Regents of the Univ. of Cal. v. Superior Court of L. A. Cnty.

Mullins v. Pine Manor College (1983) 389 Mass. 47 , 449 N.E.2d 331 ( 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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 [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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 [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

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 . )

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, 282 P.2d 12 [defining the "ordinary" standard of care]; see also People v. Superior Court (Sokolich) (2016) 248 Cal.App.4th 434 , 447, 204 Cal.Rptr.3d 526 ["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, 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ), there are several reasons we reject defendants request that we do so here.

their students in the curricular setting. The policy arguments defendants have raised in support of their more specific standard of care-that lay school personnel should not be held to a broader standard of care in anticipating potentially violent students than the school district's psychotherapists and protecting the medical information of medically ill students-apply equally in the context of secondary

students from foreseeable acts of violence would effectively

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, 177 Cal.Rptr.3d 184 .)

"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, 176 Cal.Rptr.3d 422 .)

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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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

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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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

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."

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, 148 Cal.Rptr. 361 , 582 P.2d 952 ["[d]ue care as an element of negligence presents a question of fact for the jury"]; Bigbee, supra, 34 Cal.3d at p. 56, 192 Cal.Rptr. 857 , 665 P.2d 947 ["Ordinarily, foreseeability [in negligence cases] is a question of fact for the jury"].) The issues can be resolved on summary judgment "only if, 'under the undisputed facts there is no room for a reasonable difference of opinion.' [Citation.]" ( Bigbee , supra , 34 Cal.3d at p. 56, 192 Cal.Rptr. 857 , 665 P.2d 947 [addressing foreseeability]; see also T.H. v. Novartis Pharmaceuticals Corp . (2017) 4 Cal.5th 145 , 188, 226 Cal.Rptr.3d 336 , 407 P.3d 18 ["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, 178 Cal.Rptr. 783 , 636 P.2d 1121 [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

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."

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

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 petition based on a finding of no duty. In

Regents of University of California v. Superior Court (2018) 4 Cal.5th 607 , 230 Cal.Rptr.3d 415 , 413 P.3d 656 ( 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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) The Court remanded

considered whether any of the "policy considerations" set forth in Rowland v. Christian (1968) 69 Cal.2d 108 , 70 Cal.Rptr. 97 , 443 P.2d 561 ( Rowland ) "justified excusing or limiting [a university's] duty of care." ( Regents, supra, 4 Cal.5th at p. 628, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) On the issue of foreseeability (see Kesner v. Superior Court (2016) 1 Cal.5th 1132 , 1145, 210 Cal.Rptr.3d 283 , 384 P.3d 283 ["[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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .)

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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .)

The Court next addressed whether any "public policy concerns" weighed in favor of excusing or limiting universities' duty of care. ( Regents, supra, 4 Cal.5th at p. 629.) The Court rejected defendants' assertion that imposing a duty to protect students from foreseeable acts of violence "would discourage colleges from offering comprehensive mental health and crisis management services," and create "incentive[s] to expel anyone who might pose a remote threat to others." ( Id. at p. 632, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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.

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

"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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 ; see also ibid .

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, 25 Cal.Rptr.2d 97 , 863 P.2d 167 ( 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, 25 Cal.Rptr.2d 97 , 863 P.2d 167 ["In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances"].)

Defendants, however, argue that "the standard of care ... should be that codified in Civil Code section 43.92, i.e., [¶] ... [¶] limited to those situations where the

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, 15 Cal.Rptr.3d 864 .) 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] 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."

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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 ; see also id . at p. 634, 230 Cal.Rptr.3d 415 , 413 P.3d 656 ["the reasonableness of a school's actions in response to a potential threat is a question of breach"].) Moreover, the opinion contains no language suggesting a university can be held liable only when the evidence shows the perpetrator previously made an actual threat of harm against an identifiable victim.

Second, the Supreme Court has previously held that the standard of care that governs a secondary school's duty to protect its students from foreseeable acts of violence is the ordinary reasonable person standard. In C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861 , 138 Cal.Rptr.3d 1 , 270 P.3d 699 ( Hart ), which Regents discusses with approval (see Regents, supra, 4 Cal.5th at p. 624, 230 Cal.Rptr.3d 415 , 413 P.3d 656 ), 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, 138 Cal.Rptr.3d 1 , 270 P.3d 699 .) 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, 138 Cal.Rptr.3d 1 , 270 P.3d 699 ; see also Hemady v. Long Beach Unified School Dist. (2006) 143 Cal.App.4th 566 , 570, 49 Cal.Rptr.3d 464 ["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

C. Triable Issues of Material Fact Exist as to Whether Defendants Breached their Duty of Care

In their petition for writ of mandate, defendants argued that even if they had a duty to respond to foreseeable threats of violence, "[t]he undisputed evidence establishes that [they] acted reasonably as a matter of law and cannot be held liable." According to defendants, "[t]he most the evidence remotely establishes is that Thompson was a mentally-ill student

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 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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .)

he was hearing voices, and stated that he would try to record what he was hearing. Thompson also reported that he continued to feel harassed by other students in his dormitory, which made him angry. Green diagnosed Thompson with schizophrenia, but concluded that he did not exhibit suicidal or homicidal ideation, and had not expressed any present intent to harm others. Thompson also met with CAPS psychiatrist Charles McDaniel. Thompson admitted to McDaniel that he had previously experienced "general ideations about harming others," but clarified that he had never formulated an actual plan, or identified a specific victim. ( Regents , supra , 4 Cal.5th at p. 615, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) 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.

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, 230 Cal.Rptr.3d 415 , 413 P.3d 656 .) Thompson,

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.

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 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

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 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

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 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, 131 Cal.Rptr. 14 , 551 P.2d 334 [ section 856 immunizes claims "base[d] [on the] ... fail[ure] to procure [an individual's] confinement"].)

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."

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, 73 Cal.Rptr. 240 , 447 P.2d 352 ( Johnson ).) In Johnson, the Court characterized this "distinction" as being "between the 'planning' and 'operational' levels of decision-making." ( Id . at p. 794, 73 Cal.Rptr. 240 , 447 P.2d 352 .) "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, 102 Cal.Rptr.2d 97 , 13 P.3d 704 ( Barner ).)

In Barner , supra , 24 Cal.4th 676 , 102 Cal.Rptr.2d 97 , 13 P.3d 704 , 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, 102 Cal.Rptr.2d 97 , 13 P.3d 704 .) 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, 102 Cal.Rptr.2d 97 , 13 P.3d 704 ), 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 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