Opinion
B320694
12-27-2023
RICHARD GYLFIE, Plaintiff and Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant and Respondent.
Law office of Zulu Ali & Associates and Zulu Ali for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Amy A. Evenstad for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of Los Angeles County, No. 21STCV27692 Stephen I. Goorvitch, Judge. Affirmed.
Law office of Zulu Ali & Associates and Zulu Ali for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Amy A. Evenstad for Defendant and Respondent.
MOOR, J.
Plaintiff and appellant Richard Gylfie (Gylfie) appeals the trial court's order granting defendants and respondents Daniel Barreda (Barreda), Joseph Acilio (Acilio), and Costco Wholesale Corporation's (Costco) (collectively Defendants) special motion to strike his sole cause of action for malicious prosecution under Code of Civil Procedure section 425.16 (Anti-SLAPP motion).
All future statutory references are to the Code of Civil Procedure unless otherwise indicated.
We affirm the trial court's order granting Defendants' Anti-SLAPP motion and the court's judgment dismissing the case with prejudice.
We construe Gylfie's appeal to include an appeal from the judgment.
FACTS AND PROCEDURAL HISTORY
Allegations of the First Amended Complaint
The operative first amended complaint (FAC) alleged the following:
Gylfie was an officer of the Los Angeles County Sheriff's Department. On August 31, 2016, Gylfie was shopping at the Costco warehouse. Gylfie selected two packages of Gillette razors displayed at the front of the warehouse and placed them in his shopping cart. Gylfie continued shopping, and placed a total of 21 items in the cart, "essentially burying the shaving razors at the bottom of the basket."
At that time, Barreda was employed by Costco as a loss prevention agent. Acilio was employed by Costco as a front-end manager. Acilio, Barreda, a manager named Kevin Frank, and cashier Daniel Mihaila communicated with each other regarding the razors in Gylfie's cart. Barreda advised Acilio that the razors in the cart had been concealed under a bag of dog food, rather than inadvertently buried.
Gylfie got into cashier Andrea Reid's check-out line. Acilio "had Reid instructed" not to pick up the dog food bag. Gylfie unloaded many items from his cart and placed them on the conveyor belt. Reid then took possession of the cart to scan the remaining items, which included the dog food and the razors. Costco employees are required to shift and tilt heavy items to scan any items underneath them. Reid failed to scan the razors, which were "buried under the bag of dog food" because she did not pick up the dog food pursuant to Acilio's instructions.
After she scanned Gylfie's items, Reid informed him of the total cost. The total did not include the price of the razors, which cost $117.98. Gylfie paid, took possession of the cart, and proceeded out of the warehouse with his items. Acilio, Barreda, Frank, and Mihaila all knew that the razors were underneath the dog food and that Reid failed to scan them. A Costco customer services employee checked Gylfie's cart and receipt before he exited, but did not discover the razors in the cart or realize the razors were not on the receipt. The customer services employee highlighted Gylfie's receipt to indicate that there were no discrepancies found and authorized Gylfie to leave the store with the items.
Immediately after Gylfie exited the warehouse, Barreda, Acilio, and Frank stopped Gylfie and falsely arrested him for taking merchandise out of the warehouse without paying for it. Barreda instructed Gylfie to return to the store, and Gylfie complied.
Barreda informed Gylfie that he had seen Gylfie put the razors in his cart and place the dog food on top of them, Reid take possession of the cart and fail to move the dog food or scan the razors, Gylfie fail to pay for the razors, and the customer service person fail to identify that the razors had not been paid for. Barreda then accused Gylfie of stealing the razors and insisted that he sign a confession. Barreda told Gylfie that if he signed a confession he could leave and would only lose his Costco membership, but that if he did not sign a confession Barreda would call the police and Gylfie would go to jail. Gylfie refused to sign a confession and Barreda called the Fontana Police Department to apprehend Gylfie for theft.
When Fontana police stated that Gylfie had not committed a crime, Barreda and Gylfie maliciously fabricated a story that on August 15, 2016, there had been another criminal incident in which Gylfie was confronted about razors that had not been paid for. Barreda also misrepresented that it was Costco's policy that cashiers were only responsible for scanning items in plain view, despite knowing that Reid had violated procedure by failing to move the dog food at Acilio's direction.
