Opinion
B162857.
10-1-2003
TRISHA RA KEO, Plaintiff and Appellant, v. NORDSTROM, INC., Defendant and Respondent.
Law Offices of Steven R. Young and Steven R. Young for Plaintiff and Appellant. Stone, Rosenblatt & Cha, Gregory E. Stone and Suzanne R. Feffer for Defendant and Respondent.
INTRODUCTION
Appellant and plaintiff Trisha Ra Keo (Keo) appeals from entry of judgment following the dismissal of her suit against Nordstrom arising from false accusations that Keo stole store merchandise. On the date set for trial, the trial court gave Keo one days notice to respond to the courts motion for judgment on the pleadings brought pursuant to Code of Civil Procedure section 438, subdivision (b)(2). The trial court granted the motion after reviewing Keos deposition and concluding that even if Keo amended her form complaint, she could not state a cause of action because the merchants privilege applied, and Keos detention during the investigation into the alleged theft was reasonable as a matter of law. We conclude that the trial court abused its discretion in failing to give Keo an opportunity to amend her complaint. We reverse the judgment.
All further statutory references in this Opinion are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal comes to us from an order granting a motion for judgment on the pleadings, we accept as true the facts stated in the complaint. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 647, fn. 1.)
The facts, as stated in Keos judicial form complaint, are as follows. On October 20, 2000, Keo was shopping at Nordstrom in the Los Cerritos shopping mall. Keo left Nordstrom and was walking to her car. In the parking lot, a Nordstrom employee approached Keo, accused her of stealing, and demanded to see insider her purse. Keo cooperated and "proved her innocence." The Nordstrom employee, however, asked Keo to return to the store. Keo returned and waited in the public lobby of the store for 15 minutes. While there, she was "slandered as a thief." Nordstrom security then took Keo to a private office where she was questioned and detained for an additional two hours.
Apparently, both parties acknowledge that the date in the form complaint is incorrect. The incident occurred on January 20, 2001.
Following the incident, Keo sued Nordstrom for general negligence and unspecified intentional torts.
On September 17, 2002, Keos case was set for trial. But the case did not proceed to trial. On September 18, 2002, the trial court on its own motion granted a motion for judgment on the pleadings and dismissed the action. The trial court concluded that Keo could not state a claim for false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress, because the merchants privilege applied to those claims and a two-hour detention was reasonable as a matter of law. The trial court also dismissed Keos slander cause of action, concluding that "[t]he only publication was among store employees." The trial court entered the order of dismissal on October 15, 2002, and Keo timely appealed.
CONTENTIONS
Keo contends that the judgment must be reversed for two reasons. First, the trial courts motion for judgment on the pleadings on one days notice denied her due process. Second, the trial court abused its discretion in granting the judgment on the pleadings without leave to amend.
STANDARD OF REVIEW
A motion for judgment on the pleadings may be made on the same ground as a general demurrer, that is, that the pleading at issue fails to state facts sufficient to constitute a cause of action. (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144; § 438, subd. (c)(3)(B)(ii).) In reviewing the complaint, we accept as true the properly pleaded allegations of fact therein, but not the contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
We review the trial courts failure to grant leave to amend under the abuse of discretion standard. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260.) Keo has the burden to show an abuse of discretion, and to do so, she must show how the complaint can be amended to state a cause of action. (Dudley v. Department of Transportation, supra, at p. 260.) Such a showing may be made in the first instance to the reviewing court. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
DISCUSSION
The Trial Court Abused Its Discretion in Denying Keo Leave to Amend Because Keo Has Proffered Amendments to Cure the Pleading Defects in Her Complaint
Keos counsel acknowledged at oral argument the apparent deficiencies with the allegations in the form complaint. On appeal, Keo points to the statement of facts in her opening brief with which she would amend the complaint if allowed to do so. These proposed allegations, in combination with the vague allegations of the form complaint, establish a basis upon which a trier of fact could conclude that Keo has stated a cause of action for false imprisonment, slander, and intentional infliction of emotional distress. Keo, however, has not met her burden to show that she can amend to plead the elements of a negligence cause of action. (Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 260.)
As noted in Keos reply brief, some of the proposed amendments are based on Keos deposition testimony. In denying Keo leave to amend, the trial court took judicial notice of Keos deposition testimony to conclude that she could not state a cause of action. The trial court erred in doing so. While judicial notice is appropriate to establish the existence of the material in court records, it does not mean that a court may judicially notice the truth of the statements contained in a deposition transcript filed or lodged as part of its record. (Evid. Code, § 452 subd. (d); Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22; see also 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, §§ 24-25, pp. 118-120.) Here, the existence of Keos deposition could be judicially noticed, but the truth of her deposition testimony is not subject to judicial notice.
