Case 2:20-cv-08078-TJH-PLA Document 18 Filed 02/25/22 Page 1 of 4 Page ID #:154

1 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 Western Division 11 12 INNOVATIVE SPORTS CV 20-08078 TJH (PLAx) MANAGEMENT INC., d.b.a. 13 INTEGRATED SPORTS MEDIA,

14 Plaintiff, Order 15 v. and 16 CATHERINE INGRID PALOMINO CARBONEL, Judgment 17 Defendant. 18 19 The Court has considered Plaintiff Innovative Sports Management, Inc.’s 20 [“Innovative”] renewed motion for default judgment [dkt. # 16] and motion to dismiss 21 its remaining claims [dkt. # 17], together with the moving papers. 22 Innovative holds the exclusive domestic distribution rights to Peru v. Ecuador 23 [“the Program”], which was broadcast nationwide on September 5, 2019. 24 On September 3, 2020, Innovative filed this action, alleging that Defendant 25 Catherine Ingrid Palomino Carbonel, d.b.a. Pisco Sour Market [“Carbonel”], displayed 26 the Program without a license at Pisco Sour Market, the restaurant that she owns. 27 Innovative alleged four claims: (1) Unauthorized interception of satellite 28 communications, in violation of 47 U.S.C. § 605; (2) Unauthorized reception of cable Order and Judgment Page 1 of 4 Case 2:20-cv-08078-TJH-PLA Document 18 Filed 02/25/22 Page 2 of 4 Page ID #:155

1 communications, in violation of 47 U.S.C. § 553; (3) Conversion; and (4) Violation 2 of California’s Unfair Competition Law, Cal. Bus. and Prof. Code § 17200, et seq. 3 Carbonel never appeared in this action. On December 21, 2020, the Clerk of 4 Court entered her default. 5 Innovative, now, moves for default judgment with respect to its conversion and 6 unfair competition claims, and, also, moves to dismiss its remaining claims. 7 Default Judgment 8 When reviewing this motion for default judgment, the Court must consider the 9 following factors: (1) The possibility of prejudice to Innovative; (2) The merits of 10 Innovative’s substantive claim; (3) The sufficiency of the complaint; (4) The sum of 11 money at stake; (5) The possibility of a dispute concerning material facts; (6) Whether 12 Carbonel’s default was due to excusable neglect; and (7) Federal policy favoring 13 decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 14 Regarding the first factor, the possibility of prejudice to Innovative is high 15 because if this motion is denied it will have no alternative recourse for its claims. See 16 Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005) (citing 17 Eitel, 782 F.2d at 1471-72). 18 Regarding the second and third factors, the Court must accept the factual 19 allegations in the complaint regarding liability as true. Geddes v. United Fin. Grp., 20 559 F.2d 557, 560 (9th Cir. 1977). To prevail on a conversion claim, Innovative must 21 allege: (1) That Innovative owned or had the right to possess the property at issue; (2) 22 Wrongful disposition of the property right by Carbonel; and (3) Damages. See Tyrone 23 Pac. Intern. Inc. v. MV Eurychilli, 658 F.2d 664, 666 (9th Cir. 1981). 24 Innovative alleged that it possesses the exclusive domestic license to distribute 25 the Program; that Carbonel was the owner and/or operator of Pisco Sour Market when 26 it exhibited the Program; and that Carbonel directed or permitted the employees of 27 Pisco Sour Market to exhibit the Program, or exhibited it herself, without Innovative’s 28 permission. Those alleged facts are sufficient to establish liability for conversion. Order and Judgment Page 2 of 4 Case 2:20-cv-08078-TJH-PLA Document 18 Filed 02/25/22 Page 3 of 4 Page ID #:156

1 Regarding the fourth factor, Innovative requested $750.00 in damages for its 2 conversion claim. Innovative provided evidence that Carbonel would have had to pay 3 a licensing fee of $750.00 to lawfully display the Program, which is the proper measure 4 of damages for a conversion claim, pursuant to Cal. Civ. Code § 3336. 5 Because Innovative did not seek additional damages for its unfair competition 6 claim, the Court will dismiss that claim without prejudice. 7 Regarding the fifth factor, there is little possibility of a dispute concerning the 8 material facts of this case. The Court must accept the factual allegations in the 9 complaint regarding liability as true, and Carbonel failed to oppose this motion. See 10 Geddes, 559 F.2d at 560. 11 Regarding the sixth factor, it is unlikely that Carbonel’s inaction was due to 12 excusable neglect. She never participated in this action. 13 Regarding the seventh factor, although federal policy favors decisions on the 14 merits, all other Eitel factors weigh in favor of granting default judgment. 15 Damages 16 Innovative sought $750.00 in conversion damages. Generally, upon default, the 17 facts alleged in the complaint, except for facts relating to the amount of damages, are 18 taken as true. See Geddes, 559 F.2d at 560. Pursuant to Cal. Civ. Code § 3336, 19 damages for conversion are based on the property’s value at the time of the conversion. 20 Innovative provided an affidavit from investigator Mario Galvez, which stated that he 21 observed the Program being displayed at the Pisco Sour Market on two screens, and 22 that he estimated the maximum capacity at about 20 people. Innovative, also, 23 submitted an affidavit from its president, Doug Jacobs, which set forth the licensing fee 24 for the Program. For a venue with a capacity of between 1 and 50 people, the 25 licensing fee was $750.00. Consequently, Innovative established its conversion 26 damages. 27 Costs 28 Innovative requested 14 days, post-judgment, to submit its Bill of Costs. Costs Order and Judgment Page 3 of 4 Case 2:20-cv-08078-TJH-PLA Document Filed 02/25/22 Page 4of4 Page ID #:157

1 || will be awarded pursuant to 28 U.S.C. § 1920. 2 || Dismissal of Remaining Claims 3 Federal Rule of Civil Procedure 15(a) is the appropriate vehicle to withdraw an 4 || individual claim. See, e.g., Hells Canyon Preservation Council v. U.S. Forest Service, 5 || 403 F.3d 683, 687-88 (9th Cir. 2005). Under Fed. R. Civ. P. 15(a)(2), Innovative 6 || may amend its complaint with leave of Court. Here, Innovated moved to dismiss its 7 || claims arising under 47 U.S.C. § 605 and 47 U.S.C. § 553. There is no reason for the 8 | Court to deny leave. Fed. R. Civ. P. 15(a)(2). 10 Accordingly, 11 12 It is Ordered that the motion for default judgment be, and hereby is, ranted 13 || as to the conversion claim. 14 15 It is further Ordered that all other claims be, and hereby are, Dismissey. 16 17 At is Curther Ordered, Audges, and Decreed that judgment be, and hereby 18 | is, Entered in favor of Plaintiff Innovative Sports Management, Inc., d.b.a. Integrated 19 || Sports Media, and against Defendant Catherine Ingrid Palomino Carbonel, d.b.a. Pisco 20 || Sour Market, in the amount of $750.00. 21 22 It is further Ordered that Innovative may submit a Bill of Costs to the Clerk 23 || of Court within 14 days of this Order and Judgment. 24 25 || Date: February 25, 2022 26 "Fn Yo (aC fg 27 “ee ty J. Hatter, Fr. 98 Senior Cited States District Judge

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