MORRISON C. ENGLAND, JR., CHIEF JUDGE, UNITED STATES DISTRICT COURT.
Plaintiff Joe Hand Promotions, Inc. ("Plaintiff") asserts several causes of action against Defendant Roseville Lodge No. 1293, Loyal Order of Moose, Inc. ("Defendant") based on an unlawful interception and broadcast of a television program to which Plaintiff had the exclusive commercial
Plaintiff had the exclusive nationwide distribution rights to "Ultimate Fighting Championship 157: Ronda Rousey v. Liz Carmouche," which aired on Saturday, February 22, 2013 ("the Fight"). Plaintiff's rights to the Fight included non-residential establishments such as Defendant's establishment and encompassed all undercard events as well as the main event.
On the date of the Fight, Sherri Hokada visited Defendant's establishment. Hokada, an investigator, observed that the Fight was broadcast on five of seven televisions and that there were between fifty-seven and sixty-four patrons present. Hokada estimated the capacity to be around two-hundred individuals. Based on that capacity, Plaintiff would have charged $1,600 to show the Fight in Defendant's establishment. Hokada also observed a satellite dish on the roof of the building.
Defendant does not dispute that it (1) showed the Fight, (2) had satellite technology at its establishment, and (3) neither ordered the Fight nor paid Plaintiff a licensing fee for it. Def.'s Resp. to Pl.'s Statement of Undisputed Facts, ECF No. 23-1, at 1-2. However, Defendant contends that the maximum capacity of its establishment is "between 80-100," a figure that, per Plaintiff's rate card, reduces the licensing fee that Plaintiff would have charged for the Fight to $950.
Plaintiff's Complaint identifies the following causes of action: (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; (3) conversion; and (4) violation of California Business and Professions Code § 17200. Plaintiff seeks summary judgment on the first, second, and third causes of action, and Defendant seeks summary judgment on all four causes of action.
The Federal Rules of Civil Procedure provide for summary judgment when "the movant shows that 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). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses.
In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact."
In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations ... or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.
Both Plaintiff and Defendant advance several arguments in the pending motions. The Court will examine each Motion in turn and address only the arguments that the Court finds dispositive.
As the moving party, Plaintiff bears the initial burden of informing the Court of the basis of its Motion and identifying the portions of the record that Plaintiff believes demonstrate the absence of a genuine issue of material fact. Plaintiff's Motion accomplishes these objectives with respect to the first cause of action.
Section 605(a) 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." 47 U.S.C. § 605(a). More simply, the statute "prohibits commercial
Here, Plaintiff has produced sufficient evidence to show that Defendant violated § 605 by intercepting a satellite broadcast of the Fight. Plaintiff has established that it had the exclusive commercial distribution rights to the Fight. Pl.'s Decl. (Ex. 1), ECF No. 11, at 4-19. Plaintiff also established that it entered into sub-licensing agreements with various establishments, including establishments such as Defendant's, to permit the public exhibition of the Fight.
The burden therefore shifts to Defendant to controvert Plaintiff's circumstantial evidence and establish that a genuine issue as to any material fact actually does exist.
The next issue is the amount of damages Plaintiff is entitled to for the § 605 violation. "The 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 not less than $1,000 or more than $10,000, as the court considers just." 47 U.S.C. § 605(e)(3)(C)(i)(II). "Courts in this circuit have granted widely varying awards ranging from near the minimum statutory award of [$]1,000 to near the maximum of [$]110,000, depending on such factors as the capacity of the establishment, the number of patrons in attendance, and whether a cover charge was required for entrance."
Plaintiff requests statutory damages of $5,000 pursuant to § 605(e)(3)(C)(i)(II) and enhanced statutory damages of $20,000 pursuant to § 605(e)(3)(C)(ii). The Court will award $2,000 in statutory damages and no enhanced statutory damages. Although Defendant showed the Fight on five of seven televisions and there were between fifty-seven and sixty-four patrons at the establishment, there is no evidence that Defendant charged a cover charge for entrance, increased food or beverage prices during the Fight, or previously violated either § 553 or § 605. Plaintiff has not established that enhanced statutory damages are warranted. Accordingly, the Court finds an award of $2,000 in statutory damages appropriate.
