Filed 11/27/18; Certified for Publication 12/19/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
UNIVERSITY OF SOUTHERN B288180
CALIFORNIA,
(Los Angeles County
Petitioner, Super. Ct. No. BC597033)
v.
SUPERIOR COURT OF
COUNTY OF LOS ANGELES,
Respondent;
CARSON BARENBORG,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Ruth Ann Kwan,
Judge. Petition granted.
Hill, Farrer & Burrill, Dean E. Dennis and Jenner C. Tseng
for Petitioner.
No appearance for Respondent.
Law Office of Martin N. Buchanan, Martin N. Buchanan;
Girardi | Keese and Amanda McClintock for Real Party in
Interest.
_____________________
Carson Barenborg was dancing on a makeshift raised
platform at a fraternity party near the University of Southern
California (USC) when another partygoer bumped into her,
causing her to fall to the ground and suffer serious injuries.
Barenborg, who was not a USC student, sued USC and others for
negligence, alleging that the university had a duty to protect her
from an unreasonable risk of harm and breached that duty by
failing to prevent or shut down the party. The trial court denied
USC’s motion for summary judgment. USC filed a petition for a
peremptory writ of mandate challenging the denial.
USC contends that it had no duty to protect members of the
public from the conduct of a third party at an off-campus
fraternity party. We agree and grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Incident
Several fraternities and sororities affiliated with USC
occupy houses in an area near the USC campus known as Greek
Row, including a chapter of Sigma Alpha Epsilon Fraternity.1 On
1 Sigma Alpha Epsilon Fraternity is a nonprofit corporation
and a national fraternal organization. We will use the term SAE
2
October 10, 2013, the day of a home football game, several
fraternities, including Cal. Gamma, held parties on Greek Row
where alcohol was served. The street was crowded with
partygoers.
USC’s Policy on Alcohol and Other Drugs required
fraternities and sororities to obtain prior authorization to serve
alcohol at social events. USC’s Social Events Policy prohibited
parties after 10 p.m. on evenings preceding school days, and
allowed parties only between Fridays at 3:00 p.m. and Sundays
at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013,
was unauthorized and violated both of these policies. USC was
aware of prior violations of university policy and other
misconduct at Cal. Gamma, some involving the use of alcohol,
and had recently issued warnings and imposed discipline on the
fraternity.
USC’s Department of Public Safety (DPS) employed safety
officers who patrolled the USC campus and Greek Row. On
October 10, 2013, before Barenborg’s injury, two DPS officers
visited Cal. Gamma several times in response to complaints of
loud music and public drinking. On each visit, they saw an
abundance of alcohol on the property. They asked the person in
charge at Cal. Gamma to turn down the music and reminded him
that public drinking was not allowed, but they did not shut down
the party. The two officers were not aware of USC’s policy
prohibiting parties on Thursdays and generally were untrained
to refer to the national organization. SAE’s local USC chapter
was California Gamma Chapter (Cal. Gamma). California
Gamma Building Association, a separate legal entity, owned the
Cal. Gamma fraternity house.
3
in the enforcement of USC’s policies governing alcohol use and
social events.
Barenborg was a 19-year-old student at Loyola Marymount
University at the time of her injury. On October 10, 2013, she
visited parties on Greek Row with a group of friends. Barenborg
consumed cocaine and five to seven alcoholic beverages before
arriving at Cal. Gamma, and she continued drinking alcohol after
she arrived there.
The Cal. Gamma party was in the backyard of the
fraternity house on and around a basketball court. There were
approximately 200 to 250 people at the party. A platform
approximately seven feet tall constructed from tables was being
used for dancing.
Barenborg and two female friends were stepping up onto
the platform where USC student Hollis Barth and another
woman were dancing when Barth gave them an unwelcoming
look. Just as Barenborg and one of her friends reached the top of
the platform, Barth bumped Barenborg and her friend off the
platform, they fell to the ground, and Barenborg sustained
serious injuries.2
2. The Complaint
Barenborg’s second amended complaint filed in September
2016 alleges a single cause of action for negligence against USC,
SAE, and Barth.3 Barenborg alleges that USC’s failure to enforce
both its own policies and state and local drinking laws resulted in
increased alcohol-related injuries at fraternity parties. She
2 No criminal charges were brought against Barth.
3 Barenborg later added California Gamma Building
Association as a defendant.
4
alleges that USC owed members of the public a duty of care to
avoid exposing them to an unreasonable risk of harm, and
breached that duty by failing to shut down the party on October
10, 2013.
3. The Summary Judgment Motion
USC moved for summary judgment, arguing that it had no
duty to protect members of the public from third party conduct
and had no special relationship with Barenborg giving rise to a
duty of care. USC also argued that it never voluntarily assumed
a duty to protect Barenborg and therefore could not be held liable
under the negligent undertaking doctrine, among other
arguments.4
Barenborg argued in opposition that USC owed her a duty
of care because (1) USC had a special relationship with its
students and their invitees; (2) USC voluntarily assumed a duty
to supervise behavior on and around campus, including at
fraternity houses on Greek Row, USC increased the risk of harm
by failing to shut down the Cal. Gamma party, and Barenborg
relied on USC to ensure a safe environment; and (3) USC had the
right to control the Cal. Gamma property and therefore owed a
duty of care to Barenborg as a social invitee under principles of
premises liability.
The trial court heard USC’s summary judgment motion in
November 2017. On January 11, 2018, the court filed a 16-page
order denying the motion. The trial court summarized its ruling:
4 SAE and California Gamma Building Association
successfully moved for summary judgment. Barenborg’s appeal
from the judgments in favor of SAE and California Gamma
Building Association is currently pending in this court (case
No. B289766).
5
“The Court cannot determine that, as a matter of law,
Defendant did not owe Plaintiff a duty of care. There are triable
issues of material fact as to the existence of a special relationship
between Defendant and Plaintiff. Specifically, evidence before
the Court suggests Defendant was aware that alcohol abuse in
the Greek System, including SAE, was a problem that caused
accidents and injuries, Defendant asserted control over SAE
and/or SAE’s ability to have events, Defendant voluntarily
assumed a protective duty to Plaintiff by having DPS officers
patrol and enforce the policies, and Plaintiff relied on
Defendant/DPS to provide her with a safe environment.”
