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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 J & J SPORTS PRODUCTIONS, INC., 08-CV-00486-OWW-DLB 5 Plaintiff, MEMORANDUM DECISION RE: CROSS-MOTIONS FOR SUMMARY 6 v. JUDGMENT/SUMMARY ADJUDICATION 7 FRANKIE JO PHELAN, INDIVIDUALLY and d/b/a FRANKIE’S, 8 Defendant. 9 10 I. INTRODUCTION 11 Before the court are cross-motions for summary judgment or, in 12 the alternative, summary adjudication brought by Plaintiff J & J 13 Sports Productions, Inc. (“Plaintiff”) and Defendant Frankie Jo 14 Phelan (“Defendant”). Both motions are opposed. The following 15 background facts are taken from the parties’ submissions in 16 connection with the motions and other documents on file in this 17 case.1 18 II. BACKGROUND 19 A. The Boxing Program 20 This case concerns the Super Featherweight Championship Fight 21 between boxers Marco Antonio Barrera and Mzonke Fana televised on 22 April 9, 2005 (the “Boxing Program”). Plaintiff is a closed- 23 1 24 “A district court does not, of course, make ‘findings of fact’ in ruling on a summary judgment motion. Findings of fact are 25 made on the basis of evidentiary hearings and usually involve credibility determinations.” Rand v. Rowland, 154 F.3d 952, 957 n.4 26 (9th Cir. 1998); see also Scott v. Harris, 550 U.S. 372, 378 (2007) 27 (“As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury . . . .”); Cottrell v. 28 Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).

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1 circuit distributor of sports and entertainment programming. 2 Defendant is an individual resident of the Eastern District of 3 California who formerly owned and operated “Frankie’s,” a 4 neighborhood bar located in Madera, California. 5 Defendant was the lawful operator of Frankie’s on the date of 6 the fight and had a commercial cable account with Comcast. (Doc. 7 29-2 at 2; Doc. 32 at 3.) Defendant purchased the Boxing Program 8 from Comcast for $39.99. (Doc. 29-2 at 2.) On April 9, 2005, 9 Comcast provided the signal for the Boxing Progam and Defendant 10 aired the fight at Frankie’s. (Id.) Patrons of Frankie’s watched 11 the Boxing Program. Apparently, a private investigator hired by 12 Plaintiff also watched the Boxing Program at Frankie’s. 13 Prior to the fight, Plaintiff and Golden Boy Productions, Inc. 14 (“Golden Boy”) entered into a “Closed Circuit Television License 15 Agreement” pursuant to which Plaintiff obtained “the exclusive 16 license to exhibit,” at “commercial closed-circuit television 17 exhibition outlets,” Golden Boy’s “live telecast” of the Boxing 18 Program. The License Agreement reads: 19 GOLDEN BOY PROMOTIONS, INC. (referred to herein as ‘Promoter’) hereby grants to J&J Sports Productions, 20 Inc[.] (‘J&J’ or ‘you’ or “Licensee’) the exclusive license to exhibit, only within the fifty states of the 21 United States of America and the Commonwealth of Puerto Rico (the ‘Territory’), Promoter’s live telecast of the 22 [Boxing Program], only at commercial closed-circuit television exhibition outlets, such as theaters, bars, 23 clubs, lounges, restaurants and the like, each with a fire code occupancy not to exceed 500 persons per outlet 24 (except for casinos), located within the Territory. The exhibition rights granted herein do not include any 25 rights in Mexico or Canada, or transmissions to hotel guest rooms, in-flight aircraft or other transportation 26 facilities. 27 (Doc. 16-2, Ex. 1 at 1.) 28 The License Agreement permitted Plaintiff to sublicense exhibition

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1 rights to commercial closed-circuit television outlets. By 2 contrast, the License Agreement contains a section on “Pay-Per-View 3 Exhibitions” which specifies that Golden Boy, not Plaintiff, “shall 4 license the live cable television and direct broadcast satellite 5 television exhibition of the” Boxing Program “on a residential pay- 6 per-per-view” basis and that Plaintiff “shall have no interest or 7 participation in such [residential] pay-per-view exhibition.” (Id. 8 at 4 (emphasis added).) 9 B. Plaintiff’s Lawsuit 10 On March 8, 2008, Plaintiff filed a three-count complaint 11 against Defendant individually and doing business as Frankie’s. 12 The first count alleges a violation of 47 U.S.C. § 605, the second 13 count alleges a violation of 47 U.S.C. § 553, and the third count 14 alleges a claim for conversion under California law. 15 Plaintiff asserts that Defendant needed to purchase a 16 sublicense from Plaintiff to lawfully obtain and exhibit the Boxing 17 Program at Frankie’s. Plaintiff contends that Defendant’s purchase 18 of the Boxing Program from Comcast is not dispositive. According 19 to Plaintiff, Defendant paid the “residential” pay-per-view fee 20 ($39.99) for the Boxing Program, not the applicable sublicense fee 21 for exhibition at commercial establishments. 22 C. The Cross-Motions 23 Plaintiff moves for summary judgment on its § 553 claim. 24 Plaintiff does not move for summary judgment on its § 605 or 25 conversion claim. (See Doc. 16-2 at 2, 4-6.) Defendant moves for 26 summary judgment on all Plaintiff’s claims. 27 III. SUMMARY JUDGMENT/ADJUDICATION STANDARD 28 A party may move for summary judgment “on all or part of a

