Yeager v. Bowlin

Under California law, a statement is not "republished" on a website unless "the statement itself is substantively altered or added to" or "the website is directed to a new audience."

Retired General Charles E. Yeager brought eleven claims against Ed and Connie Bowlin under California’s statutory right to publicity, California’s common law right to privacy and violations of the Lanham Act. Yeager did not recall answers to approximately 185 questions during his deposition. Yeager filed a declaration that provided facts and answered questions he could not answer during his deposition. The district court granted the motion for summary judgment in favor of the Bowlins and held that Yeager’s declaration was a sham and disregarded it. Yeager contended his declaration was not a sham. The Ninth Circuit found that disregarding the declaration under the sham affidavit rule was not an abuse of discretion by the district court. The Ninth Circuit reasoned that it was implausible, because of the extreme number of questions Yeager could not answer, that Yeager could have refreshed his recollection by reviewing documents for his submitted declaration, when during his deposition exhibits were offered to him and were unsuccessful for helping him refresh his recollection. The Ninth Circuit agreed with the district court conclusion that no juror would believe Yeager’s ability to suddenly remember the answers to crucial questions that were central to his lawsuit. Also, Yeager contended that the Bowlins “republished” on their website statements about him under California’s single-publication rule and therefore restarted the statute of limitations. The Ninth Circuit held that on a website a statement is not republished under California law unless the “statement itself is substantively altered or added to” or “the website is directed to a new audience.” The Ninth Circuit found that the statements regarding Yeager were not “republished” because the Bowlins edited other parts of the website and left the statements alone. Therefore, just because the Bowlins continually hosted Yeager’s statements on their website does not make them republished. AFFIRMED.