J & J Sports Productions, Inc. v. Castellon et al
Filing
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ORDER DENYING 26 MOTION TO QUASH AND TO VACATE DEFAULT AND GRANTING 27 MOTION FOR ENTRY OF DEFAULT JUDGMENT signed by Judge William H. Orrick 10/16/2015. (jmdS, COURT STAFF) (Filed on 10/16/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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J & J SPORTS PRODUCTIONS, INC.,
Case No. 15-cv-01941-WHO
Plaintiff,
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v.
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JAIME ROBLES CASTELLON, et al.,
Defendants.
Re: Dkt. Nos. 26, 27
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United States District Court
Northern District of California
ORDER DENYING MOTION TO
QUASH AND TO VACATE DEFAULT
AND GRANTING MOTION FOR
ENTRY OF DEFAULT JUDGMENT
On October 14, 2015, I heard argument on defendant Casa Robles Inc. and Ranferi
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Gomez’s motion to quash service of summons and to vacate default and plaintiff’s motion for
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default judgment against defendants Casa Robles Inc., Gomez, and Jaime Robles Castellon. For
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the following reasons, I DENY defendants’ motion to quash and to vacate and GRANT plaintiff’s
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motion for default judgment in the amount of $2200.
BACKGROUND
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Plaintiff, the exclusive licensor of rights to exhibit certain closed circuit and pay-per-view
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sports programming, brought suit against defendants Casa Robles Inc., Gomez, and Castellon
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individually and all as doing business as Casa Robles Mexican Restaurant, operating at 3839
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Washington Blvd., Fremont, California. Dkt. No. 1. The complaint alleges that defendants
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showed a program in the Casa Robles Mexican Restaurant without a license. Plaintiff’s complaint
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alleges that defendants are liable under the Federal Communications Act (47 U.S.C. § 605 et seq.)
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and the Cable Communications Policy Act (47 U.S.C. § 553 et seq.) for receiving, intercepting
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and assisting in the receipt or interception of licensed programming. The complaint also alleges
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claims for conversion and violation of the California Business and Professions Code Section
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17200.
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Plaintiff alleges it secured the nationwide commercial distribution rights to Floyd
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Mayweather, Jr. v. Marcos Rene Maidana WBC Welterweight Championship Fight Program,
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telecast on Saturday May 3, 2014, including the undercard bouts and commentary (“Program”).
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Plaintiff asserts that had defendants wished to legally broadcast the Program, the cost would have
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been $2,200. Plaintiff’s hired private investigator was present in the restaurant on the evening of
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the fight, May 3, 2014, and saw that the Program was being aired before the boxing actually
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began. See Affidavit of Yolanda Poblete, Docket No. 27-3. The investigator did not pay a cover
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charge and there were between 21 and 29 patrons in the restaurant between 7:51 and 8:24 p.m.
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Plaintiff filed a complaint against the defendants on April 29, 2015, and filed proofs of
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service attesting that defendants were served on July 8, 2015. Docket Nos. 14-16. The defendants
did not answer, and on August 7 and August 24, 2015, the Clerk entered defaults against each
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United States District Court
Northern District of California
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defendant. Docket Nos. 21, 25.
On September 3, 2015, counsel appeared on behalf of defendants Casa Robles Inc. and
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Gomez by filing a motion to quash service and to vacate the defaults based on the argument that
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service against those two defendants was defective. Docket No. 26. On September 4, 2015,
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plaintiff filed a motion seeking entry of default judgment against all three defendants. To date,
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defendant Castellon has not appeared individually or through counsel.
DISCUSSION
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I. MOTION TO QUASH AND VACATE DEFAULT
Casa Robles Inc. and Gomez move to quash service of process, arguing that service was
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ineffectual on Casa Robles because the authorized agent for service was not the person served and
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ineffectual on Gomez because he was served by substitute service at the restaurant, which is not
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his residence or normal place of business. Docket No. 26. With respect to Casa Robles Inc., the
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proof of service demonstrates that service was made at the restaurant on “Jaime Robles,” who
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plaintiff asserts (and defendants do not dispute) is the “Jaime Robles Castellon” listed on the
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restaurant’s liquor license as a Director and the President of Casa Robles Inc. and who is the third
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defendant in this case. Docket Nos. 16, 27-3.1 The fact that service was not made on Casa Robles
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Defendant Casa Robles Inc. does not argue that Jaime Robles – who was personally served at
1:05 p.m. on 7/8/15 behalf of Casa Robles Inc. – is not Jaime Robles Castellon who was also
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Inc.’s registered agent for service does not matter. Service on an officer of a corporation is
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sufficient. F.R.C.P. 4(h)(1)(B).
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With respect to Gomez, the proof of services shows that “substitute service” was made by
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delivering the summons and related materials to Jaime Robles at the restaurant after three separate
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attempts at personal service. Docket No. 15. The federal rules allow plaintiffs in this District to
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“borrow” the service rules of California. F.R.C.P. 4(e)(1). Under California law, “substitute
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service” is allowed at a defendant’s “usual place of business,” after diligent attempts at personal
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service. Cal. C.C.P. § 415.20(b). Three attempts at personal service at a proper place is diligent.
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American Express Centurion Bank v. Zara, 199 Cal.App.4th 383, 389 (2011) (to qualify as
reasonable diligence, two or three attempts must first be made to personally serve the defendant).
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United States District Court
Northern District of California
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“Usual place of business” includes “a defendant’s customary place of employment as well as his
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own business enterprise.” Id. (Judicial Council Comment). Defendant Gomez is listed on the
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restaurant’s current liquor license as a “Director” and “Vice-President” of the enterprise.
