Metropolitan News-Enterprise


Friday, December 29, 2023


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C.A. Affirms Dismissal of Deputy Sheriff’s Lawsuit Based on Shoplifting Charges

Majority Says Costco Acted With Probable Cause; Dissenter Insistss Anti-SLAPP Motion Should Have Been Denied


By a MetNews Staff Writer


A lawsuit against Costco brought by a man who was arrested at the store’s behest and unsuccessfully prosecuted for shoplifting constituted a SLAPP, Div. Five of the Court of Appeal for this district held yesterday, prompting a dissent that not only disagreed with the majority’s conclusion but balked at the decision not to certify the opinions for publication.

Justice Carl H. Moor authored the majority opinion, in which Presiding Justice Laurence D. Rubin joined. Justice Lamar Baker penned the dissent.

Moor’s opinion affirms Los Angeles Superior Court Judge Stephen I. Goorvitch’s granting of Costco’s special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16.

The action against Costco and two of its employees at its Fontana store were sued by Los Angeles Sheriff’s Deputy Richard J. Gylfie based on his arrest on Aug. 31, 2016, and subsequent prosecution. Preceding the arrest, a store employee, Daniel Mihaila, alerted a loss prevention officer, Daniel Barreda, that he recognized Gylfie as a customer who, two weeks earlier, had placed a large bag of dog food atop two packages of razors in his cart in order to avoid paying for the razors; Barreda kept an eye on Gylfie, who proceeded to put two packs of razors in his cart, then placed a large bag of dog food on top of them.

The checker scanned the bag of dog food, leaving it in the cart, and did not scan the packages of razors.

Gylfie was detained after he left the store, with the razor blades—which cost $58.99 each—not having been paid for. Fontana police arrested him.

Gylfie was tried on misdemeanor charges, and the judge ordered a dismissal based on the lack of actus reus in light of the cashier having taken charge of the cart. The deputy sued for malicious prosecution.

 On March 9, 2022, Goorvitch observed that a malicious prosecution action always satisfies the first prong of the anti-SLAPP statute—protected conduct—because it stems from a prior judicial proceeding. Addressing the second prong, he said Gylfie cannot show minimal merit because he cannot prove that the criminal action was brought against him in the absence of probable cause, reasoning:

“There is no dispute that Plaintiff selected razor blades at the beginning of his visit to Costco, placed a large bag of dog food atop the razor blades, did not tell the checker that the razor blades were present, and left the store without paying for the razor blades. That alone demonstrates probable cause.”

The judge noted:

“There were proffers during the criminal trial that Plaintiff concealed two packs of razors—each of which cost $58.99—underneath dog food on August 15, 2016; Mihaila found the razors and cha[r]ged Plaintiff for them; Plaintiff then returned the razors to a different Costco store the next day; and then came back to Costco on August 31, 2016, again placing the razor blades underneath dog food.”

With respect to actus reus, he said:

“Arguably, the ‘actus reus’—defined as the wrongful deed that compromises the physical components of a crime—was the alleged act of hiding the razor blades underneath the dog food to ‘slip them past’ the checker. Even if the criminal court judge was correct in his ruling, this Court cannot go so far as to say that this theory is so lacking in probable cause as to constitute malicious prosecution. Arguably, concealing an item within the shopping cart is the same as placing the item in one’s pocket.”

He said that whether or not Gylfie was shoplifting, “the record demonstrates that there was probable cause for Barreda to think so” and “[e]ven if Barreda was wrong, there is no evidence of malice in the record.”

Gylfie was ordered to pay the defendants’ attorney fees in the amount of $2,100.

Moor’s Opinion

Moor agreed with Goorvitch’s analysis, with his opinion largely tracking it. He wrote:

“There was no dispute that Gylfie selected razor blades at the beginning of his visit to Costco, placed a large bag of dog food atop the razor blades, did not tell the cashier that the razor blades were present, and left the store. Those facts alone demonstrated probable cause.”

He also remarked: “The actus reus was the alleged act of hiding the razors under the dog food. Even assuming the trial court’s ruling was correct in the criminal case, it did not negate probable cause. Concealing an item in a shopping cart could be equivalent to placing an item in one’s pocket.”

Moor declared that “Gylfie has not produced evidence from which he could demonstrate that Defendants lacked probable cause,” he said, and therefore failed to satisfy the second prong of the anti-SLAPP statute.

Baker’s Dissent

Baker commented in his dissent:

“In a perverse way, it is a shame the majority does not publish its opinion. The majority holds Costco had sufficient cause to call the police on a shopper for theft when the shopper was not charged for an item despite placing the item in his shopping cart, tendering the cart to a Costco cashier at checkout, and submitting to an inspection of the cart before leaving the store. Worse, a Costco ‘loss prevention’ agent (a misnomer if ever there was one) saw the shopper was not charged for the item and let him leave the store without notifying the cashier or the cart-checker at the store’s exit, so as to manufacture a reason to report the shopper to the police—not the Keystone Kops, mind you, but a real police agency. The majority believes Costco cannot be faulted for this farce because of where the shopper placed the item in his shopping cart. And that gets us back to my comment about publication: if Costco shoppers are to have no remedy for being detained and reported to the police solely for their shopping cart placement decisions, they ought to at least have fair warning.”

The dissenter added: “For my part, I would reverse the trial court’s decision to grant Costco’s anti-SLAPP special motion to strike plaintiff and appellant Richard Gylfie’s (Gylfie’s) malicious prosecution complaint against the company. On the facts here, Gylfie has easily made the requisite minimal merit showing of favorable termination, lack of probable cause, and malice to proceed with his lawsuit. The majority’s contrary holding—adding attorney fees insult to Gylfie’s apparent malicious prosecution injury— runs directly counter to the purpose underlying the anti-SLAPP statute….This is not a case where we should be worried about chilling Costco’s ability to report shoppers to the police. To the contrary, Costco needs some chilling.”

The case is Gylfie v. Costco Wholesale Corp., B320694.

Gylfie’s Alleged Conduct

According to an Oct. 31, 2011, Courthouse News account, Gylfie’s conduct in allegedly harassing a photojournalist was cited in an action against the Sheriff’s Department brought by Shawn Nee, founder of the National Photographers’ Rights Organization, and two others, in the U.S. District Court for the Central District of California. The story recites:

“Nee says defendant Deputy Richard Gylfie stopped and searched him for taking photos in the subway on Oct. 31, 2009, and asked him if he planned to sell the pics to al Qaeda. Gylfie told him—falsely—that the Metro Transportation Authority banned photography.”

The report says that, according to the complaint, Gylfie told Nee:

“I want to know who you are, and I want to know why you’re taking pictures of the subway system. Al Qaeda would love to buy your pictures, so I want to know if you are in cahoots with Al Qaeda to sell those pictures to them for terrorist purposes. That’s, that’s a crime. You understand?”

Gylfie was detained, searched, and threatened the journalist, the complaint alleges, Courthouse News reported.

A settlement was reached under which the plaintiffs received, collectively, $50,000 and $340,000 in attorney fees and costs went to the ACLU of Southern California.


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