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Estate of Lopez v. Torres

United States District Court, S.D. California

April 29, 2015

THE ESTATE OF ANGEL LOPEZ by and through its successors in interest, LYDIA LOPEZ; LYDIA LOPEZ; ANGEL LOPEZ, JR. and HECTOR LOPEZ, by and through their guardian ad litem, LYDIA LOPEZ, Plaintiffs,


GONZALO P. CURIEL, District Judge.


Presently before the Court is a Motion to Dismiss filed by Defendant Lou Torres. (ECF No. 12.) The parties have fully briefed the motion. (ECF Nos. 14, 15.) Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the following reasons, the Court GRANTS Defendant Torres's Motion to Dismiss.


This case arises from the shooting death of Angel Lopez ("Lopez") on January 17, 2013. Plaintiffs allege that shortly after 8:00 a.m. on January 17, 2013, a heroin dealer and police informant named Alec Pojas ("Pojas") placed a telephone call to Defendant Lou Torres ("Agent Torres"), a parole agent employed by the California Department of Corrections and Rehabilitation. (ECF No. 1, Compl. ¶¶ 9, 14, 29, 30.) Pojas refused to provide his name, but told Agent Torres that Lopez and his father, Alex Lopez, had kidnapped Pojas and held him prisoner in Apartment 58 of 5444 Reservoir Drive, San Diego, California, for over four weeks. (¶¶ 31, 33-35.) During that time, Lopez and his father allegedly tortured Pojas, leaving his blood on the floor. (¶¶ 36-37.) Pojas informed Agent Torres that Lopez and his father possessed an AK-47 and that Lopez always carried a.25 caliber pistol on his person. (¶¶ 40-41.) Pojas claimed he had finally escaped the night before by jumping from a third floor balcony. (¶ 38.)

Plaintiffs allege that Agent Torres provided the information he learned from Pojas to Andrew Mills, a captain in the Eastern Division of the San Diego Police Department ("Captain Mills"). (¶ 46.) Captain Mills and Agent Torres then relayed the information to Lieutenant Leos ("Lt. Leos") and Sergeant Scott Holslag ("Sgt. Holslag"), also of the San Diego Police Department. (¶¶ 11, 13, 47.) According to Plaintiffs, instead of investigating the reliability and accuracy of the information provided by Pojas, Sgt. Holslag, with Captain Mills's concurrence, contacted the San Diego Police Department's SWAT unit. (¶ 48.) The SWAT officers allegedly were told that a kidnap victim likely was still present in Apartment 58 and was being held by "cartel" members who were armed with AK-47s. (¶ 57.)

Pojas contacted Agent Torres several more times during the morning of January 17, 2013, once informing Agent Torres that he knew Lopez and his father were planning to leave Apartment 58 within forty-five minutes because Pojas had scheduled a meeting with them. (¶¶ 58, 60.) Plaintiffs allege that Captain Mills, Lt. Leos, and Sgt. Holslag, "in joint venture with Torres and [Defendant Steve] Riddle, " conveyed this information to the SWAT unit and asked them to seize and arrest Lopez. (¶¶ 59, 62.)

Later that morning, SWAT units arrived at 5444 Reservoir Drive. (¶ 64.) At 12:56 p.m., a car occupied by Lopez and Xavier Lenyoun, the lessee of Apartment 58, left the parking lot. (¶ 66.) The SWAT unit maneuvered to stop the car and then pointed machine guns at the occupants. (¶¶ 66-7.) Lopez and Xavier Lenyoun fled back into the building. (¶¶ 67, 69.) SWAT officers entered the building and Officer Kristopher Walb ("Officer Walb") encountered Lopez in a third floor hallway. (¶¶ 68-9.). Officer Walb shouted at Lopez to get down, and Plaintiffs allege that Lopez complied and was in a kneeling position when Officer Walb shot him twice in the back and once in the back of the head with a MP-5 submachine gun. (¶¶ 69-70.) Officer Walb later explained in a statement to other police officers that he remembered being told earlier that day that the suspect was always armed with a.25 caliber pistol and that thought went through his mind just before he shot and killed Lopez. (¶ 72.) Plaintiffs allege that SWAT officers did not administer first aid to Lopez because they believed persons armed with AK-47s were in nearby Apartment 58. (¶ 74.)

Subsequent investigation revealed that Lopez was not armed, no one was in Apartment 58, there were no AK-47s in the apartment, and Pojas's blood was not on the apartment floor. (¶¶ 71, 77.) None of the neighbors in the apartment building had ever heard any unusual noises or screaming coming from Apartment 58. (¶ 51.) Further, the balcony of Apartment 58 was observed to be approximately 23 to 25 feet above the ground, making it exceedingly unlikely that Pojas could have jumped without sustaining a broken leg or worse. (¶ 54.) Plaintiffs allege that Pojas relayed all of this false information to Agent Torres in order to obtain revenge against Lopez for not paying Pojas for some heroin. (¶¶ 31-2, 77.) Pojas knew Lopez was on parole and wanted for a parole violation and sought to manipulate police into harming Lopez. ( Id. ) Police officers did not locate and identify Pojas until the next day. (¶ 89.)


On January 16, 2015, Plaintiffs filed the instant case, alleging various claims under 42. U.S.C. § 1983, as well as wrongful death pursuant to California Civil Code § 377.60 et seq., [1] (ECF No. 1.) On January 29, 2015, the Court low-numbered the related case of The Estate of Angel Lopez, et al. v. City of San Diego, et al., 13cv2240-GPC-MDD, in which this Court's Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment is under review with the Ninth Circuit. ( See 13cv2240-GPC-MDD, ECF. Nos. 59-60.)

On February 17, 2015, Defendant Torres moved to dismiss the Complaint. (ECF No. 12.) Plaintiffs timely opposed the motion on March 27, 2015 (ECF No. 14), and Defendant Torres filed a reply on April 10, 2015 (ECF No. 15).


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations, " a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).


A. Excessive Force

Defendant argues that Plaintiffs' claim for excessive force fails to state a viable cause of action because Agent Torres was not an integral participant in the alleged use of excessive force. (ECF No. 12-1 at 4.) Further, Defendant contends that Plaintiffs fail to adequately plead causation. ( Id. ) To the extent Plaintiffs seek to impose liability on Agent Torres under a "joint venture" theory, Defendant contends that this claim also fails. ( Id. )

Excessive force claims relating to police conduct during an arrest must be analyzed under the Fourth Amendment and its reasonableness standard. Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2020 (2014); Graham v. Connor, 490 U.S. 386, 394-95 (1989). Proper application of the reasonableness standard requires a court to assess the specific facts of the case, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. However, this list of factors is not exclusive; the court must "[]examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham. '" Mattos v. Agarano, 661 F.3rd 433, 441 (9th ...

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