Defendant's Oppsition to Granda's Motion

_____________________________________________________________________________________________ Case No. 09-CV-2015-JAM Opp’n to T.R.O.

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LAWRENCE C. YEE (84208) MARK TORRES-GIL (91597) RACHEL S. GRUNBERG (197080) STATE BAR OF CALIFORNIA OFFICE OF GENERAL COUNSEL 180 Howard Street San Francisco, CA 94105-1639 Telephone: (415) 538-2339 Fax: (415) 538-2321 Email: [email protected] MICHAEL VON LOEWENFELDT (178665) KERR & WAGSTAFFE LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105 Telephone: (415) 371-8500 Fax: (415) 371-0500 Email: [email protected] Attorneys for Defendant The State Bar of California

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

SARA M. GRANDA,

Plaintiff,

v.

THE STATE BAR OF CALIFORNIA,

Defendant.

Case No. 09-CV-2015-JAM DEFENDANTS’ OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION Date: July 24, 2009 Time: 2 p.m. Crtrm: 7 Hon. Morrison C. England, Jr.

Case 2:09-cv-02015-MCE -KJM Document 11 Filed 07/23/09 Page 1 of 14

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TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................ 1

II. FACTUAL BACKGROUND ........................................................................................... 2

A. THE STATE BAR OF CALIFORNIA. .......................................................................... 2

B. DEADLINES AND PROCEDURE FOR APPLYING FOR THE JULY BAR EXAM ............. 3

C. MS. GRANDA REQUESTED ACCOMODATIONS (WHICH WERE GRANTED) BUT NEVER COMPLETED AN ONLINE APPLICATION .............................................. 4

III. ARGUMENT .................................................................................................................... 6

A. THE ELEVENTH AMENDMENT BARS PLAINTIFF’S SUIT AGAINST THE STATE BAR AND ITS BOARD OF GOVERNORS .................................................................... 6

B. THE ONLY JUDICIAL BODY CAPABLE OF HEARING MS. GRANDA’S PETITION IS THE CALIFORNIA SUPREME COURT .................................................... 7

C. MS. GRANDA’S ADA CLAIM LACKS MERIT IN ANY EVENT ................................. 7

IV. CONCLUSION. .............................................................................................................. 10


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TABLE OF AUTHORITIES

Cases

Beth B. v. Van Clay, 211 F. Supp. 2d 1020 (N.D. Ill. 2001) ...................................................................................... 9

Craig v. State Bar of Cal., 141 F.3d 1353 (9th Cir. 1998) .................................................................................................... 7

Dydzak v. State of California, 2009 WL 499745 (C.D. Cal. Feb. 26, 2009) .............................................................................. 6

Fahy v. Justices of the Supreme Court of California, 2008 WL 4615476 (N.D. Cal. Oct. 17, 2008) ............................................................................ 6

Foley v. City of Lafayette, 359 F.3d 925 (7th Cir. 2004) ...................................................................................................... 9

Fradera v. Municipality of Mayaguez, 440 F.3d 17 (1st Cir. 2006) ........................................................................................................ 9

Hirsh v. Justices of the Sup. Ct. of Cal. et al., 67 F.3d 708 (9th Cir. 1995) ........................................................................................................ 6

In re Att’y Discipline Sys., 19 Cal.4th 582 (1998) ................................................................................................................ 2

In re Rose, 22 Cal.4th 430 (2000) ................................................................................................................ 2

Khanna v. State Bar of California, 2009 WL 117889 (9th Cir. Jan. 14, 2009) ................................................................................. 6

Konig v. State Bar of California, 2007 WL 3332809 (9th. Cir. Nov. 8, 2007) ............................................................................... 6

Leis v. Flynt, 439 U.S. 438 (1979) ................................................................................................................... 7

Lupert v. Cal. State Bar, 761 F.2d 1325 (9th Cir. 1985) .................................................................................................... 6

MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969) ...................................................................................................... 6

Mirch v. Beesley, 2009 WL 580709 (9th Cir. Mar. 5, 2009) .................................................................................. 6


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Morris v. State Bar of California, 2008 WL 4067448 (N.D. Cal. Aug. 22, 2008) ........................................................................... 6

Paciulan v. George, 229 F.3d 1226 (9th Cir. 2000) .................................................................................................... 7

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ..................................................................................................................... 6

