.castro@ yahoo.com By: Angela Mendia, Deputy Clerk
Phone: (424) 392-0002
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FORTHE COUNTY OF SONOMA
MAYA CASTRO, an individual, Case No. SCV -269513
Plaintiff, PLAINTIFF MAYA CASTRO'S
OPPOSITION TO DEFENDANTS'
10 vs. MOTION TO QUASH DEPOSITION
SPURGEON PAINTING, INC., a Califomia SUBPOENA FOR PRODUCTION OF
11
Comoration, THOMAS BOY D MEACHAM BUSINESS RECORDS FROM AT&T
IIL, an individual; TITA BUCKALEW, an WIRELESS; REQUEST FOR
12
individual and DOES 1-50, MONETARY SANCTIONS IN THE
13 AMOUNT OF $3,200.00 AND
Defendants. DECLARATION OF MAYA CASTRO
14
Date: March 1, 2023
15 Time: 3:00 p.m.
Dept: 18
16
17
18 TO THE COURT AND DEFENDANTS AND THEIR ATTORNEY OF RECORD:
19 PLEASE TAKE NOTICE thaton March 1, 2023, at 3:00 p.m. oras soon thereafteras the
20 matter may be heard, in Department 18 of the above-referenced court, Plaintiff Maya Castro
21 requests the Court deny Defendants Motion to Quash Subpoenas to: AT&T Wireless Subpoena
22 Compliance Center (“the Subpoena”), or at a minimum modify the Subpoenas as proposed in
23 Plaintiff Maya Castro's November 17, 2023 meet and confer letter regarding production of the text
24 messages in question through written discovery, on the following grounds:
25 1 The Subpoena was served in good faith;
26 2 The Subpoena requests records that are directly relevant to Plaintiff's allegations
27 and Defendants' defenses thereto;
28
Opposition to Motion to Quash
|
DocuSign Envelope ID: C8D2A497-7209-48D9-ADFF-8FBD8D4878A5
3 The requested records are essential to determining the truth of the matters in dispute
in the instant action and necessary for Plaintiff to prove her claims;
4 Less intrusive means of discovery were attempted but Defendants refused to
produce; and
5. Discovery of the subpoenaed records do not impermissibly invade Defendants’
right to privacy.
Further, Plaintiff seeks an order compelling: (1) AT&T Wireless Subpoena Compliance
Center to comply with the Subpoenas; and (2) Defendants to sign releases authorizing the
production of their AT&T Wireless telephone records from December 15, 2020 to May 1, 2021.
10 Lastly, pursuant to California Code of Civil Procedure sections 2023.030, and 1987.2,
11 Plaintiff Maya Castro seeks monetary sanctions, jointly and severally, against Defendants and their
12 attomey of record, Diane A qui of The Smith Dollar Law Firm, in the amount of $3,200.00.
13 This Opposition and Request for Sanctions is based on this Notice, all pleadings, papers,
14 and records in this action, the attached memorandum of points and authorities, the declaration of
