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 

UNIVERSITY OF CALIFORNIA

et al., 

Petitioners, 

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

KATHERINE ROSEN,

Real Party in Interest.

 B259424

 (Los Angeles County

 Super. Ct. No. SC108504) 

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.
2

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 DavisDenny 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 
3

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. 
4

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
5

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. 
6

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.) 
7

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. 
8

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].)
9

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 
10

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 casespecific 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’ 
11

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.)
12

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 
13

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 
14

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.” 
15

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”].) 
16

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 widelydivergent 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 
17

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 
18

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. 
19

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 
20

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 
21

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. 
22

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. 
23

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 
24

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.]”].) 
25

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.)
26

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 
27

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 
28

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. 
29

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.
30

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 
31

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. 
32

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 
33

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, 
34

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].)
35

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.” 
36

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 
37

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. 
38

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. 
39

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.