Costco revoked Gylfie's membership based on Acilio, Barreda, Frank, Mihaila, and Reid's misconduct. Barreda and Frank told the district attorney that Gylfie had stolen razors and encouraged the district attorney to criminally prosecute Gylfie.
On September 20, 2016, the district attorney commenced a criminal proceeding against Gylfie. The action included a single count of theft occurring on August 31, 2016.
On October 12, 2016, the Los Angeles County Sheriff's Department relieved Gylfie from duty as a direct result of Defendants instigating the prosecution.
On March 9, 2017, in response to a subpoena, Frank responded that "no disciplinary conduct regarding the August 31, 2016, transaction existed."
On August 17, 2017, the district attorney filed a first amended misdemeanor complaint against Gylfie. It contained the prior count for theft on August 31, 2016, and an additional count of theft on August 15, 2016.
Costco and the district attorney knowingly and intelligently brought the second cause of action after the statute of limitations had passed for the malicious purpose of intimidating Gylfie into accepting a plea bargain in connection with the count for the August 31, 2016 theft.
On June 20, 2019, the trial court in the criminal case stated that there was no theft on August 15, 2016, and dismissed count 2.
Gylfie's criminal trial commenced on August 6, 2019. Costco was present at the trial and encouraged the district attorney to prosecute Gylfie. Barreda testified against Gylfie. Barreda misrepresented in testimony that Costco policy required cashiers to scan items in plain view. After the district attorney presented evidence and gave a closing statement, the trial court found that insufficient evidence supported the charge and terminated the action on the merits in Gylfie's favor. Gylfie requested that Costco reinstate his membership, but Costco refused to do so.
The FAC contained one cause of action for malicious prosecution. The FAC alleged that Defendants were actively involved in causing Gylfie to be arrested and prosecuted. It further alleged that Defendants lacked probable cause to believe that Gylfie should be arrested and prosecuted for theft in light of Costco's policies and Defendants' violations of those policies, and that Defendants' actions were malicious. The FAC stated that the criminal action against Gylfie was terminated in his favor. Defendants' conduct was a substantial factor in causing Gylfie's harm and damages, and warranted an award of punitive damages.
Costco's Anti-SLAPP Motion and Supporting Evidence
Motion
Defendants filed an Anti-SLAPP motion to strike the FAC. Defendants first argued that their actions were made in furtherance of their constitutional rights to freedom of speech and petition for redress of grievances, which are privileged pursuant to Civil Code 47, subdivision (b) and cannot be the subject of a malicious prosecution action.
Defendants argued that the FAC's sole cause of action for malicious prosecution arose from activity protected by the Anti-SLAPP statute-reporting criminal activity to police and testifying at trial. The activity was protected under section 425.16, subdivisions (e)(1) and (e)(2) because Defendants' statements were made in connection with a judicial proceeding or in furtherance of a judicial proceeding. Their statements and actions were also protected under section 425.16, subdivision (e)(4) as petitioning activity related to a matter of public interest.
Given that the conduct at issue was protected activity, the burden shifted to Gylfie to establish that he had a probability of prevailing on the merits; Gylfie could not meet that burden. Malicious prosecution has three elements: (1) the underlying lawsuit was pursued to a legal termination in favor of the plaintiff, (2) the lawsuit was brought without probable cause, and (3) the lawsuit was initiated with malice.
Defendants argued that Gylfie could not show Defendants lacked probable cause to bring the lawsuit: he could not demonstrate that no reasonable attorney would have thought that the action was tenable. Defendants reasonably believed that Gylfie stole the razors. They were made aware that he had previously attempted to steal razors by concealing them under dog food. Barreda witnessed Gylfie concealing razors under dog food, failing to pay for the razors, and exiting the store. A reasonable person would have suspected Gylfie of theft. At the criminal trial, the court stated that it believed Gylfie intended to steal. Defendants merely reported the crime. The police had to determine whether it was appropriate to report to the district attorney.
Defendants also argued that Gylfie could not show Defendants acted with malice, because Defendants had a good faith basis for believing that Gylfie was stealing the razors.
