Monday, July 20, 2005
C.A. Revives Suit Against Store for False ‘Citizen’s’ Arrest
Rejects Ruling That Store’s Request to Police to Detain Man Who Supposedly Stalked Celebrity Shoppers Was Privileged
By Kenneth Ofgang, Staff Writer/Appellate Courts
The litigation or “official proceedings” privilege is no bar to a suit against the owner of a Melrose Ave. boutique by a man who claims the defendant’s employees falsely arrested him and exposed him to ridicule when he visited the store while Ben Affleck and Jennifer Lopez were shopping there, this district’s Court of Appeal ruled Friday.
Div. Eight reinstated Michael Buchanan’s suit against Maxfield Enterprises, Inc. Justice Madeleine Flier agreed with the plaintiff that Civil Code Sec. 47, which bars suit based on a “publication or broadcast” made in a legislative, judicial, or other official proceeding, does not protect “noncommunicative conduct” such as subjecting someone to arrest or causing a person to be shown in handcuffs in front of the media.
Buchanan, a retailer store manager himself, claims he was shopping at Maxfield’s “high-end fashion clothing” store in December 2002. He said he entered the store not knowing that Affleck, who is reportedly going to star in a film about the death of TV Superman George Reeves, and then-fiancée Lopez, who in addition to singing and acting owns a Pasadena restaurant, were shopping there.
Buchanan claims in his complaint that the store manager asked him to leave and would not give him a reason, and that the head of security, Michael Newson, asked sheriff’s deputies—who were on hand because of the presence of Affleck and Lopez—to remove him.
The Sheriff’s Department incident report says management wanted Buchanan arrested after he became “enraged,” that the head of security made a citizen’s arrest after deputies told him that was the only way it could be done, and that the deputies then handcuffed Buchanan and took him out to the parking lot, accompanied by Newson and store manager Jacqueline Sassoon.
The lot, according to the complaint, was “thronged” with media, and the restrained Buchanan was led “straight into the media circus” and “paraded around the store parking lot” before Sassoon told the deputies that she did not want Buchanan arrested after all. He was then released.
Buchanan alleges he became the subject of media reports falsely accusing him of stalking the two celebrities. His complaint accuses the company of false arrest and imprisonment, invasion of privacy, discrimination against “customers whom defendants deem ‘unworthy’ of shopping at their Melrose Avenue store,” infliction of emotional distress and general negligence.
Los Angeles Superior Court Judge Morris B. Jones sustained Maxfield’s demurrer, ruling that all causes of action were barred by Sec. 47.
But Flier, writing for the Court of Appeal, cited Wang v. Hartunian (2003) 111 Cal.App.4th 744, which allowed the plaintiff to sue a neighbor who made a citizen’s arrest for violation of an earlier restraining order requiring the plaintiff to leave the defendant alone.
The Wang court reasoned that while a citizen’s complaint to police is privileged, “placing someone placing someone under a ‘citizen’s arrest’ is not a ‘publication or broadcast’ within the meaning of section 47, and thus not privileged.”
“Accepting, as we must, the factual allegations of the complaint as true, it appears that the gravamen of the complaint is that Maxfield personnel effected a citizen’s arrest and that they, accompanied by sheriff’s deputies, thereafter took appellant out into the parking lot in handcuffs, in plain view of the assembled media. Neither event was ‘communicative in nature.’...Both events were conduct, and not communication. As in Wang v. Hartunian, it was not the police that effected the arrest, based on information given to them by Maxfield personnel. As in Wang v. Hartunian, it was a citizen’s arrest....”
The justice distinguished Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, in which the high court rejected an action by a woman who claimed that after she attempted to cash a check at a bank—which erroneously notified police that the check was forged—she was taken from the teller window, searched and handcuffed.
The Supreme Court held that the report to police was privileged, and that under prior authority, the only cause of action that can be pled on the basis of a report to police is malicious prosecution.
Hagberg and similar cases, Flier said, deal with communications, while Buchanan’s allegations “are predicated on conduct.”
The case is Buchanan v. Maxfield Enterprises, Inc., B177458.
Copyright 2005, Metropolitan News Company