Yeager et al v. Bowlin et al

Filing 135

MEMORANDUM AND ORDER signed by Judge William B. Shubb on 1/6/2010 ORDERING 103 that defendants' motion for summary judgment be, and hereby the same is, GRANTED. IT IS FURTHER ORDERED that plaintiffs' complaint be, and the same hereby is, DISMISSED as to the remaining defendants. CASE CLOSED. (Reader, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ----oo0oo---Plaintiffs General Charles "Chuck" Yeager, (Ret.) ("Yeager") and the General Chuck Yeager Foundation ("Foundation") filed this lawsuit alleging various claims against defendants 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

GENERAL CHARLES "CHUCK" YEAGER, (RET.), and GENERAL CHUCK YEAGER FOUNDATION, Plaintiffs, v. CONNIE BOWLIN, ED BOWLIN, DAVID MCFARLAND, AVIATION AUTOGRAPHS, a non-incorporated Georgia business entity, BOWLIN & ASSOCIATES, INC., a Georgia corporation, INTERNATIONAL ASSOCIATION OF EAGLES, INC., an Alabama corporation, SPALDING SERVICES, INC., and DOES 1 through 100, inclusive, Defendants. /

NO. CIV. 2:08-102 WBS JFM MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

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Connie Bowlin, Ed Bowlin, David McFarland, Aviation Autographs, Bowlin and Associates, Inc. ("B&A"), Spalding Services, Inc., and International Association of Eagles, Inc. Currently before the

court is defendants Connie Bowlin, Ed Bowlin, Aviation Autographs, and B&A's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.1 I. Summary Judgment Standard Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that could affect

the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. 248 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

The party moving for summary judgment bears the

initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id. Defendants David McFarland, International Association of Eagles. Inc., and Spalding Services, Inc. have not been served in this action. As it has been well over 120 days since the Second Amended Complaint was filed, discovery is closed, and the law and motion deadline has passed, these defendants must be dismissed from this action. See Fed. R. Civ. P. 4(m). 2
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Once the moving party meets its initial burden, the non-moving party "may not rely merely on allegations or denials in its own pleading," but must go beyond the pleadings and, "by affidavits or as otherwise provided in [Rule 56,] set out specific facts showing a genuine issue for trial." Fed. R. Civ.

P. 56(e); Celotex Corp., 477 U.S. at 324; Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). In its inquiry,

the court must view any inferences drawn from the underlying facts in the light most favorable to the nonmoving party, but may not engage in credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). II. Evidentiary Objections Despite the frustrations repeatedly expressed by this and other courts,2 the practice of cluttering the record with unnecessary evidentiary objections in connection with summary judgment motions appears to have become institutionalized. In

this case for example, plaintiffs filed 86 separate evidentiary objections to defendants' proffered evidence and declarations in support of the motion, contending that many of the submitted facts are "irrelevant," lack personal knowledge, or are supported by evidence which is hearsay. Not to be outdone, in reply,

defendants filed 57 evidentiary objections to the declarations submitted by plaintiffs in their opposition. At trial, most lawyers do not object to questions when

See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1118-22 (E.D. Cal. 2006); Marceau v. International Broth. Of Elec. Workers, 618 F. Supp. 2d 1127, 1141 (D. Ariz. 2009). 3

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the answers are not likely to be damaging to their client's position in the case or where it is clear that the information sought by the question can eventually be elicited by proper questioning. Not so in the context of a summary judgment motion.

In that context, lawyers routinely make every conceivable objection to the statements contained in a declaration submitted by the other party. Just as an example, in this case defendants

object to the statements in Yeager's declaration to the effect that Dave McFarland made the F-15 print and First Day Covers, that Yeager sent McFarland the prints so that McFarland could sell them for Yeager, and that the Bowlins found the warehouse where McFarland stored the Hey Pard and F-15 prints and First Day Covers. All of these statements are perfectly consistent with,

and indeed would tend to support, defendants' interpretation of the facts. The court perceives at least two reasons for this difference in practice. First, in the setting of a jury trial,

counsel run the risk of antagonizing the jury by repeatedly making unnecessary objections. An irritated jury might retaliate In the context of a

by deciding the case against their client.

summary judgment motion, however, lawyers are entitled to assume that even an irritated judge will decide the motion on its merits and will not retaliate against them. Second, particularly in the larger law firms, the lawyer or lawyers who prepare the materials in support of, or in opposition to, motions for summary judgment are typically not the same lawyers who will try the case. The task of combing through

the opponent's declarations and looking for evidentiary 4

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objections may seem to be one that is easily turned over to an associate who does not need to have any trial experience or particular knowledge of the case. Even when the trial attorney

does have a hand in preparing the motion or opposition, that attorney typically has not fully developed his or her trial strategy by the time the motion for summary judgment is briefed. Accordingly, not wishing to waive any conceivable objection the trial attorney may want to eventually make at trial, the attorneys heed the admonition of the Rutter Group: Failure to object as waiver: Evidentiary objections must be raised, either orally or in writing, at or before the hearing. Otherwise such objections are deemed waived.3 William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial § 14:111 (2009). The problem with this practice is not just that it frustrates judges. It frustrates the very purpose of Rule 56 of

the Federal Rules of Civil procedure by turning summary judgment practice from an inquiry into whether there are truly disputed issues of material fact into a contest to determine which side can come up with the most sustainable evidentiary objections. the rulings on the evidentiary objections result in the motion being denied, the case will of course proceed to trial. If those If

That advice, as this court reads it, refers to whether the objection will be waived on appeal, not to whether it will be waived at trial. See FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484-85 (9th Cir. 1991). To this court's knowledge, failure to object to evidence presented in connection with a summary judgment motion does not waive any objection to that evidence at trial. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 118 (2d Cir. 2004) (noting in connection with an appeal from an order granting summary judgment that on remand "at trial, plaintiffs are free to reiterate their objections to [the district court's evidentiary] rulings"). 5

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rulings result in the motion being granted, the matter will proceed to appeal, where the trial court's rulings on each of the objections can be scrutinized, presumably under de novo review, by the Court of Appeals. While this focus on the technical compliance of the declarations with the Federal Rules of Evidence does not appear to be in the spirit of Rule 56, or what the Supreme Court contemplated when it clarified the summary judgment procedure in Celetex, Anderson, and Matsushita, it is what has evolved in practice and what the parties have invited in this case. Accordingly, the court will proceed to rule upon the parties' evidentiary objections. In the interest of brevity, as the parties are aware of the substance of their objections and the grounds asserted in support of each objection, the court will not review the substance or grounds of all the objections here. Plaintiffs'

objections 1-5, 7, 9-12, 14-18, 20-23, 26-28, 30-33, 35, 38, 40, 42, 44, 46-47, and 49-86 are overruled. Plaintiffs' objections

