Ocean Tomo, LLC vs. Patentratings, LLC

Motion to Strike or Tax Costs

Cal. Super. - 4th Dist.June 26, 2014

1|| BUCHALTER A Professional Corporation 2|| MICHAEL L. MEEKS (SBN: 172000) STEVEN BROWER (SBN: 93568) 3|| BRANDON Q. TRAN (SBN: 223435) 18400 Von Karman Avenue, Suite 800 4| Irvine, CA 92612-0514 Telephone: (949) 760-1121 5]| Fax: (949) 720-0182 Email: mmeeks@buchalter.com Attorneys for Plaintiff and Cross-Defendant 711 OCEAN TOMO, LLC, an Illinois Limited Liability Company 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF ORANGE 10 OCEAN TOMO, LLC, an Illinois limited CASE NO. 30-2014-00730938-CU-BC-CIC 11 liability company, Honorable Nathan Scott 12 Plaintiff, Dept. C12 1 3 VS. OCEAN TOMO, LLC’S NOTICE OF 14 PATENTRATINGS, LLC, a California limited MOTION AND MOTION TO TAX liability company; JONATHAN BARNEY,an COSTS AGAINST JONATHAN 15 individual, and DOES 1 through 10, inclusive, BARNEY; DECLARATION OF BRANDON Q. TRAN IN SUPPORT 16 Defendants. THEREOF 17 Date: December 18, 2017 Time: 2:00 p.m. 18 Dept.: C12 19 Reservation No. 72647754 20 . Complaint filed: June 26, 2014 21|| AND CROSS-ACTION. Trial date: December 7, 2016 22 23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE THAT that on December 18, 2017 at 2:00 p.m., or as soon 25|| thereafter as the matter may be heard, in Department C12 of the above entitled court, located at 26] 700 Civic Center Drive West, Santa Ana, California, Ocean Tomo, LLC will, and hereby does, 271i] move the court for an order taxing Jonathan Barney’s Memorandum of Costs. 28 1 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BUCHALTER A PROFESSIONAL CORPORATION faving BN 29878060V1 1 This motion is made on the grounds that Jonathan Barney (“Barney”) has requested costs 2|| that are either not authorized by sections 1032 or 1033.5 of the Code ofCivil Procedure, or are 3|| unreasonable and/or were unnecessary to the resolution of this case. Barney’s claimed costs 4| include items which are not recoverable and/or the amount is unreasonable and excessive and 5|| should be reduced. 6 This motion is based on this notice, the attached supporting memorandum, on all 71 pleadings and papers on file in this action, and such other evidence and oral argument as may be 8|| before the court at the time of the hearing ofthe motion. 9 10|| DATED: August 21, 2017 BUCHALTER i A Professional Corporation 12 13 By: 14 MICHAEL L MEEKS STEVEN BROWER 15 BRANDON Q. TRAN Attorneys for Plaintiff and Cross-Defendant 16 OCEAN TOMO, LLC 17 18 19 20 21 22 23 24 25 26 27 28 2 ) OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS POR355OW AGAINST JONATHAN BARNEY IRVIN BN 29878060V1 A PROFESSIONA BUCHALTER P 1. CORPORATION IRVINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND SUMMARY OF COSTS TO BE TAXED The California Code of Civil Procedure provides that a prevailing litigant is only entitled by law to limited categories oftrial costs. However, even then the costs must be reasonable in amount and necessary to the litigation. In submitting his Memorandum of Costs in this case, Jonathan Barney (“Barney”) has claimed expenses to which he is simply not entitled to, or he fails to establish that the costs were reasonable and necessary. Consequently, the Court should grant Ocean Tomo, LLC’s Motion to Tax Costs and award Barney only $583.40 in costs. In summary form, the following claimed costs are improper or excessive and should be taxed for Jonathan Barney: Item Description Claimed Allowable 1 Filing and motion fees $749.15 $249.15 4 Deposition costs $2,316.00 $0.00 5. Service of Process $372.78 $0.0 8. Witness costs $44,085.50 © $0.00 11. Models, Blowups and Photocopying $3,135.69 $0.0 12. Other $334.25 $334.25 Totals $50,993.37 $583.40 IL. ARGUMENT A. Barney Is Not Entitled to Recover Expert Witness Fees Even if a Section 998 offer of compromise can provide the basis for recovery of expert fees, any such recovery is discretionary. See, Rouland v. Pac. Specialty Ins. Co. (2013) 220 Cal. App. 4th 220, 229 ("Even when an offer satisfies all of section 998's requirements, the decision whether to award expert witness fees, as opposed to any of the statute's other cost-shifting penalties, is vested in the trial court's sound discretion. [A party] is not entitled to its expert witness fees as a matter of right."). Moreover, such fees must still be reasonable. As the Supreme Court explained, “[a]llowable costs include ordinary witness fees and the fees of experts ordered by the court, so long as they are ‘reasonably necessary’ to the conduct ofthe litigation and 3 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 A PROFESSIC