Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 1 of 21 Page ID #:4014
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Susan Tran,
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`CASE NO. 8:17-cv-00110-JLS-SS
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`Plaintiffs,
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`v.
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`Sioux Honey Association, Cooperative,
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`Defendants.
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`ORDER GRANTING DEFENDANT’S
`MOTION FOR SUMMARY
`JUDGMENT (Doc. 145)
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`Before the Court is a Motion for Summary Judgment filed by Defendant Sioux
`Honey Association, Cooperative. (Mot., Doc. 145-12.) Plaintiff Susan Tran opposed.
`(Opp., Doc. 152.) Sioux Honey replied. (Reply, Doc. 163.) Having held a hearing and
`taken the matter under submission, for the following reasons, the Court GRANTS the
`Motion.
`I.
`BACKGROUND
`This is consumer protection class action brought by Plaintiff and Class
`Representative Susan Tran concerning Sioux Honey’s asserted misrepresentations and
`omissions regarding its honey products.
`A. Factual Background
`Sioux Honey makes, markets, sells, and distributes honey under various trademarks,
`including Sue Bee and Aunt Sue’s. (First Amended Complaint (“FAC”) ¶ 20, Doc. 34.)1
`Sioux Honey is a “honey cooperative . . . comprised of more than 275 individual
`beekeepers.” (Mot. at 1.) This lawsuit concerns Sioux Honey products labeled as “Pure”
`and “100% Pure.”2 The products at issue are Sue Bee Clover Honey, Sue Bee Orange
`Honey, Sue Bee Sage Honey, Sue Bee LT. Amber Honey, Sue Bee Bulk Honey, Sue Bee
`Spun Clover Honey, Aunt Sue’s Raw unfiltered Clover Honey, Aunt Sue’s Raw unfiltered
`Wildflower Honey, Aunt Sue’s Organic Honey, Blossomology Organic Honey, North
`American Honey, and Bradshaw Honey (“the Products”). (Lenci Decl. ¶ 2, Doc. 145-1.)
`Tran’s theory of this case is that the Products are misleadingly labeled under California
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`1 Central District of California Local Rule 56 required the parties to submit concise statements
`of facts incorporating “all material facts.” While Sioux Honey and Tran each submitted a
`statement of facts, (Sioux Statement of Facts, Doc. 145-13; Tran Statement of Facts (“Tran SOF”);
`Doc. 152-23), neither addresses the fundamental background facts of this litigation. Accordingly,
`the Court refers to uncontested allegations of Tran’s FAC and background facts offered by the
`parties in their briefs. The Court is not deeming these facts true or relying on them for the
`purposes of resolving Sioux Honey’s Motion for Summary Judgment.
`2 The “100% Pure” label appeared for a short time on only Sioux Honey’s “Aunt Sue” and
`“North America” Products. (Tran SOF at 7.) Sioux Honey made wider use of the “Pure” label.
`(Id.)
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 3 of 21 Page ID #:4016
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`consumer protection statutes because they contain glyphosate, a synthetic chemical and
`herbicide. (FAC ¶¶ 4, 37, 40.)
`Tran relies in part on testing carried out by the FDA in 2016 on a Sioux Honey
`sample which identified the presence of Glyphosate in a concentration of 41 parts per
`billion. (Tran Request for Judicial Notice (“RJN”) Ex. 3, Doc. 150-3.)3 A subsequent
`2018 analysis commissioned by Tran’s counsel, the Richman Law Group, on three
`unidentified samples of Sue Bee Clover Spun Honey returned varied results — there was
`no detectable level of glyphosate in one sample; 30 parts per billion in a second sample,
`and 40 parts per billion in a third sample. (Tran Statement of Facts (“Tran SOF”) at 3,
`Doc. 152-23; Tran Commissioned Study, Richman Decl. Ex. 4, Doc. 152-2.) The parties
`concur that any glyphosate which may be found in the Products is not an additive
`incorporated during the manufacturing process, but rather is a byproduct of the honey’s
`natural production, unintentionally mixed into the product by the honey-producing bees,
`which encounter the glyphosate herbicide in nature. (Tran SOF at 3.)
