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Shorter v. Sephora USA, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B225156 (Cal. Ct. App. Feb. 16, 2012)

Opinion

B225156

02-16-2012

LECIA L. SHORTER, Plaintiff and Appellant, v. SEPHORA USA, INC., et al., Defendants and Respondents.

Lecia L. Shorter, in pro. per., for Plaintiff and Appellant. Haight Brown & Bonesteel, Stephenie M. Alexander and Colin A. Yuhl for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC430497)

APPEAL from a judgment of the Superior Court of Los Angeles County. Theresa Sanchez-Gordon, Judge. Affirmed as modified.

Lecia L. Shorter, in pro. per., for Plaintiff and Appellant.

Haight Brown & Bonesteel, Stephenie M. Alexander and Colin A. Yuhl for Defendants and Respondents.

Plaintiff Lecia Shorter sued defendants for false advertising and unfair business practices pertaining to defendants' restricting access to free samples in their store, and for false arrest and defamation arising from defendants' reports to police when plaintiff refused to leave the store. Plaintiff appeals from orders of dismissal entered after the trial court sustained defendants' demurrer and granted their special motion to strike. We affirm with modifications.

BACKGROUND

We take the facts from the allegations of plaintiff's complaint, which we accept as true for purposes of this appeal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant Sephora USA is a retail store specializing in cosmetics. On October 12, 2009, plaintiff entered a Sephora store located on the Third Street Promenade in Santa Monica, California, to exchange recently purchased cosmetics. After making the exchange, plaintiff was assisted by a sales associate in sampling various offered products for approximately 20 minutes, then continued to browse the store. While browsing, plaintiff was approached by defendant Kristina Conrad, the store manager, who told plaintiff she had received the maximum number of samples to which she was entitled. When Conrad asked plaintiff if there was anything else she could do to assist her, plaintiff replied, "Yes, you can get out of my face." Conrad asked plaintiff to leave the store, which plaintiff refused to do. She was then approached by defendant Armando Galvez, who also asked her to leave the store. When she began to walk to the exit, Galvez followed her and insisted that she leave. Plaintiff picked up a water bottle and sprayed Galvez in the face with water. Galvez continued to follow her out of the store and onto the promenade.

Approximately one and a half blocks from the store, plaintiff was stopped by Santa Monica police officers who stated they had received a call that she had sprayed "chemicals" in the face of a store employee. Galvez and Conrad then arrived and made knowingly false statements to the police that plaintiff was aggressive, had a reputation for stuffing her purse with makeup and perfume samples, and had yelled at Conrad and sprayed Galvez with perfume.

Plaintiff was arrested and charged with two counts of battery. (Pen. Code, § 242.)

Four days later, plaintiff sent a demand notice to Sephora, claiming Sephora and its employees had engaged in deceptive business practices. Plaintiff recounted the incidents of October 12 and complained she had been targeted and harassed because she was African American. She further complained that although samples in the Sephora store had signs next to them that said "try me," Conrad would not let her sample the products on her own and limited her to three samples per store visit. Plaintiff demanded that Sephora cease its deceptive practices and pay her $100,000.

On January 25, 2010, plaintiff filed a lawsuit against Sephora, Conrad and Galvez, asserting causes of action for violation of the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.), violation of the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), and false advertising (the commercial claims), and for fraud, intentional and negligent infliction of emotional distress, defamation, false arrest and abuse of process (the false arrest claims).

In her commercial claims, plaintiff alleged the "try me" sign next to samples was deceptive because a customer was not entitled to try the samples freely, but was required to be assisted by a sales associate and was limited to three samples per store visit. Plaintiff also alleged that on January 12, 2010, she had entered the Sephora store in Santa Monica to obtain a birthday present promised her as a member of Sephora's "Beauty Insider Program," but was told no birthday gifts would be in stock until the end of the month. While she was there, an employee telephoned police and told them plaintiff had sprayed chemicals in the face of a store employee that day. Plaintiff was detained outside by police for 20 minutes while they investigated. Police were ultimately informed by store employees that plaintiff had not sprayed anyone that day, and she was released.