BUCHALTER IRVINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ONAL CORPORATION 'reasonable' in amount". Davis v. KGO-T.V. (1998) 17 Cal.4th 436, 441. Consequently, Barney has the burden of demonstrating not only that it was reasonably necessary to use an expert, but also that the costs associated with the expert were reasonable. Ladas, 19 Cal. App. 4th at 774. Here, in support of his request for expert fees, Barney does not present any evidence for either Ocean Tomo or the Court to determine whether the expert fees were reasonable in amount or necessary to the litigation. The attachment Barney submitted with his Memorandum of Costs provides no information identifying the hours claimed, the expert's hourly fee, the individuals who performed the work, what work was performed, or any costs which the expert alleged incurred. Significantly, the Memorandum of Costs do not explain why such significant fees were incurred after his expert deposition was taken on December 9, 2015. Based on Barney’s Notice of Expert Designation, Michael Issa would be “sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the testimony described ..., including his expert opinions and the bases thereof.” See, Declaration of Brandon Q. Tran, § 2 and Exhibit “1.” Moreover, at his deposition, Mr. Issa testified that he did not contemplate any other work after his deposition, outside of reviewing Ms. Deborah Dickson’s deposition testimony. See, Declaration of Brandon Q. Tran, § 3 and Exhibit “2.” Likewise, the attachment fails to explain why there are services being performed in this matter in July 2017, after the trial was concluded. Without any of this information, Barney fails to make a prima facie showing that these expert costs are both reasonable in amount and reasonably necessary to the conduct of the litigation. As a result, the entirety of Barney’s expert costs should be taxed. B. Barney Other Costs Are Not Recoverable or Are Unreasonable and Unnecessary Barney’s right as the “prevailing party” to recover costs under Code of Civil Procedure section 1032 is not absolute. Even with respect to costs that are otherwise recoverable under section 1032, this Court retains authority to determine whether Barney’s costs are allowable 4 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 BUCHALTER A PROFESSIONAL Irving 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CarpPORATION pursuant to the restrictions of section 1033.5, subdivision (c), which require that any award of costs be subject to the following: “(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. “(3) Allowable costs shall be reasonable in amount.” Code Civ. Proc., §1033.5, subds. (c)(2) and (3); see also, Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. The court is “limited to determining whether any allowable costs were reasonably 9% 44necessary and reasonable in amount,” “and to awarding or denying additional items of costs that are not mentioned as either allowable or nonallowable.” Code Civ. Proc., §1033.5, subd. (c)(4); see Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 442. The Court has power to disallow even costs “allowable as a matter of right, if they were not ‘reasonably necessary’;and to reduce the amount of any cost item to that which is “reasonable.” Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [intent and effect of §1033.5, subd. (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines costs were incurred unnecessarily]. Prior to awarding costs, this Court has a duty to determine whether the cost is reasonable in need and amount. Nelson, supra, 72 Cal. App.4th at p. 129 [in awarding item of costs, court must first determine whether statute expressly allows the particular item and whether it appears proper on its face]. If the correctness of the memorandum is challenged either in whole or in part, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action. Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699. IL Barney is not authorized to recover all ofhisfilingfees In requesting costs for his filing fees, Barney requests a $500 filing fee for the Verified Application of David C. Layden to Appear Pro Hac Vice. This is an unreasonable and unnecessary filing. Mr. Layden was notat the trial for this matter. Mr. Layden was not at any of 5 OCEAN TOMO, LL.C’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 A Proves O o 0 3 O y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the hearings for this matter. His nameis not on any of pleadings or motions filed in this matter. Thus, Mr. Layden’s application to appear pro hac vice was not reasonable or necessary to this action and the fees for his pro hac vice application should be taxed. 