15 Maya Castro, and any evidence presented at the hearing.
16
17
Preview
Mark D. Piesner, SBN: 251079 ARC POINT LAW PC 22287 Mulholland Hwy #198 Calabasas, CA 91302-5157 Email: Mark@ arcpointlaw.com Phone: 818-638-4456 Attomey for Plaintiff Maya Castro SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA MAYA CASTRO, an individual, Case No. SCV -269513 Plaintiff, AMENDED PLAINTIFF’S REQUEST 10 FOR JUDICIAL NOTICE IN SUPPORT vs. OF PLAINTIFF’S MOTION FOR 11 SANCTIONS FOR $15,895 FOR BAD SPURGEON PAINTING, INC., a Califomia Corporation; THOMAS BOY D MEACHAM FAITH AND DELAY ACTIONS 12 IIL, an individual; TIJA BUCKALEW, an AGAINST DEFENDANTS’ ATTORNEY 13 individual and DOES 1-50, DIANE AQUI; MOTION TO DISQUALIFY OPPOSING COUNSEL 14 Defendants. DIANE AQUI FOR BAD FAITH AND DELAY ACTIONS. 15 Date: 16 Time: Dept: 18 17 18 19 Pursuant to Section 450 et Seq, and Califomia Rules of Court, Rule 3.1306(c), Plaintiff Maya Castro (“Plaintiff”) hereby respectfully amends her request that the court take judicial 20 notice of the documents listed below. Evidence Code Section 453 states that “the trial court shall 21 take judicial notice of any matter specified in Section 452 if a party requests it” and the 22 requesting party (1) gives adequate notice to the adverse party and (2) includes sufficient 23 information to enable the Court to take judicial notice. (Evid. Code, §§ 451, 452, 453.) 24 25 26 27 28 1 Request for Judicial Notice Mark D. Piesner, SBN: 251079 ARC POINT LAW PC 22287 Mulholland Hwy #198 Calabasas, CA 91302-5157 Email: Mark@ arcpointlaw.com Phone: 818-638-4456 Attomey for Plaintiff Maya Castro SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FORTHE COUNTY OF SONOMA MAYA CASTRO, an individual, Case No. SCV -269513 Plaintiff, AMENDED PLAINTIFF’S REQUEST 10 FOR JUDICIAL NOTICE IN SUPPORT vs. OF PLAINTIFF’S MOTION FOR 11 SANCTIONS FOR $15,895 FOR BAD SPURGEON PAINTING, INC., a Califomia Corporation; THOMAS BOY D MEACHAM FAITH AND DELAY ACTIONS 12 IIL, an individual; TIJA BUCKALEW, an AGAINST DEFENDANTS’ ATTORNEY 13 individual and DOES 1-50, DIANE AQUI; MOTION TO DISQUALIFY OPPOSING COUNSEL 14 Defendants. DIANE AQUI FOR BAD FAITH AND DELAY ACTIONS. 15 Date: 16 Time: Dept: 18 17 18 19 Pursuant to Evidence Code Section 450 et. seg. and Califomia Rules of Court, Rule 3.1306(c), Plaintiff Maya Castro (“Plaintiff”) hereby respectfully request that the Court take 20 judicial notice of the documents listed below. Evidence Code Section 453 states that “the trial 21 court shall take judicial notice of any matter specified in Section 452 if a party requests it” and 22 the requesting party (1) gives adequate notice to the adverse party and (2) includes sufficient 23 information to enable the Court to take judicial notice. (Evid. Code, §§ 451, 452, 453.) 24 The documents listed below fall directly within the category of matters appropriate for judicial notice under Sections 451 and 452 of the Evidence Code. Courts are entitled to take 25 judicial notice of its own records. Dwanv. Dixon, 216 Cal.A pp.2d 260 (1963). (Evid. Code, § 26 452, subd. (d).) And Evidence Code § 451(a) requires judicial notice of the decisional law of 27 California and the United States. 28 In addition, pursuant to Evidence Code Section 350, these materials are relevant to the 2 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 Court’s disposition of matters in dispute in this action. (Evid. Code, § 350.) (1) Attomey Diane Aqui filed a Motion to Quash in which she made misstatements of the facts; (2) The Plaintiff’s Opposition to the Motion to Quash AT&T subpoena contains Plaintiff’s contemporaneous arguments made at that time which are relevant to the instant action; (3) The Plaintiff’s Supplemental Opposition to the Motion to Quash AT&T subpoena contains Plaintiff’s contemporaneous arguments made at that time which are relevant to the instant action; (4) the Declaration of A ttomey Diane A qui, submitted in support of the opposition to the motion to quash deposition subpoena notices for business records contains statements as if she were a direct witness to the case's underlying facts; (5) The Plaintiff's Motion to Strike the A nswer of Defendants Spurgeon Painting Inc., Thomas Boyd Meacham III, and Tija Buckalew, seeks sanctions against the defendants for alleged misconduct, including evidentiary issues and 10 termination sanctions. This motion provides crucial insights into