Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding Argued and Submitted November 5, 1997 Pasadena, California
Before: William C. Canby, Jr. and David R. Thompson, Circuit Judges, and Donald W. Molloy, District Judge.*fn*
The opinion of the court was delivered by: Judge Thompson
D.C. No. CV-95-03983-RSWL
At the request of the Los Angeles Police Department, Mex- ican authorities arrested the plaintiff in this case, Jose Gonza- lez Martinez, a Mexican national, in Mexico, for a murder committed in Los Angeles. Martinez was held for prosecution in Mexico pursuant to Article IV of the Mexican Federal Penal Code.*fn1 Martinez did not commit the murder. Neverthe- less, he was held in a Mexican prison for fifty-nine days until he was released.
Martinez and his wife, Maria Pinto de Gonzalez, sued the City of Los Angeles (the "City"), and the Los Angeles Police Department and its officers (collectively "the LAPD") for false imprisonment and other torts under California law. Mar- tinez also sued for the alleged violation of asserted rights under the United States Constitution, and for arbitrary arrest and detention, a violation of the law of nations, under the Alien Tort Act, 28 U.S.C. S 1350 (1994). The district court granted summary judgment in favor of the City and the LAPD on all claims. Martinez and his wife appeal.
The district court had diversity jurisdiction under 28 U.S.C. S 1332. We have jurisdiction pursuant to 28 U.S.C. S 1291. We reverse the district court's summary judgment in favor of the LAPD and the City on Martinez's state law tort claim for false imprisonment grounded on prolonged detention. We also reverse the district court's summary judgment dismissing Martinez's state law claims for negligence and for intentional and negligent infliction of emotional distress, and his wife's claim for loss of consortium, all of which claims are deriva- tive of Martinez's state law claim of false imprisonment grounded on prolonged detention. As to all other claims, we affirm the district court's summary judgment in favor of the LAPD.
On June 17, 1992, a man was murdered and two others were wounded by gunfire in Los Angeles, California. LAPD Detective Nares was assigned to the case. Nares learned the murder suspect's name was Miguel Lopez and that he used the aliases of Pedro Madera Flores and Pedro Flores Madera. On July 2, 1992, the Los Angeles County Municipal Court issued a warrant for the arrest of Miguel Lopez, whom we refer to hereafter as "the suspect" or "the true suspect."
Because the suspect had fled to Mexico, the LAPD decided to seek a Mexican arrest warrant and a Mexican prosecution under Article IV of the Mexican Federal Penal Code. Detec- tive Nares obtained the suspect's picture and the address of his father, who lived in Tenamaxtlan, Mexico. Nares asked Officer Alberto F. Gonzales of the LAPD Foreign Prosection Unit to initiate an investigation in Mexico. Officer Gonzales contacted FBI Special Agent Zuniga in Guadalajara, Mexico, and asked him to surveil the suspect's father's address to ver- ify the address and to see if the suspect was there.
Two months later, Agent Zuniga informed Officer Gon- zales that an "operative" had discovered that the suspect's name was really Jose Gonzalez Martinez, the name of the plaintiff in this case, and that the suspect lived at a different address in Tenamaxtlan, Mexico. No one at the LAPD veri- fied this information, even though it was standard procedure to verify all information received from other law enforcement agencies. Nor did Officer Gonzales inform Detective Nares of this new information, even though it was standard procedure for the Foreign Prosecution Unit to keep the investigating officer informed of all new developments. No one asked the witnesses in the United States about this new name and address. No one asked Agent Zuniga for any details about how this information was obtained.
Six months later in March 1993, Detective Nares and Offi- cer Gonzales presented their case to a Mexican prosecutor in Guadalajara. They gave the Mexican authorities the name of Jose Gonzalez Martinez, as well as the names of other aliases attributed to the suspect. They also provided the Mexican authorities with both addresses in Tenamaxtlan.
That same day, Officer Gonzales and Detective Nares vis- ited Agent Zuniga and met the operative. The operative told Detective Nares that the suspect's name was Martinez. Detec- tive Nares did not believe this, because he believed that the suspect's real name was Lopez. Neither Detective Nares nor Officer Gonzales asked the operative how he had obtained his information.
More than one year later, on July 16, 1994, the plaintiff, Jose Gonzalez Martinez, was arrested in Mexico pursuant to a Mexican arrest warrant. Shortly after his arrest, Mexican authorities told Martinez that he was charged with a murder which took place in Los Angeles. Within seventy-two hours of his arrest, Martinez spoke to a Judge and told the Judge that he was not the suspect. During his confinement, Martinez continued to see the Judge every two or three days. He con- sulted with an attorney and saw his family twice a week.
Approximately ten days after the arrest, Martinez's attorney sent a letter to Detective Nares telling him that the Mexican authorities had arrested the wrong man. The letter explained that Martinez was approximately fifteen years older than the true suspect. Martinez had a bad left eye. A photograph of the true suspect showed him to have a bad right eye. The letter further explained that the true suspect's sister-in-law had been shown a picture of Martinez and she said Martinez was not the true suspect.
After Detective Nares received this letter from Martinez's lawyer, he asked the two eyewitnesses to the Los Angeles murder to go to the prison in Mexico to see whether Martinez was the true suspect. Because the first eyewitness was an ille- gal alien, he refused to go to Mexico. He also refused to go to the police station in Los Angeles, where he could have looked at photographs of Martinez and the true suspect. Detective Nares did not take the photographs to this witness. The other eyewitness, who lived in Mexico, went to the Mexi- can prison, but the Mexican authorities did not let him see Martinez. Detective Nares had not contacted the Mexican authorities to set up this meeting. This witness later testified at a hearing in Mexico that Martinez was not the true suspect, and Martinez was finally released.
In addition to Detective Nares and Officer Gonzales, LAPD Detective Gilbert Moya was also involved in the investiga- tion. Detective Moya was Officer Gonzales's supervisor. Moya told Martinez's private investigator that he did not intend to investigate the discrepancies between Martinez and the person asserted to be the true suspect because Moya believed that Martinez was the true suspect and thus had been properly arrested. Officer Gonzales, however, told the Mexi- can Judge in charge of the case that the wrong person might have been arrested, and in August 1994, in response to a tip that the true suspect was then living in Rosarito Beach, Baja California, he and Detective Nares traveled to Rosarito Beach to investigate this information.
Martinez was released on September 13, 1994, fifty-nine days after he had been incarcerated. He and his wife then filed this lawsuit in the United States District Court for the Central District of Los Angeles. The district court entered summary judgment against the Martinezes on all claims; they then filed this timely appeal.
We review de novo a district court's grant of summary judgment. Ribitzki v. Canmar Reading & Bates, Ltd. Partner- ship, 111 F.3d 658, 661 (9th Cir. 1997). Summary judgment is not warranted if a material issue of fact exists for trial. Id. The underlying facts are viewed in the light most favorable to the party opposing the motion, here Martinez and his wife. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Summary judgment will not lie if . . . the evidence is such ...