• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Home Depot employee stole my iPhone

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

lost_iphone

Junior Member
What is the name of your state (only U.S. law)?
California

Sunday night, I went shopping with my girlfriend for supplies at my local Home Depot in El Monte, CA towards the end of their closing hours before 9 PM. I had finished paying at the register number 6 at 8:51 PM and parked my electrical shopping cart by the vending machines, which is where I had mistakenly left my phone (I know, dumb mistake). This was a iPhone 6s Plus 128gb rose gold model with a tempered glass protector installed and the white Apple silicone case.

When I got into my car, my girlfriend asked if I had my phone. This is when I found out I had left it behind. I ran back into the store and asked the assistant manager if anyone had turned in a lost iPhone. He said no and asked his employees if they have seen it, which they all denied.

My girlfriend and I began tracking the phone using find my friends and as we were refreshing the app, we noticed that the phone was moving throughout the store. We called it multiple times during this chase, but there was no answer. While refreshing the app, my girlfriend and I noticed my phone was moved out into the parking lot. We ran out and within moments, the phone was already driven out a couple blocks down before the thief had finally turned off my device.
The manager informed me he asked the employee who moved the shopping cart I was using if she saw a phone, which she denied before she left. He apologized profusely and informed me that they would be checking the cameras the next morning. The El Monte Police Department non-emergency phone lobby and line were already closed by 9:15 PM, so I went home, turned on lost mode on my device and in the message I stated that the Home Depot cameras are being checked and that the police are being notified. I was hoping the thief would turn it on sometime if they weren't savvy enough so that I would get the location of their address, but it seems that it's either been off since Sunday night, or that they have removed my sim card so that it would not connect to a network.

Fast forward to Monday and after making a few phone calls to this particular Home Depot location, their lost prevention department informed me that they did in fact see an employee driving the electrical cart back to where it belonged with my phone physically inside of it, but they were unable to see on camera if this employee had actually pocketed it. I called Home Depot's corporate customer service number, where a helpful representative documented all of these details and helped to reach out to the store himself. When he returned to the phone with me, he told me that the particular associate that drove the electrical cart with my phone is not scheduled to work until tomorrow and that I would have to contact the store's manager after the interview is completed. I have my receipt from T-Mobile that shows I paid $1035.49 for my device. I believe this is classified as grand theft under California law which can be a felony.

After work on Monday, I went to the El Monte Police Department where they weren't of much help. I spoke to a cadet and officer, explained all the details to them and asked to file a report. They told me that there isn't anything that can be done and said that what happened is not theft, but abandoned property due to the fact that I left the phone behind and was no longer in the vicinity when the phone was retrieved by somebody else. I explained that this wasn't the case as I was actively tracking the phone down within Home Depot for at least 5 minutes using the Find My Friends app, called the phone multiple times while it was being moved, and placed a message on the lock screen with my girlfriend's number and to contact us while we were still in the store. They simply shrugged and said well, we will give you a case number and let us know if the thief ever turns the phone on to send you their location. I did not see the cadet fill any forms other than jotting a few notes down onto a post-it before sending me off.

Today at 6:45 PM, I received a phone call from the manager at Home Depot telling me the interview has been completed and that the employee confessed to taking the phone. They informed me that she said she has sold the phone on OfferUp. I told him that I was heading straight to the EMPD and that I was going to try to bring an officer with me to obtain a report.

I spoke with a different officer at the station this afternoon. I explained all the details once again and that this time I had a confession. However.. he gave me the entire talk again about how I technically "abandoned" the phone. He said that due to the fact that I left the phone behind and left into the parking lot, what had happened was that she discovered the phone and did not "steal" it. I interjected that this should actually be a misappropriation of lost property and he replied telling me to be careful about how I phrase things. Following that, I remarked that any person who discovers lost property that may belong to somebody else has a due diligence in at least making a reasonable attempt in locating it's owner. He asked if I knew how much of a gray area that was. Finally, he refused to send an officer to accompany me to obtain her information or to take a report. I said I would need some sort of police documentation to present to a small claims judge and he said the EMPD card with my case number is all he would be able to provide.

