Singh v. Prasifka

• Decision Date: 22 October 2021
• Docket Number: B302113
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

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

California Court of Appeals, Second District, Seventh Division

October 22, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS173944 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

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Claudia Morehead, Deputy Attorneys General for Defendants and Respondents.

SEGAL, J.

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

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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 (2019) 30 Cal.App.5th 1105, 1109;

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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...