Rosenthal v. Justices of Supreme Court of State of Cal., 910 F.2d 561 (9th Cir. 1990) ...................................................................................................... 2

Simmang v. Texas Bd. of Law Examiners, 346 F. Supp. 2d 874 (W.D. Tex. 2004) ...................................................................................... 6

Smith & Lee Assoc. Inc. v. City of Taylor, 13 F.3d 920 (6th Cir. 1993) ........................................................................................................ 8

Stern v. University of Osteopathic Medicine and Health Sciences, 220 F.3d 906 (8th Cir. 2000) ...................................................................................................... 8

Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2nd Cir. 2003) ..................................................................................................... 9

Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976 (9th Cir. 1997) ...................................................................................................... 9

Statutes

Cal. Business & Professions Code § 6001 ...................................................................................... 2

Cal. Business & Professions Code § 6060 .................................................................................. 1, 3

Cal. Business & Professions Code § 6060.3 ....................................................................... 1, 3, 7, 8

Cal. Business & Professions Code § 6087 ...................................................................................... 7

Constitutional Provisions

Cal. Constitution, Article VI, § 9 .................................................................................................... 2


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I. INTRODUCTION

Ms. Granda is a recent Davis Law School graduate who wishes to sit for the July 2009

California General Bar Examination. Ms. Granda requested and received reasonable

accommodations from the State Bar in connection with the Examination; these testing

accommodations are not contested by Ms. Granda and are not at issue in this case. What is

before this Court, however, is the issue of her non-compliance with the application requirements

to take the Examination.

The qualifications to take the Bar Examination are set forth by statute. See Cal. Bus. &

Prof. Code § 6060. Notably, an application must be filed with the State Bar by the statutorily

mandated deadline, which in this case was June 15, 2009. See Cal. Bus. & Prof. Code §

6060.3(b)(3) (“An application to take the California bar examination filed … after June 15 for

the July examination shall not be accepted.”)

Applications can either be submitted online or via paper application. Ms. Granda elected

to submit her application online, but never completed the process. Although Ms. Granda was

informed by the State Bar in a letter dated April 23, 2009, that she had yet to apply to take the

Examination (see Granda Decl. Exh. B), the State Bar received no application from Ms. Granda

by the statutory deadline. In fact, to date, the State Bar has no record of Ms. Granda ever

applying to take the exam. The application requirement is more than a mere perfunctory

exercise, it is a statutory requirement. Without the application, Ms. Granda is simply not

registered to take the Examination and the State Bar has no authority or power to override the

mandated qualifications set by the Legislature.

Ms. Granda has now filed the instant federal court action, seeking to have this Court

order the State Bar to let her sit for the upcoming July 2009 Examination. The gravamen of Ms.

Granda’s Complaint is that the State Bar’s on-line application system does not accept an

application without payment by credit card and that this somehow violates Title III of the

Americans with Disabilities Act. Ms. Granda, however, fails to demonstrate a causal connection

between her ADA challenge and her election not to use a credit card.



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The online application website contains clear instructions requiring all online applications

to be accompanied by credit card information, and warning that an application without such

information would not be submitted by the computer system. The same instructions advise that a

successful submission would result in an email confirmation. Ms. Granda, however, chose not to

provide credit card information and complete the process. Accordingly, her application was

never submitted, and she never received a confirmation email.

While Ms. Granda certainly has physical challenges, she does not claim that she had any

difficulty reading or comprehending the application instructions. While she now complains that

the website should excuse some disabled people from this credit card requirement, she never

explains why that would be an accommodation for her physical disabilities. Nor does she

explain how the State Bar could be liable for failing to “accommodate” her by changing the

online application vendor’s website process without her even asking it to do so.

None of these matters, moreover, are properly before the Court. The State Bar (which

has not been properly served in this matter) is a state agency protected from suit in this Court by

the Eleventh Amendment to the United States Constitution. Ms. Granda’s recourse, at this point

is to petition the California Supreme Court, not this Court. For each of these reasons, Ms.

Granda’s motion should be denied.

II. FACTUAL BACKGROUND

A. THE STATE BAR OF CALIFORNIA.

The State Bar of California (“State Bar”) is a constitutional entity, established by Article

VI, section 9 of the California Constitution, and expressly acknowledged as a California judicial

branch agency and an integral part of the judicial function. See Cal. Const., Art. VI, § 9; Cal.

