# In Re Marriage of Flaherty

> California Supreme Court · June 17, 1982 · 31 Cal. 3d 637

URL: https://www.frixlaw.com/law-library/cases/9610789

## Case

- **Full name:** In Re the Marriage of JACQUELYN C. and JAMES O. FLAHERTY. JAMES O. FLAHERTY, Appellant, v. JACQUELYN C. FLAHERTY, Respondent
- **Court:** California Supreme Court
- **Decided:** June 17, 1982
- **Citations:** 31 Cal. 3d 637; 183 Cal. Rptr. 508; 646 P.2d 179; 1982 Cal. LEXIS 189
- **Precedential status:** Published
- **Opinion:** Concurring in part by Newman
- **Judges:** Bird, Newman
- **Cited by:** 723 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9610789

## Opinion text

NEWMAN, J.,
Concurring and Dissenting. — I concur, but I do not agree that “holding a hearing” (ante, this page) is prerequisite to penalizing counsel for a frivolous appeal. The question of frivolousness can be raised at several stages; e.g., by motion to dismiss or at a settlement conference. When counsel knows the charge against him prior to briefing or oral argument, he may use either of those routes to reply. Sometimes, it is true, the court will not perceive the question until after briefing and argument have been completed; and notice may first reach counsel in the form of a declaration, in the court’s decision or opinion, that sanctions are proposed. Even then, however, the decision or opinion *655 when merely filed is not final; and there is an opportunity to respond— e.g., via petition for rehearing. The issues routinely would be legal, not factual; and counsel’s written argument normally would suffice. (See 2 Davis, Administrative Law Treatise (2d ed. 1979) § 10.9, p. 337: “Does Due Process Require Opportunity to Present Oral Argument? [11] The answer is an unqualified no . .. . ” Cf. his 1982 supp., § 10.1, p. 204: “[T]oo many judges still fail to think in terms of possibly requiring notice and opportunity for informal response.” [Italics added.]) If for any reason a mini-hearing seemed appropriate, Code of Civil Procedure section 187 authorizes “any suitable process or mode of proceeding . . ..”
If a ruling on frivolousness of which counsel had no warning appears in an opinion certified for publication, there is danger that the “severe sanction” of criticism (ante, p. 652) will have effect before a petition for rehearing can be filed or considered. I think that in that situation publication should be deferred until the opinion becomes final as to the court filing it, with additional time to permit counsel to seek a stay from a reviewing court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9610789. Public record. Not legal advice.