B282952

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SIX

CHARLES TENBORG,

Plaintiff and Respondent,

v.

CALCOASTNEWS/UNCOVEREDSLO.COM, LLC, et al.,

Defendants and Appellants.

On Appeal from the Superior Court of the State of California

San Luis Obispo County, Case No. CIV502381
The Honorable Barry T. LaBarbera

RESPONDENT’S BRIEF

*MICHAEL VON LOEWENFELDT (178665)

JAMES M. WAGSTAFFE (95535)
DANIEL J. VEROFF (291492)
KERR & WAGSTAFFE LLP
101 Mission Street, 18th Floor
San Francisco, CA 94105-1727
(415) 371-8500 Telephone
(415) 371-0500 Facsimile
Email: mvl@kerrwagstaffe.com

Attorneys for Plaintiff and Respondent

CHARLES TENBORG
 TABLE OF CONTENTS

I. Introduction ................................................................................................. 10
II. Procedural History ...................................................................................... 12
III. Defendants’ Appeal Is Procedurally Deficient ........................................ 15
A. Defendants’ Failure To Preserve And Present A
Complete Record Dooms Their Appeal ...................................... 15
B. Defendants’ Failure To Address The Evidence Against
Them Also Warrants Affirmance ................................................. 17
C. Blackburn’s Bankruptcy Deprives Him Of Standing ................. 18
IV. Facts Supporting The Verdict.................................................................... 19
A. Defendants publish their defamatory article ............................... 19
B. The evidence showed that Blackburn and Velie were
both responsible for this defamatory article................................ 21
C. The evidence showed both ill will toward Tenborg and a
reckless, indeed deliberate, indifference to the truth.................. 23
1. Defendants are seasoned writers who publish
inflammatory stories about alleged corruption............... 23
2. Velie ignored facts inconsistent with her story
and had no evidence supporting her claim to have
relied on sources ................................................................. 24
3. Defendants were evasive, refused to retract, and
otherwise contumaciously ignored Tenborg’s
rights ..................................................................................... 28
V. Argument ...................................................................................................... 29
A. The Evidence Defendants Ignore Amply Supports The
Verdict Against Blackburn ............................................................. 29
B. There Was No Instructional Error ............................................... 32
1. Defendants stipulated to instruction 25(b) ..................... 32
2. Defendants’ attempt to view words in isolation
ignores the law of libel ....................................................... 34
3. In the context of the article, accusing Tenborg of
entering into an illegal no-bid contract was
defamatory per se ............................................................... 37

3
 4. In the context of the article, implying that
Tenborg was illegally and dangerously
transporting radioactive waste was defamatory
per se .................................................................................... 38
5. Defendants fail to provide an adequate record to
evaluate the impact of any alleged error .......................... 41
C. The Evidence Was Overwhelming That Appellants
Acted With Malice in Publishing the Article ............................... 42
1. This is precisely the type of case where malice is
usually found ....................................................................... 42
2. The presumed damages verdict against Blackburn
was well supported and should be affirmed ................... 44
3. The punitive damages verdict against Velie was
well supported and should be affirmed ........................... 46
VI. Conclusion .................................................................................................... 50

4
 TABLE OF AUTHORITIES

Cases

Arechiga v. Dolores Press, Inc.

(2011) 192 Cal.App.4th 567 ....................................................................... 18
Ballard v. Uribe
(1986) 41 Cal.3d 564 ............................................................................. 15, 16
Barnes-Hind, Inc. v. Superior Court
(1986) 181 Cal.App.3d 377......................................................................... 35
Bartholomew v. YouTube, LLC.
(2017) 17 Cal.App.5th 1217 .......................................................... 34, 35, 37
Bazaure v. Richman
(1959) 169 Cal.App.2d 218................................................................... 30, 48
Begnal v. Canfield & Assoc., Inc.
(2000) 78 Cal.App.4th 66 ........................................................................... 48
Bently Reserve LP v. Papaliolios
(2013) 218 Cal.App.4th 418 ................................................................ 34, 35
Boeken v. Philip Morris Inc.
(2005) 127 Cal.App.4th 1640 ..................................................................... 29
Bostanian v. Liberty Sav. Bank
(1997) 52 Cal.App.4th 1075 ....................................................................... 18
Botos v. Los Angeles Cnty Bar Assn.
(1984) 151 Cal.App.3d 1083 ...................................................................... 10
Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655 ................................................................. 32, 33
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995 ......................................................................... 18
Conservatorship of Rand
(1996) 49 Cal.App.4th 835 ......................................................................... 15
Curtis Publishing Co. v. Butts
(1967) 388 U.S. 130 ..................................................................................... 43
Daniel v. Wayans
(2017) 8 Cal.App.5th 367 ........................................................................... 38
Doe v. Roman Catholic Archbishop of Cashel & Emly
(2009) 177 Cal.App.4th 209 ....................................................................... 17

5
Estate of Fain
(1999) 75 Cal.App.4th 973 ................................................................... 16, 41
Estate of Palmer
(1956) 145 Cal.App.2d 428......................................................................... 18
Fishback v. J.C. Forkner Fig Gardens, Inc.
(1934) 137 Cal.App. 211 ............................................................................. 16
Fisher v. Larsen
(1982) 138 Cal.App.3d 627......................................................................... 43
Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875 ..................................................................................... 17
Forsher v. Bugliosi
(1980) 26 Cal.3d 792 ................................................................................... 36
Garrison v. Louisiana
(1964) 379 U.S. 64 ....................................................................................... 42
Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323 ..................................................................................... 10
Gill v. Curtis Pub. Co.
(1952) 38 Cal.2d 273 ................................................................................... 39
Goldwater v. Ginzburg
(2nd Cir. 1969) 414 F.2d 324 ..................................................................... 43
Gomez v. Acquistapace
(1996) 50 Cal.App.4th 740 ......................................................................... 49
Grewal v. Jammu
(2011) 191 Cal.App.4th 977 ....................................................................... 43
Harte-Hanks Communications, Inc. v. Connaughton
(1989) 491 U.S. 657 ..................................................................................... 43
Haskins v. Crumley
(1957) 152 Cal.App.2d 64 ........................................................................... 16
Hickson v. Thielman
(1956) 147 Cal.App.2d 11 ........................................................................... 18
Howard v. Owens Corning
(1999) 72 Cal.App.4th 621 ......................................................................... 30
Huong Que, Inc. v. Luu
(2007) 150 Cal.App.4th 400 ................................................................. 17, 46
In re Marriage of Smith
(1990) 225 Cal.App.3d 469......................................................................... 46

