FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES E. YEAGER, aka Chuck; 

GENERAL CHUCK YEAGER

FOUNDATION,

Plaintiffs-Appellants,

No. 10-15297

v.  DC No.

CONNIE BOWLIN; ED BOWLIN; 2:08 cv-0102 WBS

AVIATION AUTOGRAPHS, a nonincorporated Georgia business

entity; BOWLIN & ASSOCIATES, INC.,

Defendants-Appellees. 

CHARLES E. YEAGER, aka Chuck; 

GENERAL CHUCK YEAGER

FOUNDATION,

Plaintiffs-Appellants, No. 10-16503

v. DC No.  2:08 cv-0102 WBS CONNIE BOWLIN; ED BOWLIN;

AVIATION AUTOGRAPHS, a non- OPINION

incorporated Georgia business

entity; BOWLIN & ASSOCIATES, INC.,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Senior District Judge, Presiding

Argued and Submitted

October 12, 2011—San Francisco, California

Submission Vacated and Deferred October 13, 2011

Resubmitted July 30, 2012

10889
Filed September 10, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima

10890 YEAGER v. BOWLIN
COUNSEL

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

Todd M. Noonan, Stevens, O’Connell & Jacobs LLP, Sacramento, California, for the defendants-appellees.

10892 YEAGER v. BOWLIN
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

1We address Yeager’s remaining contentions and affirm the district

court in a memorandum disposition filed concurrently with this opinion.

YEAGER v. BOWLIN 10893
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 iden10894 YEAGER v. BOWLIN
tified 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.

[1] “‘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.

YEAGER v. BOWLIN 10895
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.”

[2] 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 summary judgment 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. 

10896 YEAGER v. BOWLIN
[3] 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 (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. 

[4] 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.2

2Yeager also asks us to generally “scruitin[ize]” the district court’s evidentiary rulings, but does not ask us to overturn any ruling other than the

finding of a sham declaration. Accordingly, we do not address any of

Yeager’s other arguments related to the district court’s evidentiary rulings.

YEAGER v. BOWLIN 10897
IV. Republication on the Internet

Yeager filed this lawsuit in January 2008. He alleges that

statements on the Aviation Autographs website violate his

common law right to privacy and California’s statutory right

to publicity, Cal. Civ. Code § 3344. Both claims are subject

to a two-year statute of limitations. See Christoff v. Nestle

USA, Inc., 213 P.3d 132, 135 (Cal. 2009). There is no evidence in the record that the Bowlins added any information

about Yeager, or changed any of the challenged statements

about Yeager on their website, after October 2003. The district court applied the single-publication rule, determined that

the statute of limitations accrued in October 2003, and dismissed these two claims as untimely. Yeager challenges the

district court’s accrual calculation.

[5] “The single-publication rule limits tort claims premised

on mass communications to a single cause of action that

accrues upon the first publication of the communication,

thereby sparing the courts from litigation of stale claims when

an offending book or magazine is resold years later.” Roberts

v. McAfee, Inc., 660 F.3d 1156, 1166-67 (9th Cir. 2011)

(internal quotation marks omitted); see also Cal. Civ. Code

§ 3425.3. The single-publication rule applies to the internet.

Roberts, 660 F.3d at 1167. In print and on the internet, statements are generally considered “published” when they are

first made available to the public. Id.

[6] Under the single-publication rule, the statute of limitations is reset when a statement is republished. See id. A statement in a printed publication is republished when it is

reprinted in something that is not part of the same “single

integrated publication.” Christoff, 213 P.3d at 137. For example, a statement made in a daily newspaper is not republished

when it is repeated in later editions of that day’s newspaper,

Belli v. Roberts Bros. Furs, 49 Cal. Rptr. 625, 629 (Ct. App.

1966), but a statement made in a hardcover book is republished when it is repeated in a later paperback version of the

10898 YEAGER v. BOWLIN
book, Kanarek v. Bugliosi, 166 Cal. Rptr. 526, 530 (Ct. App.

1980). 

[7] Applying the single-integrated-publication test to nontraditional publications can be tricky. See, e.g., Christoff, 213

P.3d at 141 (remanding to the trial court to develop record on

whether different components of advertising campaign constitute a single integrated publication). One “general rule” is that

a statement is republished when it is “repeat[ed] or recirculate[d] . . . to a new audience.” Hebrew Acad. of S.F. v. Goldman, 173 P.3d 1004, 1007 (Cal. 2007). And we have

previously held that, under California’s single-publication

rule, once a defendant publishes a statement on a website, the

defendant does not republish the statement by simply continuing to host the website. See Roberts, 660 F.3d at 1169 (continuing to host a press release on a website is “inaction” which

“is not a republication”). 

