J&J Sports Prods., Inc. v. Tamayo
| Decision Date | 16 May 2016 |
| Docket Number | No. 2:14-cv-01997-KJM-CKD,2:14-cv-01997-KJM-CKD |
| Court | U.S. District Court — Eastern District of California |
| Parties | J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. JULIO TAMAYO, et al., Defendants. |
Plaintiff J & J Sports Productions, Inc. filed this action against defendants Julio and Ruben Tamayo, each individually and doing business as Zitio's Bar and Grill (Zitio's), making claims arising from an allegedly unauthorized transmission of a cable program, based on the federal Cable Communications Act, 47 U.S.C. § 553 or in the alternative 47 U.S.C. § 605, common law conversion, and California Business and Professions Code section 17200, et seq. (the UCL). ECF No. 1. The matter is before the court on plaintiff's motion for summary judgment. Mot., ECF No. 18. Defendants opposed and filed a cross-motion for summary judgment. Opp'n, ECF No. 23.1 Plaintiff replied. Reply, ECF No. 33. The court submitted the matters without oral argument.
As explained below, the court DENIES plaintiff's motion for summary judgment and GRANTS IN PART AND DENIES IN PART defendants' cross-motion for summary judgment.
Plaintiff objects to Jacob Matta's declaration, arguing defendants did not disclose him as a witness. Rule 37(c) of the Federal Rules of Civil Procedure excuses a party's failure to make required disclosures if that party can show the failure was "substantially justified" or "harmless." Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008) (citation omitted).
In cases, as here, where a party opposing summary judgment has relied on undisclosed witnesses, the Ninth Circuit has held the "[d]isruption to the schedule of the court" that results from allowing such witnesses "is not harmless." Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005) (); see also Reynoso v. Constr. Protective Servs., 2008 U.S. App. LEXIS 19681, at *8-*9 (9th Cir. Sept. 16, 2008)) (when late disclosure will most likely require a new briefing schedule and perhaps reopening discovery, rather than simply set a trial date, failure to disclose is not harmless).
Here, the initial expert witness disclosure deadline was March 4, 2015. ECF No. 15. Defendants have not made any disclosures, before or after that date. ECF No. 33-3. Defendants also have not provided any explanation to show their earlier failure to disclose Matta was either substantially justified or harmless. Plaintiff's objection to Jacob Matta's declaration is therefore SUSTAINED and Jacob Matta's declaration is STRICKEN.
Plaintiff objects to most of the content of the declarations of Julio Tamayo and Ruben Tamayo as hearsay, arguing neither was present at Zitio's on the date of the alleged unlawful cable interception.
It is undisputed Julio Tamayo and Ruben Tamayo were not present at Zitio's at the relevant time. Therefore, they have not established any personal knowledge of events that day. However, with respect to instructions given to their employees, cover charges and any advertisement of the cable program, it is plausible for the Tamayos, as Zitio's owners, to be able to testify at trial regarding this information. Accordingly, to the extent the statements in the declarations from Julio Tamayo and Ruben Tamayo address what happened on site at Zitio's at the time of the alleged unlawful interception, plaintiff's objections are SUSTAINED. To the extent their statements concern instructions to their employees, cover charges and advertisement, plaintiff's objections are OVERRULED.
Plaintiff objects to the statement in the Tamayos' declarations, that "[t]he employees at [Zitio's] were instructed to not show anything on the TV except through programming . . . purchased through the commercial TV account" as immaterial. Julio Tamayo Decl. ¶ 2, ECF No. 23-3; Ruben Tamayo Decl. ¶ 2, ECF No. 23-4. To the extent the court considers this information below, the court deems it to be material and not hearsay. United States v. Sierra Pac. Indus., 879 F. Supp. 2d 1096, 1103 (E.D. Cal. 2012). Plaintiff's objection grounded in materiality is OVERRULED.
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," the Floyd Mayweather, Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight Program (the Program). Defs.' Resp. to Pl.'s Stmt. of Undisputed Facts (DUMF) no. 1, ECF No. 23-1. The Program consisted of a broadcast of the championship bout on September 14,2013. Id. The Program included a fight between Danny Garcia and Lucas Matthyssee. Eggert Decl., ECF No. 16-2 at 4.
Defendants Ruben Tamayo and Julio Tamayo are the owners, operators, managers and licensees of the commercial establishment doing business as Zitio's, operating at 11 East Street, Woodland, California 95576, with a maximum capacity of 98 people. DUMF no. 2; Pl.'s Resp. to Defs.' Stmt. of Undisputed Facts (PUMF) no. 1, ECF No. 33-1. Ruben and Julio Tamayo were not present at the time of the alleged transmission of the Program. Id.
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 account. PUMF no. 4. In fact, the Program was not shown on any of the televisions in Zitio's. PUMF no. 3; Eggert Decl., ECF No. 16-2 at 5 (). There was no cover charge on September 14, 2013 and no advertisement that the Program would be played at Zitio's. PUMF nos. 12, 13; Eggert Decl. at 4. Only four people total were in Zitio's at the time the Program was running on the laptop. Eggert Decl. at 2.
Defendants aver that on September 14, a patron watched the Program on his laptop computer. Resp. to Req. for Admis. Nos. 13, 28, ECF No. 30-2. Defendants say they did not authorize, permit, or have knowledge of the showing of the Program, and that the patron viewed the Program on his own laptop over the internet. Resp. to Req. for Admis. Nos. 28, 46; Julio Tamayo Decl. ¶ 3; Ruben Tamayo Decl. ¶ 3. Jennifer Eggert, an investigator for plaintiff, observed and documented the Program being played inside Zitio's on September 14. Eggert Decl. at 2. In Ms. Eggert's report, she included the following unadorned statement: "The employee advised me not to say anything about the fight being shown because he was not supposed to have it." Id. at 5. While Ms. Eggert included details such as the laptop broadcast's identifying "Danny Garcia as the winner, [but] the announcers were not shown . . . and they were recapping the fight," she does not identify by name the "employee" who told her not to say anything. Id. In a separate section of her report, she does describe without naming someone she identifies as the "Manager." Id.
Plaintiff did not authorize defendants to broadcast the Program, and defendants never purchased a commercial license from plaintiff, which would have cost $2,200 for an establishment the size of Zitio's. DUMF nos. 5, 7.
Zitio's has commercial accounts with the telephone, electric, gas, water, and garbage companies, and is a party to the commercial lease for the space it occupied as of Saturday, September 14, 2013. Resp. to Req. for Admis. Nos. 47-53.
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." Fed. R. Civ. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When the court considers the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in . . . [the] [non-movant's] favor." Id. at 255.
The moving party bears the initial burden of demonstrating to the court "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party satisfies this initial burden, the burden then shifts to the non-moving party, who "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . . ; or show [ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). In resolving the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
"[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 requirementsof Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001)). In other words, when evidence is not presented in an admissible form in the context of a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence. Id. at 1037 (...
To continue reading
Request your trial