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1 claim.” Fed. R. Civ. P. 56 (a) & (b). “The standards and 2 procedures for granting partial summary judgment, also known as 3 summary adjudication, are the same as those for summary judgment.” 4 Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 5 1998). Summary judgment is appropriate when “the pleadings, the 6 discovery and disclosure materials on file, and any affidavits show 7 that there is no genuine issue as to any material fact and that the 8 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 9 56(c). The movant “always bears the initial responsibility of 10 informing the district court of the basis for its motion, and 11 identifying those portions of the pleadings, depositions, answers 12 to interrogatories, and admissions on file, together with the 13 affidavits, if any, which it believes demonstrate the absence of a 14 genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 15 317, 323 (1986) (internal quotation marks omitted). 16 Where the movant will have the burden of proof on an issue at 17 trial, it must “affirmatively demonstrate that no reasonable trier 18 of fact could find other than for the moving party.” Soremekun v. 19 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also 20 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 21 2003) (noting that a party moving for summary judgment on a claim 22 as to which it will have the burden at trial “must establish beyond 23 controversy every essential element” of the claim) (internal 24 quotation marks omitted); Albee Tomato, Inc. v. A.B. Shalom Produce 25 Corp., 155 F.3d 612, 617 (2d Cir. 1998) (noting that where the 26 moving party will bear the burden of proof, “its own submissions in 27 support of the motion must entitle it to judgment as a matter of 28 law”). With respect to an issue as to which the non-moving party

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1 will have the burden of proof, the movant “can prevail merely by 2 pointing out that there is an absence of evidence to support the 3 nonmoving party’s case.” Soremekun, 509 F.3d at 984. 4 When a motion for summary judgment is properly made and 5 supported, the non-movant cannot defeat the motion by resting upon 6 the allegations or denials of its own pleading, rather the 7 “non-moving party must set forth, by affidavit or as otherwise 8 provided in Rule 56, ‘specific facts showing that there is a 9 genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, 10 Inc., 477 U.S. 242, 250 (1986)). “Conclusory, speculative 11 testimony in affidavits and moving papers is insufficient to raise 12 genuine issues of fact and defeat summary judgment.” Id. Likewise, 13 “[a] non-movant’s bald assertions or a mere scintilla of evidence 14 in his [or her] favor are both insufficient to withstand summary 15 judgment.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). 16 “[S]ummary judgment will not lie if [a] dispute about a material 17 fact is ‘genuine,’ that is, if the evidence is such that a 18 reasonable jury could return a verdict for the nonmoving party.” 19 Anderson, 477 U.S. at 248. In ruling on a motion for summary 20 judgment, the district court does not make credibility 21 determinations; rather, the “evidence of the non-movant is to be 22 believed, and all justifiable inferences are to be drawn in his 23 favor.” Id. at 255. 24 “[T]he standards upon which the court evaluates the motions 25 for summary judgment do not change simply because the parties 26 present cross-motions.” Taft Broad. Co. v. United States, 929 F.2d 27 240, 248 (6th Cir. 1991). And simply because the parties present 28 cross-motions for summary judgment on a claim does not mean that

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1 there must be a winner: 2 The fact that both parties have moved for summary judgment does not mean that the court must grant judgment 3 as a matter of law for one side or the other; summary judgment in favor of either party is not proper if 4 disputes remain as to material facts. Rather, the court must evaluate each party’s motion on its own merits, 5 taking care in each instance to draw all reasonable inferences against the party whose motion is under 6 consideration. 7 Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 8 (Fed. Cir. 1987) (internal citation omitted). 9 IV. DISCUSSION AND ANALYSIS 10 A. Preliminary Matters 11 1. Defendant’s Untimely Opposition 12 With respect to Plaintiff’s motion for summary 13 judgment/adjudication, in Plaintiff’s reply brief, Plaintiff 14 objects to Defendant’s opposition brief as untimely and requests 15 that Defendant not be permitted to oppose the motion at oral 16 argument. See Local Rule 78-230(c) (“No party will be entitled to 17 be heard in opposition to a motion at oral arguments if opposition 18 to the motion has not been timely filed by that party.”). 19 Plaintiff’s motion for summary judgment/adjudication was filed on 20 July 30, 2009, and the hearing on the motion was set for October 21 26, 2009. 22 According to Local Rule 78-230(c), Defendant’s opposition to 23 Plaintiff’s motion was due not less than “fourteen (14) days” 24 preceding the noticed hearing date. Fourteen days prior to the 25 noticed hearing date, October 26, 2009, is Monday October 12, 2009, 26 Columbus day, which is a legal holiday. Under Rule 6(a)(3), when 27 the last day of a period falls on a legal holiday, “the period runs 28

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1 until the end of the next day that is not a Saturday, Sunday, [or] 2 legal holiday.” See also Local Rule 6-136. Accordingly, 3 Plaintiff’s opposition was due the Friday before Columbus day, 4 October 9, 2009. Defendant’s opposition was filed on October 16, 2 5 2009. Defendant concedes it was untimely filed. Defendant’s late 6 opposition does not, however, end the inquiry. 7 Plaintiff raised the argument about Defendant’s late 8 opposition in Plaintiff’s reply brief. As it turns out, 9 Plaintiff’s reply brief was untimely filed. According to Local 10 Rule 78-230(d), a reply “to any opposition” is due not less than 11 “five (5) court days preceding the date of hearing.” (Emphasis 12 added.) Five court days prior to the hearing date, October 26, 13 2009, is October 19, 2009. Plaintiff’s reply brief was filed on 14 October 21, 2009, past the deadline. 15 The time infractions committed by both sides are considered 16 off-setting penalties. Plaintiff’s untimely objection to 17 Defendant’s untimely opposition is DENIED. 18 B. Substantive Claims 19 1. Claim For Violation Of 47 U.S.C. § 553 20 a. Plaintiff’s Motion 21 Plaintiff moves for summary judgment only on its claim under 3 22 47 U.S.C. § 553. Plaintiff argues that it has shown “by a 23 24 2 Defendant’s counsel, Kristen Gates, has submitted a declaration acknowledging the opposition “was untimely” and stating 25 that she “inadvertently [] mis-calendared the deadline in which to file the opposition, and did not realize this until the filing of 26 Plaintiff’s reply.” (Gates Decl. ¶ 3.) 27 3 Defendant moved for summary judgment on all Plaintiff’s 28 claims, and Plaintiff opposes Defendant’s motion as to all claims.

