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J & J Sports Productions, Inc v. Edwin O. Flores

November 26, 2012

J & J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
EDWIN O. FLORES, INDIVIDUALLY AND D/B/A EL TAZUMAL RESTAURANT,
DEFENDANT.



ORDER RE: MOTION FOR SUMMARY JUDGMENT (Doc. 41)

I. INTRODUCTION

Plaintiff J & J Sports Productions, Inc., has filed a motion for summary judgment against defendant Edwin O. Flores. Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court finds there are no genuine issues of material fact and Plaintiff is entitled to judgment as a matter of law. Accordingly, the motion shall be granted.

II. FACTS AND PROCEDURAL BACKGROUND

The Court refers the parties to previous orders for a complete chronology of the proceedings. On November 10, 2010, plaintiff J & J Sports Productions, Inc. (hereinafter referred to as "Plaintiff") filed its complaint against defendant Edwin O. Flores, individually and d/b/a El Tazumal Restaurant (hereinafter referred to as "Defendant"), asserting causes of action for (1) violation of 47 U.S.C. § 605, (2) violation of 47 U.S.C. § 553, (3) conversion and (4) violation of California's Unfair Competition Law (UCL), California Business and Professions Code Sections 17200 et seq. In the complaint, Plaintiff alleged as follows:

"Pursuant to contract, Plaintiff J & J Sports Productions, Inc., was granted the exclusive nationwide commercial distribution (closed-circuit) rights to "Firepower": Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program, telecast nationwide on Saturday, November 14, 2009 (this included all under-card bouts and fight commentary encompassed in the television broadcast of the event, hereinafter referred to as the "Program").

Plaintiff further alleged:

"Pursuant to contract, Plaintiff J & J Sports Productions, Inc., entered into subsequent sublicensing agreements with various commercial entities throughout North America, including entities within the State of California, by which it granted these entities limited sublicensing rights, specifically the rights to publicly exhibit the Program within their respective commercial establishments in the hospitality industry (i.e., hotels, racetracks, casinos, bars, taverns, restaurants, social clubs, etc.). Plaintiff further alleged:

"With full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every of the above named Defendants and/or their agents, servants, workmen or employees did unlawfully intercept, receive, publish, divulge, display and/or exhibit the Program at the time of its transmission at their commercial establishment in Bakersfield, California located at 8331 Kern Canyon Road #13, Bakersfield, California 93306. [¶] Said unauthorized interception, reception, publication, exhibition, divulgence, display and/or exhibition by each of the Defendants was done willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain."

Defendant did not file an answer to the complaint or other responsive pleading within the time allotted by the Federal Rules of Civil Procedure. On February 9, 2011, Plaintiff filed a request for entry of default, and Defendant's default was entered by the Clerk of Court. On March 10, 2011, Plaintiff filed a motion for default judgment. On April 15, 2011, Defendant filed an opposition to Plaintiff's motion for default judgment and a motion to vacate his default. On May 18, 2011, the Magistrate Judge granted Defendant's motion to vacate his default and denied Plaintiff's motion for default judgment. On May 19, 2011, Defendant filed an answer to the complaint, asserting fourteen affirmative defenses and what effectively amounted to a denial of the allegations. On August 27, 2012, Plaintiff filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a), seeking a judgment as to liability and damages in favor of itself and against Defendant on the section 605, section 553 and conversion claims.*fn1 Defendant did not oppose Plaintiff's motion.

III. LEGAL STANDARD

"A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact, Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).

IV. DISCUSSION

A. The section 605 claim -- Plaintiff's first cause of action asserts Defendant's unauthorized interception and exhibition of the Program violated section 605 of the Federal Communications Act of 1934, as amended. Section 605 prohibits the unauthorized interception and exhibition of closed-circuit television programming, see Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F.Supp.2d 438 (S.D.N.Y. 2001), and satellite-delivered programming. DirecTV, Inc. v. Webb, 545 F.3d 837, 843 (9th Cir. 2008). Subsection (a) of the statute provides in pertinent part: "[N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney . . . . No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, . . . or meaning of such intercepted communication to any person." 47 U.S.C. § 605(a). "Any person aggrieved by a violation of subsection (a)" may bring a civil action for actual or statutory damages for each violation. 47 U.S.C. § 605(e)(3)(C). "Any person aggrieved" includes "any person with proprietary rights in the intercepted communication." 47 U.S.C. § 605(b)(6).

In support of the motion for summary judgment, Plaintiff submits the affidavit of its president, Joseph M. Gagliardi, who reaffirms the testimony he provided in an affidavit submitted in support of Plaintiff's March 10, 2011 motion for default judgment. Gagliardi testified Plaintiff purchased and retained the commercial exhibition licensing rights to the Program and thereafter sublicensed those rights to its commercial customers. Gagliardi further testified that domestic commercial establishments contracting with Plaintiff were required to pay Plaintiff a commercial sublicense fee (based on the capacity of the establishment) to broadcast the Program, and that at no time did Defendant's establishment, El Tazumal Restaurant, ever lawfully license the Program from Plaintiff. Gagliardi further testified that to the best of his knowledge, Plaintiff's programming could not be mistakenly, innocently or accidentally (i.e., inadvertently) intercepted. Plaintiff also refers the Court to the declaration of investigator Gilbert Tate, also submitted with its March 10, 2011 motion for default judgment. Tate testified that on November 14, 2009 -- the night the Program was telecast -- he entered the establishment known as ...


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