People of the State of California v. The Kroger Co.

Case Number

24CV03007

Case Type

Hearing Date / Time

Wed, 02/18/2026 - 10:00

Nature of Proceedings

1) Motions to Compel (2); 2) Motion to Quash; 3) 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, the People’s motion to compel further responses to special interrogatories and form interrogatories is granted as modified herein as to special interrogatory Nos. 1, 2, 4, 6 through 10, and 13, and form interrogatory Nos. 3.1, 3.6, 12.1, 12.3, 12.4, 12.6, 15.1(b), and 16.1. The motion is denied as to special interrogatory No. 12. Verified responses must be electronically served on or before March 11, 2026, including any writings designated pursuant to Code of Civil Procedure section 2030.230.

(2)     For all reasons stated herein, the People’s motion to compel PMQ deposition of Kroger is granted in part as this deposition notice is modified by this ruling. This deposition shall take place on or before March 25, 2026. If the parties cannot agree on date(s) for this deposition on or before February 27, 2026, the parties can appear ex parte the following week and the Court will set the date(s) for this deposition.

(3)     For all reasons stated herein, Kroger’s motion to quash PMQ deposition of Kroger and for protective order is granted in part as discussed herein. This deposition shall take place on or before March 25, 2026, pursuant to the deposition notice as modified by this ruling.

(4)     For all reasons stated herein, the People’s motion for protective order regarding the PMQ deposition of the People is granted. This notice is quashed, and the People need not take further action pertaining to this notice.

(5)     The clerk of the Court shall file under seal the People’s motion and separate statement lodged conditionally under seal on January 5, 2026, pursuant to paragraph 17 of the stipulated protective order entered on December 22, 2025.

(6)     Collectively as to all motions, the Court declines to award monetary sanctions in favor of any party.

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 July 9, 2025, the Court overruled Kroger’s demurrer to the SAC.

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 November 12, 2025, the Court overruled the People’s demurrer to Kroger’s first amended answer.

From January 5 to January 26, 2026, the parties filed four discovery motions at issue in this hearing. The People move to compel further responses to its first set of special interrogatories (SI) and first set of form interrogatories (FI), to compel the person most qualified (PMQ) deposition of Kroger, and for a protective order regarding the PMQ deposition notice of the People served by Kroger. Kroger moves to quash the PMQ deposition notice served on it by the People and for a protective order pertaining to this notice. All these motions are opposed.

Analysis

(1)       Legal Standards Applicable to the People’s Motion to Compel Further Responses to SI and FI

“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).)

(2)       SI No. 1

SI No. 1 requests that Kroger identify its California stores that sold Carbmaster Products from November 1, 2018, to the present. (People’s Reply Separate Statement filed February 6, 2026 (SS), SI No. 1.) Kroger responded as follows after asserting objections: “Subject to and without waiving these objections … Kroger continues to investigate to determine the burden associated with this Interrogatory and will supplement this response further at a later date.” (Ibid.) Kroger’s response is unverified. (SS, p. 8, ll. 4-6.)

Kroger argues that the task to create a list of these stores is unduly burdensome. Kroger also objected to the extent this SI seeks confidential or propriety business information, trade secrets, or commercially sensitive information. The People argue that this information is relevant to where the false advertising occurred, how widespread the conduct was, how many customers were impacted, and the identity of potential witnesses.

The information sought by SI No. 1 is relevant to the location and scope of the alleged practices, persons impacted, and potential witnesses. (See Code Civ. Proc., § 2017.010.) “[A]s with other objections in response to interrogatories, the party opposing discovery has an obligation to supply the basis for this determination. An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’ ” (Williams, supra, 3 Cal.5th at p. 549.) Kroger has not carried its burden to support its objections with a declaration or a verified response detailing the basis for its objections. There is a stipulated protective order on file to address any confidential information. No privilege objections were asserted. The Court will overrule Kroger’s objections.

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. (See Code Civ. Proc., §§ 2030.210-2030.230.) 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. (See id., §§ 2030.210, subd. (a), 2030.230.) The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. (See id., § 2030.230.)

(3)       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. Kroger responded as follows after asserting objections: “Subject to and without waiving these objections … Kroger continues to investigate to determine the burden associated with this Interrogatory and will supplement this response further at a later date.” (SS, SI No. 2.) Kroger’s response is unverified. (SS, p. 8, ll. 4-6.)

Kroger argues that the task to compile this information would be unduly burdensome. Kroger also objected to the extent that this SI seeks confidential or propriety business information, trade secrets, or commercially sensitive information. The People argue that this information is relevant to the amount of penalties at issue.

The information sought by SI No. 2 is relevant to the penalties and sales of the products at issue in this action. (See Code Civ. Proc., § 2017.010.) Kroger has not carried its burden to support its objections via a declaration or verified response detailing the basis for its objections. There is a stipulated protective order on file to address any confidential information. No privilege objections were asserted. The Court will overrule Kroger’s objections.

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. (See Code Civ. Proc., §§ 2030.210-2030.230.) 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. (See id., §§ 2030.210, subd. (a), 2030.230.) The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. (See id., § 2030.230.)

(4)       SI No. 4

SI No. 4 requests that Kroger describe why Kroger changed the calorie total on the FDA nutrition panel for the Carbmaster Products from November 1, 2018, to the present. (SS, SI No. 4.) Kroger provided an unverified, confidential response explaining why changes were made. (Ibid.) The People argue that the response is unverified, uses the phrase “certain breads” which is ambiguous, and contains unexplained attorney-client privilege and work product objections. The Court agrees with the People. Kroger must clarify the phrase “certain breads” in a verified supplemental response and 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.

(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. (SS, SI No. 6.) Kroger did not provide a verified response with substantive information, but asserted objections including undue burden and privilege. (Ibid.) 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. (See Code Civ. Proc., §§ 2030.210-2030.230.) 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. (See id., §§ 2030.210, subd. (a), 2030.230.) The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. (See id., § 2030.230.) 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.

(6)       SI No. 7

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. (SS, SI No. 7.) Kroger objects on the grounds that the phrase “creating or verifying” is vague and asserts privilege objections. (Ibid.) The Court agrees in part with Kroger. Kroger need only respond to this SI as to the identity of persons who verified the calorie information on the labels. Kroger’s response must be verified. 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.

(7)       SI No. 8

SI No. 8 requests the identity of individuals responsible for creating or verifying the FDA panel information on the Carbmaster Products. (SS, SI No. 8.) Kroger objects on the grounds that the phrase “creating or verifying” is vague and asserts privilege objections. The Court agrees in part with Kroger. Kroger need only respond to this SI as to the identity of persons who verified the calorie information on the FDA panels. Kroger’s response must be verified. Kroger must state any privilege objections with sufficient specificity so that the People can ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.

(8)       SI No. 9

SI No. 9 requests the identity of individuals who identified or determined that the FDA calorie information on the FDA panels was inaccurate. (SS, SI No. 9.) Kroger objects to the phrase “inaccurate” as argumentative and lacking foundation, and asserts privilege objections. The Court agrees in part with Kroger. Koger may respond to this SI as to “alleged discrepancies” rather than “inaccuracies.” Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. 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.

(9)       SI No. 10

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. (SS, SI No. 10.) Kroger objects to the phrase “discrepancy” as argumentative and lacking foundation, and asserts privilege objections. The Court agrees in part with Kroger. Koger may respond to this SI as to “alleged discrepancies.” Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. 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.

(10)     SI No. 12

SI No. 12 refers to SI No. 11. SI No. 11 and the response to SI No. 11 are not included in the People’s separate statement. (SS, SI No. 12.) The Court will deny the People’s motion as to SI No. 12 because the information needed to evaluate this request is not included in their separate statement. (See Cal. Rules of Court, rule 3.1345(c).)

(11)     SI No. 13

SI No. 13 requests the date Kroger began selling the Carbmaster Products. (SS, SI No. 13.) Kroger did not provide a verified response with substantive information. Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger must state any privilege objections with sufficient specificity so that the People can ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.

(12)     FI No. 3.1

FI No. 3.1 requests information as to Kroger’s incorporation. (SS, FI No. 3.1.) The People claim they are entitled to a further response because the information contained in Kroger’s response to FI No. 3.1 is false. The Court will not evaluate the accuracy of Kroger’s response on this motion but the response must be verified. Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger’s objections are otherwise overruled.

(13)     FI No. 3.6

FI No. 3.6 asks for fictitious names used by Kroger and related information. (SS, FI No. 3.6.) The People claim they are entitled to a further response because the information contained in Kroger’s response to FI 3.6 is false. The Court will not evaluate the accuracy of Kroger’s response on this motion but the response must be verified. Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger’s objections are otherwise overruled.

(14)     FI No. 12.1

FI No. 12.1 asks for the names, addresses, and telephone numbers of witnesses of the incident. (SS, FI No. 12.1.) Kroger objects to the term “incident” as vague and unduly burdensome. Kroger responded indicating it would produce customer comments regarding the Carbmaster Products. (Ibid.) No privilege objections were asserted. The People argue that the response does not include the required identification information. The Court agrees in part with the People that the requested information must be provided, but Kroger may respond using the standard definition of “incident” on page one of the FIs: “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (See Lucas Decl., Ex. 7 at p. 1.) Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger’s objections are otherwise overruled.

(15)     FI No. 12.3

FI No. 12.3 asks for information pertaining to written or recorded statements concerning the incident. (SS, FI No. 12.3.) The People claim they are entitled to a further response because the information contained in Kroger’s response to FI No. 12.3 is false. The Court will not evaluate the accuracy of Kroger’s response on this motion but the response must be verified. Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. 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.

(16)     FI No. 12.4

FI No. 12.4 asks for information about photographs, films, or videotapes concerning the incident. (SS, FI No. 12.4.) Kroger objects to the term “incident.” Kroger agreed to produce images of responsive Carbmaster Product labels kept in the ordinary course of business. The People argue that Kroger did not respond to the subparts of this FI. The Court agrees with the People that the requested information must be provided, but Kroger may respond using the standard definition of “incident” on page one of the FIs: “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (See Lucas Decl., Ex. 7 at p. 1.) Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger must state any privilege objections with sufficient specificity so that the People can ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.

(17)     FI No. 12.6

FI No. 12.6 asks information about any report concerning the incident. (SS, FI No. 12.6.) Kroger objects to the term “incident.” The Court agrees with the People that the requested information must be provided, but Kroger may respond using the standard definition of “incident” on page one of the FIs: “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (See Lucas Decl., Ex. 7 at p. 1.) Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. 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.

(18)     FI No. 15.1(b)

FI No. 15.1(b) asks for persons with knowledge pertaining to Kroger’s affirmative defenses. (SS, FI No. 15.1.) The People argue that Kroger’s response is incomplete because it did not include the names, addresses, and phone numbers of the persons with knowledge. The Court agrees with the People. Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger must state any privilege objections with sufficient specificity so that the People can ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.

(19)     FI No. 16.1

FI No. 16.1 asks information about persons other than Kroger who contributed to the injuries at issue. (SS, FI No. 16.1.) Kroger objects that this interrogatory is only applicable to personal injury cases. Kroger objects to the term “incident.” The People argue that a complete response is warranted because the issue of causation by third parties is raised in Kroger’s operative first amended answer as a defense. The Court agrees with the People that the requested information must be provided, but Kroger may respond using the standard definition of “incident” on page one of the FIs: “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (See Lucas Decl., Ex. 7 at p. 1.) Kroger must serve a verified response containing the information sought to be discovered, as complete and straightforward as the information reasonably available to Kroger permits. Kroger must state any privilege objections with sufficient specificity so that the People can ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.

(20) Verifications

“The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” (Code Civ. Proc., § 2030.250, subd. (a).) “If that party is a … private corporation … one of its officers or agents shall sign the response under oath on behalf of that party.” (Id., subd. (b).) Kroger’s responses to the SI and FI are unverified. Kroger must serve verifications as to all responses it has served to the SI and FI that contain responsive information other than objections. Kroger must also serve verifications as to supplemental responses required by this ruling that contain responsive information other than objections. All verifications must comply with Code of Civil Procedure section 2015.5.

(21)     The People’s Motion to Compel PMQ Deposition of Kroger / Kroger’s Motion to Quash and for Protective Order Re PMQ Deposition of Kroger

The parties have been unable to agree on the scheduling and scope of the PMQ deposition of Kroger noticed by the People. Kroger argues in its motion to quash and for protective order that the PMQ notice served by the People is unduly burdensome and that the People have refused to notice this deposition for an agreeable date. The People argue in its motion to compel that Kroger has refused to proceed with this deposition in good faith.