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1 preponderance of evidence that Defendant violated” 47 U.S.C. § 553. 2 This section deals with cable communications. Section 553(a)(1)- 3 (2) provides: 4 (a) Unauthorized interception or receipt or assistance in intercepting or receiving service; ‘assist in 5 intercepting or receiving’ defined 6 (1) No person shall intercept or receive or assist in intercepting or receiving any communications service 7 offered over a cable system, unless specifically authorized to do so by a cable operator or as may 8 otherwise be specifically authorized by law. 9 (2) For the purpose of this section, the term ‘assist in intercepting or receiving’ shall include the manufacture 10 or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized 11 reception of any communications service offered over a cable system in violation of subparagraph (1). 12 (Emphasis added.) The statute creates a private right of action 13 for “[a]ny person aggrieved by any violation of subsection (a)(1).” 14 § 553(c)(1). 15 Among other forms of relief, in a § 553 case, the private 16 plaintiff may obtain damages, costs and attorney’s fees. See § 17 553(c)(2)(B)-(C). Section 553(c)(3)(A)-(C) explains the extent of 18 recoverable damages and the judge’s discretion in calculating 19 damages: 20 (3)(A) Damages awarded by any court under this section 21 shall be computed in accordance with either of the following clauses: 22 (i) the party aggrieved may recover the actual 23 damages suffered by him as a result of the violation and any profits of the violator that are 24 attributable to the violation which are not taken into account in computing the actual damages; in 25 determining the violator’s profits, the party aggrieved shall be required to prove only the 26 27 However, Plaintiff’s own motion for summary judgment addresses only 28 one claim, i.e., Plaintiff’s claim under § 553. (See Doc. 16-2.)

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1 violator’s gross revenue, and the violator shall be required to prove his deductible expenses and the 2 elements of profit attributable to factors other than the violation; or 3 (ii) the party aggrieved may recover an award of 4 statutory damages for all violations involved in the action, in a sum of not less than $250 or more 5 than $10,000 as the court considers just. 6 (B) In any case in which the court finds that the violation was committed willfully and for purposes of 7 commercial advantage or private financial gain, the court in its discretion may increase the award of damages, 8 whether actual or statutory under subparagraph (A), by an amount of not more than $50,000. 9 (C) In any case where the court finds that the violator 10 was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its 11 discretion may reduce the award of damages to a sum of not less than $100. 12 (Emphasis added.) Plaintiff claims that, without authorization, 13 Defendant intercepted and/or received the Boxing Program in 14 violation of 47 U.S.C. § 553(a)(1). Plaintiff seeks increased 15 damages under § 553(c)(3)(B) claiming that Defendant’s violation 16 was committed “willfully and for purposes of commercial advantage 17 or private financial gain.” Under § 553, whether a violation was 18 committed at all, which gives rise to liability, and whether that 19 violation was committed “willfully and for purposes of commercial 20 advantage or private financial gain,” which gives rise to enhanced 21 damages, are two separate issues. 22 i. Violation Of § 553(a)(1) 23 A violation of § 553(a)(1) has three elements. It must be 24 shown: (i) that Defendant intercepted or received or assisted in 25 intercepting or receiving; (ii) a communications service offered 26 over a cable system; and (iii) that Defendant was not specifically 27 authorized to do so by a cable operator or otherwise specifically 28

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1 authorized to do so by law. The heart of the dispute between the 2 parties is the last element, i.e., whether Defendant was authorized 3 to receive the Boxing Program. 4 Defendant takes the position that because it paid for and 5 Comcast authorized Defendant’s reception of the Boxing Program, 6 Defendant did not, and could not have, violated § 553. The Comcast 7 Cable account statement for “Frankie’s” reflects a charge of $39.99 8 on “04/09” for “Barrera Vs Fana.” 9 Plaintiff argues that Defendant misses the point. The consent 10 to receive the signal of the Boxing Program in a commercial 11 establishment “was not Comcast’s to give. Comcast had the right to 12 distribute the [Boxing Program] to residential customers; 13 [Plaintiff] had the right to distribute the [Boxing Program] to 14 commercial establishments.” (Doc. 29-1 at 3.) Plaintiff further 15 argues that Defendant paid the “residential fee” not the commercial 16 fee, which, at a minimum, was $800.00. 17 The major disconnect between the parties on this claim is 18 whether, for purposes of § 553(a)(1), Comcast could have authorized 19 Defendant to receive the Boxing Program at Frankie’s. Neither 20 party cites any case law with respect to this claim. 21 There is no dispute that Defendant did not obtain a license 22 from Plaintiff to receive the signal for the Boxing Program at 23 Frankie’s. (Doc. 16-2, Ex. 5 at 1, 3; Doc. 23-3, Ex. E at 1, 3.) 24 There is also no dispute that Defendant purchased the Boxing 25 Program from Comcast. (Doc. 29-2 at 2.) However, despite 26 Defendant’s purchase of the Boxing Program from Comcast, if 27 Plaintiff had the exclusive right to license the transmission of 28 the Boxing Program to commercial establishments such as Frankie’s,

