Joe Hand Promotions, Inc. v. Garcia, CASE NO. CV F 11-2030 LJO SAB

• Decision Date: 04 November 2013
• Docket Number: CASE NO. CV F 11-2030 LJO SAB
• Parties: JOE HAND PROMOTIONS, INC., Plaintiff, v. RICHARD JESUS GARCIA, Defendant.
• Court: U.S. District Court — Eastern District of California

JOE HAND PROMOTIONS, INC., Plaintiff, v. RICHARD JESUS GARCIA, Defendant.

CASE NO. CV F 11-2030 LJO SAB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: November 4, 2013

SUMMARY JUDGMENT DECISION

JUDGMENT THEREON

(Doc. 36.)

INTRODUCTION

Pursuant to F.R.Civ.P. 56, plaintiff Joe Hand Promotions, Inc. ("Joe Hand") seeks to impose a monetary judgment against defendant Richard Jesus Garcia ("Mr. Garcia") for Mr. Garcia's unlawful interception of a closed-circuit boxing program. This Court considered Joe Hand's summary judgment motion on the record¹ and VACATES the November 13, 2013 hearing, pursuant to Local Rule 230(c), (g). For the reasons discussed below, this Court GRANTS Joe Hand a $9,400 judgment.

BACKGROUND

Program Interception

Joe Hand is a closed-circuit distributor of sports and entertainment programming and obtained for the United States the exclusive commercial exhibition licensing rights to "Ultimate Fighting Championship 124: Georges St. Pierre v. Josh Koscheck" ("program"), which was broadcast on December 11, 2010. Joe Hand marketed sub-licensing (commercial exhibition) rights to commercial establishment customers in the United States to permit them to show the program. To broadcast the program, Joe Hand required commercial establishments to pay a sublicense fee of $900 for seating capacity up to 50 persons. Joe Hand did not sublicense the program to Mr. Garcia.

Joe Hand alleges that Mr. Garcia unlawfully intercepted and exhibited the program at his Guadalajara Mexican restaurant ("restaurant") in Clovis, California without payment of the $900 commercial sub-licensing fee.

Joe Hand relies on the affidavit of private investigator Lawrence K. Brookter ("Mr. Brookter"), who claims that beginning at 8 p.m. during the program, he observed:

1. Twenty-five people in the restaurant eating and watching the program;

2. A 32-inch television over the bar showing the program;

3. No assessed cover charge;

4. A bartender and assistant operating the restaurant's bar;

5. The restaurant "is in an upscale neighborhood"; and

6. Eight people sitting at the bar and watching the program.

Mr. Brookter's exit head count revealed 25-30 people eating with "some watching the fight."

Joe Hand's Claims

Joe Hand proceeds on its complaint to allege claims for violation of the Communications Act of 1934, 47 U.S.C. §§ 605, et seq., and conversion. By summary judgment, Joe Hand seeks statutory and enhanced damages under 47 U.S.C. § 605 ("section605") and $900 damages for conversion of the program.

DISCUSSION

Summary Judgment Standards

Joe Hand contends that there is no genuine issue of material fact as to Mr. Garcia's unlawful interception and broadcast of the program.

F.R.Civ.P. 56(a) permits a party to seek summary judgment "identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought." "A district court may dispose of a particular claim or defense by summary judgment when one of the parties is entitled to judgment as a matter of law on that claim or defense." Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st Cir. 1999).

Summary judgment is appropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." F.R.Civ.P. 56(a); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(a), (c); Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467, 82 S.Ct. 486 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986)

"[T]o carry its ultimate burden of persuasion on the motion, the moving party mustpersuade the court that there is no genuine issue of material fact." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see High Tech Gays v. Defense Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire, 210 F.3d at 1103; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) (F.R.Civ.P. 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make the showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no 'genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.")

F.R.Civ.P. 56(e)(3) provides that when a party "fails to properly address another party's assertion of fact," a court may "grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it." "In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion will be granted." Nilsson, Robbins, et al. v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988). When a summary judgment motion is unopposed, a court must "determine whether summary judgment is appropriate - that is, whether the moving party has shown itself to be entitled to judgment as a matter of law." Anchorage Associates v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3rd Cir. 1990). A court "cannot base the entry of summary judgment on the mere fact that the motion is unopposed, but, rather must consider the merits of the motion." United States v. One Piece of Real Property, etc., 363 F.3d 1099, 1101 (11th Cir. 2004). A court "need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensurethat the motion itself is supported by evidentiary materials." One Piece of Real Property, 363 F.3d at 1101.

As discussed below, Joe Hand has demonstrated that it is entitled to summary judgment against Mr. Garcia on Joe Hand's section 605 and conversion claims.

Signal Piracy

Liability

Section 605 addresses unauthorized publication or use of wire or radio communications and provides in pertinent part:

(a) . . . no person receiving, assisting in receiving . . . any interstate . . . communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney . . . No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.

. . .

(e)(3)(A) Any person aggrieved by an violation of subsection (a) of this section . . . may bring a civil action in a United States district court or in any other court of competent jurisdiction.

Section 605(d)(6) defines "any person aggrieved" to include "any person with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming."

In addition, the Cable Communications Policy Act of 1992, in particular 47 U.S.C. § 553 ("section 553"), addresses unauthorized reception of cable service and provides inpertinent part:

(a)(1) 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.

. . .

(c)(1) Any person aggrieved by any violation of subsection (a)(1) of this section may bring a civil action in a United States district court or in any other court of competent jurisdiction.

"The Cable Communications Act...