| Case | County / Judge | Motion | Ruling | Date |
|---|
Motion to Disqualify; Motion for Protective Order
that happens and it rarely happens, but it has, I just get a copy of the settlement that you put on the record from Tara, cut and paste it and put it in a judgment form. That is how it ends up. Now everybody understands that. [Emphasis this Courts]; Reporters Transcript of Hearing dated March 6, 2026 at 24:12-20, attached to Curtis Decl. as Exh. A.]
9. Instead of continuing to deal with Mr. Becker's bad faith redlined settlement agreements with vague and confusing waiver provisions and argumentative recitals, Plaintiffs simply asked the Court to do what it said it was going to do. Plaintiffs were not required to assume the risk of Mr. Becker's "gotcha" settlement agreement, given the simple terms of the on-the-record settlement, namely, "a payment of $1,600,000 within 30 days, and that will be a complete resolution of the case with no appeal." (Reporters Transcript of Hearing dated March 6, 2026 at 10:23-26, attached to Curtis Decl. as Exh. A.)
10. And when the Court sent around a proposed Judgment laying out the simple terms of the settlement, what ensued were several emails from Mr. Becker to this Court accusing Mr. Curtis of "breaching the duty of good faith and fair dealing." (See Email from Mr. Becker dated April 2, 2026, attached to Curtis Decl. as Exh. G.)
11. Because of the repeated bad-faith positions taken by Defendants' counsel set forth above, and as detailed further in the Declaration of Robert A. Curtis, Plaintiffs were forced to pay Plaintiffs' counsel $8,125 in attorney fees between March 7, 2026, and the filing of the opening brief. [Plaintiffs are waiving the additional 1.8 hours it took reviewing the Opposition and preparing the Reply and the anticipated 1 hour attending the hearing on May 13, 2026. Plaintiffs only seek the same amount of fees as set forth in their initial filing.] In Summary This case is guided by the more stringent rules requiring subjective bad faith applicable to section 128.5. A reasonable attorney knowing all the facts and the applicable law would conclude, as this Court did, that the sanctions set are justified because Defendants' and their Lawyer's conduct was intended to cause unnecessary delay and/or was undertaken for an improper motive. The Defense Attorney, and the Defendants, have, with rhythmic regularity, taken a position (1) that is "wholly incredible" and (2) in total disregard of the "patent obligations of the contract" and (3) without "honest belief in the propriety or reasonableness" of the settlement.
Tentative Ruling: People of the State of California v. The Kroger Co. Tentative Ruling: People of the State of California v. The Kroger Co. Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 03/18/2026 - 10:00 Nature of Proceedings 1) Motion to Disqualify; 2) Motion for Protective Order Tentative Ruling For Plaintiff People of the State of California: John T. Savrnoch, Morgan S. Lucas, Christopher B. Dalbey, Office of the Santa Barbara County District Attorney; Erik Nasarenko, Andrew J. Reid, Office of the Ventura County District Attorney For Defendant The Kroger Co.: Jacob M. Harper, James H. Moon, Daniel H. Leigh, Davis Wright Tremaine LLP RULING (1) For all reasons stated herein, defendant The Kroger Co.'s motion to disqualify Morgan Lucas and Andrew Reid as counsel is denied. The court declines to award monetary sanctions. (2) For all reasons stated herein, plaintiff People of the State of California's motion for protective order regarding the deposition subpoenas to Morgan Lucas and Andrew Reid is granted. These subpoenas are quashed, and Attorneys Lucas and Reid need not take further action as to these subpoenas. The court declines
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to award monetary sanctions.
Background
On May 29, 2024, plaintiff People of the State of California (People) filed their original complaint in this action against defendant The Kroger Co. (Kroger), an operator of retail grocery stores. The People allege that beginning on November 1, 2018, Kroger sold bread products (Carbmaster Products) in California with misleading packaging pertaining to the number of calories in these products. Between July 2024 and March 2025, the parties litigated issues pertaining to a notice of removal of this action to federal court by Kroger, a subsequent order of remand from the federal court to this court, and a demurer and motion to strike by Kroger pertaining to the People's first amended complaint. On April 9, 2025, the People filed their operative second amended complaint (SAC). The SAC asserts 10 causes of action: (1) false advertising (outside of FDA panel), violation of Business and Professions Code section 17500; (2) false advertising (within FDA panel), violation of Business and Professions Code section 17500; (3) unfair competition (false advertising outside of FDA panel), violation of Business and Professions Code section 17200; (4) unfair competition (false advertising within FDA panel), violation of Business and Professions Code section 17200; (5) unfair competition (false advertising by enticement outside of FDA panel), violation of Business and Professions Code section 17200; (6) unfair competition (false advertising by enticement within FDA panel), violation of Business and Professions Code section 17200; (7) unfair competition (misbranded food outside of FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (8) unfair competition (misbranded food within FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (9) unfair competition (untrue or misleading advertising outside of FDA panel), violation of Business and Professions Code section 17200; and (10) unfair competition (untrue or misleading advertising within FDA panel), violation of Business and Professions Code section 17200. As alleged in the SAC: The packaging for Carbmaster Products contained false and misleading information as to the number of calories contained in a serving. (SAC, ¶¶ 13-36.) "For example, on the front packaging and on the FDA Nutrition Facts panel, [Kroger] advertised that its CARBMASTER Wheat Bread contained only 30 calories. In reality, CARBMASTER Wheat Bread contained 50 calories. In another instance, [Kroger] advertised on the front packaging and the FDA Nutrition Facts panel that its CARBMASTER Hamburger Buns contained only 50 calories, when the buns actually contained 100 calories." (SAC, ¶ 18.) In 2021 or 2022, Kroger corrected the FDA nutrition facts on the back of the packaging, but continued to underrepresent the number of calories on the front of the packaging. (SAC, ¶¶ 19-24.) The People seek to recover civil penalties pursuant to Business and Professions Code sections 17200 through 17206, 17500, 17535, and 17536, in the amount of $2,500 for each violation, and to obtain a permanent injunction. (SAC, ¶¶ 32-96.) On August 22, 2025, Kroger filed its operative first amended answer to the SAC, generally denying the allegations in the SAC and asserting 12 affirmative defenses. On February 17, 2026, Kroger moved to disqualify two attorneys representing the People in this action, Morgan Lucas and Andrew Reid. Kroger's motion is based on the People having listed attorneys Lucas and Reid as persons with knowledge in response to form interrogatories served by Kroger. Kroger argues that attorneys Lucas and Reid are necessary witnesses in this action, cannot act as counsel of record for the People while also testifying as fact witnesses, and must be disqualified under Rules of Professional Conduct, rule 1.7 and rule 3.7. This motion is opposed. The People request monetary sanctions. On February 18, 2026, the court granted a protective order quashing a deposition notice seeking to depose the person most qualified (PMQ) of the People pertaining to 20 categories including discussions among counsel of record for the People. After discussing the factors under Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 (Carehouse), the court ruled in part: "Kroger does not reasonably dispute that many of the topics in the Notice have been addressed by written discovery, that Kroger could serve follow-up written discovery on the issues in the Notice, or that Kroger could take the individual deposition of the People's investigator. Kroger has not demonstrated that it lacks other practicable means to obtain the information contained in the Notice. The Notice served by Kroger appears to seek privileged information. Kroger has not demonstrated extreme good cause to take the PMQ deposition of the People. The Court will grant the People's
motion for protective order and quash this Notice." (Minute Order, Feb. 18, 2026.) The court also addressed various discovery disputes between the parties. (Ibid.) On February 23, 2026, the People moved for a protective order relieving them of compliance with deposition subpoenas served by Kroger on attorneys Lucas and Reid in their individual capacities. The People request monetary sanctions. This motion is opposed. On March 13, 2026, Kroger submitted a supplemental brief and supplemental declaration pertaining to its disqualification motion. On March 16, 2026, the People submitted a supplemental brief in opposition to Kroger's disqualification motion. Analysis (1) Kroger's Motion to Disqualify Counsel "A trial court's authority to disqualify an attorney derives from its inherent power, codified at Code of Civil Procedure section 128, subdivision (a)(5), to control the conduct of its ministerial officers and of all other persons connected with its proceedings in furtherance of justice. [Citation.] Disqualification may be ordered as a prophylactic measure against a prospective ethical violation likely to have a substantial continuing effect on future proceedings." (Doe v. Yim (2020) 55 Cal.App.5th 573, 581 (Yim).) "A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: "(1) the lawyer's testimony relates to an uncontested issue or matter; "(2) the lawyer's testimony relates to the nature and value of legal services rendered in the case; or "(3) the lawyer has obtained informed written consent from the client. If the lawyer represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the lawyer is employed." (Rules Prof. Conduct, rule 3.7(a).) "A lawyer shall not, without informed written consent* from each affected client ... represent a client if there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer's own interests." (Rules Prof. Conduct, rule 1.7(b).) "The 'advocate-witness rule,' which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system, and traces its roots back to Roman Law. [Citation.] ... 'Notwithstanding a client's informed written consent, courts retain discretion to take action, up to and including disqualification of a lawyer who seeks to both testify and serve as an advocate, to protect the trier of fact from being misled or the opposing party from being prejudiced.' [Citations.] In other words, a court retains discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is 'a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.' " (Yim, supra, 55 Cal.App.5th at pp. 581-582.) The burden is on the moving party seeking disqualification. (See Evid. Code, § 500.) "[T]o effectuate the rule's purpose of avoiding fact finder confusion, we interpret the rule's use of the term 'trial' to encompass a pretrial evidentiary hearing at which counsel is likely to testify. [Citation.] Further, ... most courts recognize that an attorney who intends to testify at trial may not participate in 'any pretrial activities which carry the risk of revealing the attorney's dual role to the jury.' [Citation.] In particular, a testifying attorney should not take or defend depositions." (Yim, supra, 55 Cal.App.5th at p. 583.) "In exercising its discretion to disqualify counsel under the advocate-witness rule, a court must consider: (1) 'whether counsel's testimony is, in fact, genuinely needed'; (2) 'the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons'; and (3) 'the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.' " (Yim, supra, 55 Cal.App.5th at p. 583.) On September 25, 2025, Kroger served its first set of form interrogatories (FIs) on the People. (Harper Decl., Ex. A.) On December 8, 2025, the People served responses to Kroger's FIs. (Harper Decl., Ex. B.) In support of its motion, Kroger relies on the People's responses to FI Nos. 12.1 and 12.6, wherein attorneys Lucas and Reid were designated as persons with knowledge or persons directing or possessing investigative reports. (See ibid.)