In her false arrest claims, plaintiff alleged Conrad and Galvez made several knowingly false statements to police, resulting in her arrest.

Defendants demurred to the complaint and filed a special motion to strike the false arrest claims pursuant to Code of Civil Procedure section 425.16. In support of the special motion to strike and the demurrer to plaintiff's false arrest claims, defendants argued that their communications to police were absolutely privileged pursuant to Civil Code section 47, subdivision (b) (section 47(b)). The gravamen of defendants' demurrer to the commercial claims was that the "try me" label on free samples was not deceptive. Plaintiff opposed the motion and demurrer.

Civil Code section 47 provides in pertinent part: "A privileged publication or broadcast is one made: . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, [or] (3) in any other official proceeding authorized by law . . . ."

The trial court granted defendants' special motion to strike, sustained the demurrer to the commercial claims without leave to amend, and found the demurrer to the false arrest claims to be moot. It entered an order dismissing the case and granting defendants' request for a briefing schedule on their motion for attorney fees. Plaintiff timely appealed from the judgment of dismissal.

DISCUSSION

A. False Arrest Claims

Defendants contend that when a citizen reports suspected criminal activity to law enforcement personnel, the communication enjoys an unqualified privilege under section 47(b), and privileged activity under section 47(b) is necessarily protected within the meaning of Code of Civil Procedure section 425.16. The trial court agreed, and on this ground granted defendants' special motion to strike, deemed their demurrer to be moot, and dismissed plaintiff's false arrest claims. As we will explain, the trial court reached the right conclusion but for the wrong reason.

1. Civil Code Section 47

The trial court correctly concluded that defendants' communications to police were absolutely privileged under section 47(b).

"Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made '[i]n any . . . official proceeding authorized by law . . . . The privilege established by this subdivision often is referred to as an 'absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) "[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to '"assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.'" [Citation.] . . . [B]oth the effective administration of justice and the citizen's right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings. Hence, without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice, 'courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.' [Citation.]" (Id. at pp. 360-361.)

"[T]he overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under section 47(b)." (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 364.)

Here, plaintiff's false arrest claims all arise from defendants' communications with Santa Monica police. Because these communications were absolutely privileged under section 47(b), even if they contained false representations, each of plaintiff's false arrest claims is barred as a matter of law.

But that does not mean plaintiff's complaint was subject to a special motion to strike.

2. Anti-SLAPP Motion

Under Code of Civil Procedure section 425.16, "[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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1); Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420-1421 [a party may move to dismiss "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity"].)

"Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits upon which the liability or defense is based.' [Citation.] However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

In evaluating an anti-SLAPP motion, we conduct a two-step analysis. First, we must decide whether the defendant has made a threshold showing that the challenged cause of action arises from constitutionally protected activity. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.) As pertinent here, constitutionally protected activity includes any conduct "in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) "A cause of action 'arising from protected activity' means that the defendant's acts underpinning the plaintiff's cause of action involved an exercise of the right of petition or free speech. [Citation.] . . . The defendant must establish that the plaintiff's cause of action is actually based on conduct in exercise of those rights." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443.) If the defendant makes that showing, we determine whether plaintiff has shown a probability of prevailing on the cause of action. (Gerbosi v. Gaims, Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at p. 445.)

Relying on Wang v. Hartunian (2003) 111 Cal.App.4th 744, defendants argue their false police report is protected by section 425.16 because it was privileged under Civil Code section 47. The argument is without merit. "[T]he anti-SLAPP statute is not implicated, and cannot be invoked by a defendant, unless the defendant's conduct underpinning a plaintiff's cause of action involved an act in furtherance of the defendant's 'right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.' [Citations.] (Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703.) Although defendants' police report is privileged under section 47(b), that is a statutory protection, not a constitutional one. "[T]he purpose of section 425.16 is to prevent the chilling of 'the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances' by the 'abuse of the judicial process.' [Citation.] As a necessary corollary to this statement, because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16." (Flatley v. Mauro (2006) 39 Cal.4th 299, 313, italics added.)

