Singh v. Prasifka CA2/7 ( 2021 )

Filed 10/22/21 Singh v. Prasifka CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
TAJINDER SINGH, B302113
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS173944)
v.
WILLIAM J. PRASIFKA, in his
official capacity as Executive
Director of the Medical Board of
California et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel and Barbara M. Scheper,
Judges. Reversed with directions.
Fenton Law Group, Benjamin J. Fenton, Dennis E. Lee,
and Alexandra de Rivera for Plaintiff and Appellant.
Rob Bonta, Attorney General, Gloria L. Castro, Senior
Assistant Attorney General, Robert McKim Bell, Supervising
Deputy Attorney General, and Peggie Bradford Tarwater and
Claudia Morehead, Deputy Attorneys General for Defendants
and Respondents.
______________________________
INTRODUCTION
Tajinder Singh took a test required to become a licensed
physician in California four times, and failed each time. Then,
according to Singh, he discovered he had a disability that affected
his test-taking ability. He took the test a fifth time, with
medication for his disability, and passed.
The Medical Board of California, however, has a four-
strikes-and-you’re-out rule: An applicant for a medical license
only gets four chances to pass the test. When the Medical Board
refused to count his passing score on the fifth test, Singh sued the
Medical Board and its executive director, William J. Prasifka
(collectively, the Medical Board), for disability discrimination
under federal and state statutes and a writ of mandate under
Code of Civil Procedure section 1085.
The trial court sustained demurrers by the Medical Board
without leave to amend. Because we accept as true Singh’s
allegation that using his fifth test score would accommodate his
disability, and because the reasonableness of a proposed
accommodation is a factual question on which the Medical Board
has the burden of proof and which therefore cannot be resolved
on demurrer, we reverse and direct the trial court to enter a new
order overruling the demurrers to the disability discrimination
causes of action (but sustaining the demurrer to the cause of
action for a writ of mandate).
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Singh Unsuccessfully Requests an Accommodation
from the Medical Board for a Learning Disability
In 2013 Singh completed his medical studies at the Ross
University School of Medicine in Dominica, in the course of which
he passed Step 1 and Step 2 of the United States Medical
Licensing Examination (USMLE). Singh then began a residency
program in California that required him to pass Step 3 of the
USMLE. He failed the test four times: in March 2015, October
2015, March 2016, and December 2016.
In 2017, while Singh was preparing to take the Step 3 test
a fifth time, his tutor observed Singh “had sufficient knowledge to
pass the exam” and suggested Singh might have “undiagnosed
anxiety.” At his tutor’s suggestion, Singh visited his primary
care physician, who diagnosed him with “performance-related
anxiety and prescribed propranolol, a calming agent.” In August
2017 Singh, this time “while taking propranolol,” took the Step 3
examination again and passed.
Singh, however, faced a problem: Business and Professions
Code section 2177, subdivision (c)(1),1 provides, “An applicant
shall have obtained a passing score on all parts of Step 3 of the
[USMLE] within not more than four attempts in order to be
eligible for a physician’s and surgeon’s certificate” (italics added).
Section 2177, subdivision (c)(2), provides one exception to this
four-attempt rule: “Notwithstanding paragraph (1), an applicant
who obtains a passing score on all parts of Step 3 . . . in more
than four attempts and who meets the requirements of
1 Undesignated statutory references are to the Business and
Professions Code.
3
Section 2135.5 shall be eligible to be considered for issuance of a
physician’s and surgeon’s certificate.” The exception under
section 2135.5, however, is for physicians who are licensed in
another state. It requires, among other things, that the applicant
“hold an unlimited and unrestricted license as a physician and
surgeon in another state and has held that license continuously
for a minimum of four years prior to the date of application.”
(§ 2135.5, subd. (a).) Because Singh did not meet the
requirements of section 2135.5, he did not qualify for the
exception to the four-attempt rule.
In November 2017 Singh wrote the Medical Board. He
stated that, as a result of “a learning disability,” he was “unable
to pass the USMLE Step 3 until his 5th attempt” and that the
Americans with Disabilities Act (ADA) required the Medical
Board to provide him “a reasonable accommodation” to the four-
attempt rule in section 2177. He proposed, as an accommodation,
that the Medical Board accept the passing score he received on
his fifth attempt or, alternatively, allow him to take and pass a
different examination “in lieu of passing the USMLE Step 3
within four . . . attempts.”
In response, the Medical Board wrote that a request for a
reasonable accommodation under the ADA “needs to be sought at
the time an individual requests to take an examination.” The
Medical Board cited section 2177, subdivision (c)(1), as requiring
“an applicant to pass Step 3 within four attempts in order to be
eligible for a physician’s and surgeon’s certificate” and stated that
“[t]he Board does not have the authority to waive a statutory
requirement.”