FI No.12.1(d) asks the People: "State the name, ADDRESS, and telephone number of each individual [¶] ... [¶] who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034)." (Harper Decl., Ex. A at p. 5.) In response, the People objected to this FI based on the work product doctrine, the official information privilege, the deliberative process privilege, and on grounds it calls for premature expert discovery. (Id., Ex. B at p. 3, ll. 1-7.) Subject to and without waiving these objections, the People identified four persons with knowledge including attorneys Lucas and Reid. (Id., Ex. B at p. 4, ll. 4-9.) FI No. 12.6(c) asks the People: "Was a report made by any PERSON concerning the INCIDENT? If so, state [¶] ... [¶] the name, ADDRESS, and telephone number of the PERSON for whom the report was made." (Harper Decl., Ex. A at p. 6.) The People asserted the same or similar objections. Subject to and without waiving their objections, the People identified attorneys Lucas and Reid. (Id., Ex. B at p. 6, ll. 19-24.) FI No. 12.6(d) asks the People: "Was a report made by any PERSON concerning the INCIDENT? If so, state [¶] ... [¶] the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the report." (Harper Decl., Ex. A at p. 6.) The People asserted the same or similar objections. Subject to and without waiving their objections, the People identified three persons including attorneys Lucas and Reid. (Id., Ex. B at p. 7, ll. 1-7.) Kroger further relies on the People's responses to special interrogatories wherein the People listed attorneys Lucas and Reid as persons with knowledge, a report from the People's investigator, and the transcript of the investigator's deposition. (Supp. Harper Decl., Exs. A-D.) Attorney Lucas is identified in response to special interrogatory No. 21 as having made a purchase of Carbmaster white bread at the Goleta Ralph's on June 26, 2022. (Kroger Supp. Brief, p. 4, ll. 13-15.) Attorneys Lucas and Reid are identified in response to special interrogatory No. 3 as persons with information regarding the People's claims against Kroger. (Id., p. 6, ll. 6-9.) In response to special interrogatory No. 19, the June 2022 purchase by Attorney Lucas is listed as a fact that supports the People's claims against Kroger. (Id., p. 9, ll. 13-15.) Kroger notes that the People's investigator, Robert Parmelee, verified these interrogatory responses but did not know all the circumstances of the June 2022 purchase by attorney Lucas. (Id., Ex. A [Parmelee Depo.], p. 115, l. 23 - p. 119, l. 1.) The investigator's report by Mr. Parmelee references two photographs received from attorney Lucas on June 26, 2022, and refers to them "as a referral" to conduct his investigation. (Id., Ex. B.) Kroger argues that the People have identified attorneys Lucas and Reid as "fact witnesses." As argued by Kroger, "Kroger is entitled to test Mr. Reid's and Ms. Lucas's knowledge, and, in practical effect, Mr. Reid and Ms. Lucas are likely the only available percipient witnesses on core issues in dispute." (Motion, p. 13, ll. 21-23.) According to Kroger, "Mr. Reid and Ms. Lucas apparently participated extensively in the State's factual development; moreover, Kroger is entitled to test the limits of their knowledge--establishing what evidence the State has, including what each percipient witness can testify to ...." (Motion, p. 13, l. 26 - p. 14, l. 1.) Kroger argues that attorneys Lucas and Reid's testimony is needed on "what the State contends Kroger 'knew or should have known' regarding calorie statements ... including the factual basis for asserting knowledge or reasonable care," "when the People contend violations began, whether and when corrections occurred, and whether alleged conduct continued after notice--issues directly bearing on civil penalties and willfulness," "the October 4, 2022 and December 5, 2023 communications referenced in the SAC, what was conveyed, to whom, and what the People contend those communications establish," "whether alleged conduct is ongoing, whether it has been remediated, and what factual basis exists for claiming a likelihood of recurrence," "the factual predicates the People rely on to seek $2,500 per violation, including alleged harm, scope of impact, and aggravating factors," "what the People knew, when they knew it, and why suit was not filed until May 2024 despite allegations dating to 2018," and "the People's understanding of FDA panel requirements and the factual basis for contending Kroger's labeling fell outside federal tolerances." (Motion, p. 15, l. 23 - p. 16, l. 20.)
As Kroger summarizes its arguments in its supplemental brief, "Ms. Lucas's and Mr. Reid's role in the underlying facts of this case reaches far beyond taking 'a single photograph' each--indeed, testimony obtained after Kroger filed its Motion shows that Ms. Lucas is a fact witness to core parts of the State's case, making her irredeemably conflicted and requiring their disqualification." (Kroger's Supp. Brief, p. 2, ll. 10-16.) "Due process and basic fairness requires that Kroger be able to take discovery into these facts--and the State's counsel's attempt to perform the dual roles of counsel and fact witnesses is therefore untenable and requires disqualification." (Id., p. 3, ll. 17-19.) According to the evidence submitted by the People, attorney Lucas only has personal knowledge of a single photograph depicting a label for Kroger's Carbmaster white bread. (Lucas Decl., ¶¶ 16-20.) According to the People's response to special interrogatory No. 3, attorney Lucas "has knowledge of ... front and side packaging of CARBMASTER White Bread at the Goleta, California Ralph's location advertised 30 calories per slice while the FDA Panel listed 50 calories per slice." (Id., Ex. 13 at p. 26, ll. 11-17.) It appears based on the investigator's report and the People's supplemental brief that attorney Lucas may have taken two photographs of this purchased bread product in June 2022. (People Supp. Brief, p. 2, ll. 27-28.) According to the People, attorney Reid only has personal knowledge of a single screenshot of Kroger's website. (Id., ¶¶ 4-6.) According to the People's response to special interrogatory No. 3, attorney Reid "has knowledge of ... front and side packaging of CARBMASTER Wheat Bread listed online at Ralph's website advertised 30 calories per slice while the FDA Panel listed 50 calories per slice." (Id., Ex. 13 at p. 26, ll. 4-10.) The People argue that knowledge of these photographs (the Photos) taken in the ordinary course of the People's investigation do not make attorney Lucas or Reid necessary witnesses in this action, particularly when the People will not introduce the Photos at trial or otherwise rely on them as evidence in this action. (Opp., p. 4, ll. 3-12.) As the People summarize their position in their supplemental brief: "DDA Lucas purchased one loaf of Carbmaster white bread, photographed its front and back label, and gave the bread and the photographs to DAI Parmelee; DAI Parmelee independently collected the same evidence just two days later. DDA Reid took a screen capture of the bread from Defendant's own website. DAI Parmelee also took multiple screen captures of the same bread on Defendant's website." (People's Supp. Brief, p. 2, ll. 21-25.) Applying the first Yim factor (whether counsel's testimony is genuinely needed), the photograph(s) taken by attorney Lucas appear to show the same label information as the photographs taken by the People's investigator during the same timeframe, although the identification stamps and sell-by dates indicate the photographs are not of the same loaf of bread. (Lucas Decl., ¶¶ 16-20, Exs. 9-10.) Attorney Lucas states she has no additional personal knowledge. (Ibid.) Attorney Reid states that apart from a single screenshot of Kroger's website, he has "no other personal knowledge of any fact or information associated with this case." (Reid Decl., ¶¶ 4-6.) The testimony sought by Kroger does not focus on the marketing statements contained in the Photos. (Motion, p. 15, l. 23 - p. 16, l. 20.) Rather, the testimony sought by Kroger appears to focus on attorneys Lucas and Reid's mental impressions on various aspects of the case. (Ibid.) Kroger seeks to depose attorneys Lucas and Reid as to the People's contentions about Kroger's knowledge of calorie content (id., p. 15, ll. 23-26), the People's contentions about Kroger's violations (id., p. 15, ll. 23-26), the People's knowledge about certain communications (id., p. 15, ll. 27-28), the People's knowledge of Kroger's ongoing conduct (id., p. 16, ll. 3-5), the People's evidence pertaining to penalties (id., p. 16, ll. 6-9), why the People waited until May 2024 to file suit (id., p. 16, ll. 10-13), and the People's understanding of federal labeling laws and certain jurisdiction doctrines (id., p. 15, ll. 17-20). The People asserted work product objections in its discovery responses. (Harper Decl., Ex. B at p. 3, ll. 1-7, p. 6, ll. 7-13.) These objections are preserved even if asserted in a conclusory manner. (See Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188.) "Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected ... in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways." (In re Jeanette H. (1990) 225 Cal.App.3d 25, 32.) Generally, litigation-related investigations directed by counsel are protected from disclosure unless the court determines that denial of
discovery will unfairly prejudice the party seeking discovery or will result in an injustice. (See Code Civ. Proc., § 2018.030, subd. (b).) An attorney's impressions, conclusions, opinions, or legal research or theories are generally not discoverable under any circumstances. (Id., subd. (a).) Attorneys Lucas and Reid have confirmed that they will not be called as witnesses on behalf of the People. (Lucas Decl., ¶¶ 16-20; Reid Decl., ¶¶ 4-6.) Even assuming there is discoverable testimony within the scope of the Discovery Act pertaining to these Photos, the court as discussed below will grant a protective order precluding the deposition of the People's counsel of record. (See Code Civ. Proc., § 2025.420, subds. (a)-(b).) Extremely good cause has not been shown under Carehouse, supra, 143 Cal.App.4th at page 1562, to compel attorney Lucas or Reid to testify over the People's objections under these circumstances. Kroger did not establish why the contents of these Photos could not be properly evaluated by means other than deposing opposing counsel, particularly when the People will not introduce them at trial. It does not appear based on the record before the court that attorney Lucas or Reid are genuinely needed as witnesses in this action. (See Yim, supra, 55 Cal.App.5th at p. 583.) This issue is discussed further below in the context of the motion for protective order brought by the People. As to the second Yim factor (whether the disqualification motion may have been purely for tactical reasons), there are impending depositions, deadlines, and a trial date in July 2026. (See Minute Order, Feb. 18, 2026.) Kroger used the private residences of opposing counsel for the deposition subpoenas to opposing counsel and on February 18 served attorney Lucas at her residence with a package of case-related papers when such service did not appear to serve any legitimate purpose. (Lucas Decl., ¶¶ 5-16, Ex. 8; Reid Decl., ¶¶ 2-3.) Kroger was aware of the heavy burden it must show to depose opposing counsel in this action. (Lucas Decl., ¶3.) The court has already issued a protective order as to the PMQ deposition of the People pertaining to categories that included privileged discussions among counsel. (Minute Order, Feb. 18. 2026.) There is support for the People's position that Kroger's motion to disqualify was made for tactical reasons. (See Yim, supra, 55 Cal.App.5th at p. 583.) As to the third Yim factor (a parties' interest in counsel of choice), the trial of this action is set on July 8, 2026. There are ongoing discovery tasks that have been recently ordered by the court and there are additional discovery disputes pending on the court's docket. Trial would be delayed if disqualification was granted and discovery would be disrupted. The People's interest in continuity of counsel is significant under these circumstances. (See Yim, supra, 55 Cal.App.5th at p. 583.) In addition, the court notes there is no right to a jury trial in this action. (See Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279, 327.) Both Kroger and the People have demanded a court trial in this action. (Kroger CMC Stat., March 2, 2026; People CMC Stat., March 3, 2026.) There is no apparent risk of jury confusion under these circumstances, further supporting the People's opposition to disqualification. (See Yim, supra, 55 Cal.App.5th at pp. 582-583.) The court can address the issues pertaining to the Photos under these circumstances without prejudice to Kroger. In addition, for the foregoing reasons, it does not appear that attorney Lucas or Reid's representation of the People in this action will be materially limited by their own interests or relationships with others. (See Rules Prof. Conduct, rule 1.7(b).) For all these reasons including the factors under Yim, supra, 55 Cal.App.5th at pages 582-583, the court will deny Kroger's motion to disqualify attorneys Lucas and Reid. Kroger has not made a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. This ruling assumes that the People will not submit evidence of the Photos at trial, including any foundational testimony from attorney Lucas or Reid. This ruling is without prejudice to defendant Kroger filing a motion in limine to exclude at trial any evidence of the Photos, any evidence that requires foundational testimony from attorney Lucas or Reid, or any testimony offered by attorney Lucas or Reid as to other subjects. This ruling is also without prejudice to Kroger taking appropriate discovery as to the Photos by means other than deposition testimony from attorney Lucas or Reid. (2) The People's Motion for Protective Order On January 20, 2026, Kroger served deposition subpoenas for personal appearance for the deposition of attorneys Lucas and Reid in their individual capacity. (Lucas Decl. ISO Motion for PO, ¶ 5, Ex. 1; Reid Decl. ISO Motion for PO, Ex. 1.) The People move for a protective order to prevent such testimony on the grounds that
Kroger cannot meet the high standard under Carehouse, supra, 143 Cal.App.4th at pages 1562-1563. (See Code Civ. Proc., § 2025.420, subds. (a)-(b).) "Depositions of opposing counsel are presumptively improper, severely restricted, and require 'extremely' good cause--a high standard." (Carehouse, supra, 143 Cal.App.4th at p. 1562.) "Attorney depositions chill the attorney-client relationship, impede civility and easily lend themselves to gamesmanship and abuse. 'Counsel should be free to devote his or her time and efforts to preparing the client's case without fear of being interrogated by his or her opponent.' [Citation.] '[I]n the highly charged atmosphere of litigation, attorney depositions may serve as a potent tool to harass an opponent.' [Citation.] [¶] To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?" (Id. at p. 1563.) Applying the first Carehouse factor, as to attorney Lucas, there is another photograph of the Carbmaster white bread label taken by the People's investigator. (Lucas Decl. ISO Motion for PO, ¶¶ 17-20.) Kroger could discover information pertaining to the Carbmaster white bread labels from the People's investigator, Kroger's own files or employees, or through written discovery. The same is true as to the screenshot of Kroger's own website. (Reid Decl. ISO Motion for PO, ¶¶ 4-5.) Kroger can obtain information pertaining to this screenshot through other discovery means including from its own files, vendors, or operations. Kroger has not made a sufficient showing that the labels depicted in the Photos contain unique information not discernable from other labels and marketing statements containing identical information, such that the deposition of opposing counsel would be warranted. Applying the second Carehouse factor, Kroger makes no persuasive argument as to why the Photos are crucial to Kroger's affirmative defenses in this action or the elements of the claims alleged against Kroger. Kroger does not argue that the contents of the Photos are in dispute. As discussed above pertaining to the disqualification motion, the People are not calling these attorneys as witnesses against Kroger. The People are not offering these Photos as evidence at trial. These attorneys do not have other personal knowledge. (Lucas Decl. ISO Motion for PO, ¶¶ 17-20; Reid Decl. ISO Motion for PO, ¶¶ 4-5.) This deposition testimony does not appear crucial to Kroger's defense. Applying the third Carehouse factor, as discussed above pertaining to the disqualification motion, Kroger has indicated it seeks to depose attorneys Lucas and Reid as to their mental impressions about the case against Kroger on behalf of the People. Kroger is not entitled to depose opposing counsel as to their investigation or litigation activities under these circumstances. (See Code Civ. Proc., § 2018.030.) It would be highly unusual to permit a litigant to depose opposing counsel over timely-asserted objections pertaining to counsel's mental impressions about various aspects of the case. (See id., subd. (a).) The information sought by Kroger appears to be privileged. For all these reasons, the court will grant the People's protective order and quash these deposition subpoenas pertaining to the deposition of attorneys Lucas and Reid. The court declines to award monetary sanctions but instructs counsel for Kroger not to further utilize the personal residential addresses of opposing counsel for service in this action without first demonstrating good cause to the court.