the plaintiff's claims of 11 wrongdoing by the defendants, which are pertinent to the current proceedings; and (6) The decision of the U.S. District Court, Northem District, in the case of Knightv. Aqui, A ttomey 12 Aqui’s past legal transgressions, including professional negligence, breach of fiduciary duty, 13 breach of contract, conversion, and negligent misrepresentation, paint a picture of a pattem of 14 misconduct. and addresses similar legal issues that may be relevant to the present case. 15 For the foregoing reasons, Plaintiffs respectfully requests that this Court take judicial 16 notice of the following: 17 1 Memorandum of Points and Authorities of the Defendant’s Motion to Quash Deposition 18 Subpoena for production of business records from AT&T filed October 27, 2022, at page 19 5, lines 14-18; page 5, line 23-24, page 5, line 27-page 6, line 3. A true and correct copy 20 of the Defendant’s Motion to Quash Deposition Subpoena for production of business 21 records from AT&T filed October 27, 2022, attached hereto as Exhibit 1. In that, such documents are all in the Court records in the above-entitled matter. (Evidence Code § 22 452(d)(1) permits discretionary judicial notice of records of any Califomia Court.) 23 Memorandum of Points and Authorities of the Plaintiff’s Opposition to Defendant's 24 Motion to Quash Deposition Subpoena for production of business records from AT&T 25 filed February 21, 2023, at page 3, lines 1-page 9, line 24. A true and correct copy of Plaintiffs Opposition to Defendant's Motion to Quash Deposition Subpoena for 26 production of business records from AT&T filed February 21, 2023, attached hereto as 27 Exhibit 2. In that, such documents are all in the Court records in the above-entitled 28 3 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 matter. (Evidence Code § 452(d)(1) permits discretionary judicial notice of records of any Califomia Court.) Memorandum of Points and Authorities of the Plaintiff's Supplemental Opposition to Defendant's Motion to Quash Deposition Subpoena for production of business records from AT&T filed February 23, 2023, at page 1, lines 17-page 7, line 16. A true and correct copy of Plaintiffs Supplemental Opposition to Defendant's Motion to Quash Deposition Subpoena for production of business records from AT&T filed February 23, 2023, attached hereto as Exhibit 3. In that, such documents are all in the Court records in the above-entitled matter. (Evidence Code § 452(d)(1) permits discretionary judicial notice of records of any California Court.) The Declaration of Diane A qui, in Support of Opposition to Motion to Quash Deposition 10 Subpoena Notices for Business Records, Staying the Production of Business Records by 11 Windsor Hospitality, Pasha Group, and Robert, Half Intemational Inc. and for A Protective Order regarding same, filed on January 5, 2023, at page 1, 9/2, lines 26-27, 12 page 2, 43, lines 1-6, 4/4, lines 7-8, 5, lines 9-11. A true and correct copy of The 13 Declaration of Diane A qui, in Support of Opposition to Motion to Quash Deposition 14 Subpoena Notices for Business Records, Staying the Production of Business Records by 15 Windsor Hospitality, Pasha Group, and Robert, Half Intemational Inc. and for A 16 Protective Order regarding same, filed on January 5, 2023, attached hereto as Exhibit 4. In that, such documents are all in the Court records in the above-entitled matter. 17 (Evidence Code § 452(d)(1) permits discretionary judicial notice of records of any 18 Califomia Court.) 19 Memorandum of Points and Authorities in support of the Plaintiff's Motion to Strike the 20 Answer of Defendants Spurgeon Painting Inc., Thomas Boyd Meacham III, and Tija 21 Buckalew, for Evidentiary Issues Sanctions A gainst All Named Defendants and Termination Sanctions filed January 5, 2024, at page 9, lines 1-page 22, line 6. A true and 22 correct copy of Plaintiff’s Motion to Strike the Answer of Defendants Spurgeon Painting 23 Inc., Thomas Boyd Meacham III, and Tija Buckalew, for Evidentiary Issues Sanctions 24 Against All Named Defendants and Termination Sanctions filed January 5, 2024, 25 attached hereto as Exhibit 5. In that, such documents are all in the Court records in the above-entitled matter. (Evidence Code § 452(d)(1) permits discretionary judicial notice 26 of records of any California Court.) 