Peacock v. Pabst Brewing Co., LLC

• Court: District Court, E.D. California
• Decided: March 18, 2024
• Docket: 2:18-cv-00568
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRENDAN PEACOCK, No. 2:18-cv-00568 DJC CKD 12 Plaintiff, 13 v. ORDER 14 PABST BREWING CO., LLC, 15 Defendants. 16 17 Plaintiff Brendan Peacock brought this action alleging that Defendant misled 18 Plaintiff and others by marketing and selling “The Original Olympia Beer” as using 19 naturally filtered, artisan water from Tumwater, Washington (a suburb of Olympia, 20 Washington) despite the product being brewed elsewhere in the country using lower 21 quality water and brewing methods. Defendant now brings a motion for summary 22 judgment arguing that Plaintiff has failed to present evidence that Defendant’s 23 marketing of the product was likely to deceive a reasonable consumer, Defendant has 24 brought evidence that the product’s label was, in fact, not likely to deceive a 25 reasonable consumer, and Plaintiff has not provided evidence to support restitution 26 damages. For the reasons stated below, the Court grants Defendant’s motion for 27 summary judgment. 28 //// 1 BACKGROUND 2 I. Procedural History 3 Plaintiff originally filed this action on March 15, 2018. (See ECF No. 1.) The 4 current operative complaint, the Second Amended Complaint (“SAC”), was filed on 5 September 19, 2019 (SAC (ECF No. 30)) and, after District Judge Troy L. Nunley 6 denied a motion to dismiss, Defendant filed an answer (ECF No. 37). At the close of 7 class certification discovery, Plaintiff filed a Motion to Certify Class (Mot. to Certify 8 Class (ECF No. 52)) which Judge Nunley denied (Order Den. Mot. to Certify Class 9 (ECF No. 62)).1 After additional discovery was conducted, Defendant filed the present 10 Motion for Summary Judgment. (Def.’s Mot. (ECF No. 71).) Plaintiff has opposed (Pl.’s 11 Opp’n (ECF No. 72)), Defendant has filed a reply (Def.’s Reply (ECF No. 75)), and the 12 matter was submitted without oral argument pursuant to Local Rule 230(g) (see ECF 13 No. 76). 14 II. Allegations in the SAC 15 In Plaintiff’s SAC, Plaintiff alleges that Defendant’s product, The Original 16 Olympia Beer (“Olympia Beer”), was originally brewed in Tumwater, Washington, a 17 suburb synonymous with Olympia, Washington, but that in 2003 Defendant closed 18 down production in Tumwater and instead began to “contract-brew” Olympia beer “at 19 different locations throughout the country using lower quality water and mass- 20 produced brewing methods.”2 (SAC ¶¶ 1–3.) Plaintiff claims that despite moving to 21 different locations as well as using different or lower quality water and mass- 22 production brewing methods, Defendant continued to market and sell the product 23

24 1 Olympia Beer was discontinued by Defendant in 2021. Based on the fact that the product was no longer in production, Judge Nunley determined that Plaintiff lacked standing to seek injunctive relief 25 and denied certification of a Rule 23(b)(2) class as a result. (Order Den. Mot. to Certify Class at 5.)

26 2 According to the allegations in the SAC, Capital Brewing Company began brewing Olympia Beer began in 1896 and, as a result of mergers, acquisitions, and consolidations, Defendant eventually 27 acquired the company responsible for producing Olympia Beer in 1999. (SAC ¶ 8–10.) As noted previously, Defendant discontinued production and sale of Olympia beer in 2021, while this suit was 28 ongoing. 1 under the “The Original Olympia Beer” name, “directly and falsely suggesting to the 2 consumer that the water in the beer is from the ‘original’ source, i.e., water from the 3 Olympia area of Washington State.” (Id. ¶¶ 12–14.) Plaintiff also contends that 4 Defendant’s usage of the “It’s the Water” slogan and the depiction of the “unique 5 waterfalls from the (now) closed brewery from the Olympia area” on the Olympia Beer 6 packaging “create an impression in the mind of consumers that the beer is still 7 brewed using water from the Olympia area of Washington State.” (Id. ¶¶ 14–15.) 8 Plaintiff also briefly points to the website and social media accounts owned by 9 Defendant as helping to create a false impression including a description of the 10 product on the website that states in part “It’s the water” and a social media post 11 stating “It really is the water #OlympiaBeer” with a picture of a can of Olympia Beer “in 12 front of waterfalls that look just like the waterfalls that were connected to Defendant’s 13 (now) closed brewery in the Olympia area of Washington State.” (Id. ¶¶ 16–17.) 14 Plaintiff was exposed to Defendant’s “marketing and advertising practices” for 15 Olympia Beer as described above. (Id. ¶¶ 22–23.) On April 21, 2017, Plaintiff 16 purchased Olympia Beer from a Grocery Outlet location. (Id. ¶ 21.) Plaintiff allegedly 17 also purchased the product “several times per year” and drinking Olympia Bear “has 18 been Plaintiff’s family tradition for many years and the story of the uniqueness and 19 value of the artesian water has been passed down through oral tradition.” (Id. ¶¶ 21, 20 24–25.) 21 Based on the above allegations, Plaintiff brought a single claim for violation of 22 California Business and Professions Code § 17200, also known as the Unfair 23 Competition Law or UCL.3 (Id. ¶¶ 40–48.) These claims were originally brought by 24 3 As pled, the SAC is somewhat unclear on Plaintiff’s exact claim. While the SAC is clear that Plaintiff’s 25 claims are under the UCL and contains discussion of both the “unfair” and “fraudulent” prongs of the “business act” portion of the UCL, the SAC also contains what might be a reference to the “unfair, 26 deceptive, untrue or misleading advertising” portion of the UCL. (SAC ¶¶ 44–46.) The SAC also contains a citation to California Business and Professions Code § 17500, often referred to as the “False 27 Advertising Law” or “FAL”, which is a section of the California Business and Professions Code separate from the UCL. (SAC ¶ 42.) A violation of the FAL also necessarily is a violation of the UCL but Plaintiff 28 has not brought a separate FAL claim. See Moor v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 1 Plaintiff on behalf of himself and a purported class of those similarly situated. (See Id. 2 ¶¶ 31–39.) However, as previously noted, class certification was denied by Judge 3 Nunley in a prior order. (See Order Den. Mot. to Certify Class.) 4 MOTION FOR SUMMARY JUDGMENT 5 I. Defendant’s Motion for Summary Judgment 6 Defendant’s arguments in favor of summary judgment can be grouped into two 7 broader points. First, Plaintiff has presented no evidence that a reasonable consumer 8 is likely to be deceived by Defendant’s marketing of Olympia Beer while Defendant 9 has presented evidence showing a reasonable customer would not be deceived. 10 Second, Plaintiff cannot establish economic injury as he has not presented any 11 evidence of economic injury, his claims are of de minimis monetary value, and Plaintiff 12 is not entitled to injunctive relief. 13 On the first point, Defendant argues that Plaintiff has failed to present “even a 14 shred of evidence” to show that the “Challenged Label Aspects”— those aspects of the 15 Olympia Beer packaging that Plaintiff specifically noted in the SAC — would be 16 deceptive to a reasonable consumer. (Def.’s Mot. at 4.) Defendant notes that Plaintiff 17 has not designated any expert witnesses (id. at 6) nor presented any evidence to 18 establish “how any other consumer interpreted the Challenged Label Aspects, a 19 probability that any other consumer shares the same (unreasonable) interpretation as 20 Plaintiff, or that the Challenged Label Aspects factored into any other consumer’s 21 purchasing decision” (id. at 4 (emphasis removed)). Defendant also argues that they 22 2020). As constructed, it appears Plaintiff’s claims are UCL claims under the “unfair” and “fraudulent” 23 prongs but this does not influence the ultimate outcome of this order. Whether these claims are brought under the business act portion of the UCL, the advertising portion of the UCL, or the FAL, the 24 “reasonable consumer” test discussed below would apply. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995) for the 25 proposition that “the false or misleading advertising and unfair business practices claim must be evaluated from the vantage of a reasonable consumer” and citing Lavie v. Procter & Gamble Co., 105 26 Cal. App. 4th 496, 506–07 (2003) for the proposition that FAL claims are analyzed by the effects of advertisement on “a reasonable consumer.”) Thus, regardless of whether Plaintiff’s claims were actually 27 intended to be brought under another portion of the UCL or under the FAL, the analysis concerning whether Plaintiff has presented evidence that satisfies the reasonable consumer test would remain the 28 same. 1 have provided affirmative evidence that the marketing used for Olympia Beer was not 2 misleading to a reasonable consumer in the form of a consumer survey and analysis of 3 that survey by an expert. (Id. at 7.) In opposition, Plaintiff argues that there exists a 4 dispute of fact about whether consumers were deceived by Defendant’s marketing. 5 (Pl.’s Opp’n at 4.) Plaintiff contends that “substantial evidence” exists that consumers 6 would be misled “including Defendant’s own testimony about the point and method 7 of showing the label to consumers in the store on shelves, the ‘historical’ references 8 described by Defendant’s own witness, and the labelling and marketing of the beer 9 itself.” (Id. at 12.) 10 Defendant’s second argument, that Plaintiff has no evidence supporting a 11 monetary award, is an amalgam of three arguments: (1) Plaintiff has not presented 12 substantial evidence supporting an award of damages under the UCL as Plaintiff only 13 has a single $4.99 recipe for purchase of Olympia Beer and has not established the 14 existence of a premium for Olympia Beer or that he paid that premium due to the 15 Defendant’s misrepresentations (Def.’s Mot. at 17–18), (2) Plaintiff’s claims are of de 16 minimis value as the only reliable evidence is a single $4.99 receipt (id. at 19–20), and 17 (3) Plaintiff lacks standing to seek injunctive relief as class certification was denied (id. 18 at 11). Plaintiff first opposes on the ground that Judge Nunley’s order denying 19 certification and finding Plaintiff can no longer obtain injunctive relief “is legally 20 unsound . . . .”4 (Pl.’s Opp’n at 8–9.) Plaintiff further argues that he is “not limited to a 21 ‘price premium’ based remedy in seeking restitution[]” but that he may seek 22 disgorgement of profits. (Id. at 10 (emphasis removed).) Finally, Plaintiff argues that 23 his claims are not de minimis because “Defendant’s conduct was systemic and 24 entailed the deceptive marketing of a product to the general public, not just Plaintiff, 25 4 Plaintiff also argues that Judge Nunley’s order “should be reconsidered by the Court.” (ECF No. 8–9.) 26 Plaintiff has not filed a motion seeking reconsideration of the prior order. The Local Rules clearly set out the requirements for seeking reconsideration of a prior order. Local Rule 230(j). Plaintiff’s request, 27 made briefly in the middle of an opposition to Defendant’s Motion for Summary Judgment, is not proper under these rules. As such, it will not be considered. Any application for reconsideration must 28 be made by formal motion and comply with the requirements of Local Rule 230(j). 1 for many years on a nationwide basis[]” and because Plaintiff provided “unrebutted 2 testimony . . . that he purchased the product hundreds of times based on the false 3 advertising. “ (Id. at 11.) 4 II. Legal Standard 5 The Federal Rules of Civil Procedure provide that summary judgment is 6 appropriate when “there is no genuine dispute as to any material fact and the movant 7 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. 8 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 9 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 10 Therefore, the “threshold inquiry” is whether “there are any genuine factual issues that 11 properly can be resolved only by a finder of fact because they may reasonably be 12 resolved in favor of either party[,]” or, conversely, “whether it is so one-sided that one 13 party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 14 250–52 (1986). But “the mere existence of some alleged factual dispute between the 15 parties will not defeat an otherwise properly supported motion for summary 16 judgment[.]” Id. at 247–48. “Only disputes over facts that might affect the outcome of 17 the suit under the governing law will properly preclude the entry of summary 18 judgment.” Id. at 248. 19 On summary judgment, the moving party always bears the initial responsibility 20 of informing the court of the basis for the motion and identifying the portions of the 21 record “which it believes demonstrate the absence of a genuine issue of material fact.” 22 Celotex, 477 U.S. at 323. If the moving party meets its initial responsibility, the burden 23 then shifts to the opposing party, which “must establish that there is a genuine issue of 24 material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 585 25 (1986). To meet its burden, either party must “(A) cit[e] to particular parts of materials 26 in the record, . . . or (B) show[ ] that the materials cited do not establish the absence or 27 presence of a genuine dispute, or that an adverse party cannot produce admissible 28 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 1 For the non-moving party to succeed and avoid summary judgment, the non- 2 moving party “must do more than simply show that there is some metaphysical doubt 3 as to the material facts.” Matsushita, 475 U.S. at 586. The non-moving party must put 4 forth more than “a scintilla of evidence in support of the [party’s] position . . . .” 5 Anderson, 477 U.S. at 252. Rather, the non-moving party must produce enough 6 evidence such that “the ‘specific facts’ set forth by the nonmoving party, coupled with 7 undisputed background or contextual facts, are such that a rational or reasonable jury 8 might return a verdict in its favor based on that evidence.” T.W. Elec. Serv., Inc. v. 9 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, for 10 the moving party to succeed, the Court must conclude that no rational trier of fact 11 could find for the non-moving party. Matsushita, 475 U.S. at 587. However, so as not 12 to “denigrate the role of the jury[,] . . . [c]redibility determinations, the weighing of the 13 evidence, and the drawing of legitimate inferences from the facts are jury functions,” 14 and so the Court draws all reasonable inferences and views all evidence in the light 15 most favorable to the non-moving party. Anderson, 477 U.S. at 255; see Matsushita, 16 475 U.S. at 587–88. 17 III. Analysis 18 Defendant is entitled to summary judgment as Plaintiff has failed to present any 19 evidence from which this Court can find that a reasonable consumer is likely to be 20 deceived by Defendant’s marketing of Olympia Beer. 21 The UCL prohibits “. . . any unlawful, unfair or fraudulent business act or 22 practice and unfair, deceptive, untrue or misleading advertising . . .” with each of these 23 providing a separate theory of liability. Cal. Bus. & Prof. Code § 17200; see Lozano v. 24 AT&T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). Plaintiff’s claims were 25 brought under the “unfair” and “fraudulent” prongs of the UCL. (SAC ¶¶ 45–46.) 26 Claims brought under these prongs are governed by a “reasonable consumer” test 27 that requires that the plaintiff “show that members of the public are likely to be 28 deceived.” Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) 1 (quotation marks and citations omitted); see In re Trader Joe’s Tuna Litigation, 289 2 F.Supp.3d 1074, 1088 (C.D. Cal. 2017) (“False advertising claims under . . . the 3 fraudulent and unfair prongs of the UCL are governed by the reasonable consumer 4 standard.”). To do so, the plaintiff must produce evidence that shows “a likelihood of 5 confounding an appreciable number of reasonably prudent purchasers exercising 6 ordinary care.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008) 7 (citing Brockey v. Moore, 107 Cal. App. 4th 86, 99 (2003)). This can be done with 8 “surveys and expert testimony regarding consumer assumptions and expectations” 9 but these are not always necessary as in some situations “anecdotal evidence may 10 suffice[.]” Id. However, evidence of just “a few isolated examples of actual deception” 11 is not sufficient. Id. (citations quotation marks removed). “[A] plaintiff does not carry 12 the burden of demonstrating a likelihood ‘of confounding an appreciable number of 13 reasonably prudent purchasers exercising ordinary care,’ simply by describing his or 14 her own personal, alleged misunderstanding or confusion.” Schramm v. JPMorgan 15 Chase Bank, N.A., No. LA 09-cv-09442-JAK, 2014 WL 12633527, at *10 (C.D. Cal. July 16 10, 2014); see Clemens, 534 F.3d at 1026 (finding that a Plaintiff offering “only 17 evidence concerning his personal experience” was insufficient evidence to satisfy a 18 reasonable consumer standard); see also Morales v. Kraft Foods Group, Inc., No. LA 19 14-cv-04387-JAK (PJWx), 2016 WL 11743532, at *9 (C.D. Cal. Dec. 2, 2016) 20 (“[A]lthough Plaintiffs’ testimony is some evidence that the labels may have been 21 misleading, it is not sufficient to establish a genuine issue of fact as to whether ‘a 22 significant portion of the general consuming public or of targeted consumers, acting 23 reasonably in the circumstances, could be misled.’”). 24 Here, Defendant contends there is no genuine issue of material fact and that 25 Defendant is entitled to judgment as a matter of law as Plaintiff cannot meet the 26 reasonable consumer test. Defendant presents evidence that a reasonable consumer 27 would not be deceived by Defendant’s marketing in the form of consumer surveys 28 and the conclusions of Defendant’s expert, Dr. Kent D. Van Liere, based on those 1 surveys. (See Def.’s Mot. at 1–2.) The two surveys conducted were a survey for prior 2 Olympia Beer purchasers to determine their reasons for purchasing Olympia Beer and 3 an advertising survey where respondents were shown one of two versions of an 4 Olympia Beer can with one version being as it exists now and the “control” being a 5 version without the “challenged elements” of the label. (Survey Report of Dr. Van 6 Liere (ECF No. 51-1) at 6–7.) 7 Per Dr. Van Liere’s report, of the 185 respondents to the prior consumer survey, 8 no respondent mentioned the water used to brew Olympia Beer as their reason for 9 first purchasing Olympia Beer. (Id. at 6.) Only 10 respondents (roughly 5% of total 10 respondents) indicated the “geographic origin of the beer” as part of their reasoning 11 for their first purchase. (Id.) These reasons were similarly low for respondents who 12 had made subsequent purchases. (Id.) 13 In the advertising survey, only 4, or approximately 2%, of the 202 respondents 14 who were shown the actual Olympia Beer packaging mentioned “the source or origin 15 of the water used to brew the beer as a message conveyed by the product’s label.” 16 (Id. at 7.) 2 of the 196 respondents in the control group, who were shown the label 17 without the challenged elements, also “mentioned the source or origin of the water[]” 18 thus indicating that “there [was] no meaningful difference between the test and 19 control condition . . . .” (Id.) Similarly, a roughly equal percentage of respondents 20 from the two groups “mentioned that the Pacific Northwest, Washington, or 21 Olympia/Olympia Falls was a message conveyed by the label[,]” and there was only a 22 3% difference between the control and test groups (62% for the test group and 59% 23 for the control group) in respondents who thought “Olympia Beer was brewed with 24 artesian water from Olympia, Washington.” (Id. at 7–8.) 25 Based on these and other results of the survey, Dr. Van Liere concluded that 26 “the reasons purchasers offer for originally purchasing and subsequently purchasing 27 Olympia Beer do not support Plaintiff’s claim that “consumers are misled by 28 Defendant into purchasing and/or consuming ‘The Original Olympia Beer’ based on 1 the false impressions that the water in the beer is from the Olympia area of 2 Washington State[]” and “and there is no meaningful evidence that purchasers in the 3 relevant population are misled by the elements of the Olympia Beer label that Plaintiff 4 claims are misleading, or that these challenged elements influenced consumer 5 decisions to purchase the product at issue in this matter.” (Id. at 28.) 6 In addition to affirmative evidence, Defendant also argues that “Plaintiff’s only 7 evidence of alleged likelihood of deception is his own individual and self-serving 8 allegations and deposition testimony about his own subjective and unreasonable 9 interpretation of the Challenged Label Aspects . . .” and that Plaintiff has no further 10 evidence. (Def.’s Mot. at 13.) Defendant notes that in response to Defendant 11 presenting expert evidence to the contrary, “Plaintiff never deposed Pabst’s expert 12 witness nor challenged any of his findings or conclusions[,]” and has instead only 13 relied on his own testimony. (Id. at 2.) 14 Given the above, Defendant has met their initial burden of establishing the 15 absence of any genuine issues of material fact. Celotex, 477 U.S. at 323. Defendant 16 has both presented evidence that a reasonable consumer would not be misled, an 17 essential element of Plaintiff’s claim, and shown that there is an absence of evidence 18 supporting Plaintiff’s case. Nissan Fire & Marine Ins. Co., Ltd. V. Fritz Companies, Inc., 19 210 F.3d 1099, 1103 (9th Cir. 2000) (“To carry its burden of production, the moving 20 party must either: (1) produce evidence negating an essential element of the 21 nonmoving party’s claim or defense; or (2) show that there is an absence of evidence 22 to support the nonmoving party’s case.”) As Defendant has met their initial burden, 23 the burden shifts to Plaintiff and the Court must now turn to Plaintiff’s argument and 24 evidence to determine whether he has established that there is in fact a genuine issue 25 of material fact. Celotex, 477 U.S. at 323; Nissan Fire, 210 F.3d at 1103. 26 In his opposition, Plaintiff’s only cites three pieces of evidence supporting that 27 reasonable consumers were deceived by the Olympia Beer label: “[1.] Defendant’s 28 //// 1 own testimony . . . , [2.] the ‘historical’ references described by Defendant’s own 2 witness, and [3.] the labelling and marketing of the beer itself.” (Pl.’s Opp’n at 8.) 3 The second piece of evidence concerning “historical references” described by 4 Defendant’s witness seems to be a reference to statements made by Michelle Barley, 5 Defendant’s designated representative, see Fed. R. Civ. P. 30(b)(6), during her 6 deposition. During that deposition, Plaintiff’s counsel asked Barley “[w]hat is Pabst 7 trying to convey with the marketing slogan [‘It’s the Water’]?” (Deposition of Michelle 8 Barley at 40:8–9.) Barley responded “[y]eah, I can’t say there’s any necessary meaning 9 behind it, other than it’s a historical reference to the brand.” (Id. at 40:11–13.) When 10 asked to clarify what “historical reference” she meant, Barley responded, “[i]t is a 11 slogan from the company since its founding.” (Id. at 41:16–17.) Later, Barley also 12 stated that she did not believe it was reasonable for a consumer to assume that 13 Olympia Beer was from Olympia, Washington based on “the fact that the brand says 14 ‘Original,’ it says ‘Olympia,’ it says, ‘It’s the Water,’ and it has a waterfall depicting a 15 geographical location” stating that “I don’t think there’s anything misleading about the 16 package. ‘The original’ can legitimately mean anything. Olympia Beer is a brand. It’s 17 not a designation of where it’s brewed, and ‘It’s the Water’ can genuinely mean any 18 source of water.” (Id. at 56:19–57:11.) Barley clarified that by “genuinely” she did not 19 mean marketing studies but that she was “simply stating that we use ‘It’s the Water’ as 20 a historical slogan. Where a water – or where water comes from to brew any beer, not 21 just Olympia, is completely up to a consumer or a shopper to speculate on. It’s not 22 something that we promote.” (Id. at 57:15–19.) She also added that the historical 23 slogan “refer[ed] to where the beer used to be brewed, and the water source that was 24 near it’s [sic] brewery.” (Id. at 57:22–23.) 25 This testimony from Barley about the “historical reference” of the “It’s the 26 Water” slogan, does not help Plaintiff meet his burden under the reasonable 27 consumer test. While this evidence might be relevant information to establishing the 28 reason why certain label elements could potentially be seen as misleading, Plaintiff is 1 responsible for presenting evidence that shows Defendant’s marketing of Olympia 2 Beer had “a likelihood ‘of confounding an appreciable number of reasonably prudent 3 purchasers exercising ordinary care.” Clemens, 534 F.3d at 1026. This evidence 4 about the historical source of Olympia Beer’s brand and the “It’s the Water” slogan 5 does nothing to establish that likelihood. 6 Similarly, the actual content of Olympia Beer’s label and marketing, the third 7 piece of evidence identified by Plaintiff (see Pl.’s Opp’n at 8), might be relevant 8 background information but it does not create a genuine dispute over whether those 9 elements are likelihood of those elements to confound an appreciable number of 10 prudent purchasers exercising ordinary care. As such, this evidence does not help 11 Plaintiff meet his burden to satisfy the reasonable consumer test. 12 The only other piece of evidence brought by Plaintiff, Plaintiff’s own testimony 13 about his personal experience and belief that he was misled, is evidence that could go 14 to meeting the reasonable consumer standard. Plaintiff’s experiences and 15 perceptions are anecdotal evidence of a consumer finding Defendant’s marketing 16 deceiving. See Clemens, 534 F.3d at 1026. However, given the other two pieces of 17 evidence noted by Plaintiff are not relevant to the reasonable consumer 18 determination, Plaintiff’s testimony is the extent of Plaintiff’s remaining evidence and 19 the only anecdotal evidence of this sort presented. Plaintiff’s testimony, when 20 presented by itself, is only a single instance of a consumer being deceived by 21 Defendant’s marketing of Olympia Beer. “[W]hile evidence of actual confusion may 22 be used as evidence of the likelihood of confusion to the general public, a few 23 isolated examples are generally insufficient and the plaintiff in such cases must show a 24 likelihood of confounding an appreciable number of reasonably prudent purchasers 25 exercising ordinary care.” Brockey v. Moore, 107 Cal. App. 4th 86, 99 (2003) 26 (quotation marks omitted). Plaintiff’s testimony cannot meet the reasonable consumer 27 standard on its own as it only represents an isolated example of a consumer being 28 deceived. Clemens, 534 F.3d at 1026; see Schramm, 2014 WL 12633527, at *10. This 1 is especially true in a case such as here where Defendant has presented evidence of 2 substantial strength in the form of a consumer survey and the opinions of a purported 3 expert, which suggest that the elements of the Olympia Beer label highlighted by 4 Plaintiff were not misleading to the reasonable consumer. (See Survey Report of Dr. 5 Van.) Plaintiff’s testimony alone would already be insufficient to meet his burden and 6 the sufficiency of that evidence is even further degraded by the evidence presented 7 by Defendant, such that no reasonable trier of fact could reach a contrary conclusion. 8 Accordingly, Plaintiff has failed to meet his burden to show that there exists a 9 genuine issue of material fact as to whether a reasonable consumer would have been 10 deceived by Defendant’s marketing. See Celotex, 477 U.S. at 323; Nissan Fire, 210 11 F.3d at 1103. Defendant is entitled to judgment as a matter of law on Plaintiff’s UCL 12 claim as Plaintiff has failed to present evidence that would satisfy the reasonable 13 consumer test, a required element of Plaintiff’s claim. Williams, 552 F.3d at 938; 14 Clemens, 534 F.3d at 1026; see also Rahman v. Mott’s LLP, No. 13-cv-3482-SI, 2014 15 WL 5282106, at *10 (N.D. Cal. Oct. 15, 2014) (granting summary judgment for UCL 16 claims where the plaintiff “failed to submit sufficient evidence to raise a genuine issue 17 of fact as to whether a reasonable consumer would be deceived” by the Defendant’s 18 statements). As the UCL claim is Plaintiff’s only claim in this action and Defendant’s 19 summary judgment motion will be granted on that claim, the Court need not reach the 20 issue of whether Plaintiff had provided sufficient evidence to show he was entitled to 21 damages. 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 CONCLUSION 2 In accordance with the above, IT |S HEREBY ORDERED that: 3 1. Defendant's Motion for Summary Judgement (ECF No. 71) is GRANTED; and 4 2. The Clerk of the Court shall enter judgment for the Defendant and close the 5 case. 6 j IT IS SO ORDERED. g | Dated: _March 15, 2024 “Darel A CDbnetto Hon. Daniel alabretta ? UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 | DJC1- peacock18ev00568.msj 18 19 20 21 22 23 24 25 26 27 28 14