4
B. Singh Files This Action, and the Trial Court Sustains
Demurrers by the Medical Board Without Leave To
Amend
In June 2018 Singh filed a petition for writ of mandate
(Code Civ. Proc., § 1085) and complaint against the Medical
Board. In support of his cause of action for writ relief in the
operative, second amended petition and complaint, Singh alleged
that he had a “medical disability,” namely, “performance-related
anxiety”; that he “did not identify [ ] or receive diagnosis for” this
disability “until after his fourth attempt to take the USMLE
Step 3 exam”; that under 42 United States Code section 1983,
Title II of the ADA, the federal Rehabilitation Act of 1973
(29 U.S.C. § 794), and the California Fair Housing and
Employment Act (FEHA) (Gov. Code, § 12900 et seq.), the
Medical Board had a ministerial duty not to discriminate against
him on the basis of his disability; and that the Medical Board
violated that duty when it refused to provide him a reasonable
accommodation regarding the four-attempt requirement in
section 2177, subdivision (c)(1). Singh sought a writ of mandate
ordering the Medical Board to deem his fifth, successful attempt
to pass Step 3 “sufficient to qualify him for medical licensure” or,
in the alternative, to engage in a good faith interactive process
“to determine effective reasonable accommodations for his
disability.” Singh also asserted three causes of action seeking
that same relief as an injunction: violation of Title II of the ADA,
violation of section 504 of the Rehabilitation Act, and
discrimination under FEHA.
The trial court sustained a demurrer by the Medical Board
to the cause of action seeking a writ of mandate on the ground it
failed to state facts sufficient to constitute a cause of action. In
5
particular, the court concluded Singh had “not alleged a
ministerial duty owed by [the Medical Board] to issue him a
medical license, provide a reasonable accommodation, or engage
in interactive process with respect to the four-attempt rule under
section 2177[, subdivision (c)], the ADA, the Rehabilitation Act,
[FEHA], or 42 U.S.C. section 1983.” Concluding that Singh had
three opportunities “to plead a writ claim” and that his opposition
to the demurrer failed to show a reasonable probability he could
amend to do so, the court denied him leave to amend.
In a separate proceeding, the trial court also sustained a
demurrer by the Medical Board to the remaining three causes of
action on the ground they did not state facts sufficient to
constitute a cause of action. The court agreed with the Medical
Board that Singh had “not sufficiently alleged that he is a
qualified individual to state each cause of action because he has
not met the licensing board’s essential eligibility requirements for
applicants.” Here, too, the court denied leave to amend. The
court signed and filed an order dismissing the case, from which
Singh timely appealed. (See Code Civ. Proc., § 581d.)
DISCUSSION
A. Standard of Review
On appeal from an order sustaining a demurrer, we
examine the petition and complaint de novo “‘to determine
whether it alleges facts sufficient to state a cause of action under
any legal theory, such facts being assumed true for this purpose.’”
(Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 42; accord, International
Brotherhood of Teamsters, Local 848 v. City of Monterey Park
6
(2019) 30 Cal.App.5th 1105, 1109; see SJJC Aviation Services,
LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1051 [“[o]ur
review is governed by settled standards, which apply equally
whether a demurrer challenges a complaint or a petition”]; Jones
v. Omnitrans (2004) 125 Cal.App.4th 273, 277 [“[o]n appeal from
a dismissal entered after an order sustaining a demurrer to a
petition for writ of mandate, we review the order de novo,
determining independently whether the petition states a cause of
action as a matter of law”].) “‘“[I]t is error for a . . . court to
sustain a demurrer when the plaintiff has stated a cause of action
under any possible legal theory.”’” (Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1201.) “‘We deem to be
true all material facts that were properly pled, as well as all facts
that may be inferred from those expressly alleged.’”
(International Brotherhood, at p. 1109.)
B. The Trial Court Erred in Sustaining the Demurrer to
Singh’s Causes of Action Under the ADA, the
Rehabilitation Act, and FEHA
Singh argues that he alleged sufficient facts to constitute
causes of action for violation of the ADA, the Rehabilitation Act,
and FEHA. The Medical Board argues he did not. He did.