27 The U.S. District Court, Northem District's decision in Knightv. Aqui (N.D. Cal. 2013) 28 966 F.Supp.2d 989, Case No. 11-cv—06337-JST (September 5, 2013). A true and correct 4 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 copy of the U.S. District's decision in Knightv. Aqui (N.D. Cal. 2013) 966 F.Supp.2d 989, Case No. 11-cv—-06337-JST (September 5, 2013) attached hereto as Exhibit 6. (Evidence Code § 451(a) requires judicial notice of the decisional law of Califomia and the United States.) ARC POINT LAW PC, DocuSigned by: 10 Dated: 2/14/2024 By a. Mark oe |Pirsmer ye Piesneps 11 Attomey for Plaintiff MAYA CASTRO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 Mark D. Piesner, SBN: 251079 ARC POINT LAW PC 22287 Mulholland Hwy #198 Calabasas, CA 91302-5157 Email: Mark@ arcpointlaw.com Phone: 818-638-4456 Attomey for Plaintiff Maya Castro SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FORTHE COUNTY OF SONOMA MAYA CASTRO, an individual, ) Case No. SCV -269513 Plaintiff, 10 ) [PROPOSED] ORDER vs. 11 Date: SPURGEON PAINTING, INC., a Califomia Time: 12 Corporation; THOMAS BOY D MEACHAM Dept: 18 IIL, an individual; TIJA BUCKALEW, an 13 individual and DOES 1-50, 14 Defendants. 15 16 17 18 19 This matter came on regularly before the Court for hearing on -a- a+ Mark D. Piesner, Esq. appeared for Plaintiff, Diane A qui, Esq. appeared for Defendants. 20 The Court, having reviewed the moving and opposing papers on Plaintiff's A mended 21 Request for Judicial Notice in Support of Plaintiff’s Motion for Sanctions for $15,895 for Bad 22 Faith and Delay Actions Against Defendants’ Attorney Diane Aqui; Motion to Disqualify 23 Opposing Counsel Diane A qui for Bad Faith and Delay Actions; and oral argument of counsel 24 having been received by the Court: The Court finds, adjudges and orders as follows: 25 1. That Plaintiff’s Request to Take Judicial Notice is hereby GRANTED as to the 26 following documents: 27 Exhibit 1: Defendant’s Motion to Quash Deposition Subpoena for production of 28 business records from AT&T filed October 27, 2022. 6 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 Exhibit 2 Plaintiff’s Opposition to Defendant's Motion to Quash Deposition Subpoena for production of business records from AT&T filed February 21, 2023. Exhibit 3 Plaintiff’s Supplemental Opposition to Defendant's Motion to Quash Deposition Subpoena for production of business records from AT&T filed February 23, 2023. Exhibit 4: Declaration of Diane A qui, in Support of Opposition to Motion to Quash Deposition Subpoena Notices for Business Records, Staying the Production of Business Records by Windsor Hospitality, Pasha Group, and Robert, Half Intemational Inc. and forA Protective Order regarding same, filed on January 5, 2023. 10 Exhibit 5 Plaintiffs Motion to Strike the Answer of Defendants Spurgeon Painting 11 Inc., Thomas Boyd Meacham III, and Tija Buckalew, for Evidentiary Issues Sanctions A gainst All Named Defendants and Termination 12 Sanctions filed January 5, 2024. 13 Exhibit 6: The U.S. District Court, Northem District's decision in Knightv. Aqui 14 (N.D. Cal. 2013) 966 F.Supp.2d 989, Case No. 11—cv-06337-JST 15 (September 5, 2013). 16 ITIS SO ORDERED. IT IS FURTHER ORDERED as follows: ao 17 18 Dated -- a eq 5 Judge of the Superior Court 20 21 22 23 24 25 26 27 28 7 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF SONOMA I am a resident of the state of Califomia and over the age of 18 and not a party to the within action. My business address is: 777 Silver Spur Rd. Suite 235 Rolling Hills Estates CA 90274 were On a 02/14/24 SEE , | served the following documents: AMENDED PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S MOTION FOR SANCTIONS FOR $15,895 FOR BAD FAITH AND DELAY ACTIONS AGAINST DEFENDANTS’ ATTORNEY DIANE AQUI; MOTION TO DISQUALIFY OPPOSING COUNSEL DIANE AQUI FOR BAD FAITH AND DELAY ACTIONS. 10 By Personal Service. I personally delivered the documents listed above to the parties or person authorized to 11 receive service of process for the party on (date) —-- a at (time) Jo 12 By United States Mail. 13 Iplaced the envelope forcollection and mailing, following our ordinary business practices. 14 I am readily familiar with this business practice forcollecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited 15 in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. The envelope or package was placed in the mail at 16 , Califomia. 17 X By Email. 