G&G Closed Circuit Events, LLC v. Ho et al

Filing 19

Order by Hon. Edward J. Davila granting 15 Motion for Default Judgment.(ejdlc2, COURT STAFF) (Filed on 12/14/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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G & G CLOSED CIRCUIT EVENTS, LLC,
Plaintiff,

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v.
KIM HUNG HO, et al.,
Defendants.

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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT
[Re: Docket Item No. 15]

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Plaintiff G & G Closed Circuit Events, LLC (“Plaintiff”) moves for entry of default

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judgment in the amount of $111,600.00 against Defendant Kim Hung Ho, individually and d/b/a/

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Thao Café, and Defendant Jadelor Corporation, an unknown business entity d/b/a/ Thao Café

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(“Defendants”). Plaintiff seeks damages stemming from Defendant’s alleged violation of 47 U.S.C.

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§ 605(a) and conversion of Plaintiff's property. The Court has considered the moving papers

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Plaintiff's counsel has presented. For the reasons discussed below, the motion will be GRANTED.

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I. BACKGROUND

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A. Procedural history
Plaintiff filed the instant action on December 15, 2010. After Defendants were served with

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process and failed to respond, Plaintiff moved for entry of default and served the motion by mail.

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See ECF No. 12. The clerk entered default on April 19, 2011. Plaintiff moved for default judgment

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on May 19, 2011, and has provided proof of service indicating that a copy of the notice and
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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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application for default judgment were mailed to Defendants. See ECF No. 15. Defendants have not

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responded.

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B. Factual history

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Plaintiff is a distributor of sports and entertainment programming. It purchased the rights to

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broadcast Strikeforce: “Evolution:” Cung Le v. Scott Smith on December 19, 2009, including the

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main event, undercard bouts, televised replay, and color commentary (collectively, the “Program”).

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It then entered into sublicenses with third parties such as casinos, bars, and social clubs, allowing

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the sublicensees to exhibit the Program to their patrons. The Program was broadcast in interstate

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commerce by means of an encrypted transmission, and only Plaintiff's sublicensees were entitled to

United States District Court
For the Northern District of California

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decrypt that transmission.

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On the day of the broadcast, Gary Gravelyn (“Gravelyn”), an investigator hired by Plaintiff,

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observed an exhibition of the Program in Thao Café. Defendants were not a sublicensee entitled to

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exhibit the Program. Gravelyn entered the premises without paying a cover charge and observed

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the Program on eight or more televisions. Decl. of Affiant at 2. Between 9:10 p.m. and 9:12 p.m.,

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he performed two headcounts, noting the presence of 25, 28, and 28 people by each respective

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count. Id. at 2-3. The declaration indicates the capacity of Thao Café as 100 and that Gravelyn did

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observe a satellite dish and did not observe a cable box. Id. at 2.

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II. DISCUSSION
The Federal Communications Act of 1934, 47 U.S.C. § 605 et seq. prohibits commercial

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establishments from intercepting and broadcasting satellite cable programming without a license. It

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provides a private right of action in federal court. Plaintiffs may request that courts award actual or

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statutory damages between $1,000 and $10,000 for each violation of section 605. 47 U.S.C. §

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605(e)(3)(C)(i). Damages of up to $100,000 may be awarded for willful violations. 47 U.S.C. §

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605(e)(3)(C)(ii).

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“[U]pon default the factual allegations of the complaint, except those relating to the amount

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of damages, will be taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)

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(citing Pope v. United States, 323 U.S. 1 (1944); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.

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1974)). Plaintiff seeks damages pursuant to § 605, which “requires proof that a defendant has ‘(1)
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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or

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publishing of, a communication transmitted by the plaintiff.’ ” California Satellite Systems v.

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Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985) (citing National Subscription Television v. S & H

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TV, 644 F.2d 820, 826 (9th Cir. 1981)).

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Plaintiff alleges in its complaint that it transmitted the Program, that Defendants unlawfully

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intercepted the Program, and that Defendants exhibited the Program. Compl. ¶¶ 9-15. Plaintiff

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seeks $10,000 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II), $100,000 in

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enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii), and $1,600 in damages for conversion.

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A. Statutory damages pursuant to 47 U.S.C. § 605(e)(3)

United States District Court
For the Northern District of California

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Under 47 U.S.C. § 605(e)(3), the Court may award statutory damages between $1,000 and

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$10,000 for a violation of the Act. Plaintiff has presented evidence of the capacity of the

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establishment as one hundred. The establishment served twenty-five, twenty-eight, and twenty-

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eight persons during Kaplan’s headcounts, and the Program was shown on eight televisions. The

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Court finds that an award of $6,000 is sufficient under the circumstances.

