Lourdes H Trautner

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 09-46565 TM
Chapter 7
LOURDES H. TRAUTNER,
Debtor.
____________________________/
MEMORANDUM OF DECISION
Paul 	Mansdorf 	(the 	“Trustee”), 	the 	chapter 	7 	trustee 	in 	the
above-captioned case, filed an objection to the claim of J & J Sports
Productions, Inc. (“Claimant”). 	Claimant opposed the objection, and
the dispute was presented to the Court on December 3, 2009. 	At the
conclusion 	of 	the 	hearing, 	the 	Court 	took 	the 	matter 	under
submission. 	Having now fully considered the undisputed facts and the
applicable law, the Court concludes that Claimant’s claim should be
allowed in a reduced amount.
DISCUSSION
The above-captioned chapter 7 case was filed on July 22, 2009.
Claimant 	filed 	a 	timely 	proof 	of 	claim 	(the 	“Proof 	of 	Claim”)
asserting an unsecured nonpriority claim in the amount of $101,500.
Attached to the Proof of Claim is a copy of a complaint filed in the
Signed: January 13, 2010
________________________________________
LESLIE TCHAIKOVSKY
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
January 13, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-46565 Doc# 42 Filed: 01/13/10 Entered: 01/13/10 14:05:44 Page 1 of 7

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United States District Court for the Northern District of California
(the 	“Complaint”) 	on 	March 	10, 	2009. 	The 	Complaint 	alleges 	that
Claimant 	is 	the 	owner 	of 	the 	exclusive 	nationwide 	commercial
distribution rights to a featherweight championship fight telecast on
March 	15, 	2008 	(the 	“Boxing 	Match”). 	It 	alleges 	that 	Claimant
sublicensed the Boxing Match to various commercial establishments for
a fee, not including the above-captioned debtor (the “Debtor”). 	It
alleges 	that 	the 	Debtor, 	without 	authorization 	from 	Claimant,
exhibited 	the 	Boxing 	Match 	to 	the 	public, 	willfully 	and 	for
commercial gain.
The Complaint alleges that the Debtor’s unauthorized showing of
the 	Boxing 	Match 	violated 	47 	U.S.C. 	§ 	605 	and 	§ 	553. 	In 	the
Complaint, Claimant seeks damages for violation of 	§ 605 and § 553
in 	specified 	amounts 	and 	damages 	and/or 	restitution 	for 	conversion
and 	violation 	of 	Cal. 	Bus. 	& 	Prof. 	Code 	§ 	17200 	et 	seq. 	in
unspecified amounts.
Also 	attached 	to 	the 	Complaint 	is 	a 	notice 	of 	application 	and
application 	for 	default 	judgment 	(the 	“Default 	Application”). 	The
Default 	Application 	asserts 	that 	on 	March 	15, 	2008, 	without
authorization from Claimant, the Debtor exhibited the Boxing Match at
a 	food 	and 	drink 	establishment 	owned 	by 	the 	Debtor 	known 	as 	Asian
Kitchen Delight (the “Restaurant”). 	The Default Application seeks a
default judgment only on the claims for violation of 47 U.S.C. § 605
and § 553 in the total amount of $101,500. 	As discussed below, the
additional $1,500 relates to the conversion claim.
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The Default Application is supported by a memorandum of points
and 	authorities 	(“Memorandum”). 	In 	the 	Memorandum, 	the 	Claimant
notes that § 605 applies to unauthorized interception of television
programming 	by 	way 	of 	a 	satellite 	and 	that 	§ 	553 	applies 	to
unauthorized 	reception 	of 	television 	programming 	by 	cable
communication. 	Both 	sections 	permit 	the 	offended 	party 	to 	recover
either actual or statutory damages. 	In addition, the Court may award
enhanced damages if it determines that the violations were committed
willfully and financial gain. 	Claimant asserts that the Restaurant
is 	a 	commercial 	establishment 	and 	that 	the 	Debtor 	clearly 	acted
willfully by intercepting the Boxing Match. 	Thus, Claimant contends,
it is entitled to both statutory and enhanced damages.
The 	Memorandum 	acknowledges 	that 	most 	courts 	have 	not 	awarded
damages 	under 	both 	§ 	605 	and 	§ 	553 	based 	on 	a 	single 	interception.
However, 	Claimant 	contends 	that 	at 	least 	one 	court 	in 	the 	Northern
District 	did 	make 	such 	an 	award. 	Claimant 	notes 	that 	there 	is 	a
range 	of 	permissible 	statutory 	damages 	and 	that 	the 	amounts 	of 	the
awards 	in 	the 	reported 	cases 	have 	varied. 	Claimant 	notes 	that, 	to
determine 	intent 	to 	obtain 	commercial 	gain, 	courts 	have 	sometimes
looked for evidence of a cover charge or increased price of food or
drinks. 	Courts 	have 	also 	considered 	whether 	the 	exhibition 	was
advertised 	and 	the 	number 	of 	people 	who 	viewed 	the 	exhibition.
However, Claimant contends that such evidence is not essential.
