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ADAM J. GUTRIDE (State Bar No. 181466) adam@gutridesafier.com SETH A. SAFIER (State Bar No. 197427) seth@gutridesafier.com TODD KENNEDY (State Bar No. 250267) todd@gutridesafier.com GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, California 94144 Telephone: 415.336.6545 Facsimile: 415.449.6469 Attorneys for Plaintiff, Peter MacKinnon, Jr.

E-FILED
Jan 16, 2013 3:26 PM
David H. Yamasaki
Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-11-CV-193767 Filing #G-50523 By C. Pinacate, Deputy

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA PETER MACKINNON, JR., an individual, on behalf of himself, the general public and those similarly situated Plaintiff, v. IMVU, INC., Defendants. CLASS ACTION UNLIMITED JURISDICTION CASE NO.: 111 CV 193767 PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Date: May 10, 2013 Time: 9:00 am Dept: 1 Judge: Hon. James. P. Kleinberg

PLAINTIFFS MOTION TO TAX COSTS CASE NO. 111 CV 193767

E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

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NOTICE OF MOTION AND MOTION TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 10, 2013 at 9:00 am in Department 1 of the Santa Clara Superior Court, 1 North First Street San Jose, CA 95113, Plaintiff will move this Court to tax the costs sought by Defendant, IMVU, Inc. This motion is made pursuant to California Civil Procedure Code 1033.5 and California Rules of Court, Rule 870 on the grounds that the requested costs are (i) not permitted by statute and/or (ii) excessive, unreasonable and unnecesssary. This motion is based on this notice of motion, the accompanying memorandum of points and authorities, the pleadings, records and files in this action, such matter of which the Court may take judicial notice, and such further evidence and argument as may be presented by Plaintiff at or before the hearing on this motion. Dated: January 16, 2013 GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. Safier, Attorneys for Plaintiff

-1PLAINTIFFS MOTION TO TAX COSTS CASE NO. 111 CV 193767

E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION On December 31, 2012, the Court granted Defendants demurrer without leave to amend and entered judgment. Plaintiff filed a notice of appeal on January 3, 2012. Following Plaintiffs appeal, IMVU filed a memorandum of costs seeking $24,730,73. However, all but $1083 of

Defendants requested costs are unreimbursable under California law and, as such, should be disallowed. II. ARGUMENT A. Determination of Defendants Cost Memorandum Should Be Stayed Pending Resolutions of Plaintiffs Appeal.

As Defendants filed its cost memorandum after Plaintiffs notice of appeal was filed, the most efficient process would be to stay determination of the issue until the appeal is concluded. In that context, unnecessary time and effort will be avoided should Plaintiff succeed on appeal. The same efficiencies will result even if Defendant prevails on appeal, because Defendant, and this Court, can then determine, in a single memorandum of costs, the expenses IMVU properly incurred on appeal. B. In the Alternative, Defendant Should Be Reimbursed $1083. 1. Legal Standard

A party subject to the payment of costs may oppose the recovery of costs by filing a motion to tax costs. See Cal Rules Ct, Rule 870(b). In deciding a motion to tax costs, the court's first determination is whether CCP 1033.5 expressly allows the particular item, and whether it appears proper on its face. If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable. See Nelson v. Anderson (1999) 72 Cal App. 4th 111, 131. If a defendants requested costs appear to be proper on their face, a party subject to liability for costs may seek to reduce the claimed items or the amount of the claimed costs, based on the circumstances under which the costs were incurred. For example, costs recoverable under CCP 1032 are restricted to those that are (1) reasonably necessary to the conduct of the litigation and (2) reasonable in amount. See CCP 1033.5(c)(2); Nelson, 72 Cal. App. 4th 111, 130. The total costs claimed may include unreasonable or unnecessary costs; and may therefore be reduced to costs
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E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

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claims that are reasonable and necessary to the litigation. Id. If a defendants costs are not expressly allowed and do not appear to be proper on their face, the burden of proof is on the party claiming them as costs. Ladas v. California State Auto. Ass'n (1993) 19 Cal. App. 4th 761, 774. Defendant cannot meet that burden because all but $1083 of its requested costs are inappropriate and objectionable. Defendants motion for costs should be denied except for the filing fees it actually paid to this Court. 2. Filing and Motion Fees

