The Regents of the Univ. of Cal. v. Superior Court ( 2018 )

Filed 12/3/19; Opinion on remand from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE REGENTS OF THE B259424
UNIVERSITY OF CALIFORNIA,
et al., (Los Angeles County
Super. Ct. No. SC108504)
Petitioners,
v.
SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent.
KATHERINE ROSEN,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Gerald
Rosenberg, Judge. Petition for writ of mandate granted in part.
Maranga Morgenstern, Kenneth A. Maranga, Paul A.
Elkhort, Morgan A. Metzger and Dennis Newitt; Greines, Martin,
Stein & Richland, Timothy T. Coates and Feris M. Greenberger;
University of California Office of the General Counsel, Charles F.
Robinson, Karen J. Petrulakis and Normal J. Hamill; University
of California, Los Angeles and Kevin S. Reed for Petitioners.
Reed Smith, Paul D. Fogel and Dennis Peter Maio for The
California Community Colleges, California Institute of
Technology, California State University, Chapman University,
Claremont McKenna College, Pepperdine University, Pitzer
College, Pomona College, Stanford University and The University
of Southern California, as amici curiae on behalf of Petitioners.
Munger, Tolles & Olson, Brad S. Phillips and Grant Davis-
Denny for JED Foundation, American College Counseling
Association and NASPA: Student Affairs Administrators in
Higher Education, as amici curiae on behalf of Petitioners.
No appearance for Respondent.
Alan Charles Dell’Ario; Panish, Shea & Boyle, Brian
Panish and Deborah S. Chang for Real Party in Interest.
The Arkin Law Firm and Sharon J. Arkin for Consumer
Attorneys of California, as amicus curiae on behalf of Real Party
in Interest.
__________________________
Katherine Rosen, a student at the University of California
at Los Angeles, was severely injured after being attacked by
another student who had been receiving treatment for mental
illness. Rosen filed a negligence action alleging that university
personnel failed to take reasonable measures to protect her from
the perpetrator’s foreseeable violent conduct. Defendants moved
for summary judgment, arguing that postsecondary schools do
not have a duty to protect their students from third-party
misconduct. The trial court denied the motion, finding that the
defendants owed Rosen a duty of care, and that triable issues of
fact existed whether they had breached that duty.
The defendants challenged the order through a petition for
writ of mandate. A divided panel of this court granted the
2
petition based on a finding of no duty. In Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607 (Regents), the
Supreme Court reversed our decision, holding that colleges and
universities have a “duty to use reasonable care to protect their
students from foreseeable acts of violence in the classroom or
during curricular activities.” (Id. at p. 627.) The Court
remanded the case to resolve several issues the majority did not
address in our initial opinion.
We now deny defendants’ petition for writ of mandate,
except with respect to defendant Nicole Green, concluding that:
(1) the standard of care governing a university’s duty to protect
its students from foreseeable acts of violence is the ordinary
reasonable person standard; (2) triable issues of fact exist
whether the defendants breached their duty of care to Rosen; and
(3) although Civil Code section 43.92 precludes liability against
defendant Nicole Green, the remaining defendants are not
statutorily immune from suit.
FACTUAL BACKGROUND
A. Summary of the Incident and Rosen’s Claim
Damon Thompson enrolled in the University of California
at Los Angeles (UCLA) in the fall of 2008. 1 Shortly after arriving
on campus, he began to experience auditory hallucinations and
paranoid thinking. Thompson informed multiple administrators,
professors, teaching assistants and dorm personnel that other
students in his classroom and dormitory were making offensive
1 We provide a more detailed description of the events that
preceded Thompson’s attack on Rosen, and the evidence the
parties submitted at the summary judgment proceedings, in our
analysis of whether there is a triable issue of fact regarding
defendants’ breach of their duty.
3
remarks to him, and trying to disrupt his work. In February of
2009, Thompson was transported to a hospital for a psychiatric
evaluation after claiming that he had heard other students in his
dormitory plotting to shoot him. He was diagnosed with possible
schizophrenia, and began receiving mental treatment through
the university.
Over the next several months, university personnel
monitored Thompson, who continued to accuse other students of
insulting him and to engage in other erratic behavior, which
included repeatedly shoving a student for making too much noise.
Immediately after the fall semester began in 2009, Thompson
complained to his chemistry professor and teaching assistant that
other students in his chemistry laboratory were calling him
stupid. The professor informed school administrators of
Thompson’s behavior, and requested advice on how to respond.
On October 8, 2009, Thompson was working in the chemistry
laboratory when he suddenly attacked fellow student Katherine
Rosen with a kitchen knife. Rosen survived the attack, but
sustained serious, life-threatening injuries.
Rosen filed a tort action against the Regents of the
University of California and several UCLA employees who had
knowledge of Thompson’s mental condition. 2 The complaint
2 Although public entities are generally not liable for injuries
they cause, the Government Claims Act provides specific, limited
exceptions to this general rule. Rosen’s negligence claim against
the Regents is based on an exception set forth in Government
Code section 815.2, subdivision (a), which imposes vicarious
liability on a public entity for its employees’ wrongful conduct.
Rosen alleges that the university employees she has named as
defendants, which includes Dean of Students Robert Naples,
Associate Dean of Students Cary Porter, Professor Alfred Bacher
4
alleged a single cause of action for negligence asserting that
universities and their employees have a duty to protect their
students from foreseeable acts of violence. The complaint further
alleged defendants had breached their duty of care because they
knew of Thompson’s “dangerous and violent propensities,” but
failed to adopt reasonable measures to protect Rosen.
B. Procedural History
1. Defendants’ motion for summary judgment and
petition for writ of mandate
The defendants filed a motion for summary judgment
arguing that Rosen’s claim failed for three reasons. First, they
argued that colleges and universities do not have a duty to
protect their students from criminal conduct perpetrated by other
students. Second, defendants contended that even if universities
have such a duty, the undisputed evidence showed UCLA and its
personnel had acted reasonably in addressing the threat
Thompson posed to other students, and that his attack was not a
foreseeable event. Third, defendants argued they were
statutorily immune from Rosen’s claim under Government Code
sections 856 and 820.2, and Civil Code section 43.92.
In her opposition, Rosen argued that colleges and
universities have a special relationship with their students that
gives rise to a duty to protect them from foreseeable acts of
and UCLA psychologist Nicole Green, as well as other UCLA
employees, breached their duty to protect her from foreseeable
threats of violence, and that the Regents is likewise liable under
the doctrine of respondeat superior.
5
violence in the classroom. 3 Rosen further asserted that there
were triable issues of fact whether the defendants had breached
this duty. In support, Rosen provided declarations from two
expert witnesses stating that the university should have
conducted a formal threat assessment on Thompson, and
required that he participate in meaningful psychiatric treatment
as a condition of his continued attendance. The experts further
concluded that the university’s failure to undertake such
precautions violated UCLA’s “own policies and procedures and
the standard applicable to all universities.” Finally, Rosen
argued that none of the statutes the defendants had identified in
their motion immunized them from her claim.