The Default Application is also supported by the Declaration of
Thomas 	Riley, 	the 	attorney 	for 	Claimant, 	containing 	a 	breakdown 	of
the damages sought: i.e., $50,000 for violation of § 605, $50,000 for
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violation of § 553, and $1,500 for the tort of conversion. 	Finally,
the 	Default 	Application 	is 	supported 	by 	the 	affidavit 	of 	Gary
Gravelyn 	(the 	“Affidavit”), 	an 	individual 	apparently 	employed 	by
Claimant 	to 	investigate 	violations 	of 	its 	exclusive 	rights. 	The
Affidavit 	states 	that, 	on 	March 	15, 	2008, 	at 	the 	Restaurant, 	the
affiant observed the Boxing Match being exhibited to approximately 23
people 	on 	two 	television 	screens, 	one 	of 	which 	was 	a 	42 	inch 	flat
screen. 	A 	cable 	box 	was 	not 	visible 	but 	the 	Restaurant 	did 	have 	a
satellite dish. 	Based on the Affidavit, the Court will disallow the
portion of the Proof of Claim relating to the alleged violation of §
553.
In the objection to the Proof of Claim, the Trustee notes that
the permissible statutory damages for violation of § 605 range from
$1,000 to $10,000 and permissible enhanced damages range from zero to
$100,000. 	The 	Trustee 	contends 	that, 	as 	exemplified 	by 	the
decisions cited by the parties, the trend in the Northern District is
to award minimal statutory damages, e.g., $1,000, and no or minimal
enhanced 	damages 	when 	the 	violation 	took 	place 	in 	a 	small
establishment with few patrons and was not advertised. 	In support of
this 	contention, 	the 	Trustee 	cites 	a 	series 	of 	cases 	decided 	by
district court judges in the Northern District of California.
In 	response, 	Claimant 	cites 	a 	series 	of 	proposed 	decisions 	by
judge magistrates in the Eastern District of California, awarding the
full 	amount 	of 	the 	statutory 	damages 	requested 	in 	the 	default
applications. 	Claimant also cites cases from Texas and New York in
which 	more 	substantial 	damages 	were 	awarded. 	With 	respect 	to 	the
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claim 	for 	conversion, 	Claimant 	notes 	that 	a 	Northern 	District 	case
awarded 	conversion 	damages 	of 	$1,500 	under 	similar 	facts,
representing the licensing fee for a commercial establishment of the
defendant’s size.
But for the filing of the bankruptcy case, this issue would have
been 	decided 	by 	the 	United 	States 	District 	Court 	for 	the 	Northern
District of California. 	Therefore, the cases decided by the district
court judges in this district are more persuasive than those decided
by district judges or judge magistrates of other districts. 	Three of
these decisions were issued in 2009: i.e., Kingvision Pay-Per-View,
Ltd. v. Barron, 2009 WL 347263 (N.D. Cal.); J & J Sports Productions,
Inc. 	v. 	Cortes, 	2009 	WL 	801554 	(N.D. 	Cal.) 	and 	J 	& 	J 	Sports
Productions, 	Inc. 	v. 	Guzman 	et 	al., 	2009 	WL 	1034218 	(N.D.Cal.)
Given 	their 	proximity 	in 	time, 	the 	Court 	views 	these 	decisions 	as
particularly persuasive.
In 	Cortes, 	the 	court 	awarded 	statutory 	damages 	of 	$2,000,
enhanced damages of $6,000, plus a small amount of attorneys’ fees.
In 	Guzman, 	the 	court 	awarded 	statutory 	damages 	of 	$4,000 	with 	no
enhanced damages. 	The Guzman court declined to award attorneys’ fees
due 	to 	the 	applicant’s 	failure 	to 	present 	evidence 	as 	to 	the 	fees
incurred. 	In Barron, the court found that the statutory claims were
barred by the statute of limitations and denied them on that basis.
However, the court awarded $1,500 on the conversion claim.
Based 	on 	these 	and 	other 	Northern 	District 	authorities, 	the
Court will allow the Claimant’s claim as follows:
(1) statutory damages of $2,000 for violation of § 605,
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(2) enhanced damages of $6,000 for violation of § 605, and
(3) damages for conversion of $1,500,
for 	a 	total 	award 	of 	$9,500. 	No 	attorneys’ 	fees 	will 	be 	allowed
given 	the 	applicant’s 	failure 	to 	present 	evidence 	of 	the 	fees
incurred. 	Except as set forth herein, the Claim will be disallowed.
Counsel 	for 	the 	Trustee 	is 	directed 	to 	submit 	a 	proposed 	form 	of
order in accordance with this decision.
END OF DOCUMENT
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COURT SERVICE LIST
Reidun Stromsheim
Law Offices of Stromsheim and Assoc.
201 California St. #350
San Francisco, CA 94111
Thomas P. Riley
Law Offices of Thomas P. Riley
First Library Square
1114 Fremont Ave.
South Pasadena, CA 91030
Duane L. Tucker
Law Offices of Duane L. Tucker
27793 Tampa Ave.
Hayward, CA 94544
Case: 09-46565 Doc# 42 Filed: 01/13/10 Entered: 01/13/10 14:05:44 Page 7 of 7