4. The Petition for Writ of Mandate
On February 15, 2018, USC filed a petition for a
peremptory writ of mandate pursuant to Code of Civil Procedure
section 437c, subdivision (m)(1), challenging the denial of its
summary judgment motion.5 We issued an order to show cause.
We specifically directed the parties to address, in addition to any
other arguments, the California Supreme Court’s analysis in
Regents of the University of California v. Superior Court (2018)
4 Cal.5th 607 (Regents) regarding a college’s limited duty to
protect its students from foreseeable harm, and whether that
analysis applies in the present case.6
5 The parties stipulated to extend the time to file a writ
petition by 10 days, and the trial court so ordered.
6 Writ relief is extraordinary because an aggrieved party
usually has an adequate remedy by filing a postjudgment appeal.
A writ of mandate may be appropriate, however, if the erroneous
denial of a summary judgment motion would result in a trial on
nonactionable claims. (Pacific Gas and Electric Co. v. Superior
6
STANDARD OF REVIEW
“‘On review of an order granting or denying summary
judgment, we examine the facts presented to the trial court and
determine their effect as a matter of law.’ [Citation.] We review
the entire record, ‘considering all the evidence set forth in the
moving and opposition papers except that to which objections
have been made and sustained.’ [Citation.] Evidence presented
in opposition to summary judgment is liberally construed, with
any doubts about the evidence resolved in favor of the party
opposing the motion. [Citation.]
“Summary judgment is appropriate only ‘where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.’ [Citation.] A defendant seeking
summary judgment must show that the plaintiff cannot establish
at least one element of the cause of action. [Citation.] . . . ‘Duty,
being a question of law, is particularly amenable to resolution by
summary judgment.’ [Citation.]” (Regents, supra, 4 Cal.5th at
p. 618.)
DISCUSSION
1. The Duty of Care and Third Party Conduct
A duty of care is an essential element of a negligence cause
of action. (Regents, supra, 4 Cal.5th at p. 618.) “The
determination whether a particular relationship supports a duty
of care rests on policy and is a question of law. [Citation.]” (Id.
at p. 620.)
Court (2018) 24 Cal.App.5th 1150, 1157; Local TV, LLC v.
Superior Court (2016) 3 Cal.App.5th 1, 7.)
7
“‘A judicial conclusion that a duty is present or absent is
merely “‘a shorthand statement . . . rather than an aid to
analysis. . . . “[D]uty,” is not sacrosanct in itself, but only an
expression of the sum total of those considerations of policy which
lead the law to say that the particular plaintiff is entitled to
protection.”’” [Citation.] “Courts, however, have invoked the
concept of duty to limit generally ‘the otherwise potentially
infinite liability which would follow from every negligent
act. . . .’”’ [Citation.]” (Beacon Residential Community Assn. v.
Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)
As a general rule, each person has a duty to exercise
reasonable care to avoid causing injury to others. (Civ. Code,
§ 1714, subd. (a); Regents, supra, 4 Cal.5th at p. 619; Cabral v.
Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).)
However, a person who has not created a peril generally has no
duty to take affirmative action to protect against it, and a person
generally has no duty to protect another from the conduct of third
parties. (Regents, at p. 619 [‘“A person who has not created a
peril is not liable in tort merely for failure to take affirmative
action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act”];
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado)
[“as a general matter, there is no duty to act to protect others
from the conduct of third parties”]; Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1129 (Zelig) [“‘[a]s a general rule, one
owes no duty to control the conduct of another, nor to warn those
endangered by such conduct’”].)
Courts have recognized exceptions to the general rule of no
duty with respect to third party conduct where a “special
relationship” exists and where the defendant engages in a
8
“negligent undertaking.” (Regents, supra, 4 Cal.5th at pp. 619–
620; Delgado, supra, 36 Cal.4th at p. 249.)
A defendant may owe a duty to protect the plaintiff from
third party conduct if the defendant has a special relationship
with either the plaintiff or the third party. (Regents, supra,
4 Cal.5th at pp. 619–620; Tarasoff v. Regents of University of
California (1976) 17 Cal.3d 425, 435 (Tarasoff); Rest.3d Torts,
Liability for Physical and Emotional Harm, §§ 40, 41.) A related
but separate basis for such a duty is where the defendant
voluntarily undertakes to provide protective services for the
plaintiff’s benefit, and either (a) the defendant’s failure to
exercise reasonable care increases the risk of harm to the
plaintiff, or (b) the plaintiff reasonably relies on the undertaking
and suffers injury as a result. (Delgado, supra, 36 Cal.4th at
pp. 248–249; Williams v. State of California (1983) 34 Cal.3d 18,
23 (Williams); Rest.3d Torts, supra, § 42.)
2. Regents Clarifies the Boundaries of a University’s Duty of
Care7
In Regents, supra, 4 Cal.5th 607, a college student with a
known history of mental illness, who had admitted to a
university psychologist that he was thinking of harming others,
stabbed another student in a chemistry laboratory on campus.
The victim sued the university and several of its employees for
negligence. (Id. at pp. 613–615.) The California Supreme Court
stated, “In general, each person has a duty to act with reasonable
care under the circumstances. [Citations.] However, ‘one owes
no duty to control the conduct of another, nor to warn those
7 Neither the trial court nor the parties had the benefit of
Regents’ guidance at the time of the summary judgment motion
hearing.
9
endangered by such conduct.’ [Citation.] ‘A person who has not
created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is
some relationship between them which gives rise to a duty to act.’
[Citation.]” (Id. at p. 619.)
Regents first considered whether a university has a special
relationship with its students supporting a duty to warn or
protect them from foreseeable harm. (Regents, supra, 4 Cal.5th
at p. 620.) The court explained that special relationships
typically are characterized by the plaintiff’s dependence on the
defendant for protection and the defendant’s superior control over
the means of protection. (Id. at pp. 620–621.) Special
relationships also are limited to specific individuals, rather than
the public at large. (Id. at p. 621.) “Finally, although
relationships often have advantages for both participants, many
special relationships especially benefit the party charged with a
duty of care. [Citation.] Retail stores or hotels could not
successfully operate, for example, without visits from their
customers and guests.” (Ibid.)
Regents explained that shifting cultural attitudes have
changed the legal significance of the college-student relationship.
