UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
G&G CLOSED CIRCUIT EVENTS, LLC, 1:18-cv-001248-LJO-JLT
Plaintiff, ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 26 v. & 27)
ARTURO FLORES, et al.,
Defendants.
I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Harris to address this Court’s inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. Chief District Judge Lawrence J. O’Neill, who must prioritize criminal and older civil cases. Civil trials set before Chief Judge O’Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Chief Judge O ’Neill is unavailable on the original date set for trial. Moreover, this Court’s Fresno the Nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject
to reassignment to a U.S. District Judge from inside or outside the Eastern District of California.
In this matter, G&G Closed Circuit Events, LLC (“G&G” or “Plaintiff”) alleges that on
September 16, 2017, Defendants Arturo Flores (“A. Flores”) and Alejandro Vasquez (“Vasquez”)
unlawfully and without prior authorization broadcast a closed-circuit boxing match (Gennady Golovkin
v. Saul Alvarez IBF World Middleweight Championship) at two locations: the common area of the “Los
Amigos Swapmeet,” located in Bakersfield, California; and in “La Placita,” a commercial establishment
located within the Los Amigos Swapmeet. ECF No. 1 at ¶ 11; 1:18-cv-1249, ECF No. 1 at ¶ 15.1
Plaintiff advances four causes of action: (1) violation of 47 U.S.C. § 553 (“section 553”); (2) violation of
47 U.S.C. 605(a) (“section 605(a)”); (3) conversion; and (4) violation of California Business and
Professions Code § 17200, et seq. (“section 17200”). Before the Court for decision are cross motions for
summary judgment. ECF Nos. 26 and 27. The matter was taken under submission on the papers without
oral argument. ECF No. 32. For the reasons set forth below, both motions are DENIED.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. At summary judgment, a
court’s function is not to weigh the evidence and determine the truth but to determine whether there is a
genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must
draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
1 The member case, G&G Closed Circuit Events, LLC v. Arturo Flores, et al., 1:18-cv-1249 LJO-JLT, was consolidated with the above captioned action. ECF No. 25. Where it is necessary to refer to the member case, the Court will provide that case number before the Electronic Case File docket number. All other docket number references are to the above-captioned matter. Inc., 530 U.S. 133, 150 (2000). But if the evidence of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50. A
fact is “material” if its proof or disproof is essential to an element of a plaintiff’s case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is “genuine” “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248.
“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (internal citation omitted).
The moving party bears the initial burden of informing the Court of the basis for its motion, and
of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a
genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial
burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set
forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See
Fed. R. Civ. P. 56(c); Liberty Lobby, Inc., 477 U.S. at 250.
As mentioned, due to its extraordinary caseload, this Court will not belabor its analysis of the
pending cross motions. It only addresses the arguments raised by the parties and limits is analysis and
explanations to those issues and facts necessary to its decision.
A. Statutory Authorities
47 U.S.C. § 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 having received t ch oe m c mon ut ne in ct as t, i osu nb (s ot ra n ac ne y, pp au rr tp to hr et r, ee of ff )e c kt n, oo wr m ine ga tn hi an tg s uo cf hs u cc oh m munication 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 any 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.
47 U.S.C. § 553 addresses unauthorized reception of cable service and provides in pertinent 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. 47 U.S.C. § 605(e)(3)(C)(i)(II) authorizes statutory damages “not less than $1,000 or more than
$10,000, as the court considers just.” 47 U.S.C. § 605(e)(3)(C)(ii) authorizes damages up to $100,000 if
the court finds the violation was willfully committed for commercial advantage or private financial gain.
Alternatively, if “the court finds that the violator was not aware and had no reason to believe that his
acts constituted violation of this section, the court in its discretion may reduce the award of damages to a
sum of not less than $250.” 47 U.S.C. § 605(e)(C)(iii).
47 U.S.C. § 553(c)(3)(A)(ii) authorizes statutory damages “of not less than $250 or more than
$10,000 as the court considers just,” and 26 U.S.C. § 553(c)(3)(B) authorizes damages up to $50,000 if
the court finds the violation was willfully committed for commercial advantage or private financial gain.
