Lozano v. County of Santa Clara

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS DOCKET NOS. 25, 26

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs Lucinda Lozano and Johnny Lozano, Sr., individually and as heir to Johnny Lozano, Jr. (“Mr. Lozano”), deceased, and the Estate of Johnny Lozano, Jr. (collectively “Plaintiffs”), filed this lawsuit under 42 U.S.C. §§ 1983 and 1988, and for violations of California state law. They allege that Johnny Lozano, Jr. was denied constitutionally adequate medical care by correctional medical staff and Valley Medical Center employees, who were deliberately indifferent to his serious medical needs. They further allege that this indifference resulted in Mr. Lozano's “tortuous and untimely death” after five years as a pretrial detainee in the Santa Clara County Jail. They seek damages for pre-death pain and suffering, as well as punitive damages against various healthcare providers.

         II. BACKGROUND

         A. Factual Background

         Plaintiffs filed this complaint under 42 U.S.C. §§ 1983 and 1988, and for violations of California state law. Complaint ¶¶ 1, 4, Docket No. 1. Defendants are County of Santa Clara; Laurie Smith (Sheriff of Santa Clara County), in her individual and official capacity; Troy Beliveau (Assistant Sheriff of Santa Clara County, now retired), in his individual and official capacity; Alexander Chyorny (physician and Director of the on-site jail medical provider Adult Custody Health Services), in his individual and official capacity; Kristin Walsh (physician at Adult Custody Health Services), Jeffrey Nekomoto (physician at Adult Custody Health Services), Sean Kanakaraj (physician at Adult Custody Health Services), Susan Zhao (physician at Valley Medical Center (“VMC”)), and Does 1-100 (collectively “Defendants”). See Complaint ¶¶ 10-17.

         Generally, Plaintiffs allege that Mr. Lozano was “denied constitutionally adequate medical care by correctional medical staff and Valley Medical Center employees who were deliberately indifferent to his chronic medical needs, resulting in his tortuous and untimely death.” Complaint ¶ 1. They allege that Defendants were aware that Mr. Lozano had “a chronic heart condition and needed ongoing treatment for congestive heart failure while in the jail.” Id. ¶ 2. However, Mr. Lozano “was not immediately placed in a medical unit, or provided required medical attention. Santa Clara County had in place substandard policies and practices for identifying and treating prisoners with serious health conditions.” Id. Over the next five years, Mr. Lozano's heart condition, “progressed to Class IV heart failure, culminating in Johnny's needless suffering for several years and leading to his unnecessarily early death.” Id. ¶ 28. “County of Santa Clara Sheriff's Office and Valley Medical Center have a policy and practice of failing to provide long-term treatment plans to prisoners in the hope that they will be transferred to state prison, released, or otherwise no longer be the County's problem.” Id. ¶ 3. This policy and practice leads to delays in timely medical treatment and, Plaintiffs allege that it ultimately denied Mr. Lozano “access to a life-saving organ transplant or medical device implantation because the jail was an unfit place for him to recover.” Id.

         More specifically, Plaintiffs allege the following. Mr. Lozano was arrested and booked into jail on August 7, 2013. Id. ¶ 9. At that time, he had “Class I heart failure, the least severe form of heart failure, and [a] manageable condition with the right lifestyle and supportive medical care with routine monitoring.” Id. ¶ 27. During the intake process, Mr. Lozano informed the jail that he relied on a cardiac pacemaker, id. ¶ 29, and the jail's medical staff was aware that he had been diagnosed with cardiomyopathy, arrythmia, thrombocytopenia, and other serious conditions, id. ¶ 30. Plaintiffs allege that rather than “regularly taking Johnny to doctor's appointments with a specialist, ” the jail's medical staff would “wait[] until he was symptomatic and then would send him to the emergency room where VMC doctors would temporarily stabilize him only to return him to jail with no treatment plan to address his underlying medical issues.” Id. ¶ 32, 36.

         Plaintiffs do not allege any particular medical incidents between Mr. Lozano's entry into the jail on August 7, 2013 and a hospitalization that occurred on October 25, 2016; instead, they simply allege that he experienced “over three years in County custody with subpar medical treatment.” Id. ¶ 37. A more detailed chronology of events begins with the hospitalization that he experienced on October 25, 2016.

