§ 490.5 PC – Civil Demand Letters in Shoplifting Cases

Penal Code 490.5 PC is the California statute that authorizes a law firm or company to send a civil demand letter to you if you are accused of shoplifting. The letter demands payment for any losses the retailer incurred because of the crime.

A civil demand notice for shoplifting can order payment of up to $500 for the cost of such things as the item stolen, any damaged merchandise, and any employee or loss prevention officer that had to handle the shoplifting case.

You should contact a criminal defense lawyer for help if you receive a demand letter. If you make a quick payment in response to a letter, the payment could equate to an admission of guilt. Further, a payment does not prevent a store from filing criminal charges or a civil lawsuit.

Note that shoplifting is a crime in California per Penal Code 459.5 PC. You commit the offense when you:

1. enter an open business, and
2. do so with the intent to steal merchandise worth $950 or less.

Shoplifting is a misdemeanor offense under California’s criminal laws (as opposed to an infraction or a felony).

The crime is punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is a civil demand letter?
• 2. What should I do if I receive a letter?
• 3. What is shoplifting?
• 4. What is the shopkeeper’s privilege?
• 5. Can retailers use force to detail a shoplifter?

1. What is a civil demand letter?

In the context of a shoplifting case, a civil demand letter is when the store (or the store’s lawyer) sends you a letter demanding payment for any losses that the store incurred due to your alleged shoplifting. This often happens even if the merchandise was recovered and not damaged.

As the name implies, a civil demand letter involves a civil action (as opposed to a criminal action) and any payment given to the store is a form of civil recovery.

Per Penal Code 490.5 PC, a store can ask for the following in a civil demand letter:

1. the cost of the item that you allegedly took, or attempted to take (if the store was unable to recover the stolen item),
2. the cost of any damaged merchandise, and
3. the expense of a store employee or a loss prevention officer that handled the shoplifting case.¹

California law allows retailers to demand up to $500 in losses. This is regardless of the cost of the item that you allegedly took or tried to take.²

If you were a minor at the time of the incident, your parent or legal guardian shall be jointly and severally liable to the retailer along with you.³

If you ignore a demand letter, PC 490.5 authorizes the targeted store to file a case in small claims court against you.⁴

2. What should I do if I receive a letter?

Contact a criminal defense lawyer for legal advice if you receive a demand letter.

A defense attorney will likely advise you not to act rashly in response to a letter and make a payment. This is because a quick payment may act as an admission that you are guilty of a crime.

Further, note that even if you pay a sum of money in response to a demand letter, that does not preclude a store from filing criminal charges or a civil lawsuit.

Note also that an attorney may be able to work with a store to:

• negotiate a lower payment, and
• remove the risk that it will initiate a criminal case or a civil claim.

3. What is shoplifting?

Penal Code 495.5 PC is the California statute that makes shoplifting a crime. Per this statute, you are guilty of an offense when you:

1. enter an open business, and
2. do so with the intent to steal merchandise worth $950 or less.⁵

In other words, shoplifting is entering an open business intending to commit the crime of petty theft (or retail theft).

The crime of shoplifting was created by the voter initiative Proposition 47 in 2014. Prior to the passage of Prop 47, the behavior that is now defined as shoplifting could have been charged instead as Penal Code 459 PC burglary.

The offense of shoplifting is typically charged as a misdemeanor. The crime is punishable by:

• imprisonment in county jail (as opposed to state prison) for up to six months, and/or
• a fine of up to $1,000.⁶

4. What is the shopkeeper’s privilege?

Under California law, the “shopkeeper’s privilege law” says that shopkeepers, or store owners, may detain you if they have probable cause/reasonable grounds to believe that you are guilty of shoplifting.⁷

Note though that this detention:

• must be for a reasonable amount of time, and
• used solely for the purpose of investigating the possible shoplifting crime.⁸

Whether or not a detainment is “reasonable,” or for a reasonable period of time, is a determination a judge makes based on all of the facts of a given case.⁹

Under PC 490.5, a “shop owner or merchant” is an owner or operator of any store used to purchase or sell any personal property capable of manual delivery.¹⁰

5. Can retailers use force to detain a shoplifter?

An owner has the legal right to use force in detaining you (an alleged shoplifter).

