-SKO Joe Hand Promotions, Inc. v. Sorondo et al, No. 1:2011cv00631 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 13 Plaintiff's motion for default judgment be GRANTED; Judgment be entered in this action against Defendants Steven Castanon Sorondo, individually and dba The Lamp Post Bar, and Starden, Inc. dba The Lamp Post Bar as follows: a) $10,000 statutory damages for violation of 47 U.S.C. § 605; b) $ 2,000 enhanced statutory damages for violation of 47 U.S.C. § 605; and c) $900 for the tort of conversion. Matter referred to Judge O'Neill; Objections due withing fifteen (15) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 9/9/2011. (Timken, A)
Download PDF
<![CDATA[
-SKO Joe Hand Promotions, Inc. v. Sorondo et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOE HAND PROMOTIONS, INC., 12 13 CASE NO. 1:11-cv-00631-LJO-SKO Plaintiff, FINDINGS AND RECOMMENDATIONS ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT v. 14 15 16 STEVEN CASTANON SORONDO, individually and dba THE LAMP POST BAR; STARDEN, INC., an unknown business entity dba THE LAMP POST BAR, (Docket No. 13) OBJECTIONS DUE WITHIN 15 DAYS 17 Defendants. 18 / 19 20 I. INTRODUCTION 21 On August 8, 2011, Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”) filed the present motion 22 for default judgment against Defendants Steven Castanon Sorondo, individually and dba The Lamp 23 Post Bar, and Starden, Inc., an unknown business entity dba The Lamp Post Bar (“Defendants”). 24 (Doc. 13.) The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 25 Rule 302. Pursuant to Local Rule 230(g), the Court finds this matter is suitable for decision without 26 a hearing; the hearing set for September 14, 2011, is VACATED and the motion is submitted upon 27 the record. For the reasons set forth below, the Court RECOMMENDS that Plaintiff’s motion for 28 default judgment be GRANTED. Dockets.Justia.com 1 2 II. FACTUAL BACKGROUND 3 Plaintiff filed this civil action on April 20, 2011. (Doc. 1.) The complaint alleges violations 4 of 47 U.S.C. §§ 605 and 553, as well as causes of action for conversion and for violation of 5 California Business and Professions Code section 17200, et. seq. The suit is based on Defendants’ 6 alleged unlawful interception, receipt, and exhibition of “World Extreme Cagefighting: Jose Aldo 7 v. Urijah Faber” (the “Program”), including all under-card bouts and fight commentary, that was 8 telecast nationwide on April 24, 2010. (Doc. 1, ¶¶ 10, 13.) According to the complaint, Plaintiff 9 was the exclusive commercial distributor of the Program. (Doc. 1, ¶ 10.) 10 Count I of the complaint asserts a violation of 47 U.S.C. § 605 (Unauthorized Publication 11 or Use of Communications) alleging that Defendants knowingly intercepted, received, and exhibited 12 the Program for purposes of direct or indirect commercial advantage or private financial gain. (Doc. 13 1, ¶¶ 9-18.) Plaintiff seeks $100,000 in statutory damages as well as attorney’s fees and costs. (Doc. 14 1, ¶ 18.) Count II alleges a violation of 47 U.S.C. § 553 (Unauthorized Reception of Cable Services) 15 based upon the same allegations. (Doc. 1, ¶¶ 19-23.) Plaintiff requests $50,000 in statutory 16 damages, as well as attorney’s fees and costs. (Doc. 1, ¶ 23.) Count III states a claim for conversion 17 alleging that Defendants tortiously obtained possession of the Program and wrongfully converted 18 it for their own benefit. (Doc. 1, ¶¶ 24-27.) As to Count III, Plaintiff seeks compensatory damages, 19 exemplary damages and punitive damages. (Doc. 1, ¶ 26.) Count IV of the complaint alleges a 20 violation of California Business & Professions Code § 17200, et. seq. (Doc. 1, ¶¶ 28-37.) As to 21 Count IV, Plaintiff seeks restitution, declaratory relief, injunctive relief, attorney’s fees, and costs 22 of suit. (Doc. 1, ¶¶ 36-37.) 23 On July 7, 2011, the summonses as to Steven Castanon Sorondo and Starden, Inc. were 24 returned showing that service of the summonses and complaint was effected on June 7, 2011. (Docs. 25 5, 6.) 