Bus. & Prof. Code § 6001; In re Rose, 22 Cal.4th 430, 438 (2000). It was created as an

administrative arm of the California Supreme Court for the purpose of assisting in matters of

admission and discipline of attorneys. The California Supreme Court retains inherent power to

control all matters related to attorney admissions and discipline. In re Att’y Discipline Sys., 19

Cal.4th 582, 598-599 (1998); Rosenthal v. Justices of Supreme Court of State of Cal., 910 F.2d

561, 566 (9th Cir. 1990).



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B. DEADLINES AND PROCEDURE FOR APPLYING FOR THE JULY BAR EXAM

Persons wishing to become licensed to practice law in California must, in addition to

other requirements, take and pass the Bar Examination. Cal. Bus. & Prof. Code § 6060(g). The

Bar Examination is administered by the State Bar twice a year – in February and in July. The

timeline for submitting an application for the California Bar Exam is established by statute.

California Business and Professions Code section 6060.3 provides, in relevant part, that

applications for the July exam are due April 1, and that late applications will only be accepted

(with a late fee) until June 15, at which point no applications are permitted:

6060.3. (a) An application … to take the California bar examination administered in July must be filed with the examining committee not later than the first business day of the preceding April…

(b) The examining committee may accept applications to take the California bar examination filed after the timely deadlines specified in subdivision (a) from applicants if the application is accompanied by the timely application fee and the late filing fee fixed by the board as follows: … (1) An application to take the California bar examination filed… between the first and last business days of April for the July examination shall be accepted if it is accompanied by the timely filing fee and a late fee not to exceed fifty dollars ($50). (2) An application to take the California bar examination filed between … the last business day of April and June 15 for the July examination shall be accepted if it is accompanied by the timely filing fee and a late fee not to exceed two hundred fifty dollars ($250).

(3) An application to take the California bar examination filed … after June 15 for the July examination shall not be accepted.

Cal. Bus. & Prof. Code § 6060.3(a)-(b) (emphasis added). Although the California Supreme

Court could exercise its inherent authority to accept an application beyond these deadlines, the

State Bar is statutorily prohibited from doing so. Cal. Bus. & Prof. Code § 6060.3(b)(3).

Applications to take the California Bar Examination may be submitted online or on paper

applications. (Declaration of John Rodriguez ¶¶ 2, 7.) The online application process is

handled through a vendor, not directly by the State Bar. (Id. ¶ 4.) Submission of an online

application is, like all online processes, an automated process. Just like booking an airline ticket

or hotel room online, or making an online purchase, if the process is not completed, then the

system does not register the application as having occurred. (Id. ¶¶ 8-10.)



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In order to submit an application online, one must (1) establish an account, (2) select and

complete the application, and (3) pay using a credit card. (Id. ¶ 6.) The instructions clearly

explain that the credit card payment is mandatory to complete the online process: “Your

application will only be submitted if your credit card transaction is authorized. Your

application will not be submitted if your credit card transaction is denied or if you do not

provide a credit card number.” (Id. & Exh. A (emphasis added).)

Applications that are not properly submitted to the vendor are not provided by the vendor

to the State Bar. Thus, if an applicant does not follow the vendor’s procedures as explained on

the website, in the ordinary course of business the State Bar would never learn that an

application was initiated but not completed. (Id. ¶8.)

The instructions also explain that, “If your application is successfully submitted, you will

receive an e-mail confirmation.” (Id. Exh. A.) This confirmation email is automatically

generated by the vendor’s computers, and is similar to confirmation emails from any online

retailer or service provider. (Id. ¶ 9.)

C. MS. GRANDA REQUESTED ACCOMODATIONS (WHICH WERE GRANTED) BUT NEVER COMPLETED AN ONLINE APPLICATION

As she admits in her papers, Ms. Granda requested and received substantial testing

accommodations designed to accommodate her disabilities. (Granda Decl. Ex. B.) She was

clearly told, however, that she would need to “file an exam application,” that the deadline for a

timely application had passed on April 1, 2009, and that the final filing deadline was June 15,

2009. (Id.) Ms. Granda implies – but does not actually say—that the analyst who helped her

with testing accommodations also gave her advice on the application process. Any such

implication is incorrect; the application process is outside of Ms. Johnson’s duties, and she did

not provide any advice to Ms. Granda concerning it. (Declaration of Kecia Johnson ¶¶ 1-4.)