4, 8, 13, 19, 24-25, 29, 34, 36-37, 41, 43, 45, and 48 are sustained. Defendants' objections to the Declaration of General Defendants' objections

Yeager 1, 2, 10, and 22-23 are overruled.

to the Declaration of Charles Yeager 3-9, and 11-21 are sustained. Defendants' objections to the Declaration of Victoria Defendants'

Yeager 1-4, 6, 14, 31, and 35 are overruled.

objections to the declaration of Victoria Yeager 5, 7-13, 15-30, and 32-34 are sustained. III. The Sham Affidavit Rule In addition to their evidentiary objections, defendants 6

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contend that certain portions of plaintiffs' declarations should be excluded from consideration by the "sham affidavit rule." "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." Kennedy v. Allied Mut. Ins. Co., 952 F.2d This is because "if a party who has

262, 266 (9th Cir. 1991).

been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. at 266 (quoting Foster v. Arcata Assocs., Inc., 772

F.2d 1453, 1462 (9th Cir. 1985)). The sham affidavit rule may be invoked only if a district court makes "a factual determination that the contradiction was actually a sham" and "the inconsistency between a party's deposition testimony and subsequent affidavit . . . [is] clear and unambiguous." Van Asdale v. Int'l Game Tech., 577

F.3d 989, 998-99 (9th Cir. 2009) (internal quotations marks, citations omitted). Accordingly, "the 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." 62 F.3d 1227, 1231 (9th Cir. 1995). Messick v. Horizon Indus., Yeager and Victoria Yeager

each submitted a declaration in opposition to defendants' motion for summary judgment portions of which defendants contend ought to be striken as sham. 7

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A.

Yeager Declaration

At his deposition, Yeager stated that he did not recall answers to approximately 185 different questions, including questions that go to the heart of this action. Ex. B.) (See Noonan Decl.

For instance, Yeager indicated he did not recall what

concerns he had about the Bowlins selling the Gathering of the Eagles prints, whether any agreement existed between himself and the Bowlins, whether the Bowlins made any misrepresentations to him concerning their sale of his memorabilia, whether he entered an agreement with the Bowlins concerning the development of the Leiston Legends print or attended the Tribute to the Aces, whether the Bowlins are selling the Hey Pard print, what is illegal about the Bowlins' use of his name, and other critical issues in the case.4 (Gen. Yeager Depo. 13:17-19, 20:10-21,

21:1-5, 29:21-30:11, 31:13-22, 42:11-17, 66:7-17, 94:19-22.) However, in Yeager's Corrected Declaration, he now states that he is able to recall these same matters in detail after "having his recollection refreshed," including the amount he typically charged for signing items, the oral agreements he made with the Bowlins, and his participation in the Tribute to Aces. (See Gen. Yeager Corrected Decl. ¶¶ 16, 21, 22-26, 27.) In his

It is clear that Yeager's declaration is a sham.

declaration, Yeager gives no explanation as to why he suffered from such extensive memory loss at his deposition, other than to Especially troubling is that Yeager seemed to be unable to recall significant, and what would be unforgettable events for many, such as testifying in the earlier state court action against his children, his initial complaint in this action, or even his involvement in a plane crash in the Bowlins' aircraft. (Gen. Yeager Depo. 14:7-15:13, 22:17-23:10, 46:19-22.) 8
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say his recollection was refreshed by a series of documents which are not attached to his declaration. (Id. ¶ 14.) This claim is

unbelievable given that Yeager was shown over twenty exhibits during his deposition in an attempt to refresh his recollection, but was consistently unable to recall any of the matters now elaborated on in his declaration. (See, e.g., Yeager Depo. 14:7-

25; 19:7-20:6; 21: 10-22:2; 23:17-26:20; 38:24-40:3; 41:1-42:17; 44:9-25; 45:10-46:22; 55:7-21; 57:9-58:2; 62:14-63:7; 65:7-17; 66:7-17; 67:10-68:3; 69:9-70:17; 70:21-71:11; 71:15-72:17; 72:2073:10; 73:13-74:4; 78:4-24; 83:22-84:12; 94:2-95:10.) This is

not a case of a simple misunderstanding of a few questions that requires additional explanation, but instead one where Yeager repeatedly refused to answer hundreds of material questions. Just because Yeager's responses at his deposition were to the effect that he did "not recall" certain events does not mean those responses do not contradict his later recollection of those same events. Courts have found that the sham affidavit

rule may be applied when a matter that a witness fails to remember during a deposition is then remembered with clarity in an affidavit used to defeat summary judgment. Mitchael v.

Intracorp, Inc., 179 F.3d 847, 854-55 (10th Cir. 1999); (finding an affidavit from a witness that "more clearly recalled discussions and meetings" that the witness could not remember during his deposition "arguably contradicted his deposition" and therefore "represent[ed] an attempt to create a sham issue of fact"); accord Juarez v. Utah, 263 Fed. Appx. 726, 735-36 (10th Cir. 2008) (excluding plaintiff's affidavit referencing racial slurs used against her as a sham affidavit because she stated she 9

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could not recall any such slurs at her deposition); see also Gilani v. GNOC Corp., No. 04-CV-2935 (ILG), 2006 WL 1120602, at *3 (E.D.N.Y. April 26, 2006) (applying the sham affidavit rule when plaintiff "admitted in her deposition she did not recall seeing the cleaning staff before she entered the restroom" but then recalled that she did see a staff member in an affidavit with "no other evidence corroborating the recollection.") Yeager's declaration is far more questionable than any of the aforementioned affidavits excluded by courts under the sham affidavit rule. In a case such as this, where the deponent

remembers almost nothing about the events central to the case during his deposition, but suddenly recalls 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, the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions. F.3d at 854-55. Yeager has failed to "provide[] a sufficient explanation for the contradiction" between his deposition testimony, where he was unable to remember almost anything about the details of this action, and his declaration where those details are suddenly perfectly clear. Martinez v. Marin Sanitary There was The clear See Mitchael, 179

Serv., 349 F. Supp. 2d 1234, 1242 (N.D. Cal. 2004).

nothing confusing about the questions posed to Yeager.

disparity between the sweeping lack of knowledge of Yeager at his deposition and the information presented in his declaration leaves no conclusion other than that his declaration is a self10

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serving attempt to manufacture issues of fact to defeat summary judgement. Accordingly, the court will disregard the

contradictions between Yeager's deposition testimony and his Declaration when evaluating defendants' motion for summary judgment. B. Victoria Yeager Declaration

Defendants additionally contend that various statements made by Victoria Yeager in her Declaration in opposition to the motion for summary judgment contradict both her earlier statements and plaintiffs' responses to interrogatories during discovery. Throughout the various iterations of their complaint,

plaintiffs have consistently alleged that defendants agreed to provide plaintiffs with one-third of the Leiston Legends prints signed at the Gathering of Aces event. (See Original Compl. ¶¶ In addition,

24, 27; First Am. Compl. ¶¶ 24, 27; SAC ¶¶ 25, 28.)

in their interrogatory responses plaintiffs continued to advocate that the agreement between the Bowlins and Yeager "provided that GENERAL YEAGER would appear and speak at the [Tribute to Aces] . . . and would be entitled to retain one-third (1/3) of [the] signed lithographs for his own use." (Noonan Decl. Ex. E.)