         2016

         In October 2016, Mr. Lozano “was taken by ambulance to VMC after multiple fainting episodes, including at least one time where he hit his head on the floor after fainting.” Id. ¶ 37. While at the hospital, it was discovered that the battery in Mr. Lozano's pacemaker was at 3%; he had surgery to have the batteries replaced and was informed that “he should return to the Device Clinic in 3 months for a follow up.” Id. ¶ 39. However, “the jail medical staff did not arrange for Johnny to be seen at the Device Clinic until May 2017, ” four months after doctors recommended that he return to be seen. Id.

         On November 10, 2016, Mr. Lozano requested that his vitals be checked weekly; he reported that “the doctor said he should be getting his vitals checked weekly, ” although he did not specify which doctor is alleged to have said this. Id. ¶ 41. A nurse (Amy Flores) checked Mr. Lozano's blood pressure that day, but did not check his body temperature, pulse, or breathing rate, or arrange for weekly vital signs checks; she wrote in her notes that the doctor had not ordered weekly checks of Mr. Lozano's vitals. Id. The jail's medical staff did not check Mr. Lozano's vital signs on a weekly basis after that. Id. ¶ 42.

         In December 2016, Mr. Lozano “was presented with a refusal form to sign saying that he refused his medical appointment.” Id. ¶ 43. However, he had not refused the appointment, so he wrote on the form “I did not refuse my appointment.” Id. He asked to reschedule the appointment and was given a new appointment in February 2017. Id. ¶ 43, 45. The Complaint does not explain the purpose of the rescheduled appointment. Plaintiffs allege that the “jail medical staff has a practice of cancelling medical appointments without notifying the patients and falsely documenting the reason for the cancellation as being that the patient refused the visit. Either medical or correction staff then presents the prisoner with a refusal form to sign, pursuant to policy.” Id. ¶ 44.

         2017

         On March 6, 2017, Mr. Lozano was hospitalized “with cardiopulmonary symptoms and reports of dizziness.” Id. ¶ 47. He was discharged the next day, but after experiencing dizziness and vertigo and telling the jail medical staff that “it feels like my heart is getting heavier and struggling to beat, ” he was readmitted on March 9, 2017, where he remained until March 14, 2017. Id. ¶¶ 47, 48, 52. For the entirety of his stay at the hospital, Mr. Lozano was shackled to the hospital bed. Id. ¶ 49. To accommodate the shackles, Mr. Lozano had to keep his arm at an unnatural angle, which caused him lasting pain; the VMC doctors examined his arm and prescribed Norco (an opioid pain reliever), but when he returned to the jail, he was provided with only Tylenol (despite the fact that the pain prevented him from sleeping and that he had visible swelling in his hand). Id. ¶¶ 51, 53.

         On March 16, 2017, Mr. Lozano reported that he was feeling dizzy. Id. ¶ 54. On March 28, 2017, he met with Dr. Nekomoto to “discuss[] his heart issues including his frequent dizzy spells.” Id. ¶ 55. Plaintiffs allege that “[Dr.] Nekomoto inquired as to the status of Johnny's criminal case and if he had a release date.” Id.

         On April 15, 2017, the jail's medical staff “refused to bring Johnny's medication to him when he was too ill to get up” and get it from the common area of the housing unit. Id. ¶ 56. Plaintiffs allege that Dr. Walsh “was made aware of this but made no effort to accommodate Johnny receiving medication at his cell or by moving Johnny to the medical unit.” Id.

         On May 1, 2017, Mr. Lozano went to the VMC Cardiology Clinic, although the Complaint does not specify the reason for the visit. Id. ¶ 57. “The doctor there, Thomas Wentzien, referred Johnny to the Device Clinic to check on his pacemaker, and recommended that he return to the Cardiology Clinic in two to three months and have his labs taken in 60 days.” Id.

         On June 12, 2017, a “stat lab draw” was ordered by Dr. Walsh, but Mr. Lozano was in court at the time of the order, and it was not completed. Id. ¶ 58. More than a month went by, and “[b]y July 14, 2017, Johnny still had not had his labs done.” Id. ¶ 60. It is not clear when, if ever, this blood draw was completed. Plaintiffs also allege that during this time, a nurse tried to administer a medication to Mr. Lozano that he believed had been discontinued from his course of treatment; she sought clarification from the doctor, but it is unclear whether the conflict was ever resolved. Id. ¶ 59. By August 2017, Mr. Lozano “was getting frustrated at the lack of treatment for his illness and . . . put in multiple requests to be moved from [the] 7A [housing unit] to the medical unit where he thought he would be treated like a person with a serious medical condition, rather than warehoused and ignored and treated like a complainer whenever he needed medical attention.” Id. ¶ 61.

