Friday, April 6, 2012
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C.A. Applies Anti-SLAPP Law to Malicious Prosecution Claim
Panel Says Grocer’s Pursuit of Action Against Alleged Shoplifter Was Protected Activity
By KENNETH OFGANG, Staff Writer
A grocery chain engaged in protected activity, within the meaning of the anti-SLAPP law, when it pressed criminal charges against a suspected shoplifter, the Fourth District Court of Appeal has ruled.
In a ruling that distinguished between false arrest—which a prior Court of Appeal opinion held not to be protected activity—and malicious prosecution, Div. One affirmed the dismissal of Darin Johnson’s suit against Ralphs Grocery Company and Special Operations International, Inc., a private security company that contracted with Ralphs.
The opinion by Presiding Justice Judith McConnell was filed March 20 and certified yesterday for publication.
Johnson sued for malicious prosecution, negligence, and infliction of extreme emotional distress after successfully defending herself against theft charges. Her complaint alleged that she was arrested, handcuffed, detained for about two hours, and humiliatingly paraded through a Ralphs store in San Diego County.
Plaintiff’s Allegations
She claimed that she was falsely accused of shoplifting after she exchanged a previously purchased tablecloth for one of a different size, and paid for some firewood, which she then picked up outside the store. She alleged that she told the security officers that she had exchanged the tablecloth and paid for the firewood, but that they refused to confirm that with the manager and arrested her, and that the store and the security firm pressed criminal charges maliciously without probable cause.
San Diego Superior Court Judge William Cannon granted the defendants’ anti-SLAPP motions as to the malicious prosecution claim only, sustained demurrers by both defendants to the emotional distress claim, sustained Ralphs’ demurrer to the negligence claim, and overruled the security firm’s demurrer to that cause of action.
A number of Court of Appeal decisions have held that malicious prosecution claims necessarily arise from protected activity, McConnell noted in her opinion for the Court of Appeal. While Wang v. Hartunian (2003) 111 Cal.App.4th 744 held that false arrest claims do not arise from protected activity, the presiding justice noted, that holding is not inconsistent with the malicious prosecution cases.
“As the trial court noted here, however, the complaint does not include a false arrest cause of action,” the jurist noted. “The torts of malicious prosecution and false arrest are not interchangeable.”
Claims Distinguished
The two types of claims have different pleading requirements, McConnell noted, because in false arrest cases, the plaintiff need not plead favorable termination, lack of probable cause, or malice.
“The record does not suggest, and Johnson does not assert, that she made any attempt to amend her complaint to add a cause of action for false arrest,” the jurist explained. “Even if she had, however, the malicious prosecution cause of action was subject to the anti-SLAPP statute.”
Turning to the second prong of the anti-SLAPP analysis, the presiding justice agreed with the trial judge that Johnson lacked a prima facie case of malicious prosecution. Ralphs’ evidence, McConnell explained, showed that Johnson had no receipt for the firewood and that the cashier had no recollection of Johnson paying for it.
Other Causes of Action
McConnell went on to agree with the trial judge that Ralphs’ demurrers to the negligence and emotional distress claims were properly sustained. The hirer of an independent security contractor is vicariously liable for the intentional torts of the contractors’ employees, but not for their negligence, the jurist said.
To the extent the contractors’ employees were alleged to have engaged in intentional misconduct, including telling Johnson as she was escorted out of the store, “that’s what you get” and “you’re not welcome to shop here anymore,” that conduct did not rise to the level of outrageousness that must be shown for the plaintiff to prevail on a claim of intentionally inflicting emotional distress, McConnell wrote.
The case is Johnson v. Ralphs Grocery Company, D058312.
Copyright 2012, Metropolitan News Company