The trial court denied the motion, finding that universities
owe a duty to protect their students under the special
relationship doctrine, and that the defendants were not immune
from suit. The court also found that triable issues of fact existed
as to whether defendants had breached their duty to protect
Rosen.
The defendants challenged the trial court’s order in a
petition for writ of mandate. A divided panel of this court
granted the petition, the majority holding that universities do not
have a duty to warn or protect students from third-party criminal
3 Rosen raised additional theories of duty based on an
implied-in-fact contract, the negligent undertaking doctrine and
UCLA’s status as the property owner. The Supreme Court,
however, concluded that because the university owed a duty to
protect its students based on the special-relationship doctrine, it
need not address any possible alternative source of duty.
(Regents, supra, 4 Cal.5th at p. 634, fn. 8.)
6
conduct. 4 Having concluded that the university did not have a
duty to protect Rosen, the majority did not address whether the
school and its employees were statutorily immune under
Government Code section 856 and 820.2, nor did it address
whether there was a disputed issue of material fact regarding
breach of the duty.
The dissent, however, would have found colleges and
universities owe a duty to protect students from foreseeable
violent pursuant to the special-relationship doctrine. The dissent
additionally concluded that the defendants were not immune
from suit, 5 and that there were triable issues of fact whether the
university had breached its duty of care.
2. Regents of University of California v. Superior
Court
In Regents of University of California v. Superior Court,
supra, 4 Cal.5th 607, the Supreme Court held that “[colleges] and
4 As discussed in more detail below, the majority additionally
held that Civil Code section 43.92 precluded liability against
defendant Nicole Green, a university therapist who had treated
Thompson, because there was no evidence Thompson had ever
communicated a serious threat of physical violence against an
identifiable victim. (See Civil Code, § 43.92, subd. (a) [precluding
claims against “a psychotherapist . . . [for] failing to protect from
a patient’s threatened violent behavior . . . except if the patient
has communicated to the psychotherapist a serious threat of
physical violence against a reasonably identifiable victim or
victim”].)
5 The dissent agreed with the majority’s finding that Civil
Code section 43.92 precluded liability against defendant Nicole
Green (see ante, fn. 4), but concluded that none of the remaining
defendants were statutorily immune.
7
universities[ 6] have a special relationship with their students”
(id. at p. 614), and “a duty to use reasonable care to protect
[them] from foreseeable acts of violence in the classroom or
during curricular activities.” 7 (Id. at p. 627.) The Court
concluded that the special relationship arose from “the unique
features of the college environment” (id. at p. 624), explaining:
“While [a university’s] primary function is to foster intellectual
development through an academic curriculum, the institution is
involved in all aspects of student life. Through its providing of
food, housing, security, and a range of extracurricular activities
the modern university provides a setting in which every aspect of
student life is, to some degree, university guided.’ [Citation.]”
(Id. at p. 625.) As a result of these attributes, “colleges have a
superior ability to provide . . . safety with respect to activities
they sponsor or facilities they control.” (Ibid.)
The Court further concluded, however, that “many aspects
of a modern college student’s life are, quite properly, beyond the
institution’s control,” including “how students behave off campus,
or in their social activities unrelated to school.” (Regents, supra,
6 The Court explained in a footnote that it used “the terms
‘college’ and ‘university’ interchangeably to refer to all
schools that provide postsecondary education to enrolled
students.” (Regents, supra, 4 Cal.5th at p. 614, fn. 1.) We do the
same.
7 In a footnote, the Court clarified that although its decision
“speak[s] . . . of a university’s duty ‘to protect’ its students from
foreseeable harm. . . ., [i]n an appropriate case, this duty may be
fully discharged if adequate warnings are conveyed to the
students at risk.” (Regents, supra, 4 Cal.5th at p. 619, fn. 3
[emphasis in original].)
8
4 Cal.5th at p. 626.) To accommodate these concerns, the Court
limited the special relationship between universities and their
students “to activities that are tied to the school’s curriculum but
not to student behavior over which the university has no
significant degree of control.” (Id. at p. 627.) The Court
concluded that in this case, it was clear Rosen had been injured
during a curricular activity – “in a chemistry laboratory while
class was in session.” (Ibid.)
The Court noted that its “recognition of a special
relationship” between universities and their students was
consistent with “decisions from other states” (Regents, supra, 4
Cal.5th at pp. 626-627 [citing and discussing Mullins v. Pine
Manor College (1983) 389 Mass. 47 (Mullins), Nova Southeastern
University v. Gross (Fla. 2000) 758 So. 2d 86 (Nova) and Furek v.
University of Delaware (Del. 1991) 594 A.2d 506 (Furek)]), as well
as the Restatement Third of Torts. (Regents, supra, 4 Cal.5th at
p. 620 [citing Rest.3d Torts, Liability for Physical and Emotional
Harm, § 40, subd. (b) (Rest.3d) [identifying “a school with its
students” as a form of “special relationship[] that may support a
duty to protect against foreseeable risks”]].) The Court
emphasized, however, that the comments to the Restatement
further observe that “reasonable care varies in different school
environments, with substantially different supervision being
appropriate in elementary schools as opposed to colleges.”
(Regents, supra, 4 Cal.5th at p. 620 [citing Rest.3d, § 40, com. l,
p. 45].)
Having found that universities owe a duty to protect their
students from foreseeable harm under the special-relationship
doctrine, the Court next considered whether any of the “policy
considerations” set forth in Rowland v. Christian (1968) 69
9
Cal. 2d 108 (Rowland) “justified excusing or limiting [a
university’s] duty of care.” (Regents, supra, 4 Cal.5th at p. 628.)
On the issue of foreseeability (see Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1145 [“[t]he most important factor to consider in
determining whether to create an exception to [duty under
Rowland] . . . is whether the injury in question was foreseeable”),
the Court explained that although “comparatively rare[,] [a]
classroom attack is a foreseeable occurrence that colleges have
been equipping themselves to address for at least the past
decade.” (Regents, supra, 4 Cal.5th at p. 629.)
The Court clarified that for purposes of determining the
existence of a duty, “the question [was] not whether [the
university] could [have] predict[ed] that [Thompson] would stab
[Rosen][,] . . . [but rather] whether a reasonable university could
foresee that its negligent failure to control a potentially violent
student . . . could result in harm to . . . students,” adding:
“Whether a university was, or should have been, on notice that a
particular student posed a foreseeable risk of violence is a case-
specific question, to be examined in light of all the surrounding
circumstances. Any prior threats or acts of violence by the
student would be relevant, particularly if targeted at an
identifiable victim. [Citation.] Other relevant facts could include
the opinions of examining mental health professionals, or
observations of students, faculty, family members, and others in
the university community. Such case-specific foreseeability
questions are relevant in determining the applicable standard of
care or breach in a particular case. They do not, however, inform
our threshold determination that a duty exists.” (Regents, supra,
4 Cal.5th at pp. 629-630.)
10
The Court next addressed whether any “public policy
concerns” weighed in favor of excusing or limiting universities’
duty of care. (Regents, supra, 4 Cal.5th at p. 629.) The Court
rejected defendants’ assertion that imposing a duty to protect
students from foreseeable acts of violence “would discourage
colleges from offering comprehensive mental health and crisis
management services,” and create “incentive[s] to expel anyone
who might pose a remote threat to others.” (Id. at p. 632.) The
Court explained: “We understand that . . . [t]he existence of a
duty may give some schools a marginal incentive to suspend or
expel students who display a potential for violence. It might
make schools reluctant to admit certain students, or to offer
mental health treatment. But colleges’ decisions in this area are
restricted to some extent by laws such as the Americans with
Disabilities Act [citation]. In addition . . . market
forces . . . would likely weigh against the dismantling of these
protections.” (Ibid.)
