Wheaton-Cain v. Radio Shack

Filed 3/22/07 Wheaton-Cain v. Radio Shack CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Dan Charles Dutcher for Plaintiff and Appellant.

Higgins Harris Sherman & Rohr, John J. Higgins and Dyan Flyzik for Defendant and Respondent.

Brandi Wheaton‑Cain sued Radio Shack Corporation for false imprisonment and malicious prosecution after she was arrested, charged with theft, and the charges later dismissed. The trial court granted Radio Shacks special motion to strike the complaint as a strategic lawsuit against public participation, i.e., SLAPP suit (Code Civ. Proc.,  425.16).[1] On appeal, Wheaton‑Cain contends: (1) her complaint was not subject to an anti‑SLAPP motion; and (2) she demonstrated a probability of prevailing. We disagree and affirm the judgment.

FACTS AND PROCEDURE

On January 16, 2005, Wheaton‑Cain was arrested for theft by police officers from the City of Garden Grove after an incident at a Radio Shack store. A felony complaint was filed by the district attorney, but the charges were eventually dismissed by the court for reasons that do not appear in the record. Wheaton‑Cain filed this action against Radio Shack and the City of Garden Grove for false imprisonment and malicious prosecution.[2] Her complaint alleged her husband bought a television set/monitor from the Radio Shack store. When Wheaton‑Cain opened the box at home, the instruction manual, remote control, cables, and warranty documents were missing. When Wheaton‑Cain brought the monitor back to the store, she was told by the store manager, Joseph Molina, it had recently been stolen from the store. Molina then maliciously and falsely accused her of stealing the [monitor], and called the police, who arrested Wheaton‑Cain.

Radio Shacks Anti‑SLAPP Motion

Radio Shack filed an anti‑SLAPP motion. It argued Wheaton‑Cains complaint fell within the purview of SLAPP because it arose out of Radio Shacks acts in furtherance of its right to petition, specifically Molinas calling the police concerning the theft of the monitor resulting in Wheaton‑Cains arrest by the police. Radio Shack also contended Wheaton‑Cain would be unable to show she had a probability of prevailing at trial on her causes of action.

Radio Shack submitted Molinas declaration. On January 12, 2005, he discovered a Magnivox TV/Monitor, serial number BZ000435125580, had been stolen from the store (hereafter, for convenience, referred to as the Subject Monitor). The Subject Monitor was used as the stores display model because it was defective. When Molina discovered the Subject Monitor was gone from the display rack, he saw its power cable had been disconnected, but the co‑axial cable that had been connected to the monitor was cut. Molina explained how, due to the layout of the store, it would be relatively easy for a customer to remove and abscond with a display model from the rack without being seen (a problem that has since been remedied by locking the models to the display rack).

The empty box for the Subject Monitor was locked in a back room. In accordance with Radio Shack policy, Molina obtained the monitors serial number from the box, and alerted other stores of the theft, advising that if someone attempted to return the Subject Monitor, it would be in a box with a serial number that did not match the monitor.[3] He did not report the theft to the police because there was no suspect in the theft.

Molina declared the Subject Monitor was a relatively expensive item (about $400) and not many were sold. When one was sold, it typically required extra effort by the salesperson. Molina also explained Radio Shacks policy that when a display or defective item was sold, the customer was either given a discount or an extended warranty at no charge. The free of charge premium or discount is documented on the sales receipt.

On January 14, 2005, a Radio Shack salesperson at the store sold a monitor in a factory sealed box that was identical to the Subject Monitor (hereafter, the Purchased Monitor). It was a cash sale and unusual because it occurred very quickly requiring no effort on [the sales persons] part . . . . The receipt given for the Purchased Monitor did not indicate a discount or free of charge premium was given, which meant it was not the display model that had been sold.

On January 16, 2005, Wheaton‑Cain and her husband came to the store with a monitor they said was missing parts. When Molina removed the monitor from the box, he recognized it as the stolen Subject Monitorit was faded and scratched. The serial number on the box did not match the monitor inside (which bore the serial number of the Subject Monitor). Wheaton‑Cain presented the receipt that had been given upon sale of the Purchased Monitor two days earlier. Molina immediately called Radio Shacks theft prevention manager, who advised him to call the police. Molina told Wheaton‑Cain and her husband he was going to call the police. Wheaton‑Cains husband quickly left the store. Wheaton‑Cain, however, consented to Molina calling the police and remained. Molina called the police, and when they arrived, they spoke to Molina and Wheaton‑Cain separately. When Wheaton‑Cain became loud, the police took her outside.