The making of a false police report is a violation of Penal Code section 148.5. "[S]ection 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Flatley v. Mauro, supra, 39 Cal.4th at p. 317; Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at p. 705.)

Penal Code section 148.5, subdivision (b), provides: "Every person who reports to any other peace officer . . . that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer, and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer."

Wang v. Hartunian, supra, 111 Cal.App.4th 744 is not to the contrary. As stated recently by our colleagues in Division Eight of this District, although Wang v. Hartunian involved false reports to police and was "decided in the context of an anti-SLAPP motion, the parties there 'concurred' that a 'privileged activity' within the reach of Civil Code section 47, subdivision (b), is a 'protected activity' within the meaning of [Code of Civil Procedure] section 425.16. [Citation.] Given this foundation, Division Five of our court limited its examination to the issue of whether Civil Code section 47, subdivision (b), defeated claims arising from alleged false criminal reports. In other words, because the parties essentially stipulated that the anti-SLAPP statute applied, Division Five did not address whether the parties were correct that a 'privileged activity' under Civil Code section 47, subdivision (b), is a 'protected activity' within the meaning of section 425.16. A published decision is not authority for an issue which was not actually addressed and decided." (Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at pp. 703-704.)

3. Conclusion

In sum, plaintiff's false arrest claims were properly dismissed, but for the wrong reason. Defendants' anti-SLAPP motion should have been denied because defendants failed to show their communications to Santa Monica police officers were constitutionally protected activity. But because defendants' communications were absolutely privileged under section 47(b), their demurrer to plaintiff's false arrest claims should have been sustained.

An order of dismissal must be upheld if plaintiff's complaint is insufficient on any ground properly specified in the demurrer, even though the particular ground upon which the court relied to dismiss the complaint was untenable. (See Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 20 ["If a complaint is insufficient on any ground properly specified in a demurrer, an order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable"].) When, as here, the record shows the parties' rights can be determined fully on appeal, Code of Civil Procedure sections 43 and 906 authorize an appellate court to modify a judgment and direct the trial court to enter the proper judgment. We will therefore instruct the trial court to enter a modified judgment that reflects the correct rationale for dismissal of plaintiff's false arrest claims.

Section 43 provides in relevant part: "The Supreme Court, and the courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had."
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B. The Demurrer to Plaintiff's Consumer Claims was Properly Sustained

When a demurrer is sustained, we review the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) "A demurrer tests the legal sufficiency of factual allegations in a complaint. [Citation.] In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. This court also considers matters that may be judicially noticed." (Id. at pp. 42-43.) "Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action." (Id. at p. 43.)

Plaintiff contends the "try me" sign next to product samples deceived consumers into believing they were invited to try the samples freely, when actually they were not. She also contends defendants' refusal to give her a birthday gift amounts to actionable conduct under Business and Professions Code sections 17200 and 17500 and the CLRA. We disagree that plaintiff has stated any cause of action.

"The UCL prohibits, and provides civil remedies for, unfair competition, which it defines as 'any unlawful, unfair or fraudulent business act or practice.' [Citation.] Its purpose 'is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.' [Citations.]" (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320.) Only someone who has suffered injury in fact and has lost money or property as a result of unfair competition has standing to sue under the statute. (Id. at pp. 320-321.) In other words, a plaintiff must "(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim." (Id. at p. 322.) The injury must be "'an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" [citations].' [Citation.]" (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 814, disapproved on another ground in Kwikset Corp., supra, 51 Cal.4th at p. 337; see also Hall v. Time, Inc. (2008) 158 Cal.App.4th 847, 853.)

Business and Professions Code section 17500 makes it unlawful for a person, firm, corporation, association, or any employee thereof "with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto" by means of advertising that "is known, or which by the exercise of reasonable care should be known, to be untrue or misleading . . . ." Like the UCL, section 17500 requires an individual suing under the statute to have suffered an injury in fact and to have lost money or property as a result of such unfair competition. (Buckland v. Threshold Enterprises, Ltd., supra, 155 Cal.App.4th at p. 819; see Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at pp. 321-322 [standing limitations of the UCL apply equally to § 17500].)