The Court also rejected defendants’ argument that
imposing a duty to protect would be “prohibitively expensive and
impractical[,] . . . [effectively requiring] university professors and
administrators [to become] the ‘insurers’ of student safety.”
(Regents, supra, 4 Cal.5th at p. 633.) The Court explained that
the record showed “UCLA, like other colleges across the country,
ha[d] already developed sophisticated strategies for identifying
and defusing potential threats to student safety,” which included
“multidisciplinary teams of trained staff members and
professionals.” (Ibid.) According to the Court, because “colleges
have already focused considerable attention on identifying and
responding to potential threats . . ., it does not appear that
11
recognizing a legal duty to protect students from foreseeable
threats would pose an unmanageable burden.” (Ibid.)
The Court also emphasized that it was not charging
universities with a “broad duty to prevent violence against the
students.” (Regents, supra, 4 Cal.5th at p. 633.) Rather, as
stated by the Court, “[w]e simply hold that they have a duty to
act with reasonable care when aware of a foreseeable threat of
violence in a curricular setting. Reasonable care will vary under
the circumstances of each case. Moreover, some assaults may be
unavoidable despite a college’s best efforts to prevent them.
Courts and juries should be cautioned to avoid judging liability
based on hindsight.” (Id. at p. 634; see also id. at p. 633 [“the
school’s duty is to take reasonable steps to protect students when
it becomes aware of a foreseeable threat to their safety. The
reasonableness of a school’s actions in response to a potential
threat is a question of breach”] [emphasis in original].)
Having concluded the university had a duty to protect
Rosen from foreseeable acts of violence, the Court remanded the
case to address two additional issues defendants had raised in
their petition for writ of mandate: (1) whether the parties’
evidence establishes as a matter of law that defendants did not
breach their duty of care; and (2) whether various provisions of
the Government and Civil Codes shield UCLA and its employees
from liability. (Regents, supra, 4 Cal.5th at p. 634.) On the
question of breach, the Court further noted that “the appropriate
standard of care for judging the reasonableness of the
12
university’s actions remains an open question, which the parties
are free to litigate on remand.” (Ibid [emphasis omitted].) 8
DISCUSSION
On remand, we address the three issues identified by the
Supreme Court for our resolution. First, we must determine the
standard of care that governs a university’s duty to protect its
students from foreseeable acts of violence. Second, we must
assess whether the defendants have demonstrated as a matter of
law that they did not breach their duty. Third, we must decide
whether the defendants are immune from Rosen’s negligence
claim. 9
A. Summary of the Duty Established in Regents
Before addressing the issues on remand, we clarify the
elements of the duty that the Court announced in Regents. As
articulated by the Court, colleges and universities have a “duty to
protect their students from foreseeable acts of violence in the
classroom or during curricular activities.” 10 (Regents, supra, 4
8 The Court declined to review the unanimous portion of our
opinion finding that defendant Nicole Green was entitled to
judgment under Civil Code section 43.92. (Regents, supra, 4
Cal.5th at pp. 634-635.)
9 After the Supreme Court issued its decision, we invited the
parties to submit supplemental briefing on each of these issues.
We also held additional oral argument addressing these
questions.
10 Throughout Regents, the Court uses varying language to
describe the duty that colleges and universities owe to their
students. (Compare Regents, supra, 4 Cal.5th at pp. 613, 618-
13
Cal.5th at p. 627.) The Court’s analysis in Regents indicates a
plaintiff must prove three elements to establish breach of this
duty. First, the plaintiff must demonstrate the injury occurred
while “engaged in activities that are part of the school’s
curriculum or closely related to its delivery of educational
services.” (Regents, supra, 4 Cal.5th at p. 627; id. at p. 630 [the
duty “extends to activities that are tied to the school’s curriculum
but not to student behavior over which the university has no
significant degree of control”].) In this case, the Court has
already determined that Rosen was injured while participating in
a curricular activity (attending a chemistry laboratory). (Id. at
p. 627 [“the classroom is the quintessential setting for curricular
activities. . . . [C]olleges can be expected to retain a measure of
control over the classroom environment”].)
Second, the plaintiff must show the university was aware of
information that placed, or should have placed, it on notice that
the perpetrator presented a foreseeable threat of violence to other
students. (See Regents, supra, 4 Cal.5th at pp. 631, 633, 634
619, 627, 633, 634 [“universities have . . . a duty to protect [their
students] from foreseeable violence during curricular activities”;
“universities . . . have a . . . duty. . . to protect or warn their
students from foreseeable violence in the classroom or during
curricular activities”; “colleges generally owe a duty to use
reasonable care to protect their students from foreseeable acts of
violence in the classroom or during curricular activities”; “the
school’s duty is to take reasonable steps to protect students when
it becomes aware of a foreseeable threat to their safety”;
“Colleges. . . have a duty to act with reasonable care when aware
of a foreseeable threat of violence in a curricular setting”].) For
purposes of clarity and consistency, we hereafter refer to the duty
established in Regents as the “duty to protect students from
foreseeable acts of violence.”
14
[“the school’s duty is to take reasonable steps to protect students
when it becomes aware of a foreseeable threat to their safety”
[emphasis in original]; “[universities] have a duty to act with
reasonable care when aware of a foreseeable threat of violence in
a curricular setting”; “When circumstances put a school on notice
that a student is at risk to commit violence against other
students, the school’s failure to take appropriate steps to warn or
protect foreseeable victims can be causally connected to injuries
the victims suffer as a result of that violence”].) As stated by the
Court, “[w]hether a university was, or should have been, on
notice that a particular student posed a foreseeable risk of
violence is a case-specific question, to be examined in light of all
the surrounding circumstances.” (Id. at p. 630; see also ibid.
[“case-specific foreseeability questions are relevant in
determining . . . breach in a particular case”].)
Based on the Court’s analysis, the question of foreseeability
requires the trier of fact to make two separate factual
determinations. 11 First, it must determine what information the
university knew about the student in question. Second, it must
determine whether, based on that information, it was foreseeable
that the student posed a threat of violence. The factors a jury
may consider when assessing whether a particular student
presented a foreseeable threat of violence include, but are not
limited to, “prior threats or acts of violence by the [perpetrator],
11 In the context of negligence, whether an injury was
foreseeable in a particular case is “[o]rdinarily[] . . . a question of
fact for the jury.” (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34
Cal. 3d 49, 56 (Bigbee); see also Weirum v. RKO General, Inc.
(1975) 15 Cal. 3d 40, 46 [“While duty is a question of law,
foreseeability is a question of fact for the jury”].)
15
particularly if targeted at an identifiable victim”; “the opinions of
examining mental health professionals”; and “the observations of
students, faculty, family members, and others in the university
community.” (Regents, supra, 4 Cal.5th at p. 630.)
Third, the plaintiff must establish that the university failed
to act with reasonable care in response to the foreseeable threat
of violence. “What constitutes reasonable care will vary with the
circumstances of each case.” (Regents, supra, 4 Cal.5th at p. 632;
see also id. at p. 633 [“The reasonableness of a school’s actions in
response to a potential threat is a question of breach”].)
B. Standard of Care
Although Regents held that colleges and universities owe a
duty to protect their students from foreseeable acts of violence,
the Court left open “the appropriate standard of care for judging
the reasonableness of the university’s actions,” and invited the
parties to litigate that issue on remand. (See Regents, supra, 4
Cal.5th at p. 634.)
“‘Once the existence of a legal duty is found, it is the
further function of the court to determine and formulate the
standard of conduct to which the duty requires the defendant to
conform.’ [Citation.] ¶ The formulation of the standard of care is
a question of law for the court. [Citations.] Once the court has
formulated the standard, its application to the facts of the case is
a task for the trier of fact if reasonable minds might differ as to
whether the defendant’s conduct has conformed to the standard.
[Citations.]” (Ramirez v. Plough, Inc. (1993) 6 Cal. 4th 539, 546
(Plough).)
16
1. The parties’ proposed standards of care
In their supplemental briefing, the parties propose widely-
divergent standards of care. Rosen asserts we should adopt the
standard of care that ordinarily applies in negligence cases, “that
of a reasonably prudent person under like circumstances.”
(Plough, supra, 6 Cal.4th at p. 546 [“In most cases, courts have
fixed no standard of care for tort liability more precise than that
of a reasonably prudent person under like circumstances”].)
Defendants, however, argue that “the standard of care . . .
should be that codified in Civil Code section 43.92, i.e., [¶] . . . [¶]
limited to those situations where the defendant is aware that a
student has communicated a serious threat of physical violence
against a reasonably identifiable victim or victims, and believes
the threat to be credible.” The statute defendants reference
precludes liability against a particular class of persons,
psychotherapists, for “failing to protect” potential victims from a
patient’s violent behavior except when “the patient has
communicated to the psychotherapist a serious threat of physical
violence against a reasonably identifiable victim or victims.”
(Civil Code, § 43.92, subd. (a); see also Ewing v. Goldstein (2004)
120 Cal. App. 4th 807, 812 (Ewing). 12
The Legislature enacted section 43.92 in response to
Tarasoff v. Regents of University of California (1976) 17 Cal. 3d
425 (Tarasoff) and Hedlund v. Superior Court (1983) 34 Cal. 3d
695, which held that a therapist has a duty “to use reasonable
care to protect [a potential victim when he or she] determine[s],
12 Section 43.92, subdivision (b) clarifies that a therapist may
“discharge[] his or her duty to protect by making reasonable
efforts to communicate the threat to the victim or victims and to
a law enforcement agency.”
17
or under applicable professional standards reasonably should
have determined, that a patient poses a serious danger of
violence to others.” (Tarasoff, supra, 17 Cal.3d p. 431.) 13 The
legislative history clarifies that section 43.92 “was not intended
to overrule Tarasoff or Hedlund,” but rather to “abolish” those
decisions’ “expansive rulings . . . that a therapist can be held
liable for the mere failure to predict and warn of potential
violence by his patient.’” (Ewing, supra, 120 Cal.App.4th at p.
816.) The statute represents “a legislative effort to strike an
appropriate balance between conflicting policy interests. On the
one hand, the need to preserve a patient confidence recognizes
that effective diagnosis and treatment of a mental illness or an
emotional problem is severely undermined when a patient cannot
be assured that a statement made in the privacy of his therapist’s
office will not be revealed. On the other hand is the recognition
that, under limited circumstances, preserving a confidence is less
important than protecting the safety of someone whom the
patient intends to harm.” (Ibid.)
Defendants argue the standard of care governing a
university’s duty to protect its students from foreseeable acts of
violence should mirror the limitations set forth in section 43.92
because it would be illogical “to impose a less protective standard
of care on lay [school personnel] who don’t possess the same
13 Although described as a “duty to protect,” Tarasoff’s
analysis makes clear that a therapist can normally discharge his
or her duty by warning the threatened victim. (Tarasoff, supra,
17 Cal. 3d 425, 539-440.) As noted above (see ante, fn. 7), in this
case, the Supreme Court similarly concluded that a university
may, “in an appropriate case” (Regents, supra, 4 Cal.5th at p. 619,
fn. 2), discharge its duty to protect by conveying a warning to the
students at risk.
18
training and experience as [a psychotherapist].” Defendants
further contend that universities normally rely on their “mental
health professionals’ assessment of the potential threat posed by
the student,” and therefore should be held to the same standard
as those professionals. Finally, defendants contend that adopting
the ordinary standard of care will result in “lay [school personnel]
erring on the side of caution and compromising both medical
information and other privacy interests by warning students
about classmates who act odd or excluding troublesome
students.”
2. The duty is governed by the ordinary standard of care
We agree with Rosen that a university’s duty to protect
students from foreseeable acts of violence is governed by the
ordinary negligence standard of care, namely “that degree of care
which people of ordinarily prudent behavior could be reasonably
expected to exercise under the circumstances.” (Warner v. Santa
Catalina Island Co. (1955) 44 Cal. 2d 310, 317 [defining the
“ordinary” standard of care]; see also People v. Superior Court
(Sokolich) (2016) 248 Cal. App. 4th 434, 447 [“The general
standard of care applicable to negligence is ‘“that of a reasonably
prudent person under like circumstances”’ [citation], which
constitutes an ‘objective reasonable person standard’”].)
Although we recognize that “in particular situations a more
specific standard [of care] may be established by judicial decision”
(Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14
Cal. 4th 814, 824), there are several reasons we reject defendants
request that we do so here.
First, although Regents declined to formulate the standard
of care, the Court’s analysis of the duty a university owes to its
students is more consistent with the ordinary reasonable person
19
standard than the narrowly-drawn standard defendants have
proposed. The Court’s opinion repeatedly states that the duty
requires colleges and universities to use “reasonable care” to
protect their students, emphasizing that “[r]easonable care will
vary under the circumstances of each case.” (Regents, supra, 4
Cal.5th at p. 632; see also id. at p. 634 [“the reasonableness of a
school’s actions in response to a potential threat is a question of
breach”].) Moreover, the opinion contains no language suggesting
a university can be held liable only when the evidence shows the
perpetrator previously made an actual threat of harm against an
identifiable victim.
