REGENTS OF THE UNIVERSITY OF CALIFORNIA v. S.C. (ROSEN)

Real Party in Interest, Katherine Rosen, Response to Amicus Curiae Brief

Cal.August 29, 2016

SUPREME COURT COP Y SUPREME ower ; FILED No.: 230568 | AUG 29 2016 Frank A. McGuire Clerk - IN THE SUPREME CouRT Daputy OF THESTATE OF CALIFORNIA THE REGENTS OF THE UNIVERSITY Court ofAppeal, OF CALIFORNIA,etc.,et al., ‘Second Appellate District, Division 7 Petitioners, No. B254959 vs. . Los Angeles CountySuperior Court LOS ANGELES COUNTY SUPERIOR COURT, © . No. SC108504 | Respondent. | RECEIVED KATHERINE ROSEN, . in oa ON Real Party in Interest AUG 2 g 2016 CLERK SUPREME COURT On Review of an Order Denying a Motion for Summary Judgment Honorable Gerald Rosenberg, Presiding UNIFIED RESPONSETO AMICI CURIAE Alan Charles Dell’Ario, SBN 60955 ’ Brian Panish, SBN 116060 ATTORNEYAT LAW *Deborah S. Chang, SBN 246013 1561 Third Street, Suite B PANISH, SHEA & BOYLE, LLP Napa, California 94559 | 11111 Santa Monica Boulevard, Suite 700 707 - 666 - 5351 Los Angeles, Califonia 90025 charles@dellario.org _ Tel: 310 - 477 - 1700 Fax: 310 - 477 - 1699 ‘Attorneys for Petitioner and Real Party In Interest Katherine Rosen No.: $230568 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE REGENTSOF THE UNIVERSITY Court of Appeal, OF CALIFORNIA,etc., et al., Second Appellate District, Division 7 Petitioners, No. B254959 VS. Los Angeles County Superior Court LOS ANGELES COUNTY SUPERIOR COURT, No. SC108504 Respondent. KATHERINE ROSEN, Real Party in Interest On Review of an Order Denying a Motion for Summary Judgment Honorable Gerald Rosenberg, Presiding UNIFIED RESPONSE TO AMICI CURIAE Alan Charles Dell’Ario, SBN 60955 Brian Panish, SBN 116060 ATTORNEY AT LAW *Deborah S. Chang, SBN 246013 1561 Third Street, Suite B PANISH, SHEA & BOYLE, LLP Napa, California 94559 11111 Santa Monica Boulevard, Suite 700 707 - 666 - 5351 Los Angeles, Califonia 90025 charles@dellario.org Tel: 310 - 477 - 1700 Fax: 310 - 477 - 1699 Attorneys for Petitioner and Real Party In Interest Katherine Rosen No.: S230568 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE REGENTS OF THE UNIVERSITY Court of Appeal, OF CALIFORNIA,etc.,et al., Second Appellate District, Division 7 Petitioners, No. B254959 VS. Los Angeles County Superior Court LOS ANGELES COUNTY SUPERIOR COURT, No. SC108504 Respondent. KATHERINE ROSEN, RealParty in Interest On Review of an Order Denying a Motion for Summary Judgment Honorable Gerald Rosenberg, Presiding UNIFIED RESPONSE TO AMICI CURIAE Alan Charles Dell’Ario, SBN 60955 Brian Panish, SBN 116060 ATTORNEY AT LAW *Deborah S. Chang, SBN 246013 1561 Third Street, Suite B PANISH, SHEA & BOYLE, LLP Napa, California 94559 11111 Santa Monica Boulevard, Suite 700 707 - 666 - 5351 Los Angeles, Califonia 90025 charles@dellario.org Tel: 310 - 477 - 1700 Fax: 310 - 477 - 1699 Attorneys for Petitioner and Real Party In Interest Katherine Rosen TABLE OF CONTENTS TABLE OF AUTHORITIES... ......... 0.0.2... eee eee eens 3 RESPONSE TO AMICI CURIAE......................0005 5 I. Amici fail to confine themselves to issues raised by the parties in the record. ............. 20... eee eee 6 II. Duty depends on circumstances. Amici’s fears of unlimited liability to all public sectors are unfounded IIT, UCLAnever met its summaryjudgment burden regarding Dr. Green............ 0.0.0. ee ee eee 9 CONCLUSION. ...... 0.0...tte10 WORD COUNT CERTIFICATE. ..................20 00005 12 PROOF OF SERVICE... 1.0.2... 0.0... eee eee ees 13 TABLE OF AUTHORITIES Cases: Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. ..... 0... ceeees 10 Crow v. State of California (1990) 222 Cal.App.3d 192...... 0.0... cceee 8 E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497.....0 0.0 cece ccc c eee ceeceeeeeees 6 Ewing v. Goldstein (2004) 120 Cal.App.4th 807. ....... ccc cece e eee eeeeees 6 Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252... 