Medeiros v. South Coast Newspapers
DONNA MEDEIROS, Petitioner and Respondent, v. SOUTH COAST NEWSPAPERS, Objector and Appellant
- Area
- civil
- Panel
- Richard D. Huffman, Sr. (author)
Analysis
The trial court granted Donna Medeiros's petition to establish the Oceanside Breeze as a newspaper of general circulation under Government Code section 6008, finding it had a substantial distribution to paid subscribers. The Court of Appeal reversed and remanded, holding that a subscriber-to-population ratio of 1.48% was not definitively substantial and requiring evidence of other newspapers' ratios to determine if the distribution was substantial relative to the area.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the Oceanside Breeze had a substantial distribution to paid subscribers under Government Code section 6008, subdivision (b).“We must consider whether the trial court erred as a matter of law in finding the Oceanside Breeze had a substantial distribution to paid subscribers under section 6008, subdivision (b).” | de novo | error | agree with court The appellate court determined that the trial court's finding was erroneous as a matter of law because the 1.48% subscriber-to-population ratio was not definitively substantial on its own. The court reasoned that while the ratio is not large, it might be substantial if other newspapers in the area have similar percentages, thus requiring further evidentiary proceedings to compare the ratios. |
Authorities
- relied: In re Carson Bulletin (1978) 85 Cal.App.3d 785 — A paid distribution to 12 persons in a city of 79,000 (0.02%) is not a substantial distribution to paid subscribers under Government Code section 6008.
- relied: In re Tri-Valley Herald (1985) 169 Cal.App.3d 865 — The trial court's determination of whether a newspaper is of general circulation is reviewed for error as a matter of law.
- relied: In re Herman (1920) 183 Cal. 153 — The term 'bona fide' in the context of subscription lists is to be taken according to its common acceptation, and the legislature did not specify a minimum number of subscribers.
- relied: In re Simpson (1923) 62 Cal.App. 549 — A population increase does not automatically mean a newspaper has ceased to have a bona fide list of paid subscribers.
- relied: Baldwin v. Brown (1924) 193 Cal. 345 — Small circulation alone does not suffice to exclude a newspaper from the designation of a 'newspaper' for the purpose of publishing notices.
- relied: In re Hancock (1949) 92 Cal.App.2d 481 — A newspaper with over 500 paid subscribers in a small population area has a sufficient bona fide subscription list.
- relied: In re Paradise News Press (1957) 151 Cal.App.2d 496 — A paid subscription list of 254 out of a circulation of about 3,200 in a population of 10,000-12,000 constitutes a bona fide list of paying subscribers.
The appellate opinion: sound — The opinion is sound because it correctly applies the standard of review for statutory interpretation and factual findings, and it logically concludes that the 1.48% ratio is ambiguous without comparative data. It properly distinguishes the current case from In re Carson Bulletin by noting the difference in magnitude and the need for context regarding other newspapers in the area.
The superior court granted Donna Medeiros's petition to adjudicate the Oceanside Breeze a newspaper of general circulation for the City of Oceanside under Government Code section 6008, finding it had a substantial distribution to paid subscribers. The Court of Appeal held that newsstand sales cannot be counted as paid subscribers, that a paid-subscriber-to-population ratio of about 1.48 percent could not be declared substantial on this record, and reversed and remanded to allow Medeiros to introduce comparative evidence of other qualifying newspapers' subscribership ratios.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the Oceanside Breeze had a substantial distribution to paid subscribers in Oceanside under section 6008, subdivision (b)“on this record we cannot say a subscriber to population ratio of approximately 1.48 percent amounts to a substantial distribution to paid subscribers as required by section 6008.” | de novo | error | unsure The court framed the question as whether the trial court erred as a matter of law, citing Tri-Valley Herald, and applied Carson Bulletin's dictionary and purpose-based definition of 'substantial' (ample or considerable). Treating 1.48 percent as not shown to be substantial is consistent with Carson, but the court then announced a comparative test—that the ratio may be substantial if other local newspapers have similar ratios—for which it cited no authority, and it expressly conceded it could not say the distribution was insubstantial. Reversing while admitting the record does not establish insubstantiality, and remanding to let the petitioner supplement her proof, is a defensible but unsupported resolution, so I cannot confidently endorse or reject it. |
Construction of 'paid subscribers' in section 6008 to include newsstand sales (urged by Medeiros to raise the ratio)“This phrase cannot be reasonably construed as including newsstand sales.” | de novo | error | agree with court The court relied on the legislative history recounted in Carson Bulletin: the Senate replaced 'a substantial distribution in the area in which it is sold or distributed' with 'a substantial distribution to paid subscribers,' a pre-enactment change that signals an intent to exclude single-copy sales. The plain meaning of 'subscribers' also excludes newsstand purchasers, and the court tied the reading to the statute's notice purpose. The reasoning and authority support the conclusion. |
Measurement of the substantial-distribution ratio by city population rather than by number of households (fn. 6)“We believe the relevant standard is population rather than the number of households.” | de novo | correct | agree with court The court stated its view without citing authority, but Carson Bulletin itself measured the paid distribution against the city's population (12 of 79,000, 0.02 percent), so using population is consistent with the only prior case construing section 6008(b). The choice is a legal one about the denominator and is reasonably supported. |
Finding that the Oceanside Breeze had a bona fide subscription list of paying subscribers under section 6008, subdivision (a)“South Coast conceded below the only issue was whether there was a substantial distribution to paid subscribers. We therefore do not discuss the issue of a bona fide list of paying subscribers.” | unclear | not reached | agree with court The court declined to address this contention because the objector conceded below that the only contested issue was substantial distribution; declining to reach an issue conceded in the trial court is a routine and proper application of forfeiture principles. |
Authorities
- relied: In re Carson Bulletin (1978) 85 Cal.App.3d 785 — 'Substantial distribution to paid subscribers' under section 6008 means a distribution of ample or considerable amount measured against the local population in light of the statute's notice purpose; 12 subscribers in a city of 79,000 (0.02 percent) is not substantial; legislative history shows the Senate changed the bill from 'substantial distribution' to 'substantial distribution to paid subscribers.'
- relied: In re Tri-Valley Herald (1985) 169 Cal.App.3d 865 — Section 6008 was enacted in 1974 as an alternative to section 6000 with different requirements, and whether a newspaper satisfies the statutory criteria is reviewed as a question of law.
The appellate opinion: sound with gaps — The opinion correctly applies the only prior case on section 6008(b) and the legislative history to exclude newsstand sales and to measure distribution against population, and its conclusion that 1.48 percent is not shown to be substantial follows from Carson Bulletin. It falls short, however, in announcing a comparative-ratio test with no supporting authority, in conceding it cannot say the distribution is insubstantial while nonetheless reversing, and in remanding so the petitioner may supplement her proof without addressing the burden of proof or the standard the trial court should apply on remand.
How this analysis was made · dispute it
unusual dispositionOpinion — Huffman
Opinion
HUFFMAN, Acting P. J.Donna Medeiros successfully petitioned the superior court to have the Oceanside Breeze established as a newspaper of general circulation for the City of Oceanside (Gov. Code, 1 §§ 6008, 6023). Objector South Coast Newspapers doing business as the Blade Citizen (South Coast) appeals, contending the court erred in finding the Oceanside Breeze had a bona fide subscription list of paying subscribers and a substantial distribution to paid subscribers in the City of Oceanside as required by section 6008. 2 We reverse and remand.
Discussion
Section 6008 states in pertinent part:
“Notwithstanding any provision of law to the contrary, a newspaper is a ‘newspaper of general circulation’ if it meets the following criteria:
“(a) It 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 and published at regular intervals of not less than weekly in the city, district, or *984 judicial district for which it is seeking adjudication for at least three years preceding the date of adjudication.
“(b) It has a substantial distribution to paid subscribers in the city, district, or judicial district in which it is seeking adjudication.
“(c) It has maintained a minimum coverage of local or telegraphic news and intelligence of a general character of not less than 25 percent of its total inches during each year of the three-year period.
“(d) It has only one principal office of publication and that office is in the city, district, or judicial district for which it is seeking adjudication.”
In In re Carson Bulletin (1978) 85 Cal.App.3d 785 [149 Cal.Rptr. 764], the newspaper in question had 12 paid subscribers in a city with a population of about 79,000. (Id. at p. 789.) The reviewing court concluded it did not have a substantial distribution to paid subscribers as required by section 6008. (Id. at p. 790.) The court stated:
“The term ‘substantial’ in the context of distribution to paid subscribers may be made reasonably certain by reference to other definable sources. The unabridged version of the Random House Dictionary of the English Language (1966) page 1418, gives as its first and primary definition of ‘substantial’ that it is something ‘of ample or considerable amount, quantity, size, etc.’ Similarly, in common legal usage, the term ‘substantial’ has been defined as “’’important” or “material” ’ [citation] and ‘considerable amount or value in opposition to that which is inconsequential or small’ [citations].
“We recognize that the phrase ‘substantial distribution to paid subscribers’ is a relative phrase. It is, however, apparent that a paid distribution to 12 persons in a city of 79,000 persons, less than two-hundredths of 1 percent (0.02 percent) of the local population, could not be deemed ‘substantial’ under the foregoing definitions in view of the purpose of the law to limit publication of official notices to newspapers meeting certain standards in order ‘to assure that the published material will come to the attention of a substantial number of persons in the area affected’ [citation].” (85 Cal.App.3d at p. 795, fn. omitted.)
Carson is apparently the only case concerning section 6008’s requirement of substantial distribution to paid subscribers.
Section 6008 was enacted in 1974 as an alternative to section 6000. 3 (In re Carson Bulletin, supra, 85 Cal.App.3d at p. 792; In re Tri-Valley Herald (1985) 169 Cal.App.3d 865, 871 [215 Cal.Rptr. 529].) Section 6000 omits *985 the criterion of a substantial distribution to paid subscribers. It requires, however, that the newspaper be printed in the city where it seeks adjudication, 4 and sets forth additional requirements. (In re Carson Bulletin, supra, 85 Cal.App.3d at pp. 791, fn. 2, 793; In re Tri-Valley Herald, supra, 169 Cal.App.3d at p. 871.) 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.” 5
*986 We must consider whether the trial court erred as a matter of law in finding the Oceanside Breeze had a substantial distribution to paid subscribers under section 6008, subdivision (b). (In re Tri-Valley Herald, supra, 169 Cal.App.3d at p. 867.) The ratio of paying subscribers to inhabitants of Oceanside is 1,898 to 128,398, or about 1.48 percent. 6 Medeiros asserts this ratio should be increased by including newsstand sales in the number of paying subscribers. We disagree. The Senate bill giving rise to section 6008 initially required only “ ‘a substantial distribution in the area in which it is sold or distributed.’ ” (In re Carson Bulletin, supra, 85 Cal.App.3d at p. 793, citing Sen. Bill No. 1583 (1973-1974 Reg. Sess.) § 1, subd. (b).) This definition might be interpreted as including newsstand sales. However, the Senate changed the phrase to “a substantial distribution to paid subscribers in the area in which it is seeking adjudication.” 7 (In re Carson Bulletin, supra, 85 Cal.App.3d at p. 793, italics omitted.) This phrase cannot be reasonably construed as including newsstand sales. In view of this preenactment amendment, it is evident the legislature did not intend to include newsstand sales in the substantial distribution requirement. This interpretation of the statute leads to a increased chance affected persons will receive notice of important legal events, thus furthering the legislative purpose.
Given the legislative concern that the persons who are to receive legal notices be likely to read the newspapers publishing those notices, on this record we cannot say a subscriber to population ratio of approximately 1.48 percent amounts to a substantial distribution to paid subscribers as required by section 6008. Standing alone, 1.48 percent is too small a number to be declared to be substantial, nor can we say definitively that it is insubstantial *987 because there is little to which it can be compared. While 1.48 percent is not large, it may be substantial if other newspapers in the area have similar percentages of the population as paid subscribers. We therefore remand so that Medeiros may, if she wishes, introduce evidence of the paid subscribership ratios of other newspapers in the county which qualify under section 6008.
Disposition
Judgment reversed and case remanded for further proceedings consistent with this opinion. Each party to bear its own casts.
Froehlich, J., and Nares, J., concurred.
All statutory references are to the Government Code unless otherwise specified.
South Coast conceded below the only issue was whether there was a substantial distribution to paid subscribers. We therefore do not discuss the issue of a bona fide list of paying subscribers.
Section 6008 has never been amended.
There is no evidence in the record where the Oceanside Breeze is printed.
Following is a brief review of some of the cases citing numbers in their discussions of bona fide subscription lists.
In In re Herman (1920) 183 Cal. 153 [191 P. 934], the Supreme Court reversed the trial court’s judgment declaring the Daily Bulletin a newspaper of general circulation under the Political Code. (Id. at pp. 155, 165.) In so doing, the court stated: “[T]he legislature has not specified the number of subscribers required, and we must assume that it meant that the words ‘bona fide’ were to be taken ‘according to their common acceptation.’ [Citation.]” (Id. at p. 164, italics omitted.) The court declined to conclude there was no bona fide list of paid subscribers, citing evidence of 25 subscribers in various businesses and circulation in San Bernardino, Redlands, Colton, Rialto, Ontario, Highland, Victorville, Pomona, Los Angeles, and Riverside. (In re Herman, supra, 183 Cal. at p. 165.)
