Broadcast Music, Inc., Beechwood Music Corp., Sony/ATV Songs, LLC, and Beanly, Inc. v. Avenue Ultra Lounge, LLC and Kevin Hernandez

• Court: District Court, E.D. California
• Decided: April 28, 2026
• Docket: 2:25-cv-00998
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BROADCAST MUSIC, INC., et al., Case No. 2:25-cv-0998-TLN-JDP 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 AVENUE ULTRA LOUNGE, LLC, et al., 15 Defendants. 16 17 Plaintiffs Broadcast Music, Inc., Beechwood Music Corp., Sony/ATV Songs, LLC, and 18 Beanly, Inc. allege that defendants Avenue Ultra Lounge, LLC and Kevin Hernandez willfully 19 violated plaintiffs’ copyrights. Defendants have not appeared. Plaintiffs move for default 20 judgment, seeking statutory damages, injunctive relief, and attorney’s fees and costs. For the 21 following reasons, I recommend that plaintiffs’ motion be granted in part and denied in part. 22 Background 23 According to the complaint, defendants violated three of plaintiffs’ copyrights in an 24 “unauthorized public performance of musical compositions.” ECF No. 1 ¶ 18. In December 25 2022, plaintiffs learned that Avenue Ultra Lounge, LLC was “offering musical entertainment 26 without a license from [plaintiffs] granting permission to publicly perform the copyrighted 27 28 1 music.”1 ECF No. 17-3 ¶ 3. Plaintiffs “reached out to Defendants over sixty (60) times, by 2 phone mail, and email” with cease and desist notices, as well as information about “purchasing a 3 license for the public performance of musical compositions.” ECF No. 1 ¶ 17; see also ECF No. 4 17-1 at 3 (alleging that plaintiffs “telephoned the Defendants on thirty-five (35) occasions, sent 5 twenty-two (22) letters, and sent seventeen (17) emails”). Despite these efforts, defendants 6 “failed to enter into a license agreement . . . and continued to offer unauthorized public 7 performance” of plaintiffs’ copyrighted songs. ECF No. 17-3 ¶ 8. Accordingly, in August 2024, 8 plaintiffs’ researcher visited Avenue Ultra Lounge, LLC and recorded the public performance of 9 three compositions owned by plaintiffs. See ECF No. 1 at 8-9; ECF No. 17-3 ¶¶ 9-10. 10 In April 2025, plaintiffs commenced this action, bringing three claims for willful 11 copyright infringement against defendants Avenue Ultra Lounge, LLC, Kevin Hernandez, and 12 Kurstie Sur.2 See ECF No. 1 at 1, 8-9. Defendants were properly served on April 4, 2025. See 13 ECF Nos. 5 & 6. After defendants failed to timely respond to the complaint, plaintiffs requested 14 entry of their default, ECF No. 8, which the Clerk of the Court entered on June 18, 2025, ECF 15 No. 9. Plaintiffs now move for default judgment and seek statutory damages, injunctive relief, 16 and attorney’s fees and costs. 17 Legal Standard 18 Under Federal Rule of Civil Procedure 55, default may be entered against a party who 19 fails to plead or otherwise defend against an action. See Fed. R. Civ. P. 55(a). However, “[a] 20 defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.” 21 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. 22 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Rather, the decision to grant or deny a motion 23 for default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In 24 exercising that discretion, the court considers the following factors: 25

1 Kevin Hernandez is allegedly a managing member of Avenue Ultra Lounge, LLC and 26 has the right and ability to supervise its activities. ECF No. 1 ¶¶ 12-13. 27 2 On August 29, 2025, plaintiffs voluntarily dismissed their claims against defendant Kurstie Sur. See ECF Nos. 14 & 15. Thus, I use the term “defendants” to refer only to Avenue 28 Ultra Lounge, LLC and Kevin Hernandez. 1 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 2 (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether the default was 3 due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 4 5 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary 6 standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v. 7 Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo- 8 Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)). 9 Generally, once default is entered, “the factual allegations of the complaint, except those 10 relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 11 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 12 Cir. 1977)). However, “necessary facts not contained in the pleadings, and claims which are 13 legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 14 1261, 1267 (9th Cir. 1992). 