J & J Sports Productions, Inc. v. Tamayo, et al

Filing 43

ORDER signed by District Judge Kimberly J. Mueller on 5/16/2016 DENYING 18 Motion for Summary Judgment; GRANTING 23 Cross-Motion for Summary Judgment on punative damages on the conversion claim; DENYING 23 Cross-Motion for Summary Judgment on the remaining claims; STRIKING the Declaration of Jacob Matta in support of 23 Cross-Motion for Summary Judgment (ECF 23-2). (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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No. 2:14-cv-01997-KJM-CKD

Plaintiff,
v.

ORDER

JULIO TAMAYO, et al.,

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Defendants.

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Plaintiff J & J Sports Productions, Inc. filed this action against defendants Julio

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and Ruben Tamayo, each individually and doing business as Zitio’s Bar and Grill (Zitio’s),

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making claims arising from an allegedly unauthorized transmission of a cable program, based on

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the federal Cable Communications Act, 47 U.S.C. § 553 or in the alternative 47 U.S.C. § 605,

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common law conversion, and California Business and Professions Code section 17200, et seq.

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(the UCL). ECF No. 1. The matter is before the court on plaintiff’s motion for summary

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judgment. Mot., ECF No. 18. Defendants opposed and filed a cross-motion for summary

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judgment. Opp’n, ECF No. 23.1 Plaintiff replied. Reply, ECF No. 33. The court submitted the

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matters without oral argument.

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On February 2, 2016, the court addressed the issue of defendants’ untimely cross-motion
for summary judgment, allowing the cross-motion, plaintiff’s supplemental opposition, and
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As explained below, the court DENIES plaintiff’s motion for summary judgment

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and GRANTS IN PART AND DENIES IN PART defendants’ cross-motion for summary

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judgment.

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I.

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BACKGROUND
A.

Evidentiary Objections

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1.

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Plaintiff objects to Jacob Matta’s declaration, arguing defendants did not disclose

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him as a witness. Rule 37(c) of the Federal Rules of Civil Procedure excuses a party’s failure to

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make required disclosures if that party can show the failure was “substantially justified” or

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“harmless.” Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008) (citation omitted).

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Matta Declaration

In cases, as here, where a party opposing summary judgment has relied on

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undisclosed witnesses, the Ninth Circuit has held the “[d]isruption to the schedule of the court”

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that results from allowing such witnesses “is not harmless.” Wong v. Regents of the Univ. of Cal.,

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410 F.3d 1052, 1062 (9th Cir. 2005) (district court did not abuse its discretion in excluding such

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testimony); see also Reynoso v. Constr. Protective Servs., 2008 U.S. App. LEXIS 19681, at *8-*9

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(9th Cir. Sept. 16, 2008)) (when late disclosure will most likely require a new briefing schedule

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and perhaps reopening discovery, rather than simply set a trial date, failure to disclose is not

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harmless).

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Here, the initial expert witness disclosure deadline was March 4, 2015. ECF No.

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15. Defendants have not made any disclosures, before or after that date. ECF No. 33-3.

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Defendants also have not provided any explanation to show their earlier failure to disclose Matta

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was either substantially justified or harmless. Plaintiff’s objection to Jacob Matta’s declaration is

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therefore SUSTAINED and Jacob Matta’s declaration is STRICKEN.

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defendants’ reply, if any. ECF No. 35. Plaintiff filed a supplemental opposition on February 9,
2016. ECF No. 36. Defendants did not reply.
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2.

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Plaintiff objects to most of the content of the declarations of Julio Tamayo and

Hearsay

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Ruben Tamayo as hearsay, arguing neither was present at Zitio’s on the date of the alleged

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unlawful cable interception.

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It is undisputed Julio Tamayo and Ruben Tamayo were not present at Zitio’s at the

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relevant time. Therefore, they have not established any personal knowledge of events that day.