`Tran states that she began purchasing Sioux Honey Products while residing in
`Washington State. (Tran Decl. ¶ 3, Doc. 129.) She continued to purchase the Products
`following her June 2013 relocation to California, buying them from a Vons Supermarket in
`Grover Beach, California. (Id.) Tran attests that she purchased the Products in reliance on
`Sioux Honey’s representations that they were “Pure” and “100% Pure,” believing that
`those labels indicated that “the products only contained honey, and nothing else, such as
`chemicals or impurities.” (Id. ¶ 4.) Former Sioux Honey Vice President of Research and
`Development William Huser has testified that Sioux Honey uses those labels to
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`3 Tran requests that the Court take judicial notice of three documents produced by the Food
`and Drug Administration in response to a January 23, 2020 Freedom of Information Act request
`submitted by her counsel, Levi & Korsinsky, LLP. (Request for Judicial Notice (“RJN”), Doc.
`150.) Sioux Honey opposed the RJN. (RJN Opp., Doc. 161.) Under Federal Rule of Evidence
`201, a court “may take judicial notice of undisputed matters of public record,” such as government
`documents from reliable sources. Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir.
`2012); Juliana v. United States, No. 6:15-CV-01517-AA, 2018 WL 9802138, at *1 (D. Or. Oct.
`15, 2018). Accordingly, Tran’s RJN is GRANTED.
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 4 of 21 Page ID #:4017
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`communicate to consumers that the Products contain “one ingredient, no other ingredients,
`no additives,” nothing but honey produced by honeybees. (Tran SOF at 6, Huser Depo. at
`34:5-20, Lenci Decl. Ex. 7, Doc. 145-8.)
`B. Procedural History
`Tran filed this class action on January 23, 2017, alleging Sioux Honey’s
`misrepresentations and omissions. (Compl., Doc. 1.) Tran then filed her First Amended
`Complaint on April 6, 2017. (FAC.) In her FAC, Tran asserts the following claims
`against Sioux Honey: (1) violation of California’s Consumers Legal Remedies Act
`(“CLRA”); (2) violation of California’s False Advertising Law (“FAL”); and (3) violation
`of California’s Unfair Competition Law (“UCL”). (Id. ¶¶ 108–47.)
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`Thereafter, the Court denied Sioux Honey’s Motion to Dismiss, holding that at the
`pleading stage, it could not “determine as a matter of law that Sioux Honey’s use of the
`words ‘Pure’ or ‘100% Pure’ would not deceive the reasonable consumer.” (MTD Order,
`Doc. 62.) Subsequently, the Court granted in part Tran’s Motion for Class Certification,
`certifying the following Rule 23(b)(2) injunctive and declaratory relief Class:
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`All persons residing in California, who, from January 2014 to the Present,
`purchased, for personal use and not resale, Sue Bee Products.
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`(Class Certification Order, Doc. 182.)
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`Sioux Honey now seeks summary judgment on each of Tran’s claims.
`II.
`LEGAL STANDARD
`In deciding a motion for summary judgment, the Court must view the evidence in
`the light most favorable to the non-moving party and draw all justifiable inferences in that
`party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary
`judgment is proper “if the [moving party] shows that there is no genuine dispute as to any
`material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.
`Civ. P. 56. A factual dispute is “genuine” when there is sufficient evidence such that a
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`reasonable trier of fact could resolve the issue in the non-movant’s favor, and a fact is
`“material” when it might affect the outcome of the suit under the governing law. Anderson,
`477 U.S. at 248. But “credibility determinations, the weighing of evidence, and the
`drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
`Acosta v. City of Costa Mesa, 718 F.3d 800, 828 (9th Cir. 2013) (quoting Reeves v.
`Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
`The role of the Court is not to resolve disputes of fact but to assess whether there
`are any factual disputes to be tried. The moving party bears the initial burden of
`demonstrating the absence of a genuine dispute of fact. Celotex Corp. v. Catrett, 477 U.S.
`317, 323 (1986). When the moving party will not bear the burden of proof at trial, it may
`satisfy its initial burden at the summary judgment stage by “produc[ing] evidence negating
`an essential element of the nonmoving party's claim or defense or show[ing] that the
`nonmoving party does not have enough evidence of an essential element to carry its
`ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies,
`Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “Once the moving party carries its initial
`burden, the adverse party ‘may not rest upon the mere allegations or denials of the adverse
`party’s pleading,’ but must provide affidavits or other sources of evidence that ‘set forth
`specific facts showing that there is a genuine issue for trial.’” Devereaux v. Abbey, 263
`F.3d 1070, 1076 (9th Cir. 2001) (quoting Fed. R. Civ. P. 56(e)).
