COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Malveaux and Callins UNPUBLISHED
Argued by videoconference
RITA MASSIE MEMORANDUM OPINION* BY v. Record No. 0249-24-2 JUDGE DOMINIQUE A. CALLINS JULY 1, 2025 ULTA BEAUTY, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE David M. Barredo, Judge
Jeffrey E. Fogel for appellant.
Stephen T. Fowler (Greenberg Traurig, LLP, on brief), for appellees.
This matter comes before the Court on appeal from the circuit court’s final order sustaining
Ulta Beauty, Inc. and Jane Doe’s demurrer to Rita Massie’s complaint. Massie’s complaint
purported to allege claims of malicious prosecution and defamation against Ulta and Doe. Massie
argues that the circuit court erred by holding that her complaint failed to plead facts sufficient to
demonstrate that Ulta and Doe acted (1) maliciously and without probable cause on Massie’s
malicious prosecution claim, and (2) knowingly or negligently in defaming Massie. We disagree
with Massie and hold that her complaint is legally insufficient to state a claim for either malicious
prosecution or defamation. Accordingly, we affirm the judgment of the trial court.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
Massie is a resident of the City of Charlottesville and “enjoys an excellent reputation in
the community.” Ulta is a corporation formed in the state of Delaware, with its principal place
of business in Illinois; Ulta “owns and operates thirty two stores in the Commonwealth and is
authorized to conduct business here.” Doe is “an employee and agent of [Ulta] who works at the
Ulta Store” at issue in this matter.
In January 2023, Massie was “arrested at her home on a criminal warrant which charged
her with both petit and grand larceny at the Ulta Store in Charlottesville.” Massie was “led out
of her house in handcuffs and in front of her neighbors” and was “not released until a $1,000.00
bond was posted.” Massie was arrested after Doe, “and possibly others employed by” Ulta,
made a complaint to the police alleging that Massie had “stolen 7 Fragrance tester[] bottles
valued at $439.00 and various other fragrances valued at $1,133.00 and requested that warrants
be issued for larceny.” Thereafter, the police issued warrants for Massie’s arrest for petit and
grand larceny.
1 “Because this appeal arises from the grant of a demurrer, we accept as true all factual allegations expressly pleaded in the complaint and interpret those allegations in the light most favorable to the plaintiff.” Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018). Despite this, “while we also accept as true unstated inferences to the extent that they are reasonable . . . we give them no weight to the extent that they are unreasonable.” Id. at 358-59. “The difference between the two turns on whether ‘the inferences are strained, forced, or contrary to reason,’ and thus properly disregarded as ‘arbitrary inferences.’” Id. at 359 (first quoting Cnty. of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 200 (2002); and then quoting Stephens v. White, 2 Va. (2 Wash.) 203, 211 (1796) (Roane, J.)). We must, further, “distinguish allegations of historical fact from conclusions of law,” since we “assume the former to be true arguendo, but we assume nothing about the correctness of the latter because ‘we do not accept the veracity of conclusions of law camouflaged as factual allegations or inferences.’” Id. at 359 (quoting AGCS Marine Ins. v. Arlington Cnty., 293 Va. 469, 473 (2017)). -2- In support of the complaint to the police, Doe relied on a video2 “which purported to
show [Massie] stealing items.” Upon further inspection and comparison of the suspect in the
video to Massie, however, the police realized that Massie was not the individual in the video, and
the charges were dismissed with prejudice. Indeed, as of the time of filing her complaint, Massie
had “never been in any Ulta Store.” As a result of the foregoing, Massie suffered “injury and
harm to her excellent personal reputation as well as great humiliation, shame, exposure to public
infamy, and emotional distress from being accused of a crime she did not commit, and being
arrested in front of her neighbors.” Later, in August 2023, Massie filed a complaint with the
Charlottesville City Circuit Court asserting the foregoing facts and alleging causes of action for
malicious prosecution and defamation, under a theory of per se liability, against Ulta and Doe
(collectively, “Ulta”).