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1 and if Comcast did not acquire the right or have permission to do 2 so, then Comcast could not have authorized Defendant’s reception of 3 the Boxing Program at Frankie’s under § 553. As explained in 4 National Satellite Sports, Inc. v. Time Warner Entertainment Co., 5 217 F. Supp. 2d 466, 468 (S.D.N.Y. 2002) (internal citation 6 omitted), while a cable operator may have the right to transmit a 7 program and “authorize” its reception at a residence, that same 8 cable operator may lack the authority to transmit the same program 9 and “authorize” its reception at a commercial establishment: 10 Time Warner also contends that the plaintiff’s § 553 claims should be dismissed because § 553(a)(1) only bars 11 a person from such interception of signals as is not ‘specifically authorized ... by a cable operator, and the 12 complaints here allege that Time Warner, a cable operator, authorized, albeit improperly, the cable 13 transmissions of the fight to commercial establishments. But such an argument fails to make the obvious 14 distinction between a lawful authorization blessed by the statute and the wholly unlawful authorization here 15 alleged. For a cable operator lawfully permitted to broadcast a fight to residential customers to allow its 16 services to be used to permit commercial establishments to tap-in to the broadcast without paying the party that 17 holds the exclusive right to broadcast the fight commercially is not an authorization a cable operator can 18 give, under § 553 or otherwise. 19 Defendant’s argument that it purchased the Boxing Program from 20 Comcast is not dispositive. It does not preclude Plaintiff from 21 demonstrating that Defendant was not authorized by Comcast to 22 receive the Boxing Program under § 553. Plaintiff, however, has 23 not sufficiently demonstrated the necessary facts to establish 24 Plaintiff’s entitlement to judgment as a matter of law. 25 As a threshold matter, Plaintiff contends that it had 26 exclusive rights to license the transmission of the Boxing Program 27 to commercial establishments. In support of this fact, Plaintiff 28 points to its contract with Golden Boy. While it is true that

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1 Golden Boy gave Plaintiff “the exclusive license to exhibit” Golden 2 Boy’s “live telecast” of the Boxing Program at commercial 3 establishments, Plaintiff has not shown that no other entity 4 besides Golden Boy had the right to telecast the Boxing Program. 5 If Golden Boy was not itself the “exclusive” holder of the 6 telecasting rights, or not the only lawful telecaster of the fight, 7 then it leaves open that Comcast could have acquired the right or 8 permission to transmit the Boxing Program to commercial 9 establishments from some source other than Plaintiff. 10 Second, assuming Golden Boy had the exclusive right to 11 telecast the fight and, in turn, granted Plaintiff the exclusive 12 right to license the transmission of the Boxing Program to 13 commercial establishments, Plaintiff still has not provided 14 evidence to affirmatively demonstrate that Defendant had no right 15 to receive the Boxing Program at Frankie’s from Comcast. 16 Plaintiff’s evidence does not rule out the possibility that Comcast 17 could have authorized the transmission of the Boxing Program to 18 Frankie’s so long as Defendant paid $39.99. 19 Plaintiff argues that the minimum fee it charged commercial 20 establishments to obtain the Boxing Program was $800.00 (Doc. 29 at 21 6) well beyond the $39.99 which Defendant paid to Comcast. This 22 discrepancy in price, Plaintiff argues, shows that Defendant failed 23 to pay the requisite fee and therefore could not have lawfully 24 received the signal for the Boxing Program at Frankie’s. Plaintiff 25 obtained the $800.00 figure from a “Rate Card” it submitted in 26 support of its motion. This Rate Card contains the J & J Sports 27 Productions, Inc. logo at the top, the name of fight (along with 28 another fight: Hernandez v. Montiel), and sets commercial rates

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1 according to seating capacity: 2 SEATING RATE 1-50 800.00 3 51-100 1200.00 101-200 1800.00 4 201-300 2200.00 301-400 3300.00 5 401-500 3500.00 6 Below this, the following text appears: 7 This Rate Card is to be use [sic] by all distributors in the U.S [sic] territory for Commercial Establishments. 8 Any establishments with higher capacity or changes in 9 capacity to be approved by Garden City Boxing Club Inc Sales Manager Art Gallegos or President Joe Gagliardi.4 10 11 While this Rate Card is some evidence that Plaintiff, at one point, 12 set the minimum price for commercial establishments at $800.00, 13 this Rate Card does not show that Plaintiff actually charged that 14 rate to anyone. Plaintiff’s evidentiary showing leaves too much 15 room for doubt to warrant summary judgment. Plaintiff’s evidence 16 does not show that it never set any other fee structure with 17 commercial establishments or cable operators, or never entered into 18 any arrangement with Comcast for the broadcasting of the fight to 19 commercial establishments which would have authorized Comcast to 20 transmit the Boxing Program to Frankie’ for $39.99, or that $39.99 21 was, in fact, the “residential” rate charged by Comcast. There is 22 no “minimum” fee set forth in the actual License Agreement between 23 Golden Boy and Plaintiff which specifies an exact minimum dollar 24 amount that Plaintiff must charge for a commercial establishment’s 25 reception of Golden Boy’s telecast. It is undisputed that 26 Defendant had a commercial account with Comcast, and, viewing the 27 4 Plaintiff does not explain its relationship to or with 28 “Garden City Boxing Club Inc.”

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1 evidence in a light most favorable to her, it appears that she 2 purchased the Boxing Program on this commercial account. 3 As the party moving for summary judgment, Plaintiff’s evidence 4 leaves too many gaps unfilled and is insufficient to demonstrate, 5 as a matter of law, that Defendant was not authorized to receive 6 the Boxing Program at Frankie’s. Plaintiff’s motion for summary 7 judgment as to Defendant’s liability under § 553 is DENIED. 8 ii. Willfully and for purposes of commercial advantage or private financial gain 9 Plaintiff is also not entitled to summary judgment on its 10 claim for enhanced statutory damages on the premise that 11 Defendant’s “violation” of § 553 was committed “willfully and for 12 purposes of commercial advantage or private financial gain,” § 13 553(c)(3)(B). 14 For Plaintiff to be entitled to recover increased damages 15 available under § 553(c)(3)(B), there must be an underlying 16 “violation” of § 553. However, whether Defendant committed a 17 violation of § 553 cannot be determined as a matter of law. 18 Whether Defendant lacked authorization to receive the Boxing 19 Program at Frankie’s remains an open issue. 20 Even assuming, arguendo, that Defendant committed a violation 21 of § 553, genuine issues of fact preclude a determination that 22 Defendant’s violation was committed willfully. Although 23 “willfully” is not defined in § 553, the statute has been 24 interpreted to require a “‘disregard for the governing statute and 25 an indifference to its requirements.’” Comcast of Ill. X v. Multi- 26 Vision Elecs., Inc., 491 F.3d 938, 948 (8th Cir. 2007) (quoting 27 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 127 (1985)); 28