Alternatively, “where the court finds the violator was not aware and had no reason to believe his acts
constituted a violation of this section, the court in its discretion may reduce the award of damages to
Claims premised on sections 553 and 605(a) are often pled in the alternative or together in signal
piracy cases. Some courts have “concluded that section 605(a) applies exclusively to broadcasts
obtained by way of a satellite television signal, as opposed to transmissions over a cable system, and that
section 553 applies exclusively to transmission over a cable system.” J & J Sports Prods., Inc. v. Torres,
No. 2:11-CV-00653 JAM, 2011 WL 6749817, at *4 (E.D. Cal. Dec. 22, 2011) (collecting cases). Other
courts have recognized “that § 605 encompasses the interception of satellite transmissions to the extent
reception or interception occurs prior to or not in connection with, distribution of the service over a
cable system, and no more.” Id. (quoting TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 204-07 (3d
Cir. 2001)).
B. Defendants’ Motion for Summary Judgment
Defendants A. Flores and Vasquez move for summary judgment as to all claims in the
consolidated cases. Defendants premise their motion on two arguments. First, Defendants maintain that
they did not own or operate “the business” at the time in question. ECF No. 26 at 5-7. Second, they
present evidence that “the subject location” was authorized to receive the signal. ECF No. 26 at 7.
As to the issue of ownership and control, “[i]ndividual liability under the [sections 553 and/or
605(a)] requires that the individual authorize the underlying violations.” J & J Sports Productions, Inc.
v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469, 473 (E.D.N.Y. 2009). “Put differently, the complaint
must establish that the individual had a ‘right and ability to supervise’ the violations, as well as an
obvious and direct financial interest in the misconduct.” 291 Bar & Lounge, 648 F. Supp. 2d at 473
(quoting Softel, Inc., v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 971 (2d Cir.
1997)).
According to Defendant Vasquez’s declaration, he and A. Flores did at one time own Los
Amigos Swapmeet as partners; however, Vasquez sold his interest in the Los Amigos Swapmeet to
Defendant A. Flores in late 2009. See Declaration of Alejandro Vasquez (“Vasquez Decl.”), ECF No. 7 at ¶ 2. According to Vasquez, on October 2, 2009, he and A. Flores entered into an agreement to
dissolve the partnership, and on November 1, 2009, A. Flores paid Vasquez the agreed upon money to
purchase Vasquez’s interest in the partnership. Id. Vasquez also indicates that “for many years,” he has
lived in Sherwood, Oregon and had “no knowledge of the events taking place” at the Los Amigos
Swapmeet on or about September 2017. Id. at ¶ 3. Although Vasquez does not separately mention
ownership of La Placita, the obvious implication of his declaration is that he disavows any ownership
interest in any activities at or within Los Amigos Swapmeet. Therefore, Vasquez disclaims having any
ability to control, or financial interest in, either the Swapmeet or La Placita as of the date of the alleged piracy in September 2017.2
Defendant A. Flores admits that he did have an ownership interest in the Los Amigos Swapmeet
as of September 2017, but asserts that he had no ownership interest or control over La Placita, which had
been leased to Edwin Flores (“E. Flores”). See Declaration of E. Flores (“E Flores Decl.”), ECF No. 26-
4 ¶ 2. As proof of this, Defendants provide a copy of a lease agreement purporting to be between
“Arturo Flores or Alejandro Vasquez” on behalf of Los Amigos Swapmeet and E. Flores, covering a five-year time period starting on January 1, 2016. Id. at ¶ 2 & Ex. A (ECF No. 26-5).3 The lease
specifically indicates that it covers a 4,000 square foot area designated as “Space #34” within the Los
Amigos Swapmeet. Id. It appears to be undisputed that Space #34 is the commercial establishment
referred to as La Placita. See A. Flores Decl. at ¶ 2; ECF No. 27-2 at 5 of 32 (copy of liquor license for
La Placita operating at Space #34 within the Los Amigos Swapmeet).