15 Discussion 16 I. Appropriateness of the Entry of Default Judgment Under the Eitel Factors 17 The merits of plaintiffs’ substantive claims and the sufficiency of the complaint—the 18 second and third Eitel factors—weigh in favor of default judgment. To establish copyright 19 infringement, plaintiffs must show that (1) they own the copyrights for the three songs at issue 20 and (2) defendants performed those songs. See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 21 1996). In the complaint, plaintiffs sufficiently allege that they own the copyrights for the songs in 22 question. See ECF No. 1 at 8-9 (providing the title of the musical composition, the writer, the 23 publisher plaintiff, the date of copyright registration, and the copyright registration number). 24 Moreover, in addition to alleging that these three songs were performed at defendants’ business, 25 see id., plaintiffs also provide a declaration from John Flynn, the Assistant Vice President for 26 Licensing from Broadcast Music. Inc., who states that plaintiffs’ researcher visited Avenues Ultra 27 Lounge, LLC and made an “audio recording and written report of the music being publicly 28 1 performed on the evening of August 14, 2024,” see ECF no. 17-3 ¶ 9. Plaintiffs reviewed the 2 recording and verified that the three songs at issue in this action were actually performed at 3 defendants’ business. Id. ¶ 10; see also id. at 6-14. As such, plaintiffs sufficiently allege their 4 claims for copyright infringement. See Smith, 84 F.3d at 1218. 5 Similarly, plaintiffs sufficiently allege that defendants’ performance of the copyrighted 6 songs was willful. “To prove willfulness under the Copyright Act, the plaintiff must show 7 (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s 8 actions were the result of reckless disregard for, or willful blindness to, the copyright holder’s 9 rights.” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 944 (9th Cir. 2011) 10 (quoting Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 11 2005)). As noted, plaintiffs allegedly contacted defendants over sixty times by phone, email, and 12 first-class mail since December 2022. See ECF No. 1 ¶ 17; ECF No. 17-3 ¶ 12. Flynn also states 13 that plaintiffs “telephoned [defendants] on 34 occasions and on a number of those occasions 14 spoke to persons associated with the establishment’s operation.” ECF No. 17-3 ¶ 7. At 15 minimum, such outreach and actual contact with defendants’ employees establish that defendants’ 16 violations of plaintiffs’ copyrights in August 2024 “were the result of reckless disregard for, or 17 willful blindness to,” plaintiffs’ rights. See Louis Vuitton Malletier, S.A., 658 F.3d at 944. 18 The remaining Eitel factors also weigh in favor of default judgment. Defendants were 19 properly served, ECF Nos. 5 & 6, but have not responded to the complaint. Thus, it appears that 20 their default was not entered due to excusable neglect. The relief sought is authorized by statute 21 and, accepting plaintiffs’ allegations as true, there is little possibility of a dispute concerning 22 material facts. See Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) 23 (“Because all allegations in a well-pleaded complaint are taken as true after the court clerk enters 24 default judgment, there is no likelihood that any genuine issue of material fact exists.”). 25 Additionally, because defendants have not appeared in this action, plaintiffs have no recourse for 26 obtaining relief absent default judgment. Finally, although decisions on the merits are favored, 27 such a decision is impossible where, as here, defendants decline to take part in the action. See 28 Penpower Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 1093 (N.D. Cal. 2008). Accordingly, 1 plaintiffs are entitled to default judgment on their willful copyright infringement claims. 2 II. Statutory Damages 3 Under 17 U.S.C. § 504, a district court may award statutory damages of between $750 and 4 $30,000 per copyright infringement. 17 U.S.C. § 504(c)(1). Courts have “wide discretion in 5 determining the amount of statutory damages to be awarded, constrained only by the specified 6 maxima and minima.” Harris v. Emus Recs. Corp., 734 F.2d 1329, 1335 (9th Cir. 1984). 7 “Generally, an award of three times the average licensing fee for the [infringement] is sufficient 8 to protect the plaintiff’s rights and discourage defendants from future acts of infringement.” 9 Eva’s Photography, Inc. v. Hudson, No. 24-cv-1879-MWF, 2024 WL 5413156, at *6 (C.D. Cal. 10 Nov. 13, 2024) (collecting cases). 