[Confuesdxx]

I was caught shoplifting and received a letter from the Law Offices of ******* Associates, P.A. It says "Pursuant to CAL. Penal Code, Section 490.5 (b) and/or (c), the store may consider moving foward with a statutory civil damages claim against you. We ask that you settle this matter by making payment to us in the amount of $350.00 within 20 days of of this letter. Upon receipt of full payment and clearance of funds, you will receive a written release of the statutory civil "penalty" claim." Should I pay this or ignore it? If I pay it will it go away, and they won't sue me?

[RickJ]

Were you "caught" and charged by the local authorities?

If not, then you should not pay a penny.

If so, then you should deal with the criminal end of it first.

[MMcIntyre]

You state that you were caught shoplifting from a store in California. Our “Of counsel” attorney Patricia L. Hastings is licensed in California but I am not. The information contained in this response is based on an assumption that you are an adult and contains information passed on from Ms. Hastings, but the information is not to be construed as legal advice but instead information that may help you understand the request that was made.

Whenever a person commits, or attempts to commit a theft, that action may be considered both a crime and a civil tort. The retailer may request the state to file criminal charges and/or it may choose to take civil action seeking damages. The civil request for damages may be based on common law and/or statutory law and is separate from and independent of any criminal action that may or may not have been taken. If there was a criminal matter, regardless of the outcome of such matter, the retailer may still make a civil damages request (civil settlement offer). However, according to an opinion of the office of the Attorney General of California, payment of a civil damages request pursuant to California Penal Code §490.5 asking for damages between $50 and $500 does not in and of itself result in a civil compromise (global settlement of both the civil and criminal claim). That means that paying a civil settlement offer or civil damages request will not make you "immune" from a separate criminal claim but will only relieve you of the civil liability referred to in the settlement offer itself.

The civil damages request action is often designed to work as a deterrent to future theft as well as to shift the tremendous cost of theft and the resulting security costs from the honest consumer (through higher retail prices) to the offenders who are creating the problem.

The amount demanded by the business establishment for this civil action is for the act committed against the store and is not to compensate for the item, which may or may not have been damaged. In California, the statute providing a civil remedy under Cal. Penal Code §490.5 describes the need for merchandise to be taken from the premises but at least one court in California has held that removing an item from its packaging while being stopped inside the store satisfied this element of being taken from the premises. Whether the item was or was not damaged, or whether it was returned to the store has little, if any bearing on the demand amount and a prior Attorney General in California wrote a specific opinion confirming that.

Theft of merchandise from a store is considered a common law tort of conversion. Therefore, the underlying request is not a debt collection request as our firm's settlement offer requesting civil damages does not stem from a consumer transaction but instead it arose from an alleged tort for taking or trying to take the item or items at issue. The Fair Debt Collection Practices Act in 1977 was intended to protect consumers from abusive debt collection and does not apply to “unpaid taxes, fines, alimony, or tort claims because they are not debts incurred from a “transaction (involving the purchase of) property.. . Or services.. . For personal, family or household purposes.” Because our request arises from a tort and not a debt, our civil damages request would not be regulated by the Fair Debt Collection Practices Act. We also have litigation agreements with many clients that pursue civil matters at their discretion.

We represent the retailer concerning the matter. If you would like to speak about this matter and the potential for resolving the civil damages request, I would be happy to speak with your lawyers if they are representing you for the civil matter or you if they decide to not represent you for the civil matter. You may also seek the advice of an attorney who would be willing to represent you for the civil matter. Alternatively, if not represented, you may call me at the toll free number listed on our letter or at (866) 875-6565 at extension 155.

Marisa C. McIntyre
Attorney at Law