18 I caused the above-transcribed documents to be transmitted by email to daqui@ smithdollar.com. 19 20 I declare under penalty of perjury under the laws of the state of Califomia that the foregoing is true and correct. 21 22 02/14/24 Executed on SA , at_Rolling Hills Estates , Califomia. 23 24 DocuSigned by: 25 Luis Castro (wis Castro Name of Declarant Signaturtof Declarant 26 27 28 8 Request for Judicial Notice | DocuSign Envelope ID: 1381B28C-C945-4C83-A49D-EDB7407BA3E1 CASTRO vs. SPURGEON PAINTING, INC., etal. Court Case No.: SCV -269513 MAILING LIST Diane A qui, Esq. SMITH DOLLAR PC 418 B Street, 4th Floor Santa Rosa, CA 95401 ATTORNEY FOR DEFENDANTS SPURGEON PAINTING, INC.; THOMAS BOYD MEACHAM Il; and TIA BUCKALEW. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Request for Judicial Notice Exhibit | Diane Aqui, SBN 217087 daqui@smithdollar.com Trina N. Dresden 168088 tdresden@smithdollar.com SMITH DOLLAR PC Attorneys at Law 418 B Street, Fourth Floor Santa Rosa, California 95401 Telephone: (707) 522-1100 Facsimile: (707) 522-1101 Attorneys for Defendants SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM IIL, and TTA BUCKALEW SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA 10 MAYA CASTRO, an individual, CASE NO.: SCV-269513 11 Plaintiff, DEFENDANTS’ NOTICE OF MOTION AND 12 V. MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF 13 SPURGEON PAINTING, INC., a California BUSINESS RECORDS FROM AT&T Corporation; THOMAS BOYD MEACHAM WIRELESS; MEMORANDUM OF POINTS 14 III, an individual; TIA BUCKALEW, an AND AUTHORITIES IN SUPPORT AND individual and DOES 1-50 REQUST FOR SANCTIONS 15 Defendants. Date: 16 Time: 3:00 p.m. Dept.: 18 17 Judge: Hon. Jennifer V. Dollard 18 Complaint Filed: October 15, 2021 19 Trial Date: March 17, 2023 20 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that on , 2023, at 3:00 p.m., or as soon 23 thereafter as the matter can be heard in Department 18 of the above-entitled Court, Defendants 24 SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIJA BUCKALEW 25 (together as “Defendants”) will move the Court for an order quashing Plaintiff MAYA CASTRO’S 26 Deposition Subpoena For Production Of Business Records From AT&T Wireless: 27 The Motion to Quash Plaintiff's Subpoena (the “Motion’) will be made on the grounds that $) 1285298 -1- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS the Subpoena requires the production of business records that are privileged under California Evidence Code section 350, and pursuant to Code of Civil Procedure section 1987.1, it is unreasonable and oppressive. The discovery is intrusive and irrelevant, and invades Defendants’ federal and state constitutional rights to privacy. The Motion will be based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities in Support, Declarations of Diane Aqui and Trina Dresden, the files and records in this action, and any further evidence or argument that the Court may properly receive at or before the hearing. On the afternoon of the court day preceding each law and motion calendar commencing at 2:00 p.m., the Assigned Judge will cause to be recorded a tentative ruling (if available) on each 10 motion on the next day's law and motion calendar. The tentative ruling may be obtained by 11 telephoning (707) 521-6881 (tape-recorded message) or at the court’s web page 12 www.sonoma.courts.ca.gov. A copy of the tentative ruling will also be posted at the Assigned 13 Judge’s courtroom. The tentative ruling shall become the ruling of the court, unless any party 14 desiring to be heard so advises the judicial assistant for the Assigned Judge no later than 4:00 p.m. 15 on the court day preceding the law and motion calendar, and further advises the judicial assistant 16 for the Assigned Judge that such party has notified all opposing parties of her/his intention to 17 appear. Where appearance has been required or invited by the court, then oral argument may be 18 presented. Appearance is always required on small claims law and motion matters and on all claims 19 of exemption, unless otherwise stated on the tentative ruling. 