6
J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP
(2016) 247 Cal.App.4th 87 ......................................................................... 36
Keener v. Jeld-Wen, Inc.
(2009) 46 Cal.4th 247 ............................................................................ 45, 46
Khawar v. Globe International, Inc.
(1998) 19 Cal.4th 254 ............................................................... 42, 43, 46, 49
Kiesau v. Bantz
(Iowa 2004) 686 N.W.2d 164 ..................................................................... 39
Lakenan v. Lakenan
(1967) 256 Cal.App.2d 615......................................................................... 30
MacLeod v. Tribune Publishing Co.
(1959) 52 Cal.2d 536 ...................................................................... 35, 36, 38
Manzari v. Associated Newspapers Ltd.
(9th Cir. 2016) 830 F.3d 881 ...................................................................... 38
Marriage of Fink
(1979) 25 Cal.3d 877 ................................................................................... 17
Masson v. New Yorker Magazine
(1991) 501 U.S. 496 ..................................................................................... 35
McCoy v. Hearst Corp.
(1986) 42 Cal.3d 835 ................................................................................... 50
Miller v. Checkeroski
(1963) 217 Cal.App.2d 590......................................................................... 16
Mixon v. Riverview Hospital
(1967) 254 Cal.App.2d 364......................................................................... 45
Montandon v. Triangle Publications, Inc.
(1975) 45 Cal.App.3d 938 ..................................................................... 39, 49
Mountain Lion Coalition v. Fish & Game Com.
(1989) 214 Cal.App.3d 1043 ...................................................................... 17
Nestle v. Santa Monica
(1972) 6 Cal.3d 920 ..................................................................................... 46
Nwosu v. Uba
(2004) 122 Cal.App.4th 1229 ..................................................................... 46
Oliveira v. Kiesler
(2012) 206 Cal.App.4th 1349 ............................................................... 16, 47
Overstock.com, Inc. v. Gradient Analytics, Inc.
(2007) 151 Cal.App.4th 688 ................................................................. 36, 43

7
People v. Adams
(2014) 60 Cal.4th 541 .................................................................................. 44
Perlin v. Fountain View Management, Inc.
(2008) 163 Cal.App.4th 657 ....................................................................... 33
Regalado v. Callaghan
(2016) 3 Cal.App.5th 582 ........................................................................... 33
Romo v. Ford Motor Co.
(2002) 99 Cal.App.4th 1115 ....................................................................... 44
Selleck v. Globe International, Inc.
(1985) 166 Cal.App.3d 1123 ................................................................ 34, 38
Shumate v. Johnson Publishing Co.
(1956) 139 Cal.App.2d 121................................................................... 33, 48
Soule v. General Motors Corp.
(1994) 8 Cal.4th 548 .............................................................................. 16, 17
South Bay Transp. Co. v. Gordon Sand Co.
(1988) 206 Cal.App.3d 650......................................................................... 30
Sprague v. Equifax, Inc.
(1985) 166 Cal.App.3d 1012 ................................................................ 30, 48
St. Amant v. Thompson
(1968) 390 U.S. 727 ..................................................................................... 42
Stasz v. Eisenberg
(2010) 190 Cal.App.4th 1032 ............................................................... 16, 47
Stevens v. Owens-Corning Fiberglas Corp.
(1996) 49 Cal.App.4th 1645 ....................................................................... 33
Sutter Health Uninsured Pricing Cases
(2009) 171 Cal.App.4th 495 ....................................................................... 16
Taylor v. Nabors Drilling USA, LP
(2014) 222 Cal.App.4th 1228 ..................................................................... 45
Tenborg v. CalCoastNews/UncoveredSLO.com LLC
(July 28, 2015, No. B254094)
2015 Cal. App. Unpub. LEXIS 5273 .................................................. 13, 34
Tidlund v. Seven Up Bottling Co.
(1957) 154 Cal.App.2d 663......................................................................... 30
Time, Inc. v. Ragano
(5th Cir. 1970) 427 F.2d 219 ...................................................................... 39

8
Transport Ins. Co. v. TIG Ins. Co.
(2012) 202 Cal.App.4th 984 ....................................................................... 33
Weller v. American Broadcasting Cos., Inc.
(1991) 232 Cal.App.3d 991................................................................... 36, 38
Whitaker v. Whitaker
(1934) 137 Cal.App. 396 ............................................................................. 30
Wong v. Jing
(2010) 189 Cal.App.4th 1354 ..................................................................... 36

Constitutional Provisions

Cal. Constitution, article VI, section 13 ................................................................ 16

Statutes

Civ. Code, § 47 ......................................................................................................... 12

Civ. Code., § 45a ...................................................................................................... 34
Code Civ. Proc., § 425.16 ....................................................................................... 12

Rules

Cal. Rules of Court, rule 8.134 ......................................................................... 14, 17

Cal. Rules of Court, rule 8.137 ......................................................................... 14, 17
Cal. Rules of Court, rule 8.204(d) .......................................................................... 12

Other Authorities

B. Loving, Law of Mass Communications (2016) ......................................... 38, 39

Metzler, Cleaning Up Quotations
(forthcoming 2018) J. App. Prac. & Process, https://perma.cc/JZR7-
P85A .............................................................................................................. 16
W. Shakespeare, Othello (1604) ............................................................................... 10

9
 Good name in man and woman, dear my Lord, is
the immediate jewel of their souls: Who steals my
purse steals trash; ‘tis something, nothing; ‘Twas
mine, ‘tis his and has been slave to thousands;
But he that filches from me my good name robs
me of that which not enriches him and makes me
poor indeed. 1

I. INTRODUCTION

The jury found that defendants Karen Velie and Daniel Blackburn,
through their online tabloid CalCoastNews/UncoveredSLO.com
(“CalCoastNews”), defamed plaintiff Charles Tenborg by publishing a story
accusing him of illegally transporting hazardous waste, obtaining government
contracts through corrupt means, being fired from a prior environmental
health job, and encouraging public officials to break the law. None of that was
true, and the trial revealed that defendants simply had no basis for their
spurious rumor mongering. The jury properly awarded Tenborg $300,000 in
actual damages, $300,000 in additional presumed damages, and $500,000 in
punitive damages.
As much as Defendants try to make it one, this is not a case about
experienced reporters accidentally getting it wrong. The evidence showed a
deliberate attempt to assassinate Charles Tenborg’s character to hype
Defendants’ self-described reputations as the “tip of the spear” “shin[ing] a
light on injustice and abuse of power.” Defendants deliberately published
horrible falsehoods about Tenborg, even after being told they were untrue, in
an article they made as harsh and accusatory as possible to hide its lack of

1
(Botos v. Los Angeles Cnty Bar Assn. (1984) 151 Cal.App.3d 1083, 1087
[199 Cal.Rptr. 236], quoting Othello, Act III sc. 3; see also Gertz v. Robert Welch,
Inc. (1974) 418 U.S. 323, 341 [94 S.Ct. 2997] [“the individual’s right to the
protection of his own good name ‘reflects no more than our basic concept of
the essential dignity and worth of every human being—a concept at the root
of any decent system of ordered liberty.’”].)

10
substance. Defendants then stuck to their guns, even while unable to produce
any proof of their assertions, insisting that their falsehoods were true.
Defendants were not candid with the jury about their actions, presented no
notes or corroborating witnesses to substantiate their claims, and were evasive
and hostile during adverse examination. It is no wonder the jury did not
believe Defendants’ blithe insistence they did nothing wrong.
On appeal, Defendants continue this lack of candor, failing to discuss
the evidence against them in any meaningful way and, indeed, failing even to
inform the Court that they have not presented a full trial transcript because
they waived the official court reporter and did not start recording the trial until
after Tenborg’s direct testimony was over. These failures bar their appeal
under the bedrock rule that evidentiary review cannot be conducted without a
complete record.
Nor, even if one could ignore the fact much of Tenborg’s own
testimony is not before the Court, have Defendants shown any error below.
The jury plainly had sufficient evidence to find that Blackburn took an active
role in publishing this defamatory article. Each of the highlighted statements
were libelous per se and, indeed, Defendants stipulated below to one of the
two instructions they now claim was error. There was also ample evidence of
malice to support the jury’s awards of presumed and punitive damages.
Defendants’ insistence that the Court should re-weigh the evidence and
believe their own testimony provides no basis for disturbing the jury’s verdict.

11
II. PROCEDURAL HISTORY

This case arises from a November 12, 2012 article about Respondent
Charles Tenborg entitled “Hazardous waste chief skirts law,” bylined by
Appellants Karen Velie and Daniel Blackburn, and published online by
Appellant CalCoastNews. (Respondent’s Appendix [“RA”] pp. 3-6.) 2 On
December 4, 2012, Tenborg timely demanded a retraction of the many falsities
in the article, and Appellants refused then or ever to publish a correction of
any kind. (Reporter’s Transcript [“RT”] pp. 346:3-10, 425:5-13, 426:10-16,
437:1-4, 439:16-19, 666:2-11.)
On May 10, 2013, Tenborg filed the instant action for libel against each
of the Appellants. (Appellants’ Appendix [“AA”] pp. 1-20.) Shortly thereafter,
Appellants jointly filed a Special Motion to Strike the Complaint under
California’s anti-SLAPP statute, Cal. Code Civ. Proc., § 425.16, arguing that
Tenborg could not show a probability of prevailing on his libel claim inter alia
because the statements at issue were not false, they somehow were privileged
as a “fair and true report” of a public proceeding (Cal. Civ. Code, § 47, subds.
(d), (e)), that certain statements were not “of and concerning” him at all, and
most remarkably that several of the challenged statements somehow were not
even susceptible of a defamatory meaning. (AA pp. 75-76.)
In what this Court later referred to as a “concise, well-reasoned
decision,” the trial judge (Tangeman, J.) rejected Appellants’ anti-SLAPP
contentions, finding that the article was not privileged as a matter of law
because it made no reference to or report of what supposedly transpired
during any public meeting, that Tenborg provided “sufficient evidence to
establish the falsity of the statement[s],” that identified statements were clearly
defamatory, and that the statements were of and concerning Tenborg because

2
Pursuant to California Rules of Court, rule 8.204(d), a color copy of the
defamatory article, Trial Exhibit 1 (RA pp. 11-14), is attached to this brief.

12
“the . . . article names [him], includes his photograph, and identifies Eco
Solutions as a company that [he] owns.” (RA p. 9.)
Velie, Blackburn and CalCoastNews took an immediate appeal from
the anti-SLAPP order, and after extended briefing, this Court, in an
unpublished opinion issued on July 28, 2015, affirmed Judge Tangeman’s
rulings in their entirety. (Tenborg v. CalCoastNews/UncoveredSLO.com LLC (July
28, 2015, No. B254094) 2015 Cal. App. Unpub. LEXIS 5273; see AA pp. 77-
88.) Specifically, this Court held that Tenborg had shown a probability of
prevailing on his libel claim, and specifically rejected Appellants’ arguments
there was insufficient evidence of falsity, that the article was privileged and
that statements at issue were not defamatory. (Ibid.) As to this last holding, the
Court stated that it “agree[ed] with the trial court that ‘the statements that
[Tenborg] illegally transported hazardous waste and encouraged public
agencies to ignore state law would injure [him] with respect to his profession
as an environmental contractor. . . .’ [and] [c]onsequently, these statements
were ‘libelous per se, and actionable without proof of special damage.’
(citation omitted).” (Id. at p. *18; AA p. 87.)
Following remand of the unsuccessful anti-SLAPP appeal and after all
parties had the opportunity to conduct discovery, the matter went to trial
beginning on March 6, 2017, more than four years after the action was filed.
(AA p. 40.) Importantly, the register of actions reflects that on the first day of
trial a “court reporter is waived . . . for the entire trial by both parties.” (AA
p. 41.) In fact, and by agreement of the parties, there was no court reporter for
the first three days of trial, which included motions in limine, jury selection,
opening statements, the entire direct examination of the plaintiff Charles
Tenborg, and part of his cross-examination. (AA pp. 41-47.) The Reporter’s
Transcript designated by Appellants begins only halfway through the second
day of testimony (and the fourth day of trial). (RT p. 4; AA p. 47 [as
defendants for the first time arranged for a “private court reporter” to arrive].)

13
 At the conclusion of the testimony, Defendant Blackburn made a
motion for directed verdict, arguing there was insufficient evidence of his joint
liability, notwithstanding, among other things, he was a bylined author of the
article. (RT pp. 1116, 1207-08.) The trial judge (LaBarbera, J.) denied this
motion. (RT p. 1211.) The parties stipulated that they agreed on the verdict
form and all jury instructions except as to a preserved defense challenge to a
libel per se instruction concerning only two of the challenged statements. (AA
588.)
On March 16, 2017, the jury returned with its verdict, finding inter alia
that statements in the challenged article defamed Tenborg, that Blackburn
played a responsible role in the publication of those statements, that all
defendants failed to use reasonable care in determining the truth or falsity of
such statements, and that defendants’ conduct was a substantial factor in
causing Tenborg actual harm in the amount of $300,000 ($150,000 each
respectively for reputational and emotional distress injuries). (AA pp. 553-56.)
In addition, and after being properly instructed without any defense objection,
the jury found that Tenborg suffered presumed damages in the amount of
$300,000, and that Velie and CalCoast News were responsible for punitive
damages in the amount of $500,000. (AA p. 555.)
After the verdict, the Court denied defendants’ post-trial motions and
this appeal ensued. (AA pp. 612-20.) Despite the deliberate absence of a full
transcript, Appellants made no request, timely or otherwise, for an agreed or
settled statement. (See Cal. Rules of Court, rules 8.134, 8.137.)

14
III. DEFENDANTS’ APPEAL IS PROCEDURALLY DEFICIENT

This appeal fails right out of the gate as Defendants do not meet the
most basic requirements for an appeal from a jury’s verdict. They (1) failed to
obtain and provide a complete record of the trial, and (2) failed to discuss
most of the evidence, much less do so in the manner most favorable to the
verdict. Moreover, Blackburn no longer has standing to appeal because he
declared Chapter 7 bankruptcy. Each of these procedural defects warrants
rejection of this appeal.

A. Defendants’ Failure To Preserve And Present A

Complete Record Dooms Their Appeal
Perhaps the most important rule of appellate procedure is that “a party
challenging a judgment has the burden of showing reversible error by an
adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [224 Cal.Rptr.
664, 715 P.2d 624].) Defendants have failed to provide a complete trial record
to the Court and, moreover, they do not even acknowledge that failure in their
brief. As noted above, no court reporter was ordered by either party for the
first three days of trial, including the opening statements, the entire direct
examination of the plaintiff Charles Tenborg, and part of his cross-
examination. (AA pp. 41-47.) Despite being aware the entire trial was not
transcribed, Defendants did not attempt to complete the oral record with an
agreed or settled statement. (AA pp. 635-38.)
“A fundamental rule of appellate review is that a judgment or order of
the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown.” (Conservatorship of Rand (1996) 49 Cal.App.4th
835, 841 [57 Cal.Rptr.2d 119] [cleaned up] 3.) “To the extent the record is

3
This brief uses [cleaned up] to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations. (See, e.g., United
15
incomplete, we construe it against [Appellant].” (Sutter Health Uninsured Pricing
Cases (2009) 171 Cal.App.4th 495, 498 [89 Cal.Rptr.3d 615].) This has long
been the law. (E.g., Miller v. Checkeroski (1963) 217 Cal.App.2d 590, 591-92 [31
Cal.Rptr. 701]; Haskins v. Crumley (1957) 152 Cal.App.2d 64, 65 [312 P.2d 276];
Fishback v. J.C. Forkner Fig Gardens, Inc. (1934) 137 Cal.App. 211, 219 [30 P.2d
586].)
Thus, “where the appellant fails to produce a complete record of oral
trial proceedings, a challenge based on the claim of evidence insufficiency will
not be heard.” (Estate of Fain (1999) 75 Cal.App.4th 973, 987 [89 Cal.Rptr.2d
618]; Ballard v. Uribe, supra, 41 Cal.3d at pp. 574-75.) “[I]t is presumed that the
unreported trial testimony would demonstrate the absence of error.” (Estate of
Fain, supra, 75 Cal.App.4th at p. 992.) This presumption is conclusive and bars
all arguments on appeal that depend on the sufficiency of the trial evidence.
(Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 [142 Cal.Rptr.3d 733];
Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [120 Cal.Rptr.3d 21];
Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
The failure to provide a complete trial record also prevents review of
alleged instructional error, because such error requires review of the entire
record. “[T]here is no rule of automatic reversal or ‘inherent’ prejudice
applicable to any category of civil instructional error, whether of commission
or omission.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34
Cal.Rptr.2d 607, 882 P.2d 298].) As commanded by article VI, section 13 of
the California Constitution, a civil judgment cannot be reversed for instruction
error “unless, after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.)
“Actual prejudice must be assessed in the context of the individual trial

States v. Reyes (5th Cir. 2017) 866 F.3d 316; Metzler, Cleaning Up Quotations
(forthcoming 2018) J. App. Prac. & Process, https://perma.cc/JZR7-P85A.)

16
record.” (Ibid.) When “the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be affirmed.”
(Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043,
1051, fn. 9 [263 Cal.Rptr. 104].)
If Defendants wanted to preserve an appeal from the jury’s verdict,
they should not have waived a court reporter only to change their mind after
the Plaintiff’s direct examination. Recognizing this failure below, appellate
counsel could have tried to obtain an agreed or separate statement covering
the missing portion of the trial. (See Cal. Rules of Court, rules 8.134, 8.137.)
The deadlines for creating such a record by an agreed or settled statement
have long passed. (See Cal. Rules of Court, rules 8.134(b), 8.137(b).) Having
done none of this, Defendants cannot proceed with their appeal.

B. Defendants’ Failure To Address The Evidence

Against Them Also Warrants Affirmance
Defendants do not even properly address the partial record they did
procure. They make no attempt to present the evidence against them. “It is
the appellant’s burden, not the court’s, to identify and establish deficiencies in
the evidence. This burden is a ‘daunting’ one.” (Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 409 [58 Cal.Rptr.3d 527] [citation omitted].) “A party
who challenges the sufficiency of the evidence to support a particular finding
must summarize the evidence on that point, favorable and unfavorable, and show how
and why it is insufficient.” (Ibid., italics in original [citations omitted].) An opening
brief that fails to set forth all of the evidence favorable to the verdict “is
manifestly deficient.” (See Marriage of Fink (1979) 25 Cal.3d 877, 887 [160
Cal.Rptr. 516, 603 P.2d 881].)
Where, as here, appellants fail to properly present the evidence against
them, any challenge to the sufficiency of the evidence is waived. (Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [92 Cal.Rptr. 162, 479 P.2d 362];
Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209,
17
218 [99 Cal.Rptr.3d 158]; Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th
567, 571-72 [121 Cal.Rptr.3d 654]; Hickson v. Thielman (1956) 147 Cal.App.2d
11, 14-15 [304 P.2d 122].)
Even setting aside the fact that the transcript is incomplete, the
Opening Brief cites to only 50 pages from the over 1,000 pages of testimony.
Defendants discuss none of the exhibits introduced at trial beyond the
defamatory article itself, 4 and ignore every witness besides themselves and
their editor whom they called as an expert. It is difficult to imagine a more
deficient presentation of what happened at trial. “Instead of a fair and sincere
effort to show that the [jury] was wrong, appellant’s brief is a mere challenge
to respondents to prove that the [jury] was right.” (Estate of Palmer (1956) 145
Cal.App.2d 428, 431 [302 P.2d 629].) Defendants’ failure to honestly address
the record against them should not be countenanced by this Court, and
warrants rejection of their appeal.

C. Blackburn’s Bankruptcy Deprives Him Of Standing

Tenborg filed a motion to dismiss Blackburn’s appeal for lack of
standing because of Blackburn’s chapter 7 bankruptcy. (See Bostanian v. Liberty
Sav. Bank (1997) 52 Cal.App.4th 1075, 1082-83 [61 Cal.Rptr.2d 68]; Cloud v.
Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1003, fn. 2 [79 Cal.Rptr.2d
544].) On April 11, 2018, the Court deferred resolution of that motion
pending completion of briefing. Blackburn’s lack of standing has been fully
briefed in connection with the motion, and is raised here to avoid any
potential waiver or omission of the issue.

4
Even there, Defendants cite the attachment to the complaint, which
was not in evidence, instead of Exhibit 1 introduced at trial which is a better
copy of the same document. (See RA pp. 11-14.)

18
IV. FACTS SUPPORTING THE VERDICT

A. Defendants publish their defamatory article

On November 14, 2012, CalCoastNews published an article by Velie
and Blackburn entitled “Hazardous waste chief skirts law.” (RA pp. 11-14.)
The first paragraph of the article falsely asserts that “A contractor paid more
than $400,000 annually … illegally transports hazardous wastes and has
exposed taxpayers to huge fines by encouraging member public agencies to
ignore state law…” (RA p. 11.) The next paragraph names that contractor as
Charles Tenborg. (Ibid.) The article goes on to accuse Tenborg:
(1) of being “fired for undisclosed reasons from his job with the
San Luis Obispo County Environmental Health Certified
Unified Program Agency,” (RA p. 11)
(2) of being awarded a “no-bid contract by IWMA manager
William Worrell” despite the purported fact that “the IWMA is
required by law to put work of more than $15,000 out to bid
and to avoid using public resources to support private
business,” (RA p. 11)
(3) of “encourag[ing] municipalities to ignore reporting protocols
by filling out IWMA forms that allege the municipality is a small
generator because it self-transports” (RA p. 12) and
(4) of transporting the hazardous waste himself “in violation of
state law.” (RA p. 12.)
The article displays a picture of a drum of radioactive waste standing in
a forest on a page juxtaposing Tenborg’s photograph
near a paragraph stating “‘We manage it, pack it in
drums and then transport it to the appropriate facility,’
Tenborg said.” (RA pp. 12-13.)