Colleges once were regarded as standing in loco parentis to
students, resulting in both an obligation to protect students and
some degree of immunity from suit by students. Later, when
social changes led to greater privacy and autonomy rights for
adult students, courts generally treated colleges as “bystanders”
with a limited duty to students arising from a business
relationship, but no broader duty based on a special relationship.
(Regents, supra, 4 Cal.5th at p. 622.) “While the university might
owe a duty as a landowner to maintain a safe premises, courts
10
typically resisted finding a broader duty based on a special
relationship with students. [Citation.] This was particularly so
when injuries resulted from alcohol consumption or fraternity
activity. [Citation.]” (Ibid.)
Regents discussed three Court of Appeal opinions from the
“bystander” era. (Regents, supra, 4 Cal.5th at pp. 622–624.) In
Baldwin v. Zoradi (1981) 123 Cal.App.3d 275 (Baldwin), a college
student was injured in an off-campus drag race after the drivers,
who were also students, drank alcohol in dormitories on campus
despite the university’s prohibition against alcohol on campus.
(Id. at p. 279.) Baldwin stated that the former in loco parentis
role of college administrators had yielded to students’ greater
independence. (Id. at p. 287.) Regents stated, “Distinguishing
special relationships in other contexts, the [Baldwin] court
concluded the university lacked sufficient control over student
behavior to justify imposing a duty to prevent on-campus
drinking. [Citation.]” (Regents, supra, 4 Cal.5th at p. 623.)
In Crow v. State of California (1990) 222 Cal.App.3d 192
(Crow), a college student was injured when another student
attacked him at a dormitory “keg party.” (Id. at p. 197.) Crow
largely followed the reasoning in Baldwin, supra, 123 Cal.App.3d
275, stating, “Given these realities of modern college life, the
university does not undertake a duty of care to safeguard its
student from the risks of harm flowing from the use of alcoholic
beverages.” (Crow, at p. 209.)
In Tanja H. v. Regents of University of California (1991)
228 Cal.App.3d 434 (Tanja H.), a college student was raped by
other students in a dormitory on campus after a party with
alcohol. (Id. at p. 436.) Citing Baldwin, supra, 123 Cal.App.3d
275, and Crow, supra, 222 Cal.App.3d 192, Tanja H. stated that a
11
duty to prevent alcohol-related crimes would require universities
to “impose onerous conditions on the freedom and privacy of
resident students—which restrictions are incompatible with a
recognition that students are now generally responsible for their
own actions and welfare[.]” (Tanja H., at p. 438.)
Regents stated, “When the particular problem of alcohol-
related injuries is not involved, our cases have taken a somewhat
broader view of a university’s duties toward its students.”
(Regents, supra, 4 Cal.5th at p. 623; italics added.) Peterson v.
San Francisco Community College Dist. (1984) 36 Cal.3d 799
(Peterson) held that a community college district owed a duty to
warn its students of known dangers posed by criminals on
campus. The duty was based on the district’s status as a
landowner. (Id. at pp. 808–809; see Regents, at p. 624.) Avila v.
Citrus Community College Dist. (2006) 38 Cal.4th 148 held that a
community college district hosting an intramural sports
competition owed a duty to participating students not to increase
the risks inherent in the sport. (Id. at p. 162; see Regents, at
p. 624.) C.A. v. William S. Hart Union High School Dist. (2012)
53 Cal.4th 861, involving a guidance counselor’s sexual
harassment of a high school student, held that a school district
had a special relationship with its students arising from
mandatory attendance and the district’s “comprehensive control
over students,” and that the district owed a duty of care to protect
students from foreseeable injury by third parties acting
negligently or intentionally. (Id. at pp. 869–870; see Regents, at
p. 624.)
Regents concluded that postsecondary schools have a
special relationship with their students “while they are engaged
in activities that are part of the school’s curriculum or closely
12
related to its delivery of educational services.”8 (Regents, supra, 4
Cal.5th at pp. 624–625.) Students depend on their college to
provide structure, guidance, and a safe learning environment.
Meanwhile, the college has superior control over the campus
environment, imposes rules and restrictions, employs resident
advisors, mental health counselors, and campus police, can
monitor and discipline students, and, more broadly, has the
power to influence students’ values and behavior. (Id. at p. 625.)
Regents stated, “The special relationship we now recognize . . .
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.” (Id. at p. 627.)
Regents noted the limits of such a special relationship,
stating: “Of course, many aspects of a modern college student’s
life are, quite properly, beyond the institution’s control. Colleges
generally have little say in how students behave off campus, or in
their social activities unrelated to school. It would be unrealistic
for students to rely on their college for protection in these
settings, and the college would often be unable to provide it. This
is another appropriate boundary of the college-student
relationship: Colleges are in a special relationship with their
enrolled students only in the context of school-sponsored
activities over which the college has some measure of control.”
(Regents, supra, 4 Cal.5th at p. 626.)
Regents concluded that as a result of the special
relationship, colleges owe a duty to exercise reasonable care to
8 For purposes of its discussion, Regents did not distinguish
undergraduate from postgraduate students and used the terms
“college” and “university” interchangeably. (Regents, supra, 4
Cal.5th at p. 613, fn. 1.)
13
protect students from foreseeable acts of violence in the
classroom and during curricular activities. (Regents, supra,
4 Cal.5th at p. 627.) Considering the Rowland factors (Rowland
v. Christian (1968) 69 Cal.2d 108), Regents further concluded that
violence in the classroom was sufficiently foreseeable, there was a
close connection between the university’s alleged negligence and
the plaintiff’s injury, and public policy considerations did not
justify precluding liability. (Regents, at pp. 628–634.)
Regents disapproved Baldwin, supra, 123 Cal.App.3d 275,
Crow, supra, 222 Cal.App.3d 192, Tanja H., supra, 228
Cal.App.3d 434, Ochoa v. California State University (1999) 72
Cal.App.4th 1300 (Ochoa), and Stockinger v. Feather River
Community College (2003) 111 Cal.App.4th 1014 (Stockinger), but
only “[t]o the extent they are inconsistent with our holdings
regarding the special relationship between colleges and students,
or colleges’ duty of care . . . .”9 (Regents, supra, 4 Cal.5th at
p. 634, fn. 7.)
