People of the State of California vs The Kroger Co

Case Number

24CV03007

Case Type

Hearing Date / Time

Wed, 11/12/2025 - 10:00

Nature of Proceedings

Demurrer

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

For the reasons set forth herein, the demurrer of Plaintiff People of the State of California to the first amended answer of Defendant The Kroger Co. is overruled in its entirety.

Background

On May 29, 2024, Plaintiff People of the State of California (People or Plaintiff) filed their original complaint in this action against Defendant The Kroger Co. (Kroger). The complaint alleged that Kroger, an operator of retail grocery stores, sold certain bread items advertised with misleading information.

On July 1, 2024, Kroger filed its notice of removal to federal Court. On October 9, the federal Court issued it order of remand, which was filed in this Court on October 18.

On December 16, 2024, the People filed their first amended complaint (FAC). The FAC asserted 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.

On January 15, 2025, Kroger filed its demurrer to the second, fourth, fifth, sixth, eighth, and tenth causes of action of the FAC. Kroger concurrently filed a motion to strike portions of the FAC seeking injunctive relief.

On March 26, 2025, the Court sustained the demurrer as to the second, fourth, sixth, eighth, and tenth causes of action of the FAC with leave to amend, overruled the demurrer as to the fifth cause of action, and denied the motion to strike.

On April 9, 2025, the People filed their second amended complaint (SAC) asserting the same ten causes of action.

On May 13, 2025, Kroger filed its demurrer to the second, fourth, sixth, eighth, and tenth cause of action of the SAC.

On July 9, 2025, the Court overruled Kroger’s demurrer in its entirety.

On July 29, 2025, Kroger filed its initial answer to the SAC, generally denying the allegations of the SAC and asserting 19 affirmative defenses.

On August 22, 2025, Kroger filed its first amended answer (FAA) to the SAC. The FAA generally denies the allegations of the SAC and asserts 12 affirmative defenses: (1) preemption (to claims two, four, six, eight, ten); (2) primary jurisdiction (to claims two, four, six, eight, ten); (3) compliance with laws/ safe harbor (to claims two, four, six, eight, ten); (4) third parties (to all claims); (5) causation (to all claims); (6) statute of limitations (to all claims); (7) laches (to all claims); (8) mootness/ no ongoing controversy (to all claims); (9) void for vagueness (to claims five and six); (10) no right to injunctive relief (to all claims); (11) no right to excessive penalties (to all claims); and (12) no right to restitution (to all claims).

On September 8, 2025, the People filed their demurrer to the second through twelfth affirmative defenses.

The demurrer is opposed by Kroger.

Analysis

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

            “(a) The answer does not state facts sufficient to constitute a defense.

            “(b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.

            “(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., § 430.20.)

“Under general rules of civil procedure, an answer must contain ‘[t]he general or specific denial of the material allegations of the complaint controverted by the Defendant’ and ‘[a] statement of any new matter constituting a defense.’ (Code Civ. Proc., § 431.30, subd. (b)(1) & (2).) ‘The phrase “new matter” refers to something relied on by a Defendant which is not put in issue by the Plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.”’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) “Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.] Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather … as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”’ [Citation.]” (Id. at pp. 812-813.)

“Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead, it is whether the answer raises a defense to the Plaintiff’s stated cause of action.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) “The allegations of the pleading demurred to must be regarded as true [citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [citations], or the construction placed on an instrument pleaded therein [citation], or facts impossible in law [citation], or allegations contrary to facts of which a Court may take judicial knowledge.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

“There are, however, certain important differences between these two kinds of demurrer. An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. [Citations.] This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. [Citations.] Another rule, particularly applicable to the case of a demurrer to the answer, is that each so-called defense must be considered separately without regard to any other defense. [Citations.] Accordingly, a ‘separately stated defense or counterclaim which is sufficient in form and substance when viewed in isolation does not become insufficient when, upon looking at the answer as a whole, that defense or counterclaim appears inconsistent with or repugnant to other parts of the answer.’ [Citations.]” (South Shore Land Co. v. Petersen, supra, 226 Cal.App.2d at pp. 733-734, fn. omitted.)

The People demur to the second affirmative defense of primary jurisdiction as to the second, fourth, sixth, eighth, and tenth causes of action of the SAC. Kroger alleges:

“Plaintiff’s claims regarding caloric content statements in the FDA Nutrition Facts Panels of Carbmaster Breads fail, in whole or in part, because they fall within the Food and Drug Administration’s expertise.” (FAA, at p. 2.)

“ ‘ “Primary jurisdiction[]” … applies where a claim is originally cognizable in the Courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ [Citations.]” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390–391, italics omitted.)

The People argue that because the UCL authorizes duplicate enforcement by both public prosecutors and administrative agencies, there is no bar to proceeding in this action by the doctrine of primary jurisdiction. (Demurrer, at p. 5.)

The affected causes of action address misrepresentations which involve federal regulations. Kroger may assert that some or all of the issues raised in those causes of action are peculiarly within the expertise of the Food and Drug Administration. The second affirmative defense sufficiently makes this assertion for purposes of pleading. The full scope of such issues is not now before the Court and so the Court does not resolve the potential application, if any, of the primary jurisdiction doctrine by this demurrer. The demurrer to the second affirmative defense will be overruled.

The People demur to the third affirmative defense of compliance with laws as to the second, fourth, sixth, eighth, and tenth causes of action of the SAC. Kroger alleges:

“Plaintiff’s claims regarding caloric content statements in the FDA Nutrition Facts Panels of Carbmaster Breads are barred, in whole or in part, because at all relevant times and places, some or all Carbmaster Breads’ calorie content statements were within the limits set by the Food and Drug Administration’s regulations, including 21 C.F.R. § 101.9, and the Federal Food, Drug, and Cosmetics Act, 21 U.S.C. § 301 et seq.” (FAA, at p. 3.)

The People argue that no facts are alleged to support this defense. Kroger argues that this defense asserts that other statutes permit the conduct asserted by the People as improper.

“A plea controverting the original cause of action and tendering no new issue is a mere traverse and cannot be properly described as a plea setting up new matter.” (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543.)

This defense is redundant to Kroger’s denials and does not constitute, as such, an affirmative defense because the issues raised by Kroger do not require Kroger to prove any facts different from those addressed in the complaint.

A party may by answer allege facts as new matter or in denial of contrary allegations of the complaint. In the context of an allegation of an affirmative defense, these allegations, if not constituting new matter, may provide additional, alternative, or more specific denials than in the body of the answer. (See Edger v. Foster (1941) 48 Cal.App.2d 580, 583 [“[T]he fact that Defendant in the instant case denied certain material allegations of the complaint in his answer and subsequently in an affirmative defense alleged the same material allegations of the complaint as true, did not constitute an admission of the truth of the allegations in the complaint. He was merely pleading inconsistent defenses.”]; Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 309 [a party may allege alternative, inconsistent defenses].) For that reason, allegations in an answer are not improper merely because those allegations do not by themselves constitute affirmative defenses. The demurrer to the third affirmative defense will be overruled.

The People demur to the fourth affirmative defense of third parties as to all causes of action of the SAC. Kroger alleges:

“Plaintiff’s claims fail, in whole or in part, because any purported harm to Plaintiff or third parties was caused by third parties, including but not limited to third parties involved in caloric content testing, packaging, labeling, and/or advertising regarding the PRODUCT, and factors outside the control of Kroger for which Kroger is not responsible.” (FAA, at p. 3.)

The People argue that allocation of liability by comparative fault, or otherwise, does not apply to their causes of action. Kroger argues that third-party conduct is asserted as an affirmative defense as an assertion of the lack of causation by Kroger’s own acts. (Opposition, at pp. 11-12.) Causation is an element of the Plaintiff’s case. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 325.) So, again, this “affirmative defense” is a form of more specific denial and not improper. The demurrer will be overruled to this affirmative defense.

The People’s demurrer to Kroger’s fifth affirmative defense of causation is analytically the same as to Kroger’s fourth affirmative defense. The demurrer will be overruled to this affirmative defense for the same reason.

The People demur to the sixth affirmative defense of the statute of limitations as to all causes of action of the SAC. Kroger alleges:

“Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations. Bus. & Prof. Code § 17208; Code Civ. Proc. § 338.” (FAA, at p. 3.)

The People demur to this affirmative defense by reference to a tolling agreement and arguing that the People have not alleged any claims occurring prior to the date of the tolling period.

“In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” (Code Civ. Proc., § 458.)

Under section 458, pleading of this affirmative defense may be conclusory as long as statutes are stated. The pleading is sufficient. The demurrer to the sixth affirmative defense will be overruled.

The People demur to the seventh affirmative defense of laches. Kroger alleges:

“Plaintiff’s claims fail, in whole or in part, because they are barred by the doctrine of laches based on the prejudicial delay in asserting its claims. Plaintiff’s allegations involve conduct that allegedly occurred as early as November 1, 2018 (SAC § 17), but Plaintiff did not file suit until May 29, 2024.” (FAA, at pp. 3-4.)

The People argue that laches cannot apply to UCL enforcement by the government, citing People v. Arthur Murray, Inc. (1965) 238 Cal.App.2d 333, 347: “In addition, whatever may be the rule in cases involving only the private interests of two private litigants, we do not agree that mere delay in the enforcement of a public right against a public evil can bar appropriate action whenever the public officer involved determines to act.”