However, the record also contains evidence that suggests both Defendant A. Flores and
2 Plaintiff objects to Vasquez’s declaration on numerous grounds. Because Defendants’ motion for summary judgment will be denied, the Court need not address those objections here. Certain of the objections are addressed below in the context of evaluating Plaintiff’s motion for summary judgment.
3 Although Plaint iff take issue with the authenticity of this lease, the Court will assume it authentic for purposes of analyzing the Swapmeet and La Placita as of September 2017. First, both the lease discussed above and relied
upon by Defendants, as well as a separate lease (with a different date of coverage) disclosed to Plaintiff
during discovery, indicate that Los Amigos Management is a “general partnership” and that the lease
could be signed by either Arturo Flores or Alejandro Vasquez. See ECF No. 26-5, Ex. A (lease
submitted by Defendants covering period from 2018- 2023); ECF No. 27-2 at 18 of 32 (lease submitted
by Plaintiff covering period from 2016-2021). This alone is sufficient to create a dispute of fact as to
whether the partnership between Arturo Flores and Alejandro Vasquez ever dissolved. In addition,
Plaintiff presents a copy of the liquor license for La Placita covering the period from October 2016
through October 2018, which lists both A. Flores and Alejandro Vasquez as the licensees. ECF No. 27-2
at 5 of 32. This also is sufficient to create a dispute of fact as to whether A. Flores and Alejandro
Vasquez had any ownership interest or control over La Placita.
As to the argument that “the subject location” was authorized to receive the signal, Defendants
present a copy of a written “Close[d] Circuit TV Contract,” dated September 11, 2017 (“Contract”). E.
Flores Decl., Ex. B (ECF No. 26-6). The agreement is signed by E. Flores as the owner of “El Tazumal,”
located at Space #13 within the Los Amigos Swapmeet, and Jose Pelayo, who, according to the
Contract, represented J&J Sports Productions, Inc. The agreement states: By this contract, Jose Pelayo agree[s] to legally acquire and pay for the close[d] circuit transmission rights for the Boxing event on Saturday Sept 16, 2017. Approximately between 5pm and 9pm to provide a live feed to EL TAZUMAL for which Edwin Flores is the owner. As payment for services Jose Pelayo will be entitled to receive 100% of the admission fees for this event between the hours of 5 pm and 9 pm.
EDWIN FLORES, Agrees to provide food and beverages for said events for which they will keep all proceeds. Jose Pelayo will provide said event but is not responsible for program changes such as boxing schedules or cancellations due to injuries or disqualifications etc. a ted le eq vu isa it oe n s mec ou nri it ty o rs se arv ni dc e sp f eo ar k s ea ri sd f e ov r e bn rt o a as d cw ae sl tl oa fs tp hr eo ev vid ei nn tg s. a cceptable
Id.
It is undisputed that neither Jose Pelayo nor J&J Sports Productions actually had the rights to
authorize broadcast of the Program. See Declaration of Nicolas J. Gagliardi (“Gagliardi Decl.”), ECF
No. 27-4 at ¶ 13. Nonetheless, even assuming one or both did possess such right, neither the Contract
itself nor the declaration of E. Flores referencing the Contract demonstrates that anyone at La Placita,
located at Space #34, could possibly have acquired the rights to broadcast the Program. The Contract
bears the name and location of a different business. Therefore, Defendants have failed to create a
material dispute of fact that the subject location – La Placita – was authorized to broadcast the event.
Defendants’ motion for summary judgment is therefore DENIED.
At least at this point in the litigation, the Court need not engage in the more complicated task of
evaluating to what extent such a Contract could ever excuse a business from liability under sections 503
and or 605(a).
C. Plaintiff’s Motion for Summary Judgment
Plaintiff moves for summary judgment on its section 605(a) and conversion claims against
Defendants A. Flores and Vasquez. It does not move for judgment on the section 553 or section 17200
claims.
As to Defendant Vazquez, even assuming the Program was displayed unlawfully within both Los
Amigos Swapmeet and La Placita, there are disputes of fact as to whether Vasquez has any ownership
interest in either business. As mentioned, Vasquez has submitted a declaration indicating that, while he
previously owned Los Amigos Swapmeet with A. Flores, the partnership “has long been dissolved.”