Ms. Granda admits that she visited the State Bar’s vendor’s website (she may not have

known it was a vendor although the vendor is identified in the URL and at the bottom of the

page) to apply for the Examination, and that she read the instructions provided therein. Indeed,



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she submits a copy of those same instructions to the Court. (Granda Decl. Ex. D p. 6; see also

Granda Decl. Exh. C p. 2.) She did not, however, follow those instructions.

Apparently, when Ms. Granda reached the stage in the online application process where

she was supposed to enter credit card information,1 she chose not to do so. (Granda Decl. ¶ 9.)

Ms. Granda seems to have mistakenly believed that she was not required to submit credit card

information to the automated system because the State Department of Rehabilitation had already

paid for her exam. (Id.) Ms. Granda provides no explanation for why she disregarded the very

clear warning on the website that the application would not be submitted without that

information. Nor does she make any claim that she was unable to submit credit card information

because of her disability. She simply chose not to do so because she decided, despite the very

clear instructions otherwise, that it was not necessary.

Because Ms. Granda did not complete the process (by her own admission), the State Bar

never received any application from her for the July 2009 Bar Examination. Indeed, neither the

State Bar nor the vendor’s computers have any record of Ms. Granda preparing – much less

completing and submitting – an application to take the July 2009 Bar Examination. (Rodriguez

Decl. ¶ 17.) She did begin an application for the prior (February 2009) Examination, but never

completed it. (Id. ¶ 16.)

Although the website also explains that an email will be sent confirming a successful

application submission, Ms. Granda obviously received no such email yet did nothing about that.

Anyone who has ever purchased anything online is familiar with the near instantaneous

confirmation email such a process generates. Yet Ms. Granda admits that she waited several

more weeks before ever calling the State Bar to inquire into her application. (Granda Decl. ¶

10.) Again no specific dates are given, so it is impossible to know what, if anything, she did

before the June 15 absolute statutory deadline.

On July 14 –almost a full month after the deadline was passed, Ms. Granda again

telephoned the State Bar and “learned” what she should already have known – that her

1 Nowhere in Ms. Granda’s papers does she explain when she attempted to submit this online application but chose not to complete the process.



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application had not been received. (Granda Decl. ¶ 12.) She waited another full week before

filing this “emergency” lawsuit.

Ms. Granda claims that she “made every effort possible to resolve the situation,” but fails

to inform the Court – as she was informed by the State Bar – that the relevant deadlines are set

by statute and the State Bar has no authority or ability to waive them. (Rodriguez Decl. ¶¶ 18-21

and Exhs. B&C.) Ms. Granda also chose not to petition the California Supreme Court – the only

body with authority to vary these rules – to make an exception in her case.

III. ARGUMENT

A. THE ELEVENTH AMENDMENT BARS PLAINTIFF’S SUIT AGAINST THE STATE BAR AND ITS BOARD OF GOVERNORS

The Eleventh Amendment protects States and their agencies from being sued in federal

court without their consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984). The State Bar of California has repeatedly been held to be immune from suit in federal

court under the Eleventh Amendment. Hirsh v. Justices of the Sup. Ct. of Cal. et al., 67 F.3d

708, 712 (9th Cir. 1995); Lupert v. Cal. State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985); MacKay

v. Nesbett, 412 F.2d 846 (9th Cir. 1969).2

The Eleventh Amendment’s jurisdictional bar applies no matter what relief plaintiffs

seek. Pennhurst, 465 U.S. at 100-01. Title III of the American’s with Disabilities Act provides

no exception to this rule. Simmang v. Texas Bd. of Law Examiners, 346 F. Supp. 2d 874, 883-

885 (W.D. Tex. 2004) (ADA title III claim against bar examiners was barred by the Eleventh

Amendment). Accordingly, Ms. Granda’s claim is barred and should be dismissed.3

2 This rule is so well established that recent cases are all decided without publication. See, e.g., Mirch v. Beesley, 2009 WL 580709 at *1 (9th Cir. Mar. 5, 2009) (mem. disp.); Khanna v. State Bar of California, 2009 WL 117889 at *1 (9th Cir. Jan. 14, 2009) (mem. disp.); Konig v. State Bar of California, 2007 WL 3332809 (9th. Cir. Nov. 8, 2007) (mem. disp.); Dydzak v. State of California, 2009 WL 499745 at * 11 (C.D. Cal. Feb. 26, 2009); Fahy v. Justices of the Supreme Court of California, 2008 WL 4615476 at *2-3 (N.D. Cal. Oct. 17, 2008); Morris v. State Bar of California, 2008 WL 4067448 at *4 (N.D. Cal. Aug. 22, 2008).

