Opinion
NOT TO BE PUBLISHED
APPEAL from a Judgment and Order of the Superior Court of Los Angeles County Super. Ct. No. BS096783, Kenneth Freeman, Judge.
Telanoff & Telanoff, Adam J. Telanoff for Appellant David Ganezer.
Lisa Grace-Kellogg; Nordman, Cormany, Hair & Compton and Glenn J. Dickinson for Respondent Ross Furukawa.
ZELON, J.
David Ganezer appeals the judgment adjudicating the Santa Monica Daily Press to be a newspaper of general circulation for the City of Santa Monica, and the trial court’s denial of his motion for a new trial on the petition. While respondent Ross Furukawa asserts the matter is not properly appealable, we conclude Ganezer’s appeal is properly before this court and find that Furukawa’s notice was inadequate under Government Code, section 6021. We reverse.
All statutory references herein, unless otherwise noted, are to the Government Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
We recite the relevant facts here. On May 9, 2005, Ross Furukawa (Furukawa), who is the publisher of the Santa Monica Daily Press, filed a petition pursuant to section 6008 to have the newspaper declared a newspaper of general circulation for the City of Santa Monica. The effect of such a designation is to permit the newspaper to publish legal notices. (See § 6000, et seq.)
Certain notices, such as fictitious business name statements, may be published in any newspaper adjudicated for the county. (Bus. & Prof. Code, § 17917.) Adjudication for a particular city entitles the newspaper to publish additional notices, such as probate notices and foreclosure notices. (Prob. Code, § 8121, subd. (b); Civ. Code, § 2924f, subd. (b)(1).) Because adjudication for the county does not include cities within the county, the distinction is significant. (See In re Molz (2005) 127 Cal.App.4th 836, 844.)
Furukawa’s petition alleged that the Santa Monica Daily Press was published for the dissemination of local or telegraphic news and intelligence of a general character in the City of Santa Monica, California. The Santa Monica Daily Press had a weekly circulation of approximately 20,000 and 112 paid subscribers. During the three years prior to the filing of the petition, the paper had maintained a minimum coverage of local news and intelligence of a general character of not less than 25 percent of its total inches, and had a principal office located in Santa Monica, California.
Furukawa filed an amended petition on November 8, 2005 alleging that the Santa Monica Daily Press had 1023 subscribers in the City of Santa Monica and surrounding areas and that it had a total weekly distribution of 20,000.
Furukawa’s declaration submitted in support of the petition stated that in addition to publication of the notice in the Santa Monica Daily Press, “[a]n effort was made to also publish the notice of hearing in another newspaper of general circulation for the City of Santa Monica, to no avail” because on “information and belief,” the only other newspaper adjudicated for the City, the British Weekly, did not accept legal advertising. Therefore, Furukawa published notice of the November 29, 2005 hearing on the petition in the Beverly Hills Weekly, a paper published in the City of Beverly Hills and which was adjudicated a newspaper of general circulation, on November 17 and November 23, 2005. Furukawa stated these papers were chosen to meet the legal requirements for notice under Government Code section 6021.
Documents filed in connection with Ganezer’s new trial motion shows that Furukawa also published the notice of hearing in the Santa Monica Daily Press on weekdays from November 16 through November 26, 2005.
On December 20, 2005, the court entered its judgment establishing the Santa Monica Daily Press as a newspaper of general circulation pursuant to section 6008.
On March 15, 2006, David Ganezer (Ganezer), who is the publisher of the Santa Monica Observer, moved for a new trial to vacate and set aside the decision finding the Santa Monica Daily Press a newspaper of general circulation on the ground of surprise and irregularity in the proceedings. (See Code Civ. Pro., § 657, subds. (1), (3), (6).) In support, Ganezer contended petitioner failed to give adequate notice of the petition, and alleged the Daily Press did not adequately explain why it did not publish the notice of hearing in the British Weekly (a newspaper of general circulation for the city),or why it did not publish the notice in the Santa Monica Observer (also a newspaper of general circulation for the city). Furthermore, he alleged the petition was not supported by substantial evidence because the Santa Monica Daily Press did not establish substantial circulation to paid subscribers in the City of Santa Monica. Ganezer contended he had no notice of the petition, and did not learn of the judgment on the petition until January 2006.
Ganezer attached an order dated July 14, 1999 in which the Los Angeles County Superior Court found the British Weekly was a newspaper of general circulation in the City of Santa Monica.
The parties disputed whether the Santa Monica Observer is a paper of general circulation in Santa Monica. Ganezer alleged that Furukawa knew the Observer was a paper of general circulation in Santa Monica, but that Furukawa did not publish notice of the petition in the Santa Monica Observer because Furukawa, as a business competitor, wanted to avoid notifying Ganezer of his intentions.
Ganezer further stated that after obtaining adjudication, the Santa Monica Daily Press has been publishing legal notices, causing the Observer to lose substantial revenue.
Furukawa contended that: Ganezer’s motion was procedurally defective because it was late; Ganezer had no standing because he was not a party to the action; the grounds for new trial stated in the motion did not apply to newspaper adjudication cases; and the motion should be denied on the merits because Furukawa had established proper notice and sufficient paid circulation. Furukawa attached a copy of the unpublished opinion of Santa Monica Observer Newspaper, Inc. v. McCarthy (No. B 155576, March 11, 2003 [nonpub. opn.]), in which the court noted that the Santa Monica Observer was not a newspaper of general circulation entitled to publish public notices. Further, Furukawa contended the British Weekly’s business address was a post office box, and they did not answer their phone during business hours.
Furukawa also moved to quash Ganezer’s subpoena duces tecum served on Lisa Grace Kellogg, the Daily Press’s attorney, and the request to produce the Daily Press’s subscriber list. Furukawa also sought a protective order because the subscriber lists were trade secrets.
At the May 11, 2006 hearing on the motion for new trial, the trial court denied the motion, granted the motion to quash the subpoena duces tecum, and took the motion for protective order off calendar as moot. The trial court denied Ganezer’s request for a statement of decision.
The reporter’s transcript of the hearing is not part of the record.
On June 16, 2006, Ganezer appealed from the judgment.
DISCUSSION
The parties raise numerous issues. Ganezer contends that (1) a motion for a new trial under Code of Civil Procedure section 657 was the proper vehicle to challenge the granting of the petition; (2) the notice requirements of section 6021 are jurisdictional and Furukawa did not give adequate notice; and (3) the trial court erred in finding substantial distribution to paid subscribers. Furukawa contends that (1) Ganezer lacks standing because he did not appear at the hearing on the petition; (2) an order denying a motion for a new trial is not appealable; (3) Code of Civil Procedure section 657 does not apply to newspaper adjudication cases; and (4) substantial evidence supports the trial court’s findings that the Santa Monica Daily Press is a newspaper of general circulation for the City of Santa Monica. We conclude that Ganezer has standing, his appeal from the underlying judgment permits our review of the order denying his new trial motion, and that the record establishes notice was inadequate under section 6021. We therefore reverse.
A. An Order Denying a Motion for a New Trial Is not Separately Appealable, but Is Reviewable in Connection with the Judgment.
Ordinarily, an order denying a motion for a new trial is not a separately appealable order. However, such an order may be reviewed on appeal from the underlying judgment. (Code Civ. Proc., § 906; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) The underlying judgment in this case, from which Ganezer appeals, is appealable. (In re Perris City News (2002) 96 Cal.App.4th 1194, 1198-1199.) Further, although his notice of appeal only refers to the judgment, we construe his notice of appeal to include the order denying the motion for new trial. (Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal to be liberally construed].)
B. Ganezer Has Standing To Appeal The Judgment.
A party aggrieved by the judgment or appealable order has standing to appeal. (Code Civ. Proc., § 902.) The standing test is two-fold: one must be both a party of record to the action and aggrieved. (Stonegate Homeowners Association v. Staben (2006) 144 Cal.App.4th 740, 745, fn. 1.) A party who has an interest recognized by law that is adversely affected by the judgment or order is an aggrieved party; the party’s interest must be immediate and substantial, not nominal or remote. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) Although standing ordinarily is limited to parties of record either named in the complaint or made parties through intervention, other persons aggrieved by the judgment or order also have standing to appeal in some circumstances. Thus, a party whose interest is affected by the action who appears in the action through a motion for a new trial acquires standing to appeal. (Stonegate Homeowners Assoc. v. Staben, supra, 144 Cal.App.4th at p. 745, fn. 1; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342.)
