United States District Court, E.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
DAMAGES, ATTORNEY'S FEES, AND COSTS (DOC. NO.
matter came before the court on May 2, 2017, for hearing on
plaintiff's motion for damages, attorney's fees, and
costs. Attorney Thomas Riley appeared on behalf of plaintiff.
Defendant Martin Carrillo Martinez appeared on his own behalf
with a private Spanish-language interpreter. After oral
argument, the motion was taken under submission. For the
reasons stated below, plaintiff's motion will be granted
J & J Sports Productions, Inc. (“J & J
Sports”) commenced this action against defendant Martin
Carrillo Martinez on October 8, 2014, alleging a violation of
the Communications Act of 1934 (47 U.S.C. § 605), a
violation of the Cable Television Consumer Protection and
Competition Act of 1992 (47 U.S.C. § 553), and state law
unfair competition and conversion claims.
to its complaint, plaintiff J & J Sports was granted
exclusive commercial exhibition licensing rights to a sports
program entitled “Timothy Bradley v. Juan Manuel
Marquez WBO Welterweight Championship Fight Program”
(the “Program”), telecast on October 12, 2013. On
that date, defendant Martinez was the owner and manager of La
Nayarita Restaurant at 702 L Street in Sanger, California.
Defendant intercepted and exhibited the Program at La
Nayarita Restaurant without authorization to do so. On
January 6, 2017, this court granted plaintiff's motion
for partial summary judgment as to plaintiff's § 605
and state conversion claims. (Doc. No. 58.)
April 3, 2017, plaintiff filed the instant motion for
damages, attorney's fees, and costs. (Doc. No. 66.) On
April 17, 2017, defendant filed his opposition. (Doc. No.
67.) On April 25, 2017, plaintiff filed its reply. (Doc. No.
the court's finding of defendant's liability as to
plaintiff's § 605 and state conversion claims,
plaintiff now seeks damages totaling $26, 600.
Damages Pursuant to 47 U.S.C. § 605(e)(3)(C)
the Federal Communications Act, a plaintiff may elect to seek
either actual or statutory damages. 47 U.S.C. §
605(e)(3)(C)(i)(I)-(II). The statute provides for statutory
damages for each violation of not less than $1, 000 and not
more than $10, 000, as the court considers just. 47 U.S.C.
§ 605(e)(3)(C)(i)(II). The statute also authorizes
enhanced damages of not more than $100, 000 if the court
finds the violation was “committed willfully and for
purposes of direct or indirect commercial advantage or
private financial gain.” 47 U.S.C. §
605(e)(3)(C)(ii). Here, plaintiff seeks $5, 000 in statutory
damages and $20, 000 in enhanced statutory damages.
respect to statutory damages, plaintiff seeks nearly three
times the $1, 600 amount of the commercial licensing fee for
the Program. Plaintiff argues that an increased statutory
damages amount is warranted not only to compensate it for
loss of revenue, but also to deter broadcast piracy in the
future. (See Doc. No. 66 at 4-5.) Additionally,
plaintiff argues that a large enhanced damages award is
justified in light of the number of patrons present for the
telecast, the quality of the televisions, and the location of
the restaurant. (Id. at 7.)
support of its motion for summary judgment, plaintiff
submitted an affidavit from its investigators stating that on
the day of the telecast, they observed the Program being
shown to approximately twenty patrons on two color
televisions at La Nayarita Restaurant. (Affidavit of Mitch
Gerking and Jeff Lang, Doc. No. 43-2.) The investigators
further stated, however, that there was no cover charge for
admittance. (Id.) Plaintiff presents no further
evidence suggesting that the restaurant specially advertised
the event or implemented premium pricing of its services or
goods during the event. Moreover, there is no evidence before
the court that defendant has previously been found liable of
light of this record, the court finds it appropriate to award
plaintiff $1, 800 in statutory damages, plus $200 in enhanced
statutory damages, for a total of $2, 000 in total damages
pursuant to 47 U.S.C. § 605(e)(3)(C). See,
e.g., J & J Sports Prods., Inc. v.
Hernandez, No. 12-cv-05773-JST, 2013 WL 2468354, at *5
(N.D. Cal. June 6, 2013) (awarding $2, 200 in statutory and
enhanced damages); J & J Sports Prods., Inc. v.
Aranda, No. 1:12-cv-01508-AWI-BAM, 2013 WL 1982974, at
*3-4 (E.D. Cal. May 13, 2013) (awarding $1, 000 in statutory
damages and denying request for enhanced statutory damages);
J & J Sports Prods., Inc. v. Jurado, No.
2:10-cv-03040-GEB-DAD, 2011 WL 6153605, at *4 (E.D. Cal. Dec.
12, 2011) (awarding $1, 000 in statutory damages and $3, 000
in enhanced statutory damages for a total award of $4, 000 in
a default judgment under similar circumstances to those
presented here), findings and recommendations
adopted, No. 2:10-cv-03040-GEB-DAD (Jan. 13, 2012), ECF
Damages for ...