Tentative Ruling: People of the State of California v. The Kroger Co.
Case Number
24CV03007
Case Type
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.