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However, with respect to instructions given to their employees, cover charges and any

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advertisement of the cable program, it is plausible for the Tamayos, as Zitio’s owners, to be able

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to testify at trial regarding this information. Accordingly, to the extent the statements in the

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declarations from Julio Tamayo and Ruben Tamayo address what happened on site at Zitio’s at

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the time of the alleged unlawful interception, plaintiff’s objections are SUSTAINED. To the

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extent their statements concern instructions to their employees, cover charges and advertisement,

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plaintiff’s objections are OVERRULED.

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3.

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Plaintiff objects to the statement in the Tamayos’ declarations, that “[t]he

Immateriality

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employees at [Zitio’s] were instructed to not show anything on the TV except through

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programming . . . purchased through the commercial TV account” as immaterial. Julio Tamayo

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Decl. ¶ 2, ECF No. 23-3; Ruben Tamayo Decl. ¶ 2, ECF No. 23-4. To the extent the court

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considers this information below, the court deems it to be material and not hearsay. United States

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v. Sierra Pac. Indus., 879 F. Supp. 2d 1096, 1103 (E.D. Cal. 2012). Plaintiff’s objection

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grounded in materiality is OVERRULED.

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B.

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Undisputed Facts
The court has determined the facts set forth below are undisputed unless otherwise

stated.
Plaintiff was granted the exclusive commercial distribution rights to “The One,”

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the Floyd Mayweather, Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight

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Program (the Program). Defs.’ Resp. to Pl.’s Stmt. of Undisputed Facts (DUMF) no. 1, ECF

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No. 23-1. The Program consisted of a broadcast of the championship bout on September 14,
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2013. Id. The Program included a fight between Danny Garcia and Lucas Matthyssee. Eggert

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Decl., ECF No. 16-2 at 4.

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Defendants Ruben Tamayo and Julio Tamayo are the owners, operators, managers

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and licensees of the commercial establishment doing business as Zitio’s, operating at 11 East

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Street, Woodland, California 95576, with a maximum capacity of 98 people. DUMF no. 2; Pl.’s

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Resp. to Defs.’ Stmt. of Undisputed Facts (PUMF) no. 1, ECF No. 33-1. Ruben and Julio

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Tamayo were not present at the time of the alleged transmission of the Program. Id.

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The employees at Zitio’s were instructed not to show anything on the televisions in
the bar and grill except through programming purchased through the commercial television

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account. PUMF no. 4. In fact, the Program was not shown on any of the televisions in Zitio’s.

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PUMF no. 3; Eggert Decl., ECF No. 16-2 at 5 (of total 8 TVs observed, 0 were displaying

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Program). There was no cover charge on September 14, 2013 and no advertisement that the

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Program would be played at Zitio’s. PUMF nos. 12, 13; Eggert Decl. at 4. Only four people total

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were in Zitio’s at the time the Program was running on the laptop. Eggert Decl. at 2.

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Defendants aver that on September 14, a patron watched the Program on his laptop

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computer. Resp. to Req. for Admis. Nos. 13, 28, ECF No. 30-2. Defendants say they did not

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authorize, permit, or have knowledge of the showing of the Program, and that the patron viewed

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the Program on his own laptop over the internet. Resp. to Req. for Admis. Nos. 28, 46; Julio

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Tamayo Decl. ¶ 3; Ruben Tamayo Decl. ¶ 3. Jennifer Eggert, an investigator for plaintiff,

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observed and documented the Program being played inside Zitio’s on September 14. Eggert

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Decl. at 2. In Ms. Eggert’s report, she included the following unadorned statement: “The

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employee advised me not to say anything about the fight being shown because he was not

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supposed to have it.” Id. at 5. While Ms. Eggert included details such as the laptop broadcast’s

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identifying “Danny Garcia as the winner, [but] the announcers were not shown . . . and they were

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recapping the fight,” she does not identify by name the “employee” who told her not to say

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anything. Id. In a separate section of her report, she does describe without naming someone she

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identifies as the “Manager.” Id.

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Plaintiff did not authorize defendants to broadcast the Program, and defendants

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never purchased a commercial license from plaintiff, which would have cost $2,200 for an

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establishment the size of Zitio’s. DUMF nos. 5, 7.

