POOL v. CITY OF OAKLAND

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Court of Appeal, First District, Division 1, California.

George Lloyd POOL, Plaintiff and Respondent, v. The CITY OF OAKLAND, Safeway Stores, Inc., Defendants and Appellants.

A014959.

Decided: December 21, 1984

Dan L. Garrett, Jr., Martinez, for plaintiff and respondent. Richard E. Winnie, David Weingard, Oakland, for defendant and appellant City of Oakland. David S. Hobler, Mintz, Giller, Himmelman & Mintz, Oakland, for defendant and appellant Safeway Stores, Inc.

Defendants City of Oakland and Safeway Stores, Inc. (sometimes Safeway Stores) appeal from a judgment entered upon a jury's verdict for $45,000 in plaintiff George Lloyd Pool's action for damages for false arrest, false imprisonment, assault and battery, intentional infliction of emotional distress, negligent entrustment, and negligent infliction of emotional distress.

The Appeal of Safeway Stores, Inc.

 On this appeal it is contended that the judgment is unsupported by substantial evidence.   We therefore find it necessary to reiterate the substantial evidence rule.   When a jury's verdict, or a trial court's finding of fact, is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the verdict or finding of fact, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court or jury.   It is of no consequence that the trial court or jury, believing other evidence or drawing different inferences, might have reached a contrary conclusion.  (Grainger v. Antoyan, 48 Cal.2d 805, 807, 313 P.2d 848;  and see People v. Johnson, 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

We find in the record the following uncontroverted evidence.

Safeway Stores owns and operates a supermarket in the City of Oakland.   It had been plagued with the passing of counterfeit $100 bills at its check-out counters.   Its manager and assistant manager had been particularly instructed by company headquarters that if “any hundred dollar bills ․ didn't have ‘In God We trust’ to keep a closer watch on them.”   They were “to be careful of hundred dollar bills without ‘In God We Trust.’ ”   The information was passed on down to the clerks at the store's check-out counters.   They were instructed that all hundred dollar bills “should be taken over to the cashier's [or supervisor's, or manager's] booth to be cashed,” thus to be “investigated” by him.

On a Sunday afternoon, plaintiff Pool entered the supermarket, selected a small amount of groceries, approached the check-out counter, and tendered the lady clerk a hundred dollar bill for their payment.   On account of the bill's size she told Pool, “Wait․  I have to go get some change.”   She did not tell Pool about “investigating the possibility that the bill might be counterfeit.”   She left with the bill for the manager's office, while Pool “was waiting at the check-out stand.”

In the office, the check-out clerk handed the bill to the assistant manager, telling him it had been presented in payment for the store's merchandise.   Examining the bill, he observed that it did not have the words “In God We Trust” upon it.   He believed that it “could possibly be a false bill,” and advised the check-out clerk that “there was [such] a possibility;  [he] didn't know for sure.”   The assistant manager then telephoned the police saying he “had a possible ․ counterfeit hundred dollar bill.”   Two police officers soon arrived, a male and a female, and the assistant manager spoke of “a possibility it's a bad bill.”   The bill was handed to the officers, and Pool was pointed out as the person who had tendered it.   The officers then left the office and approached Pool.   From that point of time, neither the assistant manager, nor the check-out clerk, nor any other Safeway Stores employee, played any part in the developing events.   Nor did any of them advise, or suggest to, the police officers what, if any, action might or should be taken by them.

We also find some disputed evidence as to relatively minor matters concerning Safeway Stores and Pool, but none that appear material or relevant to, or has reasonable bearing upon, Safeway Stores' appeal.   Particularly, we discern no substantial materiality in the evidentiary conflict of the check-out clerk's recollection that the assistant manager had reviewed some serial numbers of purportedly counterfeit $100 bills, with the assistant manager's testimony that he did not have such a list of serial numbers.   Such a list, even if reviewed by the assistant manager, and the number of Pool's $100 bill was found not to appear thereon, would manifestly not allay all reasonable suspicion that his bill also was counterfeit.   There would continue a right to reasonably investigate its authenticity.

The only observable act of defendant Safeway Stores which may conceivably, or debatably, be deemed an improper, or unlawful, act causing damage or injury to plaintiff Pool, was his claimed detention at the check-out counter while he awaited the return of his $100 bill, or its change.   Although no direct or other relevant authority is pointed out (and we ourselves have found none), we are of the opinion that the rights of a merchant who suspects the attempted passage of counterfeit currency, are substantially similar to those of a merchant, vis a vis a suspected shoplifter.   As to the latter situation, we are aided by the holding of People v. Zelinski, 24 Cal.3d 357, 362, 155 Cal.Rptr. 575, 594 P.2d 1000.