2. Barneyfails to establish that his Depositions Costs were reasonable and necessary "Deposition costs" are only recoverable for "taking, videotaping, and transcribing necessary depositions including an original and one copy of those taken by claimant and one copy of the depositions taken by the party, and travel expenses to attend the depositions." Cal. Code. Civ. Proc. § 1033.5(a)(3) (emphasis added). Travel expenses must be "necessary" for the deposition. Thon v. Thompson (1994) 29 Cal. App. 4th 1546, 1549. Section 1033.5(a) does not contemplate that there will be recovery for every type of expense that could conceivably be related to depositions. For his deposition costs, Barneyfails to provide any evidence to support his claim for $2,316. The attachment to the Memorandum of Costs fails to explain or substantiate the $2,316 sum. Without such evidence, it is impossible for Ocean Tomo or the Court to determine whether such costs were reasonable and necessary to the litigation. Consequently, the Court should tax Barney’s deposition costs. 3. Barney’s claim for “Service ofProcess”fees are notpermitted by Section 1033.5 Section 1033.5(a)(4) only authorizes recovery for the cost of "[s]ervice of process by a public officer, registered process server, or other means." While such costs can include those "actually incurred in effecting service" such as time staking out a witness, Cal. Code. Civ. Proc. 1033.5(a)(4)(B), they do not extend into other areas beyond the actual costs of the service. Here, Barney appearsto be requesting fees for his attempted service of two potential witnesses, Cate Elsten and Justin Lewis, and the actual service of Ms. Elsten. Setting aside the issue that the attempted services are not recoverable, these witnesses were unnecessary to this litigation. First, based on the Court’s ruling on Motion in Limine Number 3, the testimony of 6 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 1|| these witnesses and the financial documents they were asked to produce, were irrelevant to this 2|| action. See, Declaration of Brandon Q. Tran, 94. Second, neither of these witnesses was called 3|| to testify at the trial. Id. As a result, neither were necessary to this litigation and these service of 4| process fees should be taxed in their entirety. 5 4. Barney claims models, blowups andphotocopiesexpensesthat 6 categorically do not qualify as allowable costs under Section 1033.5 7 The law expressly limits the types oftrial exhibits that are recoverable as costs. Costs for 8|| exhibits not actually used at trial are not recoverable under 1033.5(a)(12) because the exhibits are 9|| not "reasonably helpful to aid the trier offact." Ladas v. California State Auto Ass'n (1993) 19 10|| Cal. App. 4th 761, 774. 11 Here, again, Barney submits in summary form, the total costs incurred for copying 12|| exhibits for the trial. However, the majority of the exhibits, which totaled approximately 365 13|| exhibits, were never used at trial. Thus, these exhibits, and the costs of copying them, were 14|| unnecessary to the litigation. Additionally, Barney has submitted costs for the scanning of 15] exhibits. This are not an allowable costs under the Code. Because there is no way for Ocean 16{| Tomo to determine which of the exhibits was reasonably necessary for the trial given Barney’s 17|| ambiguous attachment, the entirety of the costs should be taxed. 18|| II. CONCLUSION 19 For the reason stated above, Ocean Tomo respectfully requests that the Court grant this 20|| motion and tax Barney’s costs in the amount of $50,409.97. 21|| DATED: August 21,2017 BUCHALTER53 A Professional Corporation2324 --By:25 MICHAEL L MEEKSSTEVEN BROWER26 BRANDON Q. TRANAttorneys for Plaintiff and Cross-Defendant27 OCEAN TOMO, LLC28 7OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS ALES AGAINST JONATHAN BARNEYA Provrssional, CORTORATY (vie BN 29878060V1 A PROFESSIONAL BUCHALTER Irving 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L CORPORATION DECLARATION OF BRANDON Q. TRAN, ESQ. I, Brandon Q. Tran, declare: 1. I am, and continuously have been since 2002, an active member in good standing of the State Bar of California. I am a Senior Counsel with Buchalter, A Professional Corporation, counsel of record for Plaintiff and Cross-Defendant Ocean Tomo, LLC (“OT”). I am one of the attorneys in my firm principally responsible for OT’s representation in this action. Each of the matters hereinafter stated is within my own, first-hand knowledge, oris disclosed by the information contained in the documents attached hereto; and, if called as a witness, I could and would competently testify thereto under oath. 2. On or about October 26, 2015, I received the Notices of Expert Witness Designations and Expert Witness Declaration from both Jonathan Barney and PatentRatings, LLC. Both Notices were identical and designated Mr. Michael Issa as an expert. Attached as Exhibit “1” is a true and correct copy of Mr. Barney’s Notice, which provided that Mr. Issa would be “sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the testimony described ..., including his expert opinions and the bases thereof.” 