`III. DISCUSSION
`Sioux Honey sets forth three arguments in its Motion for Summary Judgment: (1)
`each asserted claim fails because Tran has not produced evidence in support of essential
`elements of those claims (Mot. at 5-12); (2) Tran lacks standing to assert claims in
`connection with Products labeled “100% Pure” because she did not purchase a Product
`bearing that label (id. at 13); and, (3) because Tran “has an adequate remedy at law under
`the CLRA for ‘actual damages,’ her claims for equitable relief under CLRA, FAL, and
`UCL must be dismissed” (id. at 14-16). The Court addresses Sioux Honey’s standing
`argument first, before turning to its evidentiary argument. Finding Tran’s lack of evidence
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`on a key element requires summary judgment in Sioux Honey’s favor, the Court does not
`reach Sioux Honey’s third argument.
`A. Standing
`Sioux Honey contends that Tran lacks standing to bring claims in connection with
`labels claiming that any Product was “100% Pure” because she never purchased any Sioux
`Honey product adorned with that label, and so cannot assert that it caused her to suffer
`economic harm. (Id. at 13 (citing Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 330,
`246 P.3d 877, 890 (2011); see also Reply at 11-14.) The Court has already addressed, and
`rejected, similar arguments submitted by Sioux Honey in opposition to Tran’s Motion for
`Class Certification. (See Class Certification Order at 9-10, 9 n.5.) There, the Court
`explained that “plaintiffs bringing UCL, FAL, or CLRA claims meet the economic injury
`requirement if they show that, by relying on a misrepresentation on a product label, they
`paid more for a product than they otherwise would have paid, or bought it when they
`otherwise would not have done so.” (Id. at 9 (citing Order Denying Sioux Honey’s Motion
`to Dismiss at 3, Doc. 62) (internal quotations omitted); see Reid v. Johnson & Johnson,
`780 F.3d 952, 958 (9th Cir. 2015).) Even based upon the evidence submitted in
`connection with her Motion for Class Certification, the Court held that Tran readily
`satisfied the economic injury requirement with respect to her purchase of Products labeled
`as “Pure.” (Class Certification Order at 9-10.) The Court further held that Tran may
`represent Class Members with claims arising from the purchase of Products labeled “100%
`Pure” as those claims are “reasonably co-extensive with those arising” from the purchase
`of products labeled “Pure,” even if not identical. (Id. at 9 n.5 (discussing the standard set
`forth in Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).)
`Sioux Honey’s argument was properly addressed at the class certification stage and
`is presently inapposite. That is because Rule 23, rather than standing, provides the proper
`framework for the question raised. See Clancy v. The Bromley Tea Co., 308 F.R.D. 564,
`569-71 (N.D. Cal. 2013) (synthesizing broad body of caselaw with three different
`approaches to addressing differences between the claims of class representative and absent
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`class members) (concluding that “analyzing the ‘sufficient similarity’ of [related but
`distinct] products” purchased by class representatives and members is a Rule 23 inquiry
`rather than one of standing); Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 539
`(N.D. Cal. 2012) (addressing argument, similar to Sioux Honey’s, at class certification
`stage and finding claims involving similar products to be “reasonably coextensive”);
`Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012) (similarly
`noting this is a question for the class certification stage but also stating that “[t]he majority
`of the courts that have carefully analyzed the question hold that a plaintiff may have
`standing to assert claims for unnamed class members based on products he or she did not
`purchase so long as the products and alleged misrepresentations are substantially similar”).
`“’Representative parties who have a direct and substantial interest have standing; the
`question whether they may be allowed to present claims on behalf of others who have
`similar, but not identical, interests depends not on standing, but on an assessment of
`typicality and adequacy of representation.’” Greenwood v. Compucredit Corp., No. CIV.
`08-04878 CW, 2010 WL 4807095, at *3 (N.D. Cal. Nov. 19, 2010) (quoting AA Wright et
`al., Federal Practice and Procedure (3d.2005) § 1758.1 pp. 388–89). This Court has
`already determined that Tran meets Rule 23’s requirements, including those of typicality
`and adequacy.
`Accordingly, Sioux Honey’s standing argument does not undercut Tran’s assertion
`of claims, on behalf of the Class, pertaining to the purchase of Products labeled “100%
`Pure.”
`B. Tran Fails to Offer Evidence That Would Allow a Reasonable Factfinder
`to Conclude that the Labels Were Deceptive to the Reasonable Consumer.
