Independent Journal Newspapers v. United Western Newspapers, Inc.

Opinion

COBEY, Acting P. J.

Plaintiff, Independent Journal Newspapers, a corporation, appeals from a judgment of dismissal of the action, made and entered on motion of defendants, United Western Newspapers, Inc., a corporation, and Deane Funk, pursuant to Code of Civil Procedure, sections 581, subd. 3 and 581d. The basis for the dismissal was the failure of plaintiff to amend within the time specified by the court following the sustaining of defendants’ general and special demurrer, made on numerous grounds, to plaintiff’s first amended complaint.

More specifically (see Code Civ. Proc., § 472d), the trial court sustained defendants’ special demurrer for uncertainty (Code Civ. Proc., § 430, subd. 7) to both causes of action of plaintiff’s first amended complaint in certain specific particulars,

1

and defendants’ general demurrer

[585]

to both causes of action of the complaint on the ground that the Unfair Practices Act cannot be applied constitutionally to newspapers.

This action is a statutory one for injunctive and monetary relief for alleged violations of sections 17043 (sales below cost—first cause of action) and 17044 (prohibiting loss leaders—second cause of action) of the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.).

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We note that defendants’ general and special demurrer to plaintiff’s initial complaint (sales below cost only) was sustained as to the general demurrer only and upon the specific grounds that the violation alleged came, if at all, only under section 17045 (secret rebates, etc.) and that the cost of advertising was but a part of plaintiff’s

[sic]

cost of doing business. (See § 17029.)

We have before us only the validity of the trial court’s sustaining defendants’ demurrer to plaintiff’s first amended complaint and not the validity of the court’s reasons therefor.

(Weinstock

v.