Innovative Sports Management, Inc. v. Agustin Fernandez

[7] 8 United States District Court 9 Central District of California 10 Western Division [11] 12 INNOVATIVE SPORTS MANAGEMENT, CV 19-02120 TJH (PLAx) INC., [13] Plaintiff, [14] v. Order [15] AGUSTIN FERNANDEZ, d.b.a. EL and 16 HORNERO, Judgment 17 Defendant. [37][JS-6] [19] 20 The Court has considered Plaintiff Innovative Sports Management, Inc.’s 21 [“Innovative”] motion for damages, together with the moving and opposing papers. 22 Innovative holds the exclusive United States commercial distribution rights to the 23 Peru v. Iceland, International Friendly Soccer Game ["the Soccer Game"], which was 24 broadcasted nationwide on March 27, 2018. Defendant Agustin Fernandez, d.b.a. El 25 Hornero [“Ferndandez”], is, inter alia, the owner and operator of El Hornero, a 26 restaurant in Bellflower, California. The Soccer Game was broadcasted at El Hornero 27 without a license. 28 In its complaint, Innovative asserted four claims: (1) Unauthorized interception 1 of satellite communications, in violation of 47 U.S.C. § 605 ; (2) Unauthorized reception 2 of cable communications, in violation of 47 U.S.C. § 553 ; (3) Conversion; and (4) Unfair 3 competition law, in violation of Cal. Bus. and Prof. Code § 17200, et seq. 4 Innovative, previously, moved for partial summary judgment as to liability for its 5 § 605, conversion and unfair competition claims. After Fernandez filed a notice of non6 opposition, the Court granted Innovative’s motion for partial summary judgment. 7 Thereafter, the parties stipulated that the Court could determine damages by motion. 8 Innovative, now, moves for damages for its § 605, conversion and unfair 9 competition claims. That motion will be deemed to be a motion for partial summary 10 judgment as to damages. 11 When considering a motion for summary judgment, the Court must accept the 12 nonmoving party’s facts as true, and draw all reasonable inferences in that party’s favor. 13 Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). However, here, there are no 14 factual disputes. Rather, the parties dispute the legal consequences of the facts. 15 As to it § 605 claim, Innovative elected to recover statutory damages rather than 16 actual damages. See 47 U.S.C. § 605 (e)(3)(C). Innovative seeks statutory damages of 17 $3,000.00, plus a wilfulness enhancement of $15,000.00. 18 The Court must set statutory damages at an amount between $1,000.00 and 19 $10,000.00, as it deems just. 47 U.S.C. § 605 (e)(3)(C)(i)(II). Statutory damages should 20 be set at an amount that would compensate Innovative for its losses and deter Fernandez 21 from future violations. See F. W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228 , 22 233 (1952). Here, the parties agree that, had Fernandez obtained a license for the Soccer 23 Game, the fee would have been $1,000.00. 24 If Innovative establishes that Fernandez’s violation of § 605 was willful and for 25 the purpose of financial gain, the Court can award a willfulness enhancement of up to 26 $100,000.00. 47 U.S.C. § 605 (e)(3)(C)(ii). To determine willfulness, district courts 27 have considered various factors, including whether there was a cover charge, whether 28 food prices were increased during the broadcast, whether the defendant advertised the 1 || broadcast, the number of patrons present, the number of televisions used, the impact of 2 || the defendant’s conduct on the plaintiff, whether the defendant was unaware that his 3 || conduct was unlawful, and whether the defendant had previously violated § 605. See, 4 | e.g., J &J Sports Prods., Inc. v. Concepcion, No. C 10-05092-WHA, 2011 WL 2220101 , 5 || at *4 (N.D. Cal. June 7, 2011). 6 There was no evidence that Fernandez imposed a cover charge or increased his 7 || prices on the day of the Soccer Game, or that he advertised the broadcast of the Soccer 8 || Game. Innovative provided evidence that there were no more than six customers at El 9 || Hornero during the Soccer Game. Further, Innovative’s two investigators offered 10 | conflicting declarations as to the number of television screens at El Hornero that 11 || displayed the Soccer Game. Finally, Fernandez declared that he mistakenly believed that 12 || his conduct was lawful and Innovative advised the Court that Fernandez was not a repeat 13 || offender of § 605. Consequently, Innovative failed to establish that Fernandez willfully 14 || violated § 605. 15 Based on the evidence presented, a just amount for statutory damages is $2,000.00. 16 For its conversion claim, Innovative seeks damages of $1,000.00, based on the 17 || licensing fee, had Fernandez obtained a license. However, the Court cannot award 18 || damages for both the § 605 claim and the conversion claim because the awards would 19 || be duplicative. See Sorayama v. Robert Bane Ltd. Inc., 380 F. App’x 707, 709 (9th Cir. 20 || 2010). 21 Because Innovative did not seek damages for its unfair competition claim, that 22 || claim will be dismissed. 23 Finally, because Innovative’s 47 U.S.C. § 553 claim — for the unauthorized 24 || reception of cable communications — was an alternative claim to its § 605 claim, it will, 25 | also, be dismissed. See, e.g., TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 207 (3rd 26 || Cir. 2001). [27] 28 Accordingly, Order and Judgment’ Page 3 of 4 1 At ig Orvered that Innovative’s motion for damages be, and hereby is, 2 | Granted. [3] 4 It is further Orsereds, Adjudged and Decreed that Judgment be, and hereby 5 is, Entered in favor of Plaintiff Innovative Sports Management, Inc. and against 6 || Defendant Agustin Fernandez, d.b.a. El Hornero, in the amount of $2,000.00. [7] 8 At is further Orvyered that Innovative’s claims for violation of 47 U.S.C. § 553 9 || and unfair competition be, and hereby are, Dismissed. [10] 11 It is further Ordered that Innovative shall file its motion for attorneys’ fees 12 || by January 24, 2022. [13] 14 || Date: December 22, 2021 ae □□ 15 fe 16 Te ty J. Hatter.Ar. 7 SHenior United States District Jusge [28] Order and Judgment’ Page 4 of 4