After sending me off, I headed to the Home Depot to obtain the girl's information. Upon arriving, they told me she had been terminated and that legally, they could not detain her. They also said legally, they can only release any of the girl's information to the police. Subsequently, I called the EMPD and explained the situation to the operator who sent a detective over this time. The detective arrived half an hour later and met with the manager and myself. The manager explained that loss prevention was gone and that they are the only ones with access to the interview statement and security footage. I was instructed to return tomorrow with a different officer so that Home Depot can provide them with all the information that I need.

I'm not having it that the police are telling me that finders, keepers is the law. Upon further research, I see that common law distinguishes abandonment of property from mislaid property. Mislaid property is property intentionally left in a location where it's true owner forgets to retrieve it. Abandonment of property is any personal property left by it's owner who intentionally relinquishes all rights to it's control. Am I onto something here or is this still a "gray area" that won't help me? Also, would have a case in a small claims court based on all the evidence that I am to receive tomorrow?
 


single317dad

Senior Member
California Civil Code § 2080

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=02001-03000&file=2080-2080.10

http://www.dmlp.org/blog/2010/lost-and-found-california-law-and-next-generation-iphone

California law regulates what you can do when you find lost property in the state. Section 2080 of the Civil Code provides that any person who finds and takes charge of a lost item acts as "a depositary for the owner." If the true owner is known, the finder must notify him/her/it within a reasonable time and "make restitution without compensation, except a reasonable charge for saving and taking care of the property." Id. § 2080. If the true owner is not known and the item is worth more than $100, then the finder has a duty to turn it over to the local police department within a reasonable time. Id. § 2080.1. The owner then has 90 days to claim the property. Id. § 2080.2. If the true owner fails to do so and the property is worth more than $250, then the police publish a notice, and 7 days after that ownership of the property vests in the person who found it, with certain exceptions. Id. § 2080.3.
Personally, I'd try to find her and offer her $100 for taking good care of my lost property and returning it safely to me. Any other route is going to cost you more.
 

justalayman

Senior Member
It is not abandoned property. It is theft of the person took it with the intent to deprive you of your phone. The cops simply lied to you or are ignorant of the actual law.

I would push the issue as much as possible with the police given there was a known employee who last had access to the phone.
 

Zigner

Senior Member, Non-Attorney
Please keep in mind that you can't force the police to do anything about this. With that said, ask to speak to a sergeant and work your way up from there.

Since you paid over $1,000 for your device, did you also get the insurance?
 

CdwJava

Senior Member
Strictly speaking, in CA this would not be a theft (though it could still be classified as "larceny"), but it would be misappropriation of found property per PC 485. Even if you paid over $1,000 for his phone, the current retail value of that phone is (arguably) under $950 ($849 from one source) making it a misdemeanor. Yes, they may report it as a felony, but, chances are that when/if it ever gets to court, the defense would argue that it is a misdemeanor based upon current market value and BEFORE taxes are applied.

As a property crime, it is not likely to get a great deal of follow-up by the police. That is the sad and unfortunate fact these days. You MAY get someone to respond to the Home Depot to review the video and get the employee's info who confessed, but, you also may not. Nothing you can do can force the police to act on this. It's a pisser, I know, but resources being what they are, neither the police nor the DA's office are likely to pursue this very far.
 

justalayman

Senior Member
Strictly speaking, in CA this would not be a theft (though it could still be classified as "larceny"), but it would be misappropriation of found property per PC 485. Even if you paid over $1,000 for his phone, the current retail value of that phone is (arguably) under $950 ($849 from one source) making it a misdemeanor. Yes, they may report it as a felony, but, chances are that when/if it ever gets to court, the defense would argue that it is a misdemeanor based upon current market value and BEFORE taxes are applied.

As a property crime, it is not likely to get a great deal of follow-up by the police. That is the sad and unfortunate fact these days. You MAY get someone to respond to the Home Depot to review the video and get the employee's info who confessed, but, you also may not. Nothing you can do can force the police to act on this. It's a pisser, I know, but resources being what they are, neither the police nor the DA's office are likely to pursue this very far.
The code section you provided uses the term "theft"

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.


Not actually arguing the point as my use was in the generic sense. Is California doing the same in that code section?
 

