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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 G & G CLOSED CIRCUIT EVENTS, Case No.: 21-cv-00263-H-WVG 12 LLC,

ORDER GRANTING PLAINTIFF’S

13 Plaintiff,

MOTION FOR ATTORNEYS’ FEES

14 v. AND DENYING PLAINTIFF’S

MOTION TO ALTER OR AMEND

15 RAFAEL VAZQUEZ, individually and

doing business as Slappy’s Burgers and 16 [Doc. Nos. 23, 25.] Brews, 17 Defendant. 18 19 On February 12, 2021, Plaintiff G & G Closed Circuit Events, LLC (“Plaintiff”) 20 filed a complaint against Defendant Rafael Vazquez, individually and doing business as 21 Slappy’s Burgers and Brews (“Defendant”) for violations of federal and California law. 22 (Doc. No. 1.) On December 10, 2021, the Court granted Plaintiff’s motion for default 23 judgment and awarded $5,720 in statutory damages and $2,860 in compensatory damages 24 to the Plaintiff. (Doc. No. 19 or the “Order.”) Plaintiff subsequently filed a motion for 25 attorneys’ fees (Doc. No. 23) and a motion to alter or amend the Court’s Order (Doc. No. 26 25). To date, Defendant has not appeared before the Court and the Court has not received 27 an opposition to either of Plaintiff’s pending motions. The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determined that these matters are appropriate for resolution 1 without oral argument and submitted the motions on the parties’ papers. (Doc. No. 27.) 2 For the reasons that follow, the Court grants Plaintiff’s motion for attorneys’ fees and 3 denies Plaintiff’s motion to alter or amend the Court’s Order. 4 BACKGROUND 5 This dispute revolves around the broadcast rights to the Ryan Garcia v. Francisco 6 Fonseca Championship Fight Program (the “Program”). (Order at 2.) Plaintiff owns the 7 exhibition rights to the Program and licensed it to various commercial establishments. (Id.) 8 Plaintiff alleged that Defendant unlawfully intercepted and exhibited the Program at 9 Slappy’s Burgers and Brews without Plaintiff’s authorization. (Id.) 10 On February 12, 2021, Plaintiff filed a complaint against Defendant, alleging claims 11 for: (1) the violation of 47 U.S.C. § 605; (2) the violation of 47 U.S.C. § 533; (3) 12 conversion; and (4) the violation of California Business and Professions Code § 17200, et 13 seq. (Id.) On July 22, 2021, Plaintiff moved for default judgment against Defendant in the 14 amount of $36,440. (Id.) 15 The Court concluded that Plaintiff’s motion satisfied the requirements for a default 16 judgment under Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). (Id. at 4-6.) In 17 the Court’s discretion, it concluded that $5,720, double the licensing fee of the Program, 18 was an appropriate award of statutory damages. (Id. at 7.) The Court declined to award 19 enhanced statutory damages under 47 U.S.C. § 605(e)(3)(C)(ii) on the basis that Plaintiff 20 failed to plead factual allegations that warranted such damages. (Id. at 7-8.) Finally, the 21 Court awarded $2,860, the amount of the licensing fee, in compensatory damages on 22 Plaintiff’s conversion claim. (Id. at 8.) 23 DISCUSSION 24 I. Motion for Attorneys’ Fees 25 Plaintiff moves for $5,440.20 in attorneys’ fees pursuant to 47 U.S.C. § 26 605(e)(3)(B)(iii). This provision states that a court “shall direct the recovery of full costs, 27 including awarding reasonable attorneys’ fees to an aggrieved party who prevails” on its 1 Section 605 claim. In support of its motion, Plaintiff submitted a declaration and an 2 itemized billing record of attorneys’ fees. (Doc. No. 23-1.) The Court must determine 3 whether the attorneys’ fees requested are reasonable. 4 The Court applies the “lodestar” method to determine whether the attorneys’ fees 5 sought by the Plaintiff are reasonable. See, e.g., G & G Closed Circuit Events, LLC v. 6 Garcia Pacheco, 2019 WL 3388362, at *2 (S.D. Cal. 2019); DIRECTV, Inc. v. Atwal, 2005 7 WL 1388649, at *2 (E.D. Cal. 2005). “Under the lodestar method, the district court 8 multiplies the number of hours the prevailing party reasonably expended on the litigation 9 by a reasonable hourly rate.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 10 2013) (internal quotation omitted). The Court may “exclude those hours for which it would 11 be unreasonable to compensate the prevailing party.” Id. at 1203 (citation omitted). The 12 product of this computation (the “lodestar figure”) is a presumptively reasonable fee. Id. 13 Plaintiff’s counsel attests that he billed 5.65 hours at a rate of $550.00 per hour 14 ($3,107.50), his administrative assistant billed 7.57 hours at a rate of $110.00 per hour 15 ($832.70), and his research attorney billed 5 hours at a rate of $300.00 per hour ($1,500) 16 for a total of 18.22 billable hours at total cost of $5,440.20. (Doc. No. 23-1 at 3, 7-10.) 1 17 Upon review of the billing records, the Court is satisfied that the time billed by Plaintiff’s 18 counsel and his colleagues was reasonably necessary to the proper prosecution of this case. 19 The Court is also satisfied that the hourly rates charged by Plaintiff’s counsel and his 20 colleagues are reasonable for this geographic area considering counsel’s experience, 21 specialty in commercial signal piracy claims, and reputation. (Doc. No. 23-1 at 2-3.) 22 Once the Court reaches the lodestar figure, it may adjust the award upward or 23 downward based on the Kerr factors.2 Gonzalez, 729 F.3d at 1202 (citation omitted). The 24

