United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
DOCKET NOS. 25, 26
M. CHEN, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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) 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.
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.
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. ¶
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.
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
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.
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. Id. ¶ 114. The
appointment was again rescheduled for April 5, approximately
two months after it had originally been scheduled to occur.
Id. ¶ 115.
intervening period, Mr. Lozano “had pedal edema, fluid
retention in the feet and lower legs, ” shortness of
breath, swelling in his eye,  “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.
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. ¶¶
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Motion to Dismiss
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 ...