Civil Recovery Demand Letters under 490.5

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Southern California Defense Attorney Lance M. FilerCivil Recovery Demand Letters

     Some people are surprised to learn that California has a “Civil Recovery” statue on the books for shoplifting or petty theft cases, section PC §490.5(b).  California Penal Code section 490.5(b) provides that retailers can recover between $50 and $500 dollars from an individual accused of shoplifting even in the absence of a criminal conviction or issuance of citation. This provision applies no matter what the value of the property actually taken or whether the property was in fact returned to the shelves.

Remember, theft is a crime and if you are caught, you may be brought to court and charged with a crime even if the store gets the items back.  Even if the Criminal Case is resolved whether you are found innocent, guilty, or even if you are never charged at all, the retail company may claim damages and threaten to sue (you) the shoplifter. I doing this the retailer will send by mail a Civil Recovery Demand Letter,

The Civil Recovery Demand Letter: is a letter sent by retail companies or their lawyers to people accused of shoplifting or their parents. These letters often demand payment, usually anywhere from $50-$500 dollars. These amounts are supposedly the cost of detecting shoplifters and paying for their loss prevention systems and employees. In most cases the store has recovered the stolen item and is not claiming the value of the property taken. Often the letters are sent when the person is not even charged by the police. These letters are many times written by law firms and will threaten that if not paid by a certain date the amounts will increase. Big retail stores often take advantage of ill-informed youths and their parents; this blog’s goal is to make sure you are not taken advantage of by big retailers or their counsel.

                       What to do if you receive a Civil Recovery Demand Letter:

         1.      It is important to know that this is NOT a court order

This letter is not a legal debt, a legal debt only occurs when a court has ordered you to pay. However, if you receive a summons to appear for a small claims actions you are required to respond. This notice will have a court case number and if you do not respond you may be found liable for the full amount.

It is also important to remember that this letter is not the notice of a criminal action against the shoplifter. If you are part of a criminal case it is a big deal and should be taken seriously. A criminal case is part of the court’s public record, and a theft conviction can cause problems for the rest one’s life. In the event of a criminal action, a complaint will be mailed to you charging you with a violation with a notice to appear in court at a specific location and time. This cannot be ignored and should be taken care of by retaining criminal defense counsel.

       2.      If you do not pay, the company can start a lawsuit against you or your parents in small claims court, but this is rare.

Why would the retailer not prosecute the PC §490.50(b) to the fully extent of the law; its simply not cost effective. The filling fee for a small claims action plus the cost of serving a lawsuit on you is often more than the price of the missing items in question. PC §490.50(b) does not allow the retailer to recover legal fees, so they can’t report you to a credit agency and your credit score will not be effected.

Retailers outsource the collection of this civil recovery to a collection agency and then split the money. From the retailers’ perspective, if even a small percentage of the people they contact actually respond with full or partial payment, the retailers still make plenty of money, especially since they cannot justify these amounts in court.

         3.      If you don’t pay you may get another letter in the mail but that’s generally all that will happen.

They will send more threatening letters, demanding even more money or that the fines will increase, but these are also empty threats. If they call you, you should express that you will only communicate with them in writing.

Do not make an agreement to pay this amount over time, it may be seen as an enforceable contract. Do not sign any documents before leaving the store. Don’t sign anything without consulting a lawyer.

It is well documented from such sources as the Wall Street Journal that some of the larger retailer employed law firms send out about 1.2 million civil-recovery demand letters a year (2008 figures) but they follow up by suing fewer than 10 times a year.

What if I just pay the amount indicated in the Letter, will it all just go away?

      4. Paying the civil demand will not make your criminal case go away

As explained above, the store suffering the loss can bring a civil claim under Section 490.5 in small claims court, or proceed in a civil court of unlimited jurisdiction to recover any actual damages or loss.  This doesn’t mean they will, but they could.   It is very important to realize that the store’s decision to pursue or not pursue civil remedies is completely separate from any criminal prosecution for the theft, that’s very important to recognize.  It is not up to the store to decide whether to “press charges” or not.  It is not up to the store whether a case will be filed against you or whether or not you will have a conviction on your record, end up on probation, and/or go to jail or prison.

The decision to file a criminal charge rests solely in the hands of the local prosecutorial agency for that jurisdiction.  In most cases it will be the District Attorney for the county where the theft took place, but in some cities misdemeanor crimes are delegated to the City Attorney’s office or other local prosecutors.    They will make the decision whether to file a criminal case (not the store, not the loss prevention goons, not even the cops).   The filing decision is usually based upon the sufficiency of the evidence, meaning, does the prosecutor think they can prove the case beyond a reasonable doubt?  If they do, they will usually file.

Civil demand letters are often written creatively to imply that the potential criminal case will go away if you pay up quickly, or that the criminal case will somehow get worse if you don’t pay.   In truth, they are two completely separate issues.  For the reasons discussed above in this article, you may decide to ignore the collection efforts to save some money.   But this doesn’t mean you can ignore your criminal case.  Criminal charges are serious business and failure to appear in court will result in a warrant for your arrest.  If the case becomes a conviction, you can serve jail or prison time, and the criminal conviction will show up on your criminal history with the Department of Justice (DOJ).   Background checks could cost you job opportunities, cause immigration problems, make you ineligible to hold certain licenses issued by the state or federal government, make you ineligible for certain public benefits, and more.

So remember, if you want to play hardball with the civil demand letter and see if it’s an empty threat, go right ahead, but don’t blow off the criminal prosecution.  If you have posted a bond, you have been given a citation to appear in court, you received a letter to appear in court, or you are under investigation for a criminal charge, it’s time to get serious about protecting yourself.  You have a right to a lawyer, you have a right confront and cross examine your accusers at trial, you have the right to use the subpoena power of the court, you have a right to a trial by jury. You have a right to appeal, and more.   To learn how to best use these rights to protect yourself in criminal court, call an experienced criminal lawyer NOW.

Overall, deciding how to handle your Criminal or Civil case depends on your individual circumstances so it’s imperative you contact an experienced attorney  to assist your needs.  If you require representation on the above or any other criminal matter, feel free to reach me directly at The Law Offices of Mark A. Gallagher: (800) 797 – 8406 and email: lance.socaldefense@gmail.com

 

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