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Zitio’s has commercial accounts with the telephone, electric, gas, water, and

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garbage companies, and is a party to the commercial lease for the space it occupied as of

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Saturday, September 14, 2013. Resp. to Req. for Admis. Nos. 47–53.

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II.

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LEGAL STANDARD
Summary judgment is appropriate where the court is satisfied “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). The “threshold inquiry” is whether “there are any genuine factual issues

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that properly can be resolved only by a finder of fact because they may reasonably be resolved in

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favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When the

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court considers the evidence presented by the parties, “[t]he evidence of the non-movant is to be

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believed, and all justifiable inferences are to be drawn in . . . [the] [non-movant’s] favor.” Id. at

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255.

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The moving party bears the initial burden of demonstrating to the court “that there

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is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett,

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477 U.S. 317, 325 (1986). Once the moving party satisfies this initial burden, the burden then

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shifts to the non-moving party, who “must establish that there is a genuine issue of material fact .

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. . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying

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their burdens, both parties must “cit[e] to particular parts of materials in the record . . . ; or show

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[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an

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adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

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In resolving the merits of a party’s motion for summary judgment, the court’s role is not to

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evaluate the evidence and decide the truth of the matter, but to determine whether there is a

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genuine issue for trial. Anderson, 477 U.S. at 249.

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“[T]o survive summary judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long as the party satisfies the requirements
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of Federal Rules of Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir.

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2003) (citing Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001)). In other words, when

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evidence is not presented in an admissible form in the context of a motion for summary judgment,

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but it may be presented in an admissible form at trial, a court may still consider that evidence. Id.

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at 1037 (considering evidence from a diary, notwithstanding the defendant's hearsay objections,

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in the context of a motion for summary judgment because the contents of the diary were “mere

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recitations of events within the [plaintiff/appellant’s] personal knowledge and, depending on the

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circumstances, could be admitted into evidence at trial in a variety of ways”).

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III.

CABLE COMMUNICATIONS ACT (CCA)

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“The Cable Communications Act imposes strict liability under 47 U.S.C. §§ 553

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and 605.” Don King Prods./Kingvision v. Lovato, No. 95-2827, 1996 WL 682006, at *3 (N.D.

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Cal. 1996); J & J Sports Prods., Inc. v. Delgado, 10-2517-WBN-KJN, 2012 WL 371630, at *3

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(E.D. Cal. 2012). Section 553 provides:

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No person shall intercept or receive or assist in intercepting or
receiving any communications service offered over a cable system,
unless specifically authorized to do so by a cable operator or as may
otherwise be specifically authorized by law.

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47 U.S.C. § 553(a)(1). Section 605 provides, in relevant part, that it is unlawful for any person,

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who is not authorized by the sender, to “intercept any radio communication and divulge or

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publish the existence, contents, substance, purport, effect, or meaning of the intercepted

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communication to any person.” 47 U.S.C. § 605(a). “The term ‘radio communication’ or

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‘communication by radio’ means the transmission by radio of writing, signs, signals, pictures, and

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sounds of all kinds . . . .” 47 U.S.C. § 153(40).

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The strict liability aspect of sections 553 and 605 requires that, to prevail, a

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plaintiff must prove a defendant (1) intercepted or received without authorization, and (2)

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divulged or published, or aided the divulging or publishing of, a communication by the plaintiff

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(3) over a cable system, under section 553, or by wire or radio, under section 605.3 See Cal.

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As this court has acknowledged, but not resolved, there is a split of authority regarding
the scope of § 605 and whether a single act of interception can violate both §§ 553 and 605. Joe
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Satellite Sys. v. Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985); Joe Hand Promotions, Inc. v.

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McInnis, No. 10-1614, 2011 WL 1740109, at *6 (N.D. Cal. May 5, 2011); J & J Sports Prods.,

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Inc. v. Cortes, No. 08-04287, 2009 WL 801554, at *2 (N.D. Cal. Mar. 25, 2009). The court refers

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to the third factor as the “signal source” factor below.