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1 Time Warner Entm’t/Advance Newhouse P’ship v. Worldwide Elecs., 2 L.C., 50 F. Supp. 2d 1288, 1301 (S.D. Fla. 1999). This is the 3 generic standard for “willful” conduct as that term is used in 4 civil statutes. See Cable/Home Commc’n Corp. v. Network Prods., 5 Inc., 902 F.2d 829, 851 (11th Cir. 1990). This standard 6 encompasses knowing violations of a statutory requirement, as well 7 as reckless ones. See Comcast of Ill. X., 491 F.3d at 947 8 (upholding an award of enhanced damages under § 553, stating that 9 the defendants’ “actions showed reckless disregard of the statutory 10 requirements”); see also Safeco Ins. Co. of Am. v. Burr, 551 U.S. 11 47, 57 (2007) (collecting cases, including Thurston, and stating 12 “where willfulness is a statutory condition of civil liability, we 13 have generally taken it to cover not only knowing violations of a 14 standard, but reckless ones as well”). 15 The statutory provision which permits a court to enhance 16 damages where the violation at issue was committed “willfully and 17 for purposes of commercial advantage or private financial gain,” § 18 553(c)(3)(B), is followed immediately by a statutory provision, § 19 553(c)(3)(C), which permits the court to reduce the minimum damages 20 down to $100: 21 (C) In any case where the court finds that the violator was not aware and had no reason to believe that his acts 22 constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of 23 not less than $100. 24 § 553 (c)(3)(C). Reading § 553(c)(3)(B) and (C) together, a 25 violation committed “willfully” under § 553(c)(3)(B) does not 26 include a violation where the “violator was not aware and had no 27 reason to believe that his [or her] acts constituted a violation of 28 this section.” Based on the evidence presented, it is unclear

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1 whether Defendant “willfully” committed the purported violation of 2 § 553. According to Defendant’s declaration, she had a 3 “commercial cable account with Comcast Cable” and when she 4 purchased the fight, she “was told by the representative at Comcast 5 that the Program would be billed to [her] commercial account and to 6 change the television channel to a specific channel at the time 7 that Program was to start, and [she] had an employee of [hers] do 5 8 just that.” Defendant states that she “purchased the Program from 9 Comcast Cable and paid the commercial fee for the same.” (Phelan 10 Decl. ¶¶ 1, 6, 11.) 11 Shortly after the Boxing Program, an attorney for Plaintiff 12 called Defendant and Defendant “explained to him that [Defendant] 13 had purchased the Program through Comcast Cable, gave him the name 14 of the person [Defendant] spoke to, and sent him the documentation 15 of the purchase of the Program.” Defendant had never heard of 16 Plaintiff (J & J Sports Productions, Inc.) before. (Id. at ¶ 7.) 17 It is undisputed that Defendant “did not have a satellite, an 18 illegal black box, or any other hardware or software other than 19 Comcast’s basic cable system” and that she purchased the Boxing 20 Program from Comcast Cable. (Doc. 29-2 at 2.) There is no evidence 21 that Comcast informed Defendant that the commercial rate was 22 something other than $39.99, that Defendant was purchasing only a 23 “residential” pay-per-view match, or expressed something which 24 suggested to Defendant that exhibiting the Boxing Program at 25 Frankie’s was improper. 26 Based on the evidence, Plaintiff has not established, as a 27 5 Plaintiff has not filed any evidentiary objections to 28 Defendant’s declaration.

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1 matter of law, that Defendant’s purported violation of § 553 was 2 committed “willfully.” Plaintiff’s motion for summary adjudication 3 on the issue that it is entitled to enhanced statutory damages is 4 DENIED. 5 At this juncture, whether the violation was committed for 6 “commercial advantage or private financial gain” is premature 7 because Plaintiff has not demonstrated a violation of the statute 8 or its willful nature. This prevents summary judgment for enhanced 9 damages. 10 b. Defendant’s Motion 11 Defendant moves for summary judgment as to the § 553 claim, 12 arguing that it was “specifically authorized to receive the 13 [Boxing] Program by a cable operator,” Comcast. (Doc. 23-1 at 7.) 14 Defendant’s argument fails to recognize that while a cable operator 15 may have the right to transmit a program and “authorize” its 16 reception at a residence, that same cable operator may lack the 17 legal authority to transmit the same program and “authorize” its 18 reception at a commercial establishment where patrons will view the 19 broadcast. Nat’l Satellite Sports, Inc., 217 F. Supp. 2d at 468. 20 If Plaintiff had the exclusive right to license the transmission of 21 the Boxing Program to commercial establishments such as Frankie’s, 22 and if Comcast had no right or permission to do so, then Comcast 23 lacked the ability to authorize Defendant’s reception of the Boxing 24 Program under § 553. See id. Defendant has not shown that Comcast 25 had actual authority to transmit the Boxing Program to a commercial 26 establishment for $39.99. The fact that Comcast did, in fact, 27 transmit the Boxing Program to Frankie’s on the night of the fight 28 does not show that Comcast, in fact, possessed the requisite

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1 authority to do so. Comcast may have believed it was sending the 2 signal to a residential cable box or made a mistake by sending the 3 signal to Frankie’s. See Nat’l Satellite Sports, Inc., 217 F. Supp. 4 2d at 468; Garden City Boxing Club, Inc. v. Focused Enters., Ltd., 5 No. 06-CV-4874 (FB)(RER), 2007 WL 1655647, at *4 (E.D.N.Y. June 06, 6 6 2007). Even if the fact of transmission alone suggests that 7 Comcast was authorized to transmit the signal to Frankie’s, 8 Plaintiff’s exclusive License Agreement with Golden Boy, and 9 Defendant’s failure to purchase a commercial license from 10 Plaintiff, calls into question whether Comcast had the authority, 11 for purposes of § 553, to transmit the signal to Frankie’s. 12 Defendant’s motion for summary judgment as to the § 553 claim 13 is DENIED. 14 2. Claim For Violation Of 47 U.S.C. § 605 15 Only Defendant moves for summary judgment on Plaintiff’s claim 16 under 47 U.S.C. § 605. In four sentences, § 605(a) lists various 17 types of unauthorized publication or use of electronic 18 communications. While Plaintiff has not specified which sentence 19 of § 605(a) it is suing under, the parties discuss only the first 20 sentence, which states: 21 Except as authorized by chapter 119, Title 18, no person receiving, assisting in receiving, transmitting, or 22