20 Dated: October 27, 2022 21 SMITH DOLLAR PC 22 23 24 . Desre Ay Diane Aqui 25 Attorneys for SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIJA 26 BUCKALEW 27 $) 1285298 -2- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS MEMORANDUM OF POINTS AND AUTHORITIES Defendants’ SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIA BUCKALEW (together as “Defendants”) submit the following Memorandum of Points and Authorities in Support of their Motion to Quash Plaintiff's October 12, 2022, Deposition Subpoenas for Production of Business Records to AT&T Wireless (the “Subpoena”) as follows: I INTRODUCTION & RELEVANT FACTS On October 15, 2021, Plaintiff Maya Castro filed a Complaint for Breach of Contract, Breach of Duty of Good Faith and Fair Dealing, Intentional Infliction of Emotional Distress, 10 Discrimination, Failure to Accommodate a Medical Condition, Wrongful Termination and 11 Unlawful Business Practice with regard to her employment with Defendants between the dates of 12 April 19, 2018 through August 2018 and January 18, 2021 through April 9, 2021. 13 On October 12, 2022, Plaintiff Maya Castro issued a Deposition subpoena for production of 14 business records from AT&T Wireless Subpoena Compliance Center. (Declaration of Diane Aqui, 15 4 3, Exhibit 1.) The records to be produced are stated in Attachment 3 as: 16 Any and all billing and phone records of incoming and outgoing text messages, including 17 but not limited to the location where the messages were placed and received, time, date and 18 duration of messages, the actual text and picture message sent or received by mobile number (707) 228-8910 to mobile number (707) 481-6314 during the period from December 15, 19 2021 to January 1, 2022 including but not limited to, any records or documents that may be stored digitally and/or electronically, Account Holders are Thomas Boyd Meacham III and 20 Tija Buckalew. Account numbers are unknown. 21 On October 19 2022, Defendants sent a meet and confer letter to Plaintiff asking her to 22 withdraw her subpoena to AT&T based on relevance and invasion of privacy. (Declaration of 23 Diane Aqui, 94, Exhibit 2.) 24 25 Plaintiff has failed to withdraw her Subpoena or communicate to Defendants regarding said 26 Subpoena, thus necessitating the instigation of the present motion. 27 $) 1285298 -3- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS IL. LEGAL ARGUMENT A A Party May Move for an Order Quashing a Subpoena “If a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.” Cal. Code Civ. Proc. § 1987.1. B Good Cause Exists for Quashing the Subpoena 10 1 The Subpoena Seeks Information Not Relevant to the Case at Issue. 11 Relevant matters are discoverable pursuant to Cal. Code Civ. Proc. §2017. The section 12 states in pertinent part that “any party may obtain discovery regarding any matter not privileged that 13 is relevant to the subject matter involved in the pending action or to the determination of any 14 motion made in that action, if the matter either is itself admissible in evidence or appears 15 reasonably calculated to lead to the discovery of admissible evidence.” 16 “The court shall limit the scope of discovery if it determines that the burden, expense, or 17 intrusiveness of that discovery clearly outweighs the likelihood that the information sought will 18 lead to the discovery of admissible evidence.” Cal. Code Civ. Pro. § 2017.020(a). 19 Here, Plaintiff's request is irrelevant, unnecessary, overbroad, and unduly burdensome in 20 that it seeks the content, time, date, location, and duration of any and all text messages between the 21 two individual defendants for over a two-week period, eight months after plaintiff's employment 22 ended. 23 It should also be noted that Plaintiff has not asked for specific messages related to her and or 24 her employment, but seeks an overreaching request of any and all messages sent and received 25 between the two mobile phone numbers listed (i.e., “any and all billing and phone records...sent or 26 received by [one mobile number to the other.]”). Additionally, the material sought is overbroad 27 seeking, “location where the messages were placed and received, time, date, and duration of $) 1285298 -4- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS messages...” and “the actual text and picture message...” Further Plaintiff has failed to address what relevance any communication between the Defendants, eight months after her employment, bears on this matter. Defendants respectfully requests that the Subpoena be quashed on the above cited grounds. 