Tentative Ruling: People of the State of California v. The Kroger Co. Tentative Ruling: People of the State of California v. The Kroger Co. Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 04/08/2026 - 10:00 Nature of Proceedings Motions to Compel (3)
Tentative Ruling For Plaintiff People of the State of California: John T. Savrnoch, Morgan S. Lucas, Office of the Santa Barbara County District Attorney; Erik Nasarenko, Andrew J. Reid, Office of the Ventura County District Attorney For Defendant The Kroger Co.: Jacob M. Harper, James H. Moon, Daniel H. Leigh, Davis Wright Tremaine LLP RULING (1) For all reasons stated herein, Plaintiff People of the State of California's motion to compel further responses to special interrogatories, set two, is granted. Defendant The Kroger Co. shall serve verified supplemental responses as directed in this ruling on or before May 6, 2026. The Court declines to award monetary sanctions. (2) For all reasons stated herein, Plaintiff People of the State of California's motion to compel further responses to inspection demands is granted. Defendant The Kroger Co. shall serve verified supplemental responses as directed in this ruling on or before May 6, 2026. The Court declines to award monetary sanctions. (3) For all reasons stated herein, Plaintiff People of the State of California's motion to compel further responses to requests for admission, set one, and form interrogatories, set two, No. 17.1, is denied as to the requests for admission and granted as to form interrogatory No. 17.1. Defendant The Kroger Co. shall serve a verified supplemental response to form interrogatory No. 17.1 as directed in this ruling on or before May 6, 2026. The Court declines to award monetary sanctions. (4) The Pretrial date of 7/8/26 at 11:30am is confirmed; the jury to come over on 7/9/26; no continuances invited or permitted.
Background
On May 29, 2024, Plaintiff People of the State of California (People) filed their original complaint in this action against Defendant The Kroger Co. (Kroger), an operator of retail grocery stores. The People allege that beginning on November 1, 2018, Kroger sold bread products (Carbmaster Products) in California with misleading packaging pertaining to the number of calories in these products. Between July 2024 and March 2025, the parties litigated issues pertaining to a notice of removal of this action to federal Court by Kroger, a subsequent order of remand from the federal Court to this Court, and a demurer and motion to strike by Kroger pertaining to the People's first amended complaint. On April 9, 2025, the People filed their operative second amended complaint (SAC). The SAC asserts 10 causes of action: (1) false advertising (outside of FDA panel), violation of Business and Professions Code section 17500; (2) false advertising (within FDA panel), violation of Business and Professions Code section 17500; (3) unfair competition (false advertising outside of FDA panel), violation of Business and Professions Code section 17200; (4) unfair competition (false advertising within FDA panel), violation of Business and Professions Code section 17200; (5) unfair competition (false advertising by enticement outside of FDA panel), violation of Business and Professions Code section 17200; (6) unfair competition (false advertising by enticement within FDA panel), violation of Business and Professions Code section 17200; (7) unfair competition (misbranded food outside of FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (8) unfair competition (misbranded food within FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (9) unfair competition (untrue or misleading advertising outside of FDA panel), violation of Business and Professions Code section 17200; and (10) unfair competition (untrue or misleading advertising within FDA panel), violation of Business and Professions Code section 17200. As alleged in the SAC: The packaging for Carbmaster Products contained false and misleading information as to the number of calories contained in a serving. (SAC, ¶¶ 13-36.) "For example, on the front packaging and on the FDA Nutrition Facts panel, [Kroger] advertised that its CARBMASTER Wheat Bread contained only 30 calories. In reality, CARBMASTER Wheat Bread contained 50 calories. In another instance, [Kroger] advertised on the front packaging and the FDA Nutrition Facts panel that its CARBMASTER Hamburger Buns contained only 50 calories, when the buns actually contained 100 calories." (SAC, ¶ 18.) In 2021 or 2022, Kroger corrected the FDA nutrition facts on the back of the packaging, but continued to underrepresent the number of calories on the front of the packaging. (SAC, ¶¶ 19-24.) The People seek to recover civil penalties pursuant to Business and Professions Code sections 17200 through 17206, 17500, 17535, and 17536, in the amount of $2,500 for each
violation, and to obtain a permanent injunction. (SAC, ¶¶ 32-96.) On August 22, 2025, Kroger filed its operative first amended answer to the SAC, generally denying the allegations in the SAC and asserting 12 affirmative defenses. Between March 12 and March 16, 2026, the People filed three motions to compel at issue in this hearing, including a motion to compel further responses to special interrogatories, Nos. 15 through 29, a motion to compel further responses to demands for inspection, Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 62, 64, 65, 66, 67, and 68, and a motion to compel further responses to requests for admission, Nos. 1 through 22, and form interrogatories, set two, No. 17.1, pertaining to these requests for admission. The motion regarding the requests for admission also seeks an order deeming the matters asserted in request for admission No. 23 admitted. The People seek monetary sanctions. These motions are opposed. Analysis (1) Special Interrogatory Nos. 15 through 24 "A trial Court must be mindful of the Legislature's preference for discovery over trial by surprise [and] must construe the facts before it liberally in favor of discovery ...." (Williams v. Superior Court (2017) 3 Cal.5th 531, 540 (Williams).) "Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., § 2017.010.) "The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: "(1) An answer containing the information sought to be discovered. "(2) An exercise of the party's option to produce writings. "(3) An objection to the particular interrogatory." (Code Civ. Proc., § 2030.210, subd. (a).) "Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., § 2030.220, subd. (a).) "If an interrogatory cannot be answered complete, it shall be answered to the extent possible." (Id., subd. (b).) "If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Id., subd. (c).) "If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them." (Code Civ. Proc., § 2030.230.) A party may move for an order compelling further responses to interrogatories if an answer is evasive or incomplete or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) As to special interrogatory Nos. 15-24, each of these interrogatories asks Kroger to provide specific dates when certain changes were made to Kroger's websites during the relevant time period. (Kroger Corr. Sep. Stat., p. 3, l. 12 - p. 37, l. 16.) For example, special interrogatory No. 15 asks Kroger, "[o]n what date did YOU change the
FDA NUTRITION PANEL information from 50 to 100 calories per bun on each of YOUR websites for CARBMASTER Hamburger Buns?" (Kroger Corr. Sep. Stat., p. 3, ll. 12-14.) Kroger indicates it has performed a good faith search for this information but has been unable to identify the specific dates requested. For example, as to special interrogatory No. 15, Kroger responds, "[a]fter a reasonable search conducted to date, Kroger has not identified information sufficient to determine the specific date(s) on which the FDA Nutrition Facts Panel image for CARBMASTER Hamburger Buns was changed from 50 to 100 calories per bun on the websites referenced in the Interrogatory. Kroger's investigation into historical website records remains ongoing, and Kroger will supplement this response if and when additional responsive information is identified." (Kroger Corr. Sep. Stat., p. 4, ll. 1-6.) It appears likely that Kroger can provide additional information or context that would make its responses as complete as possible. (See Code Civ. Proc., § 2030.220, subds. (a)-(b).) The Court will require that Kroger serve verified supplemental responses and describe, to the extent possible based on the information reasonably available to Kroger and its affiliated operations, whether such changes were made to its websites and the timeframes these changes were made, even if the specific dates cannot be determined. (See id., subds. (b)-(c).) If no such changes were made, Kroger can state no such changes were made and explain the basis for its responses. If Kroger does not know if such changes were made after reasonable inquiry, Kroger can explain the steps it took to reach this conclusion and explain why it cannot make this determination. The People have carried their burden to show that Kroger's responses do not comply with Code of Civil Procedure section 2030.220. (See Code Civ. Proc., § 2030.220, subds. (a)-(b).) Kroger shall make a reasonable and good faith effort to obtain this information by inquiry to other natural persons or organizations. (See Code Civ. Proc., § 2030.220, subd. (c).) The responses shall be complete and straightforward as the information reasonably available to Kroger permits. (See id., subd. (b).) The relevant time period for these supplemental responses is from 2018 through 2024. (See SAC, ¶¶ 2, 31.) If any information is withheld on the basis of privilege, Kroger must state any attorney-client privilege or work product objections with sufficient specificity for the People to ascertain the basis for these objections and serve a privilege log concurrently with its supplemental responses. (2) Special Interrogatory Nos. 25 through 29 Each of these interrogatories asks Kroger to state the recipe formulation of Carbmaster Products during the relevant time period as well as the dates these formulations were used. (Kroger Corr. Sep. Stat., p. 57, l. 14 - p. 75, l. 28.) Kroger represents that it has produced documents containing the recipe and formulation information requested by these interrogatories. (Harper Decl. ¶ 7.) The People argue that Kroger only provided the current formulations, but not any prior formulations during the relevant time period. The Court finds that Kroger's responses are insufficient because they do not specify the writings from which the answers may be ascertained. (See Code Civ. Proc., § 2030.230.) The Court will require that Kroger serve verified supplemental responses and specify the writings from which the answers may be derived or ascertained. (See ibid.) This specification shall be in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. (See ibid.) The Court will further require that Kroger produce the documents in its possession, custody, or control containing the recipe and formulation information requested by these interrogatories as to the entire relevant time period, from 2018 through 2024. (See SAC, ¶¶ 2, 31.) These documents may be produced pursuant to the stipulated protective order. These documents must be produced concurrently with Kroger's supplemental responses. If any information is withheld on the basis of privilege, Kroger must state any attorney-client privilege or work product objections with sufficient specificity for the People to ascertain the basis for these objections and serve a privilege log concurrently with its supplemental responses. (3) Demand for Production Nos. 1, 2, 3, 5, 7, 8, 11, 17, 18, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 62, 64, 65, 66, 67, and 68 "The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: "(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling
by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. "(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. "(3) An objection to the particular demand for inspection, copying, testing, or sampling." (Code Civ. Proc., § 2031.210, subd. (a).) "A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production." (Code Civ. Proc., § 2031.220.) "A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item." (Code Civ. Proc., § 2031.230.) "If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category." (Code Civ. Proc., § 2031.240, subd. (a).) "If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: "(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. "(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted." (Code Civ. Proc., § 2031.240, subd. (b).) "If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log." (Code Civ. Proc., § 2031.240, subd. (c)(1).) A party may move to compel a further response if the statement of compliance is incomplete, the representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) "The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand." (Id., subd. (b)(1).) As to these demands, the primary disputes are the timing of the production, whether the relevant timeframe ends in 2022 or includes 2023 and 2024, and whether the responses provide clarity to the People that the responsive documents have been searched for and produced. (Kroger Corr. Sep. Stat., p. 3, l. 10 - p. 113, l. 26.) In each of these responses, Kroger indicates that, after a reasonable search, Kroger will produce responsive non-privileged documents, if any, or similar language. (See ibid.) The People object to this language as evasive because there is no clear statement of compliance. Kroger argues that it needs more time to conduct the searches and make the requested production. The Court agrees with the People as to the substantive content of these responses but will provide Kroger additional time to make the production. As to the content of the supplemental responses, the Court will require Kroger to serve verified supplemental responses that clearly state a reasonable search for the responsive documents has been conducted. (See Code Civ. Proc., §§ 2031.220, 2031.230.) Kroger must also state that all documents or things in the demanded category that are in the possession, custody, or control of Kroger and to which no objection is being made will be included in the production. (See ibid.)