26 Plaintiff’s request, the Clerk entered default against Defendants. (Doc. 11.) On August 8, 2011, 27 Plaintiff filed this motion for default judgment against Defendants. (Doc. 13.) Defendants did not 28 oppose the motion. Neither Defendant filed a response to the complaint, and on July 15, 2011, pursuant to 2 1 2 III. DISCUSSION A. Legal Standard 3 Federal Rule of Civil Procedure 55(b)(2) provides that judgment may be entered as follows: 4 By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals–preserving any federal statutory right to a jury trial–when, to enter or effectuate judgment, it needs to: 5 6 7 8 (A) (B) (C) (D) 9 10 conduct an accounting; determine the amount of damages; establish the truth of any allegation by evidence; or investigate any other matter. 11 Upon default, the well-pleaded allegations of the complaint relating to liability are taken as 12 true. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987); Dundee Cement Co. 13 v. Highway Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). 14 “Factors which may be considered by courts in exercising discretion as to the entry of a 15 default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 16 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; 17 (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 18 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 19 decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 20 B. Analysis 21 Service of the summonses and complaint in this action was effected on June 7, 2011. Copies 22 of the Proofs of Service were filed with this Court on July 7, 2011. (Docs. 5, 6.) Defendants failed 23 to respond to the complaint or otherwise appear in the action. The Clerk of the Court entered default 24 against Defendants on July 19, 2011. Defendants are not infants or incompetent persons, and are not 25 in the military service or otherwise exempted under the Soldiers’ and Sailors’ Civil Relief Act of 26 1940. (Doc. 13-2, ¶ 3.) 27 In its motion, Plaintiff seeks default judgment and an award of damages pursuant to 28 47 U.S.C. § 605(e)(3)(C)(i)(II) (statutory damages) and 47 U.S.C. § 605(e)(3)(C)(ii) (enhanced 3 1 statutory damages) in the amount of $110,000 against Defendants for unlawfully intercepting, 2 receiving, and exhibiting the Program on April 24, 2010. Plaintiff also seeks damages in the amount 3 of $900 for its state law conversion claim. 4 1. Statutory Damages Pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) and Enhanced Statutory Damages Pursuant to 47 U.S.C. § 605(e)(3)(C)(ii) 5 Plaintiff seeks statutory damages pursuant to 47 U.S.C. § 605(e)(C)(i)(II) and enhanced 6 statutory damages pursuant to Section 605(e)(3)(C)(ii). (Doc. 13-1, 6:14-14:15.) Pursuant to 7 Section 605(a), “no person receiving, assisting in receiving, transmitting, or assisting in transmitting, 8 any interstate or foreign communication by wire or radio shall divulge or publish the existence, 9 contents, substance, purport, effect, or meaning thereof, except through authorized channels of 10 transmission of reception. . . .” Those who violate this Section are subject to the following civil 11 penalty: 12 13 14 15 16 [T]he party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4)1 of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just. 47 U.S.C. § 605(e)(3)(C)(i)(II). 17 Plaintiff attests that it is a closed-circuit distributor of sports and entertainment programming 18 that purchased and retained the exclusive commercial exhibition licensing rights to the Program. 19 (Doc. 13-4, ¶ 3.) Plaintiff marketed the sub-licensing (commercial exhibition) rights in the Program 20 to its commercial customers. (Id.) Plaintiff contends that persistent signal piracy of its programming 21 costs the company, its customers, and the community millions of dollars annually. (Id. at ¶ 12.) 22 Plaintiff believes that the continued signal piracy is caused, in part, from the perceived lack of 23 consequences (including nominal or minimal damage awards by the courts who hear its cases) for 24 such unlawful interception and exhibition by the commercial signal pirates. (Id.) As such, Plaintiff 25 requests that it be awarded the maximum allowance for statutory violations, totaling $10,000. 