MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Plaintiffs General Charles "Chuck" Yeager, (Ret.) ("Yeager") and the General Chuck Yeager Foundation ("Foundation") filed this lawsuit alleging various claims against defendants 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.*fn1
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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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.
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,*fn2 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 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 by deciding the case against their client. In the context of a 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 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.*fn3 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. If the rulings on the evidentiary objections result in the motion being denied, the case will of course proceed to trial. If those 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 Yeager 1, 2, 10, and 22-23 are overruled. Defendants' objections to the Declaration of Charles Yeager 3-9, and 11-21 are sustained. Defendants' objections to the Declaration of Victoria Yeager 1-4, 6, 14, 31, and 35 are overruled. Defendants' 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 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 262, 266 (9th Cir. 1991). This is because "if a party who has 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." Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 1995). 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.
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. (See Noonan Decl. Ex. B.) 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.*fn4 (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.) It is clear that Yeager's declaration is a sham. In his declaration, Yeager gives no explanation as to why he suffered from such extensive memory loss at his deposition, other than to 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; 72:20-73:10; 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 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. See Mitchael, 179 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 Serv., 349 F. Supp. 2d 1234, 1242 (N.D. Cal. 2004). There was nothing confusing about the questions posed to Yeager. The clear 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 self- serving attempt to manufacture issues of fact to defeat summary judgment. 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. ¶¶ 24, 27; First Am. Compl. ¶¶ 24, 27; SAC ¶¶ 25, 28.) In addition, 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. (V. Yeager Decl. ¶ 15.) While there is tension between this statement and 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' ...