If Kroger cannot comply with any part of these demands, in whole or in part, Kroger must specify that Kroger's inability to comply is because no documents could be located after a reasonable search, the category never existed, or the category has been destroyed, lost, misplaced, stolen, or has never been, or is no longer in the possession, custody, or control of Kroger. (See Code Civ. Proc., § 2031.230.) Kroger's statement of inability to comply as to each demand, if any, shall be made with reasonable particularity so that the People can understand what is being produced and what is not being produced, and why. (See ibid.) If responsive documents are being withheld from production because of any objection, Kroger must specify with reasonable particularity what categories are withheld from production because of objection. (See Code Civ. Proc., § 2031.240.) Kroger's description of items withheld because of objection, if any, shall be made with sufficient particularity for the People to understand the basis for the objection and the scope and nature of the withheld material. (See ibid.) Any documents withheld on grounds of privilege shall be included on a privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) As to the relevant timeframe, the SAC states that the alleged misleading advertising continued, at least in part, into 2024. (See SAC, ¶ 31.) The Court will require Kroger's supplemental responses to include the time period through 2024. (See Code Civ. Proc., § 2017.010.) The documents produced pursuant to these supplemental responses shall be produced on the same date as Kroger's supplemental responses in compliance with Code of Civil Procedure section 2031.280. (4) Demand for Production Nos. 9, 10, 12, 13, 14, 15, and 16 Each of these demands pertains to Kroger's formulation or related information for the Carbmaster Products. (Kroger Corr. Sep. Stat., p. 17, l. 7 - p. 32, l. 19.) Kroger indicated a willingness to comply with these demands subject to an amendment to the protective order in this action. (See ibid.) On March 18, 2026, the Court modified the December 22, 2025, protective order in this action to address Kroger's recipes or formulations, or information derived from those recipes or formulations. (See Order Modifying Protective Order, March 18, 2026.) Based on this modification and Kroger's indication that it would produce these documents subject to the modified protective order, the Court will require Kroger to serve verified supplemental responses to these demands. The Court will further require that Kroger produce the documents in its possession, custody, or control containing the recipe and formulation information requested by these demands as to the entire relevant time period, from 2018 through 2024. (See SAC, ¶¶ 2, 31.) The documents produced pursuant to its supplemental response shall be produced on the same date as Kroger's supplemental response in compliance with Code of Civil Procedure section 2031.280. (5) Demand for Production No. 19 Demand No. 19 seeks the production of "[a]ll DOCUMENTS that show the revenue YOU generated from the sale of EACH of the CARBMASTER BREAD PRODUCTS in California during the RELEVANT TIME PERIOD. This Demand encompasses DOCUMENTS that show revenue by year or fiscal year." (Kroger Corr. Sep. Stat., p. 36, l. 24 - p. 37, l. 16.) Kroger refused to produce these documents. (See ibid.) The People argue that this revenue information is relevant to the appropriate civil penalties in this action pursuant to Business and Professions Code section 17206. (See ibid.) Kroger argues that the motion should be denied or, in the alternative, this demand should be narrowed because the concept of revenue is broader than the concept of unit sales. (See ibid.) Kroger states it has already committed to providing unit sales data through its interrogatory responses. (See ibid.) Kroger argues that the Court's February 18 order requires Kroger to provide unit sales data, broken down by product and year, through either verified responses or production of underlying business records. (See ibid.) "[W]hat constitutes a 'violation' [of the UCL and FAL] 'depends on the type of violation involved, the number of victims and the repetition of the conduct constituting the violation--in brief, the circumstances of the case." (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1251 (JTH).) "[T]he trial Court must manifestly act reasonably in light of all pertinent factors including the kind of misrepresentations or deceptions, whether they were intentionally made or the result of negligence, the circulation of the [advertisement at issue], the nature and extent of the public injury, and the size and wealth of the advertising enterprise." (Ibid.) "Violations so calculated would be reasonably related to the gain or the opportunity for gain achieved by the dissemination of the untruthful or deceptive advertisement." (Ibid.)
The Court agrees with the People that the revenue resulting from the sale of the Carbmaster Products in California is relevant to the alleged violations at issue and what, if any, remedy is needed to address these alleged violations. (See JTH, supra, Cal.App.4th at p. 1251; SAC, p. 18, ll. 10-15.) The SAC also seeks restitution. (See SAC, p. 18, l. 16.) The Court understands Kroger's argument that revenue is not a perfect indicator or the only factor the Court must consider when determining the scope of the violations, if any, and the appropriate remedy, if any. However, this information is nonetheless related to claims or defenses in this action and subject to discovery. (See Code Civ. Proc., § 2017.010.) Kroger's objections based on undue burden are overruled. The Court will require Kroger to serve a verified supplemental response to demand No. 19 and to produce any responsive documents in its possession, custody, or control (which may be produced subject to the protective order in this action). The documents produced pursuant to its supplemental response shall be produced on the same date as Kroger's supplemental response in compliance with Code of Civil Procedure section 2031.280. (6) Demand for Production No. 38 Demand No. 38 seeks the production of "[a]ll DOCUMENTS and COMMUNICATIONS RELATED TO what PERSONS were targeted for YOUR ADVERTISEMENTS of CARBMASTER BREAD PRODUCTS during the RELEVANT TIME PERIOD." (Kroger Corr. Sep. Stat., p. 73, l. 3 - p. 74, l. 11.) Kroger refused to produce these documents. (See ibid.) Kroger argues that the demand is vague as to what persons were targeted since the Carbmaster Products are mass-marketed at grocery stores and sold at retail. (See ibid.) The People argue that the information relating to who Kroger targeted for advertising is clearly relevant, admissible, and necessary to proving the People's case. (See ibid.) The Court agrees with the People. The scope of persons targeted by the advertising, if any, is relevant to whether the alleged advertising was misleading to a reasonable consumer and whether alleged misleading statements, if any, were the result of inadvertence, mistake, or intentional acts. These are among the considerations as to the scope of the violations, if any, and appropriate remedies, if any. (See JTH, supra, Cal.App.4th at p. 1251; SAC, p. 18, ll. 10-16.) The requested documents are related to claims or defenses in this action. (See Code Civ. Proc., § 2017.010.) The Court will require Kroger to serve a verified supplemental response to demand No. 19 and to produce any responsive documents in its possession, custody, or control (which may be produced subject to the protective order in this action). The documents produced pursuant to its supplemental response shall be produced on the same date as Kroger's supplemental response in compliance with Code of Civil Procedure section 2031.280. (7) Request for Admission Nos. 1 through 5 "Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., § 2033.220, subd. (a).) "Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge." (Id. subd. (b).) "If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter." (Id., subd. (c).) As to request Nos. 1 through 5, these requests ask Kroger to admit, from the date the Carbmaster products were initially sold through a specific date in 2021 or 2022, that all packaging for certain Carbmaster products contained specific statements as to the number of calories. (Kroger Corr. Sep. Stat., p. 3, l. 9 - p. 28, l. 2.) For example, request No. 1 asks Kroger to "[a]dmit that, from the date YOU initially sold CARBMASTER Hamburger Buns through September 9, 2021, ALL PACKAGING of CARBMASTER Hamburger Buns displayed 50 calories per bun." (Kroger Corr. Sep. Stat., p. 3, ll. 9-12.) Kroger denies that these representations were made during this entire timeframe on all Carbmaster packaging, but admits that a correction took place on a specific date in 2021 or 2022. (See ibid.) For example, in response to demand No. 1, "Kroger denies that from the date it initially sold CARBMASTER Hamburger Buns through September 9, 2021, ALL PACKAGING of CARBMASTER Hamburger
