Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 1 of 28 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). 1 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 2 of 28 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 2 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 3 of 28 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 3 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 4 of 28 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 4 Case 1:08-cv-00486-OWW -DLB Document 41 Filed 11/05/09 Page 5 of 28 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.