Section 789

Citation: Section 789 (1)
Parent Document: Hale v. Morgan, 584 P.2d 512 (1978)
Jurisdiction: California (state)
Effective Date: 1978-09-28
Original Source: https://www.courtlistener.com/opinion/1160324/hale-v-morgan/ ↗

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(1) Initially, we reject plaintiff's contention that, because the constitutionality of section 789.3 was unchallenged in the trial court, presentation of the issue for the first time on appeal is improper. While "`It is the general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived'" (Jenner v. City Council (1958) 164 Cal. App.2d 490, 498 [331 P.2d 176]), application of this principle is not automatic. Because the central issue before us is the propriety of very substantial penalties we interpret liberally defendant's attempts to raise error in a penal cotext. (Cf. People v. Bolinski (1968) 260 Cal. App.2d 705, 722 [67 Cal. Rptr. 347].) The record before us discloses that defendant urged before the trial court that enforcement of section 789.3 under the circumstances would be a "great injustice." We find at least arguable merit in defendant's assertion that constitutional issues were thereby adequately raised below.

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