(PS) J & J Sports Productions, Inc. v. Estrada Alvarez, No. 2:2017cv00926 - Document 34 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/26/19 RECOMMENDING that Plaintiff's 23 Motion for Summary Judgment be granted. These Findings and Recommendations are submitted to Judge Troy L. Nunley; Objections to these F&Rs due within twenty-one days. (Mena-Sanchez, L)
Download PDF
<![CDATA[
(PS) J & J Sports Productions, Inc. v. Estrada Alvarez Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J&J SPORTS PRODUCTIONS, INC., 12 Plaintiff, 13 14 No. 2:17-cv-00926 TLN AC v. FINDINGS AND RECOMMENDATIONS ALIDA ESTRADA ALVAREZ, 15 Defendant. 16 17 This matter is before the undersigned pursuant to E.D. Cal. R. 302(c)(21) because 18 defendant is in pro se. Plaintiff’s motion for summary judgment (ECF No. 23) is now before the 19 court. The matter was taken under submission, and defendant’s opposition was due on February 20 13, 2019. ECF No. 33. Defendant did not file an opposition. For the reasons that follow, the 21 undersigned recommends that plaintiff’s motion be GRANTED. I. 22 Relevant Procedural Background Plaintiff filed its Complaint on May 2, 2017. ECF No. 1. Defendant was personally 23 24 served on May 24, 2017. ECF No. 4. On June 26, 2017, after the time for filing a response to 25 the Complaint had elapsed, plaintiff filed a Request to Enter Default against Defendant. ECF 26 No. 5. On that same day, defendant submitted a letter which the court construed as an answer. 27 ECF Nos. 6, 7. In light of the Answer, the clerk declined to enter default. ECF No. 8. On 28 //// 1 Dockets.Justia.com 1 February 2, 2018, defendant submitted a declaration to the court making substantive argument. 2 ECF No. 10. 3 On November 14, 2017, plaintiff sent a Proposed Joint Scheduling Report to defendant. 4 Riley Decl. ¶ 4; ECF No. 12, Ex. 1. Defendant did not respond to that correspondence or 5 otherwise participate in preparing a proposed scheduling order. Id.; see also, ECF No. 12 at 1, 6 n.1. On January 10, 2018, plaintiff served its Initial Disclosures on defendant. Riley Decl. ¶ 5. 7 On March 13, 2018, this court set an Initial Scheduling Conference for April 18, 2018 at 10:00 8 A.M. before the undersigned. ECF No. 11. A copy of the Minute Order setting the Initial 9 Scheduling Conference was mailed to defendant. See, Unnumbered Docket Entry, Mar. 13, 10 2018. On March 16, 2018, plaintiff filed a unilateral Proposed Scheduling Report. ECF No. 12. 11 Plaintiff represented that it was unable to obtain a contribution to the proposed scheduling order 12 from the defendant. Id. at 1, n.1. 13 On April 18, 2018, this court held its Status (Pretrial Scheduling) Conference; defendant 14 failed to appear at that conference. ECF Nos. 13, 14 at 1. At that time, this court ordered 15 defendant to provide Initial Disclosures by May 16, 2018. ECF No. 14 at 2, 6. A copy of this 16 court’s Status (Pretrial Scheduling) Order was mailed to defendant. See, Unnumbered Docket 17 Entry, Apr. 19, 2018. On June 13, 2018, plaintiff moved for terminating discovery sanctions. 18 ECF No. 15. The court denied the motion and ordered the parties to appear for a mandatory 19 settlement conference. ECF No. 17. While settlement discussions were pending, plaintiff filed 20 the motion for summary judgment at bar. ECF No. 23. The court placed a temporary stay on 21 this case pending the settlement conference (ECF No. 24) and that stay was lifted following 22 notification that settlement discussions were not successful. ECF Nos. 32, 33. 23 24 II. Motion Plaintiff moves for partial summary judgment against defendant on the issue of liability. 25 ECF No. 23 at 10. Plaintiff asks the court to find that there are no genuine issues of material fact 26 that defendant violated 47 U.S.C. § 605 in illegally intercepting, receiving, and or publishing 27 plaintiff’s program at her commercial establishment, and that she committed the tort of 28 conversion. Id. at 9. 2 1 III. Summary Judgment Standard 2 Summary judgment is appropriate when the moving party “shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 5 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 6 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 7 moving party may accomplish this by “citing to particular parts of materials in the record, 8 including depositions, documents, electronically stored information, affidavits or declarations, 9 stipulations (including those made for purposes of the motion only), admissions, interrogatory 10 answers, or other materials” or by showing that such materials “do not establish the absence or 11 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 12 support the fact.” Fed. R. Civ. P. 56(c)(1). 13 “Where the non-moving party bears the burden of proof at trial, the moving party need 14 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 15 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 16 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 17 motion, against a party who fails to make a showing sufficient to establish the existence of an 18 element essential to that party’s case, and on which that party will bear the burden of proof at 19 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 20 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 21 a circumstance, summary judgment should “be granted so long as whatever is before the district 22 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 23 56(c), is satisfied.” Id. 24 If the moving party meets its initial responsibility, the burden then shifts to the opposing 25 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 26 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 27 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 28 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 3 1 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 2 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 3 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 4 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 5 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 6 