Filed 10/22/21 Singh v. Prasifka CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TAJINDER SINGH,

 Plaintiff and Appellant,

v.

WILLIAM J. PRASIFKA, in his 

official capacity as Executive 

Director of the Medical Board of 

California et al.,

 Defendants and Respondents.

 B302113

 (Los Angeles County

 Super. Ct. No. BS173944) 

 

 

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 
2

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 fourstrikes-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).
3

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. 
4

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 fourattempt 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.” 
5

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 
6

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
7

(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 
8

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 
9

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” 
10

(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.) 
11

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.) 
12

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 
13

“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, 
14

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 
15

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.”].) 
16

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 
17

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 fourattempt 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” 
18

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.’”].)
19

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 
20

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
21

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 
22

“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 
23

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,
24

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.”].)
25

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.