Vasquez Decl. at 26-7 at ¶ 2. According to Vasquez, on October 2, 2009, he and A. Flores entered into
an agreement to dissolve the partnership, and on November 1, 2009, A. Flores paid Vasquez the agreed
upon money to purchase Vasquez’s interest in the partnership. Id. Vasquez asserts that the dissolution also indicates that “for many years,” he has lived in Sherwood, Oregon and had “no knowledge of the
events taking place” at the Los Amigos Swapmeet on or about September 2017. Id. at ¶ 3. As discussed
above, the implication of his declaration is that he disavows any ownership interest in any activities at or
within Los Amigos Swapmeet, including within La Placita. On summary judgment, the Court must
accept the non-moving party’s facts as true and construe those facts in the light most favorable to that
non-moving party.
G&G objects to the admissibility of Vasquez’s statements regarding the partnership on several
grounds, all of which are without merit. First, G&G argues that Vasquez’s declaration violates the best
evidence rule. See ECF No. 18-4 at 2-3. Specifically, G&G maintains that “[i]n light of the purported
recordation of the alleged partnership agreement, the document is the best evidence of that purported
agreement.” Id. Federal Rule of Evidence 1002 provides that “[a]n original writing, recording, or
photograph is required in order to prove its content unless these rules or a federal statute provides
otherwise.” Although it is not entirely clear, it appears that G&G is arguing that Vasquez cannot testify
at all about the dissolution of the partnership without producing that agreement. “Where the rule applies,
the proponent must produce the original (or a duplicate, see Fed. R. Evid. 1003) or explain its absence.
Fed. R. Evid. 1002, 1004.” United States v. Bennett, 363 F.3d 947, 953 (9th Cir. 2004). But, the rule
only applies when the content of the item is sought to be proved. Id. (citing Fed. R. Evid. 1002 Advisory
Committee’s note, which provides that “[a]n event may be proved by nondocumentary evidence, even
though a written record of it was made.”). Here, Vasquez has clearly declared that his partnership with
A. Flores dissolved in 2009. Vasquez Decl. at ¶ 2 (“that partnership has long been dissolved and I had
no ownership interest or any control over that location since the year 2009”). He offers the existence of a
dissolution agreement as additional corroboration of that statement, but G&G points to no authority
suggesting that the event of dissolution must be proved by the written instrument. G&G also raises,
without explanation, a hearsay objection. See ECF No. 28-4 at 2-3 (in connection with the best evidence hearsay.”). Vasquez’s assertions about entering into a dissolution agreement with A. Flores and the fact
that A. Flores paid him money to consummate that agreement do not implicate the rule against hearsay.
See Fed. R. Evid. 801 (“Hearsay” means “a statement that . . . the declarant does not make while
testifying at the current trial or hearing . . . .”) (emphasis added). These objections are OVERRULED.
As a result, there is a dispute of fact as to whether Vasquez had any ownership interest or control over
either Los Amigos Swapmeet or La Placita. This precludes summary judgment against him as to the
section 605(a) claim. 291 Bar & Lounge, 648 F. Supp. 2d at 473.
There is also a dispute of fact as to whether the Program was displayed in the common area of
Los Amigos Swapmeet. On the one hand, Plaintiff has presented direct evidence that the Program was
shown on a TV outside the entrance to La Placita. See Declaration of JD Kaplan, ECF No. 27-5 (“I
observed on 1 tv in the common area showing the pay per view event, Canelo vs Golovkin.”);
Supplemental Declaration of JD Kaplan, ECF No. 27-6 at ¶¶ 4-5 (explaining that a photograph attached
to his original declaration depicts the “common area” at Los Amigos Swapmeet). However, A. Flores
examined the evidence in the case and insists “based upon [his] familiarity with this location the
exhibition of the subject TV program on September 16, 2017, took place in Space 34.” A. Flores Decl.
at ¶ 2. Admittedly, this is not particularly detailed contrary evidence. However, the Court’s has reviewed
the photograph submitted by Mr. Kaplan and finds it plausible that a finder of fact could conclude that
the television depicted therein is attached to or at least strongly associated with the establishment whose
entrance is depicted centrally in that photograph, an establishment the Court presumes (for purposes of
this motion) is La Placita. ECF No. 27-5 at 5 of 12. Absent deposition testimony demonstrating that A.