25 1 Plaintiff’s counsel excluded time spent on Plaintiff’s amended motion for default 26 judgment and motion to alter or amend. (Id. at 8-9.)

27 2 The Kerr factors include the following: “(1) the time and labor required, (2) the novelty 1 Court concludes that no adjustment to the lodestar figure is warranted. Plaintiff’s counsel’s 2 fee is reasonable considering the prevailing rate in this district for attorneys of his 3 experience and specialty. See Youngevity Int’l, Corp. v. Smith, 2018 WL 2113238, at *5 4 (S.D. Cal. 2018). The Court notes that several district courts have found Plaintiff’s 5 counsel’s rates and fees to be appropriate in analogous cases. See, e.g., Garcia Pacheco, 6 2019 WL 3388362, at *2; G & G Closed Circuit Events, LLC v. Espinoza, 3:20-cv-2114- 7 GPC-WVG, Doc. No. 16 (S.D. Cal. Dec. 6, 2021); G & G Closed Circuit Events, LLC v. 8 Zarazua, 3:20-cv-988-DMS-MDD, Doc. No. 13 (S.D. Cal. July 20, 2021); G & G Closed 9 Circuit Events, LLC v. Sanchez, 3:18-cv-382-WQH-KSC (S.D. Cal. Nov. 28, 2018). 10 Accordingly, the Court concludes that an award of $5,440.20 in attorneys’ fees is 11 reasonable and warranted. 12 II. Motion to Alter or Amend the Court’s Judgment 13 Federal Rule of Civil Procedure 59(e) gives district courts the power to reconsider a 14 previous ruling or entry of judgment. Rule 59(e) offers an “extraordinary remedy, to be 15 used sparingly in the interests of finality and conservation of judicial resources.” Kona 16 Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). Thus, 17 “a motion for reconsideration should not be granted, absent highly unusual circumstances.” 18 Id. (citation omitted). Rule 59(e) motions are only granted in the rare case where “(1) the 19 district court is presented with newly discovered evidence, (2) the district court committed 20 clear error or made an initial decision that was manifestly unjust, or (3) there is an 21 intervening change in controlling law.” Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 22 23 24 properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations 25 imposed by the client or the circumstances, (8) the amount involved and the results 26 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with 27 the client, and (12) awards in similar cases.” Kerr v. Screen Extras Guild, Inc., 526 F.2d 1 2011) (citation omitted). A Rule 59(e) motion “may not be used to relitigate old matters[.]” 2 Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5. (2008) (internal citation omitted); 3 see also Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (Rule 59(e) motion may not 4 be used get a “second bite at the apple”). Plaintiff moves this Court to alter or amend its 5 judgment on the basis that the Court committed clear error when it did not award enhanced 6 statutory damages. To establish clear error or manifest injustice, the reviewing court must 7 be “left with the definite and firm conviction that a mistake has been committed.” Smith 8 v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting U.S. v. U.S. Gypsum 9 Co., 333 U.S. 364, 395 (1948)). 10 A court may award enhanced statutory damages for violations of 47 U.S.C. § 605 11 pursuant to Section 605(e)(3)(C)(ii). That provision states: 12 (ii) In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or 13 private financial gain, the court in its discretion may increase the award of 14 damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a). 15 16 Plaintiff asserts that the Court erred in its application of this provision. First, 17 Plaintiff argues that the Court erred in finding an absence of financial gain. Plaintiff 18 highlights the Court’s observation that the Plaintiff “failed to present evidence showing 19 that Defendant’s broadcast of the Program was done for significant private financial gain.” 20 (Doc. No. 25 at 5.) Plaintiff asserts that the Court inserted “significant” into its reading of 21 the statutory requirement for enhanced damages, and as a result, it erred by concluding 22 there was no financial gain on which to award enhanced damages. But Plaintiff misreads 23 the Court’s opinion. Section 605(e)(3)(C)(ii) provides the Court with discretion to award 24 enhanced damages. Plaintiff’s failure to show that Defendant violated Section 605 for 25 “significant” private financial gain was one factor that the Court considered in its 26 discretion. This factor weighed against an award of enhanced damages. The Court did not 27 consider “significant” private financial gain to be a statutory prerequisite for enhanced 1 Second, Plaintiff asserts that the Court erred by not addressing whether the 2 Defendant acted “for purposes of direct or indirect commercial advantage.” (Id. at 4-5.) 