Defendants sought attorneys' fees under the Anti-SLAPP statute.
Defendants concurrently filed a motion to strike portions of the FAC under Code of Civil Procedure 435, et seq., which the trial court denied as moot after it granted the Anti-SLAPP motion.
Supporting Evidence
Barreda's Declaration
Barreda's declaration was attached to the motion. Barreda stated that he was employed by Costco as a loss prevention agent. Approximately one week before August 31, 2016, Mihaila told Barreda that Gylfie attempted to steal razors by concealing them under a large bag of dog food on or about August 15, 2016. Mihaila was the cashier for Gylfie that day. Mihaila spotted the concealed razors and asked Gylfie to pay for them. Mihaila believed that Gylfie intended to steal the razors because of the way that they were concealed.
On August 31, 2016, Mihaila pointed Gylfie out to Barreda, who then watched Gylfie as he was shopping. Barreda observed Gylfie select two packs of razor blades and place them in the section of the cart where infants are placed. Gylfie later placed the razors in the main basket, first lining them up in the center of the basket and then placing dog food on top of them. Gylfie made his way to the register, and he gave the basket to the cashier, who was not Mihalia, but a different cashier. Barreda did not see Gylfie inform the cashier that the razors were under the dog food. The cashier did not uncover the razors and did not include them in Gylfie's receipt. Barreda did not instruct the cashier to lift the dog food bag because he did not believe it was his duty to do so. Barreda stopped Gylfie after Gylfie exited the store without paying for the razors. Barreda asked Gylfie to accompany him to the Costco office and Gylfie complied. Barreda was not instructed to contact the police, but from his training he knew that he needed to do so. Barreda did not know what the police would do with the information and did not tell the police to take any certain action.
Barreda was later contacted by the district attorney who informed him that the police had referred the matter to them. In response to the district attorney's questions, Barreda relayed what he witnessed on August 31, 2016, and told the district attorney that he had been informed that Gylfie attempted to steal razors in the same manner a week earlier. Barreda did not know what the district attorney intended to do with the information until he was subpoenaed as a witness in the criminal trial.
Barreda did not have malicious intent and he testified truthfully at the trial. Barreda informed his supervisor at Costco that he would be testifying. No supervisor, manager, or other Costco Executive told him what to say to the district attorney or in court. Barreda testified in response to a subpoena, not because Costco told him to. He genuinely believed that Gylfie intended to steal the razors based on the information that he had at the time of the incident and what he personally witnessed.
Reporter's Transcript of the Criminal Trial
The reporter's transcript of Gylfie's criminal trial was also attached to the motion as Exhibit A. The reporter's transcript contained the trial court's rulings dismissing counts 1 and 2, as well as Barreda's testimony.
Prior to trial, the court dismissed count 2, relating to the alleged August 15, 2016 incident, because it did not constitute a theft and the statute of limitations had run.
At trial, Barreda testified that he had been employed by Costco as a loss prevention agent from approximately March of 2012 until 2017. His job was to help prevent theft through surveillance on the floor and on cameras. On August 31, 2016, Barreda surveilled Gylfie. Barreda observed Gylfie select two packages of razor blades and place them in the child seat area of his shopping cart. Gylfie continued shopping, adding various items to the cart. Gylfie then went to the area of the store where dog food is located and moved the razor blades from the child seat to the larger section of the shopping cart, "lined them up right in the middle of the basket, and placed the dog food right on top of the razor blades as to conceal them from plain view." Gylfie laid two bags of dog food directly on top of the razor blades. Gylfie spent a few minutes arranging the razors and dog food. At that point there were approximately 10 items or less in Gylfie's shopping cart. When he reached the check-out line, Gylfie placed multiple items on the conveyor belt. The cashier then took possession of the cart, which still contained the dog food and the razor blades underneath the dog food. The dog food was never moved from the cart. The cashier scanned it with a register gun. The razors remained beneath it the entire time. Gylfie paid for the merchandise, but did not pay for the razors because they had not been scanned. Gylfie then began to leave the warehouse. Gylfie went to the area where receipts and merchandise are verified. A member services employee reviewed the receipt and drew a yellow line down the center to signify that all items were accounted for. Gylfie then left the warehouse. Barreda approached Gylfie and asked him to come inside and pay for the merchandise that was still in his cart. Barreda reviewed Gylfie's receipt, which did not include the cost of the razors. The razors were still in Gylfie's cart underneath the dog food. The two packs of razors cost $58.99 each.