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A “[p]laintiff need not establish ‘willfulness’ in order to establish liability” under

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the CCA. McInnis, 2011 WL 1740109, at *7. Whether defendants knew, authorized, or received

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any profit or financial benefit from the alleged signal piracy on September 14, 2013 is irrelevant,

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if the defendants engaged in any piracy. See Joe Hand Promotions, Inc. v. Albright, No. 11-2260,

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2013 WL 2449500, at *3 (E.D. Cal. June 5, 2013); see also J & J Sports Prods., Inc. v. Pombo,

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984 F. Supp. 2d 1042, 1046–47 (E.D. Cal. Oct. 23, 2013) (though enhanced damages

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inappropriate, $250 awarded for a § 605(a) violation where defendants had a pay-per-view license

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and used their establishment to host family viewing party).

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The court first addresses the second element of the CCA claim, divulging or
publishing, and then the first and third together, interception and signal source.
A.

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Divulge or Publish
The “act of viewing” constitutes “divulgement or publication.” See Seimon,

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767 F.2d at 1366. The parties do not dispute the Program was divulged or published, in that

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regardless of who was responsible, the Program was shown in Zitio’s on Saturday, September 14,

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2013. Eggert Decl. at 5; Req. for Admis. No. 13.

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B.

Unauthorized Interception and Signal Source
Plaintiff and defendants dispute the elements of unauthorized interception and

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signal source. Defendants contend that a patron watched the event on a laptop without their

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authorization, permission, or knowledge. Opp’n at 8. They argue the patron receiving the

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Hand Prod., Inc. v. Behari, No. 12-1522-KJM-AC, 2013 WL 1129311, at *4 (E.D. Cal. Mar. 18,
2013). While the Ninth Circuit has held § 605 applies to satellite communications, it has not
explicitly excluded cable communications. DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir.
2008) (“communications” protected by § 605(a) include satellite television signals). The court
need not take sides in the split here because plaintiff “requests liability be found and damages
awarded under § 605,” Mot. at 5, or in the alternative, section 553, Mot. at 1, and as discussed
there is insufficient evidence in the record regarding the signal source.
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Program had authorization to do so, id. at 5, and there was no interception, id. at 7–8. But

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defendants do not point to any evidence in the record to identify the patron, or show there was

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authorization for the individual’s viewing the Program within Zitio’s. And while plaintiffs argue

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an employee of Zitio’s knew of the unauthorized interception, the sparse evidence in the record

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merely raises this as a possibility at most. Without any undisputed evidence establishing who

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was responsible for any transmission of the Program, the court cannot grant summary judgment.

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Moreover, with respect to the third argument, no undisputed facts establish the

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kind of interception covered by the CCA. As noted, because signal piracy is a “surreptitious

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venture,” courts have relied on circumstantial evidence in some cases to find unlawful

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interception. Albright, 2013 WL 2449500, at *5 (citing Webb, 545 F.3d at 844). But this case is

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unlike Albright, in which the court found the defendant unlawfully intercepted a satellite

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broadcast, because the court could infer from circumstantial evidence which program was

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exhibited at defendant’s bar, the program was displayed publicly, and the bar had a lawful

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television service, an antenna and satellite dish. Id. Here, plaintiff has not provided sufficient

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evidence to establish a signal source. Joe Hand Promotions, Inc. v. Michael Cusi, et al., No. 13-

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935, 2014 WL 1921760, at *2 (S.D. Cal. May 14, 2014) (summary judgment entered in

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defendants’ favor because plaintiff could not produce admissible evidence to support the signal’s

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source; the court also stated in dicta that it was “skeptical that feeds received over the internet

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from a third party violate Sections 553 or 605.”). While defendants stated in discovery that the

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signal came from “the internet,” Resp. to Req. for Admis. No. 28, the record does not establish

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that Zitio’s has or had an internet account. PUMF no. 4. Plaintiff points to photographic

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evidence of satellite fixtures attached to Zitio’s exterior as evidence of defendants’ liability under

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section 605. See Mot. at 5. But plaintiff does not provide any evidence to forge a link between

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the satellite fixture and the laptop computer or any internet transmissions in Zitio’s. Cf. J & J

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Sports Prods., Inc. v. Sandana, No. 13-842, 2014 WL 3689283, at *4 (E.D. Cal. July 23, 2014)

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(denying motion for summary judgment where customer brought an internet connection to

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establishment to watch program). Where the moving party will have the burden of proof at trial,

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it must affirmatively demonstrate that no reasonable trier of fact could find other than for the
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moving party. S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

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Here, plaintiff has not so demonstrated. A half-baked admission of an unidentified Zitio’s

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employee is not enough.

