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
The opinion of the court was delivered by: Tashima, Circuit Judge:
Argued and Submitted October 12, 2011-San Francisco, California Submission Vacated and Deferred October 13, 2011
Resubmitted July 30, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and A. Wallace Tashima, Circuit Judges.
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.*fn1
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 ...