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J & J Sports Productions, Inc v. Arturo M. Flores and Alejandro

December 17, 2012

J & J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
ARTURO M. FLORES AND ALEJANDRO ALEX VAZQUEZ, INDIVIDUALLY AND DBA LOS AMIGOS AKA MARAKAS TROPICAL AKA LA PLACITA,
DEFENDANTS.
AND RELATED CROSS-ACTION



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

I. INTRODUCTION

Defendants Arturo M. Flores and Alejandro Alex Vazquez move for summary judgment or summary adjudication in the alternative. For reasons discussed below, summary judgment 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 9, 2010, plaintiff J & J Sports Productions, Inc. (hereinafter referred to as "Plaintiff") filed its complaint against defendants Arturo M. Flores and Alejandro Alex Vazquez, individually and dba Los Amigos aka Marakas Tropical aka La Placita (hereinafter referred to as "Defendants"), asserting causes of action for (1) violation of section 605 of the Federal Communications Act of 1934, as amended (47 U.S.C. § 605), (2) violation of section 553 of the Federal Cable Communications Policy Act of 1992, as amended (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, . . . , etc.)." Plaintiff further alleged:

"Plaintiff is informed and believes, and alleges thereon that Defendant, Arturo M. Flores, is an owner and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight, and management of the commercial establishment doing business as Los Amigos a/k/a Marakas Tropical a/k/a La Placita operating at 8331 Kern Canyon Road, Space 34, Bakersfield, California 93306. [¶] Plaintiff is informed and believes, and alleges thereon that Defendant, Alejandro Alex Vazquez, is an owner, and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight and management of the commercial establishment doing business as Los Amigos a/k/a Marakas Tropical a/k/a La Placita operating at 8331 Kern Canyon Road, Space 34, Bakersfield, California 93306."

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, Space 34, Bakersfield, California 93306."

On July 16, 2012, Defendants filed a motion for summary judgment or summary adjudication in the alternative, contending there are no triable issues of material fact and Defendants are entitled to judgment as a matter of law. On August 6, 2012, Plaintiff filed its opposition to Defendants' motion. On August 13, 2012, Defendants filed their reply to Plaintiff's opposition.

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, ...


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