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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 PLAINTIFF’S 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

PLAINTIFF’S MOTION TO TAX COSTS CASE NO. 111 CV 193767

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 NOTICE OF MOTION AND MOTION TO DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 10. Safier. IMVU. 2013 GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. Superior Court of CA. 1 North First Street San Jose. unreasonable and unnecesssary. This motion is based on this notice of motion. This motion is made pursuant to California Civil Procedure Code § 1033. Rule 870 on the grounds that the requested costs are (i) not permitted by statute and/or (ii) excessive. Inc. the pleadings. Attorneys for Plaintiff -1PLAINTIFF’S MOTION TO TAX COSTS CASE NO. such matter of which the Court may take judicial notice. 2013 at 9:00 am in Department 1 of the Santa Clara Superior Court. 111 CV 193767 . records and files in this action. CA 95113. the accompanying memorandum of points and authorities.5 and California Rules of Court. and such further evidence and argument as may be presented by Plaintiff at or before the hearing on this motion. Plaintiff will move this Court to tax the costs sought by Defendant. Dated: January 16. County of Santa Clara.E-FILED: Jan 16. 2013 3:26 PM.

Anderson (1999) 72 Cal App. 131. In deciding a motion to tax costs. 72 Cal. and may therefore be reduced to costs -2PLAINTIFF’S MOTION TO TAX COSTS CASE NO.5(c)(2). as such.73. the expenses IMVU properly incurred on appeal. App. Plaintiff filed a notice of appeal on January 3. and whether it appears proper on its face. County of Santa Clara. based on the circumstances under which the costs were incurred. Superior Court of CA. 130. the Court granted Defendant’s demurrer without leave to amend and entered judgment. and this Court. 4th 111. can then determine. 4th 111. all but $1083 of Defendant’s requested costs are unreimbursable under California law and. 2012. Legal Standard A party subject to the payment of costs may oppose the recovery of costs by filing a motion to tax costs. the court's first determination is whether CCP § 1033. 1. See Nelson v. Following Plaintiff’s appeal. the burden is on the objecting party to show the costs to be unnecessary or unreasonable. 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.5 expressly allows the particular item. The total costs claimed may include unreasonable or unnecessary costs. Defendant Should Be Reimbursed $1083. Nelson. In that context.E-FILED: Jan 16. 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. II. 111 CV 193767 . The same efficiencies will result even if Defendant prevails on appeal. However. In the Alternative. If so. 2012. See Cal Rules Ct. Rule 870(b). unnecessary time and effort will be avoided should Plaintiff succeed on appeal. For example. in a single memorandum of costs. IMVU filed a memorandum of costs seeking $24. If a defendant’s requested costs appear to be proper on their face. See CCP § 1033. ARGUMENT A. B. because Defendant. 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. Determination of Defendant’s Cost Memorandum Should Be Stayed Pending Resolutions of Plaintiff’s Appeal. a party subject to liability for costs may seek to reduce the claimed items or the amount of the claimed costs.730. 2013 3:26 PM. should be disallowed.

Superior Court of CA. Defendant cannot meet that burden because all but $1083 of its requested costs are inappropriate and objectionable.. especially because it could have used US mail to accomplish the same filings and delivery and also could have paid.” “service costs. in view of the size of the very large firm (Gibson Dunn) representing defendants). Federal Express. Deposition Costs Defendant next requests $9. 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 claims that are reasonable and necessary to the litigation. 2.449. See Nelson. 774. 2013 3:26 PM. App. California State Auto.955 in “filing and motion fees. Id. without incurring financing charges to a delivery service. Moreover. Finally. The remaining “filing and motion fees” costs are not-reimbursable because they are non-statuory—i. 4th 761. The Court disposed of this case based entirely on the -3PLAINTIFF’S MOTION TO TAX COSTS CASE NO.E-FILED: Jan 16.50 in “depositon parking charges.e. 4th at 132 (holding messenger fees to be of doubtful necessity and unreasonable on their face. In other words. all of the depositions took place at Defendant’s law firm. 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.90 in deposition costs. for “check charges. at Defendant’s requet.” and “expedited delivery expenses” —and are not “reasonably necessary to the conduct of the litigation. 3. Defendant’s motion for costs should be denied except for the filing fees it actually paid to this Court. Ass'n (1993) 19 Cal. 72 Cal.” Rather. Filing and Motion Fees IMVU first requests $1. when compared to the probable cost of alternatives such as mail. the burden of proof is on the party claiming them as costs. these costs are miscategorized and appear to be duplicative. including $52. County of Santa Clara. Ladas v. or personal filing. App. Moreover. only $1083 is reimbursable. 111 CV 193767 .” Of this amount. 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. by check. these costs are “merely convenient or beneficial” to Defendant. Defendant’s counsel seeks parking costs for simply going to work. If a defendant’s costs are not expressly allowed and do not appear to be proper on their face.” The parking charges are particularly egregious because.