3. Thereafter, on or about December 9, 2015, I conducted the deposition of Mr.Issa. Near the conclusion of the deposition, after I had questioned him about his opinions and the basis for those opinions, I asked what work he contemplated. Mr. Issa testified that he planned to revise the exhibits for trial to make it more user friendly and review Ms. Dickson’s files. Attached hereto as Exhibit “2”is a true and correct copy of the pertinent pages of Mr. Issa’s testimony. 4. I attended the trial in this matter and was also present for the Court’s ruling on the motions in limine. Once of the motions I filed was motion in limine number 3 which requested the Court to issue an order precluding the introduction of Ocean Tomo’s financial documents on the basis that it was irrelevant. The Court granted the motion. As a result, neither Cate Elsten nor Justin Lewis were called as witnesses in thistrial. 8 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 BUCHALTER A PROVERSIONAL (R¥iNE O o C e 9 D Y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 37 28 . CORPORATION I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Declaration is executed on August 21, 2017 at Irvine, Ze Brandon Q. Tran California. 9 OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY BN 29878060V1 Exhibit “1” h a a [¥ 51 6 BROWN RUDNICK LLP RONALD RUS, #67369 rrus@brownrudnick.com LEO J. PRESIADO, #166721 Ipresiado@brownrudnick.com JUSTIN J. S. MORGAN,#279802 jmorgan@brownrudnick.com 2211 Michelson Drive, 7th Floor Irvine, CA 92612 Telephone: (949) 752-7100 Facsimile: (949) 252-1514 Attorneys for Defendant and Cross-Complainant, JONATHAN BARNEY SUPERIOR COURTOF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRALJUSTICE CENTER OCEAN TOMO, LLC, an [llinois limited CASE NO. 30-2014-00730938-CU-BC-CJC liability company, NOTICE OF EXPERT WITNESS Plaintiff, DESIGNATION AND EXPERT WITNESS DECLARATION vs, [Code of Civil Procedure § 2034.260] PATENTRATINGS, LLC, a California limited liability company; JONATHAN BARNEY, an individual, and DOES 1 through 10, inclusive, ASSIGNED FOR ALL PURPOSES TO THE HON. KIRK H. NAKAMURA, DEPT. C15 Defendant. PATENTRATINGS, LLC, a California limited TRIAL DATEL: December 14, 2015 liability company, Cross-Complainant, vs. OCEAN TOMO, LLC, an linois limited liability company, Cross-Detendant. JONATHAN BARNEY, Cross-Complaimant, Vs. OCEAN TOMO, LLC, an lilinois limited liability company, _Cross-Defendant, 1 i NOTICE OF EXPERTWITNESS DESIGNATION GOSA88 vi-Man i032 438/000] 3 j o 0 N C TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Code of Civil Procedure § 2034.260, Defendant and Cross-Complainant Jonathan Barney (“Mr. Barney”) hereby designates the following individual as an expert trial witnesses for the December 14, 2015 jurytrial in the above-captioned mater: 1. J. Michael ssa, GlassRatner Advisory &Capital Group, LLC, 19800 MacArthur Boulevard, Suite 820, Irvine, California 92612. Mr. Issa has been retained as an expert witness by Mr. Bamey. PLEASE TAKE FURTHER NOTICE that Mr. Barney reserves the right to call as witnesses at trial any andall experts designated by other parties in this case, including experts designated by Plaintiff and Cross-Defendant Ocean Tomo, LLC and Defendant and Cross-Complainant PatentRatings, LI.C, and any and all experts that Mr. Barney may wish to call to impeach the testimony of any other expert witnesses. pursuant to Code of Civil Procedure § 2034.310. Discoveryis not yet completed in this case. Mr. Barney reserves the right to supplement his expert witness list upon completion ofdiscovery. [n addition, Mr. Barney reserves the right to serve a supplemental expert list as provided by Code of Civil Procedure § 2034280. DATED: October 26, 2015 BROWN RUDNICKLLP By: Attorney¥ for Defendant and Cross-Complainant JONATIIAN BARNEY My NOTICEOF EXPERTWITNESSDESIGNATION HUFA8RE w) -ManDR0223387000 t o 2 w r 6 EXPERT WITNESS DECLARATION OF LEO J. PRESIADO [, LEO J. PRESIADO, hereby declare as follows: 1 Iam an attorneyat law, dulylicensedto practice before the ahove-entitled Court, and am a Partner ofthe lawfirm of Brown Rudnick LLP, attorneys ofrecord for Defendant and Cross-Complainant Jonathan Barney (*Mr. Barney™). 