23 6 On the Comcast Cable account statement, the entry for the 24 Boxing Program is dated “04/09” and the associated charge is “39.99.” Immediately below this, there is an entry for “05/10 - 25 06/09,” that reads “Commercial B/r Standard” and the associated charge is “$71.00.” From the face of the statement, it is not 26 clear that the “04/09” Boxing Program was purchased during a period 27 in which Defendant had a commercial account, as the $71.00 charge for the “Commercial B/r Standard” is for the “05/10 - 06/09” period 28 which postdates the fight.

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1 assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish 2 the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of 3 transmission or reception, (1) to any person other than the addressee, his agent, or attorney . . . 4 (Emphasis added.) In turn, two provision of “chapter 119, Title 5 18,” § 2511(2)(c) and (d), state: 6 (c) It shall not be unlawful under this chapter for a 7 person acting under color of law to intercept a wire, oral, or electronic communication, where such person is 8 a party to the communication or one of the parties to the communication has given prior consent to such 9 interception. 10 (d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, 11 oral, or electronic communication where such person is a party to the communication or where one of the parties to 12 the communication has given prior consent to such interception unless such communication is intercepted for 13 the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United 14 States or of any State. 15 (Emphasis added.) In her briefing, Defendant cites § 2511(2)(c), 16 not (d). However, § 2511(2)(c) is inapplicable as there is no 17 indication that anybody in this case was “acting under color of 18 law.” There are no governmental actors involved in this case. The 19 section which Defendant most likely meant to cite is § 2511(2)(d). 20 Defendant posits that Comcast gave its “consent” to 21 Defendant’s reception of the Boxing Program signal, and this 22 consent means that Defendant’s subsequent “divulg[ing] or 23 publish[ing]” of the Boxing Program, by exhibiting it to her 24 patrons, was done “through authorized channels of transmission or 25 reception.” Defendant’s argument fails to address Comcast’s 26 inability to consent to the transmission of the Boxing Program to 27 commercial establishments. If Plaintiff had the exclusive right to 28 license the transmission of the Boxing Program to commercial

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1 establishments such as Frankie’s, and if Comcast did not acquire 2 the right or permission to do so, then Comcast could not have 3 consented to and authorized Defendant’s reception of the Boxing 4 Program at Frankie’s. In that case, Defendant’s airing of the 5 Boxing Program at Frankie’s could not have been “through authorized 6 channels of transmission or reception.” See Nat’l Satellite Sports, 7 Inc. v. Eliadis, Inc., 253 F.3d 900, 916 (6th Cir. 2001) (rejecting 8 the argument that because a satellite broadcaster was permitted to 9 transmit a boxing program to residential customers, its 10 transmission to commercial establishments was done “though 11 authorized channels of transmission or reception” under § 605, as 12 the satellite operator “was not authorized to transmit the event to 13 commercial establishments”); see also Nat’l Satellite Sports, Inc., 14 217 F. Supp. 2d at 469. 15 Defendant has not shown that Comcast had actual authority to 16 transmit the Boxing Program to a commercial establishment for 17 $39.99. The mere fact that Comcast did, in fact, transmit the 18 Boxing Program to Frankie’s on the night of the fight does not show 19 that Comcast, in fact, possessed the requisite authority to do so. 20 Even if the fact of transmission alone provides some support for 21 the notion that Comcast had the authority to transmit the signal to 22 Frankie’s, Plaintiff’s exclusive License Agreement with Golden Boy, 23 which purportedly gave it exclusive exhibition rights for 24 commercial establishments, and Defendant’s failure to purchase a 25 commercial license from Plaintiff, bear on a genuine issue of fact 26 as to Comcast’s authority to transmit the Boxing Program to 27 Frankie’s. In turn, this evidence also calls into question whether 28 Defendant’s airing of the Boxing Program was “through authorized

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1 channels of transmission or reception.” Defendant’s motion for 2 summary judgment as to Plaintiff’s § 605(a) claim is DENIED. 3 Although indirectly raised by the briefing, neither party has 4 squarely addressed a threshold issue regarding Defendant’s 5 purported liability under § 605(a), i.e., whether the transmission 6 of the Boxing Program from Comcast to Frankie’s was a type of 7 “communication” covered by the statute. 8 While § 605(a) covers airborne communications, including 9 satellite transmissions, DirecTV, Inc. v Webb, 545 F.3d 837, 844 10 (9th Cir. 2008), numerous courts have concluded that § 605(a) does 11 not cover cable communications, which, instead, are governed by § 12 553. Charter Commc’ns Entm’t I, DST v. Burdulis, 460 F.3d 168, 172- 13 73 (1st Cir. 2006) (concluding that “the statutory text does make 14 clear that § 605 is not to apply to signals delivered by wire over 15 a cable network” and stating “[s]ection 605 deals with 16 communications traveling through the air (via radio), whereas § 553 17 covers communications traveling over cable wire”); TKR Cable Co. v. 18 Cable City Corp., 267 F.3d 196, 207 (3rd Cir. 2001) (concluding 19 that “once a satellite transmission reaches a cable system’s wire 20 distribution phase, it is subject to § 553 and is no longer within 21 the purview of § 605"); United States v. Norris, 88 F.3d 462, 469 22 (7th Cir. 1996) (concluding that “cable television programming 23 transmitted over a cable network . . . must be prosecuted under § 24 553(a) and not § 605"). Although the Ninth Circuit has not 25 addressed this issue, several district courts in the Ninth Circuit 26 have concluded that § 605 does not cover cable communications. See, 27 e.g., J & J Sports Prods., Inc. v. Tsoulouhas, No. C08-695Z, 2008 28 WL 5390936, at *1 (W.D. Wash. Dec. 23, 2008); J & J Sports Prods.,