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B. Enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii)

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47 U.S.C. § 605(e)(3)(C)(ii) provides for an enhanced damage award of up to $100,000

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when “a violation was committed willfully and for purposes of direct or indirect commercial

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advantage or financial gain.” 47 U.S.C. 605(e)(3)(C)(ii). Plaintiff alleges that Defendants’

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interception of the program was willful and for purposes of commercial advantage or private gain.

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Compl. ¶ 14. “Courts in this district have considered several cases involving pirating of closed-

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circuit sports broadcasts and, absent a showing of egregious wrongdoing, generally have awarded

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damages slightly over the statutory minimum.” J & J Sports Productions, Inc. v. Basto, et al., No. C

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10-1803, 2011 WL 566843, at 2 (N.D.Cal. Feb. 14, 2011) (citing Universal Sports Network v.

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Jimenez, 2002 WL 31109707, at *1 (N.D.Cal. Sept.18, 2002)).

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Plaintiff has brought to the attention of the Court two other cases in which similar conduct

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is alleged against Defendants: 5:11-CV-1163 LHK and 5:10-CV-1883 LHK. Case number 5:11-

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CV-1163 LHK pertains to events that occurred after the events at issue in this case, and the case is

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still pending. It therefore is not particularly probative of the Defendant’s wilfulness or purpose
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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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during the events at issue here. Case No. 5:10-CV-1883 LHK, however, pertains to conduct prior

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to the events that give rise to the current action. Furthermore, Judge Koh granted default judgment

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against Defendant Kim Hung Ho, individually and doing business as Thao Café, and awarded

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$13,200 in damages. The court notes that, in this prior case, the program was shown on more

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television sets and more people were present in the establishment. Decl. of Affiant at 1-2 J & J

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Sports Prods., Inc. v. Ho, No. 10–CV–01883–LHK (N.D. Cal. Sept. 1, 2010), ECF No. 15-3.

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Here, there was no cover charge, the establishment was filled to less than half-capacity, and
it is unclear whether Defendant made a profit. In light of the large number of television sets and

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evidence that Defendant Kim Hung Ho is a repeat offender, however, the Court concludes that this

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United States District Court
For the Northern District of California

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is an appropriate situation for the Court to exercise its discretionary authority to impose enhanced

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damages. The Court finds that an award of $1,000 is sufficient under the circumstances.

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C. Costs and Fees pursuant to 47 U.S .C. § 605(e)(3)(b)(iii)
Costs and reasonable attorney’s fees are recoverable under 47 U.S .C. § 605(e)(3)(B)(iii).

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Plaintiff's counsel seeks recovery of fees and costs, but did not attach an affidavit of attorney's fees

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and costs to the motion for default judgment. See Notice of Application ¶ 6, ECF No. 15.

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Accordingly, Plaintiff's counsel shall submit curriculum vitae or resume, billing and cost records,

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and other documents supporting his request for reasonable attorney's fees and costs by January 20,

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2012.

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D. Damages for Conversion

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As a result of Defendants’ default, the facts alleged in the pleadings are sufficient to

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establish that Defendants wrongfully denied Plaintiff ownership of the right to control the

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exhibition of the Program and therefore are sufficient to establish that Defendants are liable for the

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tort of conversion. See Culp v. Signal Van & Storage, 142 Cal. App. 2d Supp. 859, 862 (App. Div.

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1956). Pursuant to Cal. Civ. Code § 3336, Defendants are liable for the value of the property at the

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time of the conversion. Accordingly, Plaintiff is entitled to recover the sublicensing fee of $1,600.

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III. CONCLUSION
Plaintiff's motion is granted. Plaintiff shall recover $6,000 in statutory damages pursuant to
47 U.S.C. § 605(e)(3)(C)(i)(II), $1,000 in enhanced damages pursuant to 47 U.S.C. §
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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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605(e)(3)(C)(ii), attorney’s fees pursuant to 47 U.S .C. § 605(e)(3)(B)(iii), and $1,600 pursuant to

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Cal. Civ. Code § 3336. Plaintiff’s counsel shall submit documents supporting his request for

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reasonable attorney’s fees and costs no later than January 20, 2012.

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IT IS SO ORDERED.

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Dated:

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_________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 5:10-CV-05716 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT