In re Establishment of The EUREKA REPORTER as a Newspaper of General Circulation. Judi Pollace v. Times-Standard

• Decision Date: 31 July 2008
• Docket Number: No. A117817.,A117817.
• Citation: 81 Cal.Rptr.3d 497,165 Cal.App.4th 891
• Court: California Court of Appeals Court of Appeals
• Parties: In re Establishment of The EUREKA REPORTER as a Newspaper of General Circulation. Judi Pollace, Petitioner and Respondent, v. Times-Standard, Contestant and Appellant.

165 Cal.App.4th 891

81 Cal.Rptr.3d 497

In re Establishment of The EUREKA REPORTER as a Newspaper of General Circulation.Judi Pollace, Petitioner and Respondent,

v.Times-Standard, Contestant and Appellant.

No. A117817.

Court of Appeal, First District, Division 5, California.

July 31, 2008.

Mitchell, Brisso, Delaney & Vrieze, Eureka; Russell S. Gans and William F. Mitchell, Riverside, for Petitioner and Respondent.

Holme Roberts & Owen LLP; Roger Myers, Rachel Matteo-Boehm, and Katherine Keating, San Francisco, for Contestant and Appellant.

JONES, P.J.

To qualify as a “newspaper of general circulation” pursuant to Government Code section 6000, ¹ a newspaper must, among other things, have “a bona fide subscription list of paying subscribers.” The Eureka Reporter (the Reporter) is a free newspaper, but a small percentage of its recipients contribute money to the Reporter to offset the cost of delivering it. The question before us is whether these recipients constitute a “bona fide subscription list of paying subscribers” within the meaning of section 6000. The answer is no. Our holding is consistent with the plain language of section 6000. Accordingly, we reverse the trial court's order adjudicating the Reporter a newspaper of general circulation pursuant to section 6000.

FACTUAL AND PROCEDURAL BACKGROUND

Judi Pollace is the publisher of the Reporter, a locally-owned newspaper established in 2004 and published in Humboldt County. In early 2007, she petitioned the trial court to declare the Reporter a newspaper of general circulation. (§ 6020.) ² Her verified petition alleged, among other things, that the Reporter “has a bona fide subscription list of paying subscribers in Humboldt County and has an average daily circulation of 24,000.” Pollace did not submit any evidence to support that allegation.

The Eureka Times Standard (the Times-Standard) opposed the motion, claiming the Reporter-which it characterized as “a free newspaper that is distributed for no charge”-did not have a bona fide list of paying subscribers. The Times-Standard submitted the Reporter's “Publication Audit Report,” a document prepared by the Circulation Verification Council using data provided by the Reporter, which showed the Reporter had no paid distribution and no paid circulation between April and September 2006.

In reply, Pollace conceded the Reporter “has been circulated and made available ... at no cost” and that the Reporter “remains free at all our drop sites and rack locations throughout the county of Humboldt.” Pollace, however, argued that participants in the Reporter's “Voluntary Pay Program” (the Program) constituted a bona fide list of paying subscribers. In a declaration, Pollace explained that the Reporter instituted the Program in July 2005 to “recover the cost and expense of home delivery.” According to Pollace, the Reporter periodically inserts a letter in its newspaper asking readers to “sponsor” the newspaper in the amount of $15, $25, or $50 to “help cover the expense of home delivery.” The letter states that readers who do not contribute will continue to receive home delivery “as a gift of [t]he [ ] Reporter.” Pollace's declaration attached a redacted list containing zip codes which Pollace stated constituted 810 “separate and independent persons” who participated in the Program between January 2006 and February 2007. ³

After a hearing, the court granted Pollace's petition. It concluded that the Program participants, “although having no obligation to do so, have paid for the receipt of the [Reporter]. The court believes this is sufficient to meet the statutory requirement of ‘paying subscribers' particularly in light of the communities within Humboldt County wherein the funds have been generated.” The court then entered a judgment establishing the Reporter as a newspaper of general circulation for Humboldt County.

The Times Standard timely appealed from the judgment.

DISCUSSION

Section 6000 defines a “newspaper of general circulation” as one “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.” (§ 6000, italics added.) “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....” ( In re Molz (2005) 127 Cal.App.4th 836, 838-839, 26 Cal.Rptr.3d 131; see also § 6040 [“Whenever any official advertising, notice, resolution, order, or other matter of any nature whatsoever is required by law to be published in a newspaper, such publication shall be made only in a newspaper of general circulation”].)

Whether participants in the Program-i.e., those who contribute money to offset the cost of home delivery of the Reporter, a free newspaper-constitute a “bona fide subscription list of paying subscribers” under section 6000 is a question of statutory interpretation and is subject to de novo review. ( People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956.) “[W]e must attempt to effectuate the probable intent of the Legislature, as expressed through the actual words of the statutes in question. [Citations.] ‘ “Our first step [in determining the Legislature's intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]” [Citations.]’ ” ( Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990, 73 Cal.Rptr.2d 682, 953 P.2d 858; see also Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147, 74 Cal.Rptr.3d 81, 179 P.3d 882.) “If the statutory language is unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ ” ( People v. Toney (2004) 32 Cal.4th 228, 232, 8 Cal.Rptr.3d 577, 82 P.3d 778, quoting People v. Robles (2000) 23 Cal.4th 1106, 1111, 99 Cal.Rptr.2d 120, 5 P.3d 176.)

We first consider whether the Program participants are “paying subscribers” under section 6000. Section 6000 does not define the term “paying subscriber,” but in the publishing context, a “subscriber” is one who “contract [s] to receive and pay for a certain number of issues of a publication.” (American Heritage Dict. (4th ed.2000) p. 1726.) Another definition of “subscriber” is one who “receive[s] a periodical or service regularly on order.” (Merriam-Webster's Collegiate Dict. (11th ed.2004) p. 1244.) Pollace argues that Program participants are “paying subscribers” because they “paid to receive home delivery” of the Reporter. We disagree. There is no evidence in the record of the existence of a contract between the Reporter and the participants in the Program wherein the participants agree to pay for (and receive) a certain number of issues of the Reporter. Participants are not paying for a certain number of issues of the Reporter. They are, in the words of the Reporter, “contribut[ing] to help cover the expense of home delivery” in the form of a “[s]ponsorship[ ].” Indeed, a contribution is not required to receive home delivery of the Reporter: residents of Humboldt County who do not participate in the Program will receive the newspaper “as a gift of [t]he [ ] Reporter.” As a result, the Program participants do not constitute “paying subscribers” within the plain meaning of section 6000.

The Reporter's reliance on In re San Diego Commerce (1995) 40 Cal.App.4th 1229, 1234, 47 Cal.Rptr.2d 303 ( San Diego Commerce ), is misplaced. There, the San Diego Daily Transcript successfully petitioned to be declared a newspaper of general circulation pursuant to section 6000. A rival newspaper appealed, arguing that section 6000, like section 6008, requires a newspaper to have a “substantial distribution” of paid subscribers. ⁴ ( 40 Cal.App.4th at p. 1233, 47 Cal.Rptr.2d 303.) The Court of Appeal disagreed. It held that a newspaper can qualify as a newspaper of general circulation under section 6000 if it has a “bona fide subscription list of paying subscribers”-it need not have a “substantial distribution” of paying subscribers. ( 40 Cal.App.4th at pp. 1233-1234, 47 Cal.Rptr.2d 303.) San Diego Commerce does not assist Pollace because it does not stand for the proposition 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 “paid subscribers” within the plain meaning of section 6000.

Next, we turn to the meaning of “subscription list.” This term is not defined in section 6000, but a plain and commonsense meaning of “subscription” in the publishing context is “a purchase by prepayment of the future issues of a periodical usu[ally] for a fixed period (as [in] a year).” (Webster's Third New Internat. Dict. (1981), p. 2278.) Another definition of “subscription” is “an arrangement for providing, receiving, or making use of something of a continuing or periodic nature on a prepayment plan: as [in] a purchase by prepayment for a certain number of issues (as of a periodical).” (Merriam-Webster's Collegiate Dict., supra, at pp. 1244-1245.) Thus, a “subscription” typically requires an individual to pay, in advance, for a certain number of issues of a periodical for a fixed period of time. ⁵ In return, the publisher obligates itself to provide the agreed upon issues of the periodical.

We conclude the list of zip codes representing the Program participants does not constitute a “subscription list” under section 6000 for two reasons. First, the participants do not prepay or pay in advance before receiving the Reporter. The record...