Buns displayed 50 calories per bun. Kroger admits a correction took place on or about September 2, 2021." (Kroger Corr. Sep. Stat., p. 4, ll. 1-4.) The People argue that Kroger's responses are evasive because they do not admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by Kroger. Kroger argues that it has responded to this request as phrased. The Court agrees with Kroger and will deny the People's motion to compel as to this request. The People have not carried their burden to demonstrate that Kroger's response was evasive. Kroger need only fairly respond to the request that was made. The Court understands that the People have further questions pertaining to the issues in this request. The People can take follow-up discovery on these issues by other discovery methods, including as to the facts and witnesses provided by Kroger in response to form interrogatory No. 17.1 (discussed below). "[T]he requests for admission mechanism is not a means by which a party obtains additional information, but rather a dispute-resolution device that eliminates the time and expense of formal proof at trial." (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353-354.) The Court will deny the People's motion to compel as to this request. (8) Request for Admission No. 6 Request No. 6 asks Kroger to "[a]dmit that, in September 2021, YOU discovered that there was a miscoded formula cell in the nutrition calculation spreadsheet for YOUR CARBMASTER BREAD PRODUCTS that caused an error in the calorie calculations for YOUR CARBMASTER BREAD PRODUCTS." (Kroger Corr. Sep. Stat., p. 28, ll. 3-6.) Subject to its objections, "Kroger admits it discovered an error in a calorie calculation relating to CARBMASTER bread and promptly corrected the error. Except as admitted, Kroger denies this request." (Kroger Corr. Sep. Stat., p. 28, ll. 15-17.) The People argue that Kroger's response is evasive. Kroger argues that it has fairly responded to this request as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to this request. (9) Request for Admission No. 7 Request No. 7 asks Kroger to "[a]dmit that YOU updated ALL PACKAGING for CARBMASTER Hamburger Buns on September 9, 2021 to display that the buns contained 100 calories per bun." (Kroger Corr. Sep. Stat., p. 31, ll. 17-19.) Subject to its objections, "Kroger denies that it updated ALL PACKAGING for CARBMASTER Hamburger Buns on September 9, 2021 to display that the buns contained 100 calories per bun. Kroger admits a correction took place on or about September 2, 2021." (Kroger Corr. Sep. Stat., p. 32, ll. 6-9.) The People argue that Kroger's response is evasive. Kroger argues that it has fairly responded to this request as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to this request. (10) Request for Admission Nos. 8 through 14 These requests ask Kroger to admit that specific changes to the Carbmaster packing were the only changes made on a specific date. For example, request No. 8 asks Kroger to "[a]dmit that the only update you made on January 17, 2022 to the calories per slice displayed on the package for CARBMASTER Wheat Bread was to change the FDA NUTRITION PANEL to display 50 rather than 30 calories." (Kroger Corr. Sep. Stat., p. 36, ll. 1-4.) Kroger responds to these requests by indicating it lacks information as to the specific changes on specific dates. For example, as to Request No. 8, Kroger states that it "lacks information to confirm or deny that the 'only' update it made on the precise date January 17, 2022 to the calories per slice displayed on the package for CARBMASTER Wheat Bread was to change the FDA NUTRITION PANEL to display 50 rather than 30 calories. Kroger admits a correction took place on or about January 10, 2022." (Kroger Corr. Sep. Stat., p. 36, ll. 17-21.) The People argue that Kroger's responses are evasive. Kroger argues that it has fairly responded to these requests as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to these requests. (11) Request for Admission No. 15 Request No. 15 asks Kroger to "[a]dmit that there is a delay of at least 21 days between the time when the labels for CARBMASTER BREAD PRODUCTS are changed and when the old labels are no longer displayed on the shelves in YOUR stores. (Kroger Corr. Sep. Stat., p. 66, ll. 13-16.) Kroger responds, "after a reasonable inquiry and to the extent information is reasonably available, Kroger cannot admit or deny this Request because it lacks sufficient information to determine whether there is a delay of at least 21 days between the time when the labels
for CARBMASTER BREAD PRODUCTS are changed and when the old labels are no longer displayed on the shelves in YOUR stores." (Kroger Corr. Sep. Stat., p. 67, ll. 3-7.) The People argue that Kroger's response is evasive. Kroger argues that it has fairly responded to this request as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to this request. (12) Request for Admission No. 16 Request No. 16 asks Kroger to "[a]dmit that YOU did not make any changes to the formulation of any CARBMASTER BREAD PRODUCTS during the RELEVANT TIME PERIOD that impacted the per-serving (per slice or per bun) calorie count." (Kroger Corr. Sep. Stat., p. 70, ll. 15-18.) Kroger responds, "[a]fter a reasonable inquiry and to the extent information is reasonably available, Kroger cannot admit or deny this Request because it lacks sufficient information to determine whether any changes to the formulation of any CARBMASTER BREAD PRODUCTS during the RELEVANT TIME PERIOD that impacted the per-serving (per slice or per bun) calorie count." (Kroger Corr. Sep. Stat., p. 71, ll. 3-7.) The People argue that Kroger's response is evasive. Kroger argues that it has fairly responded to this request as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to this request. (13) Request for Admission Nos. 17 through 22 These requests ask Kroger to admit that it failed to calculate calorie content using specific methods during a specific period of time. (Kroger Corr. Sep. Stat., p. 74, l. 15 - p. 99, l. 26.) For example, request No. 17 asks Kroger to "[a]dmit that YOU did not calculate the calorie content of any CARBMASTER BREAD PRODUCTS using bomb calorimetry data subtracting 1.25 calories per gram protein to correct for incomplete digestibility, as described in USDA Handbook No. 74 (slightly revised, 1973) p. 10, as described in 21 C.F.R. § 101.9(c)(1)(i)(E), during the period from November 1, 2018 to July 27, 2022." (Kroger Corr. Sep. Stat., p. 74, ll. 16-20.) Kroger responds, "after a reasonable inquiry and to the extent information is reasonably available, Kroger cannot admit or deny this Request because it lacks sufficient information to determine whether it calculated the calorie content of any CARBMASTER BREAD PRODUCTS using bomb calorimetry data subtracting 1.25 calories per gram protein to correct for incomplete digestibility, as described in USDA Handbook No. 74 (slightly revised, 1973) p. 10, as described in 21 C.F.R. § 101.9(c)(1)(i)(E), during the period from November 1, 2018 to July 27, 2022." (Kroger Corr. Sep. Stat., p. 75, ll. 3-9.) The People argue that Kroger's responses are evasive. Kroger argues that it has fairly responded to these requests as phrased. For the reasons stated above as to request Nos. 1-5, the Court agrees with Kroger and will deny the People's motion to compel as to these requests. (14) Request for Admission No. 23 Request No. 23 asks Kroger to "[a]dmit that YOU continued to display a photograph of the packaging of YOUR CARBMASTER Wheat Bread showing 30 calories per slice on YOUR Ralph's website until sometime after May 20, 2024." (Kroger Corr. Sep. Stat., p. 100, ll. 1-4.) Kroger admits that it inadvertently failed to serve a response to this request but states it has now served a substantive response. The People argue that this request should be deemed admitted. Kroger argues that under Code of Civil Procedure section 2033.280, subdivision (a), it has served a substantive response in advance of the hearing. Kroger's substantive response to this request states that "after a reasonable inquiry and to the extent information is reasonably available, Kroger cannot admit or deny this Request because it lacks sufficient information to determine whether, and until what date, a photograph of the packaging of CARBMASTER Wheat Bread showing 30 calories per slice was displayed on the Ralph's website." (See Harper Decl., ¶ 9, Ex. D.) The Court finds that this response substantially complies with Kroger's obligations as to this request. (See ibid.) The Court also determines that Kroger's prior failure to serve a substantive response to this request was excusable neglect. (See ibid.) For these reasons, the Court will deny the People's motion to deem the matters in this request admitted. (15) Form Interrogatory No. 17.1 The People argue that Kroger failed to respond to the categories required by form interrogatory No. 17.1 as to each request for admission that was not an admission. Kroger argues that this information is duplicative of other discovery requests and therefore unduly burdensome. The Court agrees with the People. Kroger's undue burden objections are overruled. The Court will require that Kroger serve a verified supplemental response to form interrogatory No. 17.1 as to each request for admission to which Kroger's response was not an unqualified
admission. Kroger must provide fair and complete responses, separately as to each of the categories required by form interrogatory No. 17.1, as to each of these requests for admission. (Code Civ. Proc., § 2030.220.) "Each answer, exercise of option, or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding interrogatory." (Code Civ. Proc., § 2030.210, subd. (c).) "Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., § 2030.220, subd. (a).) (16) Monetary Sanctions The People request monetary sanctions. Kroger opposes monetary sanctions. The Court has considered all the circumstances as to all three motions at issue in this hearing, including the amount of information requested by the People's discovery, the responses served by Kroger, the amendment to the protective order, and other factors. Under the circumstances before the Court, the Court declines to award monetary sanctions.
Tentative Ruling: People of the State of California v. The Kroger Co. Tentative Ruling: People of the State of California v. The Kroger Co. Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 04/22/2026 - 10:00 Nature of Proceedings The People's Motion for Issue, Evidentiary, and Monetary Sanctions Tentative Ruling For Plaintiff People of the State of California: John T. Savrnoch, Morgan S. Lucas, Office of the Santa Barbara County District Attorney; Erik Nasarenko, Andrew J. Reid, Office of the Ventura County District Attorney For Defendant The Kroger Co.: Jacob M. Harper, James H. Moon, Daniel H. Leigh, Davis Wright Tremaine LLP RULING For all reasons stated herein, on or before May 6, 2026, Kroger shall serve further verified supplemental responses to special interrogatory Nos. 2, 6, 7, and 10, and form interrogatory Nos. 12.1 and 12.6. Plaintiff People of the State of California's motion for issue, evidentiary, and monetary sanctions, is denied in all other respects. The trial date of 7/8/26 is confirmed.