Plaintiffs did not supplement or correct these discovery responses pursuant to Rule 26(e). In her Declaration, Victoria Yeager now contends that she knew at the time of the signing of the Leiston Legends prints that the Bowlins wanted to give the Yeagers 100 prints and that in response the Yeagers "said to hold onto the other 200 and maybe [the Bowlins] could sell them for" the Yeagers. Decl. ¶ 15.) (V. Yeager

While there is tension between this statement and 11

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the previous allegations by plaintiffs, Victoria Yeager is not a named plaintiff in this action. As such, unlike in Wasco

Products, Inc. v. Southwall Technologies, Inc., 25 F.3d 989 (9th Cir. 2006), plaintiffs have not presented a new theory of liability based upon Victoria Yeager's declaration. In fact, at

no point in plaintiffs' Opposition to this motion do they advance Victoria Yeager's theory of the Leiston Legends agreement. Accordingly, the court finds it unnecessary to strike this portion of Victoria Yeager's declaration. Plaintiffs remain

bound by their responses to defendants' interrogatories and admissions, irrespective of Victoria Yeager's declaration. See

Wasco Products, 25 F.3d at 992; Conlon v. U.S., 474 F.3d 616, 621-22 (9th Cir. 2007); School Dist. No. 1J, Multnomah County, Or. v. AC&S, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993). IV. Relevant Facts Excluding the evidence to which the court has sustained the parties' objections above, and disregarding those portions of the Yeager declaration which are contradicted by his deposition testimony as discussed above, the following facts are undisputed. Yeager is a well-known figure in American aviation history. (Second Am. Compl. ("SAC") ¶¶ 15-17.) Connie and Ed

Bowlin ("the Bowlins") are retired Delta Airlines captains who are active in the aviation community. (Bowlin Decl. ¶¶ 5-13.)

The Bowlins are owners of Aviation Autographs, a non-incorporated Georgia business entity that sells and markets aviation memorabilia, and B&A, a Georgia corporation in the business of aviation sales and consulting. (SAC ¶¶ 7, 11-12.) The Bowlins (Bowlin

met Yeager in the mid 1980s and became friends with him. 12

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Decl. ¶¶ 18-20; Gen. Yeager Dep. 56:23-57:3, 60:20-61:14, 61:2062:9.) Defendant David McFarland met Yeager through the "Gathering of the Eagles" program, which was initiated and organized by McFarland beginning in 1982. 12-20.) (McFarland Decl. ¶¶

The Gathering of the Eagles brought distinguished

aviators to the Air Command and Staff College ("ACSC") at Maxwell Air Force Base to give talks to the ACSC class. (Id.) Yeager

attended all of the Gathering of the Eagles events coordinated by McFarland as an "Eagle." 25:11-28:24.) (Id. ¶ 20; Gen. Yeager Depo.

The program was funded through the painting,

production, and sale of a limited number of lithographic prints signed by Eagles. (SAC ¶ 20; McFarland Decl. ¶ 14.) Additional

financial support for the program was provided not by the ACSC itself, but by the ACSC Foundation and the International Association of Eagles, Inc. ("IAE"). Facts ("UF") 14-19.) McFarland accumulated a substantial collection of aviation memorabilia through the Gathering of Eagles and did not have the means to market the merchandise. Bowlin Decl. ¶ 23.) (McFarland Decl. ¶ 32; (Statement of Undisputed

As a result, the Bowlins and McFarland began

discussing selling the memorabilia through a website in 2000. (Id.) The Bowlins created Aviation Autographs and its website, (Bowlin Decl.

www.aviationautographs.com, in the summer of 2000. ¶ 23.)

In June 2000, IAE and McFarland entered into a marketing

agreement with Aviation Autographs with respect to the Gathering of the Eagles lithographs. Decl. ¶ 24.) 13 (McFarland Decl. ¶ 33, Ex. D; Bowlin

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During this time period, Yeager wanted to market three items that he developed and signed in conjunction with McFarland and Yeager, Inc.5: a lithograph known as the "Hey Pard" print, which depicts Yeager breaking the sound barrier; a lithograph known as the "F-15" print, which depicts this same event; and a series of commemorative stamped envelopes known as the "First Day Covers," which were letters with a canceled stamp from Edwards Air Force Base, where an event celebrating the 50th anniversary of the breaking of the sound barrier was held. (McFarland Decl.

¶¶ 28-31; Bowlin Decl. ¶ 27, Donald Yeager Decl. ¶ 6, Exs. A, B; Noonan Decl. ¶¶ 17, 19 Exs. O, Q.) Yeager originally authorized

McFarland to market these items until Yeager reached an oral agreement with Aviation Autographs to sell them for a fifty-fifty split of the proceeds.6 (Bowlin Decl. ¶ 26.) Aviation

Autographs then began marketing and selling these prints on their website and provided Yeager with regular summaries concerning sales of these prints from 2000 through 2004. 52-54, 75-81; Noonan Decl. ¶ 18, Ex. P.) In 2003, Yeager was invited to an event coordinated by the Bowlins called the "Tribute to Aces." The idea for the (Bowlin Decl. ¶¶

Tribute to Aces developed from discussions between the Bowlins, a Georgia developer Mike Ciochetti, and famed aviator General Tex Hill.
5

(V. Yeager Depo. 44:10-45:25.)