0.0... 0. cee eee 8 In re Marriage of Oddino (1997) 16 Cal.4th 67. 00.0.0 0 ccc cece cece ceeeeceeneees 6 Ochoa v. California State University (1999) 72 Cal.App.4th 1800 ...... 0.0.0... eee eee 8 Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456. 2...nee9 PLCM Groupv. Drexler (2000) 22 Cal.4th 1084. 2.0...0.nee6 Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576. 2.0...ceees 6 Tanya H. v. Regents of the University of California (1991) 228 Cal.App.3d 434.0... 00...eee 8 Trope v. Katz (1995) 11 Cal.4th 274. 2...0eeeees 6 Statutes, Rule and Constitution: 20 U.S.C. § 1092, subd. (f) (Clery Act).................000005 8 Cal. Court Rules, rules 8.520........0 0.0... cece cee eee 6 California Constitution, Art. 1, § 28 ............ 0.0.0 eee eee 8 Civil Code section 1710......... 0.0.0.2. c eee ee eee ne 8 Civil Code section 43.92 ........... ceeee ees 5 Other Authorities: Boyarsky, UCLA response teamsact to prevent violence on campus (Daily Bruin, Feb. 2, 2011.). 2... 2... . cccee 7 RESPONSE TO AMICI CURIAE Although they come from varying points of view, the several amici curiae supporting UCLA share several things in common. Foremost is their misunderstanding of how the very threat- assessment protocol employed by UCLA works as UCLA’s own expert, Eugene Deisinger, describes. The lesson of Virginia Tech and othersimilar tragedies is that “dangerous people rarely show all of their symptomsto just one department or group on campus.”’ But colleges can identify “red flags” that “prevent targeted violence from occurring.”” UCLA could have, and belatedly did, recognize that Damon Thompsonposeda real threat of physical violence to the women classmates he named including Katherine Rosen.° Nothingin the record supports amici’s claim that non- medical personnel are being held to a higher standard than are the psychotherapists. As Deisinger acknowledges, the UCLA protocol “was a multidisciplinary collaboration of representatives of campuslife.”* Civil Code section 43.92 is a psychotherapist- specific statute representing a legislative effort to strike an 1 7EX1918. ; 7EX1912. 3 6EX1547, 1552, 1562, 1574, 1584, 1595, 1726. 4 1EX211. appropriate balance between conflicting policy interests of public safety and the psychotherapist-patientprivilege.° The fears expressed by amici are imagined and unsupported by the record. The Court should disregard them. I. Amici fail to confine themselvesto issues raised by the parties in the record. “[AJn amicus curiae accepts the case ashe finds it and may not ‘launch out upon a juridical expedition of its own unrelated to the actual appellate record.’ (Citations).”(E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 513.) While the rule is not absolute, amici offer no reasons whythe court should depart from it. (Un re Marriage of Oddino (1997) 16 Cal.4th 67, 82 n. 7.) The rule makes sense because cases must be decided and opinions rendered based on the facts in the record. (See,e.g., Trope v. Katz (1995) 11 Cal.4th 274, 284.)“[T]he languageof an opinion must be construed with reference to the facts presented by the case; the positive authority of a decision is coextensive only with such facts.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1097.) Amici also are not exempt from the rule that factual assertions in briefs must be supportedbycitations to the record. (Cal. Court Rules, rules 8.520, subd. (b)(1); 8.204, subd. (a)(1)(C).) The courts have recognized a limited exception for ‘[t]he ‘Brandeis brief,’ which brings social statistics into the courtroom.”(Rivera v. 6 Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 816. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 572 n. 20.) For example, amicus California Psychiatric Association (PSA) quotes from a study on gun violence proffered by The Jed Foundation in its UCLA-paid-for amicusbrief in the Court of Appeal. (PSA at 7 fn. 2) Rosen completely discredited Jed’s reliance on that study and demonstrated how Jed’s other published articles support a finding of duty on thefacts of this case. (Rosen’s response to The Jed Foundation,filed 2-9-15 at 9, 11.) II. Duty depends on circumstances. Amici’s fears of unlimited liability to all public sectors are unfounded. Both the California State University and the California Medial Association indulge in hyperbole. Norisk exists that CSU staff will be called upon to apply “unfounded and undefined criteria” in discharging the duty they haveled their studentsto expect. As UCLA expert Deisingerstates, colleges can prevent targeted violence from occurring using well-established protocol. (7EX1912.) UCLA’s own director of Counseling and Psychiatric Services, Elizabeth Gong-Guy, acknowledged applying UCLA’s protocols to intervenein eight of 116 cases UCLA’s Consultation and Response Team considered in 2009-2010.° Rosen has never argued for broad duties with undefinedcriteria. She is concerned about her case, not about what happens at CSU campusesor,as 6 Boyarsky, UCLA response teams act to prevent violence on campus (Daily Bruin, Feb. 2, 2011.) 7 the California Medical Association posits, for California health care providers. The Court of Appeal majority fashioned a broad, no-duty rule on its own. Rosen asserts she should not be forced to bear the burden of UCLA’s mistakesin operating the threat-assessment protocols it elected to adopt and which becamepart of UCLA’s marketing plan’ to students andtheir families. CSU and the CMA complain that imposing a duty on UCLA underthe circumstancesof this case would be bad public policy. But they do not point to any competing policies and ignore the those on which Rosenrelies foundedin the California Constitution (Art. 1, § 28) and workplace-safety precedents such as Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252. Amici apparently recognize that the campus-drinking and intramural- 7 That colleges choose to market safety to students is not just an outgrowth of Virginia Tech. The Clery Act (20 U.S.C.§ 1092, subd. (f)) requires colleges to report campus-crimestatistics just so that students can have that information when they choose colleges. For CSU or the Regents to say that we have safe campuses without qualifying that statement with “but we’re not responsible if anything happensto you”is a species of fraud—“The suppression of a fact, by one... who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civil Code section 1710.) fighting cases® relied upon by the majority below have no application because they makeno attemptto rely on them. Amici postulate dire consequences should the Court rule for Rosen and conclude that underthe circumstancesof this case, UCLA hada duty to her regarding the threat Thompson posed. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 [this “particular plaintiff is entitled to protection.”].) CMA’s Chicken- Little argument dissolves when the proper duty analysis is employed, focused on the particular facts of this case. Rosen debunked each of UCLA’s policy argumentsin her reply on the merits by pointing out that UCLA wasalready conducting threat assessment without dire consequences to campuslife and student mental-health programs. (RBM 19-21.) Like UCLA before them, amici do not advancea single policy argument whythevictims of a college’s threat-assessment mistakes should bear the burden of them. III. UCLA never met its summary-judgment burden regarding Dr. Green. The California Psychiatric Association argues that Rosen, as the party opposing summary judgment, had the burden of producing evidence that Dr. Green knewofa threat to reasonably-identifiable potential Thompson victims. Rosen asserts that Dr. Green had the burden of producing evidence that 8 E.g., Crow v. State of California (1990) 222 Cal.App.3d 192; Tanya H. v. Regents of the University of California (1991) 228 Cal.App.3d 434; Ochoav. California State University (1999) 72 Cal.App.4th 1300. 