Kroger responds by pointing out that “Courts have in particular situations applied the doctrine of laches against a public entity.” (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 392.) “ ‘Decisions involving estoppel [or laches] against government feature judicial attempts at a synthesis between conflicting claims of private injustice and public interest.’ [Citation.] It has long been held that the doctrine of estoppel or the doctrine of laches may apply to a government body if ‘a grave injustice would be done if estoppel were not applied, and it did not appear that use of the doctrine would defeat any strong public policy or result in the indirect enforcement of an illegal contract.’ [Citation.]” (Ibid.)

Insofar as the People’s demurrer is based upon the proposition that laches categorically cannot apply here, that proposition is not absolutely correct, even if the application of laches to a government action is much narrower than in an action as between private litigants. The demurrer to the seventh affirmative defense will be overruled on the ground asserted.

The People demur to the eighth affirmative defense of mootness. Kroger alleges:

“Plaintiff’s requests for injunctive relief are moot because Defendant has voluntarily

corrected the alleged mislabeling and there is no reasonable expectation the conduct will recur.” (FAA, at p. 4.)

The People argue that this affirmative defense is improper because the Court may issue an injunction notwithstanding the Defendant’s stated intent. (People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1092; see also Bus. & Prof. Code, § 17203 [“Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any Court of competent jurisdiction.”].)

Kroger argue that injunctions are nonetheless generally improper for completed acts. “ ‘Injunctive relief has no application to wrongs which have been completed [citation], absent a showing that past violations will probably recur. [Citation.]’ [Citation.]” (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 465.)

As a matter of pleading an affirmative defense, an affirmative defense may properly allege facts (such as whether acts would or would not recur) as a basis for defeating or limiting a remedy sought by a Plaintiff. It is not improper for Kroger to allege a basis that a Court could, under appropriate circumstances, use to deny or limit an injunction. The demurrer to the eighth affirmative defense will be overruled.

The People demur to the ninth affirmative defense to the fifth and sixth causes of action of void for vagueness. Kroger alleges:

“Plaintiff’s fifth and six causes of action are barred in whole or in part because Bus. & Prof. Code § 12024.6 is unconstitutionally vague.” (FAA, at p. 4.)

The People argue that this argument was rejected by the Court when it overruled Kroger’s demurrer on this same ground. Kroger argues that the demurrer ruling did not resolve this affirmative defense.

“A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. [Citation.]” (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) In overruling the demurrer, the Court did not exclude to possibility that the defense may have some application other than to conclusively determine all aspects of the cause of action. The pleading of the affirmative defense is not improper. The demurrer to the ninth affirmative defense will be overruled.

The People demur to the tenth affirmative defense of no right to injunction. Kroger alleges:

“Plaintiff is not entitled to injunctive relief because (1) the hardship that would be imposed on Kroger by any such relief would be greatly disproportionate to any hardship that Plaintiff or third parties might suffer in its absence; (2) any injunctive relief that would require regulation by the Court on an ongoing basis is inappropriate; (3) the State of California is not entitled to injunctive relief in these circumstances; and (4) Kroger’s advertising and marketing activities are already regulated.” (FAA, at p. 4.)

This affirmative defense, like the eighth affirmative defense merely asserts traditional equitable grounds upon which an injunction may be denied. For the same reasons stated as to the eighth affirmative defense, it is not improper for Kroger to allege a basis that a Court could, under appropriate circumstances, use to deny or limit an injunction. The demurrer to the tenth affirmative defense will be overruled.

The People demur to the eleventh affirmative defense of no right to excessive penalties. Kroger alleges:

“Even if any violations were found—which they should not be—Plaintiff is not entitled to any but de minimis penalties, including under Cal. Bus. & Prof. Code § 17206 or Cal. Bus. Prof. Code § 17536, because (1) any award higher than a de minimis award would be inequitable and would be disproportionate to any hardship that Plaintiff or third parties allegedly suffered; (2) the requested relief is for past conduct that has been remediated; (3) the alleged conduct was not willful; (4) any such award would violate the due process, equal protection, and/or excessive fines clauses of the Constitution of the State of California and the Constitution of the United States of America. See, e.g., Cal. Const. art. I, § 7; U.S. Const. amend. XIV, § 1; U.S. Const., amend VIII; Cal. Const., art. I, § 17.” (FAA, at pp. 4-5.)

The People demur to this affirmative defense on the grounds that “[t]his purported affirmative defense pleads no new matters and is ultimately just a denial.” (Demurrer, at p. 9.) For the reasons discussed above in the context of the demurrer to the third affirmative defense, it is not improper to assert alternative and specific denials. The demurrer to this affirmative defense will be overruled.

The People demur to Kroger’s twelfth affirmative defense for no right to restitution on the same grounds as the demurrer to the eleventh affirmative defense. For the same reasons, the demurrer will be overruled.