The shopkeeper’s privilege allows a store owner to use a reasonable amount of non-deadly force on you that is necessary to:

• protect themself, and
• prevent you from escaping from the store.¹¹

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Legal References:

1. California Penal Code 490.5 PC. The full language of the statute reads as follows:

   (a) Upon a first conviction for petty theft involving merchandise taken from a merchant’s premises or a book or other library materials taken from a library facility, a person shall be punished by a mandatory fine of not less than fifty dollars ($50) and not more than one thousand dollars ($1,000) for each such violation; and may also be punished by imprisonment in the county jail, not exceeding six months, or both such fine and imprisonment.(b) When an unemancipated minor’s willful conduct would constitute petty theft involving merchandise taken from a merchant’s premises or a book or other library materials taken from a library facility, any merchant or library facility who has been injured by that conduct may bring a civil action against the parent or legal guardian having control and custody of the minor. For the purposes of those actions the misconduct of the unemancipated minor shall be imputed to the parent or legal guardian having control and custody of the minor. The parent or legal guardian having control or custody of an unemancipated minor whose conduct violates this subdivision shall be jointly and severally liable with the minor to a merchant or to a library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the parent or legal guardian shall be jointly and severally liable with the minor to the merchant for the retail value of the merchandise if it is not recovered in a merchantable condition, or to a library facility for the fair market value of its book or other library materials. Recovery of these damages may be had in addition to, and is not limited by, any other provision of law which limits the liability of a parent or legal guardian for the tortious conduct of a minor. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of that court, or in any other appropriate court; however, total damages, including the value of the merchandise or book or other library materials, shall not exceed five hundred dollars ($500) for each action brought under this section.

   The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies, except that the provisions of Section 1714.1 of the Civil Code shall not apply herein.

   (c) When an adult or emancipated minor has unlawfully taken merchandise from a merchant’s premises, or a book or other library materials from a library facility, the adult or emancipated minor shall be liable to the merchant or library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the adult or emancipated minor shall be liable to the merchant for the retail value of the merchandise if it is not recovered in merchantable condition, or to a library facility for the fair market value of its book or other library materials. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of such court, or in any other appropriate court. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies.

   (d) In lieu of the fines prescribed by subdivision (a), any person may be required to perform public services designated by the court, provided that in no event shall any such person be required to perform less than the number of hours of such public service necessary to satisfy the fine assessed by the court as provided by subdivision (a) at the minimum wage prevailing in the state at the time of sentencing.

   (e) All fines collected under this section shall be collected and distributed in accordance with Sections 1463 and 1463.1 of the Penal Code; provided, however, that a county may, by a majority vote of the members of its board of supervisors, allocate any amount up to, but not exceeding 50 percent of such fines to the county superintendent of schools for allocation to local school districts. The fines allocated shall be administered by the county superintendent of schools to finance public school programs, which provide counseling or other educational services designed to discourage shoplifting, theft, and burglary. Subject to rules and regulations as may be adopted by the Superintendent of Public Instruction, each county superintendent of schools shall allocate such funds to school districts within the county which submit project applications designed to further the educational purposes of this section. The costs of administration of this section by each county superintendent of schools shall be paid from the funds allocated to the county superintendent of schools.

   (f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises.

   A theater owner may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the theater owner has probable cause to believe the person to be detained is attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater.

   A person employed by a library facility may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the person employed by a library facility has probable cause to believe the person to be detained is attempting to unlawfully remove or has unlawfully removed books or library materials from the premises of the library facility.

   (2) In making the detention a merchant, theater owner, or a person employed by a library facility may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property.

