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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
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Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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My girlfriend took a pair of pants back to wal-mart to exchange

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My girlfriend took a pair of pants back to wal-mart to exchange them for a smaller size. The customer service line was 15 people long, so she went in, and exchanged the pants herself. We then shopped for the rest of our shopping list, checked out, and upon leaving the store were detained by store security. They said her unauthorized exchange was shoplifting and wrote her up. We received a lawyers letter requesting $225 dollars to resolve a civil shoplifting incident. (no police were called at the time, no fingerprints given, etc.) They are asking for civil damages or penalties, and threatening that if we don't pay the settlement fee, they'll take a civil action against us. My question is what is the extent of our legal risk? What does civil action mean (small claims court?). How likely are we to owe their lawyer fee's? And does civil action create some kind of "record". We're inclined not to pay, it feels like extortion. But don't want to be stupidly risky.
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 7 years ago.
The civil action does not create a criminal record, it is part of the civil recovery statute. If your girlfriend had proof she purchased the pants, then she needs to send a dispute to the attorneys with a copy of the proof of purchase and explain the situation (even though she broke the store policy in her actions) and dispute their claim. If they proceed to court in a civil action, you have a valid defense since she did not steal anything, she paid for the pants and was entitled to an even exchange, but if you lose she would be taxed with attorney's fees on top of the $225.

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Customer: replied 7 years ago.
Hi Paul. Thanks for your quick reply. In Alameda, CA how would they go about taking civil action? What actual court system is that? If they go that route, would we be able to do that without a lawyer (i.e. simple like small claims court, or something more complex which would require an attorney). If we have to hire an attorney, then we might as well pay the settlement offer. If it seems unlikely they'll take it to court, or if they do we can handle it ourselves and explain the situation, then probably worth it. Do you have experience with others cases like this where you could judge the likliehood they'd take civil action?

Another thing is they say that we committed shoplifting or theft as defined by our state. However, when I reviewed the statute they sent with the letter (Penal Code 490.5) it doesn't define what petty theft is. Also, it says that there is a potential fine as well as jail time. Which seems like a criminal statute.

So i'm confused around what civil action means... they also say its in addition to any criminal penalty - inferring that they may have already, or might choose to, forward this to criminal court. In which case paying their settlement would seem to be a bad idea as it implied guilt (unless basically they're just threatening. no police were called out after all, so they'd have to file a police report after the fact which seems unlikely).
Expert:  Law Educator, Esq. replied 7 years ago.
There are two parts to the statute, the one providing for criminal penalties for petty larceny, which is under $200, and the civil recovery statute. Your girlfriend can be charged with a misdemeanor of petty larceny, which has a $1000 fine and up to 1 year in jail, AND can be sued in civil court for the recovery statute, both. They can and do take it to court for the civil penalties because if they win they collect the attorney's fees from you along with the penalty. The civil recovery law is very powerful for merchants and they use it. As I said, if she has proof she purchased the item, then she needs to send it to the attorney. Also, it is up to the store as to whether or not they file a complaint for theft with the police and this is why you need to send your proof she paid for the item to the attorney. If she does not have proof she paid for the original pants, then you need to consider paying and getting a relase from the attorney in writing that they are not prosecuting the case criminally, since if they pursue this and you have no evidence she purchased the pants it can end up costing you way more than the $25.

Customer: replied 7 years ago.
thanks paul. we do have the receipt, and in fact showed it to them that day. they still wrote it up amazingly enough (we're 30 something professional's, totally not thiefs or miscreants! : ) it was amazing how they treated her like a criminal ... not as someone that broke store policy. anyhow ... the law firm has indicated they will escalate the cost to settle the matter over time. thus, should we write a letter explaining the case with proof of receipt (basically indicating we didn't steal). and take the risk they ignore it and escalate it? or write the letter and include the $225 dollars. basically cutting our loses, declaring innocence, but agreeing to settle nonetheless. basically if we write the letter, it seems like they would just say they consider it still theft, and then ask for more money. meaning, the key question is how strong is our case should they take it to court ... i.e. according to the law does doing an unauthorized exchange of the exact pair of paints with a receipt to prove purchase counts as theft. what would you recommend given what you know at this time?
Expert:  Law Educator, Esq. replied 7 years ago.
Unauthorized exchange is technically shoplifting because the store could have theoretically denied the exchange, but this does not mean that you should not write a letter to the law firm with a copy of the receipt and argue you paid for the original pants and were entitled to an exchange and that was all that occurred. The fact you can prove payment would make it highly likely that a DA would refuse to prosecute the case criminally. Theft requires an intent to permanently deprive. Since you paid for the merchandise once and merely exchanged it, you did not deprive them of anything. Splitting hairs, I know, but this is enough reasonable doubt to stop any criminal prosecution and it would be a matter of the facts, not the law for the civil court to decide.

Like I said, send them a letter disputing the claim first and send a copy of the receipt proving you paid for the item.
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