J & J Sports Productions, Inc. v. Rubalcaba

Filing 22

ORDER Denying Plaintiff's Motion For Summary Judgment (Doc. 18 ), signed by District Judge Anthony W. Ishii on 7/22/2014. (Fahrney, E)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 J & J Sports Productions, Inc., 6 Plaintiff; 7 8 9 CASE NO. 1:13-CV-842 AWI-JLT ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. Jose Del Refugio Rubalcaba Sandana a/k/a Jose Luis Rubalcaba, individually and d/b/a El Atoron Billiards, 10 (Doc. 18) Defendants. 11 12 Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) brings this action against Jose Del 13 14 Refugio Rubalcaba Sandana a/k/a Jose Luis Rubalcaba, individually and d/b/a El Atoron Billiards 15 (“Defendant”) for violations of 47 U.S.C. Sections 605 and 553, and California state claims of 16 conversion and violation of California Business and Professions Code section 17200, California‟s 17 Unfair Competition Law, for Defendant‟s unauthorized displaying of television programming for 18 which Plaintiff owned exclusive distribution rights. Plaintiff moves for summary judgment on its 19 federal claims and for conversion. 20 21 I. BACKGROUND Plaintiff is a closed circuit distributor of sports and entertainment programming. Doc. 18-4 22 (Plaintiff‟s Affidavit), 1:26-27. The programming is distributed by satellite and cable television 23 providers such as Comcast Cable, DirecTV, and Dish Network. Doc. 18-4, 4:17-19. Plaintiff 24 purchases the commercial exhibition licensing rights and then sublicenses the commercial 25 exhibition rights to its commercial customers. Doc. 18-4, 2:5-6, 4:17-20. In order for the 26 sublicensee to exhibit it, Plaintiff must direct the programming provider to provide an unencrypted 27 signal to the sublicensee. Doc. 18-4, 4:20-24. There are unlawful methods by which a person can 28 intercept and broadcast Plaintiff‟s programming. Doc. 18-4, 3:23-24. Plaintiff purchased and retained the exclusive commercial licensing rights to “Manny 1 2 Pacquiao v. Timothy Bradley, WBO Welterweight Championship Fight Program,” (“the 3 Program”) telecast nationwide on June 9, 2012. Doc. 18-4, 1:27-2:2. On June 9, 2012 around 8 4 p.m., Defendant displayed the program on three television sets at El Atoron, a bar. Doc. 18-2 5 (Affidavit of Gilbert Tate), p.2-3. Defendant had not obtained sublicensing rights from Plaintiff. 6 Doc. 18-4, 2:8-9. Defendant does not dispute that the program was displayed at El Atoron on June 7 9, 2012 and that Defendant did not purchase sublicensing rights. Doc. 18-3, Exh. 1 (Plaintiff‟s 8 First Request for Admissions), 2:15-3:7, 4:2; Exh. 2 (Defendant‟s Response to First RFAs), 1:17- 9 22, 2:3. However, Defendant‟s declaration in support of his opposition states, “there was no 10 11 interception or theft of a TV signal.” Doc. 19-1 (Defendant‟s Decl. iso Defendant‟s Opposition), 12 1:12-13. Defendant further declares, “I certainly did not authorize that any [T]V signal be 13 intercepted or TV programming displayed without properly paying for it. If that was done it was 14 without my consent, permission, or even knowledge. At the time of the alleged incident I was not 15 in control of what was being shown on the TV at that specific time.” Doc. 19-1, 1:15-1:19. And 16 “based upon my research into the events on that day in question I understand that one of the 17 customers brought their internet connection to the facility to watch the fight and it was done 18 without my consent and approval, I had no idea that it was done illegally.” Doc. 19-1, 2:18-20. Plaintiff moves for summary judgment, arguing that 47 U.S.C. Section 605 (“Section 19 20 605”) and 47 U.S.C. Section 553 (“Section 553”) are strict liability statutes and that Defendant 21 must be liable to Plaintiff under Section 605 or Section 553 solely based on the undisputed fact 22 that Defendant exhibited the Program without Plaintiff‟s authorization. Doc. 18 (Plaintiff‟s Memo 23 in Support of Motion), 5:2, 6:13-22. Plaintiff also moves for summary judgment as to its 24 conversion claim on the grounds that it had exclusive commercial rights to the Program, which 25 was allegedly intercepted by Defendant. Doc. 18, 8:10-21. 