11 Plaintiffs request a total award of $15,000, which “is approximately three times the 12 amount Plaintiffs would have received in licensing fees from Defendants to date had their 13 establishment been licensed.” See ECF No. 17-1 at 4-5; ECF No. 1 at 5; ECF No. 17-3 ¶ 15 14 (“Had the defendants entered into an agreement at the time [plaintiffs] first contacted them in 15 December 2022, the estimated license fees between December 2022 and [August 2025] would 16 have been approximately $4,441.50.”). I find that an award of $15,000 is appropriate to 17 compensate plaintiffs for lost profits and deter defendants’ future infringements. See Broad. 18 Music, Inc. v. JMN Rest. Mgmt. Corp., No. 14-cv-1190-JD, 2014 WL 5106421, at *3 (N.D. Cal. 19 Oct. 10, 2014) (awarding $36,000 where plaintiff claimed that it would have received $11,112.50 20 if defendant had purchased the licensing agreement when it was first contacted); Broad. Music, 21 Inc. v. Kiflit, No. 12-cv-0856-LHK, 2012 WL 4717852, at *4 (N.D. Cal. Oct. 2, 2012) (awarding 22 $9,000 where plaintiff claimed that it would have received $2,806.90 if defendant had purchased 23 the licensing agreement when it was first contacted). 24 III. Permanent Injunction 25 Under § 502, a district court may grant a permanent injunction “as it may deem reasonable 26 to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). “As a general rule, a 27 permanent injunction will be granted when liability has been established and there is a threat of 28 continuing violations.” MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1 1993). 2 Plaintiffs seek a permanent injunction restraining defendants from performing any 3 copyrighted songs licensed by plaintiffs. See ECF No. 17-1 at 6; ECF No. 1 at 5. In light of the 4 allegations that defendants have continued to violate plaintiffs’ copyrights even after plaintiffs 5 sent cease and desist notices and initiated this action, I find that a permanent injunction is 6 appropriate. See JMN Rest. Mgmt. Corp., 2014 WL 5106421, at *3 (granting a permanent 7 injunction because “[t]he fact that defendants have continued to violate plaintiffs’ copyrights 8 despite years of warnings suggests that, absent an injunction, they will go on doing so—a 9 conclusion bolstered by the fact that the defendants have not responded to plaintiffs’ allegations 10 in this Court”). Moreover, an injunction will not impose a hardship on defendants because it will 11 be “narrowly tailored to prohibit only future infringing behavior.” See Kiflit, 2012 WL 4717852, 12 at *3. 13 IV. Attorney’s Fees and Costs 14 Under § 505, a district court may award reasonable attorney’s fees and costs to the 15 prevailing party. 17 U.S.C. § 505. To determine the reasonableness of attorney’s fees, courts use 16 the lodestar method, whereby “a district court must start by determining how many hours were 17 reasonably expended on the litigation, and then multiply those hours by the prevailing local rate 18 for an attorney of the skill required to perform the litigation.” Moreno v. City of Sacramento, 534 19 F.3d 1106, 1111 (9th Cir. 2008). “The Supreme Court has consistently held that reasonable fees 20 are to be calculated according to the prevailing market rates in the relevant community,” Van 21 Skike v. Dir. Off. Of Workers’ Comp. Programs, 557 F.3d 1041, 1046 (9th Cir. 2009), and not “by 22 reference to rates actually charged the prevailing party,” Chalmers v. City of Los Angeles, 796 23 F.2d 1205, 1210 (9th Cir. 1986). The party seeking fees has the burden “to produce satisfactory 24 evidence . . . that the requested rates are in line with those prevailing in the community for similar 25 services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 26 465 U.S. 886, 895 n.11 (1984). 27 Plaintiffs seek $22,899 in attorney’s fees and $1,001.15 in costs. See ECF No. 17-1 at 7; 28 ECF No. 1 at 6. The requested attorneys’ fees are based on approximately 22.3 hours of work 1 performed by two attorneys at hourly rates of $475 and $1,290. ECF No. 17-2 ¶¶ 7-8. Plaintiffs’ 2 counsel contends that the hourly rates sought are “presumptively reasonable.” ECF No. 17-2 ¶ 6. 3 Counsel, however, provides no evidence or authority showing that the hourly rates sought are in 4 line with rates in the Eastern District of California for work of similar complexity by attorneys 5 with comparable experience. Instead, counsel relies on the “locality payment” for the “San Jose- 6 San Francisco-Oakland area” based on data from the U.S. Office of Personnel Management and 7 the U.S. Department of Justice.3 See id. Plaintiffs therefore have failed to satisfy their burden of 8 demonstrating that the requested rates are reasonable. See Jordan v. Multnomah Cnty, 815 F.2d 9 1258, 1263 (9th Cir. 1987) (“The fee applicant has the burden of producing satisfactory evidence, 10 in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing 11 in the community for similar services of lawyers of reasonably comparable skill and reputation.”). 