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Benjamin andrez Lomeli, An Individual, et al v. County of Los Angeles

March 1, 2012


The opinion of the court was delivered by: Hon. Otis D. Wright II United States District Judge



Pending before the Court is Defendants County of Los Angeles, Leroy Baca, Andrew Shackelford, Steven Perez, Christine Wargo, Daniel Torres, Jorge Arceo, Cuong Nguyen, and Victor Iniguez's (collectively "Defendants") Motion for Summary Judgment. (Dkt. No. 51.) Having considered the papers and evidence filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C. D. Cal. L. R. 7-15. For the following reasons, the Court DENIES Defendants' Motion.


Plaintiffs Benjamin Andrez Lomeli ("Lomeli"), Victoria Molina ("Victoria"), and their two children live in Rowland Heights, California. (Langton Decl. Ex. 2, at 13:23--25.)

Around 12:00 a.m. on December 31, 2008, Sergeant Perez, Detective Wargo, and Deputies Shackelford, Torres, Arceo, Nguyen, and Iniguez, from the Los Angeles County Sheriff's Department, arrived at Lomeli's home in response to a 9-1-1 emergency call reporting a man shooting at cars. (Langton Decl. Ex. 4 ¶ 2; Ex. 7 ¶ 2; Ex. 8 ¶ 2.) The 9-1-1 caller reported that Lomeli was armed with a rifle. (See Langton Decl. Ex. 4 ¶ 4; Ex. 7 ¶ 4; Ex. 8 ¶ 4.) Consequently, after the Deputies arrived, they ordered Lomeli and Victoria, who were standing in their driveway, to put up their hands. (Lomeli Decl. at 1:10--12.) Lomeli and Victoria complied with the Deputies' orders. (Id. at 1:12; Langton Decl. Ex. 2, at 170:2--6.) Then, one of the Deputies ordered Lomeli and Victoria to put their hands behind their heads and walk backwards toward the Deputies in the street. (Lomeli Decl. at 1:13--14; Langton Decl. Ex. 4 ¶¶ 3--4.) Victoria complied with the Deputy's orders. (Lomeli Decl. at 1:14; Langton Decl. Ex. 4 ¶ 6.) Lomeli was uncooperative-he told the officers, "I'm right here. Come and talk to me." (Langton Decl. Ex. 2, at 183:5--12.) Lomeli told the officers he would not go in the street because he feared that the officers would beat or shoot him. (Lomeli Decl. at 1:19--20; Langton Decl. Ex. 2, at 152:15--19.) Lomeli appeared to be intoxicated. (Langton Decl. Ex. 4 ¶ 5.) At one point, Lomeli attempted to remove his shirt, struggled because he did not unbutton it, and finally ripped off his shirt. (Lomeli Decl. at 1:20--21; Langton Decl. Ex. 2, at 186:14--25.) At one point Lomeli may have yelled at the Deputies. (Langton Decl. Ex. 2, at 201:10--18; Ex. 3 ¶ 5.)

The Deputies then ordered Lomeli to lie face down in his driveway. (Langton Decl. Ex. 3 ¶¶ 9--10.) According to Defendants, Lomeli refused to lie down, but sat down instead. (Id. ¶ 10.) Plaintiffs deny this, alleging that Lomeli laid face down as commanded. (Lomeli Decl. at 1:17.) Regardless, Lomeli ultimately laid face down, and at some point rolled onto his back. (Lomeli Decl. at 1:27; Langton Decl. Ex. 2, at 197:12--16.) Plaintiffs aver that while Lomeli was laying face down, the Deputies were shouting repeatedly, "shoot the motherfucker." (Lomeli Decl. at 1:23--25.)

Defendants do not deny the calls to "shoot the motherfucker," but rather deny that Lomeli laid face down. (Reply to Pl. Additional Mat. Facts ¶¶ 13--14.)

Plaintiffs maintain that after rolling onto his back Lomeli continued to spread out his arms; Defendants dispute this contention. (Lomeli Decl. at 1:27--2:1. But see Reply to Pl. Additional Material Facts ¶ 16.) According to the Deputies, the Deputies were concerned for their safety because Lomeli was reported to have had a rifle and was refusing to cooperate. (Langton Decl. Ex. 4 ¶ 11; Ex. 7 ¶ 11; Ex. 8 ¶ 11.) Plaintiffs allege that prior to being shot, Lomeli pled to the Deputies, "don't shoot me, don't shoot me, don't shoot me"; Defendants deny this. (Lomeli Decl. at 2:5--6. But see Reply to Pl. Additional Material Facts ¶ 21.) According to Plaintiffs, Lomeli never reached for his waistband or made any sudden moves. (Lomeli Decl. at 2:7--8.) Defendants contend that Lomeli did make a sudden move when he rolled onto his back. (Reply to Pl. Additional Material Facts ¶¶ 23--24.)

Ultimately, Deputy Torres-at the direction of Sergeant Perez-fired at Lomeli one less lethal SL6 round, which is a plastic bullet, striking him in the chest. (Langton Decl. Ex. 4 ¶ 12.) Plaintiffs aver that Deputy Torres was only five to seven feet from Lomeli when Deputy Torres discharged the SL6 round. (Lomeli Decl. at 2:9--10.) Defendants dispute this. (Reply to Pl. Additional Material Facts ¶ 26.) After being struck with the SL6 round, Lomeli rolled onto his stomach and was taken into custody. (Id. ¶ 13.) After Lomeli was shot by Deputy Torres, Victoria observed the Deputies congratulate each other, which Defendants do not dispute. (Molina Decl. at 3:1--2.)

As a result of these events, Plaintiffs filed a Complaint against Defendants on January 5, 2011, alleging excessive force and Monell liability under 42 U.S.C. § 1983 and various state claims. (Dkt. No. 3.) Defendants filed an answer to Plaintiffs' complaint on February 2, 2011. (Dkt. No. 18.) Defendants subsequently filed a Motion for Judgment on the Pleadings, which the Court granted in part and denied in part on May 31, 2011, dismissing all but the two § 1983 claims for excessive force and Monell liability. (Dkt. No. 28, 36.) On January 13, 2012, Defendants moved for Summary Judgment on the two remaining § 1983 claims, to which Plaintiffs filed an opposition. (Dkt. No. 51, 56.)


Summary judgment is appropriate when, after adequate discovery, the evidence-viewed in the light most favorable to the nonmoving party-demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed fact is "material" where the resolution of that fact might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Evidence the court may consider includes the pleadings, discovery and disclosure materials, and any affidavits on file. Fed. R. Civ. P. 56(c)(2). Where the moving party's version of events differs from the nonmoving party's version, "courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks omitted).

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). The moving party may satisfy that burden by "showing-that is, pointing out to the district court-that there is an ...

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