2. [ have first-hand personal knowledge otthe matters set forth herein, and if called upon to testify, would and could competently testitythereto. This Declaration is made pursuant to Code of Civil Procedure § 2034260. 3. Accompanying this Declaration is the name ofthe person whose expert opinion testimony Mr. Barneyintends to.ofter at the trial ofthis action, either orally or by deposition testimony. The person name is J. Michael Issa, GlassRatner Advisory & Capital Group, LLC, 19800 MacArthur Boulevard, Suite 820, Irvine, California 92612. 4, This expert is discussed below, J. MICHAEL ISSA “ A Mr. Issa intends to offer opinion testimonyat the trial ofthis actioneither orally or by deposition testimony. Mr. Issa is a principal with GlassRamer Advisory & Capital Group LIC. a national advisory [im with offices in six majorcities. Mr. Issa holds a Certified Public Accountant; is licensed by the California Department of Real Estate; holds a FINRA Series 63 license; andhas served on the boards of both public and private companies, as well as various non-profit organizations. Mr. Issa’s professional qualifications are described more [ullyin his curriculum vitae, a copy of which is attached as Exhibit “17 and incorporated herein byreference. 6. Mr. [ssa 1s expectedto testify in the above-entitled matter regarding the executive salaryfor the Chief Executive Officer ofPatentRatings, LLC ("PR™); operating expenses, including litigation expenses as the issue relates to PR; and capital contributions as the issue relates to PR. The expected scope of Mr. Issa’s testimony may change depending upon outstanding discovery matters and his ongoing studyof the issues in this case. Mr. Issais also expected to offer rebuttal testimony in response to opinions that Plaintif! and Cross-Defendant Ocean Tomo, LLCs experts) and Defendant and Cross-Complainant PatentRatings, LLCs ~ 3 NOTICE OFEXPERT WITNESS DESIGNAT 18 vanDE-032 338/000) expert(s), if any, mayoffer, 7. Mr. Issa is, or will be, sufficiently familiar with the pending action to submit to a of =o meaningful oral deposition concerning the testimony described above, including his expert opinions and the bases therefor, 8. Mr. Issa has agreed to testifyat trial. 9. Mr.Issa’s expert fee for providing deposition testimony is $4935 per hour. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed this 26th day of October, 2015, at Irvine, California. o LEO I. PRRSIADO 1} NOTICE OF EXPERT WITNESS DESIGNATION 605488 vI-iManDI3-032338/000] EXHIBIT 1 J. MICHAEL ISSA GlassRatner Advisory & Capital Group LLC 19800 MacArthur Suite 820 Irvine, CA 92612 949 862-1593 EXPERIENCE GlassRatner Advisory & Capital Group LLC Principal GlassRatner is a national advisory firm with approximately 100 professionals and offices in six major cities. The firmreceived the Atlas award for Middle Market Turnaround Firm of the Year in 2013. Mr. Issa is the Managing Principal of the firm's California practice. GlassRatner and its principals have provided significant benefits to clients in many industries including manufacturing, distribution, healthcare, retailing, restaurants, professional practices, services, real estate, oil and gas, and construction. The firm has an extensive real estate consulting and capital raising operation as part ofits practice. The firm's: services to its real estate clients have been diverse, and have includedthe following: . Mr. Issa and his team have raised various types of equity financing and joint venture participations on behalf oftheir clients. . Mr. Issa has advised a number of investors on acquisitions of assets including portfolios of real property from banks. These have included substantial multi-family projects, single-family, retail (shopping center), hospitality, and health-care related realty. . Mr. Issa has also been a court-appointed liquidating trustee of a portfolio of over 20 projects involving office, mini-warchouse, and hght industrial real estate. He has also been involved in several golf course transactions. He chaired the strategic disposition committee of a public hotel company when the company’s assets were sold off in a nine- digit transaction to another public hotel company. . As a part ofcrisis management for real estate clients, the firm frequently engages in debt restructuring. Mr. Issa has personally managed several billion dollars of debt restructuring on behalf of his clients and has been Chief Restructuring