In In re Simpson (1923) 62 Cal.App. 549 [217 P. 789], the reviewing court held a population increase from about 12,000 to about 18,000 from 1913 to 1920 did not mean the newspaper had ceased to have a bona fide list of paid subscribers. (Id. at pp. 555-556.) The list apparently contained 197 subscribers. (Id. at p. 556.)
In Baldwin v. Brown (1924) 193 Cal. 345 [224 P. 462], the beneficiary under a trust deed appealed a judgment setting aside a trustee’s sale. (Id. at pp. 346-347.) The Supreme Court held: “The mere fact that its circulation was small, amounting to only about 180 issues daily in a city of 16,000 inhabitants, would not of itself, in our opinion, suffice to exclude it from the designation of a ‘newspaper,’ nor of such a newspaper as might properly be the medium for such publicity of the notice of sale as the trust deed required.” (Id. at p. 352.)
In In re Hancock (1949) 92 Cal.App.2d 481 [207 P.2d 61], the reviewing court affirmed an order declaring the Westmorland Mail and the Imperial Valley Democrat newspapers of general circulation under Political Code section 4460, the precursor to section 6000. (At pp. 482-483.) Concerning the former paper, the population of Westmorland was about 1,500 with a rural population of about 4,500; there were over 500 paid subscribers but the number was reduced due to a paper shortage. (Id. at pp. 487.) The Court of Appeal concluded there was sufficient evidence the newspaper had a bona fide subscription list of paying subscribers. (Id. at p. 488.) Concerning the Imperial Valley Democrat, the City of Brawley had a population of 13,000; the population of the surrounding territory was about 55,000; and there was evidence of 4,111 paid subscribers. (Id. at pp. 489-490.) The reviewing court held the trial court properly concluded the objector had not met the burden of showing the newspaper had ceased to be one of general circulation. (Id. at p. 490.)
In In re Paradise News Press (1957) 151 Cal.App.2d 496 [311 P.2d 555], there was a paid subscription list of 254 out of a circulation of about 3,200. (Id. at pp. 497, 499.) The area *986 containing 206 of the subscribers had a population of about 10,000 to 12,000. (Id. at p. 497.) The reviewing court rejected the contention there was no bona fide list of paid subscribers. (Id. at p. 499.)
Medeiros discusses the number of households in Oceanside as well as the population. We believe the relevant standard is population rather than the number of households.
The court below took judicial notice of petitions, declarations, and 1977 judgments in cases declaring the Del Mar Surfcomber a newspaper of general circulation under section 6008 for the City of Del Mar, and declaring the Del Mar News Press a newspaper of general circulation under section 6000. The Surfcomber had 1,132 paid subscribers in the Del Mar community (541 in the city of Del Mar and 591 in San Diego County) out of 4,743 households served by the Del Mar post office, a subscriber to household ratio of 23.87 percent. The record contains no information concerning the population of the relevant area.
As the Del Mar News Press qualified under section 6000 there was no requirement of a substantial distribution to paid subscribers. It had a bona fide list of paying subscribers of 500 in San Diego and elsewhere outside the city. In 1979, the Del Mar News Press filed an amended petition under section 6008. The copy in the record of the judgment on the petition is unsigned and bears no file stamp.
“A later amendment by the Assembly further qualified this to list the specific jurisdictions, such as the city in which it is seeking adjudication.” (In re Carson Bulletin, supra, 85 Cal.App.3d at p. 793, fn. 3, citing Assem. Amend, to Sen. Bill No. 1583 (1973-1974 Reg. Sess.) Apr. 29, 1974.)
Cites, in this corpus
- In Re Tri-Valley Herald A023521 · 1985-06-28
- In Re Carson Bulletin 53293 · 1978-10-25
- In Re Proposed Establishment of Paradise News Press Civ. 9113 · 1957-06-04
- In Re Hancock Civ. No. 3909 · 1949-06-17
- Hancock v. California Newspaper Publishers' Ass'n Civ. No. 3909; Civ. No. 3908 · 1949-06-17
- Baldwin v. Brown L. A. No. 7123. · 1924-03-12
- In Re Simpson Civ. No. 3681. · 1923-06-16
- In Re Herman L. A. No. 6147. · 1920-06-14
Cited by
- In Re Establishment of Eureka Reporter A117817 · 2008-07-31
- San Diego Commerce v. San Diego Daily Transcript D020191 · 1995-11-16