Tentative Ruling: People of the State of California v. The Kroger Co.

Case Number

24CV03007

Case Type

Hearing Date / Time

Wed, 04/22/2026 - 10:00

Nature of Proceedings

The People’s Motion for Issue, Evidentiary, and Monetary Sanctions

Tentative Ruling

For Plaintiff People of the State of California: John T. Savrnoch, Morgan S. Lucas, Office of the Santa Barbara County District Attorney; Erik Nasarenko, Andrew J. Reid, Office of the Ventura County District Attorney

                                   

For Defendant The Kroger Co.: Jacob M. Harper, James H. Moon, Daniel H. Leigh, Davis Wright Tremaine LLP

                                   

RULING

For all reasons stated herein, on or before May 6, 2026, Kroger shall serve further verified supplemental responses to special interrogatory Nos. 2, 6, 7, and 10, and form interrogatory Nos. 12.1 and 12.6. Plaintiff People of the State of California’s motion for issue, evidentiary, and monetary sanctions, is denied in all other respects. The trial date of 7/8/26 is confirmed.

Background

On May 29, 2024, Plaintiff People of the State of California (People) filed their original complaint in this action against Defendant The Kroger Co. (Kroger), an operator of retail grocery stores. The People allege that beginning on November 1, 2018, Kroger sold bread products (Carbmaster Products) in California with misleading packaging pertaining to the number of calories in these products.

Between July 2024 and March 2025, the parties litigated issues pertaining to a notice of removal of this action to federal Court by Kroger, a subsequent order of remand from the federal Court to this Court, and a demurer and motion to strike by Kroger pertaining to the People’s first amended complaint.

On April 9, 2025, the People filed their operative second amended complaint (SAC). The SAC asserts 10 causes of action: (1) false advertising (outside of FDA panel), violation of Business and Professions Code section 17500; (2) false advertising (within FDA panel), violation of Business and Professions Code section 17500; (3) unfair competition (false advertising outside of FDA panel), violation of Business and Professions Code section 17200; (4) unfair competition (false advertising within FDA panel), violation of Business and Professions Code section 17200; (5) unfair competition (false advertising by enticement outside of FDA panel), violation of Business and Professions Code section 17200; (6) unfair competition (false advertising by enticement within FDA panel), violation of Business and Professions Code section 17200; (7) unfair competition (misbranded food outside of FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (8) unfair competition (misbranded food within FDA panel), violation of Business and Professions Code section 17200 and Health and Safety Code section 110660; (9) unfair competition (untrue or misleading advertising outside of FDA panel), violation of Business and Professions Code section 17200; and (10) unfair competition (untrue or misleading advertising within FDA panel), violation of Business and Professions Code section 17200.

As alleged in the SAC: The packaging for Carbmaster Products contained false and misleading information as to the number of calories contained in a serving. (SAC, ¶¶ 13-36.) “For example, on the front packaging and on the FDA Nutrition Facts panel, [Kroger] advertised that its CARBMASTER Wheat Bread contained only 30 calories. In reality, CARBMASTER Wheat Bread contained 50 calories. In another instance, [Kroger] advertised on the front packaging and the FDA Nutrition Facts panel that its CARBMASTER Hamburger Buns contained only 50 calories, when the buns actually contained 100 calories.” (SAC, ¶ 18.) In 2021 or 2022, Kroger corrected the FDA nutrition facts on the back of the packaging, but continued to underrepresent the number of calories on the front of the packaging. (SAC, ¶¶ 19-24.) The People seek to recover civil penalties pursuant to Business and Professions Code sections 17200 through 17206, 17500, 17535, and 17536, in the amount of $2,500 for each violation, and to obtain a permanent injunction. (SAC, ¶¶ 32-96.)

On August 22, 2025, Kroger filed its operative first amended answer to the SAC, generally denying the allegations in the SAC and asserting 12 affirmative defenses.

On February 18, 2026, the Court granted in part (February 18 Order) the People’s motion to compel further responses to certain special interrogatories (SIs) and form interrogatories (FIs). The supplemental responses were due on or before March 11, 2026. No sanctions were imposed in the February 18 Order.

On March 30, 2026, the People filed the motion at issue in this hearing seeking issue, evidentiary, and monetary sanctions based on Kroger’s alleged failure to comply with the February 18 Order. This motion pertains to SI Nos. 1, 2, 6, 7, 10 and 13, and FI Nos. 12.1, 12.6, 15.1(b), and 16.1. This motion is opposed.