The CLRA declares unlawful a variety of "unfair methods of competition and unfair or deceptive acts or practices" used in the sale or lease of goods or services to a consumer. (Civ. Code, § 1770, subd. (a).) An individual seeking to recover damages under the CLRA based on a misrepresentation must prove, among other things, actual injury. "Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof." (Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal.App.4th 746, 754.) "Accordingly, 'plaintiffs in a CLRA action [must] show not only that a defendant's conduct was deceptive but that the deception caused them harm.' [Citations.]" (Buckland v. Threshold Enterprises, Ltd., supra, 155 Cal.App.4th at p. 809.) A plaintiff bringing a CLRA cause of action must not only be exposed to an unlawful practice but also have suffered "some kind of damage." (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 641; see also id. at p. 643 ["allegedly unlawful practice under the CLRA" must result "in some kind of tangible increased cost or burden to the consumer"].)

There are two key allegations in plaintiff's complaint. First, she alleges that even though free samples in defendants' store had the label "try me" on or near them, defendants prohibited her from trying the samples freely. Instead, they limited her to three samples and required that she be assisted by a sales associate. Plaintiff alleges she "was, and is, a customer of defendant Sephora USA, Inc. and regularly samples their products." "[I]n reliance" on defendants' advertising representations, she "purchased various make-up products after having sampled the same products on several occasions." Second, plaintiff alleges that as a member of defendants' beauty club she was entitled to a free gift on her birthday. When she arrived to obtain the gift, she was told the store was out of stock on gifts until the end of the month.

These allegations do not plead the required element of injury in fact, the absence of which is fatal to plaintiff's consumer claims. Plaintiff's claim that she was told she could "try" samples but was denied the opportunity to try more than three of them or to do so without the assistance of a sales representative pleads at most a conjectural or hypothetical injury, not an injury in fact. Though she alleged that defendants' "representations" caused her to purchase $75 in cosmetics, she did not indicate how a restricted invitation to "try" a sample induced any purchase. On the contrary, she alleged that as a result of the restrictions she refused to make a purchase.

As to the birthday gift, plaintiff alleges only that she did not receive one, not that she lost money or property as a result of not receiving it. She did not allege, for example, that she paid anything for the gift or paid to join the beauty club through which the gift was offered.

Plaintiff alleged no more than conjectural or hypothetical injury. Her failure to plead injury in fact, i.e., economic harm, defeats her consumer causes of action.

C. Leave to Amend

"'[I]f the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]' [Citations.] . . . [T]he plaintiff bears the burden of showing 'in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading.' [Citation.] The plaintiff may make this showing in the first instance on appeal. [Citation.]" (Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 971.) We review the trial court's decision to sustain a demurrer without leave to amend for an abuse of discretion. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) This is true even if no request to amend the pleading was made below. (Rakestraw, supra, 81 Cal.App.4th at p. 43; Code Civ. Proc., § 472c, subd. (a).) "[I]f there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero, supra, 68 Cal.App.4th at p. 459.)

It was not an abuse of discretion to deny plaintiff leave to amend her complaint. At no time did plaintiff indicate she could allege facts other than were in her complaint. The facts she did allege affirmatively demonstrated her inability to state either a consumer claim or a claim for false arrest. She admitted in the complaint that although in the past she sampled many products and bought some, when her access to samples was unfairly restricted she left the store without making a purchase. She also alleged that her false arrest causes of action are founded on defendants' communications with police, communications that are absolutely privileged. Leave to amend was therefore properly denied.

DISPOSITION

The judgment is modified to reflect that defendants' special motion to strike is denied and their demurrer is sustained in its entirety without leave to amend. As modified, the judgment is affirmed. Defendants are to recover their costs on appeal.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

JOHNSON, J.


Summaries of

Shorter v. Sephora USA, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Feb 16, 2012
B225156 (Cal. Ct. App. Feb. 16, 2012)
Case details for

Shorter v. Sephora USA, Inc.

Case Details

Full title:LECIA L. SHORTER, Plaintiff and Appellant, v. SEPHORA USA, INC., et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Feb 16, 2012

Citations

B225156 (Cal. Ct. App. Feb. 16, 2012)