IMVU first requests $1,955 in filing and motion fees. Of this amount, only $1083 is reimbursable. The remaining filing and motion fees costs are not-reimbursable because they are non-statuoryi.e., for check charges, service costs, and expedited delivery expenses and are not reasonably necessary to the conduct of the litigation. Rather, these costs are merely convenient or beneficial to Defendant, especially because it could have used US mail to accomplish the same filings and delivery and also could have paid, by check, without incurring financing charges to a delivery service. See Nelson, 72 Cal. App. 4th at 132 (holding messenger fees to be of doubtful necessity and unreasonable on their face, when compared to the probable cost of alternatives such as mail, Federal Express, or personal filing, in view of the size of the very large firm (Gibson Dunn) representing defendants). Moreover, these costs are miscategorized and appear to be duplicative. Finally, the filing fee related to IMVUs unsuccessful removal should not be reimbursed because (by definition) it was deemed both unnecessary and improper as this case was remanded by the District Court. 3. Deposition Costs

Defendant next requests $9,449.90 in deposition costs, including $52.50 in depositon parking charges. The parking charges are particularly egregious because, at Defendants requet, all of the depositions took place at Defendants law firm. In other words, Defendants counsel seeks parking costs for simply going to work. Moreover, none of the depositions would even had been taken had Defendant filed its motion for judgment on the pleadings / demurrer in a timely fashion at the outset of the case instead of waiting until after discovery. The Court disposed of this case based entirely on the
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E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

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language of the Terms of Service agreement and did not consider any deposition testimony or other extrinsic evidence. Indeed, Defendant did not even seek to rely on such testimony. These costs would accordingly never had been incurred had Defendant filed its motion in a timely manner. To make matters worse, all of the deposition transcripts were real-time, rough-drafts, which Defendant ordered, and paid extra for, in furtherance of the convienience of its counsel. It is well settled that where a claim is made for a disbursement the necessity for which is doubtful, and the item is properly challenged by motion to tax costs, the burden is on the claimant to establish necessity for the disbursement; its allowance is within the discretion of the trial court and if no abuse of discretion is shown the action of the trial court will not be disturbed. See Stenzor v. Leon, 130 Cal. App. 2d 729 (1955). Defendant finally seeks costs for four separate commissions, at $185.50 each, to take an out of state deposition. However, Defendant never conducted any out of state deposition, so this cost, incurred apparently on four separate occassions, could not have been reasonable or necessary. 4. Service of Process

IMVU also seeks $1871.78 in service of process costs. Most of these costs relate to serving a deposition notice on a third party. Again, IMVU never conducted any third party depositions, so these costs may not be reimbursed, as they were unnecessary. All but one of the remaining costs in this category relate to witness fees paid to a non-existent witness. The final cost is serving Plaintiffs first amended complaint, but Defendants did not serve the first amended complaint on anyone. All of the costs in this category should accordingly be rejected. 5. Other Costs

Finally, IMVU requests $11,464.05 in Other costs. These costs include transcripts, delivery fees, and storage costs for electronically stored information collected and processed for review and potential production. Nowhere does the statute provide for transcript costs or storage

costs. To the contrary, the transcript costs are specifically excluded because the transcripts were ordered by IMVU, not the Court. See Cal. Civ. Code Proc. 1033.5(b)(5) (stating The following items are not allowable as costs, except when expressly authorized by law:. . .Transcripts of
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E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

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court proceedings not ordered by the court.) Finally, as set forth above, IMVUs delivery related costs in this category are not reimbursable because they were unnecessary and unreasonable. See Nelson, 72 Cal. App. at 132 (holding messenger fees to be of doubtful necessity and unreasonable on their face, when compared to the probable cost of alternatives such as mail, Federal Express, or personal filing, in view of the size of the very large firm (Gibson Dunn) representing defendants). III. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that Defendant be denied all requested costs other than the $1083 it incurred filing its answer and two additional filings. Dated: January 16, 2013 GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. Safier, Attorneys for Plaintiff

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E-FILED: Jan 16, 2013 3:26 PM, Superior Court of CA, County of Santa Clara, Case #1-11-CV-193767 Filing #G-50523

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Seth A. Safier, declare:

PROOF OF SERVICE

My business address is 835 Douglass Street, San Francisco, California. I am employed in the County of San Francisco, where this mailing occurs. I am over the age of 18 years and not a party to the within cause. On January 16, 2013, I served the following documents: PLAINTIFFS NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES on the following person(s) in this action by placing a true copy thereof as follows: Carter W. Ott, Esq. DLA Piper LLP (US) 555 Mission Street, Suite 2400 San Francisco, California 94105 Carter.Ott@dlapiper.com; luanne.sacks@dlapiper.com; shushila.chanana@dlapiper.com [x] BY ELECTRONIC MAIL. I caused said documents to be transmitted by electronic mail to the email address indicated after the address(es) above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was executed on January 16, 2013, at San Francisco, California.

_________________________________________ Seth A. Safier, Esq.

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