Officer for many of California’s residential industrial and retail developers, including some ofthe largest restructurings and bankruptcies in the 1990°s. He frequently prepares and presents complex tax effected financial statements for borrowers and guarantors and is a well- known expert on real estate and real estate restructuring and bankruptey. . He is presently serving as a Chapter 11 Trustee with the approval of the Office ofthe United States Trustee. . Under Mr. Issa’s direction, several billion dollars of different types of financing have been raised on behalf ofhis corporate and real estate clients. . Mr. Issa and other GlassRatner professionals frequently appear as expert witnesses in litigation matters, These matters frequently involve testimony in the context of corporate, partnership, or individual bankruptcies. Examples of such testimonies mclude Plan feasibility ar Bankruptey Confirmation Hearings, testhmony in Use of Cash Collateral Hearings, company and asset liquidation analysis, adequacy of New Value, and a vanety of financing and recapitalization wssues. Mr. lssa appeared several times on 7H] miterest rate issues in contested Plan hearings including the North Valley Mall case. Mr. Issa and the firm also appear as expert witnesses in a variety of other non-bankruptey litigation matters. Mr. Issa has appeared as an expert withess in a number of real estate related matters. Ballenger Cleveland & Issa, LLC with otfices in Los Angeles and [rvine (2002-2010) Executive Managing Director and Cofounder Mr. Issa’s Orange County practice of Ballenger Cleveland & Issa, LLC merged with GlassRatuer in November 2010. The array of services outlined above were substantially the same at both BCI and GlassRatner. Kibel Green Issa, Inc, with offices in Santa Monica and Irvine, Ca (1987-Feb., 2002) Vice Chairman, Managing Director ofOrange County Practice Ar. [ssa was the principal in charge ofthe firm’s Orange County practice since the office opened in 1993. In this capacity, he oversawall consulting activities in Orange County and also oversaw the firm-wide real estate and merchant banking activities. KGI was named one of the “12 Outstanding Turnaround Firms Nationally” by a nationwide industry publication during Mr. Issa’s tenure. PREVIOUS WORK EXPERIENCE Prior to his employment with KGT, Mr. Issa was the head of a group of companies, which were privately owned by several high net-worth, individual investors whose primary business was to acquire and turnaround problem assets including both operating companies and real property. After completing graduate school, Mr. Issa worked as a commercial banker with a regional bank and a moneycenter bank for a total offive years. Subsequent to his banking career, Mr. Issa was the chief financial officer for a large privately-held company with diverse investments in operating companies and in real estate, OTHER QUALIFICATIONS Education: Mr. Issa 1s a Beta Gamma Sigma Master of Business Administration from the University of Texas at Austin. He also received a Bachelor of Business Administration from the same institution. Mr. Issa has also taught in the business school at two different four-year universities. Boards: Mr. Issa has served on the boards of both public and private companies as well as various non- tions. He has also served on or chaired a number of strategic, financial and profit organiz: operating committees for these companies. Licenses and Professional Designations: Mr. Issa is a Certified Public Accountant; a Chapter 11 Bankruptey Trustee in the Central District of California; is licensed by the California Department of Real Estate; holds a Series 65 license andis a member ofthe following professional organizations: Orange County Bankruptey Forum, Turnaround Management Association, and Urban Land Institute. He has also been included in the Nationwide Register’s Who's Who im Executives and Businesses and speaks on a variety of topics, frequently at industry conference w o N o a h n 6 15 16 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE At the time ofservice, I was over 18 years of age and not a partyto this action. I am employed in the County of Orange, State of California. My business address is 2211 Michelson Drive, Seventh Floor, Irvine, CA 92612. On October 26, 2015, I served true copies of the following document(s) described as NOTICE OF EXPERT WITNESS DESIGNATION AND EXPERT WITNESS DECLARATION on the interested parties inthis action as follows: Michael [.. Meeks, Esq. WilliamE. Halle, Esq. BUCHALTER NEMER O’NEIL LLP 18400 Von Karman Ave., Suite 800 19900 MacArthur Blvd., Suite 