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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.”].)


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                                  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


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determined in the original action . . . .” (In re Hancock (1949) 92 Cal.App.2d 481, 485-
486.) However, the issues may be “reopened upon condition . . . that the ultimate facts
are shown to have materially changed subsequent to the original order having been made.
The burden of proof as to this issue is obviously upon the petitioner.” (Id. at p. 486.) In
such a case, “[t]he difference must be of such a nature as to bring about an altered
relativity of conditions as contrasted with that which existed when the original judgment
was entered.” (Ibid.)
                            Factual and Procedural History3
         On February 1, 2011, William Marshak, publisher of the Tri-City Voice, filed a
petition seeking to have the Tri-City Voice adjudicated as a newspaper of general
circulation in Fremont under section 6000.4BANG contested the petition. At the trial on
the petition, Marshak introduced three lists of paying subscribers in Fremont and testified
that these were his bona fide lists of paying subscribers. On July 27, 2011, the court
entered a judgment denying the petition on the ground, among others, that “petitioner
failed to show that it had a bona[ ]fide subscription list of paying subscribers.” The court
explained: “Although there were no objections to the admission of Petitioner's Exhibit 2
(Home Delivery), Exhibit 3 (Five Dollar Subscribers) or Exhibit 4 (Subscribers —
Fremont), the evidence had very little value. Not only did Petitioner not establish these
documents as ‘business records,’ he could not explain the entries nor answer questions
about the contents. He was vague about the ‘data bases’ from which the data was pulled.
He made assumptions about the exhibits based upon his belief that his staff followed the
instructions he gave them. Petitioner provided the Court with no evidence regarding the
methods or time of the preparation of these documents. Petitioner provided the Court with
no evidence to support a finding that the sources of the information that became the


3
  Respondent Bay Area News Group – East Bay, LLC’s (BANG) unopposed request for
judicial notice of documents filed in related proceedings is granted.
4
 The February application also sought adjudication under section 6008, which provides
an alternative basis for being adjudicated a newspaper of general circulation. This
determination is not relevant to the present proceedings.


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databases in this case were reliable or that the information was in any way trustworthy.
[¶] It appeared to the court that if Petitioner could produce a straightforward ‘bona fide’
list of paying subscribers, he would have easily done so. If he had the power to produce
better evidence but failed to do so, such a failure undercuts the evidence he actually
provided. If Petitioner chose not to produce his list or hid his list in the several pages of
documents he gave to the court, that suppression of relevant evidence undercuts his
claims. Respondent’s counsel questioned Petitioner extensively and at one point the court
questioned Petitioner. Petitioner's failure to explain the documentary basis for his claims,
again, undercut his proof.” The judgment became final on September 16, 2011.
       On August 16, 2011, Marshak filed another petition seeking adjudication of the
Tri-City Voice as a newspaper of general circulation under section 6000. BANG moved to
dismiss the application arguing that it was barred by the judgment entered on July 27,
2011. Marshak disputed BANG’s argument, claiming that the new petition was justified
because: “Whereas previously petitioner relied upon a particular employee to make and
keep a ‘bona fide’ list of subscribers which proved inaccurate, Petitioner Marshak has now
prepared the list himself. He can testify personally to its method of preparation and
accuracy. [¶] The number of paid subscribers is an ever changing number from month to
month.” Marshak submitted a declaration explaining that, at the prior trial, he “relied on
two employees to develop and maintain the list of active subscribers. This list and
attendant delivery was dependent upon a database called FileMaker Pro. The system was
designed to permit data entry of all subscribers including: name, address, type of
subscription (i.e., mail or porch delivery), start and renewal dates, and any other pertinent
data. [¶] Renewal letters and contracts with subscribers were dependent on the accuracy of
the list and files were to be maintained for supporting documentation, including copies of
checks, electronic payments, credit card payments, adjustments, and any other necessary
information. [¶] I found after the prior hearing in July 2011 that the database was not kept
current by my employees and information was not accurate. Renewals were often not
requested and those received were poorly processed. Documentation was inconsistent and
although the database existed, the processes of managing it was in a poor state. [¶] The


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prior practice of developing and managing the data used other programs within the
business, such as a labeling program and an accounting program. I found that my
employees were using these programs independently from the main database. Customer
data was entered and maintained in those respective programs and any changes or updates
to that data was not being captured by the main database. This resulted in multiple
versions of data and complication in proper tracking resulted. [¶] To correct this situation,
I established a new system of managing Tri-City's data after the prior hearing in July
2011. In this new system, all files of checks, electronic payments were reviewed by me
and all documentation of payments, as well as, notices to past-due subscribers were
reviewed by me and brought up-to-date. . . . [¶] The process of managing and maintaining
the new database is different from the process of how the old database was being managed
and maintained. [¶] The current list is different from the one presented at the prior
proceeding.”
       On October 6, 2011, the court granted BANG’s motion to dismiss. The court
explained, “The Court finds that all of the elements for application of res judicata are
present. In particular, the Court finds that Petitioner had a full and fair opportunity to
litigate the issue of whether the paper had a bona fide list of subscribers in the prior trial
. . . and failed to establish that such a bona fide list of subscribers existed. Petitioner has
not submitted any evidence of a substantial change in circumstances since the . . . trial in
July 2011. Instead, Petitioner has merely established that it wishes to get another
opportunity to present the same facts it had in its possession at the prior trial. Petitioner
may not now relitigate the issue of whether the newspaper has a bona fide list of
subscribers.” Marshak did not appeal the court’s order dismissing his petition.
       On January 27, 2012, appellant filed the petition now before us, again seeking
adjudication of the Tri-City Voice as a newspaper of general circulation under section
6000. Again, BANG moved to dismiss the application on the ground that it is barred by
the final judgment entered in July 2011. In opposition to the motion, appellant agued that
since the prior judgment was entered, “a ‘bona fide’ and up to date list has been prepared
and kept current by the publisher, Mr. Marshak” and that “[t]he current list is not the same


