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Joe Hand Promotions, Inc. v. Santana

United States District Court, N.D. California

August 1, 2013

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
ESQUIVEL SANTANA, et al., Defendants

Page 1068

For Joe Hand Promotions, Inc., Plaintiff: Marcin Jacek Zurada, LEAD ATTORNEY, Attorney at Law, Walnut Creek, CA.

For Esquivel Santana, Veronica Santana, individually and as officers, directors, shareholders, and or principals of Santana ESG Inc., Santana ESG, Inc., doing business as Mis Antojitos, Defendants: Matthew Allen Pare, Law Office of Matthew Pare, Chula Vista, CA.

OPINION

WILLIAM H. ORRICK, United States District Judge.

Page 1069

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 37, 40

This case arises from the showing of a pay-per-view program at a commercial establishment. Plaintiff Joe Hand Promotions sues four defendants for displaying a program at a commercial establishment without proper licensing, alleging causes of action for: violation of 47 U.S.C. section 605, violation of 47 U.S.C. section 553 and conversion. Defendants move for summary judgment, arguing there is no basis for liability against them and, in the alternative, seeking to narrow the types of damages at stake. Plaintiff also moves for summary judgment against defendant Jose Juan Guzman under 47 U.S.C. section 553. For the reasons discussed below, the Court GRANTS in part and DENIES in part

Page 1070

defendants' motion for summary judgment and DENIES plaintiff's motion.

BACKGROUND

This case stems from the showing of UFC 142: Aldo v. Mendes (" Program" ) at Mis Antojitos restaurant on January 14, 2012. Affidavit of Margaret Hand-Cicalese, Ex. C. Plaintiff Joe Hand Promotions had the exclusive domestic commercial distribution rights for the Program. Id . ¶ 3. For a commercial establishment, with a fire code occupancy of up to 50 patrons, the license fee to broadcast the Program was $900. Id., ¶ 8. For a residential location, the fee was $54.99. Id . On January 14, 2012, Veronica Porras, an investigator for plaintiff, observed an undercard bout on the UFC 142: Aldo v. Mendes Program being broadcast at Mis Antojitos. Exhibit C to the Hand-Cicalese Affidavit. Ms. Porras took three head counts while she was in the restaurant, and counted a maximum of 10 people in the restaurant during the Program. Id.

Defendants Esquivel and Veronica Santana are the former owners of Mis Antojitos. Declaration of Esquivel Santana [Docket No. 37-1]; Declaration of Veronica Santana [Docket No. 37-2]. The Santanas assert that they -- and defendant corporation Santana Esg., Inc. -- sold their interest in Mis Antojitos to defendant Jose Juan Guzman in " December 2011." Santana Decl. ¶ 2. [1] The Santanas allege that at the time the Program was displayed, they had no control over, or access to, the restaurant. Id . The Santanas admit that following the sale, " [t]here was a period of time" during which " the liquor license with the California Department of Alcoholic Beverage Control continued" to have their names on it. Id . During that time, the Santanas assert they had no ownership in the restaurant or control over the activities that took place there. Id . The Santanas further contend that if any program was illegally shown at Mis Antojitos, it was done without their consent, permission, authorization, or knowledge. Id . ¶ 3.

Defendant Jose Juan Guzman declares that he believed he had a legitimate and lawful television service at Mis Antojitos. Declaration of Jose Juan Guzman [Docket No. 37-3] ¶ 2. He believed that " anything that would have been displayed on televisions there was appropriately paid for and legal." Id . He contends there was no theft or interception of a TV signal, and that he was simply " using the TV system that had been professionally installed at the business and did not realize that we might be paying the wrong price for that type of a TV account." Id . He explains that " [a]t the time of the alleged incident I had recently purchased the business of Mis Antojitos in December 2011, and had no reason to believe that anything I was showing on the TVs there was in any way improper." Id . He testifies that he did not benefit from the display of the Program and there was no increase in sales or revenue on that day. Id . As he recalls, there were only a handful of people in the restaurant during the time in question, " nearly all of whom were either my personal friends or workers at the restaurant." Id . ¶ ¶ 2-3. Mr. Guzman did not advertise that the Program was going to be shown, did not have a cover charge, and did not charge a premium on food or beverages when the Program was shown. Id . ¶ 3.

Page 1071

In support of its motion, plaintiff submits copies of documents dated between May 22 and May 25, 2012, related to an application to transfer the liquor license for Mis Antojitos. Declaration of Martin Zurada, Ex. A. The documents show that Santana Esg., Inc. sought to transfer the license from itself to a partnership between defendant Guzman and Santana Esg., Inc. On the " License Transfer Request," the transferor (Santana Esg., Inc.) certified under penalty of perjury that " the transfer application or proposed transfer is not made to satisfy the payment of a loan or to fulfill an agreement entered into more than ninety days preceding the day on which the transfer application is filed with the Department. . . ." Docket No. 40-2, pg. 6. The License Transfer Request is signed by Esquivel Santana as the corporate officer for Santana Esg., Inc. Id.

Plaintiff also submits correspondence between plaintiff's " national coordinating counsel" and defendant Guzman from February 2012. Those documents show that defendant Guzman paid $54.99 on his cable bill for the Program. ...


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