People v. Zelinski recognized and pointed out, that “merchants [are] protected from civil liability for false arrest or false imprisonment in their reasonable efforts to detain shoplifters by a common law privilege that permitted detention for a reasonable time for investigation in a reasonable manner of any person whom the merchant had probable cause to believe had unlawfully taken or attempted to take merchandise from the premises.”  (And see Pen.Code, § 490.5.)   Although here it is at least debatable whether there was any detention at all by Safeway Stores, assuming arguendo that there was, such a rule will reasonably apply also, to a merchant's temporary detention of an apparent customer suspected of passing, or attempting to pass, innocently or otherwise, counterfeit currency.   We so apply it.

 Applying such a rule to the case before us, we observe no negligent, or improper, or other unlawful act of Safeway Stores, or its employees or agents.

It follows, as contended by Safeway Stores, that no substantial evidence supports the verdict and judgment as to that defendant.

The Appeal of the City of Oakland

We continue in our narrative of the evidentiary facts of the case, after police officers of the City of Oakland took over the investigation, unaided by Safeway Stores or its employees.

Counterfeit large bills, including $100 bills, are a “recurring problem” with the Oakland Police Department.   That department had instructed its officers, in respect of such investigations, to conduct themselves as follows:  “[I]f we felt that it was a bad bill, [we are] to take custody of the bill, make a determination, a discretionary decision as to whether we believe the person in possession of it is a counterfeiter, and again, these are all based on factors which are present at the scene, the way the person responds to us, what they say.   If they confess to counterfeiting business, they will be arrested.   If they don't claim any knowledge of it, we would investigate the matter further.”

“Our intention [one of the officers declared,] was to just detain him long enough to find out what was happening and either take the bill and give him a receipt for it and release him, or if it turned out to be, in fact, counterfeit, and we felt he was passing a counterfeit bill, it would have been to take some other criminal action.   However, our intention really was just to find out where the bill came from and what was wrong with it, if anything, and then release the gentleman.”

Such instructions and intent were patently reasonable.   But here the evidence was in deep dispute whether they were properly implemented by the officers.

We first state the evidence indicating that such instructions and intent were not so implemented.

Pool testified that as the officers approached him at the check-out stand and, “the lady police officer ran up and put the handcuffs on this arm here.”   Then “the man officer” reached and grabbed my arm and tried to twist my arm behind me.”  “No one never told me about any investigation at all.   No one.”   He was “patted down” for weapons.   And, “the only thing that she [the lady officer] said was threatening to break my arm.”   He kept talking to, or yelling at, “the cashier man, telling him I want my money,” and “she started squeezing the handcuffs on my wrist, threatening to break my wrist.”   He was then taken outside where he was “shoved” in back of a police car.   He was taken to a jail where he was subjected to a strip search and bodily and other indignities, and finally placed in a cell.   Then, according to Pool (sic.), “the lady—about a half an hour later another fellow came back.   She told me, ‘Say this money is good.’ ”   Then they put him in another cell, from which he was not released until “between 1:00 and 3:00” the next afternoon.

In contradiction of most of the foregoing the officers testified as follows.

They had received a radio report of a suspected $100 counterfeit bill at the supermarket.   Arriving there, they were shown Pool's bill which did not have the “In God We Trust” words upon it, and another $100 bill which did.   Pool was pointed out at the check-out counter and they walked over toward him.   At the time they had no intent to arrest him, but only to investigate.   Walking up to him, they explained “that there was some problem with the bill that he had just passed to the checker, and that we would like to clear the matter up, and we asked his cooperation, ․”  Pool started “yelling,” and uttering profanities and otherwise causing a disturbance.   He would not answer any questions, nor would he “listen” to the officers.   He tried to snatch the $100 bill from one of the officers.   And he was “flailing” his unhandcuffed arms.   The disturbance was such that they “wanted to get him outside in a car where we could talk to him, and determine if the bill was, in fact, good or not.”   This resulted in a struggle, and Pool being handcuffed and taken outside to a police car.   He was brought to a jail, booked for resisting arrest, a Penal Code section 148 violation, and turned over to a jailer.   One of the officers soon contacted an appropriate federal agency, learned that some valid $100 bills were without the caption “In God We Trust” upon them, and that the subject bill was “probably” not counterfeit.   Pool and his jailers were thereupon so advised.  (There was no evidence contradicting that of Pool that he was not released until the next afternoon.)

It reasonably bears emphasis that according to the police officers, Pool was arrested for the offense of resisting arrest following his claimed obstreperous conduct, and not for any offense relating to counterfeit currency.