Flores’ assertion is a sham, which has not been presented, and viewing this evidence in the light most
favorable to Plaintiff, as the Court must, the Court concludes for purposes of this motion only that the
Program was displayed solely in La Placita.
As mentioned above in the context of the Court’s analysis of Defendants’ motion for summary ownership interest or control over La Placita. Among other things, Plaintiff presents a copy of the liquor
license for La Placita covering the period from October 2016 through October 2018, which lists both A.
Flores and Vasquez as the licensees. ECF No. 27-2 at 5 of 32. However, Defendants have presented
sufficient evidence to raise a dispute on this factual issue. A. Flores states in his declaration that Los
Amigos Swapmeet leased Space 34 to E. Flores, who managed and operated La Placita as an
independent business at the time of the allegedly unlawful broadcast. A. Flores Decl. at ¶ 2. E. Flores’
declaration supports this assertion, E. Flores Decl. at ¶ 3, as does the copy of the lease Defendants provided. See ECF No. 26-5.4
Together, the above conclusions–that for purposes of summary judgment, the Court must assume
that the Program was displayed only in La Placita and that A. Flores did not own or operate La Placita–
are fatal to G&G’s motion on its section 605(a) claim against A. Flores as well.
Finally, the above facts also dispose of G&G’s motion for summary judgment on its state law
conversion claim. The elements of a conversion claim under California law are: “(1) the plaintiff’s
ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” Burlesci v. Petersen, 68 Cal. App. 4th 1062, 1065
(1998). Although “conversion is a strict liability tort,” id., liability still requires proof that it was the
defendant who converted the property. The above discussion demonstrates that there are disputes of fact
as to whether (1) any broadcast was made outside La Placita; and (2) whether either Defendant had any
4 Plaintiff objects that the version of the lease submitted by Defendants was not disclosed to them during discovery and
therefore should be excluded. ECF No. 28-4 at 3. Specifically, Defendants suggest that the lease should have been disclosed to Plaintiff as part of Defendants’ initial disclosures under Fed. R. Civ. P. 26(a)(1)(A)(i)(requiring disclosure of a copy of any document a party has in its possession, custody, or control that it “may use to support its claims or defenses”), and that Defendants have not even attempted to justify a late disclosure. The Court agrees, but nonetheless finds that the lease itself is not required to create a dispute of fact as to Defendants’ ownership or control over La Placita. E. Flores’ Declaration alone establishes that he leased Space #34 and that Defendants did not exercise management control over La Placita’s operations. That a lease may be required for enforcement purposes under the statute of frauds, Cal. Civ. Code § 1624(a)(4), does not render E. Flores’ testimony irrelevant or immaterial. Accordingly, G&G’s motion for summary judgment on the conversion claim is DENIED.5
The parties have submitted a stipulation to vacate pretrial and trial dates based upon their
erroneous assumption that one of their motions for summary judgment would be granted and therefore
would dispose of the case. See ECF No. 36. Accordingly, the Court deems the stipulation to be without
good cause and therefore it is NOT APPROVED.
Relatedly, Plaintiff embeds within its motions papers a request to re-open discovery so that it
may depose Defendants about the copy of the lease Defendants submitted in connection with
Defendants’ motion for summary judgment. See ECF No. 28-4. The Court declines to rule on that
request in the context of this motion, having found above, see supra note 4, that the lease is not
necessary to dispose of the present motions.
For the reasons set forth above:
(1) The motions for summary judgment are DENIED; and
(2) The parties’ stipulation to vacate all pretrial and trial dates is NOT APPROVED.
Dated: August 14, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE
5 The Court does not agree with G&G that Defendants conceded as to G&G’s motion for summary judgment on the conversion claim. See ECF No. 33 at 4. Defendants’ opposition to G&G’s motion argues that G&G’s motion should be denied in its entir ety because Defendants did not own or operate the business where the exhibition took place. ECF No. 30 at