Ninth Circuit Judge Affirms District Court Summary Judgment Finding Yeager's Declaration To Be A 'Sham'
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, CA, has upheld a district court summary judgment that claims made by Chuck Yeager concerning signed memorabilia offered for sale on a website are a "sham."
According to the court documents, “Yeager (pictured in recent USAF photo) is a recognized figure in aviation history. The defendants, Ed and Connie Bowlin, 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 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 were time-barred.
Yeager appealed the decision "in a timely manner," according to the court, arguing that his declaration cannot be a sham because he did not declare facts which contradict facts he testified to at his deposition.
In its ruling, the court cited a sham affidavit rule which prevents “a party who has been examined at length on deposition” from “(raising) 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.” 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.
The ruling goes on to state "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 would believe Yeager’s weak explanation for his sudden ability to remember the answers to important questions about the critical issues of his lawsuit. It is implausible that Yeager could refresh his recollection so thoroughly by reviewing several documents in light of the extreme number of questions to which Yeager
answered he could not recall during his deposition and the number of exhibits used during the deposition to try to refresh his recollection. Thus, the district court’s invocation of the sham affidavit rule to disregard the declaration was not an abuse of discretion."
Yeager had also argued that "the website was republished, and the statute of limitations restarted, each time the Bowlins added to or revised content on their website, even if the new content did not reference or depict Yeager. For example, the reference to Yeager on the “News and Events” page was added in 2003, but that webpage also contains entries on other topics that were apparently added through the fall of 2009. Although one California Court of Appeal has noted that “[t]he modification to a Web site does not constitute a republication,” the California appellate courts have not squarely addressed this question."
The appeals court rejected Yeager’s argument saying that, "under California law, a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience. This holding is consistent with cases in which we have applied the single-publication rule to federal statutes and with decisions of other courts, and prevents freezing websites in anticipation of litigation."