26 27 28 II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 2 1 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Satterfield v. Simon & 2 Schuster, Inc., 569 F.3d 946, 950 (9th Cir 2009). The party seeking summary judgment bears the 3 initial burden of informing the court of the basis for its motion and of identifying the portions of 4 the declarations, pleadings, and discovery that demonstrate an absence of a genuine issue of 5 material fact. Celotex, 477 U.S. at 323; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th 6 Cir. 2007). A fact is material when, under the governing substantive law, it could affect the 7 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. 8 Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if “the 9 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 10 477 U.S. at 248. 11 If the moving party meets its initial responsibility, the burden then shifts to the opposing 12 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 13 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputes over irrelevant or 14 unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248, 15 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 16 In resolving the summary judgment motion, the evidence of the opposing party is to be 17 believed (Anderson, 477 U.S. at 255), and all reasonable inferences that may be drawn from the 18 facts placed before the court must be drawn in favor of the opposing party (Matsushita, 475 U.S. 19 at 587). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate 20 inferences from the facts” are not to be decided by the judge. Anderson, 477 U.S. at 255. 21 III. LIABILITY UNDER 47 U.S.C. SECTION 605 OR 47 U.S.C. SECTION 553 22 Section 605 provides, in relevant part, that it is unlawful for any person, who is not 23 authorized by the sender, to intercept any radio communication and divulge or publish the 24 existence, contents, substance, purport, effect, or meaning of the intercepted communication to 25 any person.1 47 U.S.C. § 605(a). Section 553 states, “No person shall intercept or receive or assist in intercepting or 26 27 28 1 47 U.S.C. § 605(a) identifies other ways to be found liable of violation of Section 605; however, Plaintiff has not addressed these in its motion. 3 1 receiving any communications service offered over a cable system, unless specifically authorized 2 to do so by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. § 3 553(a)(1). 4 While there is no dispute that Defendant was not authorized to display the Program, or that 5 Defendant did display the program, Plaintiff has not adequately demonstrated that Defendant 6 “intercepted” a “radio communication” or a “cable communication.” 7 A. Applicable Statute 8 Interception or receipt of a “radio communication” is required for each possible violation 9 of Section 605. 47 U.S.C. § 605(a). “The term „radio communication‟ or „communication by 10 radio‟ means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds 11 […].” 47 U.S.C. § 153(40). This is in contrast with the term “wire communication,” which means 12 “the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, 13 or other like connection between the points of origin and reception of such transmission […].” 47 14 U.S.C. § 153(59). 