26 27 28 1 Paragraph 4 relates to persons who manufacture, assemble, modify, import, export, sell, or distributed any device or equipment knowing that the equipment is primarily of assistance in the unauthorized description of satellite cable programming. Plaintiff does not assert that Paragraph 4 is applicable in this case. 4 1 Plaintiff contends that significant enhanced statutory damages should be awarded under 2 Section 605(e)(3)(C)(ii) because Defendants’ actions were willful and done for a commercial 3 advantage. Section 605(e)(3)(C)(ii) provides that where “the court finds that the violation was 4 committed willfully and for purposes of direct or indirect commercial advantage or private financial 5 gain, the court in its discretion may increase the award of damages, whether actual or statutory, by 6 an amount of not more than $100,000 for each violation of subsection (a) of this section.” Plaintiff 7 also asserts that Defendants are repeat offenders, as another suit for signal piracy is pending against 8 them in this district, and this too warrants significant enhanced statutory damages. (Doc. 13-5.) 9 Emphasizing the need for deterrence as to these Defendants and others, Plaintiff requests that it be 10 awarded $100,000 in enhanced statutory damages. 11 Here, the summons and the complaint were properly served upon Defendants, their defaults 12 were properly entered, and the complaint is sufficiently well-pled. See Eitel, 782 F.2d at 1471-72. 13 By default, Defendants admitted to willfully violating Section 605 for the purposes of commercial 14 advantage. See TeleVideo Sys., Inc., 826 F.2d at 917-18. The facts before the Court indicate that 15 Defendants’ establishment had an approximate capacity of 50 people. (Doc. 13-3.) Dominique 16 Vargas, Plaintiff’s investigator, noted that there were three television sets in the establishment on 17 the night the Program was broadcast: two 36-inch flat screen televisions and one television was 18 mounted on the wall at the end of the bar. (Id.) Vargas conducted three head-counts, with twenty 19 people in the first count, twenty-five people in the second count, and twenty-five people in the last 20 count. (Id.) 21 The amount of damages awarded should be in an amount that is adequate to deter these 22 Defendants and others from committing similar acts in the future. Therefore, the Court recommends 23 that the maximum allowable statutory damages be awarded pursuant to 47 U.S.C. 24 § 605(e)(3)(C)(i)(II) in the amount of $10,000. 25 With regard to enhanced statutory damages, several factors weigh against a substantial 26 amount of enhanced statutory damages. There is no evidence that Defendants (1) advertised the 27 broadcast of the Program to entice a larger crowd, (2) charged a cover to enter the establishment, or 28 (3) charged a premium for food and drinks on the night the broadcast was shown. Further, the 5 1 headcounts during the Program indicate approximately twenty-five people were present in the 2 establishment. (Doc. 13-3.) Moreover, there is no evidence that Defendants’ resources are such that 3 a large award of enhanced damages is necessary for deterrence. 4 Plaintiff contends that the courts have placed undue weight on the promotion of the program 5 rather than the exhibition of the program, arguing that pirates do not generally advertise that they will 6 exhibit programming unlawfully, increase the price of food and drinks, or charge a cover so as to 7 undercut establishments who do broadcast the program lawfully. (Doc. 12-4, ¶¶ 14-17.) The Court 8 finds that there is an impact based on Defendants’ conduct and some amount of enhanced damages 9 should be awarded to produce the appropriate deterrent effect. 10 The Court is also mindful that minimal damage awards may result in a perceived lack of 11 consequences for signal piracy. (See Doc. 13-4, ¶¶ 11-13.) Additionally, Defendants appear to be 12 repeat offenders who are being sued for other acts of piracy in a separate case pending before the 13 Eastern District. (Doc. 13-5); see J & J Sports Productions, Inc. v. Sorondo, et al., 1:11-cv-00411- 14 AWI-SMS (“Sorondo”). In Sorondo, 1:11-cv-00411-AWI-SMS, Defendants are being sued by 15 J & J Sports Productions, Inc. for wrongful exhibition of “The Event”: The Manny Pacquiao v. 16 Joshua Clottey, WBO Welterweight Championship Fight Program, which was telecast on March 13, 17 2010. Sorondo, 1:11-cv-00411-AWI-SMS, at Doc. 1, ¶ 10. A motion for default judgment is 18 pending in that matter, as Defendants have not responded to the complaint and their defaults have 19 been entered. Sorondo, 1:11-cv-00411-AWI-SMS. Weighing all of the factors discussed above, the 20 Court recommends that enhanced statutory damages be awarded pursuant to Section 605(e)(3)(C)(ii) 21 in the amount of $2,000. 