Filed 1/4/99
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
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JOHNETTE MARIE ADAMS et al.,
Plaintiffs and Respondents, v.
CITY OF FREMONT et al.,
Defendants and Appellants. |
A074965/A075279
(Alameda County Super. Ct. No. H-178278-1A)
ORDER MODIFYING OPINION AND DENYING REHEARING
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THE COURT:
It is ordered that the opinion filed herein on December 3, 1998, be modified in the following particulars:
1. At page 14, line 3 of the first full paragraph, the word "refuted" is deleted and replaced with "contested" so the sentence reads:
Appellants contested the testimony of respondents’ experts through the testimony of experts Joseph Callahan and Dr. Donald Lunde.
2. At page 37, line 3 of the first full paragraph, the word "all" is deleted so the sentence reads:
Moreover, imposing a duty on law enforcement to take reasonable steps to prevent a threatened suicide would have significant budgetary implications, and improperly insinuates the civil justice system into the allocation of law enforcement resources.
3. At page 37, lines 13-14 of the second full paragraph, the word "all" is deleted, the words "ensure that" are deleted and replaced with the word "prevent," and the words "is not" are deleted and replaced with the words "from being" so the sentence reads:
On balance, the relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out.
4. At page 38, line 15 of the second full paragraph, insert the words "reasonable care" between the words "exercise" and "prevent" so the sentence reads:
Respondents argue that such a special relationship arose between Patrick and appellants, thereby creating a duty to exercise reasonable care to prevent Patrick’s suicide.
5. At page 16, lines 3-5 of footnote 13, the second sentence of the footnote is deleted and the following sentence is inserted in its place:
However, respondents’ contention was not accompanied by any supporting legal authority. Moreover, it was not raised in their appellate brief.
6. At page 16, lines 8-11 of footnote 13, the last two sentences of the footnote are deleted so the entire modified footnote reads:
At oral argument, respondents contended that appellants waived their right to contest whether the police officers owed Patrick a duty of care by requesting a special instruction based on Allen v. Toten (1985) 172 Cal.App.3d 1079 (Allen). However, respondents’ contention was not accompanied by any supporting legal authority. Moreover, it was not raised in their appellate brief. Thus, respondents have waived their right to assert this contention on appeal. (San Mateo County Coastal Landowners’ Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 559; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
Respondents’ petition for rehearing is denied. (Kline, P.J. would grant the petition.)
Ruvolo, J.
I concur: Haerle, J.