During Barreda's testimony, the court admitted two exhibits consisting of surveillance video of Gylfie. At the hearing on the Anti-SLAPP motion, the videos were not provided as evidence or considered by the trial court.
When he stopped Gylfie, Barreda believed that the cashier was responsible for scanning items in plain view. At the time Barreda was not aware that it was the cashier's responsibility to shift any large items to ensure there were no items underneath. Barreda never approached the cashier to tell her there was something in Gylfie's cart. Barreda believed that instructing the cashier fell within the manager's duties; his duties as a loss prevention agent did not include instructing the cashier regarding how to do her job.
After the presentation of evidence concluded, the trial court heard and granted Gylfie's motion to dismiss pursuant to Penal Code 1118.1. The trial court stated that the cashier and member services employee took possession of Gylfie's cart and did not properly check under the dog food, so there was no actus reus even if Gylfie had the intent to steal.
Opposition and Supporting Evidence
Opposition
Gylfie opposed Defendants' Anti-SLAPP motion. Gylfie conceded that the first prong of the Anti-SLAPP motion was met. He argued that Civil Code section 47, subdivision (b) does not apply to malicious prosecution actions, and asserted that he could show a probability of success on the merits because he met all three elements for malicious prosecution.
As to the first element of a claim for malicious prosecution, Gylfie argued that Defendants procured the police to institute a malicious criminal prosecution-they called police, requested Gylfie's arrest, and made false statements about Gylfie, the events on the day in question, and Costco's policies. This continued into trial.
The criminal proceeding was terminated in Gylfie's favor. The court dismissed count 1, charging theft on August 31, 2016, pursuant to Penal Code section 1118.1. The court dismissed count 2, charging theft on August 15, 2016, based on its determination that no theft occurred. The court also found multiple wrongful acts by Defendants.
As to the second element of malicious prosecution, Gylfie contended Defendants had no probable cause to prosecute the criminal case against him in light of Costco employees' violations of Costco policies and the absence of any evidence that Gylfie stole the razors. Gylfie surrendered his cart and paid the total that the cashier requested. He reasonably believed the transaction was complete. He then willingly presented his cart for examination. Defendants knew their own actions interfered with Gylfie's ability to pay for the items. Barreda misrepresented Costco policy to police.
As to the third element, Gylfie contended Defendants acted with malice. They conspired and contravened Costco's policies, watched the cashier take possession of the cart and fail to scan all items, and offered to allow Gylfie to leave if he voluntarily surrendered his Costco membership. Police were called because Gylfie refused to comply with Defendants' "strongarm demands" and sign a confession. Defendants sought to ensure that they could deprive Gylfie of his Costco membership without cause through harassment. Defendants continued to prosecute the action even though they knew they lacked probable cause.
Supporting Evidence
Attached to the opposition were Gylfie's declaration, an incident report by the Fontana Police Department regarding the alleged August 31, 2016 theft, the misdemeanor complaint filed on September 20, 2016 alleging a single count of theft occurring on August 31, 2016, a document entitled "Front End Manual", a document entitled Costco's objections to Gylfie's subpoena duces tecum that did not bear a file stamp, the first amended misdemeanor complaint filed on August 17, 2017 alleging two counts of theft occurring on August 15, 2016, and August 31, 2016, excerpts from the reporter's transcript of the underlying criminal trial, and the report of Martin Deiro, a defense investigator, relating to a telephone interview with Mihaila.
Gylfie's declaration repeated the allegations in the FAC and described the August 31, 2016 incident as Gylfie perceived it. Gylfie's description of events was consistent with the allegations contained in the FAC.
