ASHLEY v. SEARS ROEBUCK AND CO (1981)

Defendants appeal from a judgment entered on a jury verdict awarding plaintiff $10,000 compensatory damages and in excess of $65,000 punitive damages on her complaint for false imprisonment and malicious prosecution.   We reverse.

The litigation arose out of an incident at the Sears Florin Road store in Sacramento.   On December 7, 1977, at about 7 or 7:30 p. m., Bruton, employed by Sears as a permanent part-time security officer, was stationed at an observation tower;  he observed plaintiff standing at a clothes rack near his post.   Her actions when Sears employees approached drew his attention to her.   He observed her remove a coat from the rack, place it on top of that rack and place a white sack next to it.   He testified that he later observed her remove the tags from the coat and place them in an envelope which was returned to her purse.   As she started to leave, Bruton called the assistant security manager, David Bacon, and watched plaintiff proceed through the store with the coat over her arm.   Bacon left the store ahead of plaintiff, and as she departed, he turned and identified himself as a security officer;  Bruton behind her also identified himself.   She was then taken to the Sears' security office in the basement and the sheriff's office called.   When a deputy sheriff arrived, a citation was issued and plaintiff was permitted to leave.   At that time she produced what purported to be a sales receipt for the purchase of a coat.   The tags and the sales receipt did not identify the store in which the coat had purportedly been purchased.

Bruton signed a citizen's arrest form, but the complaint ultimately issued against plaintiff was signed and filed by the district attorney.   Ultimately, the district attorney dismissed the case against plaintiff, but without prior consultation with the defendants.

Plaintiff explained her activities in the store, stating that she had ordered a coat from the Sears Florin catalog division.   About a week later, she was contacted by the catalog store and advised the coat would not be available for about a month.   She then went to the Sunrise Sears store and purportedly purchased a coat similar to the one she had ordered from the catalog.

Following the purchase of the coat from the Sunrise store and upon her return home, she removed the tags from the coat and placed them in an envelope;  she explained that she always kept washing instructions for her purchases;  however, the envelope recovered at the store had other tags such as “Made in USA” for which she had no explanation.   She also could not explain why she removed the tags from the coat while standing at the coat rack.

She testified that neither security officer touched her other than on her arm, that she was not hurt in any way, and did not consult any physician for other than her normal physical problems until January 1980, when she saw Dr. Yarvis, a psychiatrist, on the recommendation of her attorney.

Dr. Yarvis saw her for about an hour and a half and concluded that she had suffered a life-long mental disorder which he described as depressive psychoneurosis.   She had had two previous psychiatric hospitalizations for this condition in the 1950's, during which she was treated with electroshock therapy.   The psychiatrist testified that the current incident upset her but did not affect her underlying problem.   Her problem as described by Dr. Yarvis was that she suffered from insecurity, frustration, and angst.   Her only medical expense related to the incident was the $30 paid to Dr. Yarvis.   Upon these basic facts, the jury made the award of damages.

On appeal the defendants urge three grounds for reversal:  (1) that the trial court erroneously instructed the jury on the issue of malice;  (2) the evidence was insufficient to support the award of exemplary damages;  and (3) the awards of compensatory and punitive damages were excessive as a matter of law.

On the question of malice, the court gave two definitive instructions;  they were:  (1) “The words ‘malice’ and ‘malicious,’ as used in these instructions, mean a wish to vex, annoy, or injure another person.   Malice means that attitude or state of mind which actuates the doing of an act for some improper or wrongful motive or purpose.   It does not necessarily require that the defendant be angry or vindictive or bear any actual hostility or ill-will toward the plaintiff.  [¶] Malice may be proved by direct evidence or it may be inferred from circumstances such as evidence of lack of probable cause, or the defendant's bad faith, or the absence of an honest and sincere belief by the defendant that the arrest or prosecution of the plaintiff was justified by the existing facts and circumstances;”  (BAJI No. 6.94) and (2)  “ ‘Malice’ means a motive and willingness to vex, harass, annoy or injure another person.   Malice may be shown by direct evidence of declarations of hatred or ill-will, or it may be inferred from acts and conduct, such as by showing that the defendant's conduct was wilful, intentional, and done in reckless disregard of its possible results.”  (BAJI No. 14.71.)

