J&J Sports Productions, Inc v. Jimenez

Filing 33

ORDER by Judge Lucy H. Koh granting 28 Motion for Default Judgment (lhklc4, COURT STAFF) (Filed on 10/1/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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J & J SPORTS PRODUCTIONS, INC.

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Plaintiff,
v.

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LUIS ALBERTO JIMENEZ, et al.,
Defendants.

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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT

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On April 27, 2012, the Clerk of the Court entered default against Defendants Phuc Dinh Le,
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individually and doing business as Cali Coffee a/k/a Cali Love Coffee & Restaurant, and Lebros
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Corporation, an unknown business entity doing business as Cali Coffee a/k/a Cali Love Coffee &
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Restaurant (collectively “Defendants”), after Defendants failed to appear or otherwise respond to
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the Summons and Complaint within the time prescribed by the Federal Rules of Civil Procedure.1

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ECF No. 27. Before the Court is Plaintiff J & J Sports Productions, Inc.’s (“Plaintiff’s”) motion
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for default judgment. ECF No. 28. Defendants, not having appeared in this action to date, have
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not filed an opposition. Having reviewed Plaintiff’s motion, the Court finds this matter appropriate
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for resolution without oral argument pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing
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On February 27, 2012, Plaintiff J & J Sports Productions, Inc. voluntarily dismissed without
prejudice Defendant Luis Alberto Jimenez pursuant to Federal Rule of Civil Procedure 41(a). ECF
No. 15.
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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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and case management conference set for October 4, 2012 are VACATED. For the reasons

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discussed below, the Court GRANTS Plaintiff’s application for default judgment.

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I. DISCUSSION
Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns

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commercial distribution rights to broadcast the closed-circuit program “Tactical Warfare”: Manny

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Pacquiao v. Antonio Margarito, WBC Light Middleweight Championship Fight (“the Program”),

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originally broadcast nationwide on Saturday, November 13, 2010. See Compl. ¶ 9. Plaintiff

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alleges that the Program was unlawfully intercepted and exhibited by Defendants at Defendants’

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commercial establishment located in San Jose, California. Id. at ¶ 12. On November 9, 2011,

United States District Court
For the Northern District of California

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Plaintiff filed this action for violation of the Federal Communications Act of 1934, as amended, 47

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U.S.C. §605 and 47 U.S.C. §553, as well as violations of California law against conversion and

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California Business and Professions Code §17200. In the pending motion for default judgment,

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however, Plaintiff only seeks damages under §605 and for conversion.

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Plaintiff requests $10,000.00 in statutory damages for violation of 47 U.S.C.

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§605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages for willful violation of 47 U.S.C.

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§605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $2,200.00, representing that

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this is the amount Defendants would have been required to pay had Defendants licensed the

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Program from Plaintiff. See Mem. of Points and Authorities in Support of Pl.’s App. for Default

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Judgment by the Court (“Pl. Mem.”) at 20. Once the Clerk of Court enters default, all well-

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pleaded allegations regarding liability are taken as true except as to the amount of damages. See

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Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Satisfied of its subject matter

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jurisdiction (federal statutes at issue) and personal jurisdiction (Defendants reside and do business

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in this district), the Court shall proceed to review Plaintiff’s motion for default judgment.

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A.

Damages under § 605
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Statutory Damages under Section 605(e)(3)(c)(i)(II)

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Section 605(e)(3)(c)(i)(II) provides that an aggrieved party may recover a sum of not less

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than $1,000 and not more than $10,000 for each violation of §605(a), as the Court considers just.

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“A traditional method of determining statutory damages is to estimate either the loss incurred by
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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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the plaintiff or the profits made by the defendants.” Joe Hand Promotions v. Kim Thuy Ho, No. C-

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09-01435 RMW (N.D. Cal. Sept. 18, 2009) (citing cases).

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Plaintiff has not submitted evidence as to what a properly purchased license would have

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cost. Plaintiff has, however, represents that damages for conversion should be $2,200.00, which

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Plaintiff represents is “the amount Defendant[s] would have been required to pay had he ordered

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the Program from Plaintiff.” Pl. Mem. at 20. This unsworn statement in Plaintiff’s briefing is not

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evidence. See United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). Alternatively, as to

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potential profits of Defendants, Plaintiff submits evidence that three separate head counts, at

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various times, revealed that the total number of patrons was 59, 60, and 60, and that there was no

United States District Court
For the Northern District of California

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cover charge. See Decl. of Affiant, attached to Appl. for Default Judgment. As there is no

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evidence of how much a commercial license would have cost Defendants, and no evidence of how

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much Defendants made during the unlawful exhibition of the Program, the Court awards the

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minimum statutory damages amount of $1,000.00.

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2.

Enhanced Damages Under Section 605(e)(3)(C)(ii)

Enhanced damages of up to $100,000.00 are available when the violation was committed

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willfully and for the purpose of commercial advantage or private financial gain. See 47 U.S.C.

