E-FILED. Attorneys for Plaintiff, Peter MacKinnon, Jr. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CASE NO. 111 CV

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1 ADAM J. GUTRIDE (State Bar No. ) adam@gutridesafier.com SETH A. SAFIER (State Bar No. ) seth@gutridesafier.com TODD KENNEDY (State Bar No. 0) todd@gutridesafier.com GUTRIDE SAFIER LLP Douglass Street San Francisco, California Telephone:.. Facsimile:.. Attorneys for Plaintiff, Peter MacKinnon, Jr. E-FILED Jan, : PM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #--CV- Filing #G-0 By C. Pinacate, Deputy PETER MACKINNON, JR., an individual, on behalf of himself, the general public and those similarly situated Plaintiff, IMVU, INC., Defendants. v. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CASE NO.: CV PLAINTIFF S NOTICE OF MOTION AND MOTION TO TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES Date: May, Time: :00 am Dept: Judge: Hon. James. P. Kleinberg CLASS ACTION UNLIMITED JURISDICTION - CASE NO. CV

2 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 NOTICE OF MOTION AND MOTION TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May, at :00 am in Department of the Santa Clara Superior Court, North First Street San Jose, CA, Plaintiff will move this Court to tax the costs sought by Defendant, IMVU, Inc. This motion is made pursuant to California Civil Procedure Code. and California Rules of Court, Rule 0 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, GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. Safier, Attorneys for Plaintiff -- CASE NO. CV

3 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On December,, the Court granted Defendant s demurrer without leave to amend and entered judgment. Plaintiff filed a notice of appeal on January,. Following Plaintiff s appeal, IMVU filed a memorandum of costs seeking $,0,. However, all but $ of Defendant s requested costs are unreimbursable under California law and, as such, should be disallowed. II. ARGUMENT A. Determination of Defendant s Cost Memorandum Should Be Stayed Pending Resolutions of Plaintiff s Appeal. As Defendant s filed its cost memorandum after Plaintiff s 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 $.. 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 0(b). In deciding a motion to tax costs, the court's first determination is whether CCP. 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 () Cal App. th,. If a defendant s 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 are restricted to those that are () reasonably necessary to the conduct of the litigation and () reasonable in amount. See CCP.(c)(); Nelson, Cal. App. th, 0. The total costs claimed may include unreasonable or unnecessary costs; and may therefore be reduced to costs -- CASE NO. CV

4 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 claims that are reasonable and necessary to the litigation. Id. If a defendant s 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 () Cal. App. th,. Defendant cannot meet that burden because all but $ of its requested costs are inappropriate and objectionable. Defendant s motion for costs should be denied except for the filing fees it actually paid to this Court.. Filing and Motion Fees IMVU first requests $, in filing and motion fees. Of this amount, only $ is reimbursable. The remaining filing and motion fees costs are not-reimbursable because they are non-statuory i.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, Cal. App. th at (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 IMVU s 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.. Deposition Costs Defendant next requests $,.0 in deposition costs, including $.0 in depositon parking charges. The parking charges are particularly egregious because, at Defendant s requet, all of the depositions took place at Defendant s law firm. In other words, Defendant s 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 -- CASE NO. CV

5 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 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, 0 Cal. App. d (). Defendant finally seeks costs for four separate commissions, at $.0 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.. Service of Process IMVU also seeks $. 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 Plaintiff s 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.. Other Costs Finally, IMVU requests $,.0 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..(b)() (stating The following items are not allowable as costs, except when expressly authorized by law:... Transcripts of -- CASE NO. CV

6 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 court proceedings not ordered by the court. ) Finally, as set forth above, IMVU s delivery related costs in this category are not reimbursable because they were unnecessary and unreasonable. See Nelson, Cal. App. at (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 $ it incurred filing its answer and two additional filings. Dated: January, GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. Safier, Attorneys for Plaintiff -- CASE NO. CV

7 E-FILED: Jan, : PM, Superior Court of CA, County of Santa Clara, Case #--CV- Filing #G-0 I, Seth A. Safier, declare: PROOF OF SERVICE My business address is Douglass Street, San Francisco, California. I am employed in the County of San Francisco, where this mailing occurs. I am over the age of years and not a party to the within cause. On January,, I served the following documents: PLAINTIFF S 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) Mission Street, Suite 00 San Francisco, California 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 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,, at San Francisco, California. Seth A. Safier, Esq. -- CASE NO. CV