Ulta demurred to Massie’s complaint. On Massie’s malicious prosecution claim, Ulta
argued that Massie’s complaint failed to set forth facts sufficient to allege that they acted
maliciously and without probable cause. As for defamation, Ulta contended that Massie’s
complaint failed to set forth sufficient facts to allege that they published any statement since their
communications to the police were privileged from actionability. Further, Ulta argued that since
Massie did not allege “factually what was said to whom or when,” her complaint failed to
adequately allege an actionable statement. They also argued that Massie’s complaint failed to
assert facts sufficient to allege their defamatory intent.
Massie opposed Ulta’s demurrer. For her malicious prosecution claim, Massie contended
that while probable cause may have existed for Ulta and Doe to believe that a theft had occurred,
2 Massie’s complaint does not specifically state that Doe relied on the surveillance video in making the complaint against Massie; that being said, it can be reasonably inferred from the facts of Massie’s complaint that Ulta and Doe had access to the surveillance video and used it to investigate and identify Massie as the alleged perpetrator of the larceny at issue. -3- the complaint set forth facts sufficient to demonstrate they lacked probable cause to believe that
Massie had perpetrated the theft. Massie contended that because Ulta lacked probable cause in
this regard, they acted maliciously as a matter of law. For her defamation claim, Massie first
argued that under a theory of defamation per se, she was not required to plead the specific words
purported to have been published by Ulta. Next, she argued that regardless of whether Ulta
believed their statements were true, the complaint contained facts sufficient to demonstrate that
Ulta “lacked a reasonable basis for such belief, or acted negligently in failing to determine the
facts on which the publication was based.” Lewis v. Kei, 281 Va. 715, 725 (2011). Finally,
Massie conceded that although Ulta’s statements to the police may have been privileged, the
statements were not privileged as to their publication to other, unidentified employees or patrons
of the store who may have heard the statements.
The circuit court heard oral argument on the demurrer and subsequently issued an
opinion letter. In its letter, the circuit court found that Massie failed to sufficiently plead her
malicious prosecution claim. Specifically, the circuit court concluded that Massie’s complaint
did “not include any factual allegations that suggest[ed] [Ulta] acted with any controlling motive
other than good faith in reporting the incident to police.” Further, the circuit court found that, as
“the police received enough information to secure the warrants for [Massie’s] arrest,” “a later
finding that [Massie] did not commit the alleged theft is not a sufficient factual basis to suggest
that [Ulta] did not have probable cause at the time that they made the statements to the police.”
Thus, the court held, Massie’s complaint failed to state a cause of action for malicious
prosecution as a matter of law.
The circuit court likewise held that Massie’s defamation claim failed as a matter of law.
The court found that Massie failed “to provide sufficient factual allegations suggesting that
[Ulta] did not act in good faith and that they did not reasonably believe that [Massie] was the
-4- individual that they observed shoplifting in their store.” Moreover, the circuit court found
unpersuasive the assertion that the video showed that she was not the perpetrator of the larceny.
The court observed that Massie’s exoneration and the video’s confirmation of Massie’s
innocence reflected “ex post realizations discovered by the police following their investigation,”
but that “the[se] facts do not suggest a lack of a reasonable basis or a negligent failure to
determine the facts at the time that [Ulta] made the statements to the police.” The circuit court
concluded:
Since [Ulta has] an interest in crimes committed within their store, since the complaint does not allege facts suggesting that [Ulta] did not act in good faith, and since the police have a corresponding duty to respond to such violations of the law, the accusations of larceny made to the police by [Ulta] are protected by qualified privilege.
The circuit court further held that any purported publication of the defamatory statements
at issue made by Ulta to other employees were protected by the intra-corporate immunity
doctrine. As to “others as well” to whom the statements may have been made, the court
determined that the complaint did not “adequately allege that the defamatory statements were
made to any individual who does not have a duty or authority to receive such communications.”
(Emphasis added). The circuit court also found that Massie’s complaint failed to allege the exact
words spoken or written, and Massie could not “sufficiently plead a cause of action for
defamation” given that the complaint expressly asserted that Massie had never been to an Ulta
store and that there were no allegations that Ulta knew Massie.
The circuit court sustained the demurrer and granted Massie leave to amend her
complaint within ten days of its related order. Massie did not file an amended complaint but
instead brought this appeal.
-5- ANALYSIS
Massie contends that the trial court erred in sustaining Ulta’s demurrer to her malicious
prosecution and defamation claims. “On appeal, we review a circuit court’s judgment sustaining a
demurrer de novo.” Vlaming v. W. Point Sch. Bd., 302 Va. 504, 527 (2023) (quoting Eubank v.
Thomas, 300 Va. 201, 206 (2021)). “A demurrer tests the legal sufficiency of facts alleged in
pleadings, not the strength of proof.” Peed v. Va. Dep’t of Transp., 72 Va. App. 686, 692 (2021)
(quoting Reston Hosp. Ctr., LLC v. Remley, 59 Va. App. 96, 109 (2011)). “We do not evaluate
the merits of the allegations, but only whether the factual allegations sufficiently plead a cause of
action.” Eubank, 300 Va. at 206. Our Supreme Court has “stated on several occasions that [it]
disapprove[s] the grant of motions which ‘short circuit’ the legal process thereby depriving a
litigant of his day in court and depriving [appellate courts] of an opportunity to review a
thoroughly developed record on appeal.” Seyfarth, Shaw, Fairweather & Geraldson v. Lake
Fairfax Seven Ltd. P’ship, 253 Va. 93, 95 (1997) (collecting cases). We consider each of
Massie’s causes of action in turn.
I. Malicious Prosecution
Massie asserts two reasons for her contention that the circuit court erred in sustaining
Ulta’s demurrer to her malicious prosecution claim. First, Massie argues, her complaint
contained facts sufficient to demonstrate that although Ulta “had probable cause to believe that a
theft had occurred on their premises . . ., there was no basis to believe that [Massie] was guilty of
the crime.” In so arguing, Massie emphasizes that the facts pleaded “indicate a lack of any cause
for [Ulta’s] accusation.” Second, Massie argues, she was not required to plead malicious intent,
since she pleaded facts sufficient to demonstrate that Ulta invoked the machinations of the
criminal justice system without probable cause. We disagree with both reasons.
-6- “Actions for malicious prosecution arising from criminal proceedings are not favored in
Virginia and the requirements for maintaining such actions are more stringent that [sic] those
applied to other tort cases to ensure that criminal prosecutions are brought in appropriate cases
without fear of reprisal by civil actions.” Lewis, 281 Va. at 722-23. “In an action for malicious
prosecution, the plaintiff must prove four elements: that the prosecution was (1) malicious; (2)
instituted by or with the cooperation of the defendant; (3) without probable cause; and (4)
terminated in a manner not unfavorable to the plaintiff.” Id. at 722. The second and fourth of
these elements are not at issue in this appeal. Thus, we are left only to consider whether Massie
sufficiently pleaded that Ulta’s prosecution was brought against her maliciously and without
probable cause.
“[M]alice is ‘any controlling motive other than a good faith desire to further the ends of
justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty are
punished.’” Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 111 (2021) (quoting Hudson v. Lanier, 255
Va. 330, 333 (1998)). It does not require proof of “actual spite, hatred, ill will, or grudge against
or desire to injure the person charged with the crime.” Id. (quoting Freezer v. Miller, 163 Va.
