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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

,

Plaintiff and Appellant

,

v.

WILLIAM J. PRASIFKA

, in his official capacity as Executive Director of the Medical Board of California et al.,

Defendant s and Respondent s

. B 302113

(Los Angeles County Super. Ct. No. B S173944 )

APPEAL from a judgment of the Superior Court of
Los A ngeles County, Mary H. Strobel and Barbara M. Scheper

, Judge s

. 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 and2

Claudia Morehead, Deputy Attorneys General for Defendan t s and Respondent s

.

__________

____________________

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 th e 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 de murrers 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 Learnin g 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

pro gram 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 201 6

. In 2017, while Singh was preparing to take the Step 3 test

a fifth time, his tutor observed Sing h “ 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 calm ing 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 pas sing 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
f our

- attempt rule: “ Notwithstanding paragraph (1), an applicant who obtains a pas sing 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 physic ian ’ 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 qualif y for the exception to the four

- attempt rule. In November 2017 Singh wrote the Medical Board . He

s tat ed 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 Disabilit ies Act (ADA) required the Medical Board to provide him “a reasonable accommodatio n ” to the four

attempt rule in section 2177 . He proposed, as a n accommodation,
that the Medical Board accept the passing score he received on his fifth attempt or, alternativel y, 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 ind ividual 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 T

his Action, and the Trial Court Sustains
Demurrer s 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 t he operative, second amended petition and complaint , Singh alleged
that he had a “medical disability ,” namely, “performance

- related anxiety” ; tha t 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 U nited 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 refuse d to provide him a reasonable
accommodation regarding the four

- attempt requireme nt in section 2177, subdivision (c)(1). Singh sought a writ of mandate ordering the Medical Board to deem hi s 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 actio n seeking
that same r elief 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

. In6

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 u nder section 2177[, subdivision (c)], the ADA, the Re habilitation Act, [FEHA], or 42 U.S.C. section 1983.” Concluding that Singh had three opportunities “to plead a writ claim” and t hat 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 cause s 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, t he court denied leave to amend. The

court signed and filed an order dismissing the case, from which Singh timely appealed. (See Code Civ. Proc., § 5 81d.)

DI S CUSSION

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 the ory, 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 Park7

(2019) 30 Cal.App.5 th 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) 12 5 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 fact s 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 Const itute 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 service s, programs, or activities of a public entity, or be subjected to8

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 disabi lity
discri mination under Title II, the plaintiff must allege four elements: (1) the plaintiff is an in dividual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity ’ s service s, programs, or activit ies; (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
di scrimination 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 cr eated by ’ ” section 504 of the Rehabilitation Act and
Title II. (

K.M. ex rel. Bright , at p. 1098 .)
T he “ ‘ 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 . (S ee 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 not9

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

. T he 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 emp loyment 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 exp laining
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

. ” ( S ee, e.g., Estate of Martin v. California Dept. of Veterans Affairs (9th Ci r. 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 categ ories of requirements: (1) rules, policies, or practices, which are subject to the requirement of r easonable 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 Univers ity 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
Ass n. (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 implem enting 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

ent ity can demonstrate that making the modifications would fundamentally alter the nature of the s ervice, 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 modifi cations in policies, practices, or procedures

3 The court in Pottgen conducted this ana lysis, at least in part, under s ection 504 of the Rehabilitation Act, but stated th e 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 p p. 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 servic e, 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 Publi c High School Athletic Ass n

. , Inc. (W.D.N.Y. 2017) 290 F.Supp.3d 187, 199 ( Marshall ) )

— where “reasonable
accommodation” mean s an accommodation that does not impose on the program “ ‘ undue financial and administrative burdens ’ ” or require a “ ‘ fundamental alte ration 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 accommo dation 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 the13

“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. Coun ty 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 34 4, 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] plain tiff[’s] proposed modifications

. . . amount to “reasonable modifications” which should be implemented, or “fundamental alterations,” which the state may reject.’”]; Crowder v. Kitagawa (9th Ci r. 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

regu lations 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. 98 5.) 4

4 Citing Fry

, supra , 98 Cal.App.4th 256 at pages 26 4

- 265, t he 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 a pproach ”

— 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

- based15 b. Analysis Singh alleged his proposed accommodations

— including
that the Board allow his fi fth, 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 gen erally

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 Rule s 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 th e allegation as true, Singh sufficiently alleged he is “o therwise

approach” is inconsistent with our discussion of the law, we decline to do either.

