In Re Carson Bulletin

85 Cal. App. 3d 785, 149 Cal. Rptr. 764
CourtCalifornia Court of Appeal
DecidedOctober 25, 1978
Docket53293
StatusPublished
Cited by10 cases

This text of 85 Cal. App. 3d 785 (In Re Carson Bulletin) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Carson Bulletin, 85 Cal. App. 3d 785, 149 Cal. Rptr. 764 (Cal. Ct. App. 1978).

Opinion

85 Cal.App.3d 785 (1978)
149 Cal. Rptr. 764

In re Establishment of CARSON BULLETIN as a Newspaper of General Circulation.
O. RAY WATKINS, Petitioner and Appellant,
v.
CITY OF CARSON, Contestant and Respondent.

Docket No. 53293.

Court of Appeals of California, Second District, Division Three.

October 25, 1978.

*788 COUNSEL

Thomas G. Patterson for Petitioner and Appellant.

Richards, Watson, Dreyfuss & Gershon, Mitchell E. Abbott and Rochelle Browne for Contestant and Respondent.

OPINION

POTTER, J.

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.

*789 Points and authorites, and declarations in support of 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

(1a) The court properly granted the motion to vacate the judgment declaring the Bulletin a newspaper of general circulation for the City of *790 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. (2a) 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.

(3a) 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

(4) 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 [1 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): "The general rule as to the nature of this proceeding and the burden of proof is clearly set forth in In re Simpson [(1923) 62 Cal. App. 549 (217 P. 789)], supra, 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 *791 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.)

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Bluebook (online)
85 Cal. App. 3d 785, 149 Cal. Rptr. 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carson-bulletin-calctapp-1978.