         On October 22 and 23, 2017, Mr. Lozano reported feeling dizzy and was seen by jail medical staff. Id. ¶¶ 62, 63. On both days he had high blood pressure (132/72). On October 23, 2017, he was taken to VMC. Id. ¶ 64. While hospitalized, Mr. Lozano “had a transthoracic echocardiogram (TTE) which showed a decrease in his heart's ejection fraction (EF) compared with one year prior. EF refers to how well one's left ventricle pumps blood with each heartbeat. Johnny's EF was now at 25-30%, whereas it had been 30-35% in 2016.” Id. ¶¶ 65, 66. Blood work done with Mr. Lozano was at the hospital indicated “high levels of aspartate aminotransferase (AST) and high bilirubin levels which can each point to liver disease, ” as well as a “low levels of CO2 in his blood which can be a sign of kidney disease.” Id. ¶ 67. Mr. Lozano returned to the jail on October 25. Id. ¶ 64.

         On October 29, 2017, Mr. Lozano experienced pain “in the top right center of his back and into his right shoulder blade”; however, the nurse offered him only Tylenol and refused to let him see a doctor. Id. ¶ 68. Two days later, Mr. Lozano, “reported to jail medical staff that his pain was constant, severe and rapidly worsening. He reported that the Tylenol did not provide relief, the symptoms are aggravated with any movement, and that he has been sleeping poorly.” Id. ¶ 69. He repeated those same concerns the next morning and was later brought the jail's medical facility by wheelchair; while there, he reported diarrhea, nausea, vomiting, heart palpitations, shoulder pain, and the feeling of his chest being on fire. Id. ¶¶ 70, 71. He was only given Mylanta, a medication used to treat heartburn. Id. ¶ 72. Later that day, “jail medical received a call from the lab stating that Johnny's blood results showed he had extremely elevated lactate levels (7.5^[1]) so [Dr. Walsh] finally ordered that he be sent to the hospital by ambulance.” Id. ¶ 74. While at the hospital, Mr. Lozano “was diagnosed with lactic acidosis and likely intrahepatic shock liver due to hypoperfusion.” Id. ¶ 77. The doctor told Mr. Lozano to “have liver function tests in 1 to 2 weeks, as well as blood work done in the same time frame, ” id; however, it is unclear if that follow-up care occurred.

         In November 2017, Mr. Lozano “reported extreme edema, including of his ankles and penis.” Id. ¶ 78. Plaintiffs allege that “[p]enile edema is known to be a symptom of renal failure.” Id. On November 6, 2017 at 2 a.m., a nurse observed the swelling and requested an appointment for Mr. Lozano with the doctor; however, Mr. Lozano received minimal follow-up and was not seen by a doctor until the afternoon of November 7, approximately 37 hours after he first brought the problem to a nurse's attention. Id. ¶¶ 78-82. The doctor who examined him requested that Mr. Lozano be moved to the medical housing unit. Id. ¶ 72. Despite Mr. Lozano's swelling and reported shortness of breath, the doctor who examined him that day only increased Mr. Lozano's Lasix dosage (a diuretic), which had just been reduced by a different doctor five days earlier. Id. ¶ 83. On November 8, he was seen only by a nurse, and then on November 9, he was examined by Dr. Walsh. Dr. Walsh noted that an x-ray from the day before “showed that he may be developing pneumonia.” Id.¶¶ 84-85. She ordered that he be admitted to VMC, where he was hospitalized for over a week. Id. ¶ 86.

         On November 17, 2017, Mr. Lozano was discharged and returned to the jail, where a “nurse tried to administer [Mr. Lozano's] Coreg heart medication even though [he] had already taken his two daily doses that day at the hospital. [Mr. Lozano] refused the dose and informed the nurse to update her records so he does not overdose.” Id. Three days later, he was seen by a doctor, who noted that Mr. Lozano had been dealing with “persistent thrombocytopenia (low platelet count) since 2015 and needed a referral to a hematologist.” Id. ¶ 87. More than two years had gone by since Mr. Lozano began waiting to see a blood specialist, id.; in addition, the blood work conducted at the hospital the month before had also indicated Mr. Lozano's low platelet count, id. ¶ 67, although the Complaint does not specify whether any follow-up had been arranged in response to that finding. During this same period, Mr. Lozano reported that “he could not lay flat in bed without getting shortness of breath, ” and a nurse noticed that his face was puffy, id. ¶¶ 88-89. Nonetheless, Dr. Kanakaraj “downgraded” Mr. Lozano from the infirmary to the medical housing unit. Id. ¶ 89.

         In December 2017, medical staff “collected a blood specimen from Johnny but the wrong patient name was used causing confusion until staff at the lab realized that they have the results under the name of another inmate, Raul Lozano.” Id. ¶ 90. It is unclear from the Complaint what, if any, impact this had on Mr. Lozano's care, and/or whether the collection of blood specimens was a regular part of his care at this time.

         2018

         On January 5, 2018, Mr. Lozano was sent back to the general population, “over his objection and despite medical need for him to stay where his chronic condition could be properly managed.” Id. ¶ 93. Around this time, nurses began waking Mr. Lozano up in the middle of the night to do his routine blood draws, despite their awareness of the difficulty that he had sleeping. Id. ¶ 94. Plaintiffs allege:

Johnny could tell that the medical staff did not care about his well-being and just saw him as a nuisance. The doctors refused to let Johnny stay in the medical housing unit, delegated their duties to the nurses who would come at purposely inconvenient hours and disrupt his hard-fought rest. Powerless to do anything about his treatment, Johnny began refusing to have his blood drawn by the nurses, who continued to wake him up between two and four o'clock in the morning.

Id. ¶ 95. Plaintiffs further allege that “Dr. Chyorny told the nurse [who was caring for Mr. Lozano] to tell Johnny that if he continues to refuse the blood draw, his medication would be discontinued.” Id. ¶ 96. When Dr. Walsh visited Mr. Lozano on January 17, 2018, the visit was conducted through the door of Mr. Lozano's cell. Id. ¶ 97. He informed Dr. Walsh of his fear that “no one cares about him because he feels sick all the time and his complaints are ignored, ” id. ¶ 98, but Dr. Walsh was dismissive of his concerns, id. ¶¶ 99-100.

         On January 30, 2018, Mr. Lozano “had been scheduled to go to the VMC Device Clinic . . . per his cardiologist's referral, however the appointment had to be rescheduled since the jail was on lockdown.” Id. ¶ 107. That appointment was rescheduled for three weeks later, but that second date conflicted with one of Mr. Lozano's court dates. Id. Consequently, the appointment was rescheduled again, but the third appointment (on March 15) also conflicted with Mr. Lozano's court schedule. Id., ¶ 111-12. The appointment was again rescheduled, and again fell on a day (March 27) when Mr. Lozano would be in court.^[2] Id. ¶ 114. The appointment was again rescheduled for April 5, approximately two months after it had originally been scheduled to occur. Id. ¶ 115.

         In the intervening period, Mr. Lozano “had pedal edema, fluid retention in the feet and lower legs, ” shortness of breath, swelling in his eye, ^[3] “dizziness and . . . [a] twenty-minute episode of chest pain, described as pressure.” Id. ¶¶ 108, 110, 113, 117. In response, Dr. Nekomoto gave him only “a warm compress and artificial tears, treating his congestive heart failure patient with over-the-counter products solely ameliorative in nature and without any curative function whatsoever.” Id. ¶ 113. The medical staff at the jail also screened Mr. Lozano for depression, id. ¶ 104, referred him to a psychiatric nurse, id. ¶ 105, and “encouraged him to take medication for anxiety, ” id. ¶ 117. He also experienced at least one period of low blood pressure, but he was not seen by a doctor. Id. ¶ 116.

         On April 3, 2018, Mr. Lozano went to court and his attorney “was shocked at Johnny's appearance. Having known him for four years, she immediately recognized that he was acutely unwell. Johnny told her that the jail was ignoring his pleas for treatment.” Id. ¶ 119. Medical staff at the jail continued to insist to Mr. Lozano that he was experiencing “trial anxiety.” Id. ¶ 120. Under the pressure of this insistence, Mr. Lozano “finally went along with the recommendation that he try medication for possible anxiety.” Id. ¶ 122. Plaintiffs allege that “[p]ursuant to Smith, Beliveau and Chyorny's policies Nurse Fosah prescribed Hydroxyzine (Vistaril) and Zoloft to Johnny without consultation with a doctor, let alone a cardiologist or his primary care physician.” Id. ¶ 123. They further allege that “Hydroxyzine is known to cause serious heart rhythm anomalies and is to be avoided by patients at highest risk of arrythmia, such as Johnny.” Id. “Additionally, . . . Zoloft is not the right drug to treat . . . depression” when heart failure may be causing biological changes in the body. Id. After taking the medications, Mr. Lozano felt nauseous, high, and weak, and he had trouble sleeping. Id. ¶¶ 124-25.

