Opinion
For J & J Sports Productions Inc, Plaintiff: Thomas P Riley, LEAD ATTORNEY, Law Offices of Thomas P Riley PC, South Pasadena, CA.
For Sandra Vega, individually and doing business as El Ranchito, Defendant: Kourosh M Pourmorady, Kourosh M Pourmorady Law Offices, Los Angeles, CA.
PROCEEDINGS: (IN CHAMBERS:) PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [#14]
William Keller, United States District Judge.
I. INTRODUCTION
Plaintiff J & J Sports Productions, Inc. moves for summary judgment as to Counts I and/or II, and Count III against defendant Sandra Vega, individually and d/b/a El Ranchito (hereinafter " defendant"). Plaintiff also seeks damages in the amount of $50,600.00. The Court has considered the papers filed in support of and in opposition to the motion, and deems the matter appropriate for resolution without oral argument. See Local Rule 7-15.
Upon review, the Court GRANTS summary judgment on Counts I and III in favor of plaintiff.
II. BACKGROUND
Plaintiff is a commercial distributor and licensor of sporting events. (Compl. ¶ 16, Joseph M. Gagliardi Affidavit, ¶ 3.) Plaintiff was granted the exclusive nationwide commercial distribution rights to the Manny Pacquiao v. Juan Manuel Marquez, IV Welterweight Fight Program (hereinafter " the program"), which was broadcast on Saturday, December 8, 2012. (Id. ¶ 14, Id. )
Defendant is an owner and/or operator of the commercial establishment doing business as El Ranchito. (Compl. ¶ 7.) On Saturday, December 8, 2012, the evening that the program was displayed, plaintiff's investigator Adam Kim observed the program exhibited at El Ranchito. (Declaration of Affiant.) The program included the main event prizefight as well as fight commentary and under-card bouts. (Compl. ¶ 14, Gagliardi Aff., ¶ 3.)
Plaintiff alleges four counts against defendant: (I) a violation of Title 47 U.S.C. § 605, which prohibits the unauthorized interception and publication or use of radio communications, including satellite broadcasts; (II) a violation of Title 47 U.S.C. § 553, which prohibits unauthorized interception of cable communications; (III) conversion; and (IV) a violation of California Business and Professions Code Section 17200, et seq. ( See generally Compl.) Plaintiff moves for summary judgment as to Counts I and/or II and III.
III. LEGAL STANDARD
Summary judgment is appropriate where " there is no genuine dispute as to any material fact" and " the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials beyond the pleadings, that demonstrate that there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. The nonmoving party must not simply rely on the pleadings and must do more than make " conclusory allegations [in] an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). See also Celotex Corp., 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Abromson v. American Pacific Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, " the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.
IV. DISCUSSION
A. Violation of Title 47 U.S.C. § 605
Plaintiff's first claim is for violation of 47 U.S.C. § 605, which prohibits the unauthorized interception and publication or use of radio communications, including satellite broadcasts. (Compl. at ¶ ¶ 13-22.) To state a claim under 47 U.S.C. § 605, plaintiff must allege that defendant " (1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by the plaintiff." California Satellite Systems v. Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985). Section 605 provides:
. . . No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information contained therein) for his own benefit or for the benefit of another not entitled thereto . . .
The language of § 605 refers to " radio" communications which courts have interpreted to include satellite transmissions. Kingvision Pay Per View, Ltd. v. Williams, 1 F.Supp.2d 1481, 1484 (S.D. Ga. 1998).
The defendant argues that, " [i]n order to prevail on a § 605 or § 553 claim the plaintiff must prove that defendants 'intercepted' the signal ..." Opp'n at 3-4. The plaintiff contends that, according to the Ninth Circuit, section 605 prohibits not only the interception of signals but also the " 'divulg[ing] or publish[ing]' of information gleaned from unauthorized signal reception, or otherwise using that information for one's 'own benefit or for the benefit of another not entitled thereto.'" Reply at 9 quoting DirecTV, Inc. v. Webb, 545 F.3d 837, 848 (9th Cir. 2008) quoting 47 U.S.C. § 605(a). This Court agrees with the plaintiff and finds the Ninth Circuit's holding dispositive.