Background
On May 29, 2024, Plaintiff People of the State of California (People) filed their original complaint in this action against Defendant The Kroger Co. (Kroger), an operator of retail grocery stores. The People allege that beginning on November 1, 2018, Kroger sold bread products (Carbmaster Products) in California with misleading packaging pertaining to the number of calories in these products. Between July 2024 and March 2025, the parties litigated issues pertaining to a notice of removal of this action to federal Court by Kroger, a subsequent order of remand from the federal Court to this Court, and a demurer and motion to strike by Kroger pertaining to the People's first amended complaint. On April 9, 2025, the People filed their operative second amended complaint (SAC). The SAC asserts 10 causes of action: (1) false advertising (outside of FDA panel), violation of Business and Professions Code section 17500; (2) false advertising (within FDA panel), violation of Business and Professions Code section 17500; (3) unfair competition (false advertising outside of FDA panel), violation of Business and Professions Code section 17200; (4) unfair competition (false advertising within FDA panel), violation of Business and Professions Code section 17200; (5) unfair competition (false advertising by enticement outside of FDA panel), violation of Business and Professions Code section 17200; (6) unfair competition (false advertising by enticement within FDA panel), violation of Business and Professions Code section 17200; (7) unfair competition (misbranded food outside of
FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (8) unfair competition (misbranded food within FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (9) unfair competition (untrue or misleading advertising outside of FDA panel), violation of Business and Professions Code section 17200; and (10) unfair competition (untrue or misleading advertising within FDA panel), violation of Business and Professions Code section 17200. As alleged in the SAC: The packaging for Carbmaster Products contained false and misleading information as to the number of calories contained in a serving. (SAC, ¶¶ 13-36.) "For example, on the front packaging and on the FDA Nutrition Facts panel, [Kroger] advertised that its CARBMASTER Wheat Bread contained only 30 calories. In reality, CARBMASTER Wheat Bread contained 50 calories. In another instance, [Kroger] advertised on the front packaging and the FDA Nutrition Facts panel that its CARBMASTER Hamburger Buns contained only 50 calories, when the buns actually contained 100 calories." (SAC, ¶ 18.) In 2021 or 2022, Kroger corrected the FDA nutrition facts on the back of the packaging, but continued to underrepresent the number of calories on the front of the packaging. (SAC, ¶¶ 19-24.) The People seek to recover civil penalties pursuant to Business and Professions Code sections 17200 through 17206, 17500, 17535, and 17536, in the amount of $2,500 for each violation, and to obtain a permanent injunction. (SAC, ¶¶ 32-96.) On August 22, 2025, Kroger filed its operative first amended answer to the SAC, generally denying the allegations in the SAC and asserting 12 affirmative defenses. On February 18, 2026, the Court granted in part (February 18 Order) the People's motion to compel further responses to certain special interrogatories (SIs) and form interrogatories (FIs). The supplemental responses were due on or before March 11, 2026. No sanctions were imposed in the February 18 Order. On March 30, 2026, the People filed the motion at issue in this hearing seeking issue, evidentiary, and monetary sanctions based on Kroger's alleged failure to comply with the February 18 Order. This motion pertains to SI Nos. 1, 2, 6, 7, 10 and 13, and FI Nos. 12.1, 12.6, 15.1(b), and 16.1. This motion is opposed. Analysis (1) Discovery Standards for Interrogatories "A trial Court must be mindful of the Legislature's preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery ...." (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) "Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property." (Code Civ. Proc., § 2017.010.) "The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: "(1) An answer containing the information sought to be discovered. "(2) An exercise of the party's option to produce writings. "(3) An objection to the particular interrogatory." (Code Civ. Proc., § 2030.210, subd. (a).) "Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., § 2030.220, subd. (a).) "If an interrogatory cannot be answered complete, it shall be answered to the extent possible." (Id., subd. (b).) "If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Id., subd. (c).) "If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract,
audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them." (Code Civ. Proc., § 2030.230.) A party may move for an order compelling further responses to interrogatories if an answer is evasive or incomplete or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) (2) Discovery Standards for Issue and Evidentiary Sanctions "California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. [Citations.] A Court has broad discretion in selecting the appropriate penalty .... [¶] Despite this broad discretion, the Courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. [Citation.] A trial Court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights. [Citations.] The trial Court should select a sanction that is 'tailor[ed] ... to the harm caused by the withheld discovery.' [Citation.] '[S]anctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.' [¶] The discovery statutes thus 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' " (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez).) (3) SI No. 1 SI No. 1 requests that Kroger identify its California stores that sold Carbmaster Products from November 1, 2018, to the present. In the February 18 Order, the Court ordered that "Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger after good faith efforts or (b) exercise Kroger's option to produce and specify the writings from which the answer may be ascertained. [Citation.] This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. [Citation.]" (February 18 Order.) Kroger supplemented its response to SI No. 1, indicating that it has conducted a reasonable search of its records but does not have this specific information. Kroger did provide some responsive information and "identified division 703 (Ralphs Grocery Co.) and division 704 (Food-4-Less and Foods Co.) stores as having generally sold or generally [selling] Carbmaster products during the relevant time period." (Kroger's Response to People's Separate Statement [Sep. Stat.], p. 3, ll. 17-26.) Kroger produced documents it says are sufficient to identify California stores within these divisions and referenced the bates ranges for these documents. (Ibid.) The People argue this response is inadequate because the requested information can be discerned from records of a Kroger-owned bakery that distributes the Carbmaster Products. (Sep. Stat., p. 5, ll. 4-6.) The People ask for "[a]n issue sanction against [Kroger], finding that Carbmaster Bread Products were sold at all California stores in [Kroger's] Ralphs, Food-4-Less, and Foods Co. divisions during the relevant time period (defined as November 2018 to the present); or in the alternative, an evidence sanction precluding Defendant from introducing evidence that any of the Ralphs, Food-4-Less, and Foods Co. stores in California did not sell Carbmaster Bread Products during the relevant time period." (Motion, p. 1, ll. 8-13.) Kroger argues that it does not have the information requested by the People and has responded in good faith. (Sep. Stat., p. 6, ll. 9-21.) According to Kroger, products supplied from a Kroger-owned bakery does not mean Kroger maintains or can reconstruct store-level sales data in this manner, particularly for historical periods. (Ibid.) According to Kroger, distribution data, production data, and retail sales data are distinct. (Ibid.) The Court will deny the request for sanctions as to SI No. 1 on the ground that the People did not establish Kroger's failure to comply with the February 18 Order. Kroger appears to have generally identified its California
stores that sold these products during the relevant time period. The People can take follow-up discovery if they require additional details as to these stores. Further, no prior sanctions were imposed as to this interrogatory. (See Lopez, supra, 246 Cal.App.4th at p. 604.) (4) SI No. 2 SI No. 2 asks for the total number of units of Carbmaster Products sold in California from November 1, 2018, to the present, broken down by product and by year. The February 18 Order required that "Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger after good faith efforts or (b) exercise Kroger's option to produce and specify the writings from which the answer may be ascertained. [Citation.] This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them." (February 18 Order.) Kroger supplemented its response and produced business records it says are "sufficient to identify the number of units of relevant CARBMASTER products sold in California ... for the period 2022 through the present[,]" but "[i]nformation regarding units of Carbmaster Bread Products sold during the period before 2022 is in the possession, custody, and control of third parties and not within Kroger's possession, custody, and control." (Sep. Stat., p. 8, ll. 13-21.) The People argue that Kroger's supplemental response does not comply with Kroger's obligations because it does not state that Kroger made reasonable efforts to obtain this information from third parties. (Sep. Stat., p. 9, ll. 24-26.) The Court agrees with the People and will require that Kroger supplement its response as discussed below and confirm that good faith efforts have been made to obtain the responsive information. However, the Court declines to impose issue or evidentiary sanctions and determines that a further supplemental response is the appropriate incremental approach. (See Lopez, supra, 246 Cal.App.4th at p. 604.) (5) SI No. 6 SI No. 6 requests the total number of units of Carbmaster Products sold in California during the timeframe when the FDA nutrition panel did not match the front packaging, broken down by product. In the February 18 Order, the Court ordered that "Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger after good faith efforts or (b) exercise Kroger's option to produce and specify the writings from which the answer may be ascertained. [Citation.] This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. [Citation.] Kroger must state any privilege objections with sufficient specificity for the People to ascertain the basis for these objections and any information withheld. Kroger's objections are otherwise overruled." (February 18 Order.) Kroger supplemented its response to SI No. 6, stating that "Kroger has conducted a reasonable search ... and does not have records showing specific information regarding total number of units of Carbmaster bread sold in the State of California during the time period when the calorie total on the FDA nutrition panel did not match the calorie total advertised on the front packaging of Carbmaster bread products." (Sep. Stat., p. 12, l. 27 - p. 13, l. 4.) The People argue that this response is insufficient because Kroger did not say whether it could derive the requested information from records or say that it made any inquiry that could help it obtain the information. (Sep. Stat., p. 14, ll. 5-17.) The People argue Kroger did not make any attempt to provide a partial answer. (Ibid.) The People seek an "issue sanction establishing that [Kroger] sold the following numbers of each of its Carbmaster Products per week from the time the products were introduced until the date Defendant provided sales records (approximately February 2022): 2962 units of Carbmaster Wheat Bread; 2597 units of Carbmaster White Bread; 2176 units of Carbmaster Multiseed Bread; 1498 units of Hamburger Buns; and 2191 units of hotdog buns." (Motion, p. 1, ll. 14-20.) The Court will deny the People's request for issue or evidence sanctions on the ground that the People did not
carry their burden to demonstrate that Kroger failed to comply with the February 18 Order. The Court does agree, however, that Kroger must make reasonable efforts to obtain the responsive information as required by the Code of Civil Procedure. The Court will require that Kroger serve a further supplemental response to this interrogatory as set forth below, confirming that such reasonable efforts have been made. (6) SI Nos. 7 and 10 SI No. 7 requests the identity of individuals responsible for creating or verifying the accuracy of the information on the packaging for the Carbmaster Products. (Sep. Stat., p. 17, ll. 12-15.) SI No. 10 requests the identity and titles of the persons who identified the discrepancy on the packaging for the Carbmaster Products during the relevant time period. (Sep. Stat., p. 22, ll. 11-15.) In the February 18 Order, the Court ordered further responses. (February 18 Order.) In its supplemental responses, Kroger asserted privilege objections and identified two Kroger-affiliated witnesses. (Sep. Stat., p. 18, ll. 1-2, p. 22, l. 25 - p. 23, l. 1.) The People argue this response is inaccurate because these two individuals did not have such knowledge. (Sep. Stat., p. 18, l. 24 - p. 19, l. 16.) However, on March 27, 2026, the People deposed an individual who was involved in reviewing the information on the front packaging of Carbmaster Products, but who was not identified in response to SI No. 7. (Sep. Stat., p. 19, ll. 17-23.) According to the deponent, individuals in several other departments within Kroger were responsible for verifying the information listed on the front packaging. (Ibid.) According to the People, the deponent further indicated that information about who approved the information listed on the front packaging was accessible to her within Kroger's internal database. (Ibid.) The People request an issue sanction establishing that Kroger knew or should have known about the calorie discrepancy on its Carbmaster Products during the time when the calorie value advertised on the front and side packaging did not match the calorie information advertised on the FDA nutrition facts panel. (Motion, p. 1, ll. 21-26.) In the alternative, the People request an evidence sanction preventing Defendant from introducing evidence that it was unaware of this calorie discrepancy. (Ibid.) Kroger argues that its responses were made in good faith. (Sep. Stat., p. 20, ll. 16-28.) Kroger argues it identified individuals based on the information reasonably available at the time and has continued to develop that information through ongoing discovery, including depositions and document production. (Ibid.) Kroger argues that the fact that additional individuals were identified through deposition testimony or that testimony clarified roles within Kroger does not render Kroger's prior response improper. (Ibid.) Rather, according to Kroger, this reflects the ordinary progression of discovery. (Ibid.) The Court will deny the People's request for issue or evidence sanction on the grounds that the People did not establish that Kroger violated the February 18 Order and no prior sanctions were imposed by this order. However, it does appear that further information has come to light during deposition testimony. The Court will require that Kroger serve a further supplemental responses to interrogatory Nos. 7 and 10 as set forth below. (7) SI No. 13 SI No. 13 requests the date Kroger began selling the Carbmaster Products. In the February 18 Order, the Court ordered further responses. Kroger supplemented its response and stated that it began selling Carbmaster Products in approximately July 2021. (Sep. Stat., p. 27, ll. 21-22.) The People argue this information is inaccurate. (Sep. Stat., p. 28, ll. 21-28.) This appears to be a factual dispute. The Court declines to address this dispute by way of a discovery ruling. The Court will deny the People's motion as to SI No.
13. The People can take follow-up discovery on this disputed issue. (8) FI No. 12.1 FI No. 12.1 asks for the names, addresses, and telephone numbers of witnesses of the incident. In the February 18 Order, the Court ordered further responses. In its supplemental response, Kroger identified four Kroger-affiliated witnesses and four witnesses affiliated with the People. The People argue that Kroger was required to identify consumers who complained about the calorie discrepancy at issue in the action. (Sep. Stat., p. 34, ll. 11-17.) Kroger argues it has provided customer comment records regarding Carbmaster Products, but that this information is not responsive to this interrogatory. (Sep. Stat., p. 35, ll. 7-9.) The Court will deny the People's motion for issue or evidentiary sanctions as to FI No. 12.1, but require Kroger to provide a further supplemental response to FI No. 12.1 as to the customer comments it previously produced.