“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.) A party may move to compel the attendance of a deponent who refuses to proceed after service of the notice. (Code Civ. Proc., § 2025.450.)

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc., § 2025.420, subd. (a).) “The Court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id., subd. (b).)

After reviewing the parties’ respective contentions and the PMQ notice served by the People (see Lucas Decl., Ex. 1), the Court will order that the PMQ deposition of Kroger take place on or before March 25, 2026, as to the following categories as modified by the Court:

(1) The calorie content of The Kroger Co.’s Carbmaster Products sold in California from November 1, 2018, to the present;

(2) The Kroger Co.’s marketing and advertisement of Kroger’s Carbmaster Products sold in California from November 1, 2018, to the present;

(3) The Kroger Co.’s supply and distribution chain for Kroger Carbmaster Products sold in California from November 1, 2018, to the present;

(4) The process for creating any representations of calorie content on labels for Kroger Carbmaster Bread Products sold in California from November 1, 2018, to the present;

(5) Any efforts to determine the calorie content for Carbmaster Products sold in California from November 1, 2018, to the present;

(6) Any testing done to determine the calorie content for Carbmaster Products sold in California from November 1, 2018, to the present;

(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);

(8) The Kroger Co.’s determination in September 2021 that the calorie content of Kroger Carbmaster Products was inaccurately calculated or displayed on labels;

(9) The Kroger Co.’s decision to change the calorie information displayed on the FDA nutrition label for Kroger Carbmaster Products between September 9, 2021 and January 19, 2022;

(10) The Kroger Co.’s decision to change the calorie information displayed on the front and side packaging of Kroger Carbmaster Products between September 9, 2021 and May 3, 2022;

(11) Any complaints The Kroger Co. received from consumers regarding Kroger’s Carbmaster Products from November 1, 2018, to the present.

 

Kroger’s objections to this PMQ deposition notice are otherwise overruled with the exception of attorney-client or work product privilege. There is a stipulated protective order on file to address any confidentiality issues. If the parties cannot agree on date(s) for this deposition on or before March 27, 2026, the parties can appear ex parte the following week and the Court will set the date(s) for this deposition.

(22)     The People’s Motion for Protective Order

Kroger served a notice of PMQ deposition of the People pursuant to Code of Civil Procedure section 2025.230 (Notice). The Notice sets forth 20 categories that include topics pertaining to this action, including discussions among counsel of record for the People. The People oppose this motion on the basis that Kroger has not demonstrated extreme good cause to take this deposition.

“[I]n a civil enforcement action brought by a district attorney (or a similar government agency, like the state’s Attorney General) on behalf of the People, the Defendant may seek to depose the People’s person or persons most qualified under section 2025.230. If the People seek a protective order, the trial Court should analyze whether the deposition should proceed using the Carehouse standard for depositions of opposing counsel.” (People v. Superior Court (Credit One Bank, N.A.) (2025) 112 Cal.App.5th 804, 820.) “Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause—a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 (Carehouse).)

“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?” (Carehouse, supra, 143 Cal.App.4th at p. 1563.)

In support of its motion, the People submit evidence that they have responded to written discovery in this action and have offered Kroger the depositions of their investigator as to factual information at issue in this action. (Lucas Decl., ¶ 5 & Exs. 5-6.) The People provided responses to written discovery, including answers to 23 special interrogatories, 15 form interrogatories, 4 requests for admission, and 49 requests for production. (Ibid.) The People provided nearly 400 pages of responsive documents including photographs, web captures, and communications in response to Kroger’s requests for production. (Ibid.) According to the People, this represents every nonprivileged document in the People’s possession other than documents covered by expert discovery rules and emails with defense counsel. (Ibid.)

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.

(23)     The People’s January 5 Lodging Conditionally Under Seal

On January 5, 2026, the People lodged unredacted versions of its motion and separate statement conditionally under seal. These documents shall be filed under seal pursuant to paragraph 17 of the stipulated protective order entered on December 22, 2025. (See Cal. Rules of Court, rule 2.550(a)(3) [“These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings.”].)

(24)     Future Discovery Disputes

The Court understands the parties were under time constraints as to the issues presented in these motions. To promote efficiency as to future disputes, the parties should carefully review their obligations under the Discovery Act and make good faith efforts to resolve future discovery disputes.