The Fontana Police Department report included summaries of interviews the reporting officer conducted of Barreda and Gylfie. Barreda's statements were consistent with his declaration and testimony at the criminal trial. Barreda informed the officer that on August 15, 2016, Gylfie was confronted regarding the razors in his cart, and "paid for the merchandise and left the store without further incident." Barreda said that it was Costco policy for cashiers to leave heavy items in the customer's cart. Barreda told the officer that on August 31, 2016, he stopped Gylfie outside the warehouse and asked Gylfie if there were any items underneath the dog food in his cart. Gylfie said no, but permitted Barreda to check. Barreda lifted the dog food. The razors were still underneath it. Gylfie denied that he knew the razors were underneath the dog food, and explained that he was distracted and did not notice that the cashier did not scan them.
Gylfie told the officer that he had placed razors in his cart on August 31, 2016. He loaded multiple items on the conveyer belt at the register. The cashier stopped Gylfie and told him that he could leave heavy items in the cart. Gylfie assumed the cashier scanned all of the items. He paid for the merchandise and left the store. Outside, Barreda stopped Gylfie and asked if there was anything under the bag of dog food. Gylfie responded that he did not think so. After Barreda found the razors, Gylfie said he forgot they were under the dog food and assumed the cashier would have seen them. Gylfie denied that he was confronted about paying for razors approximately two weeks earlier. He denied ever stealing from Costco and explained that he made a mistake.
It is not necessary to catalog the remaining evidence attached to the opposition. The trial court found the investigation report of Martin Deiro relating to a telephone interview with Mihaila inadmissible, and there is no dispute regarding information contained in the other attachments that is relevant to this appeal.
Reply and Objections to Gylfie's Declaration
Costco replied and filed objections to Gylfie's declaration on December 13, 2021. The reply was consistent with the Anti-SLAPP motion, but additionally noted that Gylfie conceded that the malicious prosecution action arose from activity protected under section 425.16. Costco further argued that Gylfie failed to put forth evidence in support of his malicious prosecution claim that would be admissible in court.
Trial Court's Ruling
At the hearing on the Anti-SLAPP motion, the court ruled that Defendants had met the first prong of the Anti-SLAPP analysis, as every claim of malicious prosecution necessarily arises from protected activity.
The trial court preliminarily noted that in a hearing held on March 7, 2022, it had authorized Gylfie to file supplemental reports that counsel neglected to file with the opposition as a proffer that he could obtain declarations to submit the evidence in admissible form. The court had reviewed the reports and concluded that "[e]ven if these reports were admissible, they would not change the Court's decision on the motion."
With respect to whether Gylfie could demonstrate a probability of prevailing on the merits of his malicious prosecution claim, Defendants were incorrect that Gylfie's claim was barred by Civil Code section 47. Civil Code section 47 does not bar malicious prosecution claims based on statements made to law enforcement.
However, Gylfie could not prove that the lawsuit was brought without probable cause. To do so, Gylfie had to advance admissible evidence to show no reasonable person would have thought Gylfie's conduct was theft considering the facts known to Defendants at the time. 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. Barreda's description of Gylfie's movements was additional evidence of probable cause. The fact that the trial court in the criminal case found there was no "actus reus" was not sufficient to negate probable cause. 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.
Gylfie also could not establish malice. Barreda told the responding officer that Gylfie had come into the store a few weeks earlier and attempted to conceal razor blades, but that when confronted he acted surprised and paid for the merchandise without further incident. Although Gylfie claimed that Barreda "misrepresented a transaction that occurred on August 15, 2016," the declaration was not sufficient to prove that the incident on August 15, 2016, did not occur. Even if Barreda's description of the event was inaccurate, that fact did not demonstrate malice, because the evidence showed that Barreda relied on a report from Mihaila. The court did not consider Mihaila's statements for their truth, but rather as evidence of Barreda's state of mind- i.e., he was not intentionally making a misrepresentation to the officer. There was no evidence to show that Barreda was not relying on Mihaila's report. Gylfie also could not rely on Barreda's misstatement that it was Costco's policy to scan items in plain view and leave heavy items in the cart. Barreda testified at the criminal trial that he did not know the procedures at the time because he was not a front-end manager. Gylfie's argument that Barreda's decision not to intervene to ensure that Gylfie paid for the razors evidenced malice also failed; a loss prevention agent has no duty to intervene. The inadmissible reports that Gylfie filed as supplemental evidence did not demonstrate malice. A clerk whispered in Reid's ear that she should not move the dog food if Gylfie told her not to. Reid did not fail to move the dog food because of any statement by Gylfie. She failed to move the dog food because she had a back injury. There is no evidence that Barreda lied in his testimony at trial. Even if there were inconsistencies, they do not satisfy Gylfie's burden of demonstrating a probability of success on the merits. The court noted that it did not consider proffers made during the criminal trial.