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1 Inc., v. Man Thi Doan, No. C-08-00324 RMW, 2008 WL 4911223, at *2 2 (N.D. Cal. Nov. 13, 2008). There is some contrary authority. Int’l 3 Cablevision, Inc. v. Sykes, 75 F.3d 123 (2d Cir. 1996). 4 In her briefing on the § 605(a) claim, Defendant states that 5 she received the Boxing Program from Comcast Cable, a “cable 6 provider.” (Doc. 23-1 at 5.)7 It is an undisputed fact that 7 “Defendant did not have a satellite” and that Defendant possessed 8 only “Comcast’s basic cable system.” (Doc. 29-2 at 2.) The 9 undisputed facts call into question whether Defendant received the 10 Boxing Program at Frankie’s through a satellite signal or some 11 communication subject to § 605(a). It appears Defendant received 12 the Boxing Program through a cable network communication covered by 13 § 553, not § 605. However, because Defendant has not argued this 14 point, it is unnecessary to resolve at this time. 15 Defendant’s motion for summary judgment on Plaintiff’s § 16 605(a) claim is DENIED. 17 3. Conversion 18 Defendant is the only party moving for summary judgment on 19 Plaintiff’s conversion claim. Under California law, “[c]onversion 20 is the wrongful exercise of dominion over the property of another. 21 The elements of a conversion are [1] the plaintiff’s ownership or 22 right to possession of the property at the time of the conversion; 23 [2] the defendant’s conversion by a wrongful act or disposition of 24 property rights; and [3] damages.” Greka Integrated, Inc. v. 25 Lowrey, 133 Cal. App. 4th 1572, 1581 (2005) (internal quotation 26 27 7 Similarly, in her briefing on the § 553 claim, Defendant 28 refers to Comcast as a “cable operator.” (Doc. 23-1 at 7.)

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1 marks omitted); see also G.S. Rasmussen & Assocs., Inc. v. Kalitta 2 Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir. 1992). “Because 3 conversion is a strict liability tort, questions of the defendant’s 4 good faith, lack of knowledge, motive, or intent are not relevant.” 5 Gilman v. Dalby, 176 Cal. App. 4th 606, 615 n.1 (2009). 6 Defendant argues that Plaintiff failed to provide evidence 7 that Plaintiff had the exclusive ownership of, or the exclusive 8 right to license, the broadcasting of the Boxing Program to 9 commercial establishments, negating the first element of 10 conversion.8 Plaintiff has submitted a declaration from Joseph 11 Gagliardi, Plaintiff’s President, in which Mr. Gagliardi states 12 that Plaintiff “purchased and retains the exclusive commercial 13 exhibition licensing rights” to the Boxing Program. (Gagliardi 14 Decl. ¶ 3.) In support of this statement, Mr. Gagliardi refers to 15 the contract he “signed with Golden Boy Promotions, Inc regarding 16 obtaining exclusive distribution rights to the Program,” which is 17 “attached as Exhibit ‘1’ to Plaintiff’s Memorandum of Points and 18 Authorities.” (Id. at ¶ 10.) The copy of Plaintiff’s contract with 19

20 8 Defendant does not dispute whether Plaintiff’s claimed 21 exclusive ownership of, or exclusive right to license, the broadcast of the Boxing Program to commercial establishments 22 constitutes “property” which can be converted. See Don King Prods./Kingvision v. Lovato, 911 F. Supp. 419, 423 (N.D. Cal. 1995) 23 (concluding that exclusive rights to distribute a broadcast signal 24 to commercial establishments constituted a “right to possession of property” for purposes of a conversion claim under California law); 25 see also DIRECTV, Inc. v. Pahnke, 405 F. Supp. 2d 1182, 1189 (E.D. Cal. 2005) (concluding that the “right to distribute programming 26 via satellite” constituted a “right to possession of personal 27 property” for purposes of a conversion claim under California law). 28 23 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 24 of 28

1 Golden Boy, so attached, does, on its face, grants Plaintiff the 2 “exclusive” right to license Golden Boy’s telecast of the Boxing 3 Program to commercial establishments. Defendant has not produced 4 evidence showing that some other entity besides Golden Boy was 5 telecasting the Boxing Program. 6 The evidence is sufficient to create a triable issue as to 7 whether Plaintiff had the requisite ownership of or right to 8 possess the property at issue. Defendant’s motion for summary 9 adjudication on this ground is DENIED. 10 Next, Defendant argues that, even if Plaintiff had exclusive 11 ownership of or rights to license the broadcast of the Boxing 12 Program to commercial establishments, Plaintiff has failed to 13 demonstrate Defendant’s conversion by a wrongful act or 14 disposition. Defendant argues that her purchase of the Boxing 15 Program from Comcast, through which she acquired the Boxing 16 Program, does not constitute conversion of the Boxing Program by a 17 wrongful act or disposition, as her purchase was “lawful.” 18 Defendant’s argument ignores the fact that Comcast may not have had 19 authority to transmit the Boxing Program to a commercial 20 establishment such as Frankie’s. Simply because Defendant 21 purchased the Boxing Program from Comcast does not demonstrate that 22 Defendant’s acquisition of the Boxing Program at its commercial 23 establishment was lawful or proper. Plaintiff’s License Agreement 24 with Golden Boy, which purportedly gave it exclusive exhibition 25 rights for commercial establishments, and Defendant’s failure to 26 purchase a commercial license from Plaintiff, create a triable 27 issue as to whether Defendant’s acquisition of the Boxing Program 28 24 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 25 of 28

