Wednesday, June 3, 2015

Service by Birdcage-Liner

In re Establishment of The Press-Enterprise as a Newspaper of General Circulation, (D4d2 May 7, 2015)

When the law refers to something as “constructive,” it basically means it’s a lie. That’s how service by publication works. You try really hard to serve someone, and then, instead of just giving up, you publish a notice in some publication that nobody actually reads and get your default judgment. There is no real service. It’s the effort that counts.


Where and how one can publish that notice, however, is a surprisingly regulated industry. Notice needs to be printed in “a newspaper of general circulation.” Cal. Gov. Code, § 6040. That means a “newspaper published for the dissemination of local or telegraphic news and intelligence of a general character, which has a bona fide subscription list of paying subscribers, and 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.” Gov. Code § 6000.
The standard isn’t really serious. Notice papers mostly reprint generic content from other sources, find free content from people with nothing better to do, and rely on various ways to manipulate the subscription requirement. They mostly exist just to get revenue for printing notices, and since nobody wants to read a newspaper that consists of fake articles and legal notices, barely anybody actually reads them.

But there is one enforceable requirement. The code says that the newspaper must be “printed and published” in the community where notice is given. Rent-seeking being what it is, the incumbent notice papers can protect their revenues by demanding that their competitors are locally printed. Which is what this case is about.

And California being California, of course there’s also a weird, inexplicable exception. Under Government Code § 6006, papers that had been designated as “newspapers of general circulation” in the relevant community as of 1923 get grandfathered in. The Press Enterprise, however, failed to establish that it actually was a general circulation paper in Corona 92 years ago. So it loses, to the benefit of the Sentinel Weekly News, which likely has a current circulation of actual human readers only slightly higher than the current readership of Sassy.

Reversed.

The current state of affairs makes no sense. The code doesn’t require the exhaustion of the various modern methods of locating someone before resorting to notice by publication. A plaintiff does not need to try to find and give notice to a valid email address or locate and give notice the defendant on social media. Instead—the old-school means in the Code having been exhausted—plaintiff needs spend the money to “publish” a notice in a newspaper that nobody reads in order to pretend that due process has been satisfied.

As I said, constructive justice.

How hard or expensive would it be for the State of California to put this stuff online? No doubt, few people (maybe the truly paranoid?) would check much. But a statewide notice website would be far more accessible than the chances of a defendant stumbling across the Sentinel Weekly News and actually bothering to peruse the notices in it. And then it wouldn’t cost anything. Of course that would put some useless papers out of business. But I don’t have much sympathy for rentiers.

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