Carson Bulletin, In re

• Decision Date: 25 October 1978
• Citation: 85 Cal.App.3d 785,149 Cal.Rptr. 764
• Court: California Court of Appeals Court of Appeals
• Parties: In re Establishment of CARSON BULLETIN as Newspaper of General Circulation. O. Ray WATKINS, Petitioner and Appellant, v. CITY OF CARSON, Contestant and Respondent. Civ. 53293.

Page 764

149 Cal.Rptr. 764

85 Cal.App.3d 785

In re Establishment of CARSON BULLETIN as Newspaper of General Circulation.

O. Ray WATKINS, Petitioner and Appellant, v. CITY OF CARSON, Contestant and Respondent.

Civ. 53293.

Court of Appeal, Second District, Division 3, California.

Oct. 25, 1978.

Thomas G. Patterson, Long Beach, for appellant.

Richards, Watson, Dreyfuss & Gershon, Mitchell E. Abbott and Rochelle Browne, Los Angeles, for respondent.

POTTER, Justice.

This is an appeal by O. Ray Watkins (hereinafter appellant), publisher of the Carson Bulletin, from a judgment of the superior court vacating a prior judgment adjudicating the Bulletin a newspaper of general circulation in and for the City of Carson.

In September 1976, appellant filed a verified petition pursuant to Government Code ¹ section 6026, seeking a "judgment and Decree ascertaining and establishing the newspaper as a newspaper of general circulation as defined in said Section 6008, in and for the City of Carson . . . ." In October, the petition was granted following an uncontested ex parte proceeding. The judgment recited that the court found:

"(T)hat THE CARSON BULLETIN is a newspaper published for the dissemination of local and telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers and has been 'established' and 'published', as such terms are defined in said Section 6008 of the Government Code, at regular weekly intervals in the City of Carson . . . for at least three years preceding the date of the filing of this petition . . . ."

The petition alleged that the newspaper "has a substantial distribution to paid subscribers" in Carson (without setting forth the number of subscribers). But the court made no finding in its decree with respect to this statutory requirement that a newspaper of general circulation have a substantial distribution to paid subscribers in the city. (§ 6008, subd. (b).)

On July 19, 1977, respondent City of Carson filed a motion to vacate the judgment and order declaring the newspaper to be one of general circulation (§ 6024) on the ground that the Bulletin did not have a substantial distribution to paid subscribers as required by section 6008.

Points and authorities, and declarations in support and in opposition to the motion to vacate were filed. The undisputed facts revealed that: (1) the Bulletin is a weekly newspaper, published in Carson but printed in Van Nuys; (2) the City of Carson has a population of approximately 79,000; and (3) although approximately 15,000 copies are distributed free of charge to homes within that city, the Bulletin had only 12 paid subscribers as of 1977.

On July 29, 1977, the court granted respondent's motion to vacate and set aside the previous judgment and order declaring the Bulletin to be a newspaper of general circulation for the City of Carson. The court further ordered that "(a)ny action in the future taken by (appellant) to have the newspaper declared to be one of general circulation shall proceed only after notice to the City of Carson."

This appeal followed.

Contentions

Appellant contends that (1) the order declaring the Bulletin to be a newspaper of general circulation could not be vacated because respondent failed to show "subsequent substantial deviation" from prior conditions existing at the time of the original order; (2) the requirement that newspapers have a "substantial distribution to paid subscribers" is unconstitutionally vague and ambiguous, requiring a "mere personal judgment" in violation of due process of law; and (3) the court erred in requiring appellant to give notice to attorneys for the City of Carson prior to taking any action in the future to have the Bulletin declared to be a newspaper of general circulation.

Respondent contends that (1) the court was required to vacate the decree because the Bulletin does not qualify under sections 6000 or 6008; (2) the requirement of "substantial distribution to paid subscribers" is not unconstitutionally vague and has not been fulfilled by the Bulletin; and (3) the additional notice requirement was within the court's inherent powers.

Discussion

Summary

The court properly granted the motion to vacate the judgment declaring the Bulletin a newspaper of general circulation for the City of Carson because the newspaper fails to meet either the statutory requirement of section 6000 that it be printed in the city, or the statutory requirement of section 6008 that it have a substantial distribution to paid subscribers in the city. The prior judgment did not preclude the granting of this motion to vacate. Moreover, appellant cannot prevail by challenging the constitutionality of section 6008, subdivision (b), since, if the section is void for vagueness, he cannot rely upon it to qualify the Bulletin as a newspaper of general circulation. In any event, the term "substantial distribution" is reasonably certain and requires more than 12 paid subscribers out of a population of 79,000.

The part of the judgment requiring notice to the City before any renewed attempt to have the Bulletin adjudicated a newspaper of general circulation must, however, be deleted since the Legislature has determined that notice by publication is sufficient.

The Order of Adjudication Was Properly Reconsidered

The court properly granted the motion to vacate. Section 6024 provides that a judgment declaring that a newspaper is one of general circulation "may be vacated . . . or set aside by the court . . . on the motion of any person . . . upon: . . . (c) A satisfactory showing made to the court that the newspaper has ceased to be a newspaper of general circulation."

This court has previously held that, notwithstanding the use of the word "may" in section 6024, the prior judgment must be vacated where it is shown that the newspaper no longer qualifies as one of general circulation. (In re Covina Argus-Citizen (1960) 177 Cal.App.2d 315, 318-319, 2 Cal.Rptr. 184.)

Appellant, however, claims that the court improperly granted the motion to vacate because the City failed to show "subsequent substantial deviation" (or material change) from conditions existing when the original order of adjudication was made. Appellant's reliance on In re Hancock (1949) 92 Cal.App.2d 481, 207 P.2d 61, for this proposition is misplaced. In Hancock, the court explained (Id., at pp. 485-486, 207 P.2d at pp. 63-64):

"The general rule as to the nature of this proceeding and the burden of proof is clearly set forth in In re Simpson supra, ((1923) 62 Cal.App. 549, 217 P. 789) and 19 California Jurisprudence, page 1079, section 14, i. e., that After a judgment determining the character of a newspaper becomes final, the matters passed upon and Which appear upon the face of the judgment are not open to inquiry in an action to vacate it. A petitioner can succeed only upon proof supporting an issue not determined in the original action, and, particularly, it must be shown that the newspaper has 'ceased' to be one of general circulation. The statute permits the entire subject to be reopened upon condition, however, that the ultimate facts are shown to have materially changed subsequent to the original order having been made." (Italics added.)

Here, appellant originally petitioned the court to determine the status of the newspaper pursuant to section 6008 requiring substantial distribution to paid subscribers. ² The face of the October 1976 judgment adjudicating the Bulletin as a newspaper of general circulation for the City of Carson, however, shows that no finding was ever made on whether there was substantial distribution to paid subscribers. Thus, the issue was open to inquiry in an action to vacate the adjudicated status.

Moreover, in In re Norwalk Call (1960) 183 Cal.App.2d 597, 6 Cal.Rptr. 864, this court specifically rejected the contention that a court could not grant a motion to vacate the adjudicated status unless a change had been shown since the former judgment. In Norwalk (which was decided before the enactment of section 6008 when a newspaper could qualify only in a jurisdiction in which it was both printed and published pursuant to section 6000), we explained why appellant's theory "cannot prevail" (183 Cal.App.2d at pp. 598-599, 6 Cal.Rptr. at p. 866):

"The effect of the former judgment was to conclusively establish the existence of facts which qualified the Call as a newspaper for the city of Norwalk. An essential fact was that it was printed in Norwalk. However erroneous, the judgment was in that respect its necessary implications cannot be questioned. There has been a change from the conditions that were established by the judgment. The testimony upon which appellants rely can mean only that the former judgment was erroneous. But the testimony is incompetent for that purpose. Even if competent it would prove only that at the time of the former judgment the paper was printed in Los Angeles, which would defeat the claims of appellants.

". . . The court having found upon sufficient evidence that the impressing of type on paper was all done outside the city of Norwalk, there was no alternative to the judgment that was rendered."

Similarly here, there was no alternative to the judgment of vacating the adjudicated status since the undisputed facts showed no substantial circulation to paid subscribers. A newspaper which does not meet statutory requirements "has ceased to be a newspaper of general circulation" within the meaning of section 6024.

Appellant Cannot Prevail by Challenging the Constitutionality of Section 6008

Appellant's constitutional attack on the requirement of substantial distribution to paid subscribers must also fail.

Appellant originally filed his petition for adjudicated status in 1976, pursuant to section 6008. That section was enacted in 1974 to establish "alternative criteria (to those in section 6000) for qualification as a 'newspaper of general circulation' for...