Innovative Sports Management, Inc. v. Augusto Cesar Gutierrez ( 2024 )

1 2 3 4 5 6 7 8 ited States District Court 9 Central District of California 10 Western Division 11 12 | INNOVATIVE SPORTS CV 22-09379 TJH (KSx) MANAGEMENT, INC., d.b.a. 13 | INTEGRATED SPORTS MEDIA, 14 Plaintiff, Orvser 15 V. any 16 | AUGUSTO CESAR GUTIERREZ, d.b.a. AREPAS COLOMBIAN Judgment 17 | DELICATESSEN, 18 Defendant. JS-6 19 20 21 The Court has considered the motion for default judgment [dkt. # 14] and motion 22 || to dismiss [dkt. # 15] filed by Plaintiff Innovative Sports Management, Inc., d.b.a. 23 || Integrated Sports Media [“Innovative”], together with the moving papers. 24 On December 28, 2022, Innovative filed this action. Innovative alleged that it 25 || owned the exclusive United States commercial distribution rights to the Venezuela v. 26 || Colombia Soccer Match [“the Soccer Match”], which was broadcast on March 29, 27 || 2022, and that Defendant Augusto Cesar Gutierrez [“Gutierrez”] displayed the Soccer 28 || Match at his restaurant, Arepas Colombian Delicatessen [“the Restaurant”], without Order and Judgment — Page 1 of 5 1 a license. Specifically, Innovative alleged that Gutierrez is the owner and/or operator 2 of the Restaurant, and that he personally displayed the Soccer Match at the Restaurant 3 or directed his employees to do so. 4 Innovative alleged the following claims: (1) Unauthorized interception of satellite 5 communications, in violation of 47 U.S.C. § 605; (2) Unauthorized reception of cable 6 communications, in violation of 47 U.S.C. § 553; (3) Conversion; and (4) Violation 7 of California’s Unfair Competition Law, Cal. Bus. and Prof. Code § 17200, et seq. 8 [“UCL”]. 9 Gutierrez has never appeared in this action. On March 7, 2023, the Clerk of 10 Court entered his default. 11 Innovative, now, moves for default judgment as to its conversion and UCL 12 claims, and to dismiss its remaining claims. 13 Default Judgment 14 When reviewing a motion for default judgment, the Court must consider the 15 following: (1) The possibility of prejudice to Innovative; (2) The merits of Innovative’s 16 substantive claim; (3) The sufficiency of the Complaint; (4) The sum of money at stake; 17 (5) The possibility of a dispute concerning material facts; (6) Whether Gutierrez’s 18 default was due to excusable neglect; and (7) Federal policy favoring decisions on the 19 merits. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 20 Regarding the first factor, the possibility of prejudice to Innovative is high 21 because if this motion is denied it will have no alternative recourse for its claims. See 22 Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005) (citing 23 Eitel, 782 F.2d at 1471-72). 24 Regarding the second and third factors, the Court must accept the factual 25 allegations in the Complaint regarding liability as true. Geddes v. United Fin. Grp., 26 559 F.2d 557, 560 (9th Cir. 1977). To prevail on a conversion claim, Innovative must 27 allege the following: (1) That Innovative had the right to possess the property at issue; 28 (2) Wrongful disposition of the property right by Gutierrez; and (3) Damages. See 1 || Tyrone Pac. Intern. Inc. v. MV Eurychilli, 658 F.2d 664, 666 (9th Cir. 1981). 2 Here, Innovative alleged that it owned the exclusive distribution rights to the 3 | Soccer Match; that Gutierrez owned the Restaurant; that Gutierrez personally 4 || intercepted and broadcasted the Soccer Match or permitted his employees to do so; and 5 || that Gutierrez did not have a license from Innovative. Finally, Innovative alleged that 6 | it suffered financial harm due to the unauthorized exhibition. Accordingly, Innovative 7 || successfully alleged a prima facie case for conversion. 