Wheaton‑Cains Opposition to the Anti‑SLAPP Motion

Wheaton‑Cains original opposition addressed only the applicability of SLAPP, and she specifically declined to present any evidence or argument concerning whether she had a probability of prevailing on any of her causes of action. The trial court later allowed Wheaton‑Cain to file supplemental opposition, in which she devoted only one sentence of argument on whether she had a probability of prevailing. She listed facts and documents she would rely upon at trial, but offered no explanation as to how they supported the elements of her causes of action.

Wheaton‑Cain submitted her own declaration with her supplemental opposition. In it, she stated on the evening of January 14, 2005, her husband told her he bought her a TV/monitor as a late Christmas present. The next morning, Wheaton‑Cain opened the box and found only a monitor insidethe instruction manual, remote control, and cables were all missing. She called the store and said she wanted to come to pick up the missing items, but was told she had to bring back the monitor in its original packaging with the purchase receipt. When Wheaton‑Cain and her husband came into the store with the monitor, box, and receipt, Molina said he needed to call the police because the monitor had been stolen. Wheaton‑Cain said, fine[,] what ever he needed to do but I wasnt . . . leaving without my monitor or missing items. (In her complaint, Wheaton‑Cain alleged when Molina said he was going to call the police, she replied Thats fine, call the police and Ill tell them that either I want the missing remote, etc.[,] or you have to refund the [money].) According to her declaration, once the police arrived, all further discussions Wheaton‑Cain had were with the police officers, who ultimately arrested her.

Ruling

The trial court granted Radio Shacks anti‑SLAPP motion commenting Wheaton‑Cain had produced no competent evidence indicating she would prevail on her claims. The court specifically noted Wheaton-Cain had produced no evidence Radio Shacks representative acted with malice or without probable cause. Wheaton‑Cain was ordered to pay Radio Shack $2,700 in attorney fees.

DISCUSSION

1. Anti‑SLAPP Law

Section 425.16, subdivision (b)(1), provides A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

In ruling on an anti‑SLAPP motion, the trial court engages in a two‑step analysis. First, the defendant must show the activity underlying the cause of action is constitutionally protected. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If so, then the plaintiff must show a likelihood of prevailing on the cause of action. (Ibid.) In meeting that burden, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.] (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Only a cause of action that satisfies both prongs of the anti‑SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) On appeal, we examine both questions de novo, conducting an independent review of the entire record. [Citations.] (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212, see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.)

2. No Intent to Chill Requirement

Wheaton‑Cain contends her complaint is not subject to an anti‑SLAPP motion because her motive was not to chill Radio Shacks exercise of protected rights. Our Supreme Court confirmed in Equilon, supra, 29 Cal.4th at page 59, that there is no intent‑to‑chill proof requirement[.] There simply is nothing in the statute requiring the court to engage in an inquiry as to the plaintiffs subjective motivations before it may determine [whether] the anti‑SLAPP statute is applicable. [Citation.] (Id. at p. 58.) The only relevant inquiry is whether the cause of action arises out of protected activity and whether the plaintiff has established a probability of prevailing on the claim.

3. Arising Out of Prong

Wheaton‑Cain contends her complaint is not subject to an anti‑SLAPP motion because it does not arise out of protected activity. We disagree.

An anti‑SLAPP motion may be brought as to any cause of action arising from the defendants acts in furtherance of: (1) its right of petition; or (2) constitutionally protected free speech in connection with a public issue. ( 425.16, subd. (b)(1).) Section 425.16, subdivision (e), provides protected acts include: (1) statements made before a[n] . . . executive, or judicial proceeding, or any other official proceeding authorized by law; (2) statements made in connection with an issue under consideration or review by a[n] . . . executive, or judicial body, or any other official proceeding authorized by law; (3) statements made in a public place or public forum in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Wheaton‑Cains complaint plainly arises from Radio Shacks exercise of its protected right to petition. The gravamen of her complaint is that Radio Shacks employee, Molina, called the police and accused her of stealing the Subject Monitor. The police investigated and arrested Wheaton‑Cain. The district attorney charged her, but the court later dismissed the charges. As the trial court noted, the right to call police and have them investigate crimes is an aspect of the right to petition government . . . .