3 The State Bar has also not properly been served with the summons in this action; it received papers from Ms. Granda by fax – not a valid method of service. The State Bar does not waive its



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B. THE ONLY JUDICIAL BODY CAPABLE OF HEARING MS. GRANDA’S PETITION IS THE CALIFORNIA SUPREME COURT

The State Bar cannot be sued for “failing” to do something it has no authority to do.

Business and Professions Code section 6060.3 unequivocally prohibits the State Bar from

accepting applications for the July exam filed after June 15. Cal. Bus. & Prof. Code §

6060.3(b)(3). Thus, when she asked the State Bar on July 17 to make an “exception,” (Granda

Decl. Exhs. E&F), it had no power to grant that request.

The California Supreme Court, however, has plenary control over admission of attorneys,

and the timelines set by section 6060.3 do not limit that Court’s power. Cal. Bus. & Prof. Code §

6087. Ms. Granda could have petitioned the California Supreme Court for relief from the

deadlines in Business and Professions Code section 6060.3. She chose not to do so, instead

filing her case in this Court. As a general matter, this Court lacks jurisdiction to review

decisions over whether attorneys are admitted to the bar. Craig v. State Bar of Cal., 141 F.3d

1353, 1354 (9th Cir. 1998). That lack of jurisdiction should be viewed in the larger federalism

context that admission of attorneys is a process where federal power is at its nadir. “Since the

founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the

States and the District of Columbia within their respective jurisdictions.…” Paciulan v. George,

229 F.3d 1226, 1230 (9th Cir. 2000) (quoting Leis v. Flynt, 439 U.S. 438, 442 (1979)). It would

be totally incongruous for this Court to have the power to order the State Bar to disregard

Business and Professions Code section 6060.3 and allow Ms. Granda to take the July bar exam

when the Court has no authority whatsoever over the results of that exam.

C. MS. GRANDA’S ADA CLAIM LACKS MERIT IN ANY EVENT

Irrespective of sovereign immunity and other jurisdictional issues, Ms. Granda’s motion

should be denied because she cannot show a likelihood of success on the merits.

First, by her own admission she did not properly complete the online application process.

The process clearly advised her that her application would not be considered submitted without

objections to the lack of service (and therefore lack of personal jurisdiction over it at this time) by complying with the Court’s order to file a response to Ms. Granda’s motion.



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credit card information, and she chose not to provide that information, thus halting the

application midway. As a result, the State Bar never received a submitted application before the

June 15 statutory deadline (or afterwards for that matter). (Rodriguez Decl. ¶ 17.) After that

date, the State Bar had no authority to accept her application; indeed, it was specifically

prohibited from doing so. Nothing in the ADA requires the State Bar to violate clear statutory

deadlines or to accept late applications that California law expressly provides it “shall not”

accept. Cal. Bus. & Prof. Code § 6060.3(b)(3); see Smith & Lee Assoc. Inc. v. City of Taylor, 13

F.3d 920, 929 (6th Cir. 1993) (city did not fail to make a reasonable accommodation by refusing

to issue a letter of permission regarding plaintiff’s use of its property where the city had no

statutory authority to issue such a letter).

Second, while she purports to describe this as an accommodations issue, Ms. Granda does

not explain how requiring credit card information has anything to do with her disability. She

does not contend that she was physically incapable of providing that information. There is no

suggestion that anything about her disability made that requirement difficult or impossible for

her. Indeed, it would be illogical to so-suggest because she was clearly able to provide the other

requested information. Moreover, Ms. Granda has successfully used the online application

system in the past when she registered as a law student. (Rodriguez Decl. ¶ 13.)

Instead, she chose not to follow the directions because she believed that, having already

had her fee paid by someone else, she should not be required to do so. That choice again has

nothing to do with her disability. She could have easily followed the instructions and then asked

for a refund of any overpayment. Her situation is no different than someone who paid by check

in advance and then decides to complete an online application.

