Peterson v. Sutter Medical Foundation

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2025
• Docket: 23-2911
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUL 2 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RALPH PETERSON, M.D., No. 23-2911 D.C. No. Plaintiff - Appellant, 3:21-cv-04908-WHO v. MEMORANDUM* SUTTER MEDICAL FOUNDATION; SUTTER BAY HOSPITALS, DBA ALTA BATES SUMMIT MEDICAL CENTER; EDEN MEDICAL CENTER; SUTTER EAST BAY MEDICAL FOUNDATION; NEIL STOLLMAN; ROD PERRY; PHILLIP RICH; CATHY LOZANO; KRISTINA LAWSON; HOWARD KRAUSS; RANDY HAWKINS; RICHARD FANTOZZI; HEDY CHANG; DEV GNANEDEV; RONALD LEWIS; LAURIE ROSE LUBIANO; ASIF MAHMOOD; RICHARD THORP; ESERICK WATKINS; FELIX YIP; DENISE PINES; SHARON LEVINE; EVELYN SCHIPSKE; JAMIE WRIGHT; LINDA WHITNEY; SUTTER BAY MEDICAL FOUNDATION; PHILIP RICH,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. William Horsley Orrick, District Judge, Presiding

Submitted June 6, 2025** San Francisco, California

Before: CALLAHAN and LEE, Circuit Judges, and RASH, District Judge.***

Ralph Peterson is an African American physician who treated mostly

indigent and under-served patients in Oakland, California. In 2009, when his

practice consisted primarily of endoscopic procedures performed at an outpatient

clinic, he resigned his hospital consultation privileges with Summit Hospital over a

disagreement about providing physician coverage for his patients who were

admitted to the hospital. In June 2021, after the unsealing of a whistleblower suit

(the “Qui Tam action”) against Sutter Medical Foundation (“Sutter”) alleging that

Sutter had paid kickbacks to doctors that referred patients to Sutter, Peterson filed

this lawsuit against the Medical Board of California (“MBC”), some of its

personnel, Sutter, and several doctors that worked for Sutter. Peterson alleged

federal civil rights violations, federal antitrust violations, and violations of

California law. The District Court dismissed Peterson’s claims against the MBC

and its members as barred under the Eleventh Amendment and qualified immunity,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Scott H. Rash, United States District Judge for the District of Arizona, sitting by designation.

2 23-2911 struck Peterson’s state-law claims against Sutter and its doctors under California’s

anti-SLAPP statute (and awarded attorneys’ fees), and granted summary judgment

for the defendants on Peterson’s First Amendment and Due Process claims finding

that there was no evidence in the record to support his claims.

We review de novo issues concerning immunity, statute of limitations,

dismissal, motions to strike, and summary judgment. See Buckles v. King County,

191 F.3d 1127, 1132 (9th Cir. 1999) (immunity); Mann v. Am. Airlines, 324 F.3d

1088, 1090 (9th Cir. 2003) (statute of limitations); Naffe v. Frey, 789 F.3d 1030,

1035 (9th Cir. 2015) (dismissal); Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097,

1102 (9th Cir. 2003) (motion to strike); Metal Jeans, Inc, v. Metal Sport, Inc., 987

F.3d 1242, 1245 (9th Cir. 2021) (summary judgment). The attorney fee award is

reviewed for abuse of discretion. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945

(9th Cir. 2007). The District Court’s rulings are affirmed.

1. Peterson has not shown that the District Court erred in holding that the

MBC was entitled to sovereign immunity. Peterson does not contest that the MBC

is a California government agency. Rather, he argues that his claims against it are

contract claims, which are not subject to immunity. This argument is

unpersuasive. Under the Eleventh Amendment, a federal court cannot “entertain a

suit brought by a citizen against his own state.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 98 (1984).

3 23-2911 2. Peterson has not shown that the District Court erred in granting the MBC

members immunity. Peterson alleges that members made false statements to

insurance companies and credentialing committees causing him to be denied

physician provider status. He contends that these are not quasi-judicial activities

and are not entitled to absolute immunity, citing Mishler v. Clift, 191 F.3d 998 (9th

Cir. 1999). Mishler, which concerned the Nevada Board of Medical Examiners, is

inapposite because under California law, the MBC and its members are required

“to publish information about enforcement actions initiated while an individual is

licensed to practice medicine in California, and to correct those disclosures when

new information becomes available.” Fulton v. Med. Bd. of Cal., 183 Cal. App.

4th 1510, 1517 (2010). While California Business & Professional Code § 805(i)

requires that an 805 Report be maintained electronically for three years, this does

not, as Peterson contends, mean that information may not be disseminated after

three years. Moreover, even if the members are not entitled to absolute immunity,

they are entitled to qualified immunity because, in light of the MBC’s obligation to

disseminate information about California-licensed physicians, the members had no

reason to believe their conduct was unlawful. See Newell v. Sauser, 79 F.3d 115,

117 (9th Cir. 1996).

3. Peterson has not shown that the District Court erred in finding that

Peterson’s claims are time-barred. The statute of limitations on the antitrust claims

4 23-2911 is four years, see 15 U.S.C. § 15b, and the statute of limitations on Peterson’s First

Amendment and Due Process claims is two years from the accrual date. See

Bonelli v. Grand Canyon Univ., 28 F.4th 948, 951 (9th Cir. 2022) (holding the

statute of limitations for federal civil rights claims is governed by the forum state’s

statute of limitations for personal injury actions); see Cal. Code Civ. Proc. § 355.1.