"A signal pirate violates section 553 if he intercepts a cable signal, [and] he violates section 605 if he intercepts a satellite broadcast. But he cannot violate both by a single act of interception."
Plaintiff's third cause of action is a conversion claim. To establish conversion, a plaintiff must show: (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages.
As to the first element, the "right to distribute programming via satellite" is recognized as a "right to possession of personal property" for purposes of a conversion claim under California law.
Defendant counters that Plaintiff did not have the right to distribute the Fight in Defendant's establishment because (1) Plaintiff's distribution rights extended only to commercial establishments and (2) Defendant is a "members-only non-profit private charitable organization." Def.'s Mot., ECF No. 19 at 4. Defendant made the same argument in a prior motion, and the Court rejected that argument.
As to the second element of conversion, there is no dispute that Defendant showed the Fight without Plaintiff's authorization. The undisputed facts are sufficient to establish Defendant's conversion of Plaintiff's property right by a wrongful act.
Plaintiff has also established damages, the third element of its conversion claim. Specifically, the undisputed evidence indicates that Defendant deprived Plaintiff of the commercial license fee to which Plaintiff was rightfully entitled to receive.
There being no genuine issue of material fact as to any element of conversion, Plaintiff's Motion is GRANTED to the extent it seeks summary judgment on the third cause of action.
Plaintiff may recover as damages the value of the property at the time of the conversion. Cal. Civ. Code § 3336;
Defendant counters that the maximum capacity of its establishment is "between 80-100," and that the value of the property at the time of the conversion (according to Plaintiff's rate card) is therefore only $950. Def.'s Resp. to Pl.'s Statement of Undisputed Facts, ECF No. 23-1, at 2. But the only evidence that Defendant cites in support of that assertion is "the headcounts of plaintiff's investigator as well as the photographs...."
Defendant's evidence is insufficient to create a triable issue. First, Defendant seems to agree that Plaintiff's rate card — which provides licensing fees based solely on the "Fire Code Occupancy" of the establishment — determines the value of the Fight for purposes of conversion.
Defendant further argues that allowing damages for both Plaintiff's § 605 claim and its conversion claim would result
Defendant raises several arguments in its Motion, some of which the Court has already addressed in evaluating the merits of Plaintiff's Motion for Summary Judgment. The remainder of this Order addresses only those arguments that the Court has not already examined.
Defendant argues that Plaintiff lacks standing because Plaintiff does not have distribution rights to a "members-only non-profit private charitable organization" such as Defendant's establishment. Def.'s Mot., ECF No. 19 at 4. Defendant advanced the same argument in its Motion for Judgment on the Pleadings (ECF No. 8), and the Court rejected that argument (ECF No. 16). Defendant has failed to provide any argument to justify a deviation from the Court's previous order or otherwise establish that Plaintiff lacks standing. Thus, Defendant is not entitled to summary judgment on the ground that Plaintiff lacks standing.
Defendant argues that "it is necessary for the [P]laintiff to establish the type of signal that was allegedly intercepted to prevail in its case." Def.'s Mot., ECF No. 19, at 9. Defendant's argument is inconsistent with the applicable and binding case law. The Ninth Circuit has made clear a plaintiff may rely on "circumstantial evidence to prove unlawful interception."
Accordingly, Defendant's Motion is for Summary Judgment is DENIED.
Defendant's Motion for Summary Judgment (ECF No. 19) is DENIED.
Plaintiff's Motion for Summary Judgment (ECF No. 20) is GRANTED in part and DENIED in part as follows:
1. Plaintiff's Motion is GRANTED as to the first cause of action (violation of 47 U.S.C. § 605); Plaintiff is awarded $2,000 in statutory damages and no enhanced statutory damages for that claim.
2. Plaintiff's Motion is DENIED as to the second cause of action (violation of 47 U.S.C. § 553).
3. Plaintiff's Motion is GRANTED as to the third cause of action (conversion), and
Plaintiff did not seek summary judgment on the fourth cause of action. Within fourteen (14) days of the date this Order is electronically filed, Plaintiff shall inform the Court whether it will proceed on the fourth cause of action or seek dismissal of that claim and request that this case be closed. If no notice is received with said fourteen (14) day period, this case will be closed without any further notice to the parties.
IT IS SO ORDERED.