Do you face jail time if you do not pay this civil demand? No. That demand letter and any criminal prosecution are two separate issues.

Merchants contract with law firms that do nothing but send these letters in the hopes of getting several hundred dollars from people like you. If you choose to ignore their demands, they have to make a decision - let it go or file a small claims case against you. I have yet to speak to any attorney whose client actually got sued after ignoring these letters. There is one firm in Florida that contracts with several department stores and has been quoted in a news article as saying they send out over 1.5 million of these letters and file less than 10 lawsuits against people that do not pay. Not ten thousand. Ten. The odds are overwhelmingly in your favor they will not follow through. Why?

Although there is a provision in California law that allows a merchant to "demand" up to $500 for a theft incident, that demand has no legal significance. Let us say you choose to ignore their letter (and the follow up letters they will send). They would have to file a small claims case, serve you, then send a store employee to present the case in court (lawyers are not allowed in small claims). From there, they would have to prove their "damages." What are they really out? I assume, as in most cases, that the merchandise was recovered and put right back on the shelf to be resold. Damages = $0. The store personnel were already on the clock, so they did not incur any extra expense for salary. Damages still = $0. You would have also been required to pay restitution through the criminal case, should the merchandise have been unable to be resold, so they have gotten any money back they are entitled to already.

We can go further and assume that a judge was feeling generous and decided that two people from the store had to deal with you for 2 hours during this incident. Let us say they make $25 an hour each, just for arguments sake. $25 x 2 hours = $50 for each person involved from the store. That is a total of $100 in "damages" (and I am being overly generous). That is far less than they are asking for in their letter to you.

The odds are overwhelming in your favor that they will send a couple more letters, then drop it. If you call to negotiate with them, they will assume they have you on the hook and ramp things up with more letters and/or calls. If you choose to ignore the letters, ignore them completely. If you just want to put this behind you, pay their demand and get a release of liability. That will guarantee they cannot sue you later, if you were to be the extremely rare exception.

Answer Applies to: California
Replied: 8/31/2010

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