1. Singh Alleged Sufficient Facts To Constitute
Causes of Action for Violation of the ADA and
the Rehabilitation Act
Under Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
7
discrimination by any such entity.” (42 U.S.C. § 12132; see K.M.
ex rel. Bright v. Tustin Unified School Dist. (9th Cir. 2013)
725 F.3d 1088, 1096.) “‘To state a claim of disability
discrimination under Title II, the plaintiff must allege four
elements: (1) the plaintiff is an individual with a disability;
(2) the plaintiff is otherwise qualified to participate in or receive
the benefit of some public entity’s services, programs, or
activities; (3) the plaintiff was either excluded from participation
in or denied the benefits of the public entity’s services, programs,
or activities, or was otherwise discriminated against by the public
entity; and (4) such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff’s disability.’” (In re
M.S. (2009) 174 Cal.App.4th 1241, 1252; see E.R.K. ex rel. R.K. v.
Hawaii Dept. of Educ. (9th Cir. 2013) 728 F.3d 982, 992 (E.R.K.).)
A prima facie case for disability discrimination under section 504
of the Rehabilitation Act “is identical, except that the plaintiff
must also prove that the relevant program receives federal
financial assistance.” (E.R.K., at p. 992; see Lovell v. Chandler
(9th Cir. 2002) 303 F.3d 1039, 1052 [“The ADA applies only to
public entities, whereas the [Rehabilitation Act] proscribes
discrimination in all federally-funded programs.”].) In fact,
“‘there is no significant difference in the analysis of rights and
obligations created by’” section 504 of the Rehabilitation Act and
Title II. (K.M. ex rel. Bright, at p. 1098.)
The “‘ADA’s broad language brings within its scope
anything a public entity does’” (Hason v. Medical Bd. of
California (9th Cir. 2002) 279 F.3d 1167, 1172-1173), including
licensing by the Medical Board. (See id. at p. 1173 [the Medical
Board’s “medical licensing clearly falls within the scope of
Title II”]; 28 C.F.R. §§ 35.130(b)(6) [a “public entity may not
8
administer a licensing . . . program in a manner that subjects
qualified individuals with disabilities to discrimination on the
basis of disability”], 35.130(b)(8) [a “public entity shall not impose
or apply eligibility criteria that screen out or tend to screen out
an individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program,
or activity, unless such criteria can be shown to be necessary for
the provision of the service, program, or activity being offered”].)
And the Medical Board does not dispute it receives federal
financial assistance or otherwise contend the Rehabilitation Act
does not apply to the Medical Board’s licensing program.
The Medical Board challenges only the second element of
the four elements Singh must allege to establish the Medical
Board violated Title II and the Rehabilitation Act, i.e., that he is
“otherwise qualified” to receive a medical license from the
Medical Board. But Singh alleged that element sufficiently to
state a cause of action.
a. The “Otherwise Qualified” Element
Under both Title II of the ADA and the Rehabilitation Act,
a person with a disability is “qualified” to receive government
benefits or services or to participate in a government program or
activity if the person “is one who, ‘with or without reasonable
modifications to rules, policies, or practices, . . . meets the
essential eligibility requirements’ for such benefits, services, or
participation.” (Fry v. Saenz (2002) 98 Cal.App.4th 256, 263
(Fry); see 42 U.S.C. § 12131(2) [Title II definition of “[q]ualified
individual with a disability”].) Borrowing language from Title I
of the ADA, which concerns employment discrimination and
defines a qualified individual “in terms of employment”
9
(Mary Jo C. v. New York State & Local Retirement System
(2d Cir. 2013) 707 F.3d 144, 169 (Mary Jo C.),2 courts explaining
the elements of a Title II claim often state that “otherwise
qualified” means the person with a disability can meet the
essential eligibility requirements of the services at issue “with or
without reasonable accommodation.” (See, e.g., Estate of Martin
v. California Dept. of Veterans Affairs (9th Cir. 2009) 560 F.3d
1042, 1047; Zukle v. Regents of University of California (9th Cir.
1999) 166 F.3d 1041, 1046 (Zukle); see also Wong v. Regents of
University of California (9th Cir. 1999) 192 F.3d 807, 816, fn. 26
(Wong) [“Although Title II of the ADA uses the term ‘reasonable
modification’ rather than ‘reasonable accommodation,’ these
terms do not differ in the standards they create.”].)
Title II’s definition of a “qualified” person with a disability
“thus distinguishes between two categories of requirements:
(1) rules, policies, or practices, which are subject to the
requirement of reasonable modification, and (2) essential
eligibility requirements, which are not.” (Mary Jo C., supra,
707 F.3d at pp. 155-156.) “Cases interpreting the ‘essential
eligibility requirement’ language indicate that whether an
2 “Title I’s definition speaks in terms of employment: ‘As
used in [Title I,] . . . “qualified individual” means an individual
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.’ [Citation.] But Title II defines the
same term instead as an individual who ‘meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity.’” (Mary Jo C., supra, 707 F.3d at p. 169, citing 42 U.S.C.