1. False Imprisonment
Keos proposed amendments are sufficient to allege a cause of action for false imprisonment. To state a claim for false imprisonment Keo must allege a nonconsensual, intentional confinement, without lawful privilege, for an appreciable length of time. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) Merchants, such as Nordstrom, may rely on a privilege. The merchants privilege allows Nordstrom, on probable cause to believe a theft has been committed, to detain the suspected person for a reasonable time, to conduct an investigation in a reasonable manner. (Id. at p. 716; see also Collyer v. S. H. Kress & Co. (1936) 5 Cal.2d 175, 181; Roberson v. J. C. Penney Co. (1955) 136 Cal.App.2d 1, 5; Aitken v. White (1949) 93 Cal.App.2d 134, 141; Pen. Code, § 490.5, subd. (f)(1).) The trial court, apparently relying on the allegations and Keos deposition transcript, concluded that Keos detention was reasonable as a matter of law.
Keos proposed amendments address the reasonableness of her detention. Keo asserts that if she had an opportunity to amend, she would state the following.
Keo was initially detained by a Nordstrom employee and accused of stealing a necklace. The Nordstrom employee stated that Keo had the necklace in her purse. Keo tried to explain that she had not taken the necklace and opened her purse to show the Nordstrom employee that she did not have the necklace. Even after Keo did so, the Nordstrom employee asked Keo to return to the store. Keo waited in the store for approximately 20 minutes and then the security manager took her upstairs. She waited for the store manager. The store manager apologized for the inconvenience. Keo was detained for more than two hours before she was allowed to leave the store. These proposed amendments allege facts concerning the reasonableness of Keos detention and cure the prior pleading defects in the form complaint.
2. Slander
Keo claims this cause of action is based on the Nordstrom employees allegedly false accusations that she stole store merchandise. "Slander is a false and unprivileged publication, orally uttered, . . . which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime." (Civ. Code, § 46.) In the proposed amendments, although Keo states that the Nordstrom employee told everyone that she caught Keo, not that she stole the merchandise, by implication she was accusing Keo of theft. This additional fact, plus the allegations in the form complaint, is sufficient to allege a cause of action for slander.
3. Intentional Infliction of Emotional Distress
Based on the proposed amendments, Keo should have been given an opportunity to amend to cure any deficiencies in her cause of action for intentional infliction of emotional distress. "The elements of the tort of intentional infliction of emotional distress are: ` "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. . . ." Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
While the mere insult and indignity of the detention may not exceed the bounds of conduct tolerated by a civilized society, Keo has stated that in addition to her detention, the Nordstrom employee told other employees that she caught Keo, implying Keo had committed a crime, and made fun of Keos Cambodian accent. These additional allegations are sufficient to state a cause of action.
4. Negligent Supervision and/or Training
Although the trial court assumed Keos negligence claim was based upon negligent infliction of emotional distress, on appeal Keo argues that her negligence cause of action is one for negligent supervision and/or training. Keo asserts that her proposed amendments are sufficient to show that Nordstrom was negligent in either supervising or training its employees, resulting in her unreasonable detention. While an employer may be liable to a third person for negligently training, hiring, supervising, or retaining an unfit employee, liability arises only when a risk of harm is foreseeable. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) This is where Keos claim remains insufficient.
Keos proposed amendments do not set forth facts to sufficiently allege the requisite foreseeability to establish a duty. Keo would allege that the security manager commented to her that the Nordstrom employee who originally detained Keo should not have done so but should have instead summoned security. This allegation, however, is not sufficient to plead foreseeability in order to maintain a claim for negligent supervision or training.
In sum, the proposed amendments cure the defects in Keos false imprisonment, slander, and intentional infliction of emotional distress causes of action. But, if Keo intends to proceed on these causes of action at trial, her amended complaint must clearly set forth these causes of action and the factual allegations she relies on to support them. Because we conclude that the trial court abused its discretion in denying Keo an opportunity to amend her form complaint, we need not reach Keos due process contention raised in this appeal.
DISPOSITION
For the reasons stated, the order of dismissal is reversed except as to Keos negligence cause of action. As to that cause of action, the judgment is affirmed. The matter is remanded with directions to grant Keo leave to amend her complaint and to conduct further proceedings consistent with the views expressed herein. Keo shall recover costs on appeal.
We concur: KLEIN, P.J., ALDRICH, J.