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On the record before the court, a reasonable jury could find defendants did not

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intercept the Program or supply the signal source. At the same time, defendants have not ruled

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out the possibility that the satellite detectors on their building are theirs and served as the signal

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source for the Program. “A genuine issue of material fact does not spring into being simply

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because a litigant claims that one exists or promises to produce admissible evidence at trial.” del

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Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); Galen v. County of Los Angeles,

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477 F.3d 652, 658 (9th Cir. 2007). In other words, a “motion for summary judgment may not be

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defeated . . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson,

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477 U.S. at 249–50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2005). Neither

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party has carried its burden.

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The court DENIES both plaintiff’s and defendants’ motions for summary

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judgment on the CCA claims. The court need not reach the question of the applicability of

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§§ 553 and 605 to the internet, or statutory and enhanced damages under either section.

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IV.

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CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 17200 (UCL)
A provision of California’s Unfair Competition Law limits standing to bring a

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claim to specified public officials and any private person “who has suffered injury in fact and has

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lost money or property as a result of the unfair competition.” Cal. Bus. Prof. Code § 17204. As

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above, because there is insufficient evidence in the record with respect to interception and signal

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source to show plaintiff has suffered injury in fact, the court need not reach this claim.

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Accordingly, the court DENIES plaintiff’s and defendants’ motions for summary judgment of this

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claim.

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V.

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CONVERSION
Under California law the elements of a conversion claim are “(1) the plaintiff's

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ownership or right to possession of the property at the time of the conversion; (2) the defendant’s

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conversion by a wrongful act or disposition of property rights; and (3) damages.” Mindys
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Cosmetics, Inc. v. Dakar, 611 F.3d 590, 601 (9th Cir. 2010) (citing Oakdale Vill. Group v. Fong,

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43 Cal. App. 4th 539, 543–44 (1996)); L.A. Fed. Credit Union v. Madatyan, 209 Cal. App. 4th

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1383, 1387 (2012). The act of conversion “must be done knowingly or intentionally done, but a

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wrongful intent is not necessary.” In re Peklar, 260 F.3d 1035, 1037 (9th Cir. 2001); Taylor v.

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Forte Hotels Int’l, 235 Cal. App. 3d 1119, 1124 (1991).

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Plaintiff alleges defendants’ acts of “interception, reception, publication,

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divulgence, display and/or exhibition of the Program at their commercial establishment . . .

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tortiously obtained possession of the Program and wrongfully converted the same . . .” in support

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of its separate common law conversion claim. Because genuine disputes of material fact exist

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with respect to interception and signal source, summary judgment is not available on the

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conversion claim. See J & J Sports Prods., Inc. v. Bath, No. 11-1564, 2013 WL 5954892, at *8

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(E.D. Cal. Nov. 7, 2013).

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With respect to punitive damages for conversion, plaintiff does not oppose

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defendants’ motion for summary judgment on this form of relief. ECF No. 36 at 11. The court

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DENIES plaintiff’s motion for summary judgment on the conversion claim. The court GRANTS

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defendants’ motion for summary judgment on punitive damages for conversion and DENIES

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their motion on the balance of the conversion claim.

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VI.

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COSTS AND FEES
In light of the court’s decision above regarding 47 U.S.C. §§ 553, 605, the court

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DENIES plaintiff’s motion for summary judgment on costs and fees.

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VII.

CONCLUSION

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For the foregoing reasons, the court GRANTS defendants’ motion for summary

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judgment on punitive damages on the conversion claim, DENIES the balance of all the parties’

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motions, and STRIKES Jacob Matta’s declaration.

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IT IS SO ORDERED.

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DATED: May 16, 2016.

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UNITED STATES DISTRICT JUDGE

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