and that conversion does not apply to intangible property. They also argue for dismissal on the grounds that plaintiff has failed to allege any actual damages.
Defendants correctly note that traditionally tangible personal property included only property that is visible and corporeal, having substance and body. Roth Drug, Inc. v. Johnson, 13 Cal. App. 2d 720, 734, 57 P.2d 1022 (1936); see also Ballentine's Law Dictionary 1255 (3rd ed. 1969) (defining tangible property as "property of material substance. Property which can be possessed physically, such as goods, wares, and merchandise"). Plaintiff counters that the property converted here, the "broadcast signal," is also tangible. Plaintiff fails to cite any authority for this position.
Nonetheless, even assuming that the broadcast signals are intangible property, defendants' motion to dismiss must fail because, in appropriate instances, a valid claim may be brought for conversion of such property. In California, conversion has three elements: (1) ownership or right to possession of property, (2) wrongful disposition of the property right of another, and (3) damages. G.S. Rasmussen & Assoc. v. Kalitta Flying Service, 958 F.2d 896, 906 (9th Cir. 1992), cert. denied, 124 L. Ed. 2d 678, 113 S. Ct. 2927 (1993). While conversion generally lies only where the property allegedly converted is tangible, courts in recent years have significantly relaxed this rule. In A & M Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 142 Cal. Rptr. 390, 400 (2d Dist. 1978), cert denied, 436 U.S. 952, 57 L. Ed. 2d 1118, 98 S. Ct. 3063 (1978), for instance, the court of appeal considered whether or not conversion would lie for defendant's unauthorized sale of records duplicated from recordings manufactured and owned by plaintiff A & M Records. The court concluded that the "recorded performances [were] A & M Records' intangible personal property" and that the "misappropriation and sale of [such] intangible property of another without authority from the owner is conversion." Id. (citations omitted); see also Kalitta Flying Service, supra, 958 F.2d at 906-07 (relying on A & M Records in holding that conversion lies, under California law, for wrongful disposition of intangible property right in federal regulatory permit); Television Signal Corporation v. Pete's 881 Club, 1993 WESTLAW 84419 (N.D. Cal. 1993) (rejecting defendant's motion to set aside default judgement for violations of 47 U.S.C. § 553 and 605, as well as conversion, on facts strikingly similar to those presented by the present case). Accordingly, plaintiff's alleged exclusive rights to distribute the program in California satisfy the first element of conversion (i.e., that the plaintiff own a right to possession of property).
The second element is uncontested. With regard to the third element, defendants contend that plaintiff has failed to allege damages with sufficient specificity to survive dismissal. Defendants appear to have misconstrued the purpose and requirements for notice pleading. Plaintiff has described defendants' allegedly tortious action with sufficient specificity to put the defendants on notice as to the precise event being sued upon. See Wright & Miller, Federal Practice & Procedure § 1201. Plaintiff has also alleged that it is entitled to statutory damages, in an amount up to $ 50,000, for violations of §§ 553 and 605, and that defendants' allegedly tortious conduct has otherwise caused it "economic distress." In its prayer for relief on Count Three, plaintiff requests compensatory damages, as well as punitive and exemplary damages. Assuming plaintiff's allegations to be true and drawing all reasonable inferences in its favor, NL Industries, supra, 792 F.2d at 898, plaintiff has thus clearly alleged facts sufficient to establish the damages element of conversion.
Accordingly, defendants' motion to dismiss Count 3 should be denied.
III. Count Four, Intentional Interference With Prospective Economic Advantage
The elements of the tort of intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third person containing the probability of future economic benefit to the plaintiff; (2) knowledge by the defendant of the existence of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) proximately caused damages. Blank v. Kirwan, 39 Cal. 3d 311, 216 Cal. Rptr. 718, 703 P.2d 58 (1985).
Defendants contend that plaintiff has not adequately pleaded any of these elements. While plaintiff's allegations on this Count are somewhat conclusory, the Court is unable to conclude "to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Intake Water Co., supra, 769 F.2d at 569. In this regard, the Court notes that Congress has enacted legislation in part to alleviate the harm imposed upon the economic relationship between cable subscribers and cable providers by the type of broadcast piracy defendants allegedly committed. See H.R. Rep. 98-934, 98th Cong., 2d Sess. 1984, reprinted in 1984 U.S.S.C.A.N. 4655, 4720. Accordingly, defendants' motion as to Count 4 is also denied.
For the reasons discussed above, and good cause appearing, defendants' motion to dismiss is hereby denied.
IT IS SO ORDERED.
THELTON E. HENDERSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT