1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DOMITILA PELAEZ RALON, 7 Case No. 23-cv-03344-JCS Plaintiff, 8 ORDER RE: v. 9 1) DEFENDANTS’ MOTION FOR KAISER FOUNDATION HEALTH PLAN, SUMMARY JUDGMENT 10 INC., et al., 2) PLAINTIFF’S RESPONSE AND MOTION FOR DISCOVERY 11 Defendants. 3) PLAINTIFF’S MOTION TO APPOINT COUNSEL 12 4) PLAINTIFF’S MOTION TO COMPEL DISCOVERY 13 5) PLAINTIFF’S MOTION TO FINAL BENCH TRIAL 14 Re: Dkt. Nos. 92, 93, 97, 98, 109 15
16 17 I. INTRODUCTION 18 Presently before the Court are Defendants’ Motion for Summary Judgment (dkt. no. 92 19 (“Summary Judgment Motion”)), two motions for discovery filed by Plaintiff (dkt. nos. 93, 97 20 (“Discovery Motions”)), a motion for appointment of counsel (dkt. no. 97), and a “Motion to Final 21 Bench Trial” (dkt. no. 109 (“Bench Trial Motion”)). For the reasons set forth below, the Court 22 DENIES Plaintiff’s motion for appointment of counsel, Discovery Motions and Bench Trial 23 Motion. The Court GRANTS Defendants’ Summary Judgment Motion.1 24 II. MOTION FOR APPOINTMENT OF COUNSEL 25 This is Plaintiff’s fourth request for appointment of counsel. See dkt. nos. 3, 45, 60, 97. In 26 1 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 27 U.S.C. § 636(c). Plaintiff has brought two motions seeking to have the case reassigned to a 1 its orders denying Plaintiff’s previous requests, the court has explained that there is no right to 2 counsel in a civil case and that the Court appoints counsel in civil cases only where a party has 3 established both that they are indigent and that exceptional circumstances warrant appointment of 4 counsel. See dkt. no. 63. The Court has denied Plaintiff’s previous requests on the basis that it is 5 not apparent that there are exceptional circumstances that warrant appointment of counsel in this 6 case. Most recently, on February 20, 2025, the Court denied Plaintiff’s request because there had 7 been no developments in the case that changed the Court’s conclusion in this respect since it 8 issued its previous order denying Plaintiff’s request. Dkt. no. 78. The Court further ordered that 9 Plaintiff could not renew her request for appointment of counsel unless the case survived 10 Defendant’s summary judgment motion. Dkt. no. 78. Although the Court has not yet ruled on 11 Defendants’ Summary Judgment Motion, Plaintiff has renewed her request. Because Plaintiff’s 12 renewed request for appointment of counsel violates the Court’s previous order – and because the 13 Court again finds that there have been no developments in the case that change its conclusion that 14 Plaintiff has not demonstrated the existence of exceptional circumstances that warrant 15 appointment of counsel -- the motion is DENIED. 16 III. DISCOVERY MOTIONS 17 In the Discovery Motions, Plaintiff appears to ask the Court to compel Kaiser to: 1) 18 produce two videotapes that she believes recorded relevant events at Kaiser’s facility on March 19 27, 2023. and May 03, 2023; 2) produce Dr. Ranna Tabrizi and possibly others for depositions; 20 and 3) respond to other discovery requests that Plaintiff contends were “blocked” by Kaiser. Dkt. 21 no. 93 at ECF pp. 1-2; dkt. no. 98 generally. 22 The Court previously addressed the first two requests and found that further discovery as 23 to those materials was not warranted. In particular, in its April 4, 2025 Order, the Court denied 24 Plaintiff’s request for leave to extend the discovery cut-off and explained why Plaintiff’s request 25 to pursue further discovery to obtain the same two videotapes and to take additional depositions 26 failed: 27 As best the Court can discern, Plaintiff would like additional time to Almost a year ago, Kaiser provided discovery responses stating that 1 “[a]fter a diligent search and reasonable inquiry responding parties are not aware of any video footage relating to the claims raised in the 2 Complaint.” Likar Decl., Ex. C (dkt. no. 88-1). The Court quashed Plaintiff’s deposition subpoenas, which were procedurally defective 3 in numerous respects, on December 13, 2024 and gave Plaintiff until December 20, 2024 to meet and confer with Kaiser about scheduling 4 and to issue corrected deposition subpoenas. There is nothing in the record suggesting that Plaintiff met and conferred with Kaiser or 5 issued deposition subpoenas that were in compliance with the Federal Rules of Civil Procedure or this Court’s Local Rules. 6 The formal close of fact discovery set by the Court was December 31, 7 2024. Dkt. no. 52. However, the Court extended the deadline as to certain discovery due to Plaintiff’s failure to respond to certain 8 discovery requests by Kaiser and difficulties in obtaining the depositions of Plaintiff and Mr. Villalta. Dkt. nos. 65, 67. Thus, the 9 fact discovery cut-off was, at the latest, February 12, 2025, when the last of these extended deadlines had passed. Pursuant to Civil Local 10 Rule 37-3, “no discovery-related motions may be filed more than 7 days after the discovery cut-off … [and] [d]iscovery requests that call 11 for responses or depositions after the applicable discovery cut-off are not enforceable, except by order of the Court for good cause shown.” 12 The instant Motion was filed on March 31, 2025, more than a month after the fact discovery cut-off. 13 Plaintiff has not demonstrated good cause to extend the fact discovery 14 cut-off in order to pursue additional fact discovery or the deadline to file her motion for summary judgment. She offers no evidence that 15 controverts Kaiser’s representation that it has searched for and found no videos or any plausible reason to question that representation. She 16 also offers no explanation for her delay of almost of year, until well after the close of fact discovery, to pursue that issue. Nor does she 17 offer any explanation for her failure to promptly issue corrected deposition subpoenas for any Kaiser witnesses she sought to depose 18 following the Court’s December 13, 2024 order. The Court notes that in that Order, it explained the defects in the previous subpoenas so 19 that Plaintiff could correct them. 20 Dkt. no. 89 at pp. 1-2. 21 In the Discovery Motions, Plaintiff again fails to offer any evidence suggesting that 22 Kaiser’s representations about the existence of the videotapes Plaintiff seeks are untrue; nor has 23 she explained why she did not comply with the Court’s December 13, 2024 Order with respect to 24 the improperly noticed depositions, even though the Court provided clear instructions in that 25 Order so that she could cure the defects in her previous deposition subpoenas. Finally, Plaintiff has 26 not identified any other specific discovery materials that Kaiser has “blocked.” Therefore, the 27 Discovery Motions are DENIED. 1 IV. BENCH TRIAL MOTION 2 The Court is unable to discern what relief Plaintiff seeks in her Bench Trial Motion. To 3 the extent that Plaintiff seeks to assert new factual allegations or theories in support of her pending 4 Title VI claim, the Court disregards them as improper. The deadline to amend her complaint has 5 long passed and Kaiser’s summary judgment motion is fully briefed. The Bench Trial Motion is 6 DENIED. 7 V. SUMMARY JUDGMENT MOTION 8 A. Factual Background2 9 This case arises from a series of scheduled appointments at Kaiser Permanente San Rafael 10 Medical Center (“the facility”). On March 14, 2023, Plaintiff was referred to the breast clinic for 11 surgery to remove a breast mass. Declaration of Chasity Aguiar (“Aguiar Decl.”), Ex. A, 12 KFH.PR.001237. On March 22, 2023, Plaintiff met with Dr. Ranna Tabrizi for an evaluation and 13 spoke with Dr. Tabrizi later that same day to discuss imaging findings and schedule a breast 14 lumpectomy procedure. Id., Ex. A, KFH.PR.001282, KFH.PR.001285, KFH.PR.001298. 15 Interpreters were used for both appointments. Id. Dr. Tabrizi performed the breast lumpectomy 16 surgery on March 27, 2023. Id., Ex. A, KFH.PR.001339. Plaintiff testified at her deposition that 17 she had no problems with building security at the facility and no complaints about Dr. Tabrizi 18 associated with the March 27 surgery. Declaration of Ondrej Likar (“Likar Decl.”), Ex. C 19 (Deposition of Domitila Ralon, December 23, 2024 (“Ralon Depo.”) at 31. 20 On April 7, 2023, Plaintiff returned for a post-operative appointment with Dr. Tabrizi, who 21 recommended a margin excision to prevent recurrence of Plaintiff’s tumor and scheduled an 22 additional surgery for May 3, 2023. Aguiar Decl., Ex. A, KFH.PR.001374. An interpreter was 23 present at that appointment as well. Id. Plaintiff testified that she thought Dr. Tabrizi was going 24 to “take it all out” in the first surgery and that Dr. Tabrizi told her that she was “going to cure 25 [her]”; Plaintiff thought that Dr. Tabrizi “only took a percentage” “because she wanted to charge 26 twice.” Likar Decl., Ex. C (Ralon Depo.) at 39. Plaintiff testified that Dr. Tabrizi did not say 27 1 anything that made her believe this, however. Id. 2 On May 3, 2023, Plaintiff was driven to the surgery by her friend Selomi Villalta, who 3 accompanied her into the facility and left her in the ER waiting area while he went to another 4 location to complete intake paperwork. Likar Decl., Ex. C (Ralon Depo.) at 48, 51. According to 5 Ralon, while in the ER waiting area an African-American ER nurse began speaking to her in 6 English but she did not understand what was being said. Id. at 52-53. Someone told her the ER 7 nurse was asking her to leave. Id. at 53, 56. At that point, Plaintiff testified, the ER Nurse, a 8 manager and a security guard took her into the hallway and Villata returned. Id. According to 9 Plaintiff, the nurse, the manager and the security guard “didn’t let [Plaintiff and Villalta] come in” 10 to the ER waiting area; the security guard then took her and Villalta “all the way out to the street.” 11 Id.; see also Likar Decl., Ex. D (Villalta Depo.) at 53-55. Plaintiff testified that the ER nurse 12 “kicked [her] out of there maybe because [she is] a Latina. Everyone else there was American.” 13 Id. at 48. 14 Plaintiff testified that she did not know why she was asked to leave because she and 15 Villalta “didn’t do anything” and “didn’t cause any problems. Likar Decl., Ex. C (Ralon Depo.) at 16 53. She also testified that Dr. Tabrizi ordered that she and Villalta be asked to leave. Id. at 71 17 (“She was the one that ordered them to kick us out.”). She testified that Dr. Tabrizi was not 18 present at the time they were asked to leave but that she must have been the one who ordered that 19 they be evicted from the building because Dr. Tabrizi’s notes from that day contained “lies” and 20 she knew “everything” because she was going to perform surgery on Plaintiff that day. Id. at 71- 21 72. Villalta testified that he “never saw” Dr. Tabrizi that day. Likar Decl., Ex. D (Villalta Depo.) 22 at 55. Like Plaintiff, he testified at his deposition that he did not know why he and Plaintiff were 23 asked to leave the facility. Likar Decl., Ex. D (Villalta Depo.) at 52-53. Both Plaintiff and Villalta 24 testified that the ER nursed laughed as Plaintiff was told to leave the waiting room. Id. at 52; 25 Likar Decl., Ex. C (Ralon Depo.) at 71 (“the black woman was laughing that we had been kicked 26 out”). 27 Dr. Tabrizi’s notes from May 3, 2023, the truth of which Plaintiff disputes, state as Domitila was scheduled to have surgery with me today. She had 1 arrived accompanied by Selomi (her son according to him). However her case was cancelled after she left following a confrontation with 2 Selomi and our peri-op staff. I called and spoke with Selomi. He told me that "something happened today" but he would not get into the 3 details. Previously he had said that he is her son, but under demographics it says friend. Using an interpreter, I asked to speak 4 with Domitila, to verify his relation to her, but she never answered the question. She and Selomi were on the phone together. Despite me 5 asking him to allow me to speak with her alone, he kept interjecting. When I asked Domitila to tell me what happened, Selomi was telling 6 her what to say. When I said, I want to speak only with Domitila, he hung up. Will send patient a certified letter requesting her to contact 7 my office and to set up an appointment without Selomi there given his hostile behavior towards our OR staff and myself today. 8 She needs a re-excision to reduce the recurrence of her borderline phyllodes tumor and needs to have her margin reexcision operation 9 rescheduled. 10 Aguiar Decl., Ex. A, KFH.PR.001435. 11 On the same day, a Kaiser nurse sent Plaintiff a letter, in Spanish, stating: 12 Please contact my office to set up an appointment without Selomi present. You need a re-excision to reduce the recurrence of your 13 borderline phyllodes tumor and need to have your margin re-excision operation rescheduled. Please contact Kaiser General Surgery 14 Department at 415-444-2950 to schedule an appointment with Dr Tabrizi 15 16 Thank You Kaiser General Surgery Dept. 17 18 Id. KFH.PR.001433-34. 19 An email was sent to Plaintiff on May 11, 2023, in Spanish and English, stating: 20 I am Dr. Tabrizi’s MA I call you and I could not leave you a voicemail because the mailbox is full I was call you to let you that you have an 21 appointment with Dr. Tabrizi on 5/16/23 11:30 am to talk and reschedule the appointment for your surgery, you can come to the 22 appointment accompanied by someone other than Mr. Selomi Villalta since he cannot enter the hospital building, you can bring someone 23 else but if you do not have anyone else Mr. Selomi can bring you and leave you at the entrance of the building and you will come in alone 24 to your visit with Dr. Tabrizi, also Dr. Tabrizi mentioned that if you like this appointment it could be by phone but let us know. Please call 25 us back at 415-444-2950 to explain better. 26 Id., KFH.PR.001453. Notes in Plaintiff’s chart reflect that she missed the May 16, 2023 27 appointment. Id. KFH.PR.001454. 1 2023, Dr. Tabrizi called her (using Villalta’s telephone number as Plaintiff listed Villalta’s number 2 as her own contact number with Kaiser) but that she did not speak to the doctor. Likar Decl., Ex. 3 C (Ralon Depo.) at 75-76. According to Plaintiff. Dr. Tabrizi hung up because she did not want to 4 speak to Villalta. Id. Villalta testified that Dr. Tabrizi called him trying to reach Plaintiff and that 5 he spoke to her from his car, parked outside a restaurant, while Plaintiff was inside. Likar Decl., 6 Ex. D (Villalta Depo.) at 56. Villalta testified that Dr. Tabrizi asked Plaintiff to return to the 7 hospital for the scheduled surgery and that he “went back and told Miss Domitila that [he] had just 8 spoken on the phone with Dr. Tabrizi and told her that Dr. Tabrizi said please for her to come back 9 to the hospital.” Id. at 57. According to Villalta, Plaintiff responded that “if [she] was asked to 10 leave, [she was] not coming back.” Id. 11 Kaiser presents a declaration by Craig Tom, who is the current security manager at the 12 facility and held that position in May 2023. Tom states that he regularly receives oral and written 13 incident reports from his security team of disruptions at the facility and that on May 3, 2023, it 14 was reported to him by his security team that Plaintiff’s companion became “disruptive . . . after 15 he was asked to check in at the office of admission.” Tom Decl. ¶ 4. Tom states that “[s]ecurity 16 was called in response and tried to escort the companion and [Plaintiff] to the check in area. 17 However the companion and [Plaintiff] instead left the facility voluntarily.” Id. He states further, 18 “It is my understanding there was never any request or instruction to [Plaintiff] to leave the 19 facility.” Id. 20 Plaintiff testified at her deposition that she was not charged for the services she received 21 from Kaiser in connection with any of her appointments with Dr. Tabrizi. Likar Decl., Ex. C 22 Ralon Repo.) at 38-39; see also dkt. no. 93 at ECF p. 14 (reflecting total Kaiser charges of 23 $21,237.85 and patient payments of $0). 24 B. Procedural Background 25 The operative complaint in this case is the Second Amended Complaint, filed on February 26 26, 2024. In it, Plaintiff asserts two claims for racial discrimination under Title VI, 42 U.S.C. 27 2000d: 1) a claim based on the allegation that on March 27, 2023 and May 3, 2023, Kaiser did not 1 translate between English and Spanish; and 2) a claim that on May 3, 2023, Plaintiff “was rejected 2 and expelled” from the facility by Dr. Tabrizi. 3 As set forth in detail in the Court’s March 17, 2025 order granting in part and denying in 4 part Kaiser’s motion for issue and evidentiary sanctions, dkt. no. 85 (“Sanctions Order”), Plaintiff 5 repeatedly refused to comply with Kaiser’s discovery requests in the fall of 2024 and failed to 6 respond to communications from Kaiser’s counsel seeking to meet and confer in connection with 7 Plaintiff’s discovery obligations. Plaintiff also issued subpoenas to depose Kaiser and various 8 Kaiser employees that were not in compliance with the Civil Local Rules or the Court’s standing 9 orders. Kaiser brought these issues to the Court’s attention in a discovery letter dated December 10 12, 2024 and on December 13, 2024, the Court issued an order for Plaintiff to respond to Kaiser’s 11 discovery and quashing Plaintiff’s subpoenas. Dkt. no. 62 (Order re Kaiser Discovery Letter). 12 The Court provided a detailed explanation of the flaws in Plaintiffs’ subpoenas and permitted 13 Plaintiff to renotice the depositions to cure these defects, provided that she first meet and confer 14 with Kaiser’s counsel with regard to scheduling of the depositions. Id. The Court gave Plaintiff 15 one week to meet and confer with Kaiser’s counsel regarding the depositions but Plaintiff did not 16 comply with the Court’s order; nor did she renotice any depositions. See dkt. nos. 88, 89. Plaintiff 17 also failed to comply with the Court’s order requiring her to respond to Kaiser’s discovery 18 requests. Dkt. no. 85 (March 17, 2025 Sanctions Order) at 2. 19 On March 17, 2025, the Court granted in part and denied in part Kaiser’s motion for 20 sanctions, finding that certain sanctions were necessary to address the prejudice to Kaiser caused 21 by Plaintiff’s failure to comply with her discovery obligations and the Court’s orders. Pursuant to 22 the Court’s Sanctions Order, Plaintiff may not introduce any facts or witnesses that were not 23 expressly disclosed at her deposition or contained in the medical records that Defendants produced 24 to Plaintiff. See Sanction Order, pp. 8-9. In addition, Plaintiff may not offer any evidence or 25 testimony from individuals who she did not identify in her deposition. Id. at p. 9. Further, except 26 to the extent Plaintiff offered specific testimony at her deposition, the Court deemed admitted the 27 fact that no harm was caused to Plaintiff by any employee in relation to the Title VI claim. Id., p. 1 to any incidents of alleged discrimination (whether based on race or national origin) not described 2 in the operative complaint unless clear and specific testimony relevant to the federal claims was 3 provided during her deposition. Id. at pp. 9-10. In addition, Plaintiff may not assert any claims for 4 negligence or medical malpractice. Id. at p. 7. The Court also deemed admitted the fact that 5 Kaiser encouraged Plaintiff to continue to see and treat with her Kaiser medical providers. Id. at 6 p. 8. Finally, Plaintiff is prohibited from introducing any evidence or testimony as to any 7 economic or non-economic damages not disclosed by Plaintiff in her deposition. Id. at p. 11. 8 On March 31, 2025, Plaintiff filed a motion for extension of time, apparently seeking to 9 compel Kaiser to produce two videotapes she believed recorded the events of May 3, 2023 and to 10 extend fact discovery so that she could depose Kaiser witnesses. Dkt. no. 86. As discussed above, 11 the Court denied the motion, finding that it was untimely because the fact discovery cut-off was no 12 later than February 12, 2025. Dkt. no. 89. 13 Although Plaintiff repeated her requests for an order compelling Kaiser to produce 14 videotapes and produce witnesses for deposition in her Discovery Motions, Plaintiff still has not 15 offered any evidence that those videotapes exist. Nor has she offered any explanation for her 16 failure to renotice depositions of Kaiser witnesses under the Court’s December 13, 2024 Order. 17 C. Legal Standards Under Rule 56 18 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 19 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 20 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 21 the absence of a genuine issue of material fact with respect to an essential element of the non- 22 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 23 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 24 Once the movant has made this showing, the burden then shifts to the party opposing 25 summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id. 26 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 27 disputed must support the assertion by . . . citing to particular parts of materials in the record 1 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 2 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of 3 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan 4 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the 5 record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 6 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3). 7 On summary judgment, the court draws all reasonable factual inferences in favor of the 8 non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not 9 find for the non-moving party based on the record as a whole, there is no “genuine issue for trial” 10 and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 11 587 (1986). 12 D. Legal Standards Governing Title VI Discrimination Claims 13 Title VI provides that “[n]o person in the United States shall, on the ground of race, color, 14 or national origin, be excluded from participation in, be denied the benefits of, or be subjected to 15 discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 16 2000d. The Ninth Circuit has held that the burden-shifting framework that applies to Title VII 17 discrimination claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) also applies 18 to Title VI claims. Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014). Under that 19 framework, the “allocation of burdens and order of presentation of proof” is as follows: 20 First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the 21 plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason 22 for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a 23 preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for 24 discrimination. 25 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). Alternatively, a plaintiff 26 may establish discriminatory purpose by producing direct evidence demonstrating that a 27 discriminatory reason more likely than not motivated the defendant and that the defendant's 1 Cir. 2022). 2 E. Discussion 3 Because Ralon has not pointed to any direct evidence of discriminatory intent, the question 4 the Court must decide is whether she has established discriminatory intent sufficient to survive 5 summary judgment under the McDonnell Douglas framework. The Court finds, as a matter of 6 law, that she has not. In particular, the Court finds based on the undisputed facts and drawing all 7 reasonable inference in favor of Plaintiff where the facts are disputed, that Plaintiff has not offered 8 evidence that gives rise to an inference of discriminatory intent. See Rashdan v. Geissberger, 764 9 F.3d at 1183 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219–20 (9th Cir.1998) 10 (internal quotation marks and alteration omitted). 11 As a preliminary matter, the Court finds that Plaintiff has not made a prima facie case of 12 discrimination based on any conduct or events that occurred at the Kaiser facility on March 27, 13 2023. Plaintiff testified at her deposition that the surgery performed by Dr. Tabrizi that day went 14 smoothly and that she had no problems entering the facility or any encounters with building 15 security. Likar Decl., Ex. C (Ralon Depo.) at 31. Although Plaintiff testified that she understood 16 that Dr. Tabrizi was going to remove the entire mass that day and believed that Dr. Tabrizi left a 17 “percentage” so that she could charge for a second surgery, she points to no evidence to support 18 her belief, which is entirely speculative. Furthermore, even if Dr. Tabrizi had removed only part of 19 the mass so that she could charge for two surgeries, that would not establish that her conduct was 20 motivated by discriminatory intent. Likewise, the pre- and post-operative visit notes reflect that an 21 interpreter was present during these examinations and consultations and there is no evidence that 22 Plaintiff was treated less favorably than other patients due to her race or ethnicity. 23 As to the events that occurred on May 3, 2023, the Court assumes that Plaintiff has made a 24 prima facie case of discrimination but need not decide that question because Kaiser has articulated 25 a legitimate, non-discriminatory reason for ejecting her from the facility3 and Plaintiff has not 26 3 Kaier contends “[t]he uncontroverted evidence establishes that nobody wanted Plaintiff to leave 27 the facility[.]” Motion at 10. While it has supplied a declaration from the security manager at the 1 pointed to evidence establishing pretext. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th 2 Cir. 2010). Specifically, Kaiser asserts that what occurred on May 3 was the result of Villalta 3 becoming disruptive, causing facility employees to escort him and Plaintiff out of the building. 4 Although Kaiser has offered no direct eyewitness testimony providing details about Villalta’s 5 conduct or evidence establishing who exactly decided how his conduct should be handled, it has 6 offered testimony from the security manager stating that it was reported to him by member of his 7 security team that a security escort was called in response to Villalta’s “disruptive behavior.” See 8 generally Tom Decl.4 Similarly, Dr. Tabrizi wrote in her case notes that day that Plaintiff left the 9 facility “after a confrontation with Selomi and our peri-op staff.” Aguiar Decl., Ex. A, 10 KFH.PR.001435. 11 As discussed above, Kaiser’s burden is only to articulate a non-discriminatory reason for 12 its conduct. Kaiser has done that. The burden of showing discriminatory intent always lies with the 13 plaintiff, and to show pretext Plaintiff must provide “specific, substantial evidence.” Wallis v. J.R. 14 Simplot Co., 26 F.3d 885, 890 (9th Cir.1994) (internal quotations and citation omitted). “The 15 plaintiff may show pretext either (1) by showing that unlawful discrimination more likely 16 motivated the [defendant], or (2) by showing that the [defendant’s] proffered explanation is 17 unworthy of credence because it is inconsistent or otherwise not believable.” Dominguez-Curry v. 18 Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) (citing Godwin v. Hunt Wesson, Inc., 19 150 F.3d 1217, 1220-22 (9th Cir. 1998), as amended (Aug. 11, 1998)). Plaintiff has met neither 20 test. 21 Plaintiff testified that the ER nurse was Black and speculated that she “kicked me out of 22 testimony that a security guard escorted her and Mr. Villalta “all the way to the street.” Likar 23 Dec., Ex. C (Ralon Depo.) at 54. Drawing all reasonable inferences in favor of Plaintiff, this testimony is sufficient to support an inference that Plaintiff was, in fact, asked to leave the facility 24 and the Court presumes this to be true in its analysis. 4Although the description in the Tom Declaration of what occurred at the facility on May 3 is 25 likely inadmissible hearsay, see Fed.R.Evid. 801(c), a party need not present evidence to support or oppose a motion for summary judgment in a form that would be admissible at trial so long as 26 the contents of the parties’ evidence is amenable to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036−37 (9th Cir. 2003). As the Tom Declaration indicates 27 that Kaiser can present admissible evidence at trial in the form of testimony from the security 1 there maybe because I’m Latina,” Likar Decl., Ex. C (Ralon Depo.) at 48, but the fact that the ER 2 nurse was Black is not sufficient to raise an inference of discriminatory intent; rather, Plaintiff’s 3 assertion that the ER nurse asked Plaintiff to leave because of her race is entirely speculative and 4 is insufficient to establish pretext. See Dasilva-Flint v. Dejoy, No. SACV1902018CJCADSX, 5 2022 WL 1127473, at *4 (C.D. Cal. Feb. 16, 2022), aff'd, No. 22-55382, 2023 WL 4676819 (9th 6 Cir. July 21, 2023) (holding that plaintiff could not “rely on speculation as to [the defendant’s] 7 motive to establish pretext) (citations omitted). Likewise, Plaintiff’s testimony that “[e]veryone 8 else was American[,]” see id., has no probative value because “American” describes neither a race 9 nor an ethnicity. 10 Even assuming that Plaintiff meant to testify that all of the other people in the waiting area 11 were non-Hispanic, she has not established that any of them were similarly situated to her because 12 there is no evidence that anyone else was accompanied by a companion who became disruptive. 13 Therefore, this evidence would not constitute specific or substantial evidence of pretext. See 14 Williams v. Wendler, 530 F.3d 584, 588–89 (7th Cir. 2008) (“[I]n a very small sample of 15 dissimilar cases, the presence of a racial difference does not permit an inference of discrimination; 16 there are too many other differences, and in so small a sample no basis for thinking they cancel 17 out.”). 18 Plaintiff also testified that she never saw Villalta acting disruptive while at the facility on 19 May 3, but this is not specific evidence that establishes that Kaiser’s explanation is unworthy of 20 credence because Plaintiff also testified that Villalta left her in the ER waiting room as soon as 21 they arrived and went to another location to complete paperwork; she also testified that she did not 22 witness Villalta’s interactions with the ER nurse. Likar Decl., Ex. C (Ralon Depo.) at 51-53. 23 Finally, Plaintiff testified that she believed Dr. Tabrizi ordered her removal, apparently 24 based on her race. But it is undisputed that Dr. Tabrizi was not present in the ER waiting room 25 and did not witness any of the events related to the removal of Villalta and Plaintiff. It is also 26 undisputed that Dr. Tabrizi called Plaintiff the same morning and asked her to return to the facility 27 for her scheduled surgery; and Dr. Tabrizi’s treatment notes offer no support for Plaintiff’s theory. 1 for her removal. There is no evidence that Dr. Tabrizi was involved in any way in Plaintiff's 2 || removal from the facility on May 3, 2023, much less that Dr. Tabrizi was motivated by 3 || discriminatory intent. 4 In sum, the Court concludes that Plaintiff has failed, as a matter of law, to establish that 5 Kaiser discriminated against her in violation of Title VI on the basis of race or ethnicity. 6 || Therefore, Kaiser is entitled to summary judgment in its favor on all of Plaintiffs claims. 7 || VI. CONCLUSION 8 For the reasons stated above, the Court DENIES Plaintiff's motion for appointment of 9 || counsel, Discovery Motions and Bench Trial Motion. The Court GRANTS Defendants’ Summary 10 || Judgment Motion. The Clerk is instructed to enter judgment in favor of Kaiser and close the case. 11 IT IS SO ORDERED. a 12
13 Dated: October 23, 2025 €
JQSEPH C. SPERO 15 nited States Magistrate Judge 16
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