2. The Subpoena Seeks Documents Invasive of the Defendants Privacy “California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property. Courts must balance right of civil litigants to discover relevant facts against privacy interests of persons subject to discovery.” (California Constitution, Article I, Section 1; Vinson v. Superior Court, 43 Cal. 3d 833, 239 Cal. Rptr. 292, 740 P.2d 404 10 (1987)) 11 “..the court may make any other order as may be appropriate to protect the person from 12 unreasonable or oppressive demands, including unreasonable violations of the right of privacy of 13 the person.” CCP Section 1987.1. 14 The discovery sought here (actual text and picture messages, time, date, location, and 15 16 17 I, Section 1 of the California Constitution. Cobb v. Superior Court, 99 Cal.App. 3d 543, 160 18 Cal.Rptr. 561 (2d Dist. 1979). 19 The California Supreme Court has decided the analytical framework for assessing a privacy 20 claim: 1) there must be a specific legally, protected privacy interest; 2) a reasonable expectation of 21 privacy must exist; and 3) the invasion of the privacy interest must be serious. Hill v. National 22 Collegiate Athletic Assn.,7 Cal.4" 1, 39-40 (1994). 23 ‘Here, Defendants have a legally protected privacy right in their personal cell phones, | 24 including call records, and text messages. City of Ontario v. Quon, 130 S.Ct. 2619 (2010), Theofel 25 v. Farey-Jones, 359 F.3d 1066 (9" Cir. 2004). And, Defendants have a reasonable expectation of 26 privacy in their cell phone records. See Carpenter v. United States (2018), 138 S. Ct. 2206. 27 Producing the text and picture messages from a party’s personal cell phones is a serious 1285298 -5- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND. AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS ‘invasion of privacy. Plaintiff has failed to allude to any reasoning to justify such an invasion, nor has she carried her burden of showing a ‘plausible justification’ for acquiring documents from this third party. Facebook, Inc. v. the Superior Court of San Diego County, 10 Cal.5" 329 (2020). Further, Plaintiff doesn’t just request the content of the messages. She is requesting the actual location where text messages were sent and received. In Carpenter v. United States (2018) 138 S. Ct. 2206, the United States Supreme Court held that phone subscribers have a legitimate expectation of privacy regarding a telephone company's records of their cellphone location data. “The time-stamped data from a wireless provider's mobile tracking technology provides "an intimate window into a person's life," revealing not only his or her particular movements, but 10 through them his "familial, political, professional, religious, and sexual associations.” Id. at 2217. 11 Defendants’ privacy claim is legitimately based on their reasonable expectation of privacy | 12 (in personal their cell phones.) Plaintiff has stated zero rationale for her need to acquire and inspect 13 the private text messages between these parties. Even if Plaintiff could assert a plausible 14 justification, an appropriate inquiry would consider whether such a significant intrusion is 15 warranted and necessary to facilitate said justification. 16 For these reasons, the Subpoena must be quashed. 17 Defendant is Entitled to Sanctions Against Plaintiff for Willful Failure to Cancel the Subpoena. 18 If the motion to quash is granted, the court may in its discretion award the amount of the 19 reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s 20 fees, if the court finds the motion was made or opposed in bad faith or without substantial 21 justification... Cal. Code Civ. Proc. §1987.2 22 23 ‘There is no justification for subpoenaing the personal cell phone records of defendants in a | 24 “wrongful termination case fora period of time eight months after Plaintiff was terminated, Further United States Supreme Court precedent holds that location data maintained by cell phone carriers is 25 so protected that even law enforcement requires a warrant to access it. 26 Plaintiff also failed to respond to Defendants’ meet and confer efforts. Plaintiff served three 27 1285298 -6- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND. AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS (3) subpoenas to three (3) different entities. Defendants only objected to the current subpoena for the above cited reasons. Defendants timely advised Plaintiff of the failings in her subpoena and sought confirmation of its withdrawal. Plaintiff has failed to withdraw the subpoena and/or communicate to Defendants regarding its relevance, thus necessitating the current motion. Defendants should not bear the expense of Plaintiffs non-responsiveness. Sanctions are warranted. D. Amount of Monetary Sanctions As noted in the Dresden Declaration at 42, Defendants request monetary sanctions against Plaintiff for no less than $2,860.00 (7 hours multiplied by counsel’s hourly rate of $400 plus the 10 cost of filing) for bringing this motion. Defendant reserves the right to request a greater amount of 11 fees should additional issues arise or additional work is required to prosecute the relief sought 12 herein. 