CACI No. 1409. Common Law Right to Detain for Investigation
Judicial Council of California Civil Jury Instructions (2023 edition)
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1409.Common Law Right to Detain for Investigation
[Name of defendant] claims that the detention was not wrongful because
[he/she/nonbinary pronoun] had a right to detain [name of plaintiff]. To
succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] was the
[owner/employer/employee/agent] of a business;
2. That [name of defendant] had reasonable grounds to believe that
[name of plaintiff] had wrongfully [taken or damaged merchandise
or other personal property] [secured services] from the business.
If you find that [insert facts, that if established, would constitute
reasonable grounds], then [name of defendant] had reasonable
grounds to detain [name of plaintiff];
3. That [name of defendant] detained [name of plaintiff] for a
reasonable amount of time; and
4. That [name of defendant] detained [name of plaintiff] in a
reasonable manner.
New September 2003
Sources and Authority
• “[W]e conclude that the merchant’s probable cause defense is limited to suits
based upon a detention and does not extend to suits based upon an arrest.”
(Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591 [156 Cal.Rptr. 198,
595 P.2d 975].)
• “Ordinarily, the owner of property, in the exercise of his inherent right to protect
the same, is justified in restraining another who seeks to interfere with or injure
it.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 180 [54 P.2d 20], internal
citation omitted.)
• “Merchants who detain individuals whom they have probable cause to believe
are about to injure their property are privileged against a false imprisonment
action. The detention itself must be carried out for a reasonable time and in a
reasonable manner.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716 [30
Cal.Rptr.2d 18, 872 P.2d 559].)
• “We note that the merchant’s privilege is a defense to a false imprisonment
action. As such, the lack of that privilege on defendant’s part need not be
specifically pleaded by plaintiff. Although a false imprisonment must involve an
‘unlawful’ restraint on an individual’s liberty, [plaintiff’s] allegations sufficiently
plead that her confinement was unlawful. Moreover, the question of whether a
detainment was reasonable is generally a question of fact.” (Fermino, supra, 7
Cal.4th at p. 723, fn. 8, internal citations omitted.)
896
• Penal Code section 490.5(f) provides, in part: “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.”
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 504, 505
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.41
(Matthew Bender)
California Civil Practice: Torts § 13:11 (Thomson Reuters)
1410-1499. Reserved for Future Use
FALSE IMPRISONMENT CACI No. 1409
897
© Judicial Council of California.