The City of Oakland, apparently recognizing this court's function under the above-noted substantial evidence rule, makes no contention that the evidence, viewed favorably to Pool, was not substantial.  (We do not disagree.)

Instead it argues only that the trial court erred in its instructions, and that the amount of the verdict was presumptively the result of prejudice, and excessive.

We consider the first of these contentions, i.e., that the court erred “by allowing the jury to decide the issue of reasonable cause.”

“ ‘In an action for false arrest and imprisonment, the question of reasonable or probable cause is ordinarily one for the court․  When the facts are controverted or the evidence conflicting, ․ the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.’  ․ [I]t is clear that in a false imprisonment case where the evidence is in conflict with respect to probable cause, it is ‘ “․ the duty of the court to instruct the jury as to what facts, if established, would constitute probable cause․” ’ ”  (Roberts v. City of Los Angeles, 109 Cal.App.3d 625, 629–630, 167 Cal.Rptr. 320, and see authority there collected.)

In the case before us and as relevant, the jury were instructed:

“Now, a peace officer may, without a warrant, lawfully arrest a person whenever he has reasonable cause to believe that the person to be arrested has committed a criminal offense.

“Now, to constitute reasonable cause for the arrest of the plaintiff in this case, the evidence must establish that the police officers had reasonable cause to believe that the plaintiff committed a criminal offense.

“If you find from all the evidence that the foregoing fact is true, you must find that there was reasonable cause to arrest the plaintiff.

“If you find that such fact is not true, you must find that there was not reasonable cause to arrest him.”

It will be noted that the jury, without guidance, were in effect told circuitously, that if they found probable cause to believe that Pool had committed a criminal offense, they must find probable cause for the officers to arrest him.   They were not instructed “as to what facts, if established, would constitute probable cause” to believe Pool had committed a criminal offense, or, to arrest him.  (See Roberts v. City of Los Angeles, supra, 109 Cal.App.3d 625, 629–630, 167 Cal.Rptr. 320.)

 Here the jury were thus misinstructed on the critical issue of probable cause.   As apparently conceded by the City of Oakland, had they been instructed that finding Pool's testimony substantially true, probable cause was lacking, but finding that of the police officers to be the more credible there was such probable cause, proper compliance with the above-noted rule would have been attained.

Since we may not reasonably declare the error harmless, the judgment as to the City of Oakland must be reversed, and the cause remanded for retrial.

There being no point in ruling upon the City of Oakland's “excessive damages” contention, we do not consider it.

_

The judgment is reversed as to both defendants.   As to defendant, Safeway Stores, Inc., the action will be dismissed.   As to defendant City of Oakland, the action will be retried in a manner not inconsistent with the views we have expressed.   Each of the defendants will recover its costs of appeal.

I agree with the result reached in City's appeal due to instructional error on the pivotal issue of reasonable cause to arrest.   However, I cannot agree that the judgment against Safeway Stores is unsupported by the evidence as a matter of law.

The case against Safeway Stores was tried and submitted to the jury on a theory of negligent infliction of emotional distress.1  (See generally Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.)   The evidence supporting the jury verdict included testimony that the innocent 60-year-old plaintiff was forcibly detained, and ultimately arrested, because the $100 bill presented to pay for his groceries was thought [unreasonably, I submit] to be “possibly” counterfeit.   Testimony disclosed that although the suspected bill was not “listed” in Safeway's counterfeit bulletin, no effort was made to verify its [proven] authenticity prior to the incidents leading to arrest through the simple and prompt expedient of calling the listed 24-hour number of the local Treasury Department agency.   Plaintiff testified that after he demanded the return of his money, he was forcibly handcuffed, arrested, without resisting, subjected to the indignities of a custodial strip search and then jailed until his release the following afternoon.

Viewing the evidence in a light favorable to the verdict, the jury could—and presumably did—find that Safeway was guilty of negligence in the manner in which its employees acted, or failed to act, in ascertaining whether their naked suspicion had any plausible foundation.   Moreover, to accept the majority's assumption that store personnel are authorized to detain an innocent, law-abiding citizen on mere suspicion of passing bogus currency would grant them an unbridled license to intrude into a constitutionally protected area denied even to law enforcement officers except under rigorously defined judicial standards.

Since the record reveals solid, credible and substantial evidence in support of the verdict against Safeway, we may not disturb the related judgment.   Accordingly, I dissent from that part of the majority opinion pertaining to Safeway's appeal.

FOOTNOTES

1.   Plaintiff was nonsuited on his cause of action for intentional infliction of emotional distress and false imprisonment.

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.