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Defendant Gomez admits that he works “occasionally” at the restaurant, although he works full
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time for another business. Docket No. 26. In light of these facts, I conclude that Casa Robles Inc.
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is appropriately considered Gomez’s own business enterprise for purposes of service.
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Defendants Casa Robles Inc. and Gomez make no other argument why service should be
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quashed or the defaults set aside. Finding that service was adequate in this case, I will consider
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the request for entry of default judgment, which has not been opposed on its merits by the
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appearing defendants.
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II. MOTION FOR ENTRY OF DEFAULT JUDGMENT
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The Federal Communications Act, 47 U.S.C. § 605 et seq., prohibits commercial
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establishments from intercepting and broadcasting to its patrons satellite cable programming. The
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Act allows an aggrieved party to bring a civil action in federal district court and permits that party
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to elect an award of either statutory or actual damages. See 47 U.S.C. § 605(e)(3)(C)(I). The
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statute allows the court to award between $1,000 and $10,000 for each violation of section 605 as
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personally served at 1:05 p.m. on 7/8/15 and is named as the third defendant in this case. See
Docket Nos. 14, 16.
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it considers just. Id. at § 605(e)(3)(C)(i)(II). The Court may increase its award by not more than
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$100,000 when the violation has been “committed willfully and for purposes of direct or indirect
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commercial advantage or private financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff’s
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application for default judgment contends that defendants’ violation of 47 U.S.C. § 605 et seq. was
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willful and that this Court should enter default judgment in the amount of the statutory maximum,
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$110,000 plus $2,200 for conversion damages. Docket No. 27-5.
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I will not award plaintiff the statutory maximum. The allegations in a complaint regarding
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the monetary amount of damages that should be granted in a default judgment are not controlling,
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and “the mere assertion that defendants acted willfully is insufficient to justify enhanced
damages.” Kingvision Pay-Per-View Ltd. v. Backman, 102 F. Supp. 2d 1196, 1198 (N.D. Cal.
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United States District Court
Northern District of California
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2000). Courts that have awarded enhanced damage awards due to willful violations of the
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Communications Act have cited such factors as the repeated violation of the Act, the intent to
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profit from the violations, and actual profit derived from the violation. Id. at 1197-98. Plaintiff’s
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papers do not disclose whether defendants advertised the broadcast and plaintiff’s affiant did not
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pay a cover charge to enter defendants’ establishment. According to the affidavit of Ms. Poblete,
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the capacity of defendant’s establishment is “65+” people, and during three separate head counts
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only 21 - 29 patrons were present.
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Further, Ms. Poblete does not state that she saw any of the boxing in the Program. She
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only saw event commentary prior to an undercard bout. Finally, while Ms. Poblete states that
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there were 5 televisions in the restaurant, she does not state that the Program was broadcast on all
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five televisions, nor does she state on how many televisions she observed the Program.
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“Courts in this district have considered several cases involving pirating of closed-circuit
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sports broadcasts and, absent a showing of egregious wrongdoing, generally have awarded
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damages slightly over the statutory minimum.” Universal Sports Network v. Jimenez, No. C–02–
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2768–SC, 2002 WL 31109707, at *1 (N.D. Cal. Sept. 18, 2002). The Court finds that an enhanced
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damage award is not warranted under the statute. Under 47 U.S.C. § 605(e)(3) the Court may
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award statutory damages between $1,000 and $10,000 for a violation of the Act. Based on the
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facts alleged – including the fact that the license fee was $2,200, the establishment did not charge
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a cover fee, the absence of allegations that defendants are repeat offenders or that defendants
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advertised the program, and the fact that there were not many patrons – I find that an award of
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$2,200 is appropriate.
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Plaintiff also requests default judgment on its state law claim of conversion. I find that the
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statutory damages in the amount of $2,200 sufficiently compensates plaintiff, and this case does
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not present a set of circumstances where an additional award might be warranted. Further,
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plaintiff’s conversion claim raises what one judge in the Eastern District of California has called
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“the thought-provoking question of whether an interest in intangible property such as an exclusive
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license to distribute a broadcast signal is the proper subject of a claim of conversion under
California law.” See J & J Sports Productions, Inc. v. Hernandez, No. 09-CV-3389 GEB KJN,
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United States District Court
Northern District of California
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2010 WL 1980186, *6 n.12 (E.D. Cal. May 17, 2010). California state and federal courts have
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reached varying conclusions. Compare, e.g., Fremont Indem. Co. v. Fremont Gen. Corp., 148 Cal.
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App. 4th 97, 119 (Ct. App. 2007) (noting California courts’ traditional refusal to recognize as
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conversion the unauthorized taking of intangible interests not merged with or reflected in
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something tangible), with DIRECTV, Inc. v. Pahnke, 405 F. Supp. 2d 1182, 1189 (E.D. Cal. 2005)
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(observing that courts have relaxed tangibility requirement, and granting summary judgment for
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conversion of satellite broadcast programming) and Don King Prods./Kingvision v. Lovato, 911 F.
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Supp. 419, 423 (N.D. Cal. 1995) (finding that plaintiff’s exclusive rights to distribute program in
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California qualified as right to possession of property under conversion claim).
CONCLUSION
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For the foregoing reasons, I DENY defendants’ motion to quash and to vacate and
GRANT plaintiff’s motion for default judgment, awarding $2,200 to plaintiff.
IT IS SO ORDERED.
Dated: October 16, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
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