 The two instructions are inconsistent and misleading, and do not correctly state the California law.

The main stream of case law on the subject descends from Davis v. Hearst (1911) 160 Cal. 143, 116 P. 530.   There the court defined malice as a basis for exemplary damages declaring, “It should be apparent that the malice, and the only malice, contemplated by section 3294 is malice in fact, and that the phrase ‘express or implied’ has reference only to the evidence by which that malice is established;  express malice thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill-will;  implied malice, referring to the indirect evidence from which the jury may infer the existence of this malice in fact․ [I]t is only upon some showing regarded by the law as adequate to establish the presence of malice in fact, that is the motive and willingness to vex, harass, annoy, or injure, that punitive damages have ever been awarded․ [¶] ․  And while in the cases this malice, the existence of which we have declared to be essential to a recovery in punitive damages, is sometimes called express malice, sometimes actual malice, sometimes real malice, and sometimes true malice, it is always in its analysis malice of the one kind, the malice of evil motive․ [¶]  [T]he animus malus must be shown to exist in every case before an award in punitive damages may be made against a defendant, since the evil motive is the controlling and the essential factor which justifies such an award, ․”  (Pp. 162–164, 116 P. 530.)

Defendant Sears asked the court to instruct on the question of malice in language consistent with the definition contained in Davis v. Hearst, supra.   Had the requested explanatory instruction been given, any error arising out of the inconsistent and erroneous definitions of malice would have been cured.   The refused instruction reads as follows:  Although malice may in some circumstances be inferred from the facts underlying the determination of lack of probable cause, such a result is not automatic.  “To complete proof of malicious prosecution, the presence of malice must be found as a matter of fact.”  (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 192–193, 156 Cal.Rptr. 745.)

 Malice may be inferred from the factual predicate underlying the determination of a lack of probable cause.   However, the result is not automatic.   To complete proof of malicious prosecution, the presence of malice must be found as a matter of fact.   As a consequence, it always remains a possibility that unreasonable behavior in terms of the nature of the predetention (arrest) by the security guard, even though it would support a finding of lack of probable cause to detain or arrest, would nonetheless not support an inference of malice.   This unreasonable behavior, sufficient to support a finding of lack of probable cause to arrest, may not be sufficient to infer malice and without malice, malicious prosecution cannot be proved.   This is such a case.   Moreover, the instructions, although verbatim copies of BAJI No. 6.94 and No. 14.71 without explanation, were and are misleading and constitute an incomplete statement of law.  (Weaver v. Superior Court, supra, 95 Cal.App.3d at p. 193, 156 Cal.Rptr. 745.)

 The first malice instruction (BAJI No. 6.94) was phrased disjunctively and authorized the jury to infer malice merely from a finding of a lack of probable cause to arrest or prosecute.   To assess exemplary damages in this case, it must be established not only that the defendants lacked probable cause, but that they also acted maliciously.  (Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 682–683, 120 Cal.Rptr. 291; Gomez v. Garcia (1980) 112 Cal.App.3d 392, 399, 169 Cal.Rptr. 350.)   In the absence of evidence that Bruton did anything more than truthfully relate his observations to his superiors, to the sheriff, and the district attorney, the evidence is insufficient to establish that he acted with malice or without probable cause.

Additionally, the second malice instruction (BAJI No. 14.71) suffers the semantical and substantive defect criticized by this court in G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 122 Cal.Rptr. 218.   There the court commented that an instruction which states, “[M]alice may be established by evidence of conduct which is ‘wilful, intentional and done in reckless disregard of its possible results' ” is self-contradictory.   Willfulness and intent denote deliberation or design;  recklessness, in contrast, connotes action which is negligent, insensate, or heedless.   The contradiction arises since negligent conduct is not willful, and if conduct is willful, it is not negligent.  (Id., at p. 31, 122 Cal.Rptr. 218.)