15 Courts have found that Section 605 exclusively applies to radio communications and 16 satellite communications, but not to cable communications, which are exclusively covered by 17 Section 553. See e.g., Joe Hand Prod. v. Behari, 2013 U.S. Dist. LEXIS 37277, *10 (E.D. Cal. 18 Mar. 15, 2013); J & J Sports Prods. v. Torres, 2011 U.S. Dist. LEXIS 14737, *12 (E.D. Cal. Dec. 19 21, 2011); J & J Sports Prods, Inc. v. Manzano, 2008 U.S. Dist. LEXIS 84931, *6-7 (N.D. Cal. 20 Sept. 29, 2008)(“A signal pirate violates section 553 if he intercepts a cable signal, he violates 21 section 605 if he intercepts a satellite broadcast. But he cannot violate both by a single action of 22 interception.”); see also J&J Sports Prods. v. Mandell Family Ventures, LLC, 2014 U.S. App. 23 LEXIS 8423, *14 (5th Cir. Tex. May 2, 2014) (Section 605 does not encompass receipt or 24 interception of communications by wire from a cable system). Additionally, Section 605 and 25 Section 553 require different elements to find liability under each, and have different damages 26 provisions. See 47 U.S.C. § 553; 47 U.S.C. § 605; Joe Hand Promotions, Inc. v. Smith, 2010 U.S. 27 Dist. LEXIS 56462, *7, 10 (D. Ariz. June 7, 2010). 28 4 1 Plaintiff‟s motion discusses liability under Section 605 or Section 553 together.2 However, 2 Plaintiff cannot recover under both Section 605 and Section 553 for the same alleged interception. 3 Plaintiff does not provide any evidence as to whether the communication at issue was a radio 4 communication or a cable communication. Instead, Plaintiff‟s evidence states that it relies upon 5 satellite and cable television providers to distribute signals of its licensed programming to its 6 commercial customers. Doc. 18-4, 4:17-20. It says that the signal pirate can unlawfully intercept 7 and broadcast Plaintiff‟s programming by cable TV or satellite. Doc. 18-4, 3:22-4:9. On June 9, 8 2012, the investigator did not see a cable box or a satellite dish at El Atoron. Doc. 18-2, p.2. 9 Defendant denies that he had an account with DirecTV or a satellite service and denies that he 10 used an illegal decoder box or a satellite receiver box. Doc. 18-3, Exh. 1, 5:10-28; Exh. 2, 2:11-15. 11 Whether the communication was by radio or cable is a material fact because it determines 12 which statute, either Section 605 or Section 553, actually applies. These statutes have different 13 requirements for both liability and damages. Because Plaintiff has failed to present any evidence 14 that the alleged interception was either a radio communication or a cable communication; Plaintiff 15 has not met its burden. Summary judgment on Plaintiff‟s Section 605 or Section 553 claims will 16 be denied. 17 B. Interception 18 Plaintiff has not met its burden to demonstrate that Defendant intercepted the 19 communication. Plaintiff argues that the fact that the Program was shown at El Atoron without 20 authorization is sufficient to conclude that Defendant intercepted the Program because there is no 21 other way for Defendant to display the Program. Doc. 18, 6:16-17. Plaintiff argues that any 22 unlawful publication of the Program is a violation of Section 605 or Section 553, and that 23 willfulness is not required to establish liability. Doc. 18, 6:23-7:5. Plaintiff‟s statements of law are not accurate. First, by the statute‟s plain language, finding 24 25 unlawful publication is one required element of some claims brought under Section 605. See 47 26 U.S.C. § 605(a). Second, cases cited by Plaintiff demonstrate that willfulness as to a knowing 27 28 2 Plaintiff appears to attempt to elect to recover under Section 605, although its briefing is unclear. As a result, the Court will address both Sections 605 and 553. 5 1 violation of the law is not required to establish liability. J & J Sports Prods. v. Mendoza-Govan, 2 2011 U.S. Dist. LEXIS 47075, *15-16 (N.D. Cal. Apr. 25, 2011); Integrated Sports Media, Inc. v. 3 Canseco, 2012 U.S. Dist. LEXIS 25573, *2 (C.D. Cal. Feb. 27, 2012). In Mendoza-Govan, the 4 defendant‟s good faith belief in the propriety of her actions was irrelevant to determining liability. 