Analysis

(1)       Discovery Standards for Interrogatories

“A trial Court must be mindful of the Legislature’s preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery ….” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) “Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

“(1) An answer containing the information sought to be discovered.

“(2) An exercise of the party’s option to produce writings.

“(3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a).)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be answered complete, it shall be answered to the extent possible.” (Id., subd. (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Id., subd. (c).)

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.” (Code Civ. Proc., § 2030.230.)

A party may move for an order compelling further responses to interrogatories if an answer is evasive or incomplete or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

(2)       Discovery Standards for Issue and Evidentiary Sanctions

“California discovery law authorizes a range of penalties for a party’s refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. [Citations.] A Court has broad discretion in selecting the appropriate penalty …. [¶] Despite this broad discretion, the Courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. [Citation.] A trial Court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. [Citations.] The trial Court should select a sanction that is ‘tailor[ed] ... to the harm caused by the withheld discovery.’ [Citation.] ‘[S]anctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [¶] The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ ” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez).)

(3)       SI No. 1

SI No. 1 requests that Kroger identify its California stores that sold Carbmaster Products from November 1, 2018, to the present. In the February 18 Order, the Court ordered that “Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger after good faith efforts or (b) exercise Kroger’s option to produce and specify the writings from which the answer may be ascertained. [Citation.] This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. [Citation.]” (February 18 Order.)

Kroger supplemented its response to SI No. 1, indicating that it has conducted a reasonable search of its records but does not have this specific information. Kroger did provide some responsive information and “identified division 703 (Ralphs Grocery Co.) and division 704 (Food-4-Less and Foods Co.) stores as having generally sold or generally [selling] Carbmaster products during the relevant time period.” (Kroger’s Response to People’s Separate Statement [Sep. Stat.], p. 3, ll. 17-26.) Kroger produced documents it says are sufficient to identify California stores within these divisions and referenced the bates ranges for these documents. (Ibid.)

The People argue this response is inadequate because the requested information can be discerned from records of a Kroger-owned bakery that distributes the Carbmaster Products. (Sep. Stat., p. 5, ll. 4-6.) The People ask for “[a]n issue sanction against [Kroger], finding that Carbmaster Bread Products were sold at all California stores in [Kroger’s] Ralphs, Food-4-Less, and Foods Co. divisions during the relevant time period (defined as November 2018 to the present); or in the alternative, an evidence sanction precluding Defendant from introducing evidence that any of the Ralphs, Food-4-Less, and Foods Co. stores in California did not sell Carbmaster Bread Products during the relevant time period.” (Motion, p. 1, ll. 8-13.)

Kroger argues that it does not have the information requested by the People and has responded in good faith. (Sep. Stat., p. 6, ll. 9-21.) According to Kroger, products supplied from a Kroger-owned bakery does not mean Kroger maintains or can reconstruct store-level sales data in this manner, particularly for historical periods. (Ibid.) According to Kroger, distribution data, production data, and retail sales data are distinct. (Ibid.)

The Court will deny the request for sanctions as to SI No. 1 on the ground that the People did not establish Kroger’s failure to comply with the February 18 Order. Kroger appears to have generally identified its California stores that sold these products during the relevant time period. The People can take follow-up discovery if they require additional details as to these stores. Further, no prior sanctions were imposed as to this interrogatory. (See Lopez, supra, 246 Cal.App.4th at p. 604.)

(4)       SI No. 2

SI No. 2 asks for the total number of units of Carbmaster Products sold in California from November 1, 2018, to the present, broken down by product and by year. The February 18 Order required that “Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger after good faith efforts or (b) exercise Kroger’s option to produce and specify the writings from which the answer may be ascertained. [Citation.] This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.” (February 18 Order.)

Kroger supplemented its response and produced business records it says are “sufficient to identify the number of units of relevant CARBMASTER products sold in California … for the period 2022 through the present[,]” but “[i]nformation regarding units of Carbmaster Bread Products sold during the period before 2022 is in the possession, custody, and control of third parties and not within Kroger’s possession, custody, and control.” (Sep. Stat., p. 8, ll. 13-21.)

The People argue that Kroger’s supplemental response does not comply with Kroger’s obligations because it does not state that Kroger made reasonable efforts to obtain this information from third parties. (Sep. Stat., p. 9, ll. 24-26.) The Court agrees with the People and will require that Kroger supplement its response as discussed below and confirm that good faith efforts have been made to obtain the responsive information. However, the Court declines to impose issue or evidentiary sanctions and determines that a further supplemental response is the appropriate incremental approach. (See Lopez, supra, 246 Cal.App.4th at p. 604.)