22 2. 23 Plaintiff seeks $900 in conversion damages – the value of the property at the time of the 24 conversion. Under California law, conversion is the wrongful exercise of dominion over the 25 property of another. The elements of conversion are, “the plaintiff’s ownership or right to possession 26 of the property at the time of the conversion; the defendant’s conversion by a wrongful act or 27 disposition of property rights; and damages.” Greka Integrated, Inc. v. Lowrey, 133 Cal. App. 4th 28 1572, 1581 (2005); see also G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d Damages for Conversion 6 1 896, 906 (9th Cir. 1992). “Because conversion is a strict liability tort, questions of the defendant’s 2 good faith, lack of knowledge, motive, or intent are not relevant.” Gilman v. Dalby, 176 Cal. App. 3 4th 606, 615 n.1 (2009). 4 establishments constitutes a “right to possession of property” for purposes of conversion. See Don 5 King Prods./Kingvision v. Lovato, 911 F.Supp. 419, 423 (N.D. Cal. 1995) (misappropriation of 6 intangible property without authority from owner is conversion); see also DIRECTV, Inc. v. Pahnke, 7 405 F. Supp. 2d 1182, 1189 (E.D. Cal. 2005) (concluding that the right to distribute programming 8 via satellite constituted a right to possession of personal property for purposes of a conversion claim 9 under California law.) Exclusive right to distribute a broadcast signal to commercial 10 Here, Plaintiff was granted the exclusive domestic commercial exhibition licensing rights to 11 the Program, and thus had the right to possess the property at the time of the conversion. Because 12 Defendants did not legally purchase the Program, the exhibition of the fight on April 24, 2010, 13 constituted conversion by a wrongful act or disposition of property rights. Finally, the rate card2 for 14 the Program at an establishment with a seating capacity between zero and fifty, which would apply 15 to Defendant’s establishment, indicates the sub-license fee for the Program would have been $900. 16 (Doc. 13-4, ¶ 8, Exh. 1.) Thus, Plaintiff is entitled to damages for conversion in the amount of 17 $900. 18 19 20 IV. RECOMMENDATIONS Based on a consideration of the declarations, pleadings, and exhibits to the present motion, the Court RECOMMENDS as follows: 21 1. Plaintiff’s motion for default judgment be GRANTED; 22 2. Judgment be entered in this action against Defendants Steven Castanon Sorondo, 23 individually and dba The Lamp Post Bar, and Starden, Inc. dba The Lamp Post Bar 24 as follows: 25 a. $10,000 statutory damages for violation of 47 U.S.C. § 605; 26 2 27 28 The rate card indicates the amount Plaintiff charges an establishment to sub-license and purchase the broadcast the Program. (Doc. 13-4, ¶ 8, Exh. 1.) The rates charged are based upon the capacity of the establishment. In this instance, for an establishment with a capacity of 0-50 people, the rate to sub-license and broadcast the Program is $900. (Id.) 7 1 b. $ 2,000 enhanced statutory damages for violation of 47 U.S.C. § 605; and 2 c. $900 for the tort of conversion. 3 These findings and recommendations are submitted to the district judge assigned to this 4 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fifteen (15) 5 days of service of this recommendation, any party may file written objections to these findings and 6 recommendations with the Court and serve a copy on all parties. Such a document should be 7 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 8 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. 9 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 10 waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 11 1991). 12 13 IT IS SO ORDERED. 14 Dated: ie14hj September 9, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