   (3) During the period of detention any items which a merchant or theater owner, or any items which a person employed by a library facility has probable cause to believe are unlawfully taken from the premises of the merchant or library facility, or recorded on theater premises, and which are in plain view may be examined by the merchant, theater owner, or person employed by a library facility for the purposes of ascertaining the ownership thereof.

   (4) A merchant, theater owner, a person employed by a library facility, or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises, or was attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater, may request the person detained to voluntarily surrender the item or recording. Should the person detained refuse to surrender the recording or item of which there is probable cause to believe has been recorded on or unlawfully taken from the premises, or attempted to be recorded or unlawfully taken from the premises, a limited and reasonable search may be conducted by those authorized to make the detention in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision. Upon surrender or discovery of the item, the person detained may also be requested, but may not be required, to provide adequate proof of his or her true identity.

   (5) If any person admitted to a theater in which a motion picture is to be or is being exhibited, refuses or fails to give or surrender possession or to cease operation of any video recording device that the person has brought into or attempts to bring into that theater, then a theater owner shall have the right to refuse admission to that person or request that the person leave the premises and shall thereupon offer to refund and, unless that offer is refused, refund to that person the price paid by that person for admission to that theater. If the person thereafter refuses to leave the theater or cease operation of the video recording device, then the person shall be deemed to be intentionally interfering with and obstructing those attempting to carry on a lawful business within the meaning of Section 602.1.

   (6) A peace officer who accepts custody of a person arrested for an offense contained in this section may, subsequent to the arrest, search the person arrested and his or her immediate possessions for any item or items alleged to have been taken.

   (7) In any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.

   In any civil action brought by any person resulting from a detention or arrest by a theater owner or person employed by a library facility, it shall be a defense to that action that the theater owner or person employed by a library facility detaining or arresting that person had probable cause to believe that the person was attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater or had stolen or attempted to steal books or library materials and that the person employed by a library facility acted reasonably under all the circumstances.

   (g) As used in this section:

   (1) “Merchandise” means any personal property, capable of manual delivery, displayed, held or offered for retail sale by a merchant.

   (2) “Merchant” means an owner or operator, and the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises used for the retail purchase or sale of any personal property capable of manual delivery.

   (3) “Theater owner” means an owner or operator, and the agent, employee, consignee, lessee, or officer of an owner or operator, of any premises used for the exhibition or performance of motion pictures to the general public.

   (4) The terms “book or other library materials” include any book, plate, picture, photograph, engraving, painting, drawing, map, newspaper, magazine, pamphlet, broadside, manuscript, document, letter, public record, microform, sound recording, audiovisual material in any format, magnetic or other tape, electronic data-processing record, artifact, or other documentary, written or printed material regardless of physical form or characteristics, or any part thereof, belonging to, on loan to, or otherwise in the custody of a library facility.

   (5) The term “library facility” includes any public library; any library of an educational, historical or eleemosynary institution, organization or society; any museum; any repository of public records.

   (h) Any library facility shall post at its entrance and exit a conspicuous sign to read as follows:

   “IN ORDER TO PREVENT THE THEFT OF BOOKS AND LIBRARY MATERIALS, STATE LAW AUTHORIZES THE DETENTION FOR A REASONABLE PERIOD OF ANY PERSON USING THESE FACILITIES SUSPECTED OF COMMITTING “LIBRARY THEFT” (PENAL CODE SECTION 490.5).”

   (Amended by Stats. 1994, 1st Ex. Sess., Ch. 34, Sec. 1. Effective November 30, 1994.)

2. See same.
3. See same.
4. See same.
5. California Penal Code 495.5 PC.
6. See same.
7. California Penal Code 490.5f1 PC. See also People v. Carter (1981) 117 Cal.App.3d 735.
8. California Penal Code 490.5 PC.
9. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701.
10. California Penal Code 490.5g2 PC.
11. California Penal Code 490.5f2 PC.