Case Number: GC050577 Hearing Date: May 16, 2014 Dept: B

27. GC050577
DESIREE THOMAS v TARGET CORPORATION
Motion for Summary Judgment

The Plaintiff, Desiree Thomas, alleges that she suffered damages while she was on the Defendant’s premises because its employees erroneously accused her of stealing items. The Defendant’s employees assaulted and battered the Plaintiff, caused the Plaintiff to be arrested by the LA County Sheriff’s Department, and testified falsely against the Plaintiff at the criminal trial. For this motion, the causes of action remaining in her complaint are:

1) Assault
2) Battery
4) Malicious Prosecution
5) Intentional Infliction of Emotional Distress
6) Negligent Infliction of Emotional Distress

Trial is set for May 27, 2014.
This hearing concerns the motion for summary judgment filed by the Defendant, Target Corporation.

Under CCP section 437c, in order to obtain summary judgment of Plaintiff’s complaint, the Defendant’s burden of proof is to show that the Plaintiff cannot establish an essential element of each of his causes of action or that the Defendants have an affirmative defense to each of the causes of action. The Defendant argues that the affirmative defense of the merchant’s privilege bars the Plaintiff’s claims.

The merchant’s privilege is enacted at Penal Code section 490.5(f) and it states the following:

A merchant may detain a person for a reasonable time for the purpose
of conducting an investigation in a reasonable manner whenever the
merchant has probable cause to believe the person to be detained is
attempting to unlawfully take or has unlawfully taken merchandise
from the merchant’s premises.

Section 490.5(f)(7) states that in any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.

This section authorizes a merchant to detain a person for a reasonable time when the merchant has probable cause to believe the person is shoplifting, to use reasonable nondeadly force in effecting such a detention, and to examine any items in plain view which the merchant has reasonable cause to believe have been unlawfully taken from the merchant’s premises. Cervantez v. J. C. Penney Co. (1979) 24 Cal. 3d 579, 589. Further, section 490.5(f) creates a defense to a civil action based on the false arrest or imprisonment. Id.

In order to establish the affirmative defense, the Defendant has the burden to demonstrate the following:

1) the merchant had probable cause to believe that the person had stolen or attempted to steal merchandise; and
2) the merchant acted reasonably under all the circumstances.

A review of the Plaintiff’s Complaint reveals that the Plaintiff’s claims are based on damages she alleges that she suffered after the Defendant’s employees accused the Plaintiff of attempting to steal the Defendant’s property and detained her. The Defendant provides the following evidence in its Separate Statement of Facts (“SSF”) to demonstrate that its employees had probable cause to believe that the Plaintiff was attempting to steal merchandise:

1) the Plaintiff was on the Defendant’s premises on January 25, 2011 with two friends: Brochae Harris and Lacoria Fluker (SSF 2);
2) the Defendant’s employee, Edward Romias, a Target Investigations Specialist, was working as pain clothes security on January 25, 2011 (SSF 3);
3) Mr. Romias observed a suspect conceal multiple packages of ladies’ underwear in a large brown handbag that was in a cart pushed by a second suspect (SSF 4);
3) Mr. Romias observed the Plaintiff join the suspects (SSF 5);
4) the Plaintiff placed some items in the same cart from the women’s department and then from the children’s department (SSF 7 and 9);
5) Mr. Romias observed the Plaintiff and the two other suspects approach and then walk past all available front registers with the cart without declaring the items in the handbag (SSF 12 and 17);
6) the Plaintiff took control of the cart and began pushing the cart in the direction of the exit doors (SSF 19); and
7) Mr. Romias detained the Plaintiff at 3:40 pm (SSF 21).

These facts indicate that an employee of the Defendant observed the Plaintiff and two suspects place items in the cart and then to walk past the registers and approach the exit doors without declaring the items in the cart. Further, the employee observed that the items had been placed in a handbag. It is reasonable to draw an inference from the fact that the items were placed in a handbag and that the Plaintiff and her two friends were approached the exit without declaring the items in the handbag that the Plaintiff and her two friends were attempting to conceal that they had the items with the intent to leave the premises without paying for the items.

Accordingly, these facts indicate that the Defendant’s employee had probable cause to believe that the Plaintiff was attempting to steal merchandise. This is sufficient to establish the first element of the defense.

Further, the Defendant provides the following evidence to demonstrate that its employees acted reasonably under all the circumstances:

1) Mr. Romias, the employee who had observed the Plaintiff and her two friends, detained the Plaintiff by putting his hand on the Plaintiff’s right arm (SSF 22);
2) Mr. Romias asked the Plaintiff to come with him (SSF 23);
3) when the Plaintiff turned to walk with Mr. Romias, he took his hand off the Plaintiff’s arm (SSF 26);
4) Mr. Romias did not touch the Plaintiff again and no other employee of the Defendant touched the Plaintiff (SSF 27);
5) Mr. Romias escorted the Plaintiff to the security office (SSF 29);
6) Mr. Romias took the Plaintiff’s purse and phone and then handcuffed the Plaintiff to a bench in the back office (SSF 30 and 31);
7) Mr. Romias left and came back after five minutes with a female employee of the Defendant (SSF 32);
8) the female employee removed the items from the handbag and photographed the items (SSF 32);
9) Mr. Romias called the Sheriff’s Department regarding the Plaintiff at 4:55 pm (SSF 36);
10) Officer Moreno of the Sheriff’s Department took custody of the Plaintiff at approximately 6:15 pm (SSF 37);
11) when the police arrived, Mr. Romias gave them a report, the items, and the Plaintiff’s items (SSF 38); and
12) the police took the Plaintiff to the police station at approximately 6:45 pm (SSF 39 and 40).

These facts demonstrate that the Defendant’s employees acted reasonably by

1) using an appropriate level of force to detain and keep the Plaintiff in custody;
2) by making a necessary inspection of the Plaintiff’s property by removing items from the handbag in order to determine whether merchandise was in the handbag; and
3) by holding the Plaintiff until the police could take custody of the Plaintiff and the items.

Accordingly, these facts indicate that the Defendant’s employee had acted reasonable under all the circumstances. This is sufficient to establish the second element of the defense.

Therefore, the Defendant has met its burden of proof on the motion because the Defendant has offered facts that establish its affirmative defense based on the merchant’s privilege. Under CCP section 437c, the burden of offering facts that create a dispute of fact is shifted to the Plaintiff.

The Plaintiff did not meet her burden. The Plaintiff filed opposition papers on April 28, 2014 that are not accompanied by any evidence or separate statement. Instead, the Plaintiff argues on page 2 that she testified on pages 41, 42, 56, and 57 of her deposition transcript that she was not attempting to steal the items and that she was about to turn the cart to approach the snack bar area near the entrance to the premises when she was detained.

The Plaintiff did not provide a copy of her deposition transcript. However, the Defendant provided portions of the transcript in exhibit B to its document evidence in support. A review of pages 41, 42, 56, and 57 reveals that the Plaintiff had $300 in cash on her person, that the Plaintiff met up with her friends in the women’s department, that the Plaintiff pushed the cart toward the entrance, that her friend, Lacoria Fluker, said she needed to go outside to get some cash, and that when the Plaintiff was near the snack bar, the Defendant’s employee grabbed her.

Further, the Plaintiff adds the fact that her friend, Lacoria Fluker, started running away when the Defendant’s employee approached (see Defendant’s evidence, exhibit B, page 56, lines 18 to 22).

These facts do not create a question of fact whether the Defendant’s employee had probable cause to believe that the Plaintiff was attempting to steal merchandise because it does not dispute that the Defendant’s employee had observed conduct that created probable cause to believe that merchandise was being stolen, e.g., merchandise was placed in a handbag and the cart was pushed past the cash registers without disclosing that there was merchandise in the handbag. Further, the Plaintiff’s statements about her mental processes, i.e., her intent, do not create a dispute of fact because her mental processes could not be observed. Instead, as discussed above, the Defendant’s employee formed his belief from the behavior that he observed. The Plaintiff does not offer any facts to dispute the observations. Further, the additional fact in the Plaintiff’s deposition that the Plaintiff’s friend, Lacoria Fluker, ran away when the Defendant’s employee approached is further grounds to find that the Defendant’s employee had probable cause to believe that merchandise was being stolen because it is reasonable to form the belief that there is an attempt to steal merchandise when a customer approaches the exit without paying for merchandise and then flees at the approach of an employee .

The Plaintiff offers no evidence that creates a dispute of fact with the Defendant’s evidence. Her testimony about her intent to go to the snack bar does not create a dispute whether the Defendant’s employee had observed sufficient behavior to have probable cause to believe that the Plaintiff was attempting to steal merchandise.

Therefore, the Court grants the Defendant’s motion for summary judgment because the undisputed facts establish that the affirmative defense of the merchant’s privilege is a complete bar to the Plaintiff’s Complaint.