On Saturday, December 8, 2012, the evening that the program was displayed, plaintiff's investigator Adam Kim observed the program exhibited at El Ranchito. (Declaration of Affiant.) The commercial distribution rights to the program had been conferred exclusively to plaintiff. (Compl. ¶ 14, Gagliardi Aff., ¶ 3.) In addition, courts have interpreted both § 605 and § 553 to be strict liability statutes. 47 U.S.C. § 605(e)(3)(C)(iii) states, " [i]n any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250." In International Cablevision, Inc. v. Sykes, the Second Circuit discusses the legislative intent behind this subsection:
Subsection (C)(iii) also embodies the recognition that in those rare situations in which a violator of subsection (a) had absolutely no reason to believe that his acts constituted a violation of the law, the court may reduce the award to $100. It is not intended that this provision serve in any way as a defense to a determination of liability under subsection (a), but rather only as a provision to be exercised in the court's discretion for those rare instances of ignorance of the law on the part of one adjudged to have violated it. International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1004 (2nd Cir. 1993) citing 130 Cong.Rec 31, 875 (1984) (Statement of Sen. Bob Packwood; emphasis added) (codified at 47 U.S.C. § 605(e)(3)(C)(iii) (1988)) ($100 minimum provided by 1984 Act for violation of § 605 increased to $250 in 1988).
Other courts have been similarly persuaded. See J& J Sports Productions, Inc. v. Delgado, 2012 WL 371630, *3 (E.D.Cal. Feb. 3, 2012); Don King Productions/ Kingvision v. Lovato, 1996 WL 682006, *3 (N.D.Cal. Nov. 15, 1996); see also Doherty v. Wireless Broadcasting Systems of Sacramento, Inc. 151 F.3d 1129, 1131 (9th Cir.1998) (" The remedial provisions in both Sections 553 and 605 take into consideration the degree of the violator's culpability and provide for reduced damages in those instances where the violator was unaware of the violation."). Accordingly, the defendant's statements that " he [sic] did not intercept a signal, he did not authorize interception, and he was not aware of interception" do not vitiate a finding of liability. Opp'n at 6 citing Decl. of Sandra Vega. Therefore, the Court GRANTS summary judgment as to Count I.
B. Violation of Title 47 U.S.C. § 553
Plaintiff's second claim is for violation of 47 U.S.C. § 553, which prohibits unauthorized interception of cable communications. (Compl. at ¶ ¶ 23-27.) Specifically, section 553 prohibits a person from " intercept[ing or receiv[ing] or assist[ing] in intercepting or receiving any communications service offered over a cable system." Cases involving violations via cable broadcast are governed by § 553 while communications received via satellite broadcast are governed by § 605. Joe Hand Promotions, Inc. v. Kennedy, 2012 WL 832543, * 4 (N.D.Ohio March 9, 2012). Also, " Courts have generally held that a Plaintiff may not receive damages under both 47 U.S.C. § 605 and 553, for the same alleged interception or receipt of protected communications." Id. Here, plaintiff alleges that the defendant received the program at El Ranchito using satellite service. (Mot. at 7 citing Defendant's Responses to Requests for Admissions 23, 25; see also DirecTV, Inc. v. Webb. 545 F.3d 837, 844 (9th Cir. 2008).) Because the Court finds liability under § 605, the Court DISMISSES Count II sua sponte as moot.
C. Conversion
Plaintiff's third claim alleges that defendant committed the tort of conversion. (Compl. at ¶ ¶ 28-31.) To state a claim for conversion under California law, a plaintiff must allege: (1) ownership or right to possession of property; (2) defendant's wrongful disposition of the property right; and (3) damages. G.S. Rasmussen & Assocs. v. Kalitta Flying Service, Inc., 958 F.2d 896, 906 (9th Cir. 1992).
The defendant states that, " Defendant's evidence indicates that he did not intercept a communication signal or otherwise intentionally commit any act in order to exhibit the Program." Opp'n at 7. As plaintiff correctly points out, however, " the Defendant's legal conclusions in her Declaration is [sic] not evidence." Reply at 11; 10 citing Fed.R.Civ.P. 56(c)(4). The defendant also argues that " [b]ecause plaintiff cannot recover for its claim for statutory TV signal piracy ... it also cannot recover on its claim for conversion." Opp'n at 7. While the Court does not reach the merits of this argument, it is moot based upon the Court's finding of liability under 47 U.S.C. § 605, discussed supra.