180, 202-07 (1934)). Indeed, malice may exist where a criminal prosecution is “instituted upon
no or such slight grounds of suspicion as to indicate a general disregard of the rights of others
directed by chance against the individual.” Freezer, 163 Va. at 207. Malice may be inferred
“from a history of animosity between the parties because the determination of malice is based on
the parties’ entire course of conduct towards each other.” Dill, 300 Va. at 111. Malice may also
be inferred “from a lack of probable cause.” Id. at 112.
In Dill, our Supreme Court found extant malice sufficient to survive a motion to strike
where the defendants:
reported Dill, by name, to the police as the perpetrator of two crimes, despite video evidence that the crime was perpetrated by -7- someone else who bore no physical resemblance to Dill, and who used her own Kroger Plus Card while perpetrating the crimes.
Id. at 112. The “Plus Card” used was registered to the culprit of the crime, but neither defendant
in Dill investigated “their conjecture that Dill was the user of the card and that she was somehow
related [to the registrant].” Id. Further, the facts of Dill demonstrate that the reporting defendant
“had previously encountered Dill and had a history of heightened suspicion against Dill.” Id. In
fact, the defendants had been investigating Dill for a number of other reported incidents
involving Dill. Id. Thus, the Court concluded that although the defendants could have been
motivated by a desire to suppress crime, “inferences to the contrary may [have been] drawn from
the evidence when viewed in the light most favorable to Dill.” Id. at 113.
A separate concept from malice, probable cause “is defined as knowledge of such facts
and circumstances to raise the belief in a reasonable mind, acting on those facts and
circumstances, that the plaintiff is guilty of the crime of which he is suspected.” Eubank, 300
Va. at 208 (quoting O’Connor v. Tice, 281 Va. 1, 9 (2011)). “Whether probable cause existed is
determined at the time the defendant took the action initiating the criminal charges.” O’Connor,
281 Va. at 9. “[I]ssuance of [an arrest] warrant does not conclusively prove probable cause
because of the very existence of the law permitting malicious prosecution actions.” Niese v.
Klos, 216 Va. 701, 704 (1976) (discussing Clinchfield Coal Corp. v. Redd, 123 Va. 420, 443
(1918)). However, once properly pleaded facts “relating to the question of probable cause are in
dispute, the issue is one of fact to be resolved by the trier of fact.” O’Connor, 281 Va. at 9.
Here, Massie’s complaint fails to plead facts sufficient to establish that Ulta acted with
malice and without probable cause in reporting the larceny to the police. First, the complaint’s
allegations do not suffice to establish that Ulta operated without probable cause. The complaint
reflects that Doe, on Ulta’s behalf, reported that a larceny occurred on the premises of the store
after discovering missing stock. Indeed, Massie admits on brief that Ulta “had probable cause to -8- believe that a theft had occurred on their premises.” Her complaint provides no facts to explain
why or how Doe would have given Massie’s name to the police in reporting the crime, in light of
the fact that “Massie ha[d] never been in any Ulta Store.” Rather, it appears that Massie asks this
Court to infer that Doe divined Massie’s name arbitrarily when reporting the crime. But to do so
would be for this Court to draw an inference that is “strained, forced, [and] contrary to reason.”
Coward v. Wellmont Health Sys., 295 Va. 351, 359 (2018) (quoting Cnty. of Chesterfield v.
Windy Hill, Ltd., 263 Va. 197, 200 (2002)).