The following quotation from Dunlap v. New Zealand F. & M.I. Co. (1895) 109 Cal. 365, 369, 42 P. 29, continues to be a correct statement of the law in this state and is applicable to the facts of this case.  “One who causes another to be prosecuted for a crime is not liable in damages therefor, unless he acts through malice and without probable cause;  and it is the policy of the law that whenever a citizen shall have reasonable cause to believe that a crime has been committed he shall be protected in his efforts to secure the punishment of the offender.  [Citation.]  If in good faith and without malice he causes the arrest of the offender he is not to be mulcted in damages, because the defendant is able at the trial to establish his innocence.   The facts within his knowledge may not in point of law constitute a crime, but, if they are of such a character as to induce in the mind of a reasonable man the honest belief that a crime has been committed, he is justified in seeking to have the crime punished.   If, in addition to his own belief, he seeks the advice of one learned in the law, and after a full and fair statement of the facts within his knowledge is advised by him that they constitute a crime, his good faith in prosecuting the offender is corroborated.”  (Emphasis ours.)

 Malice implies an act conceived in the spirit of mischief or with criminal indifference toward the obligation toward others.   It must be founded on an intent to vex, annoy, or injure.   Negligence or even gross negligence is not sufficient to justify such an award.   The oppression required has been defined as “ ‘ “An act of subjecting to cruel and unjust hardship.” ’ ”   (Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676, 681–682, 8 Cal.Rptr. 514.)   Both malice and oppression have to do with an evil motive.   An award of exemplary damages cannot be based on mere speculation.   Those damages depend instead on a definite showing of a willingness to vex, harass, or injure consistent with a wrongful intent to injure.   The record fails to contain such evidence.   In addition to the conflicting and erroneous instructions given on the definition of malice, we fail to find evidence sufficient to meet the required standards of malice.

In this instance it appears probable that the jury, relying on the first definition of malice, simply found that the defendant Bruton did not have sufficient probable cause to cause the arrest or to request issuance of the complaint by the district attorney.   This is so, as the record fails to disclose any facts which would support a finding of malice in the manner required by controlling decisional authorities;  those facts must be established in addition to lack of probable cause.   For this reason alone, the judgment must be reversed.

 Defendants also contend, as a matter of law, that the compensatory damage award was excessive.   We recognize there is no fixed or absolute standard to be followed in computing the monetary value of emotional distress, and a reviewing court must give considerable deference in matters relating to damages to the findings of the jury in the first instance.   Nevertheless, when an award, as matter of law, appears excessive, or whenever the recovery is so grossly disproportionate to the injury as to raise a presumption that it is the result of passion or prejudice a duty is imposed upon the reviewing court to act.  (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 17, 130 Cal.Rptr. 416.)   In the instant proceeding, the court has carefully reviewed the relatively short evidentiary transcript and find the following limited evidence on the question of plaintiff's damage:  she suffered financial loss of $30 which was the fee required for a one and one-half hour psychiatric examination held two years after the incident and instigated by plaintiff's counsel.   The reported evidence does not reveal wage loss, nor was the plaintiff physically injured.   The record does disclose that when she was examined by her family doctor shortly after the incident and regularly thereafter, he “found nothing different” in her physical condition.   Her embarrassment or humiliation for which compensatory damages may be assessed consists of her detention for approximately 45 minutes in the security office of Sears;  she was issued a citation and allowed to leave the store without being taken to the county jail or booked on criminal charges.   The subsequent criminal charges filed against her by the district attorney were dismissed without trial.   The record does not disclose any other evidence of trauma, injury, or financial loss.   As described by the psychiatrist, the plaintiff suffered from insecurity and anxiety which he characterized as depressive psychoneurosis.   Her condition had been lifelong, and for which she had been hospitalized twice in the 1950's.   Following the incident at Sears, her only aggravation was that for a period of time, she did not enjoy store browsing.   At the time of trial she testified that condition had ameliorated and she no longer suffered from that particular anxiety.   For these reasons it appears to the court that the award of $10,000 compensatory damages was assessed by the jury either out of sympathy, passion, or prejudice, or was intended as additional punishment in addition to the separate exemplary damage award.   For these reasons, the compensatory damage portion of the judgment must also be reversed.  (See Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 408–409, 89 Cal.Rptr. 78;  Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64, 118 Cal.Rptr. 184, 529 P.2d 608;  Cunningham v. Simpson (1969) 1 Cal.3d 301, 308–309, 81 Cal.Rptr. 855, 461 P.2d 39.)