8 Regarding the fourth factor, Innovative requested $1,000.00 in damages for its 9 | conversion claim. Innovative provided evidence that Gutierrez would have had to pay 10 | a licensing fee of $550.00 to lawfully display the Soccer Match. The value of the 11 || converted property is the proper measure of damages for a conversion claim. Cal. Civ. 12 || Code § 3336. 13 Regarding Innovative’s UCL claim, because the UCL provides only equitable 14 || remedies, and because Innovative’s legal remedies, here, are adequate compensation, 15 || the Court lacks equitable jurisdiction over the claim. See Guzman v. Polaris Indus. 16 || Inc., 49 F.4th 1308, 1313-14 (9th Cir. 2022). Accordingly, the UCL claim must be 17 || dismissed without prejudice. See Guzman, 49 F.4th at 1314. In any case, Innovative 18 || did not seek additional damages for that claim. 19 Regarding the fifth factor, there is little possibility of a dispute concerning the 20 | material facts of this case. The Court must accept the factual allegations in the 21 | Complaint regarding liability as true, and Gutierrez failed to oppose this motion. See 22 || Geddes, 559 F.2d at 560. 23 Regarding the sixth factor, it is unlikely that Gutierrez’s inaction was due to 24 || excusable neglect. He has never participated in this action. 25 Regarding the seventh factor, although federal policy favors decisions on the 26 || merits, all other Eitel factors weigh in favor of granting default judgment. 27 || Damages 28 Innovative sought $1,000.00 in conversion damages. Generally, upon default, Order and Judgment — Page 3 of 5 1 the facts alleged in the Complaint, except those facts relating to the amount of damages, 2 are taken as true. See Geddes, 559 F.2d at 560. Innovative provided an affidavit from 3 Guillermo Vicent stating that he observed the Soccer Match playing at the Restaurant 4 on one screen. Vicent estimated that the capacity of the restaurant was 15 people. 5 Innovative, also, submitted an affidavit from its president, Doug Jacobs, which set forth 6 the licensing fee schedule for the Soccer Match. For a venue with a capacity of 15 7 people, the licensing fee was $550.00. Consequently, Innovative has established 8 $550.00 in conversion damages. 9 Costs 10 Innovative requested 14 days, post-judgment, to submit its bill of costs. Costs 11 will be awarded by the Clerk of Court pursuant to 28 U.S.C. § 1920. 12 Dismissal of Remaining Claims 13 Federal Rule of Civil Procedure 15(a) is the appropriate vehicle to withdraw an 14 individual claim. See, e.g., Hells Canyon Preservation Council v. U.S. Forest Service, 15 403 F.3d 683, 697–88 (9th Cir. 2005). Under Fed. R. Civ. P. 15(a)(2), Innovative 16 may amend the Complaint with the opposing party’s consent or leave of Court. Here, 17 Innovated moved to dismiss its claims arising under 47 U.S.C. § 605 and 47 U.S.C. 18 § 553. There is no reason for the Court to deny leave. See Fed. R. Civ. P. 15(a)(2). 19 20 Accordingly, 21 22 It is Ordered that the motion for default judgment be, and hereby is, Granted 23 as to the conversion claim. 24 25 It is further Ordered that the remaining claims be, and hereby are, 26 Dismissed. 27 28 It is further Ordered, Adjudged, and Decreed that judgment be, and hereby 1 | is, Entered in favor of Plaintiff Innovative Sports Management, Inc., d.b.a. Integrated Sports Media, and against Defendant Augusto Cesar Gutierrez, d.b.a. Arepas 3 | Colombian Delicatessen, in the amount of $550.00. 4 5 Ii is Curther Ordsered that Innovative may submit a Bill of Costs to the Clerk 6 || of Court within 14 days of this Order and Judgment. 7 8 || Date: February 9, 2024 Lo Bee) de 9 10 Terry J. Hatter, Jr. Senior United States District □□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order and Judgment — Page 5 of 5