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§605(e)(3)(C)(ii). In this case, there is no evidence that Defendant advertised the fight, charged a

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cover charge, or had a minimum purchase requirement. According to Plaintiff’s investigator,

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Defendant had five flat-screen televisions displaying the Program. See Decl. of Affiant at 1.

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However, the Plaintiff’s investigator also describes the Defendants’ commercial establishment as a

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“coffee lounge with video games at the tables,” suggesting that the Program was not the only

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entertainment offered to patrons. Id. Plaintiff also submits that the broadcast was encrypted and

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subject to distribution rights, and thus “Defendants must have undertaken specific wrongful actions

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to intercept and/or receive and broadcast the encrypted telecast.” Pl. Mem. at 9. This unsworn

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statement in Plaintiff’s briefing is not evidence. See Zermeno, 66 F.3d at 1062. However, the

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uncontroverted allegations in the complaint allege that Defendants unlawfully intercepted and

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exhibited the Program “[w]ith full knowledge that the Program was not to be intercepted . . . and/or

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exhibited.” Compl. ¶ 12. The Complaint also alleges that Defendants acted “willfully and for
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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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purposes of direct and/or indirect commercial advantage and/or private financial gain.” Compl. ¶

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13. These uncontroverted allegations, taken together with the declaration of Plaintiff’s

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investigator, do suggest that Defendants acted willfully for commercial advantage and private

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financial gain.

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Given all these facts, the $100,000.00 maximum damages available are not warranted.

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Courts in the Northern District of California have found relatively modest enhancements proper

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when the case involved a limited number of patrons but the establishment charged a cover charge.

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See, e.g., Garden City Boxing Club, Inc. v. Lan Thu Tran, 2006 U.S. Dist. LEXIS 71116, at *5-6

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(N.D. Cal. Sept. 20, 2006) (Whyte, J.) (awarding $1,000.00 in statutory damages and $5,000.00 in

United States District Court
For the Northern District of California

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enhanced damages when 40 patrons were present and a $10.00 cover charge was imposed). In

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cases involving a limited number of patrons and no cover charge, a lower enhancement is

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appropriate. See Joe Hand Promotions, Inc. v. Que Thi Nguyen, 2012 WL 4370228 at *2 (N.D.

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Cal., September 24, 2012) (Koh, J.) (awarding $1,000.00 in statutory damages and $3,000.00 in

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enhanced damages when 50 patrons were present, the program was shown on nine televisions, and

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no cover charge was imposed). Here, there was no cover charge, there were at height 60 patrons

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present, and the Program was shown on five televisions. Under these circumstances, the Court

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views $3,000.00 as a reasonable enhancement. Accordingly, the Court finds Plaintiff entitled to

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$3,000.00 in enhanced damages.

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B.

Damages for Conversion

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Plaintiff also seeks $2,200.00 in damages for conversion under California Civil Code

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§ 3336. The elements of conversion are: (1) ownership of a right to possession of property; (2)

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wrongful disposition of the property right of another; and (3) damages. See G.S. Rasmussen &

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Assoc. v. Kalitta Flying Serv., 958 F.2d 896, 906 (9th Cir. 1992). Here, Plaintiff alleges ownership

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of the distribution rights to the Program, misappropriation of those rights by Defendants’ unlawful

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interception, and “severe economic distress and great financial loss.” See Compl. ¶¶ 23-26.

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Damages for conversion are based on the value of the property at the time of conversion. See

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Arizona Power Corp. v. Smith, 119 F.3d 888, 890 (9th Cir. 1941). Plaintiff, however, has

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submitted no evidence whatsoever as to the actual amount of damages sustained, or to the value of
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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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the property Defendants allegedly converted. The only indication of Plaintiff’s amount of loss is

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Plaintiff’s unsworn statement that the license would have cost $2,200.00. Pl. Mem. at 20. This

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statement in Plaintiff’s briefing is not evidence. See Zermeno, 66 F.3d at 1062. Without any

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evidence as to the loss Plaintiff has sustained, the Court cannot determine a reasonable amount of

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damages. Accordingly, the Court does not award any additional damages for conversion.

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II. ORDER
For the reasons detailed above, Plaintiff’s application for default judgment is GRANTED.
Judgment shall be entered in favor of Plaintiff J & J Sports Productions, Inc. and against

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Defendants Phuc Dinh Le, individually and doing business as Cali Coffee a/k/a Cali Love Coffee

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United States District Court
For the Northern District of California

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& Restaurant, and Lebros Corporation, an unknown business entity doing business as Cali Coffee

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a/k/a Cali Love Coffee & Restaurant, in the amount of $4,000 in total damages. The Clerk shall

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close the file.

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IT IS SO ORDERED.

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Dated: October 1, 2012

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_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-5435-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT