Peacock v. Pabst Brewing Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2025
• Docket: 24-2494
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED APR 24 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRENDAN PEACOCK, No. 24-2494 D.C. No. Plaintiff - Appellant, 2:18-cv-00568-DJC-CKD v. MEMORANDUM* PABST BREWING COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Daniel J. Calabretta, District Court, Presiding

Submitted April 9, 2025** Pasadena, California

Before: CALLAHAN, DESAI, and DE ALBA, Circuit Judges.

Brendan Peacock appeals the district court’s denial of class certification and

the grant of summary judgment against his claims under California’s Unfair

Competition Law (“UCL”) for allegedly false or deceptive advertising. He claims

that Defendant-Appellee Pabst Brewing Co. (“Pabst”) misled consumers with the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). labeling on its now-discontinued Olympia Beer cans. We have jurisdiction under

28 U.S.C. § 1291. We affirm.

Summary judgment is proper where the moving party demonstrates “the

absence of a genuine issue of material fact,” and where the non-moving party fails

to “come forward with specific facts showing that there is a genuine issue for

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). We

review summary judgment rulings de novo, and we view the evidence and draw all

reasonable inferences in the non-moving party’s favor. See Greenberg v. Target

Corp., 985 F.3d 650, 654 (9th Cir. 2021) (citation omitted); Matsushita, 475 U.S.

at 587.

California’s reasonable consumer standard governs Peacock’s UCL claim.

See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citing

Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)). “[T]he reasonable

consumer standard requires a probability ‘that a significant portion of the general

consuming public or of targeted consumers, acting reasonably in the

circumstances, could be misled.’” Ebner v. Fresh, 838 F.3d 958, 965 (9th Cir.

2016) (quoting Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Ct.

App. 2003)). A mere possibility of confusion among “some few consumers” with

an unreasonable understanding and “a few isolated examples of actual deception”

2 24-2494 are insufficient to maintain a UCL claim for false advertising. Lavie, 129 Cal.

Rptr. 2d at 495; Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir.

2008) (citation omitted). The plaintiff’s own personal experience and assumptions

are also insufficient on their own to meet the reasonable consumer standard. See

Clemens, 534 F.3d at 1026.

In this case, the district court properly granted summary judgment. Pabst

carried its burden with unrebutted expert opinion that “there is no meaningful

evidence” that the relevant consumer population was “misled by the elements of

the Olympia Beer label” at the heart of this case. Peacock offers virtually no

evidence or specific facts that support his claim. He cites only his personal

assumptions and limited deposition testimony that is not relevant to whether the

Olympia Beer label was likely to confuse “an appreciable number” of reasonable

consumers. Clemens, 534 F.3d at 1026. In short, Peacock lacks the fundamental

evidentiary ingredients to brew a successful escape from summary judgment.

AFFIRMED.1

1 Because Peacock’s UCL claim fails on its merits, we need not reach the class certification issue.

3 24-2494