“In order to be a reasonable accommodation, any modifications requested in a program

must be related to the disability.” Stern v. University of Osteopathic Medicine and Health

Sciences, 220 F.3d 906, 908 (8th Cir. 2000). Nothing about the online application process,

including the requirement that credit card information be provided for the computer to treat the

application as complete, was in any way burdensome or discriminatory to Ms. Granda

specifically, or even to people with similar disabilities generally. The coincidence that someone



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else is paying for Ms. Granda’s Bar Examination because she is disabled does not convert a

universally applicable computer requirement she was fully capable of fulfilling into disability

discrimination.4

Third, and finally, Ms. Granda plainly knew about the credit card requirement when she

chose not to follow it, but she did not even ask for a waiver or other purportedly required

accommodation relieving her from it. As a matter of law, an accommodation cannot be

wrongfully denied if it is never requested in the first place. Tsombanidis v. West Haven Fire

Dept., 352 F.3d 565, 579 (2nd Cir. 2003) (“A governmental entity must know what a plaintiff

seeks prior to incurring liability for failing to affirmatively grant a reasonable accommodation.”).

Once again, Ms. Granda seems to have simply assumed that she was not required to follow a

requirement she believed should not be required,5 but made no contemporaneous efforts to verify

her belief or seek to modify the requirement. If she had made a timely inquiry or objection to

being asked to provide a credit card, she would have received a paper application pursuant to the

State Bar’s policy. (Rodriguez Decl. ¶¶ 2, 7.) She could also have complied with the online

application instructions, and then sought a refund. (Id. ¶ 11.)

One does not want to appear to be “attacking” Ms. Granda who has a compelling

personal story. But, Ms. Granda is obviously a very intelligent and educated individual who was

4 Generally applicable fees do not discriminate on the basis of disability, and that a fee waiver is not a reasonable accommodation because it does not accommodate the disability (as opposed to the person’s financial condition). Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976, 979 (9th Cir. 1997).

5 Ms. Granda’s claim that she “relied” on her assumption that State Bar employee Keisha Johnson would somehow complete her application for her also does not state a claim under the ADA. The ADA prohibits discrimination. It does not guarantee against temporary or accidental inconveniencies or accommodation failures. “Isolated acts of negligence by a city employee do not come within the ambit of discrimination against disabled persons proscribed by the ADA.” Foley v. City of Lafayette, 359 F.3d 925, 930-31 (7th Cir. 2004) (interruption of elevator and temporarily snow covered ramp did not violate ADA); Fradera v. Municipality of Mayaguez, 440 F.3d 17, 23 (1st Cir. 2006) (accord); Beth B. v. Van Clay, 211 F. Supp. 2d 1020, 1035 (N.D. Ill. 2001) (“It is not enough to show that the district made an improper placement, or that the attempted accommodations proved inadequate.”). Thus even if Ms. Johnson had some duty to shepherd Ms. Granda through the application process– which was not her job (Johnson Decl. ¶¶ 1-4; Rodriguez Decl. ¶ 3) – at most Ms. Granda alleges a mistake or accidental failure of process, not intentional discrimination in violation of the ADA.



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fully capable of understanding the relevant deadlines, the instruction to provide credit card

information as part of the online application process, and the clearly stated consequence for not

doing so. Absolutely nothing about her disability contributed to the situation in which she finds

herself; she was fully capable of providing the requested information to submit a complete

application. Rather than blaming the State Bar for the fact that its computers did exactly what

they said they would – not submit an incomplete application – Ms. Granda should take

responsibility for her mistaken assumption. Nor, despite how tempting it would be to simply let

her take the Examination, can the State Bar be blamed for following the clear legislative mandate

not to accept applications after June 15.

IV. CONCLUSION.

The Court lacks jurisdiction to hear this case or to order the State Bar to violate Business

and Professions Code section 6060.3 by accepting a late application or allowing Ms. Granda to

take the exam without an application. Even if, however, jurisdiction existed, Ms. Granda’s relief

would still be denied because, at bottom, her own facts show that the ADA was not violated.

While the State Bar sympathizes with Ms. Granda’s position, there is simply nothing that can be

done at this point. Accordingly, the State Bar requests the Court to deny Ms. Granda’s

application for a TRO as well as her request for a preliminary injunction.

Respectfully submitted,

DATED: July 23, 2009 KERR & WAGSTAFFE LLP

By: /s/ Michael von Loewenfeldt

MICHAEL VON LOEWENFELDT

Attorneys For Defendant The State Bar Of California


Documents

Defendant's Oppsition to Granda's Motion