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 7 In the endeavor to establish the existence of a factual dispute, the opposing party need not 8 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 9 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 10 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities 11 Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce 12 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 13 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 14 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 15 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 16 v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 17 opposing party’s obligation to produce a factual predicate from which the inference may be 18 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 19 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 20 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 21 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 22 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 23 U.S. at 289). 24 25 IV. Statement of Undisputed Facts Unless otherwise specified, the following facts are either expressly undisputed by the 26 parties or have been determined by the court, upon a full review of the record, to be undisputed 27 by competent evidence. On May 7, 2016, a sports program (“the Program”), Saul Alvarez v. 28 Amir Khan WBC World Middleweight Championship Fight Program, was telecast nationwide. 4 1 ECF No. 23-1 at 1 (plaintiff’s statement of undisputed facts). Defendant Alida Estrada Alvarez 2 was, at all relevant times, the co-owner and operator of the commercial establishment Nueva 3 Vallarta Mexican Food, a general partnership located in Sacramento County. ECF No. 23-3 at 1, 4 4. Defendant intercepted, received, published and/or exhibited the Program at her commercial 5 establishment Nueva Vallarta. ECF No. 23-2 (Declaration of Affiants, Ches at 1; Eggert at 1; 6 Berns at 1). The Program was broadcast at Nueva Vallarta Restaurant on May 7, 2016. Id. 7 Plaintiff did not authorize Defendant to broadcast the Program at Nueva Vallarta 8 Restaurant. Defendant never purchased a commercial license from plaintiff or paid the 9 commercial licensing fee. ECF No. 23-1 at 2. Defendant did not pay the commercial licensing 10 fee to broadcast the Program. Id. Defendant did not charge patrons to view the programming. 11 ECF Nos. 23-2, 5. 12 V. Analysis 13 A. Defendant is liable for violating 47 U.S.C. § 6051 14 The Communications Act of 1934, 47 U.S.C. § 605, “prohibits the unauthorized receipt 15 and use of radio communications for one’s ‘own benefit or for the benefit of another not entitled 16 thereto.’” DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir.2008) (quoting 47 U.S.C. § 17 605(a)). “[T]he ‘communications’ protected by § 605(a) include satellite television signals.” Id. 18 [L]iability under section 605 requires proof that a defendant has “(1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by the plaintiff.” 19 20 21 California Satellite Systems v. Seimon, 767 F.2d 1364, 1366 (9th Cir.1985) (quoting National 22 Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir.1981)). 23 Here, liability is established based on the undisputed facts. Defendant does not dispute 24 that she aired the Program at her restaurant. ECF No. 6. Plaintiff has submitted several affidavits 25 demonstrating that at the time the program was aired, the restaurant was open for business, and 26 27 28 1 Plaintiff also discusses 47 U.S.C. § 553(a)(1) but does not appear to be seeking summary judgment on liability under this section of the code; plaintiff only asks for judgment as to § 605. ECF No. 23 at 1, 9. 5 1 these accounts have gone undisputed by defendant. ECF No. 23-2. Thus, liability is established 2 under § 605. The issue of damages is not subject to plaintiff’s current motion for partial summary 3 judgment and therefore need not be addressed at this juncture. 4 B. Defendant is liable for conversion 5 Plaintiff is entitled to summary judgment on the issue of defendant’s liability for the tort 6 of conversion. “In California, conversion has three elements: ownership or right to possession of 7 property, wrongful disposition of the property right and damages.” G.S. Rasmussen & 8 Associates, Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir. 1992) (citation omitted). 9 Although conversion typically involves tangible property, courts routinely apply the law of 10 conversion to the wrongful disposition of intangible property such as the Program at issue in this 11 case. See, e.g., J & J Sports Prods. v. Coyne, 857 F.Supp.2d 909, 918 (N.D. Cal. 2012) (granting 12 summary judgment on conversion claim against a defendant who intercepted and exhibited a 13 televised boxing match without paying a licensing fee). 14 The undisputed facts of this case demonstrate that plaintiff owned the exclusive 15 commercial distribution rights to the Program and that defendant’s unauthorized interception of 16 the Program wrongfully disposed plaintiff of its right to control distribution of the Program. 17 Defendant did not pay the commercial licensing fee required to publicly distribute the Program. 18 ECF No. 23-1. Plaintiff has established that defendant is liable for the tort of conversion for 19 broadcasting the Program in her commercial establishment, and summary judgment is appropriate 20 on this issue. 21 22 23 24 VI. Conclusion Accordingly, IT IS RECOMMENDED that plaintiff’s motion for partial summary judgment, ECF No. 23, be GRANTED. These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 28 document should be captioned “Objections to Magistrate Judge’s Findings and 6 1 Recommendations.” Any response to the objections shall be filed with the court and served on all 2 parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 3 objections within the specified time may waive the right to appeal the District Court’s order. 4 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 5 (9th Cir. 1991). 6 DATED: March 26, 2019 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