19
 The overarching scope and object of the article and one of the obvious
disparaging effects it was intended to have on average readers was that Charles
Tenborg had a corrupt, economically-advantageous personal relationship with
IWMA Manager William Worrell. It asserts that William Worrell gave him a
“no-bid contract” “despite” having been fired “for undisclosed reasons.” (RA
p. 11.) It suggests Worrell lied about Tenborg got the contract and that
awarding it was “using public resources to support private business.” (Id.) He
asserts that Tenborg and Worrell have a “relationship [that] dates back at least
15 years, and Worrell’s professional history has been similarly controversial.”
(RA p. 13.) Worrell’s “similarly controversial” professional history allegedly
included “routine approval of fraudulent claims filed by private contractors
working in the San Marcos ‘super dump,’” he was placed on administrative
leave from a prior San Diego job for “the apparent misappropriation of
county funds,” he had “a pervasive default of responsibility,” and “failed to
follow contractual requirements or monitor . . . grants’ expenditures.” (RA pp.
13-14.)
This false and defamatory implication of corrupt self-dealing between
Tenborg and Worrell was exactly what was intended by Defendants.
Blackburn stated in an email to a fellow journalist shortly before publication
that he and his associate (Velie) in looking at permitting issues with the IWMA
had “ran into an apparent conflict of interest” in that “[i]t seems Worrell
steers millions in engineering work to a private outfit in which he has a
financial interest” and that he had “learned that [Worrell] had left San Diego
under a very similar conflict cloud.” (RA p. 19 [emphasis added].) Blackburn
also emailed a San Diego governmental contact and told him as well that
Worrell had a financial interest in Tenborg’s business, even though he admits
he had no evidence of any such interest. (RT p. 605:14-606:23.)

20
 Tenborg demanded that Defendants retract their article, and
Defendants refused. (RT pp. 346:3-10, 425:5-13, 426:10-16, 437:1-4, 439:16-
19, 666:2-11.)

B. The evidence showed that Blackburn and Velie were

both responsible for this defamatory article
At trial and in their appellate brief, Defendants attempt to immunize
Blackburn (CalCoastNews co-founder and senior correspondent) by insisting
that despite the byline “by Karen Velie and Daniel Blackburn” (RA p. 11),
Blackburn had no responsibility for defaming Tenborg. There was more than
sufficient evidence for the jury to find Blackburn responsible for working
hand-in-hand with Velie in presenting the article’s calculated falsehoods.
The whole purpose of a byline is to tell readers who is responsible for
an article. (RT p. 330:12-19.) Editor Loving admitted that the reader would
have no way of knowing who wrote what. (RT p. 952:17-28.) Here, consistent
with the byline, the article was jointly authored and investigated. (RT pp.
330:27-331:1, 379:9-11.) Blackburn reworked the article, and frequently spoke
with Velie about each part of it. (RT p. 380:16-24.) The two spoke about the
whole article on several occasions before it was published. (RT p. 397:21-23.)
Velie admitted that Blackburn was directly involved in the rewriting of
the entire article. (RT pp. 409:3-11, 411:10-17.) She could not remember who
wrote critical words in the article. (RT pp. 410:25-28, 411:18-26, 412:21-27.)
She agreed that Blackburn played “a responsible role in shaping this article.”
(RT p. 421:17-20.)
Blackburn himself admitted that he “discussed the story on a fairly
regular basis with [Velie] as she developed her information” and told another
reporter that he was “looking into” the story with her. (RT pp. 498:20-499:11,
510:1-511:2; RA p. 19.) Blackburn also admitted that he “played a responsible

21
part in the presentation of this article to the public.” (RT p. 507:11-16.) 5 He
further admitted that he participated in the rewriting of the article. (RT p.
508:22-24.) 6 He admitted that the article describes Worrell and Tenborg as
having “similarly controversial backgrounds,” linking the two parts together.
(RT p. 622:14-17.) Importantly, Blackburn was also impeached during trial
with deposition testimony admitting he “may have” selected the photo of the
radioactive drum, “I just don’t recall.” (RT p. 685:16-21.)
The drafts of the article also support the jury’s finding that Blackburn
was responsible. On November 11, 2012, Velie sent Blackburn an untitled
draft of the article and asked him what the title should be. (RA pp. 20-22.) The
next day, Blackburn sent a substantially revised draft to their editor Bill
Loving. (RA pp. 23-24.) While the original draft had contained some of the
defamatory material about Tenborg, more was added in this second draft.
(Compare RA pp. 20-22 with RA pp. 23-24.) The jury could have reasonably
concluded that Blackburn is the one who made the edits to what Velie had
sent him before sending the new draft to editor Loving.
The jury was not required to believe Blackburn’s insistence that only
Velie was responsible for defaming Mr. Tenborg. Substantial evidence
supports the jury’s verdict that Blackburn was also responsible.

5
In written communications to others shortly before and after
publication, Blackburn conceded that he and Velie were jointly looking at
hazardous waste reporting issues, and together researched and wrote the
article about Tenborg and the imagined conflicts of interest involving the
IWMA. (RA pp. 19, 26-27.)
6
Unbelievably, Blackburn gave the exact opposite testimony the next
day. (RT p. 606:24-26.)

22
 C. The evidence showed both ill will toward Tenborg and
a reckless, indeed deliberate, indifference to the truth
Defendants make no attempt on appeal to argue that their statements
about Tenborg were true, thereby admitting that the jury had ample evidence
to find otherwise. They attempt, however, to portray this as just negligence.
Nonsense. There was substantial evidence for the jury to find that
Defendants’ hatchet job on Tenborg was no negligent accident, but a
deliberate attempt to assassinate his character.

1. Defendants are seasoned writers who publish

inflammatory stories about alleged corruption

As both experts explained to the jury, articles create meaning not just
with their literal words, but with the way they are organized. Juxtaposition and
transition words all work to create impressions in the reader. (RT pp. 657:19-
23, 741:21-27, 744:6-24, 965:19-966:10.) Both defendants are seasoned writers
who understood perfectly well how to use juxtaposition and inference to
create meaning. Velie admitted that as a reporter she “place[s] words and
paragraphs together to create the meaning and information that [she has]
chosen as a reporter to put there.” (RT p. 329:21-24.) She admitted that a lot
of readers read the headline, the lede, and then just look at the pictures. (RT p.
341:5-17.) Blackburn admitted that “part of writing and rewriting is to make
sure that you can use the words you want to use to communicate what you
want to try to communicate.” (RT p. 488:20-23.)
The evidence also established that CalCoastNews positions itself as a
muckraking publication “preparing articles on issues ranging from government
schemes to financial fraud, from the fleecing of the American taxpayer to the
plight of the homeless.” (RT pp. 332:28-333:10, 489:25-490:6; RA p. 15.)
Indeed, Blackburn described it as the “tip of the spear.” (RT p. 691:18-20.) It
sells advertising based on number of hits (RT p. 424:22-27), so the more
inflammatory and click-baity the better.

23
 The drafting history of the article is consistent with Defendants’
motive to be as inflammatory as possible. A month before the article was
published, Tenborg did not appear in the draft. (RT p. 390:6-17; RA pp. 29-
31.) Then Velie and Blackburn began applying the tar and feathers. Velie
deliberately changed the article to name Tenborg. (RT pp. 400:22-401:20.) The
first paragraph got much harsher between the November 11 draft and the
final article. (RT p. 400:16-18; RA pp. 20, 11.) Velie and Blackburn changed a
description of “flawed advice” to read “encouraged the violation of law.” (RT
pp. 401:25-402:9; RA pp. 20, 11.) They decided to change “appears to” to an
accusation of actual wrongdoing. (RT pp. 403:23-404:2.) The article
deliberately used transition words – “similarly”, “and while”, “nevertheless” –
to link unrelated concepts and imply wrongdoing. (RT pp. 403:18-22, 406:12-
407:12.) They also used oppositional words like “however” and “contend” to
create a negative impression. (RT pp. 748:14-749:5.) And, of course, the
inflammatory picture of a drum of radioactive waste in a forest was added.
(RA p. 12.)
Nor was this article in any way time sensitive. (RT pp. 342:24-325:13,
348:9-18, 614:3-10.) Defendants had all the time in the world to get it right.
They just chose to ignore any facts inconsistent with the scandalous story of
corruption they wanted to tell. There was nothing accidental about the harsh
and untrue way Velie and Blackburn went after Tenborg.