Second, the Supreme Court has previously held that the
standard of care that governs a secondary school’s duty to protect
its students from foreseeable acts of violence is the ordinary
reasonable person standard. In C.A. v. William S. Hart Union
High School District (2012) 53 Cal. 4th 861 (Hart), which Regents
discusses with approval (see Regents, supra, 4 Cal.5th at p. 624),
the Court affirmed prior holdings recognizing that a school
district and its employees “have a duty to use reasonable
measures to protect students from foreseeable injury at the
hands of third parties acting negligently or intentionally.” (Hart,
supra, 53 Cal.4th at p. 870.) The Court further held that the
“standard of care imposed upon school personnel in carrying out
this duty . . . is identical to that required in the performance of
their other duties. This uniform standard to which they are held
is that degree of care ‘which a person of ordinary prudence,
charged with [comparable] duties, would exercise under the same
circumstances.’” (Id. at p. 869; see also Hemady v. Long Beach
Unified School Dist. (2006) 143 Cal. App. 4th 566, 570 [“the
California Supreme Court has applied the prudent person
20
standard of care to determine liability of school districts and their
employees for injuries to students”].)
Defendants have provided no explanation why the ordinary
standard of care that governs the duty secondary schools owe to
their students should not also govern the analogous duty
universities owe to their students in the curricular setting. The
policy arguments defendants have raised in support of their more
specific standard of care—that lay school personnel should not be
held to a broader standard of care in anticipating potentially
violent students than the school district’s psychotherapists and
protecting the medical information of medically ill students—
apply equally in the context of secondary schools. The Supreme
Court, however, has nonetheless concluded the ordinary standard
of care is appropriate. 14
14 In her supplemental briefing, Rosen states that Regents
intended to extend university students the same protections that
are enjoyed by “their K-12 counterparts.” We agree that under
the holding in Regents, universities and secondary schools have a
similar duty to protect their students from foreseeable acts of
violence. However, to the extent Rosen is suggesting that
universities owe their students the same level of care in
supervising and controlling potentially violent students as
secondary schools, we reject that proposition. As Regents noted,
the Restatement Third of Torts specifically clarifies that the
amount of care a school is required to provide “varies in different
school environments, with substantially different supervision
being appropriate in elementary schools as opposed to colleges.”
(Regents, supra, 4 Cal.5th at p. 620 [citing Rest.3d, § 40, com. l,
p. 45].) Moreover, a university’s duty to protect its students is
limited to curricular activities, and does not extend to student
activities that are beyond the institution’s control. Given the
greater degree of control secondary schools exert over their
21
Third, other state courts that have addressed the issue,
including those cited and discussed in Regents, have concluded
(either expressly or impliedly) that a university’s duty to protect
its students from foreseeable violence is governed by the ordinary
reasonable person standard. In Mullins, supra, 389 Mass. 47, for
example, the Massachusetts Supreme Judicial Court affirmed a
jury verdict against a college, concluding that there was sufficient
evidence to support a finding “that reasonable persons in the
position of the defendants would have [taken extra safety
precautions to protect students].” (Id. at p. 61.) 15 In Nova, supra,
758 So. 2d 86, the Florida Supreme Court explained that a
university’s duty to protect students from foreseeable threats of
students in comparison to universities (compare Hart, supra, 53
Cal.4th at p. 869 [secondary schools exert “comprehensive
control” over their students] with Regents, supra, 4 Cal.5th at
p. 624-627 [colleges provide their students “structure, guidance,
and a safe learning environment”]), we conclude the degree of
care required by the two types of schools may vary.
15 Mullins held that colleges have a duty to protect their
students from foreseeable “criminal acts of third parties.”
(Mullins, supra, 389 Mass. at pp. 54-55). Recently, in Nguyen v.
Massachusetts Institute of Technology (2018) 479 Mass. 436
(Nguyen), the Massachusetts Supreme Judicial Court held that
colleges also have duty to protect their students from self-harm,
but clarified that the duty is “limited” to circumstances “[w]here
the university has actual knowledge of a student’s suicide
attempt that occurred while enrolled at the university or recently
before matriculation, or of a student’s stated plans or intentions
to commit suicide.” (Id. at p. 453.) Nguyen, however, contains no
language suggesting the court intended to similarly limit the
duty set forth in Mullins, which is cited approvingly throughout
the Nguyen decision.
22
harm requires it to “act[] as a reasonably prudent person would
in like or similar circumstances.” (Id. at p. 90.) Likewise, in
Furek, supra, 594 A.2d 506, the Delaware Supreme Court
repeatedly emphasized that the university’s duty to protect from
foreseeable harm is assessed under the “reasonable care”
standard. (Id. at p. 519.)
Finally, we note that although presented as an alternative
standard of care, UCLA’s proposed limitations on when a
university may be held liable for failing to protect students from
foreseeable acts of violence would effectively operate to narrow
the scope of the duty that Regents announced. As explained
above, Regents held that colleges and universities have a duty to
act “when aware of a foreseeable threat of violence in a curricular
setting.” (Regents, supra, 4 Cal.5th at p. 634.) Under defendants’
theory, however, a college or university would only be liable if it
had knowledge of an actual threat of harm against an identifiable
victim. In effect, defendants appear to assert that foreseeability
is present only when such a threat has been made.
If the Court had intended to limit foreseeability in the
manner defendants propose, it would have stated as much in its
decision. Instead, the Court’s decision emphasizes that
foreseeability “is a case-specific question, to be examined in light
of all the surrounding circumstances.” (Regents, supra, 4 Cal.5th
at p. 630.) Although the Court identified any “prior threats . . .
by [the perpetrator], particularly if targeted at an identifiable
victim” (ibid.), as one factor the jury may consider when
assessing foreseeability, Regents contains no language suggesting
that foreseeability is dependent on the existence of an actual
threat of harm made against an identifiable victim.
23
We are not unsympathetic to the policy arguments the
defendants have raised in support of their proposed standard of
care. Defendants may be correct, for example, that imposing an
ordinary standard of care might cause some school
administrators to err on the side of caution, and take actions
against mentally-ill students who exhibit conduct that is merely
abnormal, rather than potentially violent. We also acknowledge
that applying the ordinary standard of care may expose lay
school personnel to broader liability than university
psychotherapists who treat mentally-ill students. We believe,
however, that the Legislature is better-suited to address those
policy concerns. If the Legislature concludes that imposing the
ordinary standard of care on universities and their employees
will lead to undesirable consequences, it can pass a statute
limiting the circumstances under which liability may attach, just
as it did in passing Civil Code section 43.92. However, we find
nothing in Regents or any other source of law that supports the
judicial creation of a more specialized standard of care. 16
16 The specific amount of care a university is required to
provide in a particular case, and the determination whether a
university complied with that requirement, are generally
questions of fact for the jury to resolve. (See Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, 997 [“as
a general proposition one ‘is required to exercise the care that a
person of ordinary prudence would exercise under the
circumstances.’ [Citations.] Because application of this principle
is inherently situational, the amount of care deemed reasonable
in any particular case will vary, while at the same time the
standard of conduct itself remains constant, i.e., due care
commensurate with the risk posed by the conduct taking into
consideration all relevant circumstances. [Citations.] ‘“There are
24
C. Triable Issues of Material Fact Exist as to Whether
Defendants Breached their Duty of Care
In their petition for writ of mandate, defendants argued
that even if they had a duty to respond to foreseeable threats of
violence, “[t]he undisputed evidence establishes that [they] acted
reasonably as a matter of law and cannot be held liable.”
According to defendants, “[t]he most the evidence remotely
establishes is that Thompson was a mentally-ill student who
once, months earlier, engaged in a dormitory noise-related
pushing match with another student . . . and who frequently
complained about other students (sometimes including Rosen)
without ever threatening serious physical harm and specifically
disavowed such an intent. . . .” Defendants assert that under
such circumstances, no rational jury could conclude that
Thompson presented a foreseeable risk of harm, or that the
university could have reasonably done anything more to prevent
the attack that occurred.
1. Standard of review
A motion for summary judgment may be granted only when
no “triable issue of one or more material facts” remains for trial.
(Code Civ. Proc., § 437c, subd. (o) (1) & (2).) A triable issue of
material fact exists where “the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard
of proof.’ [Citation.]” (Jade Fashion & Co., Inc. v. Harkham
Industries, Inc. (2014) 229 Cal. App. 4th 635, 643.)
“We review an order granting or denying summary
adjudication de novo. [Citation.] In our review, we ‘liberally
no ‘degrees’ of care, as a matter of law; there are only different
amounts of care, as a matter of fact. . . .” [Citation.]’ [Citation.]”].)
25
constru[e] the evidence in support of the party opposing summary
judgment and resolv[e] doubts concerning the evidence in favor of
that party. [Citation.]’ [Citation.]” (City of Pasadena v. Superior
Court (2014) 228 Cal. App. 4th 1228, 1233.)
2. Summary of the evidence
a. Summary of events preceding Thompson’s attack
on Rosen
The parties’ evidence shows that shortly after arriving on
campus in the fall of 2008, Thompson complained to his history
professor that other students had made offensive remarks toward
him during an examination, and that he was “outraged” because
he believed it had affected his performance. (See Regents, supra,
4 Cal.5th at p. 614.) In January of 2009, Thompson wrote the
Dean of Students, Robert Naples, a three-page letter complaining
that students in his dormitory had been harassing him, making
unwanted sexual advances and spreading false rumors about
him. Thompson warned Maples that if the university failed to
discipline the responsible parties, the matter would likely
“‘escalate into a more serious situation,’” and that he would “‘end
up acting in a manner that will incur undesirable consequences.’”
(Ibid.) Shortly after writing the letter, Thompson was
transferred to a new dormitory.
Weeks later, Thompson sent emails to three professors and
a teaching assistant complaining that other students had made
offensive remarks about him, and were trying to distract him
from his work. The teaching assistant informed her supervising
professor that she had never heard any student insult Thompson.
She also reported that Thompson frequently talked to himself,
and appeared unstable. She expressed concern that his behavior
was symptomatic of schizophrenia. The professor informed
26
Assistant Dean of Students Cary Porter about Thompson’s
behavior. Porter then contacted UCLA’s “Consultation and
Response Team” (the Response Team), which was responsible for
providing advice and consultation to campus members who had
concerns about the well-being of students. Porter also met with
Thompson and encouraged him to seek medical help at UCLA’s
Counseling and Psychological Services (CAPS). Thompson
declined. (See Regents, supra, 4 Cal.5th at p. 614.)
In February of 2009, Thompson informed the resident
director of his dormitory that he heard “‘voices coming through
the walls calling him an idiot,’” and “believed the other residents
were planning to shoot him.” (Regents, supra, 4 Cal.5th at
p. 614.) Thompson also told the director he had called his father
to report what had occurred, and that his father had advised him
to “‘hurt the other residents.’” (Ibid.) Thompson said he had
“thought about it,” but decided he “wasn’t going to do anything.”
(Ibid.) The director contacted campus police, who transported
Thompson to a hospital for a psychiatric evaluation.
During the examination, Thompson complained of
“auditory hallucinations and paranoid thinking,” explaining that
he “heard people talking about him and insulting him, even when
‘“there’s no one there.”’” (Regents, supra, 4 Cal.5th at p. 615.)
The medical examiners diagnosed Thompson with “possible
schizophrenia and major depressive disorder.” Although
Thompson rejected voluntary hospitalization, he agreed to start
attending outpatient treatment at CAPS. (Ibid.) The resident
director informed Cary Porter and the Response Team about the
dormitory incident, and Thompson’s subsequent mental
evaluation.
27
At his CAPS sessions, which began in March of 2009,
Thompson informed university psychologist Nicole Green he was
frustrated that nobody believed he was hearing voices, and stated
that he would try to record what he was hearing. Thompson also
reported that he continued to feel harassed by other students in
his dormitory, which made him angry. Green diagnosed
Thompson with schizophrenia, but concluded that he did not
exhibit suicidal or homicidal ideation, and had not expressed any
present intent to harm others. Thompson also met with CAPS
psychiatrist Charles McDaniel. Thompson admitted to McDaniel
that he had previously experienced “general ideations about
harming others,” but clarified that he had never formulated an
actual plan, or identified a specific victim. (Regents, supra, 4
Cal.5th at p. 615.) McDaniel recommended that Thompson
voluntarily hospitalize himself, but Thompson declined. In April,
Thompson informed Green he had stopped taking his
psychotropic medication. He stopped attending his CAPS
sessions shortly thereafter.
In June of 2009, Thompson was involved in an altercation
in his dormitory. According to the campus police report,
Thompson had knocked on the door of a sleeping resident,
accused the resident of making too much noise and then pushed
him in the chest. When the resident told Thompson he had not
been making any noise, Thompson pushed him again, and
threatened that this was his “last warning.” (Regents, supra, 4
Cal.5th at p. 615.) As a result of the incident, Thompson was
expelled from university housing, and ordered to return to CAPS
when the fall semester began.
During the remainder of the summer semester, Thompson
complained to two faculty members about insults and
28
harassment from other students in his chemistry laboratory. At
the beginning of the fall quarter, Thompson informed his
chemistry professor, Alfred Bacher, that other students were
engaged in disruptive behavior that was interfering with his
experiments.
The next day, September 30, Thompson told CAPS
psychologist Tanya Brown that he still “occasionally” heard
“voices of other students having ‘malice’ toward him and making
critical and racist comments.” (Regents, supra, 4 Cal.5th at
p. 616.) Thompson, however, denied any intent to harm anyone,
including those who had criticized him. Brown noted that
Thompson displayed slowed speech, delusional thought processes
and impaired insight. McDaniel met with Thompson the same
day and made similar observations about his appearance and
thought process. Thompson agreed to begin receiving treatment
at the university’s behavioral health clinic.
