The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 Ernest Lincoln Bonner Jr., M.D., No. 2:17-cv-00445-KJM-SCR
12 Plaintiff, ORDER
13 v.
14 Medical Board of California, et al.,
1S Defendants.
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17 Ernest Bonner brought this suit against the Medical Board of California (the Board) and
18 | other individual defendants! in this court in 2017 alleging the Board violated his federal rights by
19 | revoking his medical license without first hearing his petition for penalty relief. The Board
20 | eventually moved for summary judgment on all claims, and this court granted the motion on
21 | judicial immunity grounds. The Ninth Circuit upheld the judgment on all but Bonner’s two
22 | claims alleging antitrust violations. In supplemental briefing on Bonner’s antitrust claims, the
23 | Board renews its motion for summary judgment by arguing Bonner has not cited evidence to
24 | support either antitrust claim, among other arguments. For the following reasons, the court agrees
25 | and grants the Board’s motion.
' There are seven individual defendants: Kimberly Kirchmeyer, Cathy Lozano, Paulette
Romero, Cyndie Kouza, Peter Tom, M.D., Khosrow Afsari, M.D., and Smita Chandra, M.D. See
Joint Status Rep. at 2, ECF No. 143.
1 I. BACKGROUND
2 The court incorporates by reference from its previous order the background of this case,
3 which the Ninth Circuit left undisturbed. See Order (Jan. 30, 2023) at 2–5, ECF No. 130. The
4 Board had investigated Bonner’s medical practices for several years beginning in 2006.
5 Ovsepyan Decl. at 24, ECF No. 105-1. As a result of these investigations, in 2010, the
6 Department of Health Care Services suspended Bonner’s Medi-Cal provider number for two
7 years. Id. at 174. In 2013, the Board revoked Bonner’s Physician’s and Surgeon’s Certificate,
8 but stayed the revocation while placing Bonner on probation for three years. Req. for Jud. Notice
9 (RJN) at 19–32, ECF No. 105-4. One condition of the probation was for Bonner to complete and
10 pay for medical record-keeping courses and to undergo a formal assessment. Id. at 26–32.
11 Bonner challenged this decision unsuccessfully in state court. Id. at 80–83.
12 In April 2014, Bonner filed a petition for penalty relief and requested time to pay for the
13 required courses. Ovsepyan Decl. at 215–19. In June 2014, the Board petitioned to revoke
14 Bonner’s probation because he had failed to comply with its terms. Id. at 238–43. In October
15 2014, the Board adopted an ALJ’s recommendation to revoke Bonner’s license for failing to
16 comply with the probation terms. Id. at 231–37. The Board revoked Bonner’s license without
17 giving him a hearing on his petition for penalty relief. Id. at 224. Bonner filed a writ of
18 administrative mandate to stay the revocation of his medical license. See RJN at 44–57. The
19 state court issued a temporary stay. Pl.’s Stmt. Undisp. Mat. Facts (SUMF) Part 2 at 269–70,
20 ECF No. 113-3. The Board placed Bonner back on probation and reinstated his license. Defs.’
21 Undisp. Mat. Facts (UMF) ¶ 40, ECF No. 105-3. In March 2015, Medi-Cal provided Bonner
22 with instructions for getting a new Medi-Cal billing number. Ovsepyan Decl. at 344–45.
23 In early 2016, the state court made its temporary ruling permanent and ordered the Board
24 to hold a hearing on Bonner’s petition for penalty relief. Pl.’s SUMF Part 2 at 297. At a hearing
25 before an ALJ, Bonner’s counsel stated Bonner had “completed the probation requirements that
26 were at issue at the time the petition was brought,” so “the petition is now moot . . . .” RJN Exs.
27 M–Q at 60, ECF No. 42-2. Bonner applied for a new Medi-Cal number in 2020. Ovsepyan Decl.
28 at 15.
1 II. PROCEDURAL BACKGROUND
2 Bonner, who is black, filed a second amended complaint in 2018, alleging the Board
3 violated a variety of federal laws, including Sections One and Two of the Sherman Act and
4 Section Four of the Clayton Antitrust Act on the theory that the Board conspired to unlawfully
5 suspend his medical license to restrain competition in the market resulting in the “diminution in
6 competition and access to competent and experienced Minority Medical Professionals in the State
7 of California.” See Second Am. Compl. (SAC) at 47–48, ECF No. 35. This court granted
8 defendants’ motion for summary judgment on all claims on the grounds of judicial immunity.
9 See Order (Jan. 30, 2023), ECF No. 130. Bonner appealed. See ECF No. 133. The Ninth Circuit
10 affirmed this court’s grant of summary judgment on Bonner’s civil rights claims. See USCA
11 Order/Mandate/Memorandum, ECF No. 139. It reversed and remanded Bonner’s antitrust claims
12 as the Board did not argue for judicial immunity on those claims. See id.