Instead, the complaint lends itself to the inference that Doe reviewed the surveillance
footage and had some reason to believe that the name of the individual in the video footage was
“Rita Massie.”3 See supra note 1. Whether Doe’s inferred belief was unreasonable or based on
erroneous information is not elucidated in the complaint. And although the issuance of an arrest
warrant does not conclusively prove probable cause, the fact that the police issued warrants for
Massie’s arrest suggests that probable cause existed. See Code § 19.2-72 (“If upon such
examination such officer finds that there is probable cause to believe the accused has committed
an offense, such officer shall issue a warrant for his arrest.” (emphasis added)). In the absence of
further facts indicating the contrary, Massie’s complaint fails to allege that Ulta lacked probable
cause.4
3 Notably, the complaint does not address the potential that another individual sharing the name “Rita Massie” might have perpetrated the larceny or that the complainant might have been the victim of identify theft. 4 Massie’s reliance on Giant of Va., Inc. v. Pigg, 207 Va. 679 (1967), is misplaced. First, Pigg was tried to verdict and is not instructive in a demurrer analysis. 207 Va. at 683. Second, even if it were instructive, Massie’s complaint does not suggest that Doe had a prior relationship with Massie, nor does it provide any facts that suggest that Ulta, Doe, or the police were unwilling to consider her “avowals of innocence.” Id. at 685. Instead, the complaint suggests that immediately upon review of the surveillance video footage in comparison to the then-arrested Massie, Ulta and Doe dropped the charges against her. Ulta and Doe did not “disregard [the] information communicated to [them],” like the defendant’s agent in Pigg. Id. Thus, Pigg is inapposite to the facts of the present case. -9- The complaint merely alleges that Ulta told police that Massie was the perpetrator of the
larceny and that she was not in fact the perpetrator as was demonstrated by a comparison
“between her and a video” of the larceny “provided by employees of the Ulta store.” The
complaint contains no allegations of the grounds of suspicion Ulta had when they identified
Massie to the police, let alone that there were no or only “slight” grounds. Dill, 300 Va. at 111
(quoting Freezer, 163 Va. at 180). Indeed, Massie did not allege that Ulta had no reasonable
basis for thinking that she was the perpetrator. To be sure, Massie sufficiently alleged that they
were mistaken when they identified Massie to police. But mere mistake of fact does not
demonstrate legal malice, nor does it establish that Ulta lacked a reasonable basis to believe
Massie was the perpetrator. A witness may mistakenly identify a suspect as the perpetrator of a
crime while maintaining “a good faith desire to further the ends of justice, enforce obedience to
the criminal laws, suppress crime, or see that the guilty are punished.’” Id. at 111 (quoting
Hudson, 255 Va. at 333).
Moreover, Massie’s complaint concludes with a summary allegation that Ulta and Doe
acted “maliciously.” But “we are not bound to accept conclusory allegations in a review of a
demurrer.” Ogunde v. Prison Health Servs., 274 Va. 55, 66 (2007). Massie’s allegation that Ulta
acted “maliciously” is unaccompanied by any detailed, factual assertions to support the inference
that Ulta in fact acted with malice and is thus merely conclusory.5
5 Massie’s reliance on Dill and Chipouras v. AJ&L Corp., 223 Va. 511 (1982), is misguided. Here, unlike in Dill, Ulta and Doe had no idea what Massie looked like, had no history of interactions with Massie, and had no access to records through which they could verify the identity of the culprit of the larcenies. Dill, 300 Va. at 112. Without further allegations in the complaint suggesting that Doe intentionally chose to name “Rita Massie” as the culprit either arbitrarily or in the spirit of some animosity, the facts of this case are distinguishable from those in Dill. As for Chipouras, neither Ulta nor Doe assert that they acted on the advice of counsel in reporting Massie to the police, and the complaint does not allege as much either. Thus, Chipouras is inapplicable to this case. 223 Va. at 516-18. - 10 - Because Massie’s complaint fails to allege facts sufficient to establish that Ulta acted
maliciously or without probable cause in reporting Massie for the alleged larceny, the circuit
court did not err by sustaining their demurrer on that claim.
II. Defamation
Massie next argues that the circuit court erred in sustaining Ulta’s demurrer to her
defamation claim. Among other things,6 Massie argues that for purposes of a claim of
defamation per se, defamatory intent is not required; rather, Massie needed to plead only that
Ulta published the alleged defamatory statement negligently. For this argument, Massie relies on
Gazette, Inc. v. Harris, 229 Va. 1 (1985), and Food Lion, Inc. v. Melton, 250 Va. 144 (1995).