On October 6, two days before the attack, Thompson told
his chemistry teaching assistant, Adam Goetz, that students in
the laboratory were calling him stupid. Goetz, who had not heard
anyone insult Thompson, informed Professor Bacher about
Thompson’s behavior, and expressed concern that his outbursts
were becoming a weekly “routine.” Goetz later testified that
Thompson frequently identified Rosen as one of the students who
called him stupid. A second teaching assistant informed
Professor Bacher that Thompson had come into his chemistry lab
from a different section, and accused students of verbally
harassing him. The teaching assistant had not witnessed any
harassment, and was skeptical of Thompson’s claims.
On October 7, Professor Bacher contacted Dean Porter and
sought advice on how to proceed. Porter emailed Karen Minero, a
29
member of the Response Team, who then forwarded the email to
other members of the Response Team and to CAPS personnel.
On the morning of October 8, Porter and Minero discussed
Thompson, and decided to investigate whether he was having
similar difficulties in other classes.
Later that afternoon, Thompson was working in Professor
Bachman’s chemistry laboratory when, without warning or
provocation, he stabbed Rosen in the chest and neck with a
kitchen knife. When campus police arrived, Thompson admitted
he had stabbed someone and explained that the other students
had been teasing him.
b. Summary of Rosen’s expert witness declarations
In support of her opposition to the defendants’ motion for
summary judgment, Rosen provided declarations from two expert
witnesses who concluded that Thompson’s behavior prior to the
attack clearly demonstrated that he “posed a threat” to other
students. The experts further concluded that under UCLA’s own
policies and procedures, the Response Team or other school
personnel with knowledge of Thompson’s situation should have
referred him to the university’s “Violence Prevention and
Response Team” (the Violence Prevention Team), a group of
specialists trained to assess threats and prevent campus violence.
According to the experts, had the Violence Prevention Team been
notified about Thompson, it could have “gathered and analyzed
all of the information and conducted a proper threat assessment.”
As explained by one of Rosen’s experts, “Although the Response
Team was an appropriate team to assess and care for [Thompson]
as a troubled student in distress, [the Violence Prevention Team]
should have been involved as soon as it became clear that [he]
both posed and uttered threats against others, and certainly after
30
any type of violent behavior was exhibited. When [Thompson]
engaged in violent, threatening, and disruptive behavior at his
residence hall on June 3, 2009, he should been placed on the
agenda for a meeting held by the [Violence Prevention Team].
The [Violence Prevention Team], in turn, should have
recommended interventions that would have mitigated the threat
posed by [Thompson].”
The expert witnesses further concluded that UCLA’s failure
to “perform any type of threat assessment or implement any type
of violence prevention measure in response to a distressed
student who was continuously and consistently obstructive and
disruptive because of his paranoid behavior and who threatened
the health and safety of others” was contrary to its own polices,
and violated “the standard applicable to university campuses.”
3. There is a triable issue of fact whether defendants
breached their duty of care
Defendants argue that the evidence conclusively negates
two factual determinations that Rosen must prove to establish
the university breached its duty of care. First, they contend the
evidence shows university personnel could not have foreseen that
Thompson posed a threat to his fellow students. Second, they
assert that even if a rational jury could find the university was
aware of facts demonstrating that Thompson presented a
foreseeable threat of harm, the evidence nonetheless shows the
university exercised reasonable care in attempting to respond to
that threat.
Foreseeability of harm and breach of the standard of care
are ordinarily questions of fact for the jury’s determination. (See
Brummett v. County of Sacramento (1978) 21 Cal. 3d 880, 887
[“[d]ue care as an element of negligence presents a question of
31
fact for the jury”]; Bigbee, supra, 34 Cal.3d at p. 56 [“Ordinarily,
foreseeability [in negligence cases] is a question of fact for the
jury”].) The issues can be resolved on summary judgment “only
if, ‘under the undisputed facts there is no room for a reasonable
difference of opinion.’ [Citation.]” (Bigbee, supra, 34 Cal.3d at p.
56 [addressing foreseeability]; see also T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 188 [“the question of
breach can be decided as a matter of law where ‘no reasonable
jury could find the defendant failed to act with reasonable
prudence under the circumstances’”]; Sprecher v. Adamson
Companies (1981) 30 Cal. 3d 358, 373 [summary judgment
improper unless “the evidence . . . conclusively establish[es] that
no rational inference of negligence can be drawn under the
circumstances of this case”].)
Based on the evidence summarized above, a reasonable
jury could find the university was aware of information
demonstrating that Thompson posed a foreseeable risk of
violence. The record contains extensive evidence that university
personnel were aware Thompson had been continuously
experiencing auditory hallucinations and paranoid delusions, all
of which involved perceived harassment and insults by other
students. On one occasion, Thompson’s hallucinations caused
him to believe residents in his dormitory were plotting to shoot
him. On a second occasion, the hallucinations caused Thompson
to repeatedly push another student, resulting in Thompson’s
expulsion from campus housing. Although Thompson
consistently denied any present intent to harm himself or others,
he told multiple UCLA employees that he had previously
experienced general thoughts about harming the people who were
harassing him. Moreover, he repeatedly warned school
32
administrators that if the insults and harassing behavior did not
stop, he would be forced to take matters into his own hands.
Finally, both of Rosen’s experts concluded that Thompson’s
continuous, erratic behavior demonstrated that he presented a
foreseeable threat to his co-students. Considered together, this
evidence is sufficient to support a rational inference that the
university should have foreseen Thompson posed a threat.
We likewise conclude there is a triable issue of fact whether
the university acted reasonably in response to the threat
Thompson posed. In particular, as the dissent noted in our prior
decision, the evidence suggests there may have been an
unreasonable failure of communication and lack of coordination
among the various professional teams responsible for responding
to situations of the type presented by Thompson. Both of Rosen’s
experts concluded that university personnel should have referred
Thompson to the Violence Prevention Team, which could have
then conducted a formal threat assessment and recommended
interventions that would have mitigated the threat he posed to
students. The defendants have presented no argument
explaining why no rational juror could find that the university’s
failure to involve the Violence Prevention Team at any time
during Thompson’s extended period of erratic behavior was
unreasonable. 17
17 In their petition for writ of mandate and supplemental
briefing, defendants argue that Rosen’s expert declarations do
not qualify as “competent” evidence, and therefore should not be
considered, because neither declaration “reference[s] or
acknowledge[s] the California legal standards that govern duty
and liability.” The defendants’ briefs, however, do not include
any legal analysis explaining why the experts were required to
discuss California law, nor have the defendants cited any legal
33
Defendants may ultimately persuade the finder of fact that
Thompson’s conduct was unforeseeable, or that university
employees exercised reasonable care under the circumstances.
However, this is not one of those exceptional cases where the
question of negligence is properly decided by the court as a
matter of law.