§§ 12111(8), 12131(2); see Wong v. Regents of University of
California (9th Cir. 1999) 192 F.3d 807, 816, fn. 26.)
10
eligibility requirement is essential is determined by consulting
the importance of the requirement to the program in question.”
(Id. at p. 157; see Fry, supra, 98 Cal.App.4th at p. 264
[“A program eligibility requirement which could discriminate
against the disabled may be deemed essential only if the
program’s purposes could not be achieved without the
requirement.”]; Pottgen v. Missouri State High School Activities
Assn. (8th Cir. 1994) 40 F.3d 926, 929 (Pottgen) [age limit was an
essential eligibility requirement in a high school baseball
program because of the requirement’s “immense importance” to
the program].)3
“This reading is re[i]nforced by the regulations
implementing the relevant section of the ADA, which require
‘[a] public entity [to] make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity.’ [Citation.] The regulations indicate that ‘essential
eligibility requirements’ are those requirements without which
the ‘nature’ of the program would be ‘fundamentally alter[ed].’”
(Mary Jo C., supra, 707 F.3d at p. 158, citing 28 C.F.R.
§ 35.130(b)(7); see Castle v. Eurofresh, Inc. (9th Cir. 2013)
731 F.3d 901, 910 [“Federal law requires public entities to ‘make
reasonable modifications in policies, practices, or procedures
3 The court in Pottgen conducted this analysis, at least in
part, under section 504 of the Rehabilitation Act, but stated the
analysis “necessarily affect[ed]” and was “[c]onsistent with” the
court’s analysis under Title II of the ADA. (Pottgen, supra,
40 F.3d at pp. 929-931.)
11
when the modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the
nature of the service, program, or activity.’”]; Pottgen, supra,40 F.3d at p. 930 [age limit was an essential eligibility
requirement because waiving it “would constitute a fundamental
alteration in the nature of the baseball program”].)
Stated another way, an eligibility requirement is not
“essential” if a “reasonable accommodation” to the requirement
would enable the person to qualify for the benefit (McElwee v.
County of Orange (2d Cir. 2012) 700 F.3d 635, 643; Marshall v.
New York State Public High School Athletic Assn., Inc. (W.D.N.Y.
2017) 290 F.Supp.3d 187, 199 (Marshall))—where “reasonable
accommodation” means an accommodation that does not impose
on the program “‘undue financial and administrative burdens’” or
require a “‘fundamental alteration in the nature of [the]
program.’” (Pottgen, supra, 40 F.3d at p. 930; see E.R.K., supra,
728 F.3d at p. 993 [accommodation was not reasonable because it
“would represent a ‘fundamental’ change” for the program];
Mark H. v. Hamamoto (9th Cir. 2010) 620 F.3d 1090, 1098
[“Reasonable accommodation does not require an organization to
make fundamental or substantial alterations to its programs.”];
Wong, supra, 192 F.3d at p. 817 [an accommodation is not
“reasonable” if it would “substantially alter” the program]; see
also E.R.K., at p. 992 [under the ADA and the Rehabilitation Act,
“a plaintiff who requires an accommodation to meet a program’s
essential eligibility requirements can establish the ‘otherwise
qualified’ element of the prima facie case only by producing
‘evidence of the existence of a reasonable accommodation’”].)
“‘Accordingly, the “reasonableness” of an accommodation and the
12
“essentialness” of an eligibility requirement are inextricably
intertwined and must be examined together.’” (Marshall, at
p. 199; see Castellano v. City of New York (S.D.N.Y. 1996)
946 F.Supp. 249, 254 [“When reviewing a challenge to the
eligibility requirements of a program, a court must first review
each eligibility requirement to determine whether or not the
requirement is essential—which entails determining whether an
accommodation is reasonable—and then must determine whether
the individual has met those requirements that are essential.”].)
Thus, “[t]he question whether a particular accommodation
is reasonable ‘depends on the individual circumstances of each
case’ and ‘requires a fact-specific, individualized analysis of the
disabled individual’s circumstances and the accommodations that
might allow him to meet the program’s standards.’” (Vinson v.
Thomas (9th Cir. 2002) 288 F.3d 1145, 1154; accord, Mark H. v.
Hamamoto, supra, 620 F.3d at p. 1098; see Martinez v. County of
Alameda (N.D.Cal. 2021) 512 F.Supp.3d 978, 985 (Martinez)
[“determining whether a modification is reasonable or would
result in a fundamental alteration ‘is an intensively fact-based
inquiry’”]; Marshall, supra, 290 F.Supp.3d at p. 199 [the question
“‘requires a fact-specific, case-by-case inquiry, not only into the
benefits of the accommodation but into its costs as well’”].)
Moreover, a public entity’s assertion that a requested
accommodation is unreasonable “is an affirmative defense for
which the asserting public entity bears the burden of proof.”
(Martinez, at pp. 984-985; see Hindel v. Husted (6th Cir. 2017)
875 F.3d 344, 347 [“‘Fundamental alteration’ is an affirmative
defense under the ADA providing that governmental entities
need not accommodate disabled individuals if doing so ‘would
result in a fundamental alteration in the nature of a service,
13
program, or activity or in undue financial and administrative
burdens.’”]; K.M. ex rel. Bright v. Tustin Unified School Dist.,
supra, 725 F.3d at p. 1096 [“[t]he public entity has the burden to
prove that a proposed action would result in undue burden or
fundamental alteration”].)
For these reasons, a public agency’s contention that a
requested accommodation is unreasonable is “typically fact-based
and not capable of resolution on the basis of the pleadings alone.”
(Hindel v. Husted, supra, 875 F.3d at p. 347; see Mary Jo C.,
supra, 707 F.3d at p. 153 [“It is a factual issue ‘whether [a]
plaintiff[’s] proposed modifications . . . amount to “reasonable
modifications” which should be implemented, or “fundamental
alterations,” which the state may reject.’”]; Crowder v. Kitagawa
(9th Cir. 1996) 81 F.3d 1480, 1485 [whether the plaintiff’s
proposed accommodations constituted reasonable modifications
or fundamental alterations could not be determined as a matter
of law and required findings of fact].) “Case law and ADA
regulations underscore that whether a requested policy
modification . . . would result in a fundamental alteration or
undue burden is a fundamentally factual question, inappropriate
for disposition prior to discovery.” (Martinez, supra,
512 F.Supp.3d at p. 985.)4
4 Citing Fry, supra, 98 Cal.App.4th 256 at pages 264-265, the
Medical Board asserts there are “two different approaches to
resolve challenges to governmental entities’ decisions to deny
benefits or services in reliance on rules alleged to be essential
eligibility requirements”—a “program-based approach” and an
“individual-based approach”—and the Medical Board urges us to
adopt the former. To the extent that acknowledging there are in
fact two different approaches or adopting a “program-based
14
b. Analysis
Singh alleged his proposed accommodations—including
that the Board allow his fifth, successful attempt at Step 3 of the
USMLE to qualify him for medical licensure—are reasonable.
That factual allegation is one that at this stage we generally
must accept as true.5 (See Mathews v. Becerra (2019) 8 Cal.5th
756, 762 [in determining whether the complaint states facts
sufficient to constitute a cause of action, “we must accept the
facts pleaded as true”]; see also Martinez, supra, 512 F.Supp.3d
at p. 984 [“On a motion to dismiss [under Federal Rules of Civil
Procedure, rule 12(b)(6)], all factual claims—such as [plaintiff’s]
claim that the accommodation she requested was reasonable—
must be accepted as true.”].) And because we accept the
allegation as true, Singh sufficiently alleged he is “otherwise
approach” is inconsistent with our discussion of the law, we
decline to do either.
5 Rodrigo v. Carle Foundation Hospital (7th Cir. 2018)
879 F.3d 236, on which the Medical Board heavily relies and
which affirmed a summary judgment on a developed factual
record (id. at pp. 242-244), is distinguishable for this reason. It is
also distinguishable because it concerned an ADA claim in the
employment context, not the licensing context, and therefore the
court had to determine whether the examination requirement at
issue was an “essential function” of the plaintiff’s job, not
whether it was an essential eligibility requirement. To make
that determination, the court applied an analysis that is not
applicable here. (See id. at p. 242 [“In determining whether a
particular duty is an essential function, we consider the
employer’s judgment, the employee’s written job description, the
amount of time the employee spends performing that function,
the consequences of not requiring the employee to perform the
function, and the experiences of past and current workers.”].)
15
qualified” under Title II of the ADA and the Rehabilitation Act to
receive a medical license from the Board. (See E.R.K., supra,
728 F.3d at p. 992.)
The Medical Board makes a number of unpersuasive
arguments that Singh is not “otherwise qualified” as a matter of
law. Several of these—for example, that Singh “concedes . . . he
does not satisfy the requirements of . . . sections 2177 or 2135.5,”
that the requirements in those sections are “unambiguous” and
“mandatory” and give the Medical Board no discretion to create
an exception for Singh, and that Singh’s requested
accommodation was unreasonable as a matter of law because he
made it “after he became disqualified by operation of law”—all
rest on the same faulty premise: that the four-attempt rule is an
essential eligibility requirement (and any modification of it would
be an unreasonable accommodation) because it is statutory. But
“statutes are no more immune to judicial scrutiny for ADA
compliance than are rules or regulations.” (Fry, supra,
98 Cal.App.4th at p. 264.) And where an eligibility requirement
is not “essential” as discussed, “the fact that it is embodied in a
statute . . . makes no difference.” (Ibid; see, e.g., Crowder v.
Kitagawa, supra, 81 F.3d at p. 1486 [remanding for a
determination whether the plaintiffs’ proposed modifications to
Hawaii’s statutory quarantine for service dogs were reasonable
under the ADA].)
Citing Zukle, supra, 166 F.3d 1041, the Medical Board
argues its decisions that it had “to enforce the four-attempt
requirement, that Singh is not otherwise qualified, and that no
reasonable accommodation exists,” are “entitled to deference.”
But Zukle addressed ADA and Rehabilitation Act claims
concerning academic decisions made by an educational
16
institution. (Id. at p. 1042.) And in that context the Ninth
Circuit held that, although “the ultimate determination of
whether an individual is otherwise qualified must be made by the
court,” a court should “extend judicial deference ‘to the evaluation
made by the institution itself, absent proof that its standards and
its application of them serve no purpose other than to deny an
education to handicapped persons.’” (Id. at pp. 1047-1048; see id.
at p. 1048 [such deference extends to the determination that no
reasonable accommodation is available].) But even assuming a
similar deference applies to the determinations of a public agency
in the context of licensing decisions, Zukle makes clear that such
deference does not apply where, as here, the court is evaluating
the sufficiency of a plaintiff’s allegations. As the court in Zukle
emphasized: “The educational institution has a ‘real obligation
. . . to seek suitable means of reasonably accommodating a
handicapped person and to submit a factual record indicating
that it conscientiously carried out this statutory obligation.’” (Id.
at p. 1048.)
The Medical Board also suggests that modifying the four-
attempt rule would, as a matter of law, fundamentally alter its
licensing program. In support of this suggestion the Medical
Board cites various editions of and supplements to the Technical
Assistance Manual (TAM) issued by the United States
Department of Justice, which provides guidance on the
requirements of Title II of the ADA.6 The Medical Board quotes
6 Because Congress delegated authority to promulgate
regulations under Title II of the ADA to the Attorney General
(Mary Jo C., supra, 707 F.3d at pp. 169-170), the views of the
Department of Justice on implementing Title II “warrant respect”
17
passages stating that a “public entity does not have to lower or
eliminate licensing standards that are essential to the licensed
activity to accommodate an individual with a disability” (TAM
(1993) § II-3.7200) and that “[a]n essential eligibility requirement
for obtaining a license to practice medicine is the ability to
practice medicine safely and competently” (TAM (1994 supp.)
§ II-3.5300). But those provisions do not answer the question at
issue in this case: Is the four-attempt rule an “essential”
eligibility requirement for practicing medicine safely and
competently? Or, conversely, could it be modified in the way
Singh proposes without fundamentally altering the Medical
Board’s program? As the TAM provides, in a passage quoted for
some reason by the Medical Board, “Whether a specific
requirement is ‘essential’ will depend on the facts of the
particular case.” (TAM (1993) § II-3.7200.) Exactly.
The Medical Board also cites legislative history of section
2177 that the Medical Board asserts “reflects that the statute
was changed [in 2006] from an unlimited number of attempts
within a ten-year period to a limit of four attempts because it had
been shown that applicants who took the national examination
several times before they passed were more likely to become
substandard physicians practicing medicine.” But as the Medical
Board concedes, the history it cites “does not identify a specific
number of attempts that are likely to predict substandard
(Olmstead v. L.C. ex rel. Zimring (1999) 527 U.S. 581, 597-598
[119 S.Ct. 2176, 144 L.Ed.2d 540]). In particular, “the TAM itself
is entitled to substantial deference.” (Miller v. California
Speedway Corp. (9th Cir. 2008) 536 F.3d 1020, 1028; see ibid.[“‘The guidance provided in the technical assistance manual is an
interpretation of the DOJ’s regulation and, as such, is entitled to
significant weight as to the meaning of the regulation.’”].)
18
performance or data to support the conclusion that an applicant
who passes in five attempts is more likely to perform below the
standard of care than an applicant who passes in four attempts.”
The legislative history therefore does not establish that the
accommodation Singh proposes would modify a requirement that
is “essential” to ensuring that licensees practice medicine safely
and competently or would otherwise fundamentally alter the
Medical Board’s licensing program.
Finally, the Medical Board cites two cases it appears to
suggest stand for the proposition that any “relaxation of its
license qualifications is not a reasonable accommodation” as a
matter of law. Both are distinguishable. In the first, Harris v.
Mills (2d Cir. 2009) 572 F.3d 66 (Harris), a state medical board
revoked and refused to restore the plaintiff’s medical license after
finding he engaged in fraud and other improper practices. (Id. at
pp. 68, 70.) He sued the medical board under Title II of the ADA
and the Rehabilitation Act, alleging, among other things, the
board did not reasonably accommodate his learning disabilities
because it denied him an “‘understanding of the impact of [his]
disabilities.’” (Harris, at pp. 70-71, 74.) The court in Harris
concluded the plaintiff had not stated “a reasonable
accommodation claim.” (Id. at pp. 74, 76.)
But in doing so, the court in Harris explained: “Even read
liberally, [the] complaint does not . . . identify how [the plaintiff’s]
disabilities affected the behavior that caused the revocation of his
license, nor how those disabilities could be accommodated to
reform this behavior. [The plaintiff] thus alleges, at core, that if
only the defendants would ‘understand’ the impact of his
disabilities, they would be willing to overlook the actions that
caused him to lose his license in the first place. Generally
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construed, this allegation amounts only to the contention that
[the plaintiff’s] medical licensing qualifications should be relaxed
in light of his disability.” (Harris, supra, 572 F.3d at p. 74; see
ibid. [because the plaintiff “asks only for the state’s
‘understanding’ of the reasons why he committed those actions
[that resulted in the loss of his license], he cannot demonstrate
that he is ‘otherwise qualified’ for a medical license”].) In
contrast, Singh’s allegations identify how his alleged disability
affected his inability to meet the four-attempt rule and how the
Medical Board could reasonably accommodate that disability. He
has not, like the plaintiff in Harris, proposed that the Medical
Board simply “relax” its requirement he must be qualified to
practice medicine.
The second case, Block v. Texas Board of Law Examiners
(5th Cir. 2020) 952 F.3d 613, concerned a law-licensing rule in
Texas providing that out-of-state attorneys can be admitted to
the State Bar of Texas without taking the Texas bar examination
“if they (1) have actively practiced law for at least five of the last
seven years (the ‘active practice requirement’); (2) have a J.D.
from an approved law school; and (3) have not previously failed
the Texas bar exam.” (Id. at pp. 615-616.) After the plaintiff, a
licensed Louisiana lawyer whose disability forced him to stop
practicing law more than 10 years before, took and failed the
Texas bar examination, he applied without examination,
“explaining that his disability prevented him from satisfying the
active practice requirement.” (Id. at p. 616.) The Texas Board of
Law Examiners (TBLE) denied his application, and he sued,
alleging, as relevant here, “TBLE’s refusal to waive [the active
practice requirement] for him” violated Title II of the ADA.
(Block, at p. 616.) The court in Block concluded the plaintiff had
20
not stated a claim under Title II because the modification he
sought—waiver of the active practice requirement—was not a
reasonable one. (Block, at pp. 618-619.)
But as the analysis in Block suggests, the accommodation
sought by the plaintiff there was, in essence, that there be no
eligibility requirement for him. As the court explained: “TBLE
protects the integrity of its bar by requiring applicants to either
pass the Texas bar exam or meet the three requirements for
admission without examination. The active practice requirement
ensures that applicants have both achieved and maintained the
skill and knowledge required to practice law in Texas. Waiving it
to admit a lawyer who has neither passed the Texas bar exam
nor practiced law for thirteen years would not inform TBLE of a
vital fact: does [the plaintiff] currently have the necessary
knowledge and skill to practice law?” (Block, supra, 952 F.3d at
pp. 618-619.) Here, in contrast, Singh has not proposed the
Medical Board waive the requirement that he pass Step 3 of the
USMLE, only that it modify the four-attempt rule to
accommodate his disability (by accepting his passing grade on the
fifth attempt), and the Medical Board has not shown that this
accommodation is unreasonable as a matter of law.
2. Singh Alleged Sufficient Facts To Constitute a
Cause of Action for Violation of FEHA
Singh also alleged the Medical Board discriminated against
him based on a disability in violation of FEHA, specifically,
Government Code section 12944, subdivision (b), which provides:
“It shall be unlawful for a licensing board to fail or refuse to make
reasonable accommodation to an individual’s mental or physical
disability or medical condition.” Arguing FEHA and
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“interrelated” state law “incorporate[ ] the protections of Title II
for State-sponsored programs and activities” (see Cuiellette v.
City of Los Angeles (2011) 194 Cal.App.4th 757, 770, fn. 2 [“FEHA
is intended to be independent of, and provide greater protection
than, the ADA”]), the Medical Board asserts that “the same
analysis” applies to Singh’s allegations under FEHA. It does.