We disagree.
Generally, “[i]n defamation cases, a plaintiff must show: ‘(1) publication of (2) an
actionable statement with (3) the requisite intent.’” Nestler v. Scarabelli, 77 Va. App. 440, 453
(2023) (quoting Jordan v. Kollman, 269 Va. 569, 575 (2005)). “True statements do not support a
cause of action for defamation.” Jordan, 269 Va. at 575. “[S]tatements which cannot
reasonably be interpreted as stating actual facts about a person cannot form the basis of a
common law defamation action.” Id. at 576 (quoting Fuste v. Riverside Healthcare Ass’n, 265
Va. 127, 132 (2003)). “Generally, under our common law, a private individual asserting a claim
of defamation first must show that a defendant has published a false factual statement that
concerns and harms the plaintiff or the plaintiff’s reputation.” Harless v. Nicely, 80 Va. App.
678, 688 (2024) (quoting Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 46 (2009)).
6 Massie also argues that the trial court erred by concluding that Ulta and Doe’s allegations were protected by the intra-corporate immunity doctrine and that she was required to plead to whom the defamatory remarks were made and the exact words of the defamatory statement. - 11 - Yet “[i]n the circumstances presented here, involving a plaintiff who is not a public
official or public figure, and an alleged defamatory statement that imputes commission of a
crime and thus makes substantial danger to reputation apparent, a negligence standard applies.”
Melton, 250 Va. at 150.
[T]he plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.
Harris, 229 Va. at 15. “When a plaintiff asserts that the defendant acted negligently, the plaintiff
further must prove that the defamatory statement made apparent a substantial danger to the
plaintiff’s reputation.” Hyland, 277 Va. at 46.
Here, the circuit court assumed, and the parties do not dispute on appeal, that Massie was
required to plead facts sufficient to demonstrate that Doe published the alleged defamatory
statement without a “reasonable basis” or that Doe “acted negligently in failing to determine the
facts.” Id. Even assuming Massie’s complaint adequately alleges that the purported defamatory
statement posed a “substantial danger to [Massie’s] reputation,” id., the facts as pleaded do not
meet this standard. According to Massie’s complaint, neither Ulta nor Doe had any prior
interactions with her and, therefore, could not have ascertained from the surveillance footage that
the culprit of the larceny was not Massie herself. In fact, because the complaint does not allege
that either Ulta or Doe knew Massie or had any prior relationship with her—and appears to
suggest the opposite—the complaint cannot be read as suggesting that they knowingly lodged a
false complaint against Massie.
Further, as Doe had no prior relationship with Massie and the complaint provides no
clarity as to why or how Doe named “Rita Massie” as the culprit, the complaint also fails to
plead facts sufficient to show that Doe reported the crime negligently either. To the contrary, the
- 12 - complaint suggests that Doe discovered that certain merchandise had been stolen and that she
reported the crime to the police along with the belief that the culprit’s name was “Rita Massie.”
The complaint includes no facts that would suggest that Doe failed to exercise due diligence in
investigating the matter or that Doe had any reason to believe that Massie specifically was not
the culprit. Upon these facts, this Court cannot derive an inference—let alone a reasonable
one—that Ulta negligently lodged their accusation against Massie with the police.
As a result, the circuit court did not err by sustaining Ulta’s demurrer to Massie’s
defamation claim.7
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
7 Because we hold, on Massie’s defamation claim, that the complaint failed to sufficiently plead that Ulta acted knowingly or negligently, and that holding is sufficient to affirm the trial court’s judgment sustaining the demurrer, we need not address Massie’s other assignments of error. See Abdo v. Commonwealth, 64 Va. App. 468, 473 n.1 (2015) (“Our jurisprudence requires us to seek ‘the best and narrowest ground available’ for our decision.” (quoting Armstead v. Commonwealth, 56 Va. App. 569, 576 (2010))). - 13 -