D. The Regents Is Not Statutorily Immune from Suit
Defendants assert that even if they owed Rosen a duty of
care and there are triable issues of fact regarding the breach of
that duty, they are nonetheless entitled to summary judgment on
immunity grounds pursuant to Government Code sections 856
and 820.2, and Civil Code section 43.92. Although the majority
did not address this issue in the prior opinion because it found
there was no duty, the dissent rejected it, concluding that while
these statutes shield certain aspects of this tragic situation from
liability, they do not, either singly or in combination, justify
denying Rosen the right to present her negligence claim to a jury.
The panel now unanimously agrees with that conclusion.
authority in support of their position. We therefore deem the
argument waived. (See People v. Hovarter (2008) 44 Cal. 4th 983,
1029 [“‘“[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on
a particular point, the court may treat it as waived, and pass it
without consideration”’”]; Akins v. State (1998) 61 Cal. App. 4th 1,
50 [“The contention is waived by failure to cite any legal
authority”]; Hess Collection Winery v. Agricultural Labor
Relations Bd. (2006) 140 Cal. App. 4th 1584, 1607, fn. 6 [argument
is waived for failure to cite any supporting authority].)
34
1. Rosen’s claim is not barred under Government Code
section 856
Government Code section 856, subdivision (a) provides, in
relevant part: “Neither a public entity nor a public employee
acting within the scope of his employment is liable for any injury
resulting from determining in accordance with any applicable
enactment: [¶] (1) Whether to confine a person for mental illness
or addiction.” The statute thus precludes any claim against the
university or its personnel for failing to seek or obtain
Thompson’s confinement. (Tarasoff, supra, 17 Cal.3d at p. 450
[section 856 immunizes claims “base[d] [on the] . . . fail[ure] to
procure [an individual’s] confinement”].)
Rosen’s negligence claim, however, does not challenge any
university decision regarding Thompson’s confinement. Instead,
she seeks to impose liability based on other allegedly negligent
behavior the university engaged in with respect to Thompson,
including the failure to refer Thompson to the Violence
Prevention Team, or to employ many of the other intervention
techniques that were available to the school under its existing
policies and procedures. This alleged conduct falls outside the
scope of section 856’s immunity provision.
2. Defendants’ alleged misconduct was not the result of
an act of discretion within the meaning of
Government Code section 820.2
The defendants also argue the university and its employees
are immune from Rosen’s claim pursuant to Government Code
sections 820.2 and 815.2. Section 820.2 provides: “Except as
otherwise provided by statute, a public employee is not liable for
an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in
him, whether or not such discretion be abused.” Government
35
Code section 815.2, subdivision (b), extends that discretionary act
immunity to the public entity whose employee’s conduct is at
issue: “Except as otherwise provided by statute, a public entity is
not liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from
liability.”
The Supreme Court has interpreted section 820.2 to
“allow[] immunity for basic policy decisions” by government
officials, but not for “the ministerial implementation of that basic
policy.” (Johnson v. State of California (1968) 69 Cal. 2d 782, 796
(Johnson).) In Johnson, the Court characterized this
“distinction” as being “between the ‘planning’ and ‘operational’
levels of decision-making.” (Id. at p. 794.) “There is no basis for
immunizing lower level decisions that merely implement a basic
policy already formulated. [Citation.] The scope of the
discretionary act immunity ‘should be no greater than is required
to give legislative and executive policymakers sufficient
breathing space in which to perform their vital policymaking
functions.’” (Barner v. Leeds (2000) 24 Cal. 4th 676, 685
(Barner).)
In Barner, supra, 24 Cal. 4th 676, which guides our analysis
here, the Court held that section 820.2 did not immunize a public
defender’s decisions made during the “representation of a
defendant in a criminal action.” (Id. at p. 679.) In its analysis,
the Court explained that while public defenders “must exercise
considerable judgment in making decisions regarding the type
and extent of services necessary to discharge his or her duty of
care to clients” (id. at p. 688), those decisions do “not involve
discretionary acts within the meaning of section 820.2 (i.e., policy
or planning decisions).” (Ibid.) The Court further explained that
36
while “the initial determination whether to provide
representation to a certain class of individuals or to represent a
particular defendant” might qualify as a “policy decision” (ibid.)
the subsequent provision of such services to an individual client
“consist[s] of operational duties that merely implement the initial
decision to provide representation and are incident to the normal
functions of the office of the public defender.” (Ibid.)
Under the analysis set forth in Barner, a university’s
decision to create specific programs and protocols to identify and
respond to threats of violence on campus would appear to qualify
as a planning or policy determination, and thus “discretionary”
within the meaning of section 820.2. Rosen’s claim, however,
does not challenge the adequacy of the university’s safety
programs or protocols. Instead, she challenges the manner in
which the university and its employees executed those programs
with respect to an individual student who Rosen alleges
presented a foreseeable threat of harm. 18 These alleged acts and
omissions constitute “subsequent ministerial actions in the
implementation of the basic decision” (Johnson, supra, 69 Cal.2d
at p. 797) to adopt measures to maintain a safe campus. Even
though the UCLA officials involved in this matter may have
18 In her return to the petition for writ of mandate, Rosen
specifically acknowledges that UCLA’s “policies and procedures”
were adequate. She claims, however, that “UCLA personnel
charged with executing these procedures failed” to properly do so.
Her expert declarations likewise acknowledge that UCLA’s
policies and procedures were adequate to identify and address
potential threats of violence. The expert witnesses claim,
however, that UCLA personnel failed to “comply with [these]
policies and procedures” by, among other things, failing to refer
Thompson to the Violence Prevention Team.
37
exercised highly skilled, professional judgment in making choices
among complex alternatives in their responses to the situation
presented by Thompson, Government Code section 820.2 does not
bar Rosen’s negligence claim.
3. Defendant Nicole Green is entitled to dismissal of
Rosen’s claims under Civil Code section 43.92
In our prior decision, we unanimously concluded that
defendant Nicole Green, a UCLA psychologist who treated
Thompson, was entitled to judgment pursuant to Civil Code
section 43.92 because there was no evidence that Thompson had
ever communicated to Green a serious threat of violence against
Rosen. In Regents, the Supreme Court “decline[d] . . . to revisit
[that] ruling,” noting that “Rosen’s petition for review was limited
to the issue of duty.” (Regents, supra, 4 Cal.5th at p. 634.)
We reaffirm our prior finding that Green is entitled to
judgment pursuant to Civil Code section 43.92. We further
conclude, however, that her removal from the case does not
preclude liability against the Regents if the negligence of other
university employees is demonstrated. 19
19 Rosen’s supplemental brief includes a request that we
award her attorney’s fees pursuant to Code of Civil Procedure
section 1021.5. We deny the request without prejudice to Rosen’s
right to seek such fees in the trial court.
38
DISPOSITION
The petition is granted with regard to defendant Nicole
Green, and is denied in all other respects. Plaintiff shall recover
her costs on the petition.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
39