12 Moreover, plaintiffs seek fees for counsel’s hours that appear to have been spent on 13 clerical work. The Ninth Circuit has explained that “[i]t simply is not reasonable for a lawyer to 14 bill, at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a 15 much lower cost.” Davis v. City & Cnty of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1993). 16 Plaintiffs’ counsel, Samuel Jubelirer, seeks fees for: 1.8 hours when he “[p]repared complaint and 17 accompanying documents for filing;” 0.9 hours when he “[r]esolved issue with attachments to 18 complaint;” 0.2 hours when he “[d]rafted magistrate consent form;” 0.3 hours when he called and 19 left voicemails “with defendants regarding answer deadline;” 0.4 hours when he “[d]rafted letter 20 to [defendants] regarding potential default;” 2 hours when he drafted the request for entry of 21 default; 0.1 hours when he “[r]eviewed clerk’s entry of default;” 0.3 hours in connection with the 22 court’s order reassigning this action to the district judge; and 3.3 hours when he drafted the 23 instant motion and supporting declarations. See ECF No. 17-2 at 15, 19, 23 30, 33, and 37. 24 Many of these tasks could have been completed by clerical staff. See Reyna v. Astrue, No. 1:09- 25 cv-0719-SMS, 2011 WL 6100609, at * 2 (E.D. Cal. Dec. 6, 2011) (finding that time billed “to 26 3 It also bears mention that while plaintiffs’ counsel, Samuel Jubelirer, maintains that his 27 hourly rate should be $1,290, he also states that his calculation yielded “a presumptively reasonable hourly rate of $863.” See ECF No. 17-2 ¶ 6. Counsel does not explain this 28 discrepancy or how he determined the $1,290 hourly rate. 1 prepare, review, and electronically file the complaint, IFP, and related documents was work 2 reasonably to be performed by an experienced legal secretary”). While counsel would, of course, 3 need to spend some time reviewing documents before submission, the hours included in 4 plaintiffs’ request appear to be excessive. 5 Lastly, plaintiffs seeks fees for time counsel expended in relation to defendant Kurstie 6 Sur. As noted, plaintiffs voluntarily dismissed their claims against Kurstie Sur. See ECF Nos. 14 7 & 15. Nonetheless, they seek fees for over three hours of Jubelirer’s work on legal issues 8 involving Sur. See ECF No. 17-2 at 15, 19-20, 23, and 37. Plaintiffs do not explain why 9 defendants must pay attorney’s fees for work regarding another defendant whom they voluntarily 10 dismissed. Indeed, it appears that plaintiffs are not entitled to such fees. See Cataphora Inc. v. 11 Parker, 848 F. Supp. 2d 1064, 1070 (N.D. Cal. 2012) (reducing hours requested by the plaintiff 12 for work associated with a defendant who was voluntarily dismissed). 13 In light of these deficiencies, plaintiffs’ request for attorney’s fees and costs should be 14 denied without prejudice to renewal upon an appropriate motion filed in compliance with Local 15 Rules 292 and 293. 16 Accordingly, it is hereby RECOMMENDED that: 17 1. Plaintiffs’ motion for default judgment, ECF No. 17, be GRANTED in part and 18 DENIED in part. 19 2. The court enter judgment against defendants Avenue Ultra Lounge, LLC and Kevin 20 Hernandez in the amount of $15,000 in statutory damages. 21 3. Defendants, their agents, servants, employees, and all persons acting under their 22 permission and authority, be enjoined and restrained from infringing, in any manner, the 23 copyrighted musical compositions licensed by Broadcast Music, Inc. 24 4. Plaintiffs’ request for attorney’s fees and costs be denied without prejudice to renewal 25 upon a timely motion filed in compliance with Local Rules 292 and 293. 26 5. The Clerk of the Court be directed to close this case. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of 1 | service of these findings and recommendations, any party may file written objections with the 2 | court and serve a copy on all parties. Any such document should be captioned “Objections to 3 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 4 | within fourteen days of service of the objections. The parties are advised that failure to file 5 || objections within the specified time may waive the right to appeal the District Court’s order. See 6 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (th Cir. 7 | 1991). 8 9 IT IS SO ORDERED.

Dated: _ April 27, 2026 aw—— 1] JEREMY D. PETERSON 1 UNITED STATES MAGISTRATE JUDGE

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