[8] Yeager argues 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 in dicta

that “[t]he modification to a Web site does not constitute a

republication,” Christoff v. Nestle USA, 62 Cal. Rptr. 3d 122,

138 (Ct. App. 2007), rev’d in part, Christoff, 213 P.3d 132,

the California appellate courts have not squarely addressed

this question. We reject Yeager’s argument and hold 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.

YEAGER v. BOWLIN 10899
In Oja v. United States Army Corps of Engineers, we

rejected a plaintiff’s argument that a defendant continuously

republished information by hosting the information on a website. 440 F.3d 1122, 1132 (9th Cir. 2006). One reason, we

explained, was that the website host “did not modify the substance of the published information following the initial posting of the private information.” Id. In a footnote, we

cautioned that “[o]f course, substantive changes or updates to

previously hosted content that are not ‘merely technical’ may

sufficiently modify the content such that it is properly considered a new publication.” Id. at 1132 n.14 (citing In re Davis,

334 B.R. 874 (Bankr. W.D. Ky. 2005)). The case we cited in

support held that the defendants republished defamatory

material when they added substantive information regarding

the plaintiffs to their website. In re Davis, 334 B.R. at 884,

aff’d in relevant part, Davis v. Mitan, 347 B.R. 607, 612

(W.D. Ky. 2006). 

Our holding is also consistent with Canatella v. Van De

Kamp, 486 F.3d 1128 (9th Cir. 2007). In that case, we held

the defendant did not republish the plaintiff’s disciplinary

summary when he added a “verbatim copy” of the summary

to a different URL within the same domain name. Id. at 1135.

If adding a verbatim copy of a statement to a different URL

does not trigger republication, then leaving a statement

unchanged while modifying other information on the URL

should not trigger republication. 

Other courts that have considered this question have

reached the same conclusion. In Firth v. State, the New York

Court of Appeals rejected plaintiff’s argument that the defendant republished an allegedly defamatory report when it

posted an unrelated report to its website because “it is not reasonably inferable that the addition was made either with the

intent or the result of communicating the earlier and separate

defamatory information to a new audience.” 775 N.E. 2d 463,

466 (N.Y. 2002); see also Atkinson v. McLaughlin, 462 F.

Supp. 2d 1038, 1051, 1055 (D.N.D. 2006) (updating names

10900 YEAGER v. BOWLIN
and addresses of the board of directors listed on a website was

not a republication because the “modification did not change

the content or substance of the website that [plaintiff] alleges

is defamatory in nature” and “did not reasonably result in

communicating the alleged defamatory information to a new

audience”). Firth has been cited with approval in two opinions of the California Courts of Appeal. See Traditional Cat

Ass’n, Inc. v. Gilbreath, 13 Cal. Rptr. 3d. 353, 361 (Cal. Ct.

App. 2004) (extensively quoting Firth’s holding that the

single-publication rule applies to the internet); Christoff, 62

Cal. Rptr. 3d at 138 (citing Firth for its statement in dicta that

“modification to a Web site does not constitute a republication”). 

In Firth, the New York Court of Appeals explained that

allowing any modification of a website to trigger republication “would either discourage the placement of information on

the Internet or slow the exchange of such information” by

forcing a publisher “ to avoid posting on a Web site or use a

separate site for each new piece of information.” 775 N.E. 2d

at 467. We agree, and add that Yeager’s suggested rule would

encourage websites to be frozen in anticipation of and during

potentially lengthy litigation. For example, Connie Bowlin

notes in her declaration that “[b]ecause of this lawsuit, we

have not edited [the “About Aviation Autographs” page] to

update it, but intend to do so once this lawsuit is complete.”

We recognized in Oja that refusing to apply the singlepublication rule to the internet would have “ ‘a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its

greatest beneficial promise.’ ” 440 F.3d at 1132 (quoting

Firth, 775 N.E.2d at 466). This reasoning would be undermined if the standard for republication is too easily met. 

[9] Yeager suggests, citing Justice Werdegar’s concurring

opinion in Christoff, that republication is triggered when a

publisher makes a conscious deliberate choice to reissue a

publication. 213 P.3d at 143 (Werdegar, J., concurring).

YEAGER v. BOWLIN 10901
Yeager argues that when the Bowlins edited some parts of the

website, but left the challenged statements intact, they made

a conscious choice to continue publishing the challenged

statements. We reject this argument for two reasons. First,

“Justice Werdegar’s concurrence was not adopted by the

majority and therefore is not the law of California.” Roberts,

660 F.3d at 1168. Second, “even if it were, it would not help”

Yeager. Id. If a defendant does not make a conscious choice

to republish a statement by continuing to host the statement

on a website, id., the defendant does not make a conscious

choice to republish the statement by continuing to host the

statement and also modifying other parts of the website.

V. Conclusion

The judgment of the district court granting summary judgment to Defendants is AFFIRMED.

10902 YEAGER v. BOWLIN