(See Ravel v. Hewlett-Packard Enterprise, Inc. (E.D.Cal. 2017)
228 F.Supp.3d 1086, 1095 [“courts have often ‘analyze[d] . . .
[FEHA] and federal disability claims together, relying on federal
authority in the absence of contrary or differing state law’”]; see
also Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001)
239 F.3d 1128, 1133, fn. 6 [“Because the FEHA provisions
relating to disability discrimination are based on the ADA,
decisions interpreting federal anti-discrimination laws are
relevant in interpreting the FEHA’s similar provisions.”].) The
Medical Board’s challenges to Singh’s cause of action under
FEHA fail for the same reasons its challenges to Singh’s causes of
action under Title II and the Rehabilitation Act fail.
C. The Trial Court Did Not Err in Sustaining the
Demurrer to Singh’s Petition for Writ of Mandate
“‘Code of Civil Procedure section 1085, providing for writs
of mandate, is available to compel public agencies to perform acts
required by law. [Citation.] To obtain relief, a petitioner must
demonstrate (1) no “plain, speedy, and adequate” alternative
remedy exists [citation]; (2) “‘a clear, present, . . . ministerial duty
on the part of the respondent’”; and (3) a correlative “‘clear,
present, and beneficial right in the petitioner to the performance
of that duty.’” [Citations.] A ministerial duty is an obligation to
perform a specific act in a manner prescribed by law whenever a
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given state of facts exists, without regard to any personal
judgment as to the propriety of the act.’” (International
Brotherhood of Teamsters, Local 848 v. City of Monterey Park,
supra, 30 Cal.App.5th at p. 1111; see Kavanaugh v. West Sonoma
County Union High School Dist. (2003) 29 Cal.4th 911, 916
[‘“A ministerial act is an act that a public officer is required to
perform in a prescribed manner in obedience to the mandate of
legal authority and without regard to his own judgment or
opinion concerning such act’s propriety or impropriety, when a
given state of facts exists.”’].)
In the Medical Board’s demurrer to Singh’s cause of action
seeking a writ of mandate, the Medical Board asserted that Singh
failed “to allege facts sufficient to establish that [the Medical
Board has] a clear, present, and ministerial duty under [Title II
of the ADA, the Rehabilitation Act, or FEHA] to provide a
reasonable accommodation and engage in the interactive process
in order to enable [Singh] to be considered for a medical
license. . . . [S]uch actions require the exercise of judgment and
discretion . . . .” The Medical Board also asserted that Singh
failed “to allege facts sufficient to establish that he has a clear,
present and beneficial right in the performance of the duty.”
The Medical Board did not support these assertions with
any argument or citation to legal authority in its memorandum of
points and authorities. Neither the Medical Board nor Singh
discussed in the trial court, or discuss on appeal, whether,
assuming Singh stated causes of action for disability
discrimination, the Medical Board did or did not have a
ministerial, nondiscretionary duty to grant Singh the relief he
seeks. Indeed, the accommodation Singh requests, either count
his fifth test as his fourth test or allow him to take the test again,
23
would require the Medical Board to make a choice; i.e., to
exercise discretion.
It is hard to see how the Medical Board could have a
ministerial, nondiscretionary duty to act in the manner (or in one
of two manners) requested by Singh. Singh has not articulated
how or why the Medical Board would have such a duty, nor has
he shown he could amend his complaint to make such an
allegation. Thus, the trial court did not err in sustaining the
Medical Board’s demurrer to Singh’s cause of action for a writ of
mandate. (See Common Cause v. Board of Supervisors (1989)
49 Cal.3d 432, 442 [“Mandamus will not lie to control an exercise
of discretion, i.e., to compel an official to exercise discretion in a
particular manner.”]; Ochoa v. Anaheim City School Dist. (2017)
11 Cal.App.5th 209, 223, fn. 3 [“‘A writ cannot be used to control
a matter of discretion.’”]; Wilson v. Board of Retirement of Los
Angeles County Employees Retirement Assn. (1957)
156 Cal.App.2d 195, 213 [trial court did not err in sustaining a
demurrer to causes of action for writs of mandamus where “no
mandatory duty has been shown to exist on . . . the respondent
boards to perform the acts for which the writs were sought”]; see
also Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081
[“The plaintiff has the burden of proving that an amendment
would cure the defect.”].)
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DISPOSITION
The trial court’s order dismissing the case is reversed. The
trial court is directed to vacate its orders sustaining the Medical
Board’s demurrers, and to enter a new order overruling the
demurrers to Singh’s causes of action for violation of the ADA,
the Rehabilitation Act, and FEHA and sustaining the demurrer
to Singh’s cause of action for a writ of mandate without leave to
amend. Singh is to recover his costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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