3. USC Did Not Have a Special Relationship with
Barenborg
A defendant may have an affirmative duty to protect the
plaintiff from the conduct of a third party if the defendant has a
special relationship with the plaintiff. (Regents, supra, 4 Cal.5th
at p. 619; Delgado, supra, 36 Cal.4th at p. 235.) Examples of
9 Ochoa held that a university had no special relationship
with an adult student and no duty to protect the student from the
criminal act of another student during an intramural soccer
game. (Ochoa, supra, 72 Cal.App.4th at pp. 1305–1306.)
Stockinger held that a community college owed no duty of care to
an adult student participating in a school-sponsored, off campus
activity. (Stockinger, supra, 111 Cal.App.4th at pp. 1031–1036.)
14
such a relationship include the relationships between common
carriers and their passengers, innkeepers and their guests,
business proprietors and their invitees, landlords and their
tenants, and colleges and students engaged in curricular
activities. (Regents, at p. 620; Delgado, at pp. 235–236.)
Unlike the plaintiff in Regents, supra, 4 Cal.5th 607,
Barenborg was not a student attending the defendant university
at the time of her injury, and she was not engaged in an activity
closely related to the delivery of educational services. However,
she contends that USC had a special relationship with her based
not on her status as a student, but on her status as an invitee at
premises subject to USC’s control.
The relationship between a possessor of land and an invitee
is a special relationship giving rise to a duty of care. (Peterson,
supra, 36 Cal.3d at p. 806 [a special relationship exists between
“a possessor of land and members of the public who enter in
response to the landowner’s invitation”].) A person who
possesses or controls land has a duty to exercise reasonable care
to maintain the land in a reasonably safe condition. (Alcaraz v.
Vece (1997) 14 Cal.4th 1149, 1156 (Alcaraz); Staats v. Vintner’s
Golf Club, LLC (2018) 25 Cal.App.5th 826, 833.) “A defendant
need not own, possess and control property in order to be held
liable; control alone is sufficient.” (Alcaraz, at p. 1162; see
Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394,
401 [tenant owed a duty of care on property outside of the leased
premises based on tenant’s exercise of control].) The duty of care
includes a duty to take reasonable steps to protect persons on the
property from physical harm caused by the foreseeable conduct of
third parties. (Peterson, at 807; see Delgado, supra, 36 Cal.4th at
15
p. 244 [business proprietor has a duty to take reasonable steps to
protect against foreseeable criminal acts of third parties].)
Barenborg argues that USC had a special relationship with
her based on its control of the property because the fraternity
house was subject to USC’s policies and was monitored by its
public safety officers. She cites Alcaraz, supra, 14 Cal.4th 1149,
and Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656
(Southland) in support of her argument. Neither is apposite.
In Alcaraz, the plaintiff was injured when he stepped into a
water meter box near his rental unit. (Alcaraz, supra, 14 Cal.4th
at p. 1152.) The meter box was located on a strip of land owned
by the city between the sidewalk and the defendants’ property
line. (Ibid.) Alcaraz stated that a defendant’s duty to maintain
land in a reasonably safe condition extends to land over which
the defendant exercises control, regardless of who owns the land.
(Id. at pp. 1158–1159.) “As long as the defendant exercised
control over the land, the location of the property line would not
affect the defendant’s potential liability.” (Id. at p. 1161.)
Evidence that the defendant maintained the lawn surrounding
the meter box and, after the plaintiff’s injury, constructed a fence
enclosing the entire lawn, including the meter box, created a
triable issue of fact as to whether the defendants exercised
control over the land where the plaintiff was injured, precluding
summary judgment.10 (Id. at pp. 1161–1162, 1167.)
10 Alcaraz cautioned, “This is not to say that the simple act of
mowing a lawn on adjacent property (or otherwise performing
minimal, neighborly maintenance of property owned by another)
generally will, standing alone, constitute an exercise of control
over property and give rise to a duty to protect or warn persons
entering the property.” (Alcaraz, supra, 14 Cal.4th at p. 1167;
16
Southland, supra, 203 Cal.App.3d 656, involved an assault
on a convenience store customer in a vacant lot adjacent to the
store property. The defendant store owners did not own or lease
the vacant lot, but their customers often parked there, their lease
authorized their nonexclusive use of the lot for customer parking,
and store employees previously had taken action to remove
loiterers from both the store property and the adjacent lot. (Id. at
pp. 666–667.) Southland stated that a defendant may have a
duty to protect a plaintiff from the conduct of third parties on
property the defendant owns, possesses, or controls. (Id. at
p. 664.) The evidence created a triable issue of fact as to whether
the defendant exercised control over the adjacent lot, precluding
summary judgment.11 (Id. at pp. 666–667.)
see Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198
[“simple maintenance of an adjoining strip of land owned by
another does not constitute an exercise of control over that
property”].)
11 Barenborg cites Southland, supra, 203 Cal.App.3d 656, for
the proposition that a defendant’s apparent control over the
property is sufficient to create a special relationship even if the
defendant did not actually own, possess, or control the property.
Southland held that the evidence created a triable issue of fact as
to whether the defendants actually exercised control over the
property. (Id. at pp. 666–667; see Alcaraz, supra, 14 Cal.4th at
p. 1163 [describing the reference to “commercial benefit” in
Southland as “but one factor bearing upon the dispositive issue of
whether the store exercised control over the adjacent property”].)
References in the Southland opinion to “actual or apparent
control” (id. at pp. 662, 664) are dicta and do not support the
proposition that apparent control is sufficient. (Santisas v.
Goodin (1998) 17 Cal.4th 599, 620 [“[a]n appellate decision is not
17
Here, in contrast, USC did not exercise control over the
property where the injury occurred. Unlike the defendants in
Alcaraz, supra, 14 Cal.4th 1149, USC did not maintain and build
a fence around the property. Unlike the defendant in Southland,
supra, 203 Cal.App.3d 656, USC did not have a nonexclusive
right to use the property, and its invitees did not regularly use
the property. Although USC’s policies governing use of alcohol
and social events applied to SAE, those policies, along with DPS
patrols to enforce those policies, did not constitute an exercise of
control over the property. (Rabel v. Illinois Wesleyan University
(1987) 161 Ill.App.3d 348, 360–361 (Rabel) [student injured
during drunken fraternity prank at on-campus dormitory;
university did not have special relationship with the plaintiff in
that context despite the school’s rules and regulations prohibiting
alcohol consumption]; A.M. v. Miami University (Ohio 2017) 88
N.E.3d 1013, 1024 [plaintiff was sexually assaulted by fellow
student at that student’s off-campus dwelling and alleged that
university knew of assailant’s proclivities; university did not have
a special relationship “with regard to its students which reached
beyond university activities or premises under its possession or
control”].)12
authority for everything said in the court’s opinion but only ‘for
the points actually involved and actually decided’”].)