(9) FI No. 12.6 FI No. 12.6 asks information about any report concerning the incident. Kroger agreed to produce the history of its labeling in response to this interrogatory. Similar to FI No. 12.1, the People argue that Kroger was required to produce the required information as to consumer complaints. (Sep. Stat., p. 39, ll. 5-17.) The Court will deny the People's motion for issue or evidentiary sanctions as to FI No. 12.6, but require Kroger to provide a further supplemental response to FI No. 12.6 as to the customer comments it previously produced. (10) FI No. 15.1(b) FI No. 15.1(b) asks for persons with knowledge pertaining to Kroger's denials or affirmative defenses. Kroger identified eight persons in its supplemental response. (Sep. Stat., p. 43, ll. 5-16.) The People request an evidentiary sanction limiting the testimony that Kroger can offer at trial to the persons identified in response to this interrogatory. (Motion, p. 2, ll. 10-12.) The Court declines to address the scope of trial witnesses in the context of a discovery motion disputing whether a discovery response is fulsome and accurate. The Court finds that this is not an appropriate use of a discovery sanction and will deny the motion as to FI No. 15.1(b). (11) FI No. 16.1 FI No. 16.1 asks information about persons other than Kroger who contributed to the injuries at issue. Kroger indicated in its supplemental response that it does not make such a contention. The People argue this this response is inconsistent with Kroger's affirmative defense Nos. 4 and 5 pertaining to contributory fault. The People ask that the Court strike these defenses or prohibit Kroger from offering evidence of contributory fault. (Motion, p. 2, ll. 13-16.) The Court declines to address the scope of defenses at trial in the context of a discovery motion disputing whether a discovery response is fulsome and accurate. The Court finds that this is not an appropriate use of a discovery sanction and will deny the motion as to FI No. 16.1. (12) Further Supplemental Responses to SI Nos. 2, 6, 7, and 10, and FI Nos. 12.1 and 12.6 The Court will require that Kroger serve a further verified supplemental response to these interrogatories confirming that Kroger has provided the requested information to the extent possible based on the information reasonably available to Kroger after good faith efforts. The supplemental response shall be as complete and straightforward as the information reasonably available to Kroger permits. If the interrogatory cannot be answered complete, it shall be answered to the extent possible. If Kroger does not have personal knowledge sufficient to respond fully to this interrogatory, Kroger shall so state but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the People.
Tentative Ruling: People of the State of California v. The Kroger Co Tentative Ruling: People of the State of California v. The Kroger Co Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 05/06/2026 - 10:00 Nature of Proceedings The People's Motion for Issue, Evidentiary, and Monetary Sanctions Re PMQ Deposition Tentative Ruling For Plaintiff People of the State of California: John T. Savrnoch, Morgan S. Lucas, Office of the Santa Barbara County District Attorney; Erik Nasarenko, Andrew J. Reid, Office of the Ventura County District Attorney For Defendant The Kroger Co.: Jacob M. Harper, James H. Moon, Daniel H. Leigh, Davis Wright Tremaine LLP
RULING For all reasons stated herein, Kroger shall produce one or more witnesses most qualified to testify on topic Nos. 2, 3, 7, and the stipulated topic in the March 12, 2026, ex parte order. The additional PMQ deposition shall take place on or before May 29, 2026, at the office of the Santa Barbara County District Attorney, unless otherwise agreed by the parties. If the parties cannot agree on a specific date, the parties may appear ex parte and the court will set one. On or before May 15, 2026, Kroger shall serve a verification that the product formulation documents required herein and in the March 12, 2026, ex parte order have been produced. Monetary sanctions in the amount of $12,750 are awarded in favor of plaintiff the People of the State of California, payable by defendant The Kroger Co. on or before June 5, 2026. The motion is denied in all other respects.
Background
On May 29, 2024, plaintiff People of the State of California (People) filed their original complaint in this action against defendant The Kroger Co. (Kroger), an operator of retail grocery stores. The People allege that beginning on November 1, 2018, Kroger sold bread products (Carbmaster Products) in California with misleading packaging pertaining to the number of calories in these products. Between July 2024 and March 2025, the parties litigated issues pertaining to a notice of removal of this action to federal court by Kroger, a subsequent order of remand from the federal court to this court, and a demurer and motion to strike by Kroger pertaining to the People's first amended complaint. On April 9, 2025, the People filed their operative second amended complaint (SAC). The SAC asserts 10 causes of action: (1) false advertising (outside of FDA panel), violation of Business and Professions Code section 17500; (2) false advertising (within FDA panel), violation of Business and Professions Code section 17500; (3) unfair competition (false advertising outside of FDA panel), violation of Business and Professions Code section 17200; (4) unfair competition (false advertising within FDA panel), violation of Business and Professions Code section 17200; (5) unfair competition (false advertising by enticement outside of FDA panel), violation of Business and Professions Code section 17200; (6) unfair competition (false advertising by enticement within FDA panel), violation of Business and Professions Code section 17200; (7) unfair competition (misbranded food outside of FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (8) unfair competition (misbranded food within FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (9) unfair competition (untrue or misleading advertising outside of FDA panel), violation of Business and Professions Code section 17200; and (10) unfair competition (untrue or misleading advertising within FDA panel), violation of Business and Professions Code section 17200. As alleged in the SAC: The packaging for Carbmaster Products contained false and misleading information as to the number of calories contained in a serving. (SAC, ¶¶ 13-36.) "For example, on the front packaging and on the FDA Nutrition Facts panel, [Kroger] advertised that its CARBMASTER Wheat Bread contained only 30 calories. In reality, CARBMASTER Wheat Bread contained 50 calories. In another instance, [Kroger] advertised on the front packaging and the FDA Nutrition Facts panel that its CARBMASTER Hamburger Buns contained only 50 calories, when the buns actually contained 100 calories." (SAC, ¶ 18.) In 2021 or 2022, Kroger corrected the FDA nutrition facts on the back of the packaging, but continued to underrepresent the number of calories on the front of the packaging. (SAC, ¶¶ 19-24.) The People seek to recover civil penalties pursuant to Business and Professions Code sections 17200 through 17206, 17500, 17535, and 17536, in the amount of $2,500 for each violation, and to obtain a permanent injunction. (SAC, ¶¶ 32-96.) On August 22, 2025, Kroger filed its operative first amended answer to the SAC, generally denying the allegations in the SAC and asserting 12 affirmative defenses. On December 19, 2025, the People served a deposition notice of Kroger's person most qualified (PMQ) as to specified topics to take place on January 21, 2026. (Lucas Decl., ¶ 2, Ex. 1.) On January 16, 2026, Kroger filed a motion to quash this PMQ deposition notice or in the alternative for a protective order. On January 22, 2026, the People filed a motion to compel the Kroger PMQ deposition due to Kroger's failure to appear on the initially noticed date of January 21.
On January 27, 2026, the court entered an order after an ex parte hearing and advanced the hearing on Kroger's motion to February 18, 2026. The court also stayed the Kroger PMQ deposition pending the February 18 hearing on Kroger's motion. On February 18, 2026, the court ruled on Kroger's motion for protective order and the People's motion to compel pertaining to the Kroger PMQ deposition (February 18 Order). The court granted Kroger's motion for protective order in part, modifying the deposition topics, but also ordered that this deposition move forward within a specified time period. The court ordered that the Kroger PMQ deposition take place on or before March 25, 2026, on 11 deposition topics as modified in the February 18 Order. Following the February 18 Order, the People initially noticed the Kroger PMQ deposition to take place on March 12, 2026. (Lucas Decl., ¶ 6, Ex. 3.) Kroger had previously offered March 12 as a date for this deposition and the People accepted this date. (Id., Ex. 6.) On March 9, 2026, Kroger served objections that the PMQ deposition could not move forward as scheduled on March 12. (Lucas Decl., ¶ 7, Ex. 4.) Kroger's objections stated that the anticipated PMQ witness was on maternity leave and could not testify in person on March 12. (Ibid.) As stated in Kroger's objections, Kroger anticipated providing an alternative date for the Kroger PMQ deposition by March 16, but did not offer further specifics. (Ibid.) On March 10, 2026, the parties appeared before the court on a separate ex parte matter. (Lucas Decl., ¶ 8.) The ongoing Kroger PMQ deposition issue was raised to the court. (Ibid.) After a discussion with the parties, the court set another ex parte hearing on March 12, 2026, to address the ongoing Kroger PMQ deposition. (Ibid.; Rockenstein Decl., p. 5., l. 13 - p. 6., l. 17.) After the March 10 ex parte hearing, the parties conferred and agreed that the Kroger PMQ deposition would now take place on March 24, 2026, at the Santa Barbara District Attorney's Office. (Lucas Decl., ¶ 10.) The parties also agreed to an additional PMQ topic and the production by Kroger of certain documents by March 17. (Ibid.) On March 12, 2026, the court issued an order after an ex parte hearing (March 12 Order) ordering Kroger to make its PMQ available for deposition on March 24, 2026, as to all topics listed in the court's February 18 Order. (March 12 Order, ¶ (1).) Moreover, the court ordered that the PMQ deposition will include the additional topic of "all recipe formulations between November 2018 and the present for Kroger Carbmaster White Bread, Wheat Bread, Multiseed Bread, Hamburger Buns, and Hotdog buns, and any changes to the recipe." (Id., ¶ (1)(b).) In addition, Kroger was ordered to "serve upon the People the recipe information for Carbmaster bread products on March 17, 2026." (Id., ¶ (1)(a).) On March 17, 2026, Kroger produced documents pertaining to the formulation of Carbmaster Products. (Lucas Decl., ¶ 12, Exs. 8-16.) These documents included nutrient information as to some Carbmaster Products and ingredient information as to others. (Ibid.) On March 24, 2026, the Kroger PMQ deposition took place. (Lucas Decl., ¶¶ 13-14, Ex. 18.) Kroger produced Joel Payne (Dr. Payne), a Kroger product development manager as the PMQ witness on all topics. (Ibid.) This was a different witness than anticipated by the People. (Ibid.) On April 13, 2026, the People filed a motion seeking issue, evidentiary, and monetary sanctions, arguing that Kroger violated the February 18 Order and March 12 Order to produce a person most qualified (PMQ) as to topic No. 2 (marketing and advertisement of Kroger's Carbmaster Products sold in California from November 1, 2018, to the present), topic No. 3 (supply and distribution chain for Kroger Carbmaster Products sold in California from November 1, 2018, to the present), and topic No. 7 (Any changes made to the website displays as to the calorie content of Kroger Carbmaster Products from November 1, 2018, to the present [including but not limited to Ralphs.com, food4less.com, fredmeyer.com, and foodsco.net]). As argued by the People, the PMQ witness produced by Kroger on March 24 had little or no knowledge of these topics. The People also argue that the March 17 production of product formulation documents did not comply with the March 12 Order and the People were unable to take a proper PMQ deposition on these issues. On April 23, 2026, Kroger filed an opposition to the People's motion. Kroger argues that the PMQ witness was qualified and answered questions to the best of his ability. Kroger argues it complied with the requirement that it
