Yeager v. Bowlin

• Decision Date: 10 September 2012
• Docket Number: 10–16503.,Nos. 10–15297,s. 10–15297
• Citation: 693 F.3d 1076
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Charles E. YEAGER, aka Chuck; General Chuck Yeager Foundation, Plaintiffs–Appellants, v. Connie BOWLIN; Ed Bowlin; Aviation Autographs, a non-incorporated Georgia business entity; Bowlin & Associates, Inc., Defendants–Appellees. Charles E. Yeager, aka Chuck; General Chuck Yeager Foundation, Plaintiffs–Appellants, v. Connie Bowlin; Ed Bowlin; Aviation Autographs, a non-incorporated Georgia business entity; Bowlin & Associates, Inc., Defendants–Appellees.

693 F.3d 1076

12 Cal. Daily Op. Serv. 10,437

2012 Daily Journal D.A.R. 12,686

Charles E. YEAGER, aka Chuck; General Chuck Yeager Foundation, Plaintiffs–Appellants,

v.Connie BOWLIN; Ed Bowlin; Aviation Autographs, a non-incorporated Georgia business entity; Bowlin & Associates, Inc., Defendants–Appellees.

Charles E. Yeager, aka Chuck; General Chuck Yeager Foundation, Plaintiffs–Appellants,

v.Connie Bowlin; Ed Bowlin; Aviation Autographs, a non-incorporated Georgia business entity; Bowlin & Associates, Inc., Defendants–Appellees.

Nos. 10–15297, 10–16503.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 12, 2011.

Vacated and Deferred Oct. 13, 2011.

Resubmitted July 30, 2012.

Filed Sept. 10, 2012.

Jon R. Williams, Boudreau Williams LLP, San Diego, CA, for the plaintiffs-appellants.

Todd M. Noonan, DLA Piper LLP (US), Sacramento, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. DC No. 2:08 cv–0102 WBS.

Before: BETTY B. FLETCHER, STEPHEN REINHARDT, and A. WALLACE TASHIMA, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Plaintiffs, retired General Charles E. “Chuck” Yeager and his foundation, appeal the district court's order granting summary judgment to Defendants Ed and Connie Bowlin. Yeager contends that the district court should not have struck his declaration, which contains comprehensive details he did not remember at his deposition. He also contends that, under California's single-publication rule, the Bowlins “republished” statements about him on their website—and thereby restarted the statute of limitations—when they modified unrelated information on their website. We reject both arguments and affirm the district court.¹

I. Background

Yeager is a recognized figure in aviation history. The Bowlins are retired commercial airline captains who became friends with Yeager in the 1980s. The Bowlins own Aviation Autographs, which sells aviation-related memorabilia, including items related to or signed by Yeager.

In 2008, Yeager brought eleven claims against the Bowlins, including violations of the federal Lanham Act, California's common law right to privacy and California's statutory right to publicity, Cal. Civ.Code § 3344. At his deposition in this action, Yeager did not recall answers to approximately two hundred questions, including questions on topics central to this action. Approximately three months later, on the same day that he filed his opposition to the Bowlins' motion for summary judgment, Yeager filed a declaration. The declaration contains many facts that Yeager could not remember at his deposition, even when he was shown exhibits in an attempt to refresh his recollection.

The district court held that Yeager's declaration was a sham and, for summary judgment purposes, disregarded it where it contained facts that Yeager could not remember at his deposition. The district court granted the Bowlins' motion for summary judgment on all claims. It held that Yeager's claims under California's common law right to privacy and California's statutory right to publicity, Cal. Civ.Code § 3344, were time-barred.

Yeager timely appealed.

II. Standards of Review

Questions of law decided on summary judgment are reviewed de novo. Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir.2010). “We must determine, viewing the evidence in the light most favorable to [the non-movant], whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

We, apparently, have not yet decided the standard which governs our review of a district court's invocation of the sham affidavit rule. We have, however, implied that review is for abuse of discretion. See Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir.2009) (noting “two important limitations on a district court's discretion to invoke the sham affidavit rule”). Moreover, we review for abuse of discretion “[r]ulings regarding evidence made in the context of summary judgment....” Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. (2005)). We thus conclude that a district court's decision whether to apply the sham affidavit rule should be reviewed for abuse of discretion. Under that standard, we first “determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc). If it did we then “determine whether the trial court's application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Id. (internal quotation marks omitted).

III. Sham Declaration

Yeager argues that his declaration cannot be a sham because he did not declare facts which contradict facts he testified to at his deposition. We disagree.

“ ‘The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.’ ” Van Asdale, 577 F.3d at 998 (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991)). This sham affidavit rule prevents “a party who has been examined at length on deposition” from “rais [ing] an issue of fact simply by submitting an affidavit contradicting his own prior testimony,” which “would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy, 952 F.2d at 266 (internal quotation marks omitted); see also Van Asdale, 577 F.3d at 998 (stating that some form of the sham affidavit rule is necessary to maintain the principle that summary judgment is an integral part of the federal rules). But the sham affidavit rule “ ‘should be applied with caution’ ” because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment. Id. (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir.1993)), In order to trigger the sham affidavit rule, the district court must make a factual determination that the contradiction is a sham, and the “inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Id. at 998–99.

According to the district court, “the deponent remember[ed] almost nothing about the events central to the case during his deposition, but suddenly recall [ed] those same events with perfect clarity in his declaration in opposition to summary judgment without any credible explanation as to how his recollection was refreshed.” During his deposition, Yeager responded that he did not recall answers to approximately 185 different questions. For example, Yeager stated that he did not recall significant or difficult-to-forget events in the recent past, such as testifying in court or his involvement in a plane crash. In his declaration, Yeager provided no reason for his sudden ability to recall specific facts that he could not recall during his deposition other than stating that since his deposition he “reviewed several documents that have refreshed [his] recollection about some things [he] did not recall.” The district court found this explanation to be “unbelievable given that Yeager was shown over twenty exhibits during his deposition in an attempt to refresh his recollection.”

Several of our cases indicate that a district court may find a declaration to be a sham when it contains facts that the affiant previously testified he could not remember. In Scamihorn v. General Truck Drivers, we implied this result in dicta when we noted that a declaration could be considered a sham if the declarant provides information which he had testified he could not recall. 282 F.3d 1078, 1085 n. 7 (9th Cir.2002). We have also held that a witness can be punished for contempt of court when he refuses to give information “which in the nature of things [he] should know.” Collins v. United States, 269 F.2d 745, 750 (9th Cir.1959). In Collins, we quoted Learned Hand's example that to evade contempt of court “ ‘it could not be enough for a witness to say that he did not remember where he had slept the night before, if he was sane and sober....’ ” Id. (quoting United States v. Appel, 211 F. 495, 495–96 (S.D.N.Y.1913)). The utility of the sham affidavit rule to maintain summaryjudgment as integral to the federal rules, Van Asdale, 577 F.3d at 998, would be undermined if we were to hold that the rule did not apply in this case.

We caution that newly-remembered facts, or new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking of a declaration as a sham. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806–07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (stating the general rule that parties may explain or attempt to resolve contradictions with an explanation that is sufficiently reasonable). “ ‘[T]he non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.’ ” Van Asdale, 577 F.3d at 999 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir.1995)). This is not a case in which a deponent's memory could credibly have been refreshed by subsequent events, including discussions with others or his review of documents, record, or papers.

In this case, the district court found that “the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions.” This finding was not clearly erroneous. The district court could reasonably conclude that no juror...