         On April 4, 2018, Mr. Lozano was given Zofran for the nausea, “even though it is contraindicated for heart patients like Johnny because it can cause arrhythmias and other heart rate abnormalities. Electrocardiogram (ECG) monitoring is recommended in patients with congestive heart failure while taking Zofran, ” however, no ECG monitoring was provided. Id. ¶ 126. When Mr. Lozano's attorney was told that he was too ill to go to court that day, she sent her investigator to check on him. Id. ¶ 130. He was unable to get out of bed to speak with the investigator, and she could see that he was extremely bloated. Id. Later that day, Mr. Lozano's attorney and her investigator returned to the jail “to check on Johnny and advocate for him since the medical staff was indifferent to his serious condition which appeared to be quickly deteriorating.” Id. ¶ 131. Mr. Lozano told his attorney that he had not eaten anything that day, had not slept the night before, had been sick to his stomach and dizzy, was in a lot of pain, and “feared the new medication did not react well with his heart medication.” Id. ¶¶ 135-37.

         The next day, on April 5, 2018, Mr. Lozano's attorney “pointed out Johnny's bloating to [a nurse, DOE 1] who said ‘he always looks like that.' When [Mr. Lozano's attorney], who had at this point known Johnny for four years, disagreed and informed DOE 1 that she sees him almost daily, DOE 1 replied, ‘I see him every day too. He looks the same.'” Id. ¶ 139. Mr. Lozano's attorney called over another nurse, and ultimately, insisted that Mr. Lozano “be taken to the hospital.” Id. ¶ 143. When the staff resisted, Mr. Lozano's attorney stated “that she was not leaving until he was on his way to the hospital.” Id. Dr. Walsh arrived and noted that Mr. Lozano's heart rate and blood pressure were abnormal, his abdomen was distended and firm, and he had gained 7 pounds in two days; this caused him to order that Mr. Lozano be taken to the hospital. Id. ¶¶ 145-47.

         At the hospital, “Dr. Ishita Aggarwal at VMC examined Johnny and his labs and gave a preliminary diagnosis of likely rhabdomyolysis, a serious syndrome that results from the death of muscle fibers and release of their contents into the bloodstream. Dr. Aggarwal suspected this was caused by the Zoloft recently given to Johnny at the jail. Rhabdomyolysis can lead to kidney failure and even death.” Id. ¶ 151. On April 6, 2018, doctors told his attorney “that Johnny's heart was failing. He had too much fluid built up in his body and the medical team was working to reduce the fluid.” Id. ¶ 153. In addition, “Johnny's pacemaker device showed that he had been suffering from persistent atrial fibrillation or arrythmia for the last three days. Johnny was in heart failure.” Id. ¶ 156. On April 7, 2018, the VMC doctor told Mr. Lozano's attorney that Mr. Lozano was not responding to treatment. Id. ¶ 157. The next day, doctors informed Mr. Lozano's attorney that he was experiencing liver failure. Id. ¶ 158. That evening Mr. Lozano could not eat, and he complained of severe pain and thirst. Id. ¶ 159.

         On April 9, 2018, Mr. Lozano requested that VMC staff contact his mother to inform her about his condition, but “correctional deputies who were guarding Johnny told the medical staff not to contact Johnny's family.” Id. ¶ 160. On April 10, 2018, correctional officers told the ICU doctor told “that the medical team should not call [Mr. Lozano's] family.” Id. ¶ 161. The doctor noted in his records that speaking with the family “would be the norm in non-incarcerated patients w/ this level of tenuous/critical condition. Officer to relay this to supervisors and/or pt's family.” Id. However, Plaintiffs allege that “[n]o one from the Sheriff's Office ever called or tried to call anyone in Johnny's family while he was hospitalized, ” and Mr. Lozano's family only found out about Mr. Lozano's condition when his attorney reached them on April 12. Id. ¶¶ 163-64.