2. Velie ignored facts inconsistent with her story and

had no evidence supporting her claim to have relied
on sources

Malice is also shown by Velie’s clear disregard of the truth and inability
to support her claimed basis for her accusations. Three witnesses testified that
they had given Velie information during her investigation that she ignored or
misrepresented.

24
 The first was Curtis Batson, former division manager for
environmental health for San Luis Obispo. (RT pp. 317:22-318:12.) He
managed the department responsible for hazardous waste, and was Tenborg’s
supervisor. (RT pp. 318:13-319:16.) He testified that not only was Tenborg
never fired or forced out of the department, but Karen Velie had called him
before publishing her story and he told her Tenborg was not fired or forced
out. (RT p. 320:1-28.) 7 Velie falsely testified that she never spoke to Batson
about the subject. (RT pp. 375:25-376:5.) The jury properly accepted Batson’s
unbiased testimony over Velie’s self-serving denials.
Similarly, Donald Kerry Boyle – who works for SLO City Fire and
knows Tenborg – gave Ms. Velie different facts than she reported. (RT pp.
1056:16-1058:1, 1058:13-1059:12, 1061:28-1062:9, 1062:22-1063:1.)
Then there was Tenborg himself (whose direct testimony is not
available due to Appellants’ failure to secure a proper record). Velie admitted
that her editor, through Blackburn, told her to confirm with Tenborg whether
he was fired. (RT pp. 349:24-350:3; RA p. 25.) She falsely and repeatedly
asserted that Tenborg did not respond to her call to ask if he was fired. (RT
pp. 343:6-13, 348:19-349:9, 421:21-422:7, 1073:20-1074:4.) After Tenborg’s
counsel gave Velie one last chance to recant, and having her confirm her
phone number (RT pp. 1093:16-1094:27, 1095:11-16), Tenborg testified on
rebuttal with telephone records confirming that Velie had spoken to him twice
on the date she claimed she could not reach him, the day before the article was
published. (RT pp. 1099:1-1103:3.) The jury was well within its rights to
conclude that Velie, not Tenborg, was lying about these calls.
In addition to these direct contradictions, Velie’s testimony was totally
unsupported. Reporters are supposed to keep notes of the information they

7
The County’s written records themselves confirmed that in 1996,
Tenborg was not fired but rather voluntarily resigned. (RA p. 16.)

25
obtain. (RT pp. 738:3-739:13.) Velie insisted that she had notes which were
lost due to a computer malfunction (and not backed up). (RT p. 345:8-26.)
The jury was well justified in refusing to believe the dog ate Velie’s homework.
Her editor never saw any alleged notes. (RT p. 658:9-21.)
Velie claimed that she had several sources for her information but
produced no corroboration. Her most significant alleged source was Valerie
Alvarez, who had died by the time of trial. (RT p. 345:2-7.) Velie claimed that
Alvarez was a state criminal investigator, and that she spoke to her around 50
times. (RT pp. 432:23-433:7.) She admitted they never met in person. (RT p.
432:17-22.) She even claimed to recount a time when Alvarez was talking to
her while surveilling Tenborg through binoculars! (RT p. 1044:3-8.) Velie did
not, however, introduce a single note or email confirming these assertions.
Nor did she even ask Alvarez about the source of her information. (RT pp.
431:26-432:6.) Nor did she offer any cogent explanation why a senior state
investigator would spend so much time divulging confidential information to
an online muckracker she had never met. Her testimony was simply not
credible.
Velie also named a second deceased person as her alleged source.
(RT pp. 427:25-428:24.) She had no documentation or other proof from that
person either. (RT p. 429:7-27.) She knew he was, at best, passing on rumors
and hearsay. (RT p. 430:8-18.)
Velie claimed as another source Doug Dowden, a city employee whose
duties she did not know. (RT pp. 358:16-28, 363:27-364:4.) She claimed he
told her Tenborg was fired, but knew that was just a rumor Dowden had
heard from others. (RT pp. 364:5-12, 371:2-13; RA p. 17.) 8 She knew Dowden

8
Both Velie and Blackburn received and purported to rely on an
October 12, 2012 email from Dowden in concocting their calculated and
sinister storyline that Tenborg and Worrell somehow were financially
“connected” and that the IWMA contracts were illegally obtained. (RA p. 17.)
26
was disgruntled and had an incentive to badmouth Tenborg. (RT pp. 364:13-
365:8.) She claimed to understand that reporters cannot rely on rumor. (RT
pp. 368:23-369:23.) Dowden was not called to testify at trial and Velie
produced no notes or other documents to support her claims. (RT p. 372:16-
19.)
Velie even admitted to her lack of knowledge and doubts, but none of
that stopped her from making these allegations against Tenborg. She admitted
she “ha[s] some concerns over the firing.” (RT pp. 336:22-337:6.) Her editor
also asked in writing for a source for the no-bid allegation, but she did not
provide one in writing, and could not identify one at trial. (RT pp. 419:23-
420:16; see also RA p. 37.) Velie had been told Tenborg got the contract based
on the merits, but ignored that. (RT p. 437:5-10.) She was unable to specify
what law supposedly was broken. (RT pp. 437:11-438:26.) Once again, she just
made up the allegation with no regard for the facts. She even admitted during
her own lawyer’s questioning that “I don’t know a lot about this, but I’m
confused about some of the laws.” (RT p. 468:26-27.) But her admitted lack of
knowing what she was writing about did not stop her from accusing Tenborg
of getting illegal contracts!
While placing most of the blame on Velie, Blackburn’s own
communications revealed similar disregard for the truth. On November 1,
2012, he emailed a reporter in San Diego and falsely stated “My associate and
I started looking into what appeared to be permitting issues with the JPA
which created his entity and soon ran into an apparent conflict of interest. It
seems Worrell steers millions in engineering work to a private outfit in which
he has a financial interest.” (RA p. 19.) Blackburn admitted at trial that he had
no factual basis whatsoever for the outrageous lie that Worrell had a financial
interest in Tenborg’s company. (RT pp. 500:12-16, 501:6-13, 502:16-503:8.)

Yet, in that very email Dowden concedes that he had “[n]o proof of this” and
it was simply a “gut feeling.” (Ibid.)