produce a PMQ witness who is most qualified to testify to the extent the information is known or reasonably available to Kroger. Kroger argues that the PMQ witness, Dr. Payne, sat for deposition for the entire 11-hour timeframe set by the court despite his advanced age of 74 and other job responsibilities. Kroger argues Dr. Payne testified based on information gathered from multiple internal sources, reflecting a reasonable investigation and providing the information available to Kroger. Kroger argues that the People are not entitled to sweeping evidentiary or issue sanctions on key factual issues under these circumstances. Kroger argues that the People are inappropriately requesting sanctions that, in substance, are dispositive, when no prior monetary sanctions were issued against Kroger. Kroger argues the requested sanctions are unjust and disproportionate to the alleged misconduct. Kroger argues that the People are misusing discovery motion practice to establish elements of the case they cannot otherwise prove where lesser remedies would be effective to remedy any perceived prejudice. Analysis (1) Applicable Discovery Standards "If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent." (Code Civ. Proc., § 2025.230.) "If ... [a] party-affiliated deponent ... fails to obey an order compelling ... testimony ... the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under ... against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction ... against the party with whom that party deponent is affiliated, and in favor of any party who ... attended in the expectation that the deponent's testimony would be taken pursuant to that order." (Code Civ. Proc., § 2025.450, subd. (h).) "California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. [Citations.] A court has broad discretion in selecting the appropriate penalty .... [¶] Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. [Citation.] A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights. [Citations.] The trial court should select a sanction that is 'tailor[ed] ... to the harm caused by the withheld discovery.' [Citation.] '[S]anctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.' [¶] The discovery statutes thus 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' " (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez).) (2) PMQ Topic No. 2 Required by the February 18 Order and March 12 Order Topic No. 2 pertains to marketing and advertisement of Kroger's Carbmaster Products sold in California from November 1, 2018, to the present. (February 18 Order, sect. 21.) The People argue that Kroger's PMQ witness, Dr. Payne, did not have knowledge on key issues including who at Kroger decided to display calorie information on the front packaging of Carbmaster Products, where the calorie information displayed on Kroger's advertising originated, and if advertisements Kroger provided in discovery were ever used. The People argue that Dr. Payne repeatedly referred to another Kroger employee, Kris Durstock, who would be more knowledgeable on these subjects. Yet, as the People argue, Dr. Payne never spoke to Mr. Durstock in preparation for the deposition. As argued by the People, Dr. Payne was not a person most qualified to testify on topic No. 2 and Kroger therefore violated the February 18 Order and March 12 Order. The court has reviewed the deposition testimony cited by the People in support of their arguments, including pages 27, 29, 30, 31, 160 through 166, 222, 223, 224, 274, 275, 280, 297, and 317 through 320. Dr. Payne testified that "[m]y knowledge of marketing ... is very indirect because I deal with the technical side of the problems, and what I know is based on discussions with other people." (Lucas Decl., Ex. 18 at p. 29, ll. 5-9.) Dr. Payne indicated he did not know who created a hot dog bun "shelf talker" marketing statement prominently
referencing 50 calories or who generated these marketing statement. (Lucas Decl., Ex. 18 at pp. 163, ll. 6-15, 164, ll. 12-14, 165, ll. 7-10.) The witness indicated that Mr. Durstock would be a "good source of information for this," and that "I really think we ought to go to Kris Durstock as the next source of information for this." (Id. at pp. 166, ll. 7-11, 167, ll. 3-6.) According to Dr. Payne, Mr. Durstock was "the individual who used to be the senior category strategy manager for bread and buns at that time." (Id. at p. 223, ll. 2-6.) Dr. Payne indicated that Jenny Betz would know more about a "large colorful-looking Kroger BCC support Carbmaster document." (Id. at p. 317, l. 12 - 318, l. 10.) Dr. Payne testified that Jennifer Betz or Mr. Durstock would be in a better position to testify to similar advertisements. (Ibid.) Mr. Durstock, who was at one point a senior strategy manager for baked breads and buns for Kroger, was referenced by Dr. Payne as someone with more knowledge of historical marketing of Carbmaster Products. (Id. at pp. 30, l. 14, 164, l. 17, 166, l. 10, 167, l. 3, 223, l. 4.) The court has also reviewed the testimony cited by Kroger in its opposition, including pages 21 through 25, 30 through 53, 163, 164, 231, 308, and 309. Dr. Payne testified that he oversees a product development team at Kroger that includes one or more people who helped formulate Carbmaster Products. (Lucas Decl., Ex. 18 at p. 17., l. 23 - p. 23., l. 15.) Dr. Payne testified that he had discussions in preparation for the deposition, including with Hillary Hall, Jenny Betz, Laura Smith, and Joe Evans. (Id. at pp. 27, ll. 15-24, 31, ll. 4-13.) Overall, it appears Dr. Payne carried out significant investigation as to some topics set forth in the February 18 Order, but obtained limited knowledge of some of the key marketing issues such as the origin of marketing statements about calorie content and changes to such statements over the relevant time period. (Id. at pp. 23, 30-33, 37-43, 48-49, 52-53.) After reviewing the testimony cited by the parties, the court agrees in part with the People. The PMQ witness, Dr. Payne, testified that other individuals, Kris Durstock and Jennifer Betz, were more knowledgeable on marketing statements about calorie content for the timeframe in question. These are key disputed issues in this action. Moreover, Dr. Payne indicated he did not speak with Mr. Durstock, a key source of information, in preparation for the deposition. Based on these circumstances, the court will order that Kroger produce a PMQ witness who is most qualified to testify about Topic No. 2, including any marketing statements about calories in Carbmaster Products before Kroger determined there may be a discrepancy as to calorie content and after any discrepancy was discovered. Kroger may produce more than one PMQ witness if necessary to cover these issues, but Kroger must "designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent." (Code Civ. Proc., § 2025.230.) Based on the testimony reviewed by the court, Kroger has not yet done so. (3) PMQ Topic No. 3 Required by the February 18 Order and March 12 Order Topic No. 3 pertains to supply and distribution chain for Carbmaster Products sold in California from November 1, 2018, to the present. (February 18 Order, sect. 21.) The People argue that Dr. Payne lacked direct knowledge about the topic and only spoke with one person, Laura Smith, to educate himself about it. As argued by the People, Dr. Payne did not speak with anyone from the Kroger bakery that makes these products. According to the People, Dr. Payne could not provide a consistent or straightforward answer to questions about when Kroger began selling Carbmaster Products in California or the California stores distributing those Products. The court has reviewed the deposition testimony cited by the People in support of their arguments, including pages 28, 29, 30, 47, 67, 261, 306, 308, 311, 312, 314, and 315, as well as the testimony cited by Kroger. Dr. Payne testified that "[m]y knowledge of ... distribution is very indirect because I deal with the technical side of the problems, and what I know is based on discussions with other people." (Lucas Decl., Ex. 18 at p. 29, ll. 5-9.) Dr. Payne spoke with another person, Laura Smith, a manager for a department called "Our Brands," who is "more directly affiliated with the supply chain." (Id. at p. 30, ll. 6-15.) Dr. Payne indicated Mr. Durstock had that role before Ms. Smith but Dr. Payne did not speak with Mr. Durstock in preparation for the deposition. (Ibid.) Dr. Payne indicated Ms. Smith and Mr. Durstock may have knowledge about which Kroger-owned stores in California carried Carbmaster Bread Products. (Id. at p. 306, ll. 5-16.) The court agrees with the People that the PMQ witness produced by Kroger was not most qualified to testify about the distribution chain for Carbmaster Products sold in California and that others at Kroger appear more qualified. The court will order that Kroger produce one or more PMQ witnesses who are most qualified to testify
about Topic No. 3, including which Kroger stores or groups of stores distributed Carbmaster Products in California during the relevant time periods. (See Code Civ. Proc., § 2025.230.) (4) PMQ Topic No. 7 Required by the February 18 Order and March 12 Order Topic No. 7 pertains to any changes made to the website displays as to the calorie content of Kroger Carbmaster Products from November 1, 2018, to the present (including but not limited to Ralphs.com, food4less.com, fredmeyer.com, and foodsco.net). (February 18 Order, sect. 21.) The People argue that Dr. Payne could not answer basic questions about Kroger's websites and openly stated he lacked direct knowledge of the topic. According to the People, he did not know which websites Kroger operates in California or which Kroger department manages Kroger's websites, and he did not have knowledge about changes Kroger made to its websites displaying Carbmaster Products. According to the People, he stated that he only spoke with one person, Jennifer Betz, to educate himself about it, later admitting that Betz was uninvolved with the website until 2024. The court has reviewed the deposition testimony cited by the People in support of their arguments, including pages 37, 38, 163, 164, 224, 306, 307, and 308, and the testimony cited by Kroger. Dr. Payne testified he did not know what websites Kroger operated that are linked with its stores in California to sell products to consumers. (Lucas Decl., Ex. 18 at p. 306, ll. 18-21.) Dr. Payne testified that he did not have knowledge of the individuals that are responsible for creating Kroger websites targeting California consumers or managing how Kroger-branded products would appear on these websites. (Id. at p. 306, l. 22 - p. 307, l. 15.) Dr. Payne testified that Ms. Betz was a person to speak with on these issues as to 2024 or after, but he did not know who would have this information as to the period prior to 2024. (Id. at p. 307, ll. 16-20,) Dr. Payne testified that he did not know when photos of products were uploaded to various Kroger websites. (Id. at p. 307, l. 22 - p. 308, l. 5.) The court agrees with the People that the Dr. Payne was not a person most qualified to testify as to topic No.
7. The court will order that Kroger produce one or more PMQ witnesses who are most qualified to testify about Topic No. 7, including the changes made to websites targeting California consumers during the relevant time periods. (See Code Civ. Proc., § 2025.230.) (4) Product Formulation Data Required by the March 12 Order The People argue that the product formulation data provided by Kroger on March 17, 2026, is insufficient. The People argue that the nutrient information produced by Kroger does not contain the quantities of the ingredients. Moreover, the People argue that the ingredient information produced by Kroger contain components consisting of compilations of individual ingredients. According to the People, the formulation data produced by Kroger does not consist of all the complete recipe formulation of Carbmaster Products during the relevant time period. The People also argue that the historical formulations are not included. The People argue that the formulation data is needed to ascertain whether the Carbmaster Products were misbranded as to the number of calories. The court agrees in part with the People. It appears that Kroger has produced some formulation data, but that Kroger's efforts are incomplete. It is not clear that the parties had the same understanding of the stipulation. The court notes that some of the details argued by the parties are not included in the stipulated language in the March 12 Order. The court will require that Kroger serve a verified response indicating that it has produced "all the recipe formulations in its custody or control between November 2018 and the present for Kroger Carbmaster White Bread, Wheat Bread, Multiseed Bread, Hamburger Buns, and Hotdog buns, and any changes to the recipe." This production shall include the specific ingredients and their quantities, to the extent Kroger has such documentation within Kroger's custody or control. Kroger must also produce a witness who is most qualified to testify to these issues, including its good faith search for these materials. (5) Requested Sanctions The court finds that Dr. Payne was not the person most qualified as to topic Nos. 2, 3, and 7, and Kroger did not affirmatively offer to produce another PMQ witness as to these topics to ensure compliance with the February 18 Order and March 12 Order. It was Kroger's obligation to fully comply with these orders. The governing statue requires multiple witnesses, if needed to cover the PMQ topics. (See Code Civ. Proc., § 2025.230 ["those of its officers, directors, managing agents, employees, or agents who are most qualified ..."].) The court finds that monetary sanctions are appropriate based on Kroger's failure to produce a witness who is