Ciochetti and Hill

Yeager, Inc. was a corporation set up by Yeager and his first wife, Glennis Yeager, for the benefit of their children. The corporation is presently run by the children of Yeager. A discrete number of prints were sold to a collector in bulk and were subject to slightly different terms, with 40% of proceeds going to Yeager, 40% to Aviation Autographs, and 20% to McFarland. (Bowlin Decl. ¶ 26.) 14
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arranged for famous aviators, including Yeager, to come to Georgia to dedicate roads named after each of them in a housing development planned by Ciochetti. Depo. 44:10-47:6.) The Bowlins formally coordinated the Tribute to Aces, which included the dedication of the roads, a symposium at which the "Aces"--the aviation legends in attendance--would speak, and the signing of a number of lithographic prints by the attending Aces. (Bowlin Decl. ¶ 41; Anderson Decl. ¶ 9.) Connie Bowlin (Anderson Decl. ¶ 9; V. Yeager

sent each attending Ace a two-page letter explaining the background of the event, that an artist would be creating prints for each Ace to sign, and that Aviation Autographs would sell these prints. (Bowlin Decl. ¶¶ 31-32, Ex. 9.) Each Ace Victoria

negotiated his own deal with respect to the prints.

Yeager, Yeager's current wife, claims that Yeager made a deal to receive one-third of the lithographs Connie Bowlin said were being produced. (V. Yeager Depo. 106:16-18.) The Bowlins

contend the agreement was actually for Yeager to receive 100 prints, which Connie Bowlin confirmed with Yeager at an air show in Detroit in August 2003. (Bowlin Decl. ¶¶ 38-39.) Plaintiffs

also contend that the Bowlins indicated the money from these lithographs would be used to pay the Aces travel expenses and the rest would go to charity, while defendants argue that plaintiffs have not shown any indication of the existence of such an agreement. (V. Yeager Depo. 107:13-18; Bowlin Decl. ¶¶ 38-39.) Yeager attended the Gathering of Aces event in October 2003, including the symposium and dedication of a street sign bearing his name. (Bowlin Decl. ¶¶ 40-42, Ex. 25; Anderson Decl. 15

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¶ 9; V. Yeager Depo. 46:7-47:6.)

Yeager signed approximately 900

prints of the lithograph made for him at the event, known as the Leiston Legends print, at the Bowlins' home. Decl. ¶ 43; V. Yeager Depo. 39:24-41:4.) (SAC ¶ 26; Bowlin

Yeager was provided

with 100 prints from the event, which were shipped to him directly from the artist. (Bowlin Decl. ¶ 43, Ex. 26.)

The Yeagers were reimbursed for a number of travel expenses associated with the Gathering of Aces event by October of 2003. (V. Yeager Depo. 35:9-36:14.) On October 14, 2003,

Victoria Yeager sent an email to the Bowlins concerning the disposition of the extra prints signed by Yeager. ¶ 44; Exs. 27, 28; V. Yeager Depo. 141:11-143:6.) (Bowlin Decl. Connie Bowlin

responded that 100 of the prints went to Yeager, 100 went to Jack Roush, who made two air craft available for the Tribute to Aces, 200 went to the Bowlins, and the rest were distributed among volunteers or kept by the artist. (Id.) In December 2003,

Yeager acknowledged that he received 100 Leiston Legends prints in a letter to Connie Bowlin. (Bowlin Decl. ¶ 45, Ex. 29.)

In 2004, the Yeagers became involved in litigation between themselves and Yeager's children and Yeager, Inc. in California state court over the use of funds by Yeager, Inc. this ligation, Yeager v. D'Angelo, et al., No. 68834, whether Yeager or Yeager, Inc. owned the Hey Pard and F-15 prints and First Day Covers was directly in dispute.7 (Noonan Decl. ¶¶ 17, In

7 The court will grant defendants' Request for Judicial Notice and Supplemental Request for Judicial Notice, as the documents are all public documents of related court proceedings whose accuracy cannot be questioned. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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19, Exs. O, Q; D. Yeager Decl. ¶ 6, Exs. A, B.)

Between 2004 and

2005, Victoria Yeager sent several emails to Connie Bowlin requesting delivery of the Hey Pard, F-15, and First Day Covers, which were in the possession of Aviation Autographs, to Yeager. (Bowlin Decl. ¶¶ 55-81.) In January 2005, the Bowlins refused to

provide these items to the Yeagers, stating that given the ongoing litigation over ownership of the items they would prefer to maintain possession of the items until the final resolution of the state court action and would remove them for sale from the Aviation Autographs website. (Bowlin Decl. ¶¶ 63-69.)

On February 7, 2005, the Bowlins received a letter from Steven Thomas, an attorney retained by the Yeagers from Sullivan & Cromwell LLP, who requested that the Bowlins deliver the prints in dispute as well as "all other merchandise with General Yeager's likeness to him" in exchange for indemnity. Decl. ¶ 68, Ex. 47.) (Bowlin

In June 2005, Victoria Yeager sent the

Bowlins a series of emails demanding to remove the First Day Covers as for sale from the Aviation Autographs website, as well as all pictures of Yeager and references to Yeager's name from the site. (Bowlin Decl. ¶¶ 71-74. Exs. 51-57.) On August 16,

2005, Sullivan & Cromwell sent a cease and desist letter to the Bowlins, accusing them of "continued unauthorized and unlawful use of General Chuck Yeager's name, image and likeness . . . ." (Bowlin Decl. Ex. 58.) On October 11, 2005, the referee in the state court action involving the Yeagers preliminarily ruled that Yeager, Inc., not Yeager, owned the Hey Pard and F-15 prints and the First Day Covers. (D. Yeager Decl. ¶ 6, Exs. A, B.) 17 The state

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court entered a final judgment adopting the referee's Statement of Decision in Yeager v. D'Angelo on March 29, 2006. (D. Yeager

Decl. ¶ 6, Exs. A, B; Noonan Decl. ¶¶ 17, 19, Exs. O, Q.) Yeager, Inc.'s ownership of the Hey Pard and F-15 prints and First Day Covers was affirmed by the California Court of Appeal on August 22, 2008. (Noonan Decl ¶ 20, Ex. R.) The Bowlins

subsequently ceased selling these products and returned them to Yeager, Inc. (Bowlin Decl. ¶ 54; D. Yeager Decl. ¶ 7.)

Victoria Yeager continued to send emails requesting that the Bowlins remove all references to Yeager from the Aviation Autographs website through October 2005. ¶¶ 80-81.) (Bowlin Decl.