The judgment is reversed.

I dissent.

I dissent from the majority opinion because it misunderstands the instructions given on malice and because it departs from the scope of review required of an appellate court.

I

The majority opinion finds error in the giving of BAJI No. 6.94,¹ which tells the jury that malice “may be inferred from circumstances such as evidence of lack of probable cause,” without cautioning the jury that “such a result is not automatic.”  (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 192–193, 156 Cal.Rptr. 745.²  )  The opinion finds the error harmful, as it views the facts of the case.

The danger perceived by the majority is that, without the cautionary instruction, the jury treated the permissive inference as a conclusive presumption.   The majority opinion requires that a jury be doubly instructed (a) that the inference of malice is permissive, which BAJI No. 6.94 does (by use of the term “may”) and (b) that the inference is not conclusive.

The majority opinion agrees, as it must given the binding case law, that an inference of malice may be drawn from a lack of probable cause.

As Witkin puts it:  “It is also a permissible inference by the jury or court (not a presumption) from lack of probable cause.   In other words, if the defendant had no substantial grounds for believing in the plaintiff's guilt, but nevertheless instigated proceedings against him, it is logical to infer that his motive was improper.  ‘[T]he want of probable cause does not raise a legal presumption of malice․  The jury may, however, if they find that there was no probable cause for the prosecution infer malice therefrom, although malice is not a necessary inference to be deduced therefrom.   But in whatever way ․ it must be proven as a fact.’  (Runo v. Williams (1912) 162 Cal. 444, 450, 122 P. 1082․”  (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 253, p. 2530;  and see Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66, 118 Cal.Rptr. 184, 529 P.2d 608.)

The majority opinion implies that by virtue of BAJI No. 6.94 the jury in this case seized upon the inference in disregard of its duty to measure the facts underlying the inference against the legal standard of malice.   The opinion does not examine the instructions to support the premise but relies upon a truncated version of the facts favorable to the defendants.   The instructions, however, clearly informed the jury that malice is a fact which the jury must find independent of probable cause and that the inference from probable cause is permissive only.

Defendants' instruction No. 1 (BAJI Nos. 6.92 and 6.91) told the jury that malice is a requirement additional to that of lack of probable cause.   BAJI No. 14.71 (6th ed. 1977) defined malice without reference to probable cause.   The jury was told that the instructions must be considered as a whole (BAJI No. 1.01 (6th ed. 1977)).   Given these instructions, I see no likelihood that the jury converted a permissive inference into a conclusive presumption.

The real problem, partially seen by the majority, is that an instruction on a permissive inference gives no guidance to the jury.  “Instructions on permissive inferences ․ are simply awkward comments on the evidence․ [T]hey are objectionable on policy grounds because they are crude and uninformative.”  (Allen, Structuring Jury Decisionmaking in Criminal Cases:  A Unified Constitutional Approach to Evidentiary Devices (1980) 94 Harv.L.Rev. 321, 361–362.)   When a permissive inference is embodied in a pattern instruction, as in BAJI No. 14.71, and hence given without reference to the facts, it is doubly objectionable because it lends itself to confusion in legal standards.   A cautionary instruction offers no cure to the malady.   In focusing on the cautionary instruction, the majority opinion misses the point that it is the permissive inference itself which creates the problem.   That can be only cured by not giving the permissive inference instruction.

