United States District Court, N.D. California
January 14, 2004.
GAIRA BAY, INC., BARNEGAT MUSIC CORP. AND SONY/ATV TUNES LLC, Plaintiffs -against- ALEJANDRO MARIO AGUILAR, Defendant
The opinion of the court was delivered by: JAMES LARSEN, Magistrate Judge
WHEREAS, the Complaint in this action was filed by Gaira Bay, Inc.,
Barnegat Music Corporation and Sony/ATV Tunes LLC, ("Plaintiffs") on or
about April 17, 2003, in the United States District Court for the
Northern District of California, and served on Defendant Alejandro
Mario Aguilar ("Aguilar") on or about May 6, 2003; and
WHEREAS, Aguilar and/or Club Mango's, Inc. did at all times relevant to
this action own, control, manage, operate or maintain a place of business
for amusement and refreshment known as Mango's Sports Bar & Nightclub
("Mango's"), located at 39148 State Street, Fremont, California; and
WHEREAS, Mango's is currently owned and operated by Club Mango's, Inc.,
as a result of which the parties hereby agree that Club Mango's, Inc.
shall be, and hereby is, added as a party defendant to this action; and
WHEREAS, Plaintiffs were, on the dates alleged on Schedule A to the
Complaint, the respective owners of valid copyrights in the three songs
listed on Schedule A to the Complaint; and
WHEREAS, Plaintiffs allege that Defendants infringed Plaintiffs'
copyrighted musical compositions, listed on Schedule A to the Complaint,
at Mango's; and WHEREAS, Defendants deny any such infringement; and
WHEREAS, Plaintiffs are all members of ASCAP and have authorized ASCAP
to act on their behalf as attorney-in-fact; and
WHEREAS, ASCAP, on behalf of Plaintiffs, and the Defendants have
agreed that Plaintiffs' claims and all claims of any other members of
ASCAP based on prior alleged unauthorized public performances of their
copyrighted musical works at Mango's for all periods up to and including
the date of entry of this judgment shall be settled on the bases set
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. (a) Defendants shall pay to ASCAP, on behalf of Plaintiffs, the sum
of $11,500.00 ("the Settlement Amount") in settlement of the claims
alleged in the Complaint and in payment of ASCAP license fees for Mango's
for all periods through November 30, 2004.
(b) The Settlement Amount set forth in paragraph 1(a) shall be paid in
installments on the dates set forth below:
Payment Due Date Total Payment
January 15, 2004 $2,000.00
February 15, 2004 $2,000.00
March 15, 2004 $2,000.00
April 15, 2004 $1,000.00
October 31, 2004 $4,500.00
2. Defendants shall pay to ASCAP, 2960 Cumberland Parkway, Suite 490,
Atlanta, Georgia 30339, Attention Diane Ussery, the amounts set forth in
Paragraph 1(b) above. Defendants shall be considered in default if the
monthly payments set forth in Paragraph 1(b) above are not received by
ASCAP within ten (10) calendar days after a payment due date.
3. Contemporaneously with the execution of this Consent Judgment, ASCAP
shall offer, and Club Mango's, Inc. shall accept and execute, a license
agreement for Mango's for the term beginning December 1, 2003. The
Settlement Amount set forth in Paragraph 1(a) above includes license fees
for Mango's of $1,118.00 for the period December 1, 2003 through November
4. (a) Defendants' October 31, 2004 payment of $4,500.00 shall be
reduced by an amount that is equivalent to amounts paid to ASCAP as of
that date by new licensees that obtain licenses from ASCAP based on
either the advice of Aguilar or a joint request for an ASCAP license by
Aguilar and by any such new licensee.
(b) ASCAP shall inform Aguilar by October 31, 2004 of all license fees
received from new licensees pursuant to Aguilar's advice, subject to the
limitation described below, and/or the joint request of Aguilar and any
new licensee. In order for ASCAP to inform Aguilar of the amount received
from new licensees based on the advice of Aguilar, any such new licensee
must consent to ASCAP's divulging the amount of such license fees to
5. Upon timely receipt of payment of the Settlement Amount submitted in
accordance with Paragraph 1 above, Plaintiffs shall file a Satisfaction
of Judgment with this Court.
6. In the event that Defendants shall default in making any payments
required by this Consent Judgment, Plaintiffs may, upon ten days' written
notice from Plaintiffs' counsel to Defendants, execute on this Consent
Judgment in the amount of $11,500.00, plus accrued interest calculated at
the statutory rate from the date of entry of this Consent Judgment, less
any payments made by Defendants in accordance with Paragraph 1 above.
This Consent Judgment shall be deemed a non-dischargeable debt in
the event Defendants file a petition for bankruptcy.
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