5 J & J Sports Prods. v. Mendoza-Govan, 2011 U.S. Dist. LEXIS 47075, *15-16. In Canseco, the 6 defendants‟ mistake of law that they did not know they had to get authorization to broadcast the 7 program was irrelevant for liability. Integrated Sports Media, Inc. v. Canseco, 2012 U.S. Dist. 8 LEXIS 25573, *2. Neither of these cases state that willfulness as to the conduct itself is irrelevant 9 to determining liability. Plaintiff must demonstrate that there is no genuine issue that Defendant 10 committed an act of interception to find liability under the relevant provisions of Section 605 or 11 Section 553.3 See 47 U.S.C. § 605(a), 47 U.S.C. § 553(a)(1). 12 Defendant admits that he is the owner and manager of El Atoron, that he was present at El 13 Atoron on June 9, 2012, and that the Program was shown at El Atoron that day. Doc. 18-3, Exh. 1, 14 4:2, 6:10-22; Exh. 2, 2:3, 2:19-23. However, Defendant states that he did not intercept a signal, he 15 did not authorize interception, and he was not aware of interception. Doc. 19-1, 1:12-19. He states 16 that he later found out that a customer brought an internet connection to El Atoron to watch the 17 fight without his consent. Doc. 19-1, 2:18-20. At the summary judgment stage, Defendant‟s evidence is believed, all reasonable 18 19 inferences are drawn in Defendant‟s favor, and the Court does not make credibility 20 determinations. Defendant‟s evidence indicates that he did not commit any act that intercepted the 21 Program. A reasonable inference may be drawn in Defendant‟s favor that a customer or someone 22 other than Defendant caused the Program to be displayed on Defendant‟s TVs. 23 A reasonable jury could find that Defendant did not intercept the communication. Hence, 24 Plaintiff does not meet its burden to demonstrate that there is no genuine dispute as to whether 25 Defendant, individually or d/b/a El Atoron intercepted the communication. 26 IV. CONVERSION 27 28 3 Plaintiff has presented no arguments that Defendant received or assisted in intercepting or receiving unauthorized cable communications, which are acts also prohibited under Section 553. 6 The elements of a conversion claim under California law are: “(1) the plaintiff‟s ownership 1 2 or right to possession of the property at the time of the conversion; (2) the defendant‟s conversion 3 by a wrongful act or disposition of property rights; and (3) damages.” Mindys Cosmetics, Inc. v. 4 Dakar, 611 F.3d 590, 601 (9th Cir. 2010)(citing Oakdale Vill. Group v. Fong, 43 Cal. App. 4th 5 539, 543-44 (Cal. Ct. App. 1996); L.A. Fed. Credit Union v. Madatyan, 209 Cal. App. 4th 1383, 6 1387 (Cal. Ct. App. 2012). The act of conversion “must be done knowingly or intentionally done, 7 but a wrongful intent is not necessary.” In re Peklar, 260 F.3d 1035, 1037 (9th Cir. 2001); Taylor 8 v. Forte Hotels Int‟l, 235 Cal. App. 3d 1119, 1124 (Cal. Ct. App. 1991). 9 Plaintiff demonstrates that it had the right of possession of the commercial distribution 10 rights to the Program on June 9, 2012. Plaintiff also demonstrates that it receives fees from 11 commercial customers to exhibit programs to which Plaintiff holds commercial distribution rights, 12 and that Plaintiff did not receive this fee from Defendant for exhibiting the Program at El Atoron 13 on June 9, 2012. However, Plaintiff is not able to show conversion by a wrongful act, and is not 14 entitled to summary judgment on its conversion claim. As discussed, viewed in the light most favorable to Defendant, Defendant‟s evidence 15 16 indicates that he did not intercept a communication signal or otherwise intentionally commit any 17 act in order to exhibit the Program. A reasonable jury could find that Defendant did not commit 18 any wrongful act or commit an intentional act of interference with Plaintiff‟s property right in the 19 Program. Therefore, Plaintiff does not meet its burden to demonstrate that there is no genuine 20 issue of material fact as to whether Defendant committed a wrongful act, and Plaintiff is not 21 entitled to summary judgment on its conversion claim. 22 23 V. ORDER For the foregoing reasons, Plaintiff‟s motion is DENIED. 24 25 26 IT IS SO ORDERED. Dated: July 22, 2014 SENIOR DISTRICT JUDGE 27 28 7

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