Singh v. Prasifka CA2/7

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

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).

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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.”

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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

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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

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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

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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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