         On April 10, Mr. Lozano was moved to the Intensive Care Unit because he was in cardiogenic shock. Id. ¶ 160. There, the doctor treating Mr. Lozano “requested that VMC Care Management consult regarding transferring Johnny to Stanford for a higher level of care than what VMC can provide, ” and outreach to Stanford began on April 13, 2018. Id. ¶¶ 169-70. However, later that same afternoon Plaintiffs allege that “Dr. Zhao spoke with Stanford heart transplant specialist Dr. Fowler who previously treated Johnny in 2011. Dr. Zhao wrote in her notes that Dr. Fowler ‘recalls that he suspects patient is to some degree mentally impaired and does not have the intellectual capacity to take on the complex decision making and tasks associated with transplantation. Additionally, patient never kept up with follow-up appointments, which is another red flag. Given these two reasons, patient is not a candidate for heart transplant evaluation. So, we will not pursue transfer to Stanford for transplant evaluation.'” Id. ¶ 173. However, Mr. Lozano “was never informed of this decision or given an opportunity to be heard on the matter let alone challenge the assumptions that led him to be deemed to not be a deserving candidate, ” nor did anyone at VMC evaluate Mr. Lozano's cognitive abilities. Id. ¶ 174-75. Furthermore, when Mr. Lozano's attorney “spoke to the heart transplant doctor, he told her that the real reason that Johnny was denied a transplant was because the jail system could not care for him post-transplant.” Id. ¶ 177.

         Plaintiffs allege that, around this time, “Dr. Zhao understood that Johnny's condition was critical and that VMC could not help him, but she failed to reach out to Stanford or Dr. Fowler to try to save her patient.” Id. ¶ 180. Her decision not to transfer Mr. Lozano to Stanford meant that he was never evaluated for implantation of a Left Ventricular Assist Device or an intra-aortic balloon pump, as Dr. Brewster had recommended. Id. ¶ 181.

         On April 27, 2018, “Dr. Zhao gave Johnny and his family the bad news that he has end stage heart failure complicated by liver failure, coagulopathy and kidney disease.” Id. ¶ 191. Mr. Lozano was not permitted to be in the same room as his family during that meeting. Id. ¶ 189. Dr. Zhao also “had a new explanation for why transplant [was] not an option, telling Johnny and his family that given how sick he [was], he [was] not a candidate for a heart transplant. She did not mention that Dr. Brewster had referred him for evaluation for implantation of a mechanical device, or that she had denied him a chance at evaluation at Stanford.” Id.

         On May 8, 2018 at around 6pm, Mr. Lozano “was unresponsive and had no pulse. Medical staff declared ‘code blue' and performed CPR.” Id. ¶ 198. “Dr. Alice Chuang requested the Sheriff's deputies to alert Johnny's family that there was an emergency, ” but they did not contact the family. Id. ¶ 199. Ultimately, the ICU intern contacted Mr. Lozano's mother, who came right away, but the family was not permitted to see Mr. Lozano, even after he died. Id. ¶¶ 199-203. The Lozano family left the hospital without seeing their son. Id. ¶ 203.

         B. Procedural Background

         Plaintiffs filed “governmental tort claims with Defendant County of Santa Clara including on behalf of the Estate of Johnny Lozano, Jr., on November 7, 2018.” Complaint ¶ 23. That claim provided notice to the County, VMC, and Drs. Chyorny, Walsh and Nekomoto of “Plaintiffs' intention to file suit against them based on their negligence in providing professional healthcare services.” Id. The Complaint does not specify whether notice was provided to Laurie Smith, Troy Beliveau, Sean Kanakaraj, or Susan Zhao. See Id. The County rejected the governmental tort claims by letter on December 14, 2018. Id. ¶ 24.

         Plaintiffs filed this lawsuit in May 2019. See Docket No. 1. On October 8, 2019, Defendants filed a Motion to Dismiss Plaintiffs' Complaint, see Docket No. 25, and a Motion to Strike Portions of Plaintiffs' Complaint, see Docket No. 26. They are the only two motions pending before the Court.

         III. DISCUSSION

         A. Motion to Dismiss

         1. Legal Standard

         To survive a 12(b)(6) motion to dismiss for failure to state a claim after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff's factual allegations in the complaint “must . . . suggest that the claim has at least a plausible chance of success.” In re Century Aluminum Co. Securities Litigation, 729 F.3d 1104, 1107 (9th Cir. 2013). In other words, the complaint “must allege ‘factual content that allows the court to draw the ...