II

The majority opinion next concludes that BAJI No. 14.71 is an error.   It says:  “Additionally, the second malice instruction (BAJI 14.71) suffers the semantical and substantive defect criticized by this court in G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 122 Cal.Rptr. 218. There the court commented that an instruction which states, ‘Malice may be established by evidence of conduct which is “willful, intentional, and done in reckless disregard of its possible result” ’ is self-contradictory.   Willfulness and intent denote deliberation or design;  recklessness in contrast connotes action which is negligent, insensate, or heedless.   The contradiction arises since negligent conduct is not willful, and if conduct is willful, it is not negligent.  (Id., at p. 31, 122 Cal.Rptr. 218.)”

The majority opinion has found in Searle the one flaw in an otherwise subtle and persuasive opinion.

Searle went wrong in two ways.   First, it used a “dictionary definition [ ]” of “reckless,” bypassing case law which makes reckless conduct a species different from negligence.  (See 4 Witkin, Summary of Cal. Law, supra § 504, pp. 2770–2771, citing to Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 870, 118 P.2d 465, and Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 779, 91 Cal.Rptr. 745, 478 P.2d 465.)   In Donnelly, the Supreme Court characterized reckless conduct as willful and wanton misconduct.   It said:  “It involves no intention, as does willful misconduct, to do harm, and it differs from negligence in that it does involve an intention to perform an act that the actor knows, or should know, will very probably cause harm․ [It] is more closely akin to willful misconduct than to negligence, and it has most of the legal consequences of willful misconduct.   Thus, it justifies an award of punitive damages ․”  (Emphasis added.)  (Donnelly v. Southern Pacific Co., supra, 18 Cal.2d at pp. 869–870, 118 P.2d 465.) ³

Second, Searle made a unitary notion out of a compound one.   The complete idea consists of an intentional action, accompanied by another mental state, to wit, a conscious (reckless) disregard of the consequences of the intentional act.   It is the conjunction of these mental states, one sounding in intent and the other in a cognitive state of awareness, which together frame the notion.⁴

The Searle case catches a significant part of the meaning when it focuses on the culpable mental state of “conscious disregard.”  (See Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286, 157 Cal.Rptr. 32.)   It properly looks to Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462, 113 Cal.Rptr. 711, 521 P.2d 1103.  “ ‘In order to justify an award of exemplary damages, the defendant must be guilty of oppression, fraud or malice.  (Civ. Code, § 3294.)   He must act with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff's rights.’ ”   (G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at p. 32, 122 Cal.Rptr. 218.)

That is the sense of BAJI No. 14.71.   It requires that an act be intentionally done with that degree of awareness of the possible consequences of the act which is a “conscious [here reckless] disregard of the plaintiff's rights.”

That is precisely what happened in this case, reviewing the evidence, as we must, in the light most favorable to the prevailing party.   The plaintiff testified that she purchased a coat from the Sears Florin store after being informed that a similar coat ordered from the Sears catalog would be delayed in delivery.   Later, she returned to the Sears Florin store with the purchased coat in order to compare it with the catalog coat and to explain that she had already purchased a similar coat.   While browsing at the store she was arrested for theft of the purchased coat.   Her testimony was supported by a purchase receipt which matched the price tag, both of which were in her possession when arrested.   The jury was entitled to and evidently did believe the plaintiff.