1 from Comcast for $39.99, for purposes of airing the Boxing Program 2 at Defendant’s commercial establishment, was wrongful. 3 Defendant’s motion for summary adjudication on Plaintiff’s 4 conversion claim on the ground that Defendant did not convert the 5 Boxing Program by a wrongful act or disposition is DENIED. 6 C. Defendant’s Evidentiary Objections 7 Defendant has submitted written objections to evidence 8 submitted by Plaintiff and matters asserted in Plaintiff’s Separate 9 Statement of Undisputed Material Facts. Plaintiff, in its untimely 10 reply brief, objects to Defendant’s written objections as untimely. 11 Defendant’s written objections are late. However, because both 12 parties failed to adhere to the deadlines, Plaintiff’s untimeliness 13 argument is unpersuasive. In any event, Defendant’s evidentiary 14 objections lack merit or are directed at evidence or statements 15 immaterial to the disposition of the motions. 16 1. First Objection 17 Plaintiff objects to the License Agreement between Golden Boy 18 and Plaintiff on the grounds that it lacks authentication and is 19 irrelevant. In his declaration, Mr. Giagliardi, Plaintiff’s 20 president, properly authenticates the License Agreement. (See 21 Giagliardi Decl. ¶ 10 (“The contract attached as Exhibit ‘1' . . . 22 is a true and accurate representation of the original contract that 23 I signed with Golden Boy . . . .”).) This License Agreement is 24 relevant to substantive claims asserted in Plaintiff’s complaint as 25 it bears on whether Plaintiff had the rights to the commercial 26 distribution of the Boxing Program. Plaintiff’s first objection is 27 OVERRULED. 28 25 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 26 of 28

1 2. Second Objection 2 Plaintiff objects to the April 2005 affidavit of Plaintiff’s 3 private investigator, Calvin Stanfield, as lacking authentication 4 and irrelevant. Mr. Stanfield’s affidavit is notarized and is 5 self-authenticating. See Fed. R. Evid. 902(8) (“Documents 6 accompanied by a certificate of acknowledgment executed in the 7 manner provided by law by a notary public or other officer 8 authorized by law to take acknowledgments” are self- 9 authenticating). Mr. Stanfield’s declaration based on his personal 10 knowledge and observations is relevant to show Defendant’s 11 broadcast of the Boxing Program to patrons. It is also relevant to 12 whether the broadcast was for commercial advantage or financial 13 gain, as Mr. Stanfield discusses “Posters” he observed which 14 advertised the fight and the “cover charge” he claims to have paid 15 to enter Frankie’s. (Doc. 16-2, Ex. 2 at 1.) While there are 16 attachments to his affidavit that may not be particularly 17 meaningful, such as pictures of the sign to “Frankie’s” and 18 vehicles parked outside the establishment, the pertinent 19 substantive provisions of Mr. Stanfield’s affidavit (e.g., his 20 viewing of fight, the “Posters,” the “cover charge,” etc.) are 21 relevant for the purposes for which his affidavit was submitted. 22 Defendant’s second objection is OVERRULED. 23 3. Third Objection 24 Defendant objects to Plaintiff’s submission (Pl.’s Mem. of P. 25 & A., Ex. 3) of the Comcast account statement which shows the 26 $39.99 charge for the Boxing Program. Defendant argues that the 27 account statement lacks authenticity. This objection is frivolous. 28 26 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 27 of 28

1 Defendant included the same Comcast account statement in its own 2 submissions, acknowledging the authenticity of the document. In 3 addition, a declaration from Thomas P. Riley authenticates the 4 Comcast account statement. (Riley Decl. ¶ 3.) Defendant’s third 5 objection is OVERRULED. 6 4. Fourth And Fifth Objection 7 Defendant objects to Plaintiff’s requests for admissions and 8 Defendant’s own signed discovery responses, i.e., Defendant’s 9 answers to the requests for admissions, both of which Plaintiff has 10 submitted. Defendant argues that the requests for admissions and 11 Defendant’s answers lack authenticity. The Riley declaration 12 authenticates the discovery requests and answers. (See Riley Decl. 13 ¶¶ 4-5.) The fourth and fifth objections are OVERRULED. 14 5. The Sixth Through Ninth Objections 15 Finally, Defendant objects to the sentences that Plaintiff 16 used in its Statement of Undisputed Material Facts in support of 17 Plaintiff’s motion for summary judgment/adjudication. For example, 18 Plaintiff’s first statement of Undisputed Material Fact reads: “A 19 Championship Boxing Program was televised on Saturday, April 09, 20 2005.” Defendant objects to this statement on the ground that it 21 is “vague” because the statement does not specify to which 22 Championship Boxing Program the writer is referring. This 23 objection, like the rest of the objections to Plaintiff’s Statement 24 of Undisputed Material Facts, is moot in light of the ruling on 25 Plaintiff’s motion. Even taking Plaintiff’s statements of 26 undisputed material facts as they are worded, Plaintiff has not 27 demonstrated that summary judgment/adjudication in its favor is 28 27 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 28 of 28

1 warranted. At this juncture, there is no need to analyze whether 2 the Statement of Undisputed Material Facts was phrased properly. 3 Defendant’s objections to the phrasing or form of Plaintiff’s 4 statements of undisputed material facts are OVERRULED. 5 V. CONCLUSION 6 For the reasons stated: 7 1. Plaintiff’s and Defendant’s cross-motions for summary 8 judgment/adjudication are DENIED; and 9 2. Defendant’s evidentiary objections are OVERRULED without 10 prejudice. 11 Defendant shall submit a form of order consistent with, and 12 within five (5) days following electronic service of, this 13 Memorandum Decision. 14 15 IT IS SO ORDERED. 16 Dated: November 5, 2009 /s/ Oliver W. Wanger 9i274f UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 28