3 The Court agrees that it may award enhanced damages in its discretion upon a finding that 4 the Defendant willfully committed a violation of Section 605 for purposes of direct or 5 indirect commercial advantage. But the Court did not decline to award enhanced damages 6 on the basis that the Section 605(e)(3)(C)(ii) requirements were not met. The Court based 7 its discretionary decision not to award enhanced damages on its review of the alleged facts. 8 Third, Plaintiff faults the Court for citing to Kingvision Pay-Per-View, Ltd. V. 9 Backman, 102 F. Supp. 2d 1196 (N.D. Cal. 2000) for the proposition that the “mere 10 assertion that [the defendant] acted willfully is insufficient to justify enhanced damages.” 11 Plaintiff argues that Backman is distinguishable because Plaintiff proved that the 12 Defendant acted willfully through more than a “mere assertion.” (Doc. No. 25 at 8-9.) 13 Plaintiff also argues that the Court erred when it considered G & G Closed Cir. Events, 14 LLC v. Nguyen, 2012 WL 2339699 (N.D. Cal. 2012) to be instructive. Plaintiff asserts 15 that the Court replaced the statutory requirements of Section 605(e)(3)(C)(ii) with the 16 commentary of the court in the Nguyen opinion. In both arguments, Plaintiff conflates the 17 Court’s discretionary award analysis with the statutory requirements. The Court cited 18 Backman and Nguyen as instructive on whether enhanced damages should be awarded in 19 the Court’s discretion, and not as a replacement, or even a supplement, to the statutory 20 requirements of Section 605(e)(3)(C)(ii). 21 Finally, Plaintiff suggests that the Court should reconsider its decision not to award 22 enhanced damages. (Doc. No. 25 at 6-10.) But Plaintiff fails to show any legal error. 23 Plaintiff reiterates that Defendant displayed the Program on seven 65-inch televisions, but 24 the Court considered this factor in its initial opinion. (Order at 7.) Plaintiff cites to several 25 cases in which courts awarded or recommended enhanced damages. See, e.g., J & J Sports 26 Productions, Inc. v. Marcaida, 2011 WL 2149923 (N.D. Cal. 2011); J & J Sports 27 Productions, Inc. v. Olivares, 2011 WL 587466 (E.D. Cal. 2011); J & J Sports Productions, 1 || Inc. v. Coria, 2015 WL 1089044 (N.D. Cal. 2015). However, these opinions do not indicate 2 || that the Court’s award was in error. “Courts in this circuit have granted widely varying 3 || awards ranging from near the minimum statutory award of $1,000 to near the maximum of 4 ||$110,000, depending on such factors as the capacity of the establishment, the number of 5 || patrons in attendance, and whether a cover charge was required for entrance.” Marcaida, 6 |}2011 WL 2149923, at *3. The Court’s total damages award, three times the Program’s 7 || broadcast fee, is similar to awards issued by other courts in analogous circumstances. See, 8 |le.g., id. at *4; J & J Sports Productions, Inc. v. Sergura, 2014 WL 1618577 (N.D. Cal. 9 2014). Notably, other courts have awarded less in their discretion. See, e.g., Universal 10 || Sports Network, Inc. v. Jimenez, 2002 WL 31109707 (N.D. Cal. 2002). 11 Plaintiff fails to show that the Court’s decision was in error. Accordingly, the Court 12 denies Plaintiff's motion to alter or amend its Order. 13 CONCLUSION 14 For the foregoing reasons, the Court grants Plaintiff's motion for attorneys’ fees and 15 || awards $5,440.20 in attorneys’ fees to the Plaintiff. The Court denies Plaintiff's motion to 16 or amend the Court’s previous Order. 17 18 IT IS SO ORDERED. 19 || DATED: February 7, 2022 lu 20 MARILYN HUFF, 21 UNITED STATES DISTRICT COURT 22 23 24 25 26 27 28