5 R odrigo 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 , n ot whether it was an essential eligibility requirement . To make that determination, the court applied an analysi s that is not applicable here. (See id

. at p. 242 [“ In determining whether a particular duty is an essential function, we consider the employe r’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.)
T he Medical Board makes a number of un persuasive 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 Sing h ’s request ed
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 statut ory

. 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 a n eligibility requirement is not “essential” as discussed , “the fact that it is emb odied in a

statute

. . . mak es 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, t he 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 “ ent itled to deferenc e

. ”
But Zukle addressed ADA and Rehabilitation Act claims concerning academic decisions made by an educational17

institution . ( Id. at p. 1042.) And in that context the Ninth
Circuit held that , although “the ultimate determination of
whethe r 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 th e 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 th at such
deference does not apply whe re , as here

, the court is evaluating the sufficiency of a plaintiff’s allegation s. 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, fundamental ly alter its licensing program. In support of this suggestion the Medical
Board cites various editions of and supplements to the Technical Assistance Manual (TAM) i s sued by the United States Department of Justice

, which provides guidan ce on the requirements of Title II of the ADA

. 6 Th e Medical Board quotes

6 Because Congress delegated authority to promulgat e 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 o f 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 compete ntly” (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 modi fied 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 partic ular 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 practic ing 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 ensu ring 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 i ts license qualifications is not a reasonable accommodation” as a
matter of law. Both are distinguishable. In t he 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 lic ense 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 , a mong 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 c laim.” ( Id. at pp. 74, 76.) But in doing so, t he court in Harris explained: “Even read
libe rally, [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 ‘ understan d’ the impact of his disabilities, they would be willing to overlook the actions that
caused him to lose his lic ense in the first place. Generally20

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

. H e has not, like the plaintiff in Harris

, proposed that the Med ical Board simply “relax” its requirement he must be qualified to practice medicine

. T he 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 o ut

- of

- state attorneys can be admitted to the State Bar of Texas without taking the Texas bar exam ination

“ 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 no t previously failed
the Texas bar exam. ” ( Id. at pp. 615

- 616.) After t he plaintiff, a licensed Louisiana lawyer whose disability forced him to stop practicing law more than 10 years before, took and failed the
Texas bar exam ination

, 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 had21

not stated a claim under Title II because the modification he sought

— waiver of the active practice requi rement

— was not a reasonable one . ( Block , at p p

. 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 t he 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
vit al fact: does [the plaintiff] currently have the necessar y 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 th e requirement that he pass Step 3 of the USMLE, only that it modify the four

- attempt rule to
accommodate his disability (by accept ing his passing grade on the fifth attempt) , and the Medical Board has not shown that this
accommodation is un reasonable as a matter of law.

2. Singh Alleged Sufficient Facts To Constitute a Cause of Action for Violation of FEHA
S ingh also alleg ed 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

r easonable accommodation to an individual ’ s mental or physical disability or medical condition. ” Arguing FEHA and22

“interrelated” state law “incorpor ate[ ] the protections of Title II
for State

- sponsored programs and activities” (see Cuiellette v. City of L os 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 allegation s 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 As s n. (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 interpret ing the FEHA ’ s similar provisions .”].) T he
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 peti tioner 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 a23

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 offic er 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 Boar d’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 Reh abilitation 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 Med ical 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.”
T he Medical Board did not s upport these assertions with any argument or citation to leg al 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 n ot 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 articulate d
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 . T hus, t he 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 Cau se 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, 2 23, fn. 3 [“‘A writ cannot be used to control a matter of discretion.’”]; Wilson v. Board of Retir ement of Los Angeles County Employees Retirement Assn. (1957)

1 56 Cal.App.2d 195, 213 [trial court did not err in sustaining a demurrer to causes of action fo r 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

Th e 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 c osts on appeal.

SEGAL, J.

We concur:

PERLUSS

, P. J.

IBARRA, J. *

* Judge of the Santa Clara County Superior Court, assigned by the Ch ief Jus tice pursuant to article VI, section 6 of the California Constitution.