                                                                               FILED
                            NOT FOR PUBLICATION                                SEP 30 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HAMID SAFARI, M.D. and MARK                      No. 12-16245
FAHLEN, M.D.,
                                                 D.C. No. 3:11-cv-05371-JSW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

KAISER FOUNDATION HEALTH
PLAN; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                          Submitted September 12, 2014**
                             San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Plaintiffs appeal the district court’s decision granting defendants’ motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs bring an as-


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
applied challenge and a facial challenge under 42 U.S.C. § 1983 to the peer-review

process that a California health care provider must conduct before revoking a

doctor’s privileges to practice medicine at the provider’s facilities. Plaintiffs claim

the peer-review process violates the Due Process Clause of the Fourteenth

Amendment.

      Both the plaintiffs’ as-applied and facial challenges are foreclosed by Pinhas

v. Summit Health, Ltd., 894 F.2d 1024 (9th Cir. 1989). First, the peer-review

process has not changed materially since Pinhas because California Business &

Professions Code § 809, et seq. merely codified the common law that existed when

Pinhas was decided. See El-Attar v. Hollywood Presbyterian Med. Ctr., 301 P.3d

1146, 1151 (Cal. 2013) (“[T]he peer review statute, like the common law fair

procedure doctrine that preceded it, establishes minimum protections for

physicians subject to adverse action in the peer review system.” (internal

quotations omitted)). Pinhas’s holding is therefore still valid. As a result,

defendants were not state actors when they conducted peer review and revoked

plaintiffs’ privileges to practice medicine at defendants’ facilities. See Pinhas, 894

F.2d at 1034.

      Second, as Pinas remains valid, plaintiffs incorrectly named defendants,

who are private parties, in a facial challenge to the peer-review statutes. Id. at

1034–35.
AFFIRMED.