Although Wheaton-Cain protests that no case has ever permitted invocation of the anti-SLAPP law by a retailer in the context of a false arrest action[,] we have no doubt it is properly invoked in these circumstances. In Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364, the Supreme Court confirmed that making a report to

police concerning alleged criminal activity is absolutely privileged under Civil Code section 47, subdivision (b). Furthermore, activity that is absolutely privileged under the litigation privilege is also protected under section 425.16, subdivision (e). (See Wang v. Hartunian (2003) 111 Cal.App.4th 744, 748 (Wang); see also Equilon, supra, 29 Cal.4th at pp. 64‑65.) Thus, any statements made by Molina to the police alerting them to suspected criminal activity are subject to the absolute privilege of Civil Code section 47, subdivision (b), and come within the protections of section 425.16.

This is not a case in which it is alleged Molina (or any other Radio Shack employee) physically detained Wheaton‑Cain or effected a citizens arrest. For example, in Wang, supra, 111 Cal.App.4th 744, the court concluded the defendants conduct in making a citizens arrest of the plaintiff, after which the plaintiff was delivered to police custody, was not a protected activity within the meaning of section 425.16. (Id. at p. 752; see also Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1136‑1137 [while reporting suspected criminal activity to police is subject to litigation privilege of Civ. Code,  47, subd. (b), noncommunicative act of effecting a citizens arrest is not].) Here, Molina called the police reporting suspected theft activity. The police investigated and made the decision to arrest Wheaton‑Cain. Even though charges were eventually dropped, Molinas acts fell within the purview of the anti-SLAPP statute.

4. Probability of Prevailing

Once we determine that the anti‑SLAPP statute applies, the burden then shifts to the plaintiff to demonstrate a probability of prevailing. [Citation.] If the plaintiff does so, the motion to strike under the anti‑SLAPP statute must be denied. To establish the requisite probability of prevailing, the plaintiff must state and substantiate a legally sufficient claim. [Citation.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citation.] (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843.)

Wheaton‑Cain makes no reasoned attempt on appeal (nor did she below) to demonstrate she has a probability of prevailing on her causes of action against Radio Shack. Her complaint purported to state causes of action for false imprisonment and malicious prosecution. Nowhere in her brief does she so much as mention the elements of either tort, let alone offer to explain how the minimal evidence she produced below established any of the elements. Wheaton‑Cains argument on appeal is comprised of two sentences. The first lists a few of her alleged facts (i.e., her husband bought the item in question, Molina called the police when she came to the store to get the missing parts, and told police Radio Shack wanted to prosecute). The second is a cryptic citation to Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, a case that has no bearing here.[4] This hardly carries Wheaton‑Cains burden. Although our review is de novo, Wheaton‑Cain must support her claim of error with reasoned argument, discussion of legal authority, and citation to the record, and she must affirmatively demonstrate error. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115‑1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) As she has completely failed to do so, we conclude the issue is waived.

5. Attorney Fees

As the prevailing defendant on an anti‑SLAPP motion, Radio Shack was awarded its attorney fees below. ( 425.16, subd. (c).) The statutory authorization for an attorney fees award at the trial court level includes appellate attorney fees as well. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) The amount is best left for the trial court to decide.

DISPOSITION

The judgment is affirmed. The Respondent shall recover its costs and attorney fees on appeal, the amount of which shall be determined by the trial court.

OLEARY, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[2] The City of Garden Grove is not a party on this appeal.

[3] A letter from Radio Shacks in house counsel to Wheaton‑Cains attorney was included with Radio Shacks anti‑SLAPP motion. In it, Radio Shacks counsel explained that often a thief buys an item and steals the same product, later returning one for a refund.

[4] Wheaton‑Cain cites Cervantez, supra, 24 Cal.3d 579, as holding that whenever a retailer causes a customers warrantless arrest, the retailer must justify the arrest. But Cervantes involved a detention and citizens arrest of the plaintiff for shoplifting by the retailers private security guard. Here, there are no facts suggesting Radio Shacks employee detained or arrested Wheaton‑Cain.