The Aviation Autographs website contains several The Aviation Autographs home page contains

references to Yeager.

one such reference to Yeager: www.AviationAutographs.com proudly offers rare lithographs, books, prints, photos and "one of a kind" collectables to aviation enthusiasts, all of which contain the original signatures of the history's most famous people! Commissioned and/or collected over the

past 20 years by a single collector. There are several hundred historic items, offered for the first time to the public. of history! Don't miss the opportunity to own a piece Famous aviators autographs add priceless

value to these unique items. You will find aviation heroes, such as General Charles E Chuck Yeager, Col. C.E. Bud Anderson, General Tex Hill, Gunther Rall, Bob Hoover and more. Our personal friendship with many of

these living legends gives us a unique opportunity to 18

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bring them closer to you. (Bowlin Decl. ¶ 85; Noonan Decl. ¶ 8, Ex. G.) The home page also

makes reference to the Tribute to Aces event, and contains a picture of "[f]our of the five Aces who attended," but does not mention Yeager or contain his picture. (Bowlin Decl. ¶ 86.) The

home page previously had displayed a statement, added in October 2003, which mentioned Yeager's attendance at the Tribute to Aces event. (Id.) The home page was last edited with respect to

Yeager in August 2005, when Connie Bowlin cropped a picture to remove Yeager from the photograph and deleted the reference to him as an attending Ace. (Id.)

The "About Aviation Autographs" page contains a picture of Yeager and Gunther Rall with the caption "Left, Chuck Yeager and Gunther Rall sort through our selection of signature edition collectibles on other combat aces." Decl. ¶ 8, Ex. G.) (Bowlin Decl. ¶ 87; Noonan

The page also mentions that the Bowlins " are

best of friends with aviation legend Gen. Chuck Yeager and are selling items from his personal collection." (Id.) The text on

the page was authored by Ray Fowler, an F-16 fighter pilot, and has not been changed since June 2000, when the website first went online. (Bowlin Decl. ¶ 87.) The "Tribute to Aces" page contains one reference to Yeager, thanking him and the other aviation legends who attended the Tribute to Aces. G.) (Bowlin Decl. ¶ 88; Noonan Decl. ¶ 8, Ex.

The page also describes the Tribute to Aces event and

identifies the four prints for sale from the event, including the Leiston Legends print. (Id.) The last revision of the page that

made reference to Yeager was made in October 2003, when the 19

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Bowlins added the aforementioned sentence thanking Yeager for his attendance at the Tribute to Aces. (Id.)

Yeager is additionally referenced on the "News and Current Events" page on defendants' website. The page refers to

Yeager directly once in an entry describing the Tribute to Aces, listing him as an attendee of the event. (Bowlin Decl. ¶ 90.)

This entry was added in 2003 and has not been changed since that time. (Id.) The page also references the crash of the Bowlins' (Id.) Although Yeager was flying the Bowlins'

T-6 airplane.

plane when it crashed, he is not mentioned by name in the entry. (Id.) Yeager is lastly referenced on pages selling various memorabilia relating to Yeager that are not owned by Yeager. (SAC ¶¶ 54, 59.) Plaintiffs have admitted they have no right to

restrict the sale of these items and are not entitled to damages in connection with the sale of these products. 6-7, Exs. E, F.) Yeager's name also appears in the metadata of the Aviation Autographs website. (Bowlin Decl. ¶ 89.) Metadata (Noonan Decl. ¶¶

entries are not displayed to the viewers of the website, but are contained in the source script of a web page and utilized by internet search engines to locate and organize internet websites in response to inquiries by search engine users. Defendants have

made no changes to the references to Yeager in the metadata of their site since October 2001. (Id.)

On January 14, 2008, plaintiffs filed their initial complaint in this action. (Docket No. 1.) After this court

granted in part defendants' motion to dismiss the Complaint, 20

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plaintiffs filed their SAC on March 3, 2009. 77.)

(Docket Nos. 17,

The SAC alleges eleven causes of action against defendants

relating to their sale of lithographs for plaintiffs and usage of the likeness and image of Yeager: 1) breach of the California common law right to privacy/right to control publicity and likeness; 2) violation of California Civil Code section 3344 (statutory right of publicity); 3) violation of the Lanham Act, 15 U.S.C. § 1125(a), for false endorsement; 4) violation of the California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210; 5) violation of the California False Advertising Act, Cal. Bus. & Prof. Code § 17500; 6) fraud; 7) breach of oral contract; 8) breach of written contract; 9) unjust enrichment; 10) accounting; and 11) equitable rescission. Bowlins, Aviation Autographs, and B&A now move for summary judgment on all claims pursuant to Rule 56. V. DISCUSSION A. Time-Barred Claims Plaintiffs' action was filed in January of 2008, while many of the events giving rise to the claim occurred between 2000 and 2004. Defendants have accordingly challenged many of The statute of limitations The

plaintiffs' claims as time-barred.

generally begins to run at "the time when the cause of action is complete with all its elements. An exception is the discovery

rule, which postpones accrual of a cause of action until . . . [the plaintiff] suspects, or has reason to suspect, a factual basis for its elements." Nogart v. Upjohn Co., 21 Cal. 4th 383,

389 (1999); Apple Valley Unified School Dist. V. Vavrinek, Trine, Day & Co., 98 Cal. App. 4th 934, 943 (2002). 21

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1.

Breach of Oral Contract

The statute of limitations for breach of oral contract under California law is two years. Cal. Civ. Proc. Code § 339.

A cause of action on an oral contract accrues, and the statute of limitations begins to run, at the time the contract is breached. Cochran v. Cochran, 56 Cal. App. 4th 1115, 1124 (1997). Plaintiffs allege breaches of multiple oral agreements with defendants. Specifically, plaintiffs allege that they were

inadequately compensated for the Leiston Legends prints and travel to the Tribute to Aces weekend, that defendants breached an oral agreement that all proceeds from the Tribute to Aces weekend would go to charity, and that plaintiffs were not adequately compensated with regards to the profits and proceeds of the Hey Pard prints and First Day Covers. (SAC ¶ 118.)

These breaches all should have been apparent to plaintiffs between 2000 and at the latest in July 2004, putting plaintiffs' claim well outside the statute of limitations. Plaintiffs allege that defendants breached an oral contract with Yeager with respect to the Legion Legends prints and the Gathering of Aces when they (1) failed to provide one-third of the Legion Legends prints to plaintiffs (2) did not pay plaintiffs the royalties owed from the prints, (3) did not reimburse Yeager for travel and lodging, and (4) did not give funds from the lithograph to a charity as promised. 118(a).) (Id. ¶

Plaintiffs would have been aware of any breaches

relating to the these events as early as October 2003, when Yeager only received 100 prints from defendants, was not paid any royalties, and did not allegedly receive adequate reimbursement 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

for travel expenses.