The court granted the Anti-SLAPP motion and dismissed the case with prejudice. In the alternative, the court granted the motion with respect to Acilio, because Gylfie proffered insufficient evidence against him. Costco was awarded attorney's fees.
DISCUSSION
Statutory Scheme and Standard of Review
The Legislature enacted the anti-SLAPP statute to protect defendants from meritless lawsuits brought primarily to discourage the defendants from exercising their constitutional rights to speak and petition on matters of public significance. (§ 425.16, subd. (a); Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1008-1009.) To accomplish this purpose, the statute authorizes a special motion to strike "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
"' "Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.]"' [Citation.] The court considers the elements of the claim and the acts of the defendant satisfying those elements that form the basis for liability. [Citation.] 'The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. [Citation.]' [Citation.] . . . The moving party may argue that the allegations arise from protected activity, even when the party disputes the truth of the allegations. [Citation.]" (Pech v. Doniger (2022) 75 Cal.App.5th 443, 456.)
"' "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a 'summary-judgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] '[C]laims with the requisite minimal merit may proceed."' [Citation.] The grant or denial of an anti-SLAPP motion is reviewed de novo. [Citation.]' [Citation.]" (Pech v. Doniger, supra, 75 Cal.App.5th at pp. 456-457.)
"In making its determination, the court considers the pleadings and the evidence submitted in connection with the proceeding to provide the facts supporting the liability or defense. (Code Civ. Proc., § 425.16, subd. (b)(2).)" (Pech v. Doniger, supra, 75 Cal.App.5th at p. 457.)
Analysis
Gylfie correctly conceded the first prong of the Anti-SLAPP statute was satisfied in the trial court, and he makes no argument with respect to that issue on appeal. (See Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 ["The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding"].) Our inquiry is therefore confined to the second prong of the analysis, i.e., whether Gylfie has demonstrated a probability that he can prevail on his malicious prosecution claim.
The parties do not challenge the trial court's evidentiary rulings (or lack thereof). Accordingly, we consider only the evidence that the trial court did not deem inadmissible in its order granting the Anti-SLAPP motion. With respect to the reporter's transcript of the criminal trial, the only admissible evidence contained therein is Barreda's sworn testimony. We take judicial notice of the criminal trial court's orders and judgment, but do not consider the statements of the trial court or the attorneys, or any proffers made by the parties.
"[I]n order to establish a cause of action for malicious prosecution . . . a plaintiff must demonstrate 'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in . . . plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations],' [citation]." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.)
In his opening brief, Gylfie does not argue that he met the first of the three elements required to demonstrate a probability of prevailing on his cause of action for malicious prosecution-i.e., that Defendants commenced or directed the prior action and pursued it to a legal termination in Gylfie's favor. Defendants attempt to capitalize on this perceived lapse as an opportunity to argue that the first element has not been met. However, they forfeited any challenge regarding this element by failing to raise the issue in the trial court. We will not consider their arguments on appeal. (LaChance v. Valverde (2012) 207 Cal.App.4th 779, 789 [argument made for the first time in respondent's brief on appeal is forfeited].)
With respect to the second element of malicious prosecution, Gylfie argues that Defendants could not have probable cause to believe that he intended to conceal and steal razors on August 31, 2016, based on Gylfie's alleged prior attempt to steal razors on August 15, 2016. Gylfie argues that "no crime had occurred" on August 15, 2016, and that Defendants knew no crime had occurred on that date. It was therefore unreasonable to believe that he would steal razors on August 31, 2016.