`Claims made under the CLRA, FAL, and UCL are governed by the “reasonable
`consumer” test. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008)
`(citations omitted). Under that test, to prevail at trial, Tran must show that “members of
`the public are likely to be deceived.” Id. (citation omitted). “‘Likely to deceive’ implies
`more than a mere possibility that the advertisement might conceivably be misunderstood
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`by some few consumers viewing it in an unreasonable manner.” Lavie v. Proctor &
`Gamble Co., 105 Cal. App. 4th 496, 508 (2003). Rather, it must be “probable that a
`significant portion of the general consuming public or of targeted consumers, acting
`reasonably in the circumstances, could be misled.” Id. The relevant consumer is “the
`ordinary consumer within the larger population,” not the “least sophisticated consumer”
`nor one that is “exceptionally acute and sophisticated.” Hill v. Roll Int’l Corp., 195 Cal.
`App. 4th 1295, 1304 (2011) (citation omitted).
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`When it comes to the deceptiveness of the “Pure” labels, the issue has been clear
`from the outset of this case: would a reasonable consumer who was presented with the fact
`that the Products might contain up to 41 parts per billion of glyphosate be misled by a label
`that says the honey is “Pure” or “100% Pure?” (See October 11, 2017 Referral Order at 2-
`5 (noting that the FDA’s input would help clarify the “reasonable consumer’s
`understanding of the terms ‘Pure’ or ‘100% Pure’ with respect to trace amounts of
`glyphosate in honey”).) As Sioux Honey points out, some courts have concluded that a
`claim such as Tran’s cannot survive even a motion to dismiss. See e.g., In re Gen. Mills
`Glyphosate Litig., No. CV 16-2869 (MJD/BRT), 2017 WL 2983877, at *5 (D. Minn. July
`12, 2017) (finding it “implausible that a reasonable consumer would believe that a product
`labelled as having one ingredient—oats—that is ‘100% Natural’ could not contain a trace
`amount of glyphosate that is far below the amount permitted for organic products.”)
`(granting a motion to dismiss); Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d
`241, 247 (S.D.N.Y. 2019) (“a reasonable consumer would not be so absolutist as to require
`that ‘natural’ means there is no glyphosate, even an accidental and innocuous amount, in
`the Products”) (granting a motion to dismiss); Axon v. Citrus World, Inc., 354 F. Supp. 3d
`170, 183 (E.D.N.Y. 2018), aff’d sub nom. Axon v. Florida’s Nat. Growers, Inc., No. 19-
`203-CV, 2020 WL 2787627 (2d Cir. May 29, 2020) (“Given the widespread use of
`herbicides, the court finds it ‘implausible that a reasonable consumer would believe that a
`product labeled [‘Florida’s Natural’] could not contain a trace amount of glyphosate that is
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`far below the amount deemed tolerable by the FDA.”) (alteration in original) (affirming
`district court’s grant of a motion to dismiss).
`This Court, however, was unwilling to answer that question as a matter of law at the
`pleading stage. (See MTD Order at 7-11.) Specifically, in resolving Sioux Honey’s
`Motion to Dismiss, the Court explained that “[r]easonable consumers may understand that
`trace amounts of pesticide could end up in their honey from the bees’ interaction with the
`modern world, or they may interpret the word ‘Pure’ (and particularly, ‘100% Pure’) to
`mean that the final product does not contain any substance (even in trace amounts) that is
`not essential to the honey, particularly synthetic substances such as glyphosate.” (MTD
`Order at 9.) Now though, upon Sioux Honey’s Motion for Summary Judgment, it is
`incumbent upon Tran to introduce evidence that could support a finding that reasonable
`consumers believe the word “Pure” on the label means that there will be no trace amounts
`of pesticide in their honey, even if from the natural process of foraging bees. She has
`failed to do so.
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`In arguing that there is an issue of fact which must be submitted to a factfinder,
`Tran relies exclusively on a Survey and accompanying Expert Report of Dr. Thomas J.
`Maronick (Maronick Report, Richman Decl. Ex. 20, Doc. 152-21). (See Opp. at 10-14.)
`Dr. Maronick states he was “retained to design an online consumer survey to test the
`materiality of the term ‘Pure’ and to determine consumer understanding of the term ‘Pure’
`when associated with Sue Bee Honey.” (Maronick Report at 3.)
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`Maronick conducted his Survey using the Qualtrics.com internet survey platform,
`utilizing a sample population of 251 individuals over 18 who (1) lived in California, (2)
`were their household’s primary food shopper or shared responsibilities for food shopping,
`and (3) purchased or considered purchasing processed honey in the two months preceding
`the Survey. (Maronick Report at 4, 8.) Survey participants were shown the following
`image of a Sue Bee Clover Honey Product in a 12-ounce bear-shaped bottle:
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`(Id. at 9-10.) After viewing the photograph, participants were asked a number of
`questions. 4 The 159 participants who responded that they saw the phrase “Pure Premium
`Honey” on the label were asked two follow-up questions about the meaning of that term.