Here, Ganezer had standing. First, he appeared in the action to protect his interests through his new trial motion. Second, he was aggrieved because his financial interests were affected if the Santa Monica Daily Press became a newspaper of general circulation in that city due to lost revenue from the publication of notices by a rival newspaper.
Furukawa argues without persuasive authority that a new trial motion was an improper vehicle to challenge the newspaper adjudication petition because it is a “special proceeding.” This argument is without support in the statutory language. Code of Civil Procedure section 656 provides that a new trial “is a reexamination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” Further, Code of Civil Procedure section 657 provides “[T]he verdict may be vacated and any other decision may be modified or vacated” on the grounds specified in the statute. Section 6024, which permits the vacation of a judgment that a newspaper is a newspaper of general circulation, does not apply because the statute by its express terms is limited to the situation where the judgment is to be set aside on the grounds that the newspaper in question is no longer a newspaper of general circulation. (§ 6024, subd. (1).) Such is not the case here.
C. Furukawa Did Not Give Adequate Notice Under Government Code Section 6021.
Ganezer moved for new trial claiming “irregularity of the proceedings” and “accident or surprise” under Code of Civil Procedure section 657, subdivisions (1) and (3). A new trial may be granted where irregularity in the proceedings prevent a party from having a fair trial. Lack of notice constitutes such an irregularity. (Gordon v. Gordon (1956) 145 Cal.App.2d 231, 234-235.) In addition, the party moving for new trial on the grounds of accident or surprise must show that an accident or surprise happened during the trial; the moving party was suddenly and unexpectedly placed in a condition resulting in detriment through no fault of his or her own; and the accident or surprise is one which could not have been guarded against or prevented through reasonable diligence by the moving party. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1806.)
Here, the trial court erred in denying Ganezer’s motion for a new trial. Ganezer did not have proper notice of the proceedings and in fact was unaware they had taken place; further, he promptly moved for relief upon discovering the judgment. Notice of the petition was inadequate because Furukawa did not comply with the provisions of section 6021, which specifies the form of notice for newspaper adjudication petitions: “The petition or the substance thereof, together with a notice that the petitioner intends on a named day to apply for an order declaring it to be a newspaper of general circulation, shall be published pursuant to section 6062: [¶] (a) In the petitioning newspaper, and [¶] (b) In some other newspaper of general circulation published in the same city as the petitioning newspaper if there is one, and if there is none, or if publication in such newspaper is refused, then in some other newspaper of general circulation published in the same county, if there is one, and if there is none, or if publication in such newspaper is refused, then, in lieu thereof, in some other newspaper of general circulation published in an adjacent county or in such other newspaper as the court shall direct.” The purpose of these statutes is to ensure notice is given to interested persons. (See In re Molz (2005) 127 Cal.App.4th 836, 844.)
“Publication of notice pursuant to this section shall be for 10 days. The period of notice commences upon the first day of publication and terminates at the end of the tenth day, including therein the first day. Publication shall be made on each day on which the newspaper is published during the period.”
Although the parties dispute whether the Santa Monica Observer is a newspaper of general circulation for the City of Santa Monica, and the record contains no competent evidence that it is so designated, the record does establish that the British Weekly is a paper of general circulation for the city. Pursuant to the statute, notice of the petition is to be published in some “other newspaper of general circulation published in the same city,” namely, Santa Monica. Thus, Furukawa’s failure to publish in the British Weekly as required by section 6021 rendered the notice of the petition insufficient. Publication in the Beverly Hills Weekly, which is not published in Santa Monica or adjudicated for that city, does not cure the defect. Under the statutory scheme, “publication” is not the same as “distribution.”
No competent evidence is found in the record establishing that the British Weekly does not accept such notices for publication.
Section 6004 provides, “For a newspaper to be ‘published,’ 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.”
Because we reverse the judgment on this basis, we need not reach the issues of whether the requirements of section 6021 are jurisdictional, or whether Furukawa established substantial distribution to paid subscribers of the Santa Monica Daily Press.
DISPOSITION
The judgment of the superior court is reversed. Appellant is to recover his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.