Further, plaintiff has shown that it was granted the exclusive commercial distribution rights to the program. (Compl. ¶ 14, Gagliardi Aff., ¶ 3.) Plaintiff has also established that the defendant failed to purchase a commercial license to authorize the lawful exhibition of the program at El Ranchito. (Gagliardi Aff., ¶ ¶ 3; 7.) Lastly, plaintiff has alleged that it is entitled to compensatory, punitive and exemplary damages. (Complaint at ¶ 31; 9-10.) Thus, the Court GRANTS summary adjudication as to Count III.
D. Violation of California Business and Professions Code § 17200, et seq .
In view of the foregoing rulings by the Court and plaintiff's failure to move for summary adjudication as to this count, it appears that the remaining claim is effectively mooted. Thus, the Court DISMISSES Count IV.
E. Damages
The defendant argues that in the event summary judgment is granted as to liability, she is entitled to a jury trial on the issue of damages. Opp'n at 11-19. For the reasons stated by the plaintiff, the Court finds that the defendant is not entitled to a separate jury trial on the issue of damages. See Reply at 14-15 citing In re Slatkin, 525 F.3d 805, 811 (9th Cir, . 2008), citing Fid. & Deposit Co., of Md. v. United States, 187 U.S. 315, 319-21, 23 S.Ct. 120, 47 L.Ed. 194 (1902); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 42(b).
Pursuant to § 605(e)(3), an aggrieved party may recover " statutory damages for each violation of subsection (a) . . . in a sum not less than $1,000 or more than $10,000, as the court considers just." 47 U.S.C. § 605(e)(3)(C)(i)(II). Where the court finds that the violation was willful, " the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation . . ." 47 U.S.C. § 605(e)(3)(C)(ii). If the Court finds that the violator was unaware, " the court in its discretion may reduce the award of damages to a sum of not less than $250." 47 U.S.C. § 605(e)(3)(C)(iii).
Damages in the total amount of $8,800.00 are GRANTED against defendant. This award includes $2,200.00 in actual damages (the amount that defendant should have paid plaintiff to obtain a commercial sublicense for the programming based on an estimated seating capacity of 0 - 100 patrons), plus $6,600.00 in punitive damages based on willfulness, an amount that is equal to three times the actual damages. While it appears that the defendant is liable for the wrongful conversion of plaintiff's property, the Court declines to grant a duplicative damages award based on this additional theory of liability. See Tavaglione v. Billings, 4 Cal.4th 1150, 1158-59, 17 Cal.Rptr.2d 608, 847 P.2d 574 (Cal. 1993) (" Regardless of the nature or number of legal theories advanced by the plaintiff, he is not entitled to more than a single recovery for each distinct item of compensable damage supported by the evidence. . . . Double or duplicative recovery for the same items of damage amounts to overcompensation and is therefore prohibited."). Pursuant to Local Rules 54-10 and 54-11 plaintiff may submit its motion for costs and attorneys' fees within fourteen (14) days of the date of this order.
The Court has determined that the proper measure of punitive damages based on willfulness is an amount equal to a multiple of actual damages. For guidance, the Court looks to statutes that grant punitive damages as a multiple of actual damages. See, e.g., 15 U.S.C. § 15 (Antitrust)(treble damages); 18 U.S.C. § 1964(c) (Racketeer Influenced and Corrupt Organizations Act)(treble damages); 18 U.S.C. § 2318 (Trafficking Counterfeit Labels)(treble damages); 35 U.S.C. § 284 (Patent Infringement)(treble damages).
V. CONCLUSION
In accordance with the foregoing, the Court GRANTS summary adjudication on liability for Counts I and III in favor of plaintiff, DISMISSES Counts II and IV, and GRANTS damages in favor of plaintiff in the total amount of $8,800.00. Plaintiff may submit its motion for costs and attorneys' fees within fourteen (14) days.
IT IS SO ORDERED.
JUDGMENT
Judgment is hereby entered in favor of plaintiff J & J Sports Productions, Inc. and against defendant Sandra Vega, individually and d/b/a El Ranchito, upon the Court's grant of summary judgment in favor of plaintiff.
IT IS HEREBY ORDERED AND ADJUDGED:
1. Defendant Sandra Vega, individually and d/b/a El Ranchito, shall pay the plaintiff, J & J Sports Productions, Inc., $8,800.00 in total damages.
IT IS FURTHER ORDERED that the Plaintiff shall serve, by United States mail or by telefax or by email, copies of this Judgment on counsel for the defendant or the pro se defendant in this matter.