Gylfie's argument rests on the assumption that absent evidence that he actually completed a theft of razors or otherwise committed a crime on August 15, 2016, Defendants could not have had probable cause to suspect him of intending to steal razors in the August 31, 2016 incident. First, probable cause does not require that a prior crime has been committed." 'When, as here, the claim of malicious prosecution is based upon initiation of a criminal prosecution, the question of probable cause is whether it was objectively reasonable for the defendant . . . to suspect the plaintiff . . . had committed a crime.' [Citation.]" (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1105-1106.) "The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted." (Sheldon Appel Co., supra, 47 Cal.3d at p. 878.)
Second, Gylfie misapprehends an important distinction between the August 15, 2016 events themselves and the events as Barreda believed them to have occurred when he reported the crime to police. It does not matter whether the events of the August 15, 2016 incident are in dispute or whether a theft actually occurred. It is undisputed that Mihaila told Barreda that on August 15, 2016, Mihaila witnessed Gylfie placing razors beneath a bag of dog food in his shopping cart, and that it appeared Gylfie did so in order to conceal the razors, so that the cashier (also Mihaila) would not scan the razors and Gylfie could take them without paying for them. Barreda stated these facts in his declaration. Gylfie has offered no facts to demonstrate that Mihaila did not relay the incident to Barreda as Barreda declared.
The trial court excluded all evidence regarding the alleged August 15, 2016 theft at trial.
Even if we ignore the evidence that Mihaila had previously advised Barreda of identical suspicious behavior (placement of dog food on top of razors), other undisputed evidence establishes probable cause. Barreda declared in this action, and testified at the criminal trial, that he watched Gylfie as he shopped and observed that Gylfie selected two packages of razors and placed them in the child seat area of his cart. After shopping for several more items, Gylfie took the two packages of razors from the child seat area of the cart and lined them up in the center of the large basket of the cart and laid the dog food on top of them. Barreda testified at trial that Gylfie spent a few minutes arranging the razors under the dog food. Barreda testified and stated in his declaration that the cashier took possession of Gylfie's cart but did not lift the dog food and failed to discover and scan the razors. Barreda observed that Gylfie did not call the cashier's attention to the razors under the dog food. Barreda saw Gylfie pay for the items that were scanned (which did not include the razors), proceed to the exit where the member services employee checked his receipt without discovering the razors, and leave the store without paying for the razors. Gylfie offers no evidence to dispute any of these facts. To the contrary, he stated in the FAC and admitted in his declaration that the razors were "buried" under the dog food. Given these facts, a reasonable person would have cause to believe that Gylfie had committed a crime, and thus have probable cause to report the crime.
We are not persuaded by Gylfie's argument that it was ultimately the cashier's responsibility to ensure that all items in his basket were scanned. Although the cashier is responsible per Costco's policy, that does not change the fact that Gylfie placed the razors under the dog food, and did not alert the cashier or the member services employee that the razors were in his cart. The Costco employees' failure to follow policy gave Gylfie plausible deniability; it did not negate probable cause to believe Gylfie stole the razors.
Gylfie's arguments regarding probable cause pertain solely to Barreda, and can only apply to Costco under a theory of respondeat superior. He has thus failed to demonstrate a probability of prevailing in a claim against Costco as well. Gylfie does not refer to Acilio in his arguments regarding probable cause nor explain how Acilio could be held responsible for Barreda making a police report without probable cause. Because Gylfie makes no attempt to prove this element with respect to Acilio, he has not demonstrated a probability of prevailing in a malicious prosecution claim against Acilio either.
Gylfie has not produced evidence from which he could demonstrate that Defendants lacked probable cause, and has therefore failed to set forth a claim for malicious prosecution with the" '" 'requisite minimal merit'" '" to defeat Defendants' Anti-SLAPP motion. (Pech v. Doniger, supra, 75 Cal.App.5th at pp. 456-457.)
DISPOSITION
We affirm the trial court's order granting Defendants' motion to strike pursuant to Code of Civil Procedure section 425.16 and the judgment dismissing the case with prejudice.
I concur:
RUBIN, P. J.
BAKER, J., Dissenting
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.
Perhaps the only thing more surprising than the report to the police that these facts generated is the district attorney's decision to prosecute a theft charge against the shopper until a trial court judge had the good sense to dismiss the prosecution for insufficient evidence.
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. (See generally Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 ["the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern"].) 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.