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


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  • Filed 12/3/18; Opinion on remand from Supreme Court
    Reposted 12/4/18 with correct file date & caption
    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.
    THE 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
    ,
    4 Cal.5th at p. 626.) To accommodate these concerns, the Court
    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
    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 Cal. 2d 108
    (Rowland) “justified excusing or limiting [a
    9
    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.)
    The Court next addressed whether any “public policy
    concerns” weighed in favor of excusing or limiting universities’
    10
    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
    recognizing a legal duty to protect students from foreseeable
    threats would pose an unmanageable burden.” (Ibid.)
    11
    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
    university’s actions remains an open question, which the parties
    are free to litigate on remand.” (Ibid [emphasis omitted].)8
    8     The Court declined to review the unanimous portion of our
    opinion finding that defendant Nicole Green was entitled to
    12
    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
    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-
    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
    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
    [“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
    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
    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],
    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.)
    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
    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).)
    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
    16
    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],
    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
    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.”
    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
    17
    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
    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]
    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
    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
    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
    19
    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
    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
    20
    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
    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.
    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
    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.)
    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
    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.
    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
    23
    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
    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.”
    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
    no ‘degrees’ of care, as a matter of law; there are only different
    amounts of care, as a matter of fact. . . .” [Citation.]’ [Citation.]”].)
    24
    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
    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.)
    25
    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
    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
    26
    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.
    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
    27
    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
    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.
    28
    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
    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.
    29
    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
    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
    30
    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
    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.
    31
    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
    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
    32
    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
    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
    ,
    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.
    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
    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
    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
    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.”
    35
    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
    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
    36
    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
    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.
    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
    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