to take an out of state deposition. All of the costs in this category should accordingly be rejected. Other Costs Finally. 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 language of the Terms of Service agreement and did not consider any deposition testimony or other extrinsic evidence. Code Proc. except when expressly authorized by law:”. 2d 729 (1955). IMVU never conducted any third party depositions. the “transcript costs” are specifically excluded because the transcripts were ordered by IMVU.“Transcripts of -4PLAINTIFF’S MOTION TO TAX COSTS CASE NO.E-FILED: Jan 16. All but one of the remaining costs in this category relate to “witness fees” paid to a non-existent witness. and the item is properly challenged by motion to tax costs. Indeed. To make matters worse. . Again. and “storage costs for electronically stored information collected and processed for review and potential production. Defendant never conducted any out of state deposition.05 in “Other” costs. 130 Cal. as they were unnecessary. could not have been reasonable or necessary. 4. Leon. These costs include “transcripts. See Stenzor v. all of the deposition transcripts were “real-time. incurred apparently on four separate occassions. but Defendants did not serve the first amended complaint on anyone.” rough-drafts. Most of these costs relate to serving a deposition notice on a third party. so this cost. § 1033. Civ. not the Court. IMVU requests $11.78 in service of process costs.” Nowhere does the statute provide for transcript costs or storage costs. To the contrary. However. which Defendant ordered. Defendant did not even seek to rely on such testimony. Superior Court of CA. Service of Process IMVU also seeks $1871.50 each. See Cal. the burden is on the claimant to establish necessity for the disbursement. County of Santa Clara.464. These costs would accordingly never had been incurred had Defendant filed its motion in a timely manner. 2013 3:26 PM. App. 111 CV 193767 . so these costs may not be reimbursed. and paid extra for. 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. .5(b)(5) (stating “The following items are not allowable as costs. It is well settled that where a claim is made for a disbursement the necessity for which is doubtful. 5. Defendant finally seeks costs for four separate “commissions.” delivery fees. The final cost is “serving” Plaintiff’s first amended complaint.” at $185. in furtherance of the convienience of its counsel.

See Nelson. 2013 GUTRIDE SAFIER LLP By: /s/ Seth Safier Seth A. when compared to the probable cost of alternatives such as mail. or personal filing. 111 CV 193767 . Plaintiff respectfully requests that Defendant be denied all requested costs other than the $1083 it incurred filing its answer and two additional filings. 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 court proceedings not ordered by the court. Dated: January 16. County of Santa Clara. 2013 3:26 PM. Federal Express. III.”) Finally.E-FILED: Jan 16. at 132 (holding messenger fees to be of doubtful necessity and unreasonable on their face. CONCLUSION For the foregoing reasons. App. IMVU’s delivery related costs in this category are not reimbursable because they were unnecessary and unreasonable. Safier. Attorneys for Plaintiff -5PLAINTIFF’S MOTION TO TAX COSTS CASE NO. as set forth above. in view of the size of the very large firm (Gibson Dunn) representing defendants). Superior Court of CA. 72 Cal.

2013. California 94105 Carter. Safier. California.E-FILED: Jan 16. Safier. I served the following documents: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS. California. Seth A. County of Santa Clara. -6PLAINTIFF’S MOTION TO TAX COSTS CASE NO. On January 16.com. I am over the age of 18 years and not a party to the within cause. I am employed in the County of San Francisco. Esq. Superior Court of CA. 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 3:26 PM. Ott. declare: PROOF OF SERVICE My business address is 835 Douglass Street.Ott@dlapiper.sacks@dlapiper. 2013. shushila. 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.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. _________________________________________ Seth A. MEMORANDUM OF POINTS AND AUTHORITIES on the following person(s) in this action by placing a true copy thereof as follows: Carter W. luanne.com. Suite 2400 San Francisco. Esq. at San Francisco. where this mailing occurs. DLA Piper LLP (US) 555 Mission Street. San Francisco. 111 CV 193767 .