27
 3. Defendants were evasive, refused to retract, and
otherwise contumaciously ignored Tenborg’s rights

Finally, Defendants’ trial demeanor and other conduct support the

jury’s finding of malice. Velie gave Tenborg no chance to respond to the
defamatory accusations in her article before she published it. (RT pp. 422:22-
423:15, 658:6-8.) Even at trial Velie continued to invent things, claiming with
no basis that Tenborg may have left a former job under pressure (despite
being told that he did not). (RT p. 339:15-19.) In another example, Velie
testified at deposition that she did not ask any source how they knew Tenborg
was supposedly fired, and was impeached when she tried to change her
testimony at trial. (RT pp. 426:21-427:12.)
Perhaps most offensively, Velie testified that she did not think the
article would be harmful to Tenborg. (RT p. 344:5-10.) She insisted that the
article does not imply any improper relationship between Tenborg and
Worrell, when the jury could see for itself that it clearly does. (RT pp. 382:26-
383:25.) Velie admitted “I do not have any proof of that at all.” (RT p. 382:10-
15.) She admitted that the headline states as a fact that the law was skirted and
is highly negative. (RT p. 386:12-26.) But she claimed she had no responsibility
for the headline of an article she wrote that was posted on a website she
owned! She also claimed not to remember who wrote the headline (despite
allegedly remembering all the details of what her purported sources told her
without any notes). (RT p. 387:4-9.)
Velie also gratuitously said she found Tenborg unreliable. (RT p.
1049:11-14.) She insisted she stands by her article word for word. (RT p.
336:8-10.) She had never made any attempt to change or fix any of it in the
five years it was posted online before the trial. (RT p. 336:11-13.) Indeed, she
insisted at trial that she was not apologizing in any way for what she did. (RT
p. 459:9-16.)

28
 Similarly, insisting he was not responsible for it, Blackburn also
“absolutely” stood by the story. (RT p. 691:27-28.) After this lawsuit was filed,
Blackburn’s animus became even more clear. He threatened to “put Charles
Tenborg under a microscope.” (RT p. 691:14-17.) In an email after this lawsuit
was filed, he repeated the defamatory accusations and took credit for them:
We reported a year ago about a local waste disposal
private contractor, Charles Tenborg, who was found to
be disposing of hazardous waste in improper dump sites,
working without required licensing, and submitting
phony documentation to city, county, and state
regulators.

(RA p. 26.) As the jury found, none of that reporting was true.
The jury was uniquely positioned to evaluate Defendants’ demeanor,
their lack of candor on the stand, and their total lack of remorse. All of which
support the jury’s finding of malice.

V. ARGUMENT

A. The Evidence Defendants Ignore Amply Supports The

Verdict Against Blackburn
Sticking to the story he failed to sell to the jury at trial, Blackburn
insists that he did not take “a responsible part in the publication of the
defamatory matter.” Blackburn attempts to support this argument with a few
snippets of Defendants’ own testimony which he misleadingly characterizes as
unrebutted.
To start with, and this is an error repeated throughout the Opening
Brief, the jury was not required to believe Defendants’ denials. Indeed, on
appeal the Court should disregard those denials. “Substantial evidence means
such evidence as a reasonable fact trier might accept as adequate to support a
conclusion.” (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1663 [26
Cal.Rptr.3d 638].) “If this ‘substantial evidence’ is present, no matter how
slight it may appear in comparison with the contradictory evidence, the

29
judgment must be upheld. As a general rule, therefore, we will look only at the
evidence and reasonable inferences supporting the successful party, and
disregard the contrary showing.” (Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631 [85 Cal.Rptr.2d 386].)
The jury “may reject in toto the testimony of a witness, even though the
witness is uncontradicted.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at
p. 632.) The jury “is not required to believe the testimony of
any witness, even if uncontradicted. The jury properly may reject part of
the testimony of a witness, though not directly contradicted, and combine the
accepted portions with bits of testimony or inferences from the testimony of
other witnesses thus weaving a cloth of truth out of selected available
material.” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [213
Cal.Rptr. 69] [cleaned up].) The jury may, in its sole discretion, disregard
uncontradicted testimony “for a number of reasons, such as inherent
improbability, obvious bias, vagueness, or inappropriate certainty.” (South Bay
Transp. Co. v. Gordon Sand Co. (1988) 206 Cal.App.3d 650, 657 [253 Cal.Rptr.
753].) This is especially true for party witnesses; “[t]heir interest in the result of
the case, their motives and the manner in which they testify” are all sufficient
reasons to reject the testimony of a party. (Bazaure v. Richman (1959) 169
Cal.App.2d 218, 222 [336 P.2d 1014] [rejecting plaintiffs’ “uncontradicted and
unimpeached” testimony].) Blackburn’s interest in the outcome of this case is
sufficient, by itself, to justify the jury’s disbelief of his testimony. (See Lakenan
v. Lakenan (1967) 256 Cal.App.2d 615, 620 [64 Cal.Rptr. 166]; Tidlund v. Seven
Up Bottling Co. (1957) 154 Cal.App.2d 663, 666-67 [316 P.2d 656]; Whitaker v.
Whitaker (1934) 137 Cal.App. 396, 402 [30 P.2d 538].)
Moreover, even the incomplete record Defendants present contains a
plethora of evidence that Blackburn edited the whole article, and did not confine
himself to the portions not about Tenborg as defendants now claim. First, the
article’s byline – which tells people who wrote it – lists both Velie and

30
Blackburn as authors. (RA p. 11.) The whole point of a byline is to identify
which reporters are responsible for the story. (RT p. 330:17-22.) This is at
least circumstantial evidence that Blackburn took a responsible part in the
publication.
Second, while they tried to stick to their script, both Velie and
Blackburn made admissions on cross-examination that support the jury’s
finding that Blackburn took a responsible part in the defamatory matter. Velie
admitted that the article was jointly authored. (RT pp. 330:27-331:1, 379:9-11.)
She admitted that Blackburn was “directly involved in the rewriting process”
and that “he wasn’t just writing his own little part, he was [editing] responsibly
in presenting the whole article as part of the editing process.” (RT p. 409:3-
11.) She testified that “Dan did mostly grammar and changing of words” and
that “Dan wasn’t involved heavily with the top part of the story at all.” (RT p.
411:10-17 [italics added].)
Blackburn similarly, while trying to disclaim responsibility, admitted
that he and Velie were “discussing this on a fairly constant basis” and that he
discussed “the story on a fairly regular basis with Karen as she developed her
information.” (RT pp. 498:24-499:11.) He admitted participating in the
rewriting of the article, and that he shared information and discussed “every
element of the story” with Velie before it was published. (RT pp. 508:22-24,
510:1-511:2.) He also admitted that he “played a responsible part in the
presentation of this article to the public.” (RT p. 507:14-16.) Finally,
Blackburn was unable to deny selecting the defamatory picture of radioactive
waste to be used in the story (whereas Velie and the editor unequivocally
denied doing so). (RT p. 685:16-21.)
Third, the documentary evidence supports the jury’s verdict. On
November 11, 2012, Velie sent Blackburn an untitled draft of the article and
asked Blackburn what the title should be. (RA pp. 20-22.) The next day,
Blackburn sent a substantially revised draft to their editor Bill Loving.

31
(RA pp. 23-24.) While the original draft had contained some of the
defamatory material about Tenborg, more was added in this second draft.
(Compare RA pp. 20-22 with RA pp. 23-24.) The jury could have reasonably
concluded that Blackburn is the one who made the edits to what Velie had
sent him.
The evidence supports the jury’s finding that Blackburn was directly
involved in publishing this defamatory matter and thus responsible for it. The
judgment against him should be affirmed.