1050 Irvine, CA 92612 Irvine, CA 92612 Tel: (949) 720-1121 Tel: (949) 798-0500 Fax: (949) 720-0182 Fax: (949) 798-0511 mmeeks(@buchalter.com bhalle@oneil-llp.com Counselfor Plaintiffand Cross-Defendant, Counselfor Defendant and Cross- QCEAN TOMO, LLC Complainant, PATENTRATINGS, LLC ® BY MAIL: [enclosed the document(s) in a sealed envelope or package addressedto the persons at the addresses listed inthe Service List and placed the envelope for collection and mailing, following our ordinary business practices. Iamreadily familiar with Brown Rudnick LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is depositedin the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. E BY HAND DELIVERY: [ caused such envelope(s) to be delivered by handto the office ofthe addressee(s). Executed on October 26, 2015, at Irvine, California. ; ) , py / J J 4 /)/ ! PROOFOF SERVICE Exhibit “2” H w N e 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE OCEAN TOMO, LLC, an Illinois limited liability company, Plaintiff, Case No. 30-2014- 00730938-CU-BC-CJC VS. PATENTRATINGS, LLC, a California limited liability company, et al., Defendants. AND RELATED CROSS-ACTION. r r e r n e r r t e r t e r a r t a r t e r a r n a r e r e r e r e r n e r n e Deposition of J. MICHAEL ISSA, taken at 18400 Von Karman Avenue, Suite 800, Irvine, California beginning at 10:13 a.m. and ending at 5:50 p.m. on Wednesday, December 9, 2015, before DENISE HESS, CSR No. 7564. Page 2 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 18 20 21 | 22 93 24 25 A Yes, to the extent that PatentRatings is a party to that litigation, absolutely. Q We are talking about the current litigation, right? A Yes. Q Is PatentRatings a party? A Yes, they are. Q Okay. So are the fees incurred by | PatentRatings -- in your opinion, would they be classified as operating expenses? A Yes. Q And what is the basis of that opinion? A It's the same thing that I went over earlier. It's the PWC. It's the FASB 2015, the SEC, the Ernst & Young document. Q Let's wrap this up, then. Any additional work you plan on doing after today? A I'm going to create trial exhibits, but those trial exhibits won't be -- it will be different than what you have seen, but the same Q Okay. A Just user friendly. | | content. Page 253 Veritext Legal Solutions 866 299-5127 10 | 1 12 13 14 1.5 16 17 18 1.9 20 21 22 23 24 25 | Q So what type of trial exhibits do you plan on providing, which exhibits that we have already identified, if any? A I would take some of these things and probably -- I don't know if you want hard copy or PowerPoint. I'll talk to counsel about it. But we'll take this stuff and the opinions I have expressed and put them into either PowerPoint or documents for the judge. Q Okay. So no other work contemplated after today? A There is one more thing that I would probably want to do. I am told that Ms. Dickson provided her electronic files, the spreadsheet files, maybe yesterday. So I haven't had a chance to "look at those. I don't know that it would shed any new light on anything, but I'm going to look through those in the next day or two. Q Okay. Anything else you plan on doing after today? A That's 41%. Q In preparing your opinions did you encounter any facts that were inconsistent with Page 254 Veritext Legal Solutions 866 299-5127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your ultimate opinions here? A No. Q So have you told me today all of the opinions you plan on giving at trial in this matter? A Unless there is some epiphany that came out of looking at Ms. Dickson's e-file, I have. MR. TRAN: All right. TI don't have any other questions. Off the record. (Brief recess.) MS. ZAESKE: I want to clarify that we talked off record and that counsel has agreed to send the witness a check for one more hour of his time to cover the time of the deposition. MR. TRAN: That's correct. While we were off the record the parties were discussing a stipulation as to the transcript. We propose or stipulated to the fact that the court reporter be relieved of her duties to keep and maintain the original transcript. The transcript upon completion will Page 255 Veritext Legal Solutions 866 299-5127 A PROFESS] BUCHALTER ONAL CORPORATION IRVINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action. My business address is at BUCHALTER, A Professional Corporation, 18400 Von Karman Avenue, Suite 800, Irvine, CA 92612-0514. On the date set forth below, I served the foregoing document described as: OCEAN TOMO, LLC’S NOTICE OF MOTION AND MOTION TO TAX COSTS AGAINST JONATHAN BARNEY; DECLARATION OF BRANDON Q. TRAN IN SUPPORT THEREOF on all other