(5)       SI No. 6

SI No. 6 requests the total number of units of Carbmaster Products sold in California during the timeframe when the FDA nutrition panel did not match the front packaging, broken down by product. In the February 18 Order, the Court ordered that “Kroger must either (a) provide the requested information under oath to the extent possible based on the information reasonably available to Kroger

after good faith efforts or (b) exercise Kroger’s option to produce and specify the writings from which the answer may be ascertained. [Citation.]  This specification shall be verified and in sufficient detail to permit the People to locate and to identify, as readily as Kroger can, the documents from which the answer may be ascertained. [Citation.] The People shall be allowed to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them. [Citation.] Kroger must state any privilege objections with sufficient specificity for the People to ascertain the basis for these objections and any information withheld. Kroger’s objections are otherwise overruled.” (February 18 Order.)

Kroger supplemented its response to SI No. 6, stating that “Kroger has

conducted a reasonable search … and does not have records showing specific information regarding total number of units of Carbmaster bread sold in the State of California during the time period when the calorie total on the FDA nutrition panel did not match the calorie total advertised on the front packaging of Carbmaster bread products.” (Sep. Stat., p. 12, l. 27 – p. 13, l. 4.)

The People argue that this response is insufficient because Kroger did not say whether it could derive the requested information from records or say that it made any inquiry that could help it obtain the information. (Sep. Stat., p. 14, ll. 5-17.) The People argue Kroger did not make any attempt to provide a partial answer. (Ibid.) The People seek an “issue sanction establishing that [Kroger] sold the following numbers of each of its Carbmaster Products per week from the time the products were introduced until the date Defendant provided sales records (approximately February 2022): 2962 units of Carbmaster Wheat Bread; 2597 units of Carbmaster White Bread; 2176 units of Carbmaster Multiseed Bread; 1498 units of Hamburger Buns; and 2191 units of hotdog buns.” (Motion, p. 1, ll. 14-20.)

The Court will deny the People’s request for issue or evidence sanctions on the ground that the People did not carry their burden to demonstrate that Kroger failed to comply with the February 18 Order. The Court does agree, however, that Kroger must make reasonable efforts to obtain the responsive information as required by the Code of Civil Procedure. The Court will require that Kroger serve a further supplemental response to this interrogatory as set forth below, confirming that such reasonable efforts have been made.

(6)       SI Nos. 7 and 10

SI No. 7 requests the identity of individuals responsible for creating or verifying the accuracy of the information on the packaging for the Carbmaster Products. (Sep. Stat., p. 17, ll. 12-15.) SI No. 10 requests the identity and titles of the persons who identified the discrepancy on the packaging for the Carbmaster Products during the relevant time period. (Sep. Stat., p. 22, ll. 11-15.) In the February 18 Order, the Court ordered further responses. (February 18 Order.) In its supplemental responses, Kroger asserted privilege objections and identified two Kroger-affiliated witnesses. (Sep. Stat., p. 18, ll. 1-2, p. 22, l. 25 – p. 23, l. 1.)

The People argue this response is inaccurate because these two individuals did not have such knowledge. (Sep. Stat., p. 18, l. 24 – p. 19, l. 16.) However, on March 27, 2026, the People deposed an individual who was involved in reviewing the information on the front packaging of Carbmaster Products, but who was not identified in response to SI No. 7. (Sep. Stat., p. 19, ll. 17-23.) According to the deponent, individuals in several other departments within Kroger were responsible for verifying the information listed on the front packaging. (Ibid.) According to the People, the deponent further indicated that information about who approved the information listed on the front packaging was accessible to her within Kroger’s internal database. (Ibid.)

The People request an issue sanction establishing that Kroger knew or should have known about the calorie discrepancy on its Carbmaster Products during the time when the calorie value advertised on the front and side packaging did not match the calorie information advertised on the FDA nutrition facts panel. (Motion, p. 1, ll. 21-26.) In the alternative, the People request an evidence sanction preventing Defendant from introducing evidence that it was unaware of this calorie discrepancy. (Ibid.)