12 We note that Regents cited out-of-state cases in support of
its holding that universities have a limited special relationship
with their students. (Regents, supra, 4 Cal.5th at pp. 626–627.)
We are free to cite both published and unpublished decisions
from other jurisdictions and rely on them as persuasive
authority. (Lebrilla v. Farmers Group, Inc. (2004) 119
Cal.App.4th 1070, 1077; Brown v. Franchise Tax Board (1987)
197 Cal.App.3d 300, 306, fn. 6.)
18
Barenborg also argues that USC had a special relationship
with her because “security personnel hired by a business also
have a special relationship with visitors to the property,” citing
Marois v. Royal Investigation & Patrol, Inc. (1984) 162
Cal.App.3d 193 (Marois). In that case, a restaurant owner hired
a private security firm to provide security at the restaurant.
After a security guard told a man to leave the restaurant, the
man vandalized a kiosk in the parking lot using a baseball bat,
began fighting with a patron, and when the plaintiff approached
him struck the plaintiff with the bat. (Id. at pp. 196–197.)
Marois stated that a security guard hired by a business has a
special relationship with the business’s customers and has a duty
to protect those customers on the premises. (Id. at pp. 199–200.)
The rule stated in Marois is inapplicable because USC did not
possess or control the fraternity house, and did not hire security
guards to provide security at the fraternity house. (See Titus v.
Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906,
912 (Titus) [homeowners association had no special relationship
with either plaintiff or an inebriated driver despite having rules
and regulations to protect persons on the property and hiring a
security company].)
4. USC Did Not Have a Special Relationship with Cal.
Gamma
A defendant may have an affirmative duty to protect the
plaintiff from the conduct of a third party if the defendant has a
special relationship with the third party. (Regents, supra,
4 Cal.5th at p. 619; Tarasoff, supra, 17 Cal.3d at p. 435.) “[A]
duty to control may arise if the defendant has a special
relationship with the foreseeably dangerous person that entails
an ability to control that person’s conduct. [Citation.]” (Regents,
19
at p. 619.) Examples of such a special relationship include the
relationships between parent and child, psychotherapist and
patient, and hospital and patient. (Ibid.; Tarasoff, at p. 436.)
Barenborg argues that USC had a special relationship with
Cal. Gamma and its members because USC had the ability to
control the fraternity by enforcing the university’s policies
regarding alcohol use and social events. She notes that one of the
stated goals of USC’s policies was to protect the campus
community, including invitees to Greek Row.
The special relationship recognized in Regents, supra,
4 Cal.5th 607, was limited to enrolled students “while they are
engaged in activities that are part of the school’s curriculum or
closely related to its delivery of educational services.” (Id. at
p. 625.) Regents noted that, unlike such curricular activities,
“many aspects of a modern college student’s life are, quite
properly, beyond the institution’s control. Colleges generally
have little say in how students behave off campus, or in their
social activities unrelated to school. It would be unrealistic for
students to rely on their college for protection in these settings,
and the college would often be unable to provide it.” (Id. at
p. 626.)
These observations are relevant not only to the college-
student relationship and the limited duty it supports, but also to
the relationship between a college and fraternity members
participating in off-campus social activities. A college has little
control over such noncurricular, off campus activities, and it
would be unrealistic for students and their guests to rely on the
college for protection in those settings. (See Pawlowski v. Delta
Sigma Phi (Conn.Super.Ct., Jan. 23, 2009, No. CV-03-0484661S)
2009 WL 415667, p. 6 [“As a practical matter, it may be
20
impossible for a university to police students’ off-campus alcohol
consumption”]; A.M. v. Miami University, supra, 88 N.E.3d at
pp. 1024–1025 [university did not have a special relationship
with student who sexually assaulted another student in off-
campus attack; university’s ability to discipline a student for off-
campus conduct does not impose a duty to control the conduct of
the student].) The dependency and control that are characteristic
of special relationships are absent in those circumstances. We
conclude that USC had no special relationship with Cal. Gamma
or its members so as to give rise to a duty of care owed to guests
at the party.
5. The Negligent Undertaking Doctrine Is Inapplicable
The negligent undertaking theory of liability holds that a
person who has no affirmative duty to act but voluntarily acts to
protect another has a duty to exercise due care if certain
conditions are satisfied.13 (Delgado, supra, 36 Cal.4th at p. 249;
Paz v. State of California (2000) 22 Cal.4th 550, 558 (Paz).)
“The general rule is that a person who has not created a
peril is not liable in tort for failing to take affirmative action to
protect another unless they have some relationship that gives
rise to a duty to act. [Citation.] However, one who undertakes to
aid another is under a duty to exercise due care in acting and is
liable if the failure to do so increases the risk of harm or if the
harm is suffered because the other relied on the undertaking.
[Citation.]” (Paz, supra, 22 Cal.4th at pp. 558–559.)
“Our cases establish that a volunteer who, having no initial
duty to do so, undertakes to provide protective services to
13 The negligent undertaking doctrine is sometimes called the
“Good Samaritan” rule, but is actually an exception to that rule.
(Delgado, supra, 36 Cal.4th at p. 249, fn. 28.)
21
another, will be found to have a duty to exercise due care in the
performance of that undertaking if one of two conditions is met:
either (a) the volunteer’s failure to exercise such care increases
the risk of harm to the other person, or (b) the other person
reasonably relies upon the volunteer’s undertaking and suffers
injury as a result.” (Delgado, supra, 36 Cal.4th at p. 249.)
