Guijosa v. Wal-Mart Stores, Inc., 24119-6-II.

• Decision Date: 30 June 2000
• Docket Number: No. 24119-6-II.,24119-6-II.
• Citation: 101 Wash.App. 777,6 P.3d 583
• Parties: Salvador Delgado GUIJOSA, a single man; Rogelio Hernandez Guijosa, a single man; and Richard Hernandez, a minor, through his Guardian ad Litem, Rogelio Hernandez Guijosa, Appellants, v. WAL-MART STORES, INC., a corporation registered in Washington; David C. Obfer and Jane Doe Obfer, individually, and both as a marital community; David C. Obfer, individually, and both as a marital community; and Rhonda Liburdi and John Doe Liburdi, wife and husband, Rhonda Liburdi, individually, and both as a marital community, Respondents.
• Court: Washington Court of Appeals

6 P.3d 583

101 Wash.App. 777

Salvador Delgado GUIJOSA, a single man; Rogelio Hernandez Guijosa, a single man; and Richard Hernandez, a minor, through his Guardian ad Litem, Rogelio Hernandez Guijosa, Appellants, v. WAL-MART STORES, INC., a corporation registered in Washington; David C. Obfer and Jane Doe Obfer, individually, and both as a marital community; David C. Obfer, individually, and both as a marital community; and Rhonda Liburdi and John Doe Liburdi, wife and husband, Rhonda Liburdi, individually, and both as a marital community, Respondents.

No. 24119-6-II.

Court of Appeals of Washington, Division 2.

June 30, 2000.

Publication Ordered August 11, 2000.

Timothy Kent Ford, MacDonald, Hoague & Bayless, Seattle, Robert Dryden Wilson-Hoss, Hoss and Wilson-Hoss, Shelton, for Appellants.

D. Michael Reilly, Michael B. King, Steve Jensen, Lane Powell Spears Lubersky, LLP, Seattle, for Respondents.

BRIDGEWATER, J.

Plaintiffs appeal from a verdict in favor of Wal-Mart in a civil action alleging false imprisonment, battery, malicious prosecution, and violation of the Washington Consumer Protection Act. We affirm.

Salvador Delgado Guijosa (Delgado), Rogelio Hernandez Guijosa (Guijosa), and Ricardo Hernandez (Hernandez) collectively "plaintiffs")¹ filed this suit against Wal-Mart, claiming false imprisonment, battery, malicious prosecution, and a violation of the Washington Consumer Protection Act, based on discrimination.

The claim arises from an alleged shoplifting incident at the Wal-Mart in Shelton, Washington. Trial testimony conflicted about whether Delgado and Guijosa were wearing baseball caps when they entered the Wal-Mart. All parties agreed Hernandez wore a baseball cap when he entered the store. While shopping, Delgado and Guijosa tried on hats from a sale bin² and decided to purchase two. Rhonda Liburdi, a loss prevention associate, testified she saw Guijosa tear off the price tag and place the hat on his head. She also saw Delgado walk away from the bin wearing a cap. A sales associate testified that when the trio approached the bin, only Hernandez was wearing a cap, but when the three walked away from the bin, they each wore a hat. Delgado and Guijosa paid for some hats at the checkstand.³ Liburdi asked the cashier if they paid for the hats on their heads; the cashier replied no. Liburdi stopped the trio in the front vestibule of Wal-Mart, telling them she was detaining them for taking the hats without paying.

Liburdi requested they proceed to a security office at the back of the store. She asked a coworker, David Opfer, to assist her. Guijosa was the only one of the three who spoke English. He told Liburdi the hats belonged to them. Delgado and Guijosa both testified that Delgado's cap had been purchased two weeks before, and Guijosa's cap the previous day. Guijosa told Delgado and Hernandez to refuse to answer Liburdi's questions. Guijosa also told Liburdi that the three would make a statement to the police. Liburdi called the Shelton police, who arrived approximately 20-30 minutes later. The police filed charges against Delgado and Guijosa based on Liburdi's statements. The City of Shelton cited Delgado and Guijosa for criminal theft in the third degree. These criminal charges were dismissed before trial by the City's motion. All parties agreed Hernandez wore a cap of a type not sold at Wal-Mart. Hernandez was not charged with any crimes. Wal-Mart did not return any of the hats, including the cap belonging to Hernandez.

At trial, plaintiffs made an offer of proof to introduce testimony about Liburdi's reputation for untruthfulness within the criminal justice system. They sought to introduce this evidence through the testimony of Delgado's and Guijosa's public defender, Donna Price. At voir dire outside the presence of the jury, Price indicated she would testify as to Liburdi's reputation for truth-telling in other criminal theft cases, based on her own observations of comparing her story to witnesses in other cases, and information regarding Liburdi told to her by the City Attorney, judge, and other defense attorneys. The trial judge ruled that the evidence was inadmissible under ER 608, because the criminal justice system could not be a sufficiently neutral community for purposes of reputation evidence.