Victoria Yeager specifically asked about

what the Bowlins planned to do with the extra prints signed by Yeager on October 14, 2003, putting her on notice of the Bowlins' alleged breaches of the oral contract surrounding the Tribute to Aces event such that she should have pursued litigation. Nogart, 21 Cal 4th at 398 n.2. See

As such, plaintiffs' breach of

oral contract claims related to the Leiston Legends prints and Gathering of Aces events are time-barred. Plaintiffs' breach of oral contract claims related to the Hey Pard and F-15 prints and First Day Covers are similarly time-barred. Plaintiffs allege that they were not provided with

adequate accounting of the profits from these prints and were not adequately compensated for them by defendants. (d).) (SAC ¶¶ 118 (c),

However, defendants have provided evidence that plaintiffs

received regular accounting from the Bowlins through January of 2004, and that Victoria Yeager corresponded with the Bowlins about Aviation Autographs's inventory at that time. Decl. ¶¶ 52-54, 75-81; Noonan Decl. ¶ 18, Ex. P.) (Bowlin

Additionally,

as previously noted by the court in its August 6, 2008 Order re: defendants' motion to dismiss, plaintiffs themselves contended that they were on notice of the breach of contract claim no later than July 2004, well outside of the two year statute of limitations period. (See Docket No. 17; Docket No. 11, Pls.'

Mem. in Opp'n to Defs.' Mot. to Dismiss 7:4-6 ("The documents attached and incorporated by [] [d]efendants show that [] [p]laintiffs were not provided with a detailed inventory and report on commissions paid by [d]efendants until July 6, 2004 . . . ." ); id. at 2:19-20 ("[T]he [judicially noticed] documents 23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

clearly demonstrate [d]efendants did not provide the information serving to put [p]laintiffs on notice of their [breach] claim until July, 2004 . . . ."); id. at 7:7-8 (stating plaintiffs "would not have been aware of the improper accounting and financial underpayments until this point in time").8 At the latest the statute of limitations began running for defendants' alleged breaches of oral contract in July 2004, and accordingly plaintiffs' oral contract claim is time-barred. 2. Fraud and Unjust Enrichment

The statute of limitations for fraud and unjust enrichment is three years. Cal. Civ. Code § 338(d); First

Nationwide Sav. v. Perry, 11 Cal. App. 4th 1657, 1670 (1992). Plaintiffs' fraud claims are based upon the same actions by defendants as those outlined in plaintiffs' breach of oral contract claim. In fact, plaintiffs do not distinguish their

arguments as to why plaintiffs satisfy the statute of limitations for the contract claim and the fraud claim in their own Opposition. 33:1-35:6.) (See Pls.' Corrected Opp'n Mot. Summary Judgment As previously discussed, plaintiffs were well aware

that they may have a fraud claim against defendants based on the accountings they received, and communications with the Bowlins in October 2003. Plaintiffs even went so far as to hire counsel to

deal with the very issues before the court in August 2005. Plaintiffs contend that the Bowlins' ongoing retention of sales proceeds for the Leiston Legends prints is an ongoing breach and that therefore that the statute of limitations continues to run until their wrongful conduct is ceased. This is clearly incorrect, since the statute of limitations period would never run on any fraud or breach of contract case until a plaintiff's money was refunded, effectively nullifying the statute of limitations. 24
8

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Although plaintiffs may not have been aware of all facts underlying their fraud claim, a plaintiff need not be aware of all these specific facts and "may seek to learn such facts through . . . pretrial discovery . . . ." at 398. Norgart, 21 Cal. 4th

Accordingly, defendants were on notice of the facts

underlying the fraud at issue well over three years ago, and their claims are time-barred as a result. 3. Privacy Claims

Defendants contend that plaintiffs' first, second, and third claims--breach of the California common law right to privacy/right to control publicity and likeness; violation of California Civil Code section 3344 (statutory right of publicity); and violation of the Lanham Act, 15 U.S.C. § 1125(a), for false endorsement--are time-barred because of the single publication rule. The single publication rule provides that "[n]o person shall have more than one cause of action for damages for . . . invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture." Cal. Civ. Code § 3425.3.

"Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the `first general distribution of the publication to the public' . . . . the period of limtations commences, regardless of when the plaintiff secured a copy or became aware of the publication." Shively v. Bozanich, 31 Cal. 4th 1230, 1245 (2003) (citations 25

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omitted). The applicable statute of limitations as to the first and second claims regarding plaintiffs' right to privacy is two years. Cal. Civ. Proc. Code § 339; Long v. Walt Disney Co., 116

Cal. App. 4th 868, 873 (2004); Cusano v. Klein, 264 F.3d 936, 949-50 (9th Cir. 2001). The statute of limitations for

plaintiffs' third claim is less certain since the Lanham Act does not contain its own statute of limitations provision. The

general rule in the absence of such a provision is to borrow the most analogous statute of limitations from state law. See Polar

Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 720 n. 17 (9th Cir. 2004); Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 836-37 (9th Cir. 2002). Given the nature of

plaintiffs' allegations, the most analogous statute of limitations from state law would be either the two-year statute applicable to right to privacy claims, or the three-year statute applicable to fraud claims. Plaintiffs' claims are are based on statements on defendants' website--which has been in existence since 2000. single publication rule has been held to apply to statements published on the internet. Traditional Cat Ass'n, Inc. v. The

Gilbreath, 118 Cal. App. 4th 392, 394 (2004); see Oja v. U.S. Army Corps of Engineers, 440 F.3d 1122, 1131 (9th Cir. 2006). Plaintiffs' website is a "single integrated publication" for marketing aviation memorabilia and providing aviation related news and information, and accordingly is protected by the singlepublication rule. See Christoff v. Nestle USA, Inc., 47 Cal. 4th Many of the references to Yeager on 26

468, 482-83 (2009).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

plaintiffs' website have been in existence since 2000, including the references to Yeager on the home page, the "About Aviation Autographs" page, and the references to Yeager in the website's metadata. Plaintiffs contend that the single publication rule does not apply in this case because the rule does not apply when a defendant engages in ongoing sales of a product for commercial gain. Plaintiffs argue that each sale of a product as to which In

Yeager was mentioned restarted the statue of limitations.9

support of this contention, plaintiffs cite Miller v. Collectors Universe, in which an authenticator's name was used without his consent on 14,000 separate certificates of authenticity. Cal. App. 4th 988, 998-99 (2008). Miller held that each 159

certificate was intended for a different consumer in connection with different products and therefore was not an "identical communication or display of identical content to multiple persons" protected by the singe publication rule. Id. at 999.