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as the list [previously submitted].” Appellant submitted “a current list of 155 paid
subscribers who receive porch delivery at home” to the court.
       At BANG’s request, the trial court bifurcated the issues, setting a hearing on the
motion to dismiss for May 24 and a hearing on the merits of the petition for July 13 should
the matter proceed forward. Following the hearing on May 24, appellant filed a
declaration stating that 75 of the 155 current paid subscribers are “new subscribers.” On
June 28, the court granted the motion to dismiss. The court explained that “[t]he alleged
preclusive effect of [the July 2011 judgment] is measured both substantively (by the
determination as to whether there is a factual difference of such a nature as to bring about
an altered relativity of conditions as contrasted with that which existed when [the] original
judgment was made . . .) and by time (within the dictates of Govt. Code section 6004
providing that for a paper to be ‘published’ it has to be printed and sold to or circulated
among the people and its ‘subscribers’ during the ‘whole’ of the one year period . . .).
[¶] Upon its review of the record here, this court concludes that petitioner has not satisfied
either measure.” Appellant timely filed a notice of appeal.
                                         Discussion
       Appellant contends the court erred in holding that the present petition is barred by
the finding in the July 2011 judgment that the newspaper did not have a bona fide list of
paying subscribers. He suggests that because the court did not make any findings on the
authenticity of the subscribers themselves, but concluded only that the list previously
presented was not properly authenticated, the court’s finding that “the list was
unauthenticated is not binding precedent of anything.” Appellant’s narrow reading of the
judgment is not persuasive. If appellant were correct, there could never be finality of such
a judgment. Petitioner could “ litigate, over and over, the same issue in innumerable
suits” until he produced a properly authenticated list. (In re Application of Simpson
(1923) 62 Cal.App. 549, 552.) For the judgment to have any meaning, it must be
understood to determine (based on appellant’s failure to carry his burden of proof) that
the newspaper did not, as of July 2011, have a bona fide list of paying subscribers.



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       As the trial court concluded, this finding is fatal to appellant’s present petition
because it precludes appellant from proving that the newspaper was “sold to or circulated
among the people and its subscribers during the whole of the one year period.” (§ 6004.)
The present petition was filed in January 2012 and the order dismissing the petition was
filed June 2012. If the newspaper did not have a bona fide list of paying subscribers as of
July 27, 2011, the newspaper could not have been circulated among or sold to
subscribers on such a list for the whole of a year prior to January or June 2012.
       As noted above, the question of whether the newspaper has a bona fide list of
subscribers may be reopened on a showing that “the ultimate facts . . . have materially
changed subsequent to the original order having been made.” (In re Hancock, supra, 92
Cal.App.2d at p. 486.) Appellant’s evidence that the newspaper has, since entry of
judgment, obtained 75 new subscribers would arguably establish the necessary changed
circumstances to justify reopening the question of whether the newspaper currently has a
bona fide list of subscribers. These new facts, however, do not permit relitigation of
whether the newspaper had a bona fide list of subscribers in July 2011. Because that
finding is not subject to challenge, appellant necessarily did not satisfy the time
requirements of sections 6000 and 6004 and the court properly dismissed the petition on
that ground.
       Appellant’s arguments to the contrary are not persuasive. The court did not find,
and BANG does not argue, that section 6004 requires a newspaper to have been
circulated to the same subscribers for a full year prior to the filing of the application. The
newspaper must be sold and circulated to its paid subscribers for a one-year period. As
set forth above, appellant is collaterally estopped from arguing that it had a bona fide list
of paying subscribers to whom the paper was sold in July 2011; thus, when the latest
petition was adjudicated, appellant did not meet the one-year requirement.
       The court did not violate appellant’s right to procedural due process by resolving
the matter on this ground. Contrary to appellant’s argument, the court did not exceed the
scope of the May 24 hearing, “which was limited to determining ‘defendant’s motion to
dismiss based upon collateral estoppel [res judicata].’ ” The doctrine of collateral


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estoppel, also known as issue preclusion, bars relitigation of an issue actually decided in a
prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Branson v. Sun–
Diamond Growers (1994) 24 Cal.App.4th 327, 346 [when applying the doctrine of
collateral estoppel, “ ‘the first judgment “operates as an estoppel or conclusive
adjudication as to such issues in the second action as were actually litigated and
determined in the first action” ’ ” (italics omitted)].) The trial court correctly determined
that appellant was collaterally estopped from challenging the factual finding that the
newspaper did not have a bona fide list of paying subscribers in July 2011 and, as set
forth above, this finding necessarily precluded appellant’s ability to succeed on his
petition. No further proceedings were warranted.
       Appellant also contends that the principles of finality that generally support
application of collateral estoppel are not applicable in this case because any interest in
finality is outweighed by the public policy against newspaper monopolies. We disagree.
Even assuming that there is a public interest in having more than one newspaper of
general circulation in a specific city or county, the limited interference with such an
interest created by application of the doctrine of collateral estoppel does not outweigh the
public’s interest in the finality of judgments. Application of collateral estoppel in this
case does not forever preclude the Tri-City Voice from being adjudicated a newspaper of
general circulation. It merely requires the newspaper to wait one year from the date on
which a prior judgment has determined that it did not have a bona fide list of paying
subscribers before filing a new petition alleging that it has circulated its paper to
subscribers on such a list for at least one year.
                                         Disposition
       The order dismissing the petition is affirmed. Respondent shall recover its costs on
appeal.




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                                _________________________
                                Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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