CdwJava

Senior Member
The code section you provided uses the term "theft"
It's a matter of semantics, but, as I said, it's still larceny though it is not - strictly speaking - the taking of property from another with the intent to deprive as "theft" is. The elements (i.e. what it takes to be guilty of the offense) are different, even if the penalties are pretty much the same.
 

adjusterjack

Senior Member
Am I onto something here or is this still a "gray area" that won't help me? Also, would have a case in a small claims court based on all the evidence that I am to receive tomorrow?
Given the other comments, especially from cdwjava (the CA police officer), it's highly unlikely that you'll ever see a prosecution of this person.

Yes, you probably do have enough evidence to win in small claims court for the depreciated value of a used phone (not what you paid for it) but then what. You get a judgment against a deadbeat criminal who is unemployed. Good luck ever collecting.

Maybe you'll learn an important (expensive) lesson about carelessness. I don't know what it is with you cell phone people. Everywhere I go I see people carrying their cellphones in their hands and putting them down whenever they have to do something that takes two hands. In many cases they turn away from the phones and even walk away and leave them behind, making them fair game for anybody who comes along.

My son does that and has gone through three phones since February of this year. The first two got walked off with (I don't call it theft either) and the last one got broken when somebody threw some heavy stuff on a table and didn't notice the phone there.

Keep your phone in your pocket and you'll never have this problem again.
 

justalayman

Senior Member
Deadbeat thief? The person works at Home Depot.



In fact, if you sue include Home Depot as it was the act of one of their employees while on duty. Since they don't want to do anything to assist I would include them arguing they are liable for the acts of their employees. That might stir somebody into doing something.
 

Zigner

Senior Member, Non-Attorney
Deadbeat thief? The person works at Home Depot.
Umm, no.
After sending me off, I headed to the Home Depot to obtain the girl's information. Upon arriving, they told me she had been terminated...




In fact, if you sue include Home Depot as it was the act of one of their employees while on duty. Since they don't want to do anything to assist I would include them arguing they are liable for the acts of their employees. That might stir somebody into doing something.
That would be tossed in a second and you know it. Home Depot is not automatically liable for the criminal acts of their employees while on duty.
 

justalayman

Senior Member
Umm, no.





That would be tossed in a second and you know it. Home Depot is not automatically liable for the criminal acts of their employees while on duty.
I missed that.


as far as being tossed in a second; maybe, maybe not but it would cost Home Depot more to defend this than what the suit was worth. They are being resistive in attempting to discover the facts and since discovery is not available in small claims in California it may allow the OP to use the inclusion as sort of an end around to the lack of discovery.
 

LdiJ

Senior Member
I missed that.


as far as being tossed in a second; maybe, maybe not but it would cost Home Depot more to defend this than what the suit was worth. They are being resistive in attempting to discover the facts and since discovery is not available in small claims in California it may allow the OP to use the inclusion as sort of an end around to the lack of discovery.
I tend to agree. I think that Home Depot might just cough up the cash for the phone, just to get rid of a nuisance suit.
 

lost_iphone

Junior Member
Today, I received a follow up call from the officer that conducted the preliminary investigation of my stolen iPhone 6s Plus last Wednesday on August 17. She informed me of her second failed attempt in contacting the thief and finished gathering details from me to file the police report. She told me that the girl is now wanted for theft and that I should expect a follow up call from a detective within the next few days (this case probably isn't of the highest priority on their list so I understand that I should expect a delay).

I was told by her that I should no longer pursue small claims as things are now headed towards the direction of criminal court. Should the detective submit the case to the DA, is there a possibility that they would opt not to file charges because the losses are not that great? I paid $1035.49 for my iPhone and from my research, current fair market value for the device in mint condition is around $800. I am unaware if a $42.51 case, $20 sim card from T-Mobile, time missed off work, loss of personal data, and my troubles would be factored into this. I also understand the possibility of the DA's office being backlogged with other cases. Is it possible to know approximately how long am I looking at before I receive an update from them regarding my case? I am in Los Angeles County.

It would really suck if she was chosen not to be held accountable being that I have a confession and security footage of her with my device. Worst case scenario, if it reaches this point, do I have the option of appealing the DA's decision? If the appeal fails, is my final recourse going to be taking her to small claims?
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top