9 she did not have such knowledge. The answerlies in Aguilarv. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857-858. [I]f a defendant moves for summary judgment against such a plaintiff, he may present evidence that would require such a trier of fact not to find any underlying material fact more likely than not. In the alternative, he may simply point out—heis not required to present evidence (Citation)—that the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow sucha trier of fact to find any underlying material fact more likely than not. Dr. Green never sought to rely on the first prong of the Court’s test. No declaration exists from her or any of the other UCLA personnel who were scrambling to locate and intervene with Thompsonthe final days. Rather, she argued that the email flowing back and forth between her and the other membersof the Consultation and Response Team did not support an inference of the requisite knowledge on her part. (1EX57.) This was not enough. Rosen demonstrated how the record supported an inference of the duty-creating knowledge. (RBM 25-26.) And thus she met whatever burden of production shifted to her. CONCLUSION California State University and the California Medical Association fail to advance any legal analysis or policy reasons why, on the circumstancesof this case, Rosen should bear the burden of UCLA’s threat-assessment mistakes. The California 10 Psychiatric Association would create a special rule for summary judgment where Civil Code section 43.92 was involved. In the end, amici addlittle or nothing to the discussion. UCLA owedRosenthecare it promised her when sheenrolled. Dated: August 25, 2016 ALAN CHARLES DELL’ARIO PANISH, SHEA & BOYLE, LLP Alan Charles Dell’Ario Attorneys for Katherine Rosen 11 WORD COUNT CERTIFICATE I certify that the foregoing Response to Amici Curiae contains 1,466 words as returned by Word Perfect X6. Alan Charles Dell’Ario 12 PROOF OF SERVICE I declare that: I am employed in the County of Napa, California. I am over the age of eighteen years andnot a party to the within cause; my business address is 1561 Third Street, Suite B, Napa, California 94559. On August 25, 2016, I served the within Response to Amici Curiae on the below named parties in said cause, by placing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States mail at Napa, California addressed asfollows: Charles F. Robinson University of California 1111 Franklin St., 8th Flr. Oakland, CA 94612 Attorneyfor Petitioners Kenneth A. Maranga MARANGA *MORGENSTERN 5850 Canoga Ave., Ste. 600 Woodland Hills, CA 91637 Attorneys for Petitioners Daniel H. Willick 1875 Century Park East, #1600 Los Angeles, CA 90067 Attorney for California Psychiatric Association, et al. Kevin S. Reed University of California Los Angeles 2135 MurphyHall 405 Hilgard Ave. Los Angeles, CA 90095 Attorneys for Petitioners Feris M. Greeberger GREINES, MARTIN, STEIN & RICHLAND, LLP 5900 Wilshire Blvd., 12th Flr. Los Angeles, CA 99036 Attorneys for Petitioners Hon. Gerald Rosenberg Los Angeles Superior Court 11701 S. La Cienega Los Angeles, CA 90045 Cassidy C. Davenport Cole Pedroza LLP 2670 Mission St., Ste. 200 Pasadena, CA 91108 Attorneys for California Medical Association, et al. 13 William C. Hsu Sharon J. Arkin California State University, Office 1720 Winchuck River Road of the General Counsel Brookings, OR 97415 401 Golden Shore,4th Flr. Long Beach, CA 90802 Attorney for Consumer Attorneys Attorney for California State of California,et al. University I served the Court of Appeal, Second District, Division Sevenvia e- submission. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 25, 2016 at Napa, California. Alan Charles Dell’Ario 14