13 lll. CONCLUSION 14 The October 12, 2022, Deposition Subpoenas for Production of Business Records to AT&T 15 Wireless should be quashed. The Subpoena seeks documents that are not relevant nor reasonably 16 calculated to lead to the discovery of admissible evidence. The Subpoena seeks to impermissibly 17 invade Defendants’ federal and state constitutional rights to privacy and are overbroad. The Court 18 should issue a monetary sanction against Plaintiff in the amounts requested herein as Plaintiff is 19 without substantial justification for failing to respond to Defendants request to withdraw her 20 Subpoena. 21 Dated: October 27, 2022 SMITH DOLLAR PC 22 ‘ 23 qe By. Diane Aqui 24 Attorneys for SPURGEON PAINTING, INC., THOMAS BOYD MEACHAM III, and TIJA 25 BUCKALEW 26 27 $) 1285298 -T- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS FROM AT&T WIRELESS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AND REQUST FOR SANCTIONS Exhibit 2 | DocuSign Envelope ID: C8D2A497-7209-48D9-ADFF-8FBD8D4878A5 Maya Castro ELECTRONICALLY FILED 1619 Wishing Well Way Superior Courtof California kM County of Sono} Santa Rosa, CA 95403 2/21/2023 8:00 Email: mayas.castro@ yahoo.com By: Angela Mendia, Deputy Clerk Phone: (424) 392-0002 Plaintiff in Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FORTHE COUNTY OF SONOMA MAYA CASTRO, an individual, Case No. SCV -269513 Plaintiff, PLAINTIFF MAYA CASTRO'S OPPOSITION TO DEFENDANTS' 10 vs. MOTION TO QUASH DEPOSITION SPURGEON PAINTING, INC., a Califomia SUBPOENA FOR PRODUCTION OF 11 Comoration, THOMAS BOY D MEACHAM BUSINESS RECORDS FROM AT&T IIL, an individual; TITA BUCKALEW, an WIRELESS; REQUEST FOR 12 individual and DOES 1-50, MONETARY SANCTIONS IN THE 13 AMOUNT OF $3,200.00 AND Defendants. DECLARATION OF MAYA CASTRO 14 Date: March 1, 2023 15 Time: 3:00 p.m. Dept: 18 16 17 18 TO THE COURT AND DEFENDANTS AND THEIR ATTORNEY OF RECORD: 19 PLEASE TAKE NOTICE thaton March 1, 2023, at 3:00 p.m. oras soon thereafteras the 20 matter may be heard, in Department 18 of the above-referenced court, Plaintiff Maya Castro 21 requests the Court deny Defendants Motion to Quash Subpoenas to: AT&T Wireless Subpoena 22 Compliance Center (“the Subpoena”), or at a minimum modify the Subpoenas as proposed in 23 Plaintiff Maya Castro's November 17, 2023 meet and confer letter regarding production of the text 24 messages in question through written discovery, on the following grounds: 25 1 The Subpoena was served in good faith; 26 2 The Subpoena requests records that are directly relevant to Plaintiff's allegations 27 and Defendants' defenses thereto; 28 Opposition to Motion to Quash | DocuSign Envelope ID: C8D2A497-7209-48D9-ADFF-8FBD8D4878A5 3 The requested records are essential to determining the truth of the matters in dispute in the instant action and necessary for Plaintiff to prove her claims; 4 Less intrusive means of discovery were attempted but Defendants refused to produce; and 5. Discovery of the subpoenaed records do not impermissibly invade Defendants’ right to privacy. Further, Plaintiff seeks an order compelling: (1) AT&T Wireless Subpoena Compliance Center to comply with the Subpoenas; and (2) Defendants to sign releases authorizing the production of their AT&T Wireless telephone records from December 15, 2020 to May 1, 2021. 10 Lastly, pursuant to California Code of Civil Procedure sections 2023.030, and 1987.2, 11 Plaintiff Maya Castro seeks monetary sanctions, jointly and severally, against Defendants and their 12 attomey of record, Diane A qui of The Smith Dollar Law Firm, in the amount of $3,200.00. 13 This Opposition and Request for Sanctions is based on this Notice, all pleadings, papers, 14 and records in this action, the attached memorandum of points and authorities, the declaration of 15 Maya Castro, and any evidence presented at the hearing. 16 17