`First, they were asked the open-ended question, “[w]hat does the word ‘Pure’ mean to you
`when you see it on a label for honey?” Second, they were asked “[b]ased on what you saw
`on the label, which of the following, if any, reflect your understanding of what ‘Pure’
`means when you see it on a label for honey?” Participants were given the following
`response options:
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`□ No additives
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`4 The full Survey can be found in the Appendix to this Order.
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`□ Nothing artificial
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`□ Made from pure bees
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`□ Made with no chemicals
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`□ Nothing but honey
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`□ No chemical residues
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`□ Other (specify)
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`□ Don’t know/not sure
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`(Maronick Report at 11-15; Survey Screenshot, Maronick Report Ex. D, Doc. 152-21 at
`31-37.)
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`In responding to the open-ended question about the meaning of the word “pure,”
`five participants stated something to the effect that the term indicated the product
`contained no chemicals, 19 stated that it meant the product contained nothing artificial, 52
`stated that it meant that the product was “natural” or “just honey,” and 54 stated that it
`meant that the honey contained no additives or substances added to it. (See Maronick
`Report at 13; Qualtrics Survey Data Report at 41-43.)
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`In response to the “closed-end” question as to what “pure” meant, 115 selected “no
`additives,” 123 selected “nothing artificial,” 108 selected “no chemicals,” 114 selected
`“nothing but honey,” 100 selected “no chemical residues,” and 77 selected “made from
`pure bees.”5 (Maronick Report at 14.)6
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`5 Participants were directed to “CHECK ALL THAT APPLY” and were able to select multiple
`responses from the list of responses presented in Question 14. (Maronick Report at 14; Survey
`Screenshot, Maronick Report Ex. D, Doc. 152-21 at 35.)
`6 On Reply, Sioux Honey submitted the Expert Rebuttal Report of Dr. Bruce Isaacson.
`(Isaacson Report, Doc. 162 at 45.) The Isaacson Report is also a principal basis underlying Sioux
`Honey’s pending Daubert Motion to Strike Expert Report of Thomas Maronick. (Motion to
`Strike, Doc. 172.) In his Report, Dr. Isaacson identifies numerous “extensive flaws” in the
`Maronick Survey. (See generally Isaacson Report.) Those flaws include: (1) a narrow scope
`focusing on only one of the Sioux Honey Products at issue; (2) a failure to define many of the
`terms used; (3) the lack of a control group; (4) vague and leading questions; (5) inconsistent
`phrasing across questions; and (6) the inclusion of respondents in the Survey population who, for
`various reasons, should have been excluded. (Id.) For those reasons, Dr. Isaacson asserts that
`Maronick Survey and Maronick Report lack probative value as “reliable measures of consumers'
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`Tran’s theory of this case has been consistent: reasonable consumers would
`interpret the terms “Pure” and “100% Pure” to mean that the honey cannot contain 41 parts
`per billion of glyphosate, even if it is the result of the bees’ foraging habits and not as a
`result of the manufacturing process. Accordingly, this is a case about trace amounts of
`glyphosate. Hence, it was incumbent upon Tran to offer evidence that goes to that issue.
`However, Maronick’s Survey avoided the relevant question. Rather, Maronick’s questions
`went to the binary issue: do consumers expect chemicals in a product that is labeled
`“Pure?” But the answer to that generic question doesn’t advance Tran’s theory. Indeed, at
`his deposition, Maronick acknowledged that he “wasn’t asked to focus on trace amount
`[sic].” (Maronick Depo. Tr. at 21:12-22:15, Lenci Reply Decl. Ex. 3, Doc. 162 at 20.) In
`short, the Maronick Survey and Report do not provide evidence from which a reasonable
`factfinder could determine that consumers interpret the term “Pure” to exclude trace
`amounts of glyphosate.