parties and/or their attorney(s) of record to this action by XI electronically serving [] faxing and/or placing a true copy thereof in a sealed envelope as follows: See attached Service List M BY MAIL [am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The address(es) shown above is(are) the same as shown on the envelope. The envelope was placed for deposit in the United States Postal Service at Buchalter in Irvine, California on August 21, 2017. The envelope was sealed and placed for collection and mailing with first-class prepaid postage on this date following ordinary business practices. Ol BY FACSIMILE AND MAIL I caused the above-named document(s) to be sent via facsimile transmission to the law office(s) and facsimile number(s) stated above. The transmission was reported as complete and without error. A copy ofthe transmission report(s) properly issued by one or more of Buchalter’s Xerox 745 WorkCenter facsimile machine(s) [telephone number(s): (949) 720-0182 is(are) made a part of this proof of service pursuant to CRC §2.306. I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The correspondence will be deposited in an envelope with the United States Postal Service this day in the ordinary course of business for mailing to the address(es) shown above. The envelope was sealed and placed for collection and mailing with the United States Postal Service at Buchalter in Irvine, California on August 21, 2017, following ordinary business practices. a BY OVERNIGHT DELIVERY On August 21, 2017, I placed the Federal Express/GSO Overnight Delivery package for overnight delivery in a box or location regularly maintained by Federal Express/ GSO Overnight Delivery at my office, or I delivered the package to an authorized courier or driver authorized by Federal Express/ GSO Overnight Delivery to receive documents. The package was placed in a sealed envelope or package designated by Federal Express/ GSO Overnight Delivery with delivery fees paid or provided for, addressed to the person(s) on whom it is to be served at the address(es) shown above, as last given by that person on any documentfiled in the cause; otherwise at that party’s place of residence. 0 BY PERSONAL DELIVERY On August 21, 2017, I placed the above-referenced envelope or package in a box or location regularly maintained at my office for our messenger/courier service or I delivered the envelope or package to a courier or driver authorized by our messenger/courier service to receive documents. The package was placed in a sealed envelope or package designated by our messenger/courier service with delivery fees paid or provided for, addressed to the person(s) on whom it is to be personally served at the address(es) BN 17652541v1 A PROFESS) BUCHALTER ONAL CORPORATION Tuvine S e 0 3 9 O h 11 12 13 14 15 16 1% 18 19 20 21 22 23 24 25 26 2 28 shown above as last given by that person on any document filed in the cause. The messenger/courier service was provided with instructions that the envelope or package be personally served on the addressee(s) by same day delivery (C.C.P. §1011). C] BY EMAIL On August 21, 2017, I caused the above-referenced document(s) to be sent in electronic PDF format as an attachment to an email addressed to the person(s) on whom such document(s) is/are to be served at the email address(es) shown above, as last given by that person(s) or as obtained from an internet website(s) relating to such person(s), and I did not receive an email response upon sending such email indicating that such email was not delivered. M BY ELECTRONIC SERVICE On August 21, 2017, via electronic transmission to One Legal LLC e-service via the Internet as a pdf scanned image of the document. ™ I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct to the best ofmy knowledge. Executed on August 21, 2017,at Irvine, California. Geri Tooley Yka (Signature) BN 17652541v1 A PROFESS). BUCHALTER ONAL CORPORATION Irving 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST OCEAN TOMO, LLC vs. PATENTRATINGS, LLC ORANGE COUNTY SUPERIOR COURT CASE NO. 30-2014-00730938-CU-BT-CJC William E. Halle Attorney for Defendant and O’Neil LLP Cross-Complainant Patentratings, LLC 19900 MacArthur Blvd., Suite 1050 Irvine, CA 92612 Email: bhalle@oneil-llp.com Telephone: (949) 798-0500 Facsimile: (949) 798-0511 Attorney for Defendant Jonathan Barney Ronald Rus Leo J. Presiado Email: rrus@brownrudnick.com Justin J.S. Morgan Email: lpresiado@brownrudnick.com Brown Rudnick LLP Email: jmorgan@brownrudnick.com 2211 Michelson Drive, Seventh Floor Telephone: (949) 752-7100 Irvine, CA 92612 Facsimile: (949) 252-1514 BN 17652541v1