Von Till v. Bay Area News Group CA1/3

Filed 2/25/14 Von Till v. Bay Area News Group CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

STEPHEN F. VON TILL, Petitioner and Appellant, A136814 v. BAY AREA NEWS GROUP - EAST BAY (Alameda County LLC, Super. Ct. No. HG12614525) Contestant and Respondent.

Appellant Stephen F. Von Till appeals from an order dismissing his petition to have the Tri-City Voice newspaper adjudicated a “newspaper of general circulation” under Government Code1 section 6000.2 He contends the court erred in concluding that his petition was barred by the doctrine of collateral estoppel. We conclude that although the adverse finding in a prior judgment precludes relief for no more than one year, the trial court properly determined that the doctrine precludes recovery on the present petition filed within the one-year period.

1 All statutory references are to the Government Code unless otherwise noted. 2 Appellant is the attorney for the Tri-City Voice newspaper and, as such, was authorized to file the petition. (§ 6020 [“Whenever a newspaper desires to have its standing as a newspaper of general circulation ascertained and established, it may, by its publisher, manager, editor or attorney, file a verified petition in the superior court of the county in which it is established, printed and published, setting forth the facts which justify such action.”].)

1

Statutory Framework A proceeding to adjudicate that a newspaper is a newspaper of general circulation is a special proceeding governed by section 6000 et seq. “ ‘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 Establishment of Eureka Reporter (2008) 165 Cal.App.4th 891, 895; 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”].) To establish that a newspaper is one of general circulation under section 6000 et seq., petitioner must show that the newspaper is “[1] published for the dissemination of local or telegraphic news and intelligence of a general character, [2] which has a bona fide subscription list of paying subscribers, and [3] 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.) A bona fide subscription list “means a real, actual, genuine subscription list which shall contain only the names of those who are in good faith paying regularly for their subscriptions.” (In re Application of Herman (1920) 183 Cal. 153, 164.) Section 6000 does not require a specific number of subscribers or that the “newspaper have ‘substantial distribution to paid subscribers’ to qualify as a newspaper of general circulation.” (In re San Diego Commerce (1995) 40 Cal.App.4th 1229, 1233; In re Application of Herman, supra, 183 Cal. at p. 164.) For a newspaper to be “published” within the meaning of section 6000, “it shall have been issued from the place where it is printed and sold to or circulated among the people and its subscribers during the whole of the one year period.” (§ 6004.) Generally, once an adjudication has been made regarding whether the newspaper is a newspaper of general circulation and the judgment has become 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