Plaintiff's theory of the case was that the defendants rushed headlong to prosecute her for petty theft while consciously ignoring the evidence of her innocence, in violation of company policy, in particular paragraph 433 of the Sears security manual.   Paragraph 433, entitled “Approaching the Suspect” states that after the suspect has left the store an approach should be made by requesting, “May I examine the cash register receipt for (described article)?”   It goes on to state:  “If the subject is unwilling to return to the store and convincingly denies possession of the merchandise, or establishes that there is a cash register receipt, or there is any possibility that you may be wrong in your belief that merchandise is being taken, ask the subject for his name and address and drop the matter.   If you believe that there was a possibility of a theft, alert key store personnel against a further visit of the person to the store so that your belief can be more definitely established at a later time.”  (Emphasis added.)

The store manager admitted that he was familiar with paragraph 433 but made no attempt to recall the charges against plaintiff even though aware of the fact that she possessed a cash register receipt.

The jury was entitled to believe and evidently did believe that the defendants pursued the prosecution of plaintiff “in conscious disregard of her rights.”

The majority opinion simply ignores these facts in concluding ex cathedra that “the record fails to disclose any facts which would support a finding of malice ․”

III

Last, the majority opinion reverses the compensatory damage award of $10,000 as so grossly disproportionate to the injury suffered as to be the result of passion or prejudice.   The opinion focuses on the limited special damages of $30 for a psychiatric examination, the lack of wage loss and its view of the consequences of the limited detention and ultimate dismissal of the petty theft charges.

The opinion fails to give full weight to or ignores testimony that at the time of the arrest plaintiff was terrified and suffered extensive humiliation, aggravated by four court appearances, resulting in an inability to return to work following attendance at adult education courses at city college (explaining the lack of wage loss), and recurrent distress when shopping in stores.  “A reviewing court must uphold an award of damages whenever possible [citation] and all presumptions are in favor of the judgment [citations].”  (Bertero v. National General Corp., supra, 13 Cal.3d at p. 61, 118 Cal.Rptr. 184, 529 P.2d 608.)   The jury could properly place the value on plaintiff's suffering at $10,000.

I would affirm the judgment.

FOOTNOTES

1.   BAJI No. 6.94, sixth edition 1977, provides:  “The words ‘malice’ and ‘malicious', as used in these instructions, mean a wish to vex, annoy, or injure another person.   Malice means that attitude or state of mind which actuates the doing of an act for some improper or wrongful motive or purpose.   It does not necessarily require that the defendant be angry or vindictive or bear any actual hostility or ill will toward the plaintiff.  [¶] Malice may be proved by direct evidence or it may be inferred from circumstances such as evidence of lack of probable cause, or the defendant's bad faith, or the absence of an honest and sincere belief by the defendant that the arrest or prosecution of the plaintiff was justified by the existing facts and circumstances.”  (Emphasis added.)

2.   The Weaver case arose on review of a denial of summary judgment and accordingly did not consider the propriety of BAJI No. 6.94 or require that the defendant's proffered instruction be given.

3.   The point has been similarly made in an analogous criminal law context.  “Between the extremes of intentionality and negligence lies recklessness.   Recklessness is like the former in that the actor is conscious of a forbidden harm, he realizes that his conduct increases the risk of its occurrence, and he has decided to create that risk.   It is thus a form of intentional harm-doing in that it, too, is volitional in a wrong direction.”  (Fn. omitted.)  (Hall, General Principles of Criminal Law (2d ed. 1960) p. 115.)

4.   “[The] common link [of recklessness] with negligence is the chief reason for the prevalent confusion of ‘recklessness,’ e. g. the assertions that it is a sort of negligence, that it is gross negligence and the like.   Actually, recklessness is no more a degree of negligence than is intention.   Awareness of increasing the danger separates it completely from the genus of negligence.   It would be far more defensible to assert that recklessness is a lesser degree of intention;  but that, too, is imprecise.   If the essential differences discussed above were borne in mind, judges would no more talk of recklessness as ‘a degree of negligence’ than they now speak of intention as a degree of negligence.”  (Hall, supra, ante, fn. 3 at p. 128.)

EVANS, Associate Justice.

REGAN, Acting P. J., concurs.