Costco charged a shopper with theft for putting a $117 package of Gillette razors underneath a big bag of dog food. The shopper sued for malicious prosecution, but the trial court granted Cosco’s anti-SLAPP, and the panel majority in Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.] affirmed.
Making a police report is protected conduct, and the shopper failed to prove that one Costco employee didn’t tell another employee that he saw the shopper put the razors under the dog food. (The shopper alleged the cashier and Coscto “loss-prevention” agent allowed the shopper to leave so they could arrest him.)
Justice Baker would have held this was not a SLAPP. Here is how he characterizes the facts:
“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.”
Justice Baker thinks the shopper “has easily made the requisite minimal merit showing of favorable termination, lack of probable cause, and malice to proceed with his lawsuit.” And he thinks that awarding Costco anti-SLAPP fees on top of the legal harassment it has already meted out on the shopper is too much to bear, and runs opposite the purpose of the statute: to prevent litigants from using the courts to chill speech.
“This is not a case where we should be worried about chilling Costco's ability to report shoppers to the police,” Justice Baker concludes. “To the contrary, Costco needs some chilling.”