Kroger argues that its responses were made in good faith. (Sep. Stat., p. 20, ll. 16-28.) Kroger argues it identified individuals based on the information reasonably available at the time and has continued to develop that information through ongoing discovery, including depositions and document production. (Ibid.) Kroger argues that the fact that additional individuals were identified through deposition testimony or that testimony clarified roles within Kroger does not render Kroger’s prior response improper. (Ibid.) Rather, according to Kroger, this reflects the ordinary progression of discovery. (Ibid.)

The Court will deny the People’s request for issue or evidence sanction on the grounds that the People did not establish that Kroger violated the February 18 Order and no prior sanctions were imposed by this order. However, it does appear that further information has come to light during deposition testimony. The Court will require that Kroger serve a further supplemental responses to interrogatory Nos. 7 and 10 as set forth below.

(7)       SI No. 13

SI No. 13 requests the date Kroger began selling the Carbmaster Products. In the February 18 Order, the Court ordered further responses. Kroger supplemented its response and stated that it began selling Carbmaster Products in approximately July 2021. (Sep. Stat., p. 27, ll. 21-22.) The People argue this information is inaccurate. (Sep. Stat., p. 28, ll. 21-28.) This appears to be a factual dispute. The Court declines to address this dispute by way of a discovery ruling. The Court will deny the People’s motion as to SI No. 13. The People can take follow-up discovery on this disputed issue.

(8)       FI No. 12.1

FI No. 12.1 asks for the names, addresses, and telephone numbers of witnesses of the incident. In the February 18 Order, the Court ordered further responses. In its supplemental response, Kroger identified four Kroger-affiliated witnesses and four witnesses affiliated with the People. The People argue that Kroger was required to identify consumers who complained about the calorie discrepancy at issue in the action. (Sep. Stat., p. 34, ll. 11-17.) Kroger argues it has provided customer comment records regarding Carbmaster Products, but that this information is not responsive to this interrogatory. (Sep. Stat., p. 35, ll. 7-9.) The Court will deny the People’s motion for issue or evidentiary sanctions as to FI No. 12.1, but require Kroger to provide a further supplemental response to FI No. 12.1 as to the customer comments it previously produced.

(9)       FI No. 12.6

FI No. 12.6 asks information about any report concerning the incident. Kroger agreed to produce the history of its labeling in response to this interrogatory. Similar to FI No. 12.1, the People argue that Kroger was required to produce the required information as to consumer complaints. (Sep. Stat., p. 39, ll. 5-17.) The Court will deny the People’s motion for issue or evidentiary sanctions as to FI No. 12.6, but require Kroger to provide a further supplemental response to FI No. 12.6 as to the customer comments it previously produced.

(10)     FI No. 15.1(b)

FI No. 15.1(b) asks for persons with knowledge pertaining to Kroger’s denials or affirmative defenses. Kroger identified eight persons in its supplemental response. (Sep. Stat., p. 43, ll. 5-16.) The People request an evidentiary sanction limiting the testimony that Kroger can offer at trial to the persons identified in response to this interrogatory. (Motion, p. 2, ll. 10-12.) The Court declines to address the scope of trial witnesses in the context of a discovery motion disputing whether a discovery response is fulsome and accurate. The Court finds that this is not an appropriate use of a discovery sanction and will deny the motion as to FI No. 15.1(b).

(11)     FI No. 16.1

FI No. 16.1 asks information about persons other than Kroger who contributed to the injuries at issue. Kroger indicated in its supplemental response that it does not make such a contention. The People argue this this response is inconsistent with Kroger’s affirmative defense Nos. 4 and 5 pertaining to contributory fault. The People ask that the Court strike these defenses or prohibit Kroger from offering evidence of contributory fault. (Motion, p. 2, ll. 13-16.) The Court declines to address the scope of defenses at trial in the context of a discovery motion disputing whether a discovery response is fulsome and accurate. The Court finds that this is not an appropriate use of a discovery sanction and will deny the motion as to FI No. 16.1.

(12)     Further Supplemental Responses to SI Nos. 2, 6, 7, and 10, and FI Nos. 12.1 and 12.6

The Court will require that Kroger serve a further verified supplemental response to these interrogatories confirming that Kroger has provided the requested information to the extent possible based on the information reasonably available to Kroger after good faith efforts. The supplemental response shall be as complete and straightforward as the information reasonably available to Kroger permits. If the interrogatory cannot be answered complete, it shall be answered to the extent possible. If Kroger does not have personal knowledge sufficient to respond fully to this interrogatory, Kroger shall so state but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the People.