Denying plaintiffs' motion for a directed verdict, the trial court gave an instruction based on the defense found in the shopkeeper's privilege statute, RCW 4.24.220. The jury found that Wal-Mart proved by a preponderance of the evidence that they detained the plaintiffs for a reasonable time on reasonable grounds, and thus it was allowed the defense to any civil claim found in the shopkeeper's privilege statute. Therefore, the jury found for Wal-Mart on the false imprisonment and battery claims. The jury also found for Wal-Mart on the malicious prosecution claim.

Last, the jury found that Wal-Mart did not discriminate against any of the plaintiffs, but found that Wal-Mart violated the Consumer Protection Act with respect to Delgado and Guijosa. Plaintiffs' counsel stated that he did not believe the verdicts were inconsistent. Wal-Mart's counsel argued that the verdict was inconsistent, and that the correct remedy was judgment notwithstanding the verdict on plaintiffs' Consumer Protection Act claim. Neither party asked for jury clarification. After both parties briefed the issue, the trial judge agreed that without a finding of discrimination, there was insufficient evidence to find a violation of the Consumer Protection Act. The trial court granted Wal-Mart's motion for judgment as a matter of law, setting aside the jury's verdict on plaintiffs' Consumer Protection Act claim.

I. LAW ENFORCEMENT AS A COMMUNITY FOR PURPOSES OF ER 608

Plaintiffs sought to introduce the testimony of their public defender, Price, regarding Liburdi's "reputation" for untruthfulness within the criminal justice system. Specifically, Price's offered reputation testimony was primarily based on conversations with the City Prosecuting Attorney and her clients regarding inconsistencies between Liburdi's statements in her reports and an officer's or civilian witness's statements about other shoplifting incidents. The trial court excluded the testimony, finding that the criminal justice system cannot be a community for purposes of ER 608 because it is not sufficiently neutral. We review for abuse of discretion the trial court's decision regarding the sufficiency of foundation to support the admission of reputation testimony. State v. Land, 121 Wash.2d 494, 500, 851 P.2d 678 (1993). A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds. Land, 121 Wash.2d at 500, 851 P.2d 678 (citation omitted).

ER 608(a)⁴ allows the admission of evidence as to a witness' reputation for truthfulness. ER 608(a)'s application has been broken down into five elements:

The first element is the foundation for the testimony—the knowledge of the reputation of the witness attacked. Second, the impeaching testimony must be limited to the witness's reputation for truth and veracity and may not relate to the witness's general, overall reputation. Third, the questions must be confined to the reputation of the witness in his community... Fourth, the reputation at issue must not be remote in time from the time of the trial. Finally, the belief of the witness must be based upon the reputation to which he has testified and not upon his individual opinion.

State v. Lord, 117 Wash.2d 829, 873, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992) (citations omitted).

Under the third factor, a valid community must be "`neutral enough [and] generalized enough to be classed as a community.' " State v. Callahan, 87 Wash.App. 925, 934, 943 P.2d 676 (1997) (citing Lord, 117 Wash.2d at 874, 822 P.2d 177). Callahan specifically held that "[f]or purposes of reputation testimony, the criminal justice system is neither neutral nor sufficiently generalized to be classified as a community." Callahan, 87 Wash.App. at 935, 943 P.2d 676 (citing Lord, 117 Wash.2d at 874, 822 P.2d 177). We decline plaintiffs' suggestion to overrule our previous holding in Callahan.

Plaintiffs first urge this court to overrule Callahan and apply the "work community" rule elucidated in Land, 121 Wash.2d at 500, 851 P.2d 678, to find that Liburdi worked within the "criminal justice community," thus rendering evidence of her reputation for truthfulness admissible under ER 608. Plaintiffs argue that the cases upon which Callahan relied to determine whether the criminal justice system was a "community," State v. Swenson, 62 Wash.2d 259, 382 P.2d 614 (1963) and Lord, 117 Wash.2d 829, 822 P.2d 177, were reversed on this point by the Supreme Court's decision in Land, 121 Wash.2d 494, 851 P.2d 678.

But, in Land, the Supreme Court did not overrule the sufficiently "neutral" and "general" test from Lord and Swenson, which Callahan cited to hold that the criminal justice system did not qualify as a community for purposes of ER 608. Landonly overruled Swenson to the extent it barred evidence of reputation within "a business or other relevant community." Land, 121 Wash.2d at 500-01,851 P.2d 678. Plaintiffs fail to cite the entire passage when stating the test it wishes us to adopt. Land stated the test as follows:

To establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. State v. Lord, 117 Wash.2d 829, 874, 822 P.2d 177 (1991), cert. denied, [506 U.S. 856, 113 S.Ct. 164,] 121 L.Ed.2d 112 (1992). Some relevant factors might include the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community. The decision as to whether the foundation for a valid community has been

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