`Tran argues that she does not need to rely on a survey because “‘the primary
`evidence in a false advertising case is the advertising itself’” and “a jury can determine
`whether advertising is likely to mislead simply by comparing the challenged advertising to
`what was actually delivered.” (Opp. at 11.) But in cases like this one, where “the
`allegedly false word has no fixed meaning,” even though not required, survey evidence can
`be particularly helpful in determining whether a reasonable consumer would be misled by
`accused labeling. See Alvarez v. NBTY, Inc., 331 F.R.D. 416, 423 (S.D. Cal. 2019),
`reconsideration denied, No. 17-CV-00567-BAS-BGS, 2020 WL 42767 (S.D. Cal. Jan. 3,
`2020) (contrasting cases where consumer understanding of labels is obvious, such as
`where a label states a product “support[s] healthy hair, skin, and nails,” with those where
`they are less certain, such as where a label indicates a product is “100% natural”) (citing
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`understanding of the term ‘Pure’ when associated with Sue Bee Honey, or of any other issue
`relevant to this matter.” (Id. ¶ 86.) The Court does not reach those assertions in this Order, as
`even assuming the admission of Maronick’s testimony, Tran fails to provide evidence on a key
`element in this case.
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`Allen v. Hyland's Inc., 300 F.R.D. 643, 668 (C.D. Cal. 2014)).
`And regardless of whether survey evidence is required, a plaintiff must nonetheless
`provide some evidence showing satisfaction of the “reasonable consumer” test. See
`Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 681-82 (2006), as modified
`on denial of reh'g (Jan. 31, 2006) (acknowledging that even absent extrinsic or survey
`evidence, a plaintiff is still required to “show that members of the public are likely to be
`deceived”); Astiana v. Kashi Co., 291 F.R.D. 493, 507 (S.D. Cal. 2013) (collecting cases)
`(finding, at the class certification stage, that plaintiffs failed to “sufficiently show that class
`members would view the presence of the challenged ingredients that are permitted in
`certified ‘organic’ foods” as rendering an “All Natural” representation misleading).
`Absent the Maronick Survey and Report, the only evidence introduced by Tran is her
`personal view of Products labeled “Pure.” But even that is insufficient, as her own
`testimony is that “Pure” means “without added ingredients or chemicals.” (emphasis
`added) (Tran Depo. Tr. 48:5-11, Richman Decl. Ex. 1, Doc. 152-2.) Even if that were not
`the case, Tran offers nothing to show that her view of the labels equates to that of the
`reasonable consumer.
`At oral argument, Tran asserted that Survey participants would not understand what
`is meant by “parts per billion,” and Maronick’s survey question regarding “chemical
`residues” suffices to address the issue. It does not. As noted above, Maronick
`acknowledges his survey questions were not meant to answer any questions regarding trace
`amounts, and nothing in his Report suggests that “chemical residue” satisfies as a stand-in
`for “trace” amounts. Nor would that interpretation be supported by the dictionary
`definition of the terms. “Residue” is “something that remains after a part is taken,” while a
`“trace” amount indicates “a minute and often barely detectable amount.” Residue,
`Miriam-Webster.com (last visited July 11, 2020); Trace, Miriam-Webster.com (last visited
`July 11, 2020).
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`It would have been simple to present the Survey participants with a question going
`to whether the participant viewed a honey product containing trace amounts, or 41 parts
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`per billion, of glyphosate, as less than “Pure” or “100% Pure.” Maronick did not come
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`close to doing so—instead, the raw Survey data and the Maronick Report offer no
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`foundation upon which a factfinder could conclude that a reasonable consumer would be
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`misled by Sioux Honey’s labeling. Because she lacks evidence of an element necessary to
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`carry her ultimate burden of persuasion at trial as to any of her CLRA, FAL, and UCL
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`claims, each fails.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Sioux Honey’s Motion for Summary Judgment is
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`GRANTED. Sioux Honey shall submit a proposed judgment, consistent with this Order,
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`within 14 days of the date of this Order.
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`DATED: July 13, 2020
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`HONORABLE JOSEPHINE L. STATON
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`UNITED STATES DISTRICT JUDGE
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`\OOOQQU‘I-bUJNr—I
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`Appendix
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 16 of 21 Page ID #:4029
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 32 of 37 Page ID
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 17 of 21 Page ID #:4030
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 33 of 37 Page ID
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 18 of 21 Page ID #:4031
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 34 of 37 Page ID
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 19 of 21 Page ID #:4032
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 35 of 37 Page ID
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 20 of 21 Page ID #:4033
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 36 of 37 Page ID
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`Case 8:17-cv-00110-JLS-SS Document 204 Filed 07/13/20 Page 21 of 21 Page ID #:4034
`Case 8:17-cv-00110-JLS-SS Document 152-21 Filed 01/24/20 Page 37 of 37 Page ID
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