The foundational requirement for liability under a
negligent undertaking theory is the undertaking of a task that
the defendant allegedly performed negligently. (Paz, supra, 22
Cal.4th at p. 559.) The undertaking must be to render services
that the defendant should recognize as necessary for the
plaintiff’s protection. (Id. at pp. 559–560; Artiglio v. Corning, Inc.
(1998) 18 Cal.4th 604, 618 (Artiglio).) In addition to satisfying
these requirements, the plaintiff also must satisfy one of two
conditions: either (a) the defendant’s failure to exercise
reasonable care increased the risk of harm to the plaintiff, or (b)
the plaintiff reasonably relied on the undertaking and suffered
injury as a result.14 (Delgado, supra, 36 Cal.4th at p. 249;
Williams, supra, 34 Cal.3d at p. 23; Rest.3d Torts, supra, § 42; cf.
Paz, supra, 36 Cal.4th at p. 560 [assuming the defendant
14 The negligent undertaking doctrine encompasses both
undertakings to render protective services to the plaintiff
(Rest.2d Torts, § 323), as Barenborg claims here, and
undertakings to render services to a third party to protect the
plaintiff (Rest.2d Torts, § 324A). (Delgado, supra, 36 Cal.4th at
p. 249, fn. 28.) Section 42 of the Restatement Third of Torts,
Liability for Physical and Emotional Harm, replaces section 323
of the Restatement Second of Torts, and section 43 of the Third
Restatement replaces section 324A of the Second Restatement.
(Rest.3d Torts, supra, §§ 42, com. a, p. 92, 43, com. a, pp. 114–
115.)
22
undertook to provide protective services, summary judgment was
proper because the plaintiff could not establish any of the
conditions for liability].)
Whether the defendant’s undertaking, if proven, gave rise
to a duty of care is a question of law for the court to decide.
(Artiglio, supra, 18 Cal.4th at p. 615; Peredia v. HR Mobile
Services, Inc. (2018) 25 Cal.App.5th 680, 700.) “[T]he scope of
any duty assumed depends upon the nature of the undertaking.”
(Delgado, supra, 36 Cal.4th at p. 249.) Delgado stated that
merely because a business proprietor “‘chooses to have a security
program’ that includes provision of a roving security guard does
not signify that the proprietor has assumed a duty to protect
invitees from third party violence. [Citation.]” (Id. at pp. 249–
250.)
Similarly here, we conclude that by adopting policies
regarding alcohol use and social events and providing a security
patrol both on and off campus, USC did not assume a duty to
protect invitees from third-party conduct at fraternity parties.
Again, a college has little control over such noncurricular, off
campus activities, and it would be unrealistic for students and
their guests to rely on the college for protection in those settings.
These considerations support the conclusion not only that
there was no special relationship, but also that by adopting those
measures to promote safety and a suitable learning environment,
USC did not assume a duty to protect guests at off-campus
fraternity parties from the conduct of other guests. (See
Mynhardt v. Elon University (2012) 220 N.C.App. 368, 375 [by
adopting rules and regulations on alcohol use, university did not
assume a duty to protect student from injury at an off-campus
fraternity party]; Rabel, supra, 161 Ill.App.3d at pp. 362–363 [by
23
equipping its buildings with security devices and employing
security guards, university did not assume a duty to protect
students from criminal attacks]; Titus, supra, 118 Cal.App.4th at
p. 912 [by adopting rules and regulations to protect persons on
the property and hiring a security company, homeowners
association did not create a duty to protect residents from an
inebriated driver]; cf. Coghlan v. Beta Theta Pi Fraternity (1999)
133 Idaho 388, 400, [university assumed a duty to protect a
student because two university employees were present to
supervise a fraternity party and should have known that the
student was intoxicated].)
Moreover, the evidence here cannot support an inference
that USC’s conduct increased the risk of harm to Barenborg. By
establishing policies governing fraternities, providing a security
patrol with authority to enforce those policies both on and off
campus, and failing to enforce those policies by shutting down the
Cal. Gamma party after it began or preventing the party from
occurring in the first place, USC did not create any new peril.
USC’s failure to prevent or curtail the party allowed the party to
occur and continue, but neither created the party nor increased
the risks inherent in the party.15
A defendant does not increase the risk of harm by merely
failing to eliminate a preexisting risk. (Paz, supra, 22 Cal.4th at
p. 560 [“a failure to alleviate a risk cannot be regarded as
tantamount to increasing that risk”]; Williams, supra, 34 Cal.3d
at p. 27 [highway patrol officers assisting an injured driver “took
15 USC had no opportunity to prevent the party from taking
place because Cal. Gamma did not request permission before
hand, as required by the rules. There is no evidence that USC
had any prior knowledge the party would take place.
24
no affirmative action which contributed to, increased, or changed
the risk which would have otherwise existed”]; City of Santee v.
County of San Diego (1989) 211 Cal.App.3d 1006, 1016
[“nonfeasance which results in failure to eliminate a preexisting
risk is not equivalent to nonfeasance which increases a risk of
harm”]; see Pawlowski v. Delta Sigma Phi, supra, 2009 WL
415667, p. 4 [university’s alleged failure to enforce its own
policies and failure to supervise off-campus alcohol use did not
increase the risk of harm].) Barenborg’s argument that USC’s
failure to effectively discipline the fraternity for prior
unauthorized parties emboldened the fraternity, causing it to
hold another unauthorized party with more dangerous conduct is
mere speculation without evidentiary support.
The evidence here also cannot support an inference that
Barenborg actually or reasonably relied on USC to protect her
from harm. Despite her deposition testimony that she relied on
DPS to protect her,16 there is no indication that her awareness of
the existence of DPS caused her to behave any differently.
(Williams , supra , 34 Cal.3d at p. 28 [plaintiff must show
detrimental reliance on defendant’s conduct “which induced a
false sense of security and thereby worsened her position”].) The
evidence also does not support her claim that any reliance was
reasonable. Barenborg acknowledged that the party was “very
large, very crazy, packed and crowded,” and there was no visible
security or control. Alcohol was plentiful. Barenborg had already
consumed cocaine and several alcoholic drinks. She stepped onto
a makeshift raised platform to dance with her friends amid other
16 In her deposition, Barenborg answered “Yes” to the
question, “Prior to your injury, did you rely on the USC
Department of Public Safety officers to protect you?”
25
partygoers and was bumped off the platform and fell to the
ground. In these circumstances, any reliance on USC or DPS to
protect her from harm was unreasonable. (Alliance Mortgage Co.
v. Rothwell (1995) 10 Cal.4th 1226, 1239 [“‘whether a party’s
reliance was justified may be decided as a matter of law if
reasonable minds can come to only one conclusion based on the
facts’”].)
6. Consideration of the Rowland Factors Does Not Support a
Duty of Care
Courts weigh several factors in determining whether to
recognize an exception to the general duty under Civil Code
section 1714, subdivision (a) to exercise ordinary care. Those
factors include, “‘the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness
of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
the policy of preventing future harm, the extent of the burden to
the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’” (Regents, supra, 4 Cal.5th at p. 628, quoting Rowland
v. Christian (1968) 69 Cal.2d 108, 113.)
An analysis of the Rowland factors may be unnecessary if
the court determines as a matter of law based on other policy
considerations that no duty exists in a category of cases. (See
Zelig, supra, 27 Cal.4th at pp. 1128–1131 [found no special
relationship and no negligent undertaking upon which to base a
duty of care without a Rowland analysis]; Hoff v. Vacaville
Unified School Dist. (1998) 19 Cal.4th 925, 933–937 [held the
special relationship between a school district and a student did
26
not create a duty of care toward nonstudents endangered by
student conduct without a Rowland analysis]; Williams, supra,
34 Cal.3d at pp. 27–28 [found no special relationship and no
negligent undertaking upon which to base a duty of care without
a Rowland analysis]; Suarez v. Pacific Northstar Mechanical, Inc.
(2009) 180 Cal.App.4th 430, 438 [because the balancing of factors
has already been performed in establishing the common law rule
that there is no duty to come to the aid of another absent a
special relationship, it is unnecessary to analyze the Rowland
factors in each case]; Seo v. All-Makes Overhead Doors (2002)
97 Cal.App.4th 1193, 1203 [same]; Eric J. v. Betty M. (1999)
76 Cal.App.4th 715, 729–730 [same].)
In any event, some courts have considered the Rowland
factors despite concluding that there was no special relationship
and no duty, with the Rowland analysis supporting the
conclusion of no duty. (Nally v. Grace Community Church (1988)
47 Cal.3d 278, 296–299; Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1227–
1230.) We do so here, and conclude that under Rowland USC did
not owe Barenborg a duty of care.
The Rowland factors, “must be ‘evaluated at a relatively
broad level of factual generality.’ [Citation.] In considering
them, we determine ‘not whether they support an exception to
the general duty of reasonable care on the facts of the particular
case before us, but whether carving out an entire category of
cases from that general duty rule is justified by clear
considerations of policy.’ [Citation.] In other words, the duty
analysis is categorical, not case-specific. [Citation.]” (Regents,
supra, 4 Cal.5th at pp. 628–629.)
27
“The Rowland factors fall into two categories. The first
group involves foreseeability and the related concepts of certainty
and the connection between plaintiff and defendant. The second
embraces the public policy concerns of moral blame, preventing
future harm, burden, and insurance availability. The policy
analysis evaluates whether certain kinds of plaintiffs or injuries
should be excluded from relief. [Citation.]” (Regents, supra,
4 Cal.5th at p. 629.)
“‘[A]s to foreseeability, . . . the court’s task in determining
duty “is not to decide whether a particular plaintiff’s injury was
reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed . . . .”’ [Citations.]” (Kesner v. Superior
Court (2016) 1 Cal.5th 1132, 1145 (Kesner).)
The foreseeability question here is whether it is reasonably
foreseeable that a university’s failure to enforce policies
governing alcohol use and social events could result in harm to a
person attending a fraternity party. (Cf. Regents, supra,
4 Cal.5th at p. 629; Cabral, supra, 51 Cal.4th at p. 775.) It is not
uncommon for college students drinking alcohol at a fraternity
party to behave in a manner that is careless and threatens injury
to themselves or others. The possibility of injury at such a party
unrestrained by sensible rules and enforcement is reasonably
foreseeable.
The second factor, “the degree of certainty that the plaintiff
suffered injury” (Rowland, supra, 69 Cal.2d at p. 113), ordinarily
is significant only when the claimed injury is intangible, such as
emotional distress. (Regents, supra, 4 Cal.5th at p. 630; Kesner,
28
supra, 1 Cal.5th at p. 1148.) Barenborg’s physical injuries are
certain, so the certainty of injury is not a relevant factor.
“The third factor, ‘the closeness of the connection between
the defendant’s conduct and the injury suffered’ [citation], is
‘strongly related to the question of foreseeability itself’ [citation],
but it also accounts for third-party or other intervening conduct.
[Citation.] Where the third party’s intervening conduct is
foreseeable or derivative of the defendant’s conduct, then that
conduct does not ‘“diminish the closeness of the connection
between defendant’s conduct and plaintiff’s injury. . . .”’
[Citation.]” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th
1077, 1086 (Vasilenko).)
In Regents, the university’s failure to prevent a violent
assault in the classroom was closely connected to the plaintiff’s
injury because the university was aware of the risk that the
particular student would commit a violent assault against
another student. (Regents, supra, 4 Cal.5th at p. 631 [“[w]hen
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”].)
The defendant in Vasilenko was a church that maintained
an overflow parking lot across the street from its chapel. The
plaintiff was directed to park there by church volunteers and was
struck by a car while crossing the street on his way to a church
function. Vasilenko held that a landowner does not have a duty
of care to assist invitees in crossing a public street when the
landowner does nothing to obscure or magnify the dangers of
crossing the street. (Vasilenko, supra, 3 Cal.5th at p. 1081–1082.)
29
Regarding the closeness of the connection between the
defendant’s conduct and the plaintiff’s injury, Vasilenko stated:
“unless the landowner impaired the driver’s ability to see and
react to crossing pedestrians, the driver’s conduct is independent
of the landowner’s. Similarly, unless the landowner impaired the
invitee’s ability to see and react to passing motorists, the invitee’s
decision as to when, where, and how to cross is also independent
of the landowner’s. Because the landowner’s conduct bears only
an attenuated relationship to the invitee’s injury, we conclude
that the closeness factor tips against finding a duty.” (Id. at
p. 1086.)