13 At a scheduling conference held on September 26, 2024, the court ordered the parties to
14 submit supplemental briefing on Bonner’s antitrust claims. Scheduling Conference (Sept. 26,
15 2024), ECF No. 144. The matter is now fully briefed. See Defs.’ Supp. Antitrust Br., ECF
16 No. 149; Pl.’s Supp. Antitrust Br., ECF No. 151, Reply, ECF No. 152.
17 On December 11, 2024, this court heard oral argument on Bonner’s motion. See Mins.
18 Mot. Hr’g, ECF No. 159. Gary Sherrer appeared on behalf of Bonner. Id. Gary Ostrick
19 appeared on behalf of defendants. Id.
20 III. LEGAL STANDARD
21 Summary judgment is appropriate if “there is no genuine dispute as to any material fact
22 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is
23 “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
24 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable or is not
25 significantly probative, summary judgment may be granted.” Lerner Rowe PC v. Brown &
26 Shelby LLC, 119 F.4th 711, 717 (9th Cir. 2024). A fact is “material” if it “might affect the
27 outcome of the suit under the governing law.” Id. The court views the record in the light most
28 favorable to the nonmoving party and draws reasonable inferences in that party’s favor.
1 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Adickes v. S.H.
2 Kress & Co., 398 U.S. 144, 157 (1970).
3 IV. ANALYSIS
4 The Board seeks summary judgment on Bonner’s claims that it violated Section One and
5 Section Two of the Sherman Act.2 The court addresses each in turn.3
6 A. Section One of the Sherman Act
7 Section One of the Sherman Act prohibits “contract[s], combination[s] in the form of
8 trust[s] or otherwise, or conspiracy, in restraint of trade or commerce among the several
9 States. . .” 15 U.S.C. § 1. The Supreme Court has “long recognized that Congress intended to
10 outlaw only unreasonable restraints.” State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). “A small
11 group of restraints are unreasonable per se because they always or almost always tend to restrict
12 competition and decrease output.” Ohio v. Am. Express Co., 585 U.S. 529, 540 (2018) (internal
13 marks and citations omitted). Restraints outside of this small number of per se violations are
14 “judged under the rule of reason.” Id. Here, Bonner alleges the Board’s restraint on trade
15 violated the rule of reason. See Pl.’s Supp. Antitrust Br. at 5, ECF No. 151. To evaluate whether
16 a restraint on trade violates the rule of reason, a plaintiff must show (1) the existence of a
17 conspiracy, (2) the intention on the part of the co-conspirators to harm or restrain competition,
18 (3)actual injury to competition, and (4) that the plaintiff suffered an “antitrust injury” because of
19 the conspiracy. Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1197 (9th Cir. 2012).
20 Courts use “a three-step, burden-shifting framework” to decide “whether a restraint
21 violates the rule of reason.” Ohio, 585 U.S. at 541. Under that framework, Bonner must make an
2 Bonner also alleges a violation of Section 4 of the Clayton Act. See SAC at 45, 47. But
Section 4 of the Clayton Act only creates a private action for individuals to sue for violations
under the Sherman Act and does not need to be analyzed independently from the analysis of
sections one and two of the Sherman Act. The court therefore only needs to analyze Bonner’s
claims under the Sherman Act.
3 Bonner in his supplemental briefing also discusses the Federal Trade Commission (FTC)
Act. See Pl.’s Supp. Antitrust Br. at 5, ECF No. 151. But as Bonner acknowledges, private
actors cannot bring claims under the FTC Act. Only the FTC can bring antitrust claims under the
FTC Act. Id.; see 15 U.S.C. § 45(a)(2). The court therefore does not need to adjudicate this
claim.
1 initial showing “that the challenged restraint has a substantial anticompetitive effect that harms
2 consumers in the relevant market.” Id. This initial showing can be made through direct evidence
3 that proves “detrimental effects on competition.” Id. at 542. Or it can be made through indirect
4 evidence such as “reduced output, increased prices, or decreased quality in the relevant market.”
5 Id. If Bonner could show a substantial anticompetitive effect, the burden would then shift back to
6 the Board to show it had a “procompetitive rationale for the restraint.” Id. “If the defendant
7 makes this showing, then the burden shifts back to the plaintiff to demonstrate that the
8 procompetitive efficiencies could be reasonably achieved through less anticompetitive means.”
9 Id. at 542.
10 Assuming without deciding there was some kind of agreement to restrain trade, Bonner
11 has not cited evidence that could prove the Board’s restraint of trade has had a substantial
12 anticompetitive effect on the market. In the first place, he has not defined a market. See Maiuro
13 Decl. at 35–36, ECF No. 105-2. He claims the Board members are market participants, but the
14 court is left to guess as to the market’s contours. See Pl.’s Supp. Antitrust Br. at 6. His pleadings
15 do not clarify whether he believes the relevant market is the medical treatment market in
16 California generally, the treatment of patients at residential care facilities (RCFs), or the Medi-Cal
17 market—three vastly different possibilities. See SAC ¶ 245. Other parts of his pleadings suggest,
18 but do not clarify, whether he would contend at trial that only the market for black medical
19 professionals is at issue. Id. ¶ 246. At oral argument, Bonner claims the geographic scope of the
20 market is California.
21 Nor has Bonner cited evidence to show anticompetitive effects on such a potentially
22 expansive market. Bonner claims the Board acts to “control and to eliminate competition when
23 the Medical Board, including its employees, deems such conduct necessary.” Pl.’s Supp.
24 Antitrust Br. at 6. Further, he argues the Board conspired to deprive him of his license and
25 prevented him from “marketing his patented medication for others.” Id. at 7. Bare assertions like
26 these are not enough at the summary judgment stage. As the Ninth Circuit has held, “If the
27 evidence is merely colorable or is not significantly probative, summary judgment may be
28 granted.” Lerner Rowe PC, 119 F.4th at 717.
1 For its part, the Board has cited unrebutted evidence its conduct towards Bonner produced
2 no substantial anticompetitive effect. The Board submitted a thorough report with its motion for
3 summary judgment by Lisa Simonson Maiuro, who holds a PhD in Health Policy. See Maiuro
4 Decl. In Maiuro’s opinion, while the Board’s actions may have impacted Bonner personally, they
5 could not have had a substantial anticompetitive effect on the market because the elimination of a
6 single competitor cannot “prove the anticompetitive effect necessary for [a violation of] the
7 Sherman Act.” Id. at 19. Maiuro submits that in the relevant period, Bonner never had more than
8 4 percent of the market share of RCF clients in San Francisco. Id. at 38. In her opinion, agencies
9 enforcing antitrust laws would not begin an action unless they felt as though an actor was
10 restraining 30 percent of the market share. Id. Because Bonner actually claims a much larger
11 market—the entirety of California—his market share has to be even smaller than what Maiuro
12 suggests in her report.
13 The court grants the Board’s motion for summary judgment on Bonner’s claim that it
14 violated Section One of the Sherman Antitrust Act.
15 B. Section Two of the Sherman Act
16 Section Two of the Sherman Act makes it unlawful to “monopolize, or attempt to
17 monopolize, or combine or conspire with any other person or persons, to monopolize any part of
18 the trade or commerce among the several States . . .” 15 U.S.C. § 2. To establish a conspiracy to
19 monopolize claim under Section 2, plaintiffs must show: “(1) the existence of a combination or
20 conspiracy to monopolize; (2) an overt act in furtherance of the conspiracy; (3) the specific intent
21 to monopolize; and (4) causal antitrust injury.” In Re Nat’l Football League’s Sunday Ticket
22 Antitrust Litig., 933 F.3d 1136, 1159 (9th Cir. 2019) (quoting Paladin Assocs., Inv. v. Mont.
23 Power Co., 328 F.3d 1145, 1158 (9th Cir. 2003)). To establish a monopolization claim, a
24 plaintiff must prove “(a) the possession of monopoly power in the relevant market; (b) the willful
25 acquisition or maintenance of that power; and (c) causal antitrust injury.” Id. (citations omitted).
26 Bonner has similar problems with his Section Two claim as with his Section One claim.
27 He cannot prove an antitrust injury because he has not properly defined a market. Further,
28 because he has not defined a market, he cannot show the Board attempted to monopolize a market
1 or the actualization of a monopoly by the Board in any market. He cannot do so because his
2 evidence pertains only to his own disciplinary proceedings. See Pl.’s SUMF Parts 1 and 2. As
3 noted, the unrebutted evidence from the defense shows that, at most, Bonner could claim a share
4 of four percent of the relevant RCF San Francisco market. Maiuro Decl. at 38. At oral argument,
5 Bonner claimed the market is the entire state of California, so his market share is far less than
6 4 percent, as noted above. Controlling 4 percent of a market or less is not enough to show a
7 monopoly. See id. The Ninth Circuit has noted that “generally, 65% market share is sufficient to
8 establish that a defendant has monopoly power.” Dreamstime.com LLC v. Google LLC, 54 F.4th
9 1130, 1137 n.5 (9th Cir. 2022) (citing Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d
10 1195, 1206 (9th Cir. 1997) (noting courts “generally require a 65% market share to establish a
11 prima facie case of market power”)). The Board, further, has provided substantive and unrebutted
12 evidence that there has been no meaningful anticompetitive effect in any of the markets Bonner
13 might be suggesting are relevant. See generally Maiuro Decl. And even if Bonner had shown the
14 Board has the possession of monopoly power, or that it desires to possess it, Bonner cannot show
15 there has been an antitrust injury on this record.
16 The court grants all defendants’ summary judgment on Bonner’s Section Two claims.
17 Thus, the court grants all defendants summary judgment on Bonner’s remaining antitrust claims.
18 Four of the defendants, Kirchmeyer, Kouza, Lozano, and Romero also have pled immunity in
19 response to both of Bonner’s antitrust claims under the “Parker” theory of anti-trust immunity.
20 See Defs.’ Supp. Antitrust Br. at 15–21 (discussing purported application of Parker v. Brown,
21 317 U.S. 341 (1943)). But because the court grants the Board summary judgment on the merits
22 of both of Bonner’s antitrust claims, it need not reach the immunity issue.
23 V. CONCLUSION
24 The Board’s motion for summary judgment is granted on Bonner’s remaining antitrust
25 claims. This order resolves ECF No. 113 and closes the case.
26 IT IS SO ORDERED.
27 DATED: April 11, 2025.
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