Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1271887 of Santa Barbara, Timothy J. Staffel, Judge.
Brenton L. Horner and Lisa A. Galio; Horner & Association, for Appellant.
Holme. Rpberts & Owen, Roger Myers and Katherine Keating, for Respondent.
YEGAN, J.
Nancy Crawford-Hall, appellant, is the publisher of the Santa Ynez Valley Journal (the Journal), which is printed and published once every week in Santa Barbara County (the county). She appeals from a judgment denying her petition to have the Journal adjudicated a newspaper of general circulation for the county. Appellant contends that the trial court erroneously determined that the Journal does not have "a bona fide subscription list of paying subscribers" within the meaning of Government Code section 6000. We disagree and affirm.
All statutory references are to the Government Code unless otherwise stated.
Factual and Procedural Background
Approximately 22, 000 copies of the Journal are distributed free of charge: 10, 000 copies on newsstands and 12, 000 copies through the mail. For the 12, 000 mailed copies, the Journal pays a discounted bulk-mail rate. One copy of the newspaper is mailed to all street addresses and post office boxes in the Santa Ynez Valley, which includes the communities of Santa Ynez, Solvang, Buellton, Los Olivos, and Ballard.
Although the Journal is a free newspaper, it offers either a one-year or a two-year paid subscription. No one can subscribe for less than one year. As of January 2, 2009, the Journal had 228 paid subscribers. They consisted of 214 persons who had made a single advance payment for a one-year subscription and 14 persons who had made a single advance payment for a two-year subscription. Every week a copy of the Journal is sent to each paid subscriber by first class mail.
Of the 228 paid subscribers, 80 persons resided outside of the county and 148 persons resided within the county. Of the 148 county residents, only 43 subscribers resided outside of the Santa Ynez Valley. The remaining 105 county subscribers resided in the Santa Ynez Valley and would receive a free bulk-mailed copy of the Journal irrespective of whether they subscribed. Only 18 of the 148 county subscribers had renewed their subscription to the Journal.
Appellant petitioned to have the Journal adjudicated a newspaper of general circulation for the county. The petition was opposed by respondents, the Santa Maria Times (the Times) and Sam Cohen. A hearing on the petition was conducted and the parties stipulated that the only issue before the court was whether the Journal had "a bona fide subscription list of paying subscribers" within the meaning of section 6000.
Sam Cohen has not filed a brief in this appeal.
The trial court denied the petition in a written order. The court noted that, pursuant to In re Eureka Reporter (2008) 165 Cal.App.4th 891, the Journal "may have as few as... 43 paying subscribers and subscriptions in the entire County." The court went on to declare: "But even giving the... Journal the benefit of the doubt, its list of 148 'subscribers' in the County, largely concentrated in the... Journal's base in the Santa Ynez Valley and sparsely distributed in other heavily populated regions of the County, is insufficient in light of the totality of the circumstances to constitute a 'newspaper of general circulation' for all of Santa Barbara County."
Standard of Review
The facts here are undisputed. Thus, whether the Journal has a "bona fide subscription list of paying subscribers" within the meaning of section 6000 "is a question of statutory interpretation and is subject to de novo review. [Citations.]" (In re Eureka Reporter, supra, 165 Cal.App.4th at p. 896; see also Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800 [where facts are undisputed, appellate court independently reviews trial court's determination that transaction falls within California's usury proscription].)
Discussion
Section 6000 provides: "A 'newspaper of general circulation' is a newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers, and has been established, printed and published at regular intervals in the State, county, or city where publication, notice by publication, or official advertising is to be given or made for at least one year preceding the date of the publication, notice or advertisement." (Italics added.) "The statute itself does not specify how many subscribers there must be, but does require a 'bona fide' list thereof.... [T]he term, as used in this connection, means a real, actual, genuine subscription list which shall contain only the names of those who are in good faith paying regularly for their subscriptions." (In re Herman (1920) 183 Cal. 153, 164.) In determining whether a newspaper has a bona fide subscription list of paying subscribers, a court should consider "the number and diversity of subscribers and the territorial range of circulation...." (Id., at p. 165.)
The full quotation from Herman is as follows: "We are not prepared to hold, in view of the number and diversity of subscribers and the territorial range of circulation, that this [newspaper's subscription list] would not be 'a bona fide subscription list of paying subscribers.' " (In re Herman, supra, 183 Cal. at p. 165.)
" 'The impact of becoming a newspaper of general circulation... is significant' because certain legal notices--such as probate and foreclosure notices--'must [ ] be published in a newspaper of general circulation....' [Citations.]" (In re Eureka Reporter, supra, 165 Cal.App.4th at p. 895.) "[S]ection 6027 provides that any newspaper shall not be deemed to be one of 'general circulation' unless it first obtains a judicial decree to that effect, which may be done after the newspaper demonstrates that it is in compliance with the relevant code sections." (In re San Diego Commerce (1995) 40 Cal.App.4th 1229, 1231.)
We agree with the trial court that appellant failed to demonstrate that the Journal has "a bona fide subscription list of paying subscribers." (§ 6000.) The 80 subscribers residing outside of the county do not qualify as "paying subscribers" because appellant sought to have the Journal adjudicated a newspaper of general circulation for the county. Were we to deem subscribers residing outside of the county to be "paying subscribers, " we would be ignoring "the underlying purpose of the various statutes requiring legal notices to be placed in newspapers having a general circulation within the jurisdiction in which the publication must be made." (Petitions of Herald Pub. Co. (1957) 152 Cal.App.2d 901, 909.) That purpose "is to assure that the published material will come to the attention of a substantial number of persons in the area affected [citation]...." (In re Norwalk Call (1964) 62 Cal.2d 185, 190.)
Of the 148 county subscribers, the 105 subscribers residing in the Santa Ynez Valley do not qualify as "paying subscribers." In Eureka Reporter, supra, 165 Cal.App.4th at page 897, the court concluded that "individuals who donate money to a free newspaper to offset the cost of home delivery (and who receive the newspaper regardless of whether they donate) are [not] 'paid subscribers' within the plain meaning of section 6000." The court reasoned that a bona fide subscription "obligates the customer to pay a sum of money before receiving a future issue of a periodical." (Id., at p. 898.)
Here, the 105 subscribers who resided in the Santa Ynez Valley were not obligated "to pay a sum of money before receiving a future issue" of the Journal. (In re Eureka Reporter, supra, 165 Cal.App.4th at p. 898.) Before they subscribed, they were receiving free home delivery of the Journal via bulk mail. If they do not renew their subscriptions, they will continue to receive free home delivery because a copy of the newspaper is mailed to all street addresses and post office boxes in the Santa Ynez Valley. Thus, payments by these 105 subscribers were in effect contributions to support the newspaper rather than payments entitling them to receive future issues of the newspaper. The Journal actively solicited such support. In the November 13, 2008 edition of the Journal, appellant wrote an article urging readers to subscribe to the Journal not for the purpose of receiving future issues of the free newspaper, but for the purpose of supporting the Journal's effort to qualify as a newspaper of general circulation so that it could publish legal notices. Appellant wrote: "... I would like to ask you to support us in our effort to become a 'paper of record' meaning that you can, when we receive this designation from the court, place your legal notices in this paper.... [¶] One of the requirements of receiving this designation is a bona fide subscription list of paid subscriptions. We already have quite a few paid subscribers but because we have been offering the paper free of charge to residents, many have not made the effort to support us. It is necessary at this point for us to ask you to please send in for a subscription; it is inexpensive and will enable us to serve your interest even better than we have so far.... We are in the legal system right now so the sooner your subscription is received, the sooner we can offer this new service of taking your legal notices. Thank you for helping us be your source of information." (Italics added.)
That leaves 43 "paying subscribers" in the entire county. We conclude that the Journal does not have a "bona fide subscription list of paying subscribers" within the meaning of section 6000. In reaching this conclusion, we consider three factors. The first factor is that the Journal's 43 paying subscribers are a miniscule proportion of the county's population. Pursuant to appellant's request, we take judicial notice that the California Department of Finance estimated that, as of January 1, 2009, the county's population was 431, 312. (Evid. Code, §§ 459, 452, subd. (h).) Thus, the Journal's 43 subscribers constitute only.01 per cent (10 out of 100, 000) of the county's population.
The Times does not oppose our taking judicial notice of this fact. (RB 12, fn. 6) Appellant's request for judicial notice is improperly presented because it is made in her opening brief. California Rules of Court, rule 8.252(a)(1) provides: "To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order." All other requests for judicial notice made in the parties' briefs are denied for failure to comply with rule 8.252(a).
Such a small percentage unquestionably would preclude the Journal from qualifying as a newspaper of general circulation under section 6008, which " 'was enacted in 1974 as an alternative to Section 6000. [Citations.]' " (In re San Diego Commerce, supra, 40 Cal.App.4th at p. 1233.) Unlike section 6000, section 6008 requires that the newspaper have "a substantial distribution to paid subscribers in the city, district, or judicial district in which it is seeking adjudication." (Id., subd. (b), italics added.) Section 6000 cannot be construed as containing the same "substantial distribution" requirement of section 6008. (In re San Diego Commerce, supra, 40 Cal.App.4th at p. 1235.)
The second factor is the Journal's restricted "territorial range of circulation." (In re Herman, supra, 183 Cal. at p. 165.) The Journal is not a county-wide newspaper. It mainly serves the Santa Ynez Valley, a sparsely populated region of the county. Each week, approximately 12, 000 copies of the newspaper are mailed to all street addresses and post office boxes in the Santa Ynez Valley. Only 43 copies are mailed to county residents who live outside of the Santa Ynez Valley.
The third factor is that out of 148 county subscribers, only 18 are renewing subscribers who have made more than one payment to the Journal. (In re Herman, supra, 183 Cal. at p. 164.) In Herman our Supreme Court required such regular payment before a newspaper could be deemed to have "a bona fide subscription list of paying subscribers." (Ibid.; see also In re Eureka Reporter, supra, 165 Cal.App.4th at p. 898 [petitioner "cannot meet the Herman court's definition of 'bona fide subscription list of paying subscribers' because the record is devoid of evidence that [the alleged subscribers] made 'regular' payments to the Reporter"].)
Disposition
The judgment denying appellant's petition is affirmed. Respondents shall recover their costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.