United States District Court, E.D. California
ORDER PERMITTING DEFENDANTS TO RESUBMIT WITNESS
STATEMENTS IN THE FORM REQUIRED WITHIN FOURTEEN DAYS
April 6, 2016, Plaintiff J&J Sports Productions, Inc.
(“Plaintiff”), brought suit against Petrice
Marini and Vincent Marini, individually and doing business as
Vinny's Bar (“Defendants”), alleging that
Defendants unlawfully intercepted (or received) and broadcast
“The Fight of the Century” Floyd Mayweather,
Jr. v. Manny Pacquiao Championship Fight Program (the
“Program”), over which Plaintiff was granted
exclusive rights for nationwide commercial distribution.
See Doc. 1; Affidavit of Joseph M. Gagliardi, Doc.
31-3 (“Gagliardi Aff.”) at ¶ 3. Plaintiff
moves for summary judgment because Plaintiff has acknowledged
having displayed the Program. Defendants oppose the motion on
the ground that the Program was displayed on a channel
authorized for their use. Plaintiff objects to the
Court's consideration of much of the evidence submitted
following reasons, a ruling on Plaintiff's motion for
partial summary judgment will be delayed and Defendants will
be permitted to resubmit witness statements in a form
appropriately considered by the Court.
is a television production company that obtained “the
exclusive nationwide commercial distribution (closed-circuit)
rights to” the Program. Gagliardi Aff. at ¶ 3.
Plaintiff granted limited sublicenses to various commercial
entities in California, specifically permitting public
exhibition of the Program in the commercial establishments
that those entities operated. Id. Defendants did not
obtain any license to receive or display the Program to the
public at Vinny's Bar. Id. Defendants did
receive and display the at least some portion of the Program
to patrons at Vinny's Bar on Saturday, May 2, 2015. Doc 1
at ¶ 21. Specifically, Defendant's investigator
“observed one television located inside [Vinny's
Bar] playing the [Program]. The TV was a 32” flat
screen, located on the left hand side of the bar.”
Affidavit of Brandi Sutton, Doc.31-4 (“Sutton
Aff.”) at 2-3.
Vincent and Petrice Marini are co-owners of Vinny's Bar
in Bakersfield, California. See Declaration of
Vincent and Petrice Marini, Doc. 35 (“Marini
Decl.”) at ¶ 1. Defendants admit having displayed
the main event of the Program to the Patrons of Vinny's
Bar on Saturday, May 2, 2015. Doc. 18 at ¶ 12;
see Marini Decl. at ¶¶ 8, 12. However,
Defendants contend that they not receive the program on a
closed-circuit channel. Marini Decl. at ¶¶ 7, 11.
Doc. 18 at ¶ 12. Defendants explain that “[two]
and a half hours into [t]he Program… nationwide 
technical failure caused blackouts, ” resulting in
“[P]laintiff, [its] partners, and[/]or their cable
subsidiaries  transmit[ting] … [the remainder of]
[t]he Program via … an open ordinary channel” of
a commercial cable account. Doc. 22 at 3; accord
Doc. 18 at ¶ 24. At approximately 9:00 p.m., a
Vinny's Bar patron asked the bartender to change the
channel to “Bright House Cable, channel 902, ” to
display the Program and the bartender did so. Marini Decl. at
¶¶ 7-8; Declaration of Deidre Watters, Doc. 35
(“Watters Decl.”) at 13; Declaration of Brandyn
Hicks, Doc. 35 (“Hicks Decl.”) at 18-19.
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 (1986);
see Fed. R. Civ. P. 56(c)(1)(A).
the party moving for summary judgment will bear the burden of
proof at trial that party must come forward with evidence
that would entitle it to a directed verdict if the evidence
were uncontroverted at trial. Houghton v. South, 965
F.2d 1532, 1536 (9th Cir. 1992); see also Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)
(“Where the moving party will have the burden of proof
on an issue at trial, the movant must affirmatively
demonstrate that no reasonable trier of fact could find other
than for the moving party.”). 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 (1986). To overcome summary judgment, the opposing
party must demonstrate a factual dispute that is both
material, i.e., it affects the outcome of the claim under the
governing law, see Anderson, 477 U.S. at 248;
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and
genuine, i.e., the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. See Wool
v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.
1987). In order to demonstrate a genuine issue, the opposing
party “must do more than simply show that there is some
metaphysical doubt as to the material facts…. Where
the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no
‘genuine issue for trial.'”
Matsushita, 475 U.S. at p. 587 (citation omitted).
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 (1986). Nevertheless, inferences
are not drawn out of the air, and it is the opposing
party's obligation to produce a factual predicate from
which the inference may be drawn. See Richards v. Nielsen
Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal.
1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
moves for summary adjudication as to its cause of actions for
(1) unauthorized interception or receipt of the Program in
violation of the Cable Television Consumer Protection and
Competition Act of 1992, 47 U.S.C. § 553, (or the
Federal Communications Act of 1934 (“Communications
Act”), 47 U.S.C. § 605) and (2) conversion under
California law. See Doc. 31 at 2. Defendants have
filed multiple documents in response to Plaintiff's
motion, including declarations from witnesses. Plaintiff
objects to the admissibility of much of that evidence. The
Court addresses only the questions of admissibility.
Resolution of Plaintiff's motion for summary judgment
will be delayed.
Admissibility of Defendants' Submissions
objections to this Court's consideration of any of the
“Witness Statements” submitted by Defendants
because none are sworn under penalty of perjury or attest to
the truth of the facts set forth therein. Doc. 38 at 2-3.
Plaintiff is correct that Defendants' witness statements
are not in compliance with 28 U.S.C. § 1746(2),
requiring a declaration to be made under penalty of perjury
and attested to be true. 28 U.S.C. § 1746(2)
(Declarations must be “in substantially the following
form: … ‘“I declare (or certify, verify,
or state) under penalty of perjury that the foregoing is true
and correct. Executed on (date). (Signature)'.”);
see, e.g. Watters Decl. at 12-13. Courts in
this Circuit uniformly refuse to consider such submissions as
evidence because they lack sufficient indicia of
truthfulness. See Aviles v. Quick Pick Express, LLC,
2015 WL 5601824, *2 (C.D. Cal. Sept. 23, 2015); Johnson
v. Sandy, 2015 WL 1894400, at *1 (E.D. Cal. April 24,
2015); Forbes v. Villa, 2013 WL 12164779, *2 (C.D.
Cal. Dec. 3, 2013); ...