However, this case is distinguishable because Aviation Autographs does not display different individualized content to different consumers, but rather displays an identical set of content to all viewers of its website. Furthermore, California courts have explicitly found that the repeated sale of identical products is subject to the single publication rule. For example, in Kanarek v. Bugliosi,

At oral argument and in the declaration submitted by Yeager, plaintiffs contend that the sale of the Leiston Legends print violated a trademark of Yeager. However, plaintiffs have presented no evidence of the existence of any trademarks supposedly held by Yeager. 27

9

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the court noted that the sale of copies of the same edition of a book is subject to the single publication rule. 108 Cal. App. 3d

at 332; see also Christoff, 47 Cal. 4th at 479 (noting the reason for the single publication rule is that under a rule where the statute of limitations restarts when each copy of a book is sold would create the absurd result that "the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public." (citations omitted)); Hebrew Acad. of San Francisco v. Goldman, 42 Cal. 4th 883, 892 (2007) ("The statute of limitations could be tolled indefinitely, perhaps forever, under this approach."). The end result of plaintiffs' interpretation would be that the statute of limitations would never run on their claim so long as the Bowlins' website remained in existence with plaintiffs' items for sale. This is the exact result the single Plaintiffs' argument that the

publication rule seeks to avoid.

single publication rule is inapplicable is therefore without merit. Nevertheless, courts have held that the single publication rule many not be available when a defendant republishes information. 327, 332 (1980). Kanarek v. Bugliosi, 108 Cal. App. 3d

Defendants admit that they altered their

website in October 2003 to add information about the Tribute to Aces event, which constituted a republication of the information about Yeager so as to restart the statute of limitations. Id.

However, plaintiffs have provided no other evidence indicating that defendants republished the information about Yeager at any 28

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point in time after October 2003, when defendants added information about the Tribute to Aces event.10 Accordingly, the

statute of limitations has run as to all of plaintiffs' privacy causes of action relating to the use of plaintiffs' name on the Aviation Autographs website. Even if the single publication rule did not apply, plaintiffs' privacy based claims are still time barred. Defendants have proven that plaintiffs had actual notice of the alleged privacy violations in August 2005, when plaintiffs had an attorney from Sullivan & Cromwell send a cease and desist letter to defendants and threaten litigation over the very same issues before this court. It is therefore clear that plaintiffs' claims

are well outside the statue of limitations, and accordingly the court must grant defendants' motion for summary judgment on plaintiffs' first, second, and third causes of action. 4. Equitable Tolling

Plaintiffs also contend that their claims are subject to equitable tolling because defendants induced plaintiffs not to sue by promising to take the Hey Pard and F-15 prints and First Day Covers off their website and entering into an agreement that the Bowlins could use Yeager's name and image until the state court proceedings involving the Yeagers were resolved. Opp'n Mot. Summary Judgment 37:7-13.) (Pls.'

Generally, federal courts

grant equitable relief from the statute of limitations in only
10 While defendants removed Yeager's name from a discussion of the Tribute to Aces event on Aviation Autograph's home page and cropped him out of a photograph, such minimal editing of information does not constitute a republication. See Traditional Cat Ass'n, 118 Cal. App. 4th at 404; Oja, 440 F.3d at 1128, 1130-33.

29

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two kinds of situations: (1) when delay in filing a claim is excusable and does not unduly prejudice the defendant (equitable tolling); or (2) when the defendant prevented the plaintiff from asserting her claim by some kind of wrongful conduct (equitable estoppel). See Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178

(9th Cir. 2000). Plaintiffs' argument for equitable estoppel is based on the defendants' allegedly misleading conduct. Indeed, plaintiffs

are not entitled to equitable tolling because equitable tolling ceases once a claimant retains counsel because the claimant "has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements." Leorna

v. United States Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997). Since plaintiffs had counsel at least as early as August

2005 when a letter was sent from Sullivan & Cromwell to defendants, the statute of limitations could not be tolled beyond August 2005 in any event. Additionally, as previously addressed,

plaintiffs were well aware of the actions at issue in the SAC well over four years ago, and as such have not presented a legitimate basis for equitable tolling. Courts will toll the statute of limitations based on equitable estoppel when the plaintiff is prevented from asserting his claim due to the wrongful conduct of the defendant. See

Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990); Santa Maria, 202 F.3d 1170 at 1178. Factors which the court

should consider when deciding whether equitable estoppel should be applied include: (1) the plaintiff's actual and reasonable reliance on 30

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the defendant's conduct or representations, (2) evidence of improper purpose on the part of the defendant, or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct, and (3) the extent to which the purposes of the limitations period have been satisfied. Santa Maria, 202 F.3d at 1176; see also Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002). Equitable estoppel, then, may

come into play "if the defendant takes active steps to prevent the plaintiff from suing in time." 1176-77. While plaintiffs contend they need not show bad faith on the part of defendants to invoke equitable estoppel, citing Shaffer v. Debbas, 17 Cal. App. 4th 33 (1993), this court is not bound by that decision. The California Courts of Appeal are rife Santa Maria, 202 F.3d at

with contradictory decisions, where judges openly disagree with decisions by judges from other districts. See, e.g., Lobrovich v. Georgison, 144 Cal. App. 2d 567, 573-74 (1956) (finding the presence of settlement negotiations does not entitle a party to equitable estoppel). This court instead is bound by the Ninth

Circuit's interpretation of the doctrine of equitable estoppel under California law and accordingly will abide by it. Moreover,

even if plaintiffs' interpretation is correct, defendants have produced clear evidence indicating that plaintiffs did not rely on any actions by defendants which "induced the plaintiff[s] to refrain from instituting legal proceedings." App. 4th at 43. Plaintiffs have not shown that defendants took active 31 Shaffer, 17 Cal.

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steps to prevent them from suing before the statute of limitations period ended. Plaintiffs have not provided any

evidence evincing the existence of any agreement between the Bowlins and plaintiffs where plaintiffs promised to delay suing until after the Yeagers' state court action was final. In fact,

the evidence indicates that Victoria Yeager continued to aggressively confront the Bowlins over ownership issues relating to the Hey Pard and F-15 prints and First Day Covers and accused the Bowlins of behaving unlawfully while the state court litigation was ongoing. (Bowlin Decl. Exs 34, 35, 37, 50, 53.)