The claim accrues “when the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Bonelli, 28 F.4th at 952.

Peterson filed this action more than four years after his 2009 resignation.

Peterson argues, however, that the time for filing was extended under the delayed

discovery doctrine, the continuing violations doctrine, the continuing accrual

doctrine, and equitable tolling. None of these exceptions apply to Peterson’s

claims arising from his 2009 resignation as he clearly knew of his injury then, even

if he did not know all the reasons for the injury. See id.

4. Peterson has not shown that the District Court erred in dismissing his

state claims against the Sutter defendants under California’s anti-SLAPP statute.

The California anti-SLAPP statute is “designed to protect defendants from

meritless lawsuits that might chill the exercise of their rights to speak and petition

on matters of public concern.” Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995,

1008-09 (2021) (“Bonni I”). Bonni I holds that resolution “of an anti-SLAPP

motion involves a two-step process.” Id. at 1009. It explained that “[f]irst, ‘the

5 23-2911 moving defendant bears the burden of establishing that the challenged allegations

or claims “aris[e] from” protected activity in which the defendant has engaged’”

and “[s]econd, for each claim that does arise from protected activity, the plaintiff

must show the claim has at least ‘minimal merit.’” Id. (quoting Park v. Bd. of Tr.

of Cal. State Univ., 2 Cal. 5th 1057, 1061 (2017) (first and third alterations added,

second alteration in original)). Bonni I concludes that if “the plaintiff cannot make

this showing, the court will strike the claim.” Id.

Peterson argues that the allegedly false statements to insurance companies

and credentialing committees are not privileged communications by state actors

because the official disciplinary proceedings had long since concluded and are too

attenuated from broad public health issues to be covered by California Code of

Civil Procedure § 425.16(e)(4). He further asserts that a claim-by-claim analysis

shows that not all claims are covered by the anti-SLAPP statute, and that

allegations of illegal conduct are excluded from anti-SLAPP protection.

Peterson’s assertions are not persuasive. Yang v. Tenet Healthcare Inc., 48

Cal. App. 5th 939, 947-548 (2020), held that private and public communications

concerning a licensed physician’s professional skills are a public issue. Bonni v.

St. Joseph Health Sys., 83 Cal. App. 5th 288, 300-01 (2022) (“Bonni II”), held that

the litigation privilege is not limited to statements made during the proceedings,

extends to steps taken afterwards, and such communications are “absolutely

6 23-2911 privileged under Civil Code 47, even if they were ‘improperly motivated.’” Thus,

the communications are the type covered by the anti-SLAPP statute. In addition,

Peterson’s assertion of illegality fails as this exception only applies “if a ‘defendant

concedes, or the evidence conclusively establishes, that the assertedly protected

speech or petition activity was illegal as a matter of law.’” Birkner v. Lam, 156

Cal. App. 4th 275, 285 (2007) (quoting Flatley v. Mauro, 39 Cal. 4th 299, 320

(2006)). Peterson offered no evidence that any communication by the defendants

was criminal.1

5. Peterson has not shown that the District Court erred in granting summary

judgment against him on his First Amendment and Due Process claims. Peterson

seeks to convert his objections to his resignation in 2009 into some type of claim

on behalf of his “indigent and under-served patients.” He alleges that “each time

Sutter received a kickback, upcoded, or steered patients to maximize the receipt of

funds from the MediCal pool he was injured because the pool was nearly dry and

his patients did not get enough care.”

This approach is not persuasive. First, the District Court found there was no

factual basis for the claim. It explained: (a) the Qui Tam action contains

allegations, not evidence, and the case was settled with no admission of liability,

1 The determination that Peterson has not shown that the District Court erred in granting the anti-SLAPP motion disposes of his challenges to the attorney fee award as he did not otherwise challenge the award.

7 23-2911 (b) the Qui Tam action alleged Sutter paid external doctors for referring patients to

Sutter, but Peterson alleged Sutter paid its doctors to refer indigent patients out,

and (c) there was no evidence of the alleged kickbacks to Sutter doctors. Peterson

proffers no contrary evidence, nor does he address how the alleged harm to his

patients harmed him or how he has standing to represent his patients.

Second, Peterson’s assertion that the Sutter defendants acted under color of

state law fails as the District Court found that the peer review proceedings were

initiated to address patient safety issues and there was no evidence that the Sutter

defendants had any role in the MBC’s investigation or evidence of retaliation. See

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977).

Third, Peterson’s First Amendment retaliation claim fails because there is no

evidence that Peterson informed the Sutter defendants that his objections were

made on behalf of the poor and indigent, and thus, he has not shown a causal

connection to constitutionally “protected speech.” See Nieves 23 v. Bartlett, 587

U.S. 391, 398 (2019). Finally, Peterson’s Due Process claim fails because he does

not address the District Court’s finding of no evidence of a lack of required process

and he does not indicate what arguments he was precluded from making.

The District Court’s orders dismissing certain defendants and granting

summary judgment against Peterson on the remaining defendants are

AFFIRMED.

8 23-2911