The intervening conduct here involved Cal. Gamma hosting
an unauthorized party, serving alcohol, and erecting an unsafe
dance platform; Barenborg attending the party under the
influence of cocaine and alcohol; and Barth bumping Barenborg
off the platform, whether negligently or intentionally. As in
Vasilenko, supra, 3 Cal.5th 1077, USC did nothing to increase the
risks inherent in the activity here—attending a fraternity party.
The conduct of Cal. Gamma, Barenborg, and Barth was
independent of USC’s conduct in failing to enforce its policies
governing alcohol use and social events. The attenuated
connection between USC’s failure to enforce its policies and the
independent conduct by Cal. Gamma, Barenborg, and Barth
weighs against finding a duty. (Cf. id. at p. 1086.)
Regents stated regarding moral blame: “‘We have
previously assigned moral blame, and we have relied in part on
that blame in finding a duty, in instances where the plaintiffs are
particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control
over the risks at issue.’ [Citation.] With the decline of colleges’
30
in loco parentis role, adult students can no longer be considered
particularly powerless or unsophisticated.” (Regents, supra,
4 Cal.5th at p. 631.) Because adult students, whether they
attend USC or another university, cannot be considered
particularly powerless or unsophisticated and because
universities have little control over students’ off-campus social
activities (Ibid), we conclude that USC’s conduct in failing to
enforce its policies and more closely monitor off-campus
fraternity parties was not particularly blameworthy.
“The policy of preventing future harm is ordinarily served
by allocating costs to those responsible for the injury and best
suited to prevent it. [Citation.] ‘In general, internalizing the cost
of injuries caused by a particular behavior will induce changes in
that behavior to make it safer. That consideration may be
“outweighed, for a category of negligent conduct, by laws or mores
indicating approval of the conduct or by the undesirable
consequences of allowing potential liability.” [Citation.]’
[Citation.]” (Vasilenko, supra, 3 Cal.5th at p. 1087.) Because
colleges’ control of off-campus social activities is limited, their
ability to reduce the risk of injury in those settings is limited.
(Cf. ibid. [“[t]he ability of landowners to reduce the risk of injury
from crossing a public street is limited”].)
In contrast to colleges, fraternities hosting parties in
fraternity houses and the invitees themselves have much greater
control over conduct at those parties and a more direct ability to
reduce the risk. (Cf. Vasilenko, supra, 3 Cal.5th at p. 1090
[“other entities such as the government, drivers, and invitees
themselves have much greater and more direct ability to reduce
that risk”].)
31
Moreover, finding a duty in these circumstances could
create a disincentive for universities to regulate alcohol use and
social activities and provide security patrols, which to some
degree could frustrate the policy of preventing future harm. (See
Pawlowski v. Delta Sigma Phi, supra, 2009 WL 415667, p. 6
[finding an assumed duty based on university policies to curb
alcohol abuse might discourage the adoption of such policies,
which is undesirable]; Mynhardt v. Elon University, supra, 220
N.C.App. at p. 375 [same].) In light of these considerations, we
conclude that the policy of reducing future harm weighs against
imposing a duty on colleges.
Regarding the burden on the defendant and the
community, effective control of off-campus fraternity parties, if
achievable, would require close monitoring and considerable
resources. The burden on the university and the restrictions on
the independence of students engaging in noncurricular activities
off campus would be great. (Cf. Baldwin, supra, 123 Cal.App.3d
at p. 291 [‘“The college . . . has an interest in the nature of its
relationship with its adult students, as well as an interest in
avoiding responsibilities that it is incapable of performing”’];
Tanja H., supra, 228 Cal.App.3d at p. 438 [“onerous rconditions”
on students’ “freedom and privacy” would be “incompatible with a
recognition that students are now generally responsible for their
own actions and welfare”’].)17
17 Regents disapproved Baldwin, supra, 123 Cal.App.3d 275,
Tanja H., supra, 228 Cal.App.3d 434, and other opinions only to
the extent they were inconsistent with its holdings concerning
the special relationship between colleges and students, or
colleges’ duty of care. (Regents, supra, 4 Cal.5th at p. 634, fn. 7.)
The holdings in Regents were limited to finding a special
32
Finally, although there is no evidence in the record
regarding the availability and cost of insurance for the risk
involved, USC “has offered no reason to doubt colleges’ ability to
obtain coverage for the negligence liability under consideration.”
(Regents, supra, 4 Cal.5th at p. 633.)
We conclude that the Rowland factors, on balance, weigh
against imposing a duty on USC to protect a fraternity’s invitees
from the risk of harm at an off-campus fraternity party. The lack
of a close connection between USC’s conduct and Barenborg’s
injury, the relatively low moral blame, the policy of preventing
future harm, and the burden on colleges and students that would
arise by imposing a duty, all weigh against finding a duty.
relationship between colleges and enrolled students participating
in curricular activities and a duty of care to protect students from
foreseeable acts of violence in the classroom and during
curricular activities. (Id. at pp. 626–627.) Some of Baldwin’s and
Tanja H’s statements concerning the college-student relationship
remain relevant and viable with respect to noncurricular
activities.
33
DISPOSITION
The petition is granted. Let a peremptory writ of mandate
issue directing the trial court to vacate its order denying USC’s
motion for summary judgment and enter a new order granting
the motion. USC is entitled to recover its costs in this appellate
proceeding.
MICON, J.*
We concur:
MANELLA, P. J. COLLINS, J.
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
34
Filed 12/19/18
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
UNIVERSITY OF SOUTHERN B288180
CALIFORNIA,
(Los Angeles County
Petitioner, Super. Ct. No. BC597033)
v. ORDER CERTIFYING OPINION
FOR PUBLICATION
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
CARSON BARENBORG,
Real Party in Interest.
THE COURT:*
The opinion in the above-entitled matter, filed on November 27, 2018,
was not certified for publication in the Official Reports. For good cause it
now appears that the opinion should be certified for publication in its entirety
in the Official Reports and it is so ordered.
_____________________________________________________________________
*MANELLA, P. J. COLLINS, J. MICON, J.**
_______________________________________________________________________________________
Judge of the Los Angeles Superior Court, assigned by the Chief Justice
**
pursuant to article VI, section 6 of the California Constitution.
1