The Yeagers obtained representation and continued to ask that the items in the state court action be delivered to them throughout 2004 and 2005. (Id. Exs. 47, 48.) Victoria Yeager also

repeatedly insisted that the Bowlins cease to use any reference to Yeager on their website. (Id. Exs. 52-54, 56.) Plaintiffs

were not waiting to pursue litigation against the Bowlins based on their representations, but rather were continually objecting to the Bowlins' practices and actively preparing for litigation against them with the assistance of an attorney. There is also no evidence that the defendants misled the plaintiffs into waiting for the statute of limitations to run before suing. The Bowlins did not instruct the Yeagers not to

take action against them, but simply stated that they would wait for the state lawsuit to end before delivering the Hey Pard and F-15 prints and First Day Covers to any party. (Id. Ex. 49.)

Defendants did not engage in any aggressive action to induce plaintiffs not to sue them that would warrant tolling the statute of limitations. See, e.g., Union Oil Co. of Cal. v. Greka Energy 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Corp., 165 Cal. App. 4th 129, 138 (2008) (finding equitable estoppel appropriate where defendant repeatedly engaged in settlement talks with plaintiff and asked plaintiff to withhold litigation until defendant resolved the matter). The Bowlins

simply articulated their views on the legality of their position to plaintiffs, which in no way deceived the plaintiffs into delaying this action. The alleged violations of plaintiffs' privacy rights were vividly apparent on defendants' website since its inception and plaintiffs were well aware of any contractual breaches by defendants throughout 2003 and 2004. Plaintiffs have presented

no evidence that indicates they reasonably relied on any representations by defendants that induced them to delay from filing this action until the statue of limitations had run. In

fact, all evidence indicates that plaintiffs were preparing for litigation and did not delay the filing of this action based on the Bowlins' statements. Accordingly, equitable tolling and

estoppel are inappropriate. B. Breach of Written Contract Under California law, the elements of a claim for breach of written contract are (1) the existence of a contract; (2) plaintiffs' performance or excuse for nonperformance of the contract; (3) defendants' breach of the contract; and (4) resulting damages. at 1390. Armstrong Petroleum Corp., 116 Cal. App. 4th

Plaintiff has not provided any evidence indicating that

any written contract ever existed between plaintiffs and defendants. Plaintiff testified at his deposition that he

usually did business on a handshake basis and did not recall any 33

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written contracts with defendants. 13:15.)

(Gen. Yeager Depo. 12:12-

Plaintiffs in fact conceded during discovery that no

such contracts exist, and neither General nor Victoria Yeager could identify any such contract at their depositions. (Noonan

Decl. Exs. E, F; Gen. Yeager Depo 12:12-13:15; V. Yeager Depo. 191:10-194:3.) Accordingly, the court will grant defendants'

motion for summary judgment as to plaintiffs' breach of written contract claim. C. Derivative Claims 1. UCL Claim

The UCL prohibits any "unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. It

incorporates other laws and treats violations of those laws as unlawful business practices independently actionable under state law. Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042, 1048 Plaintiffs' fourth claim for violation of the

(9th Cir. 2000).

UCL and is dependent on proof of a predicate violation of plaintiffs' first three claims for breach of the common law right to privacy, breach of California Civil Code section 3344, or of the Lantham Act. See Chabner v. United Omaha Life Ins. Co., 225 As these cause of action are

F.3d 1042, 1048 (9th Cir. 2000).

time-barred, they cannot be used at the basis for plaintiffs' UCL claim. In addition, a business practice may be "unfair or fraudulent in violation of the UCL even if the practice does not violate any law." 827 (2003). Olszewski v. Scripps Health, 30 Cal. 4th 798,

With respect to fraudulent conduct, the UCL

prohibits any activity that is "likely to deceive" members of the 34

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public.

Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal. App. Plaintiffs argue that even if their other

4th 638, 645 (2008).

derivative claims fail, defendants' practices are still "unfair" because their harm to plaintiffs outweighs the utility to defendants. However, any such claim would be time-barred as well, as plaintiffs claims fail to meet the statute of limitations for the UCL. The UCL has a four-year statute of limitations. Cal.

Bus. & Prof Code § 17208.

The UCL is subject to the single

publication rule, as it is based on the same publications that underlie plaintiffs' privacy causes of action. See Baugh v. CBS,

Inc., 828 F. Supp. 745, 755-56 (N.D. Cal. 1993); see also, Long v. Walt Disney Co., 116 Cal. App. 4th 868, 873 (2004) (finding that plaintiffs have not been allowed to circumvent the statute of limitation based on the single publication rule by simply pursuing another theory of relief based on the same publication). Accordingly, as discussed previously, the statute of limitations for plaintiffs' UCL claim began running in 2003, after the information concerning the Tribute to Aces was added to defendants' website. See Karl Storz Endoscopy-Am., Inc. v.

Surgical Tech., Inc., 285 F.3d 848, 857 (9th Cir. 2002) (finding UCL claims "are subject to a four-year statute of limitations which [begins] to run on the date the cause of action accrue[s], not on the date of discovery."); see also Rambus Inc. v. Samsung Elecs. Co., Nos. C-05-02298 & C-05-00334, 2007 WL 39374, at *3 (N.D. Cal. Jan. 4, 2007). As such, plaintiffs' claim is time

barred, as plaintiff may only have one cause of action to pursue their claims based on plaintiffs' single publication, beginning 35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

at the time of the last republication. 2. False Advertising

California's False Advertising Law prohibits the dissemination in any advertising media of any "statement" concerning real or personal property offered for sale, "which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Cal. Bus. & Prof. Code § 17500. The statements

underlying plaintiffs' false advertising claim are the same references to Yeager on the Aviation Autographs website that are involved in the plaintiffs' first three causes of action. As

such, plaintiffs' false advertising claim is also subject to the single publication rule. See Baugh, 828 F. Supp. at 755-56; As the False Advertising Law has

Long, 116 Cal. App. 4th at 873.

a statue of limitations of three years, Cal. Code Civ. Proc. § 338(a), plaintiffs' false advertising claim is also time-barred for the same reason as plaintiffs' UCL claim. 3. Accounting and Equitable Rescission

Plaintiffs' accounting and equitable rescission claims are merely derivative of their fraud and contract claims. See

Janis v. Cal. State Lottery Com., 68 Cal. App. 4th 824, 833-834 (1998) ("A right to an accounting is derivative; it must be based on other claims."); Nakash v. Superior Court, 196 Cal. App. 3d 59, 70 (1987) (finding rescission is a remedy that is dependant on another claim). As defendants' motion for summary judgment

will be granted on those claims, the court must also grant defendants' motion for summary judgment on these claims as well. IT IS THEREFORE ORDERED that defendants' motion for 36

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summary judgment be, and hereby the same is, GRANTED. IT IS FURTHER ORDERED that plaintiffs' complaint be, and the same hereby is, DISMISSED as to the remaining defendants.
DATED: January 6, 2010

37