B. There Was No Instructional Error

Defendants argue that the court erred by instructing the jury that two
of five statements were libel per se: statement (b) “Mr. Tenborg was awarded a
no-bid contract that was required by law to go out to bid since it was over
$15,000” and statement (e) “The article implies Mr. Tenborg transported
radioactive waste.” Defendants’ claim of error is baseless because (1)
Defendants stipulated to the instruction on statement (b), and (2) both
statements are plainly libel per se in the context of the Article.

1. Defendants stipulated to instruction 25(b)

“An appellant arguing instructional error must ensure that the appellate
record includes the instructions given and refused and the court’s rulings on
proposed instructions.” (Bullock v. Philip Morris USA, Inc. (2008) 159
Cal.App.4th 655, 678 [71 Cal.Rptr.3d 775].)
Defendants assert that Instruction 25, and in particular parts (b) and
(e), were given “[o]ver Defendants’ objection.” (Appellants’ Opening Brief
[“AOB”] p. 16.) Defendants make an inexplicable error with this argument:
the record clearly shows that Defendants stipulated to the jury instructions
with the only exception of Instruction 25 (a) “concerning firing” and (e). (AA
p. 588.) Thus below, Defendants objected to statement (a) – the firing , not

32
(b) – the no bid contract. 9 Defendants stipulated to (b). (AA p. 588.) Parties
who stipulate to instructions, even erroneous ones, are “barred from
complaining about these instructions on appeal.” (Regalado v. Callaghan (2016) 3
Cal.App.5th 582, 593 [207 Cal.Rptr.3d 712].) They “cannot successfully take
advantage of asserted error committed by the court at their request.” (Shumate
v. Johnson Publishing Co. (1956) 139 Cal.App.2d 121, 130 [293 P.2d 531] [cleaned
up].)
Defendants also fail to demonstrate who proposed instruction 25(b) in
the first place. “If the record does not show which party requested an
erroneous instruction, the reviewing court must presume that the appellant
requested the instruction and therefore cannot complain of error.” (Bullock v.
Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 678 [citation omitted].)
And the stipulation entered below makes it clear that Defendants affirmatively
agreed to part (b) of this instruction. (AA p. 588 [“the parties agreed on the
instructions and verdict form except as stipulated below”].) Defendants
cannot appeal a purported error they invited or one to which they stipulated.
(Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1005 [136
Cal.Rptr.3d 315]; Perlin v. Fountain View Management, Inc. (2008) 163
Cal.App.4th 657, 667 [77 Cal.Rptr.3d 743]; Stevens v. Owens-Corning Fiberglas
Corp. (1996) 49 Cal.App.4th 1645, 1653 [57 Cal.Rptr.2d 525].)

9
On appeal, Defendants make no challenge to (a), and attempt for the
first time to argue that (b) is not libel per se. They do not even acknowledge
the inconsistency of their position, much less attempt to justify it.

33
 2. Defendants’ attempt to view words in isolation
ignores the law of libel

Defendants also misstate the law of libel, insisting that the Court must
review each sentence on its own, that the context provided by the article itself
cannot be considered for libel per se, and that an innocent interpretation can
be placed on each statement. None of those assertions are accurate.
Civil Code section 45a defines “libel on its face” (i.e. libel per se) as “[a]
libel which is defamatory of the plaintiff without the necessity of explanatory
matter, such as an inducement, innuendo, or other extrinsic fact.” (Civ. Code.,
§ 45a.) But, contrary to Defendants’ arguments, the overall text of the article is
not “extrinsic fact” within the meaning of this rule.
It is a basic principle of libel that “the publication in question may not
be divided into segments and each portion treated as a separate unit; it must
be read as a whole in order to understand its import and the effect that it was
calculated to have on the reader, and construed in the light of the whole scope
and apparent object of the writer, considering not only the actual language
used, but the sense and meaning that may be fairly presumed to have been
conveyed to those who read it. Headlines and captions of an allegedly libelous
article are regarded as a part of the article.” (Bartholomew v. YouTube, LLC.
(2017) 17 Cal.App.5th 1217, 1227-28 [225 Cal.Rptr.3d 917] [cleaned up].) 10
Moreover, “not every word of an allegedly defamatory publication has
to be false and defamatory to sustain a libel action.” (Bently Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 434 [160 Cal.Rptr.3d 423].) In fact,

10
There is, of course, nothing surprising about these established
principles as this Court itself, in affirming the trial court’s earlier denial of the
anti-SLAPP motion to strike, emphasized these exact principles in stating the
article must be read as a whole with an eye on the actual overall effect on the
readers. (Tenborg v. CalCoastNews/UncoveredSLO.com LLC, supra, 2015 Cal. App.
Unpub. LEXIS 5273, citing Selleck v. Globe International, Inc. (1985) 166
Cal.App.3d 1123, 1131 [212 Cal.Rptr. 838]; see AA pp. 86-87.)

34
“[t]he test of libel is not quantitative; a single sentence may be the basis for an
action in libel even though buried in a much longer text....” (Masson v. New
Yorker Magazine (1991) 501 U.S. 496, 510 [111 S.Ct. 2419] [interpreting
California law].) Thus, “if any material part be not proved true, the plaintiff is
entitled to damages in respect to that part.” (Bently Reserve LP v. Papaliolios,
supra, 218 Cal.App.4th at p. 434 [cleaned up].)
Considering the relevant language in the context of the article, “[i]f
such a reader would perceive a defamatory meaning without extrinsic aid
beyond his or her own intelligence and common sense, then … there is a libel
per se. But if the reader would be able to recognize a defamatory meaning
only by virtue of his or her knowledge of specific facts and circumstances,
extrinsic to the publication, which are not matters of common knowledge
rationally attributable to all reasonable persons, then … the libel cannot be
libel per se but will be libel per quod.” (Bartholomew v. YouTube, LLC., supra, 17
Cal.App.5th at pp. 1226-27 [emphasis added], citing Barnes-Hind, Inc. v. Superior
Court (1986) 181 Cal.App.3d 377, 386–87 [226 Cal.Rptr. 354].)
Defendants distort the “libel per se” test by claiming that material
within the article itself is somehow “extrinsic” to the specific defamatory
words. That is not the law. As explained in Barnes-Hind, “[t]he purpose of the
rule requiring proof of special damages when the defamatory meaning does
not appear on the face of the language used is to protect publishers who make
statements innocent in themselves that are defamatory only because of
extrinsic facts known to the reader.” (Barnes-Hind, Inc. v. Superior Court, supra, 181
Cal.App.3d at p. 387 [emphasis in original]; see MacLeod v. Tribune Publishing
Co. (1959) 52 Cal.2d 536, 548-51 [343 P.2d 36].) The language of the
defamatory publication is intrinsic, not extrinsic, to its meaning.

35
 In evaluating the effect a publication has on the average
reader, the challenged language must be viewed in
context to determine whether, applying a “totality of the
circumstances” test, it is reasonably susceptible to the
defamatory meaning alleged by the plaintiff: A
defamatory meaning must be found, if at all, in a reading
of the publication as a whole. This is a rule of reason.
Defamation actions cannot be based on snippets taken
out of context.

(J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87,
100 [201 Cal.Rptr.3d 782] [cleaned up].)
Finally, it is irrelevant whether the language is also susceptible to a non-
defamatory meaning. “Such hair-splitting analysis of language has no place in
the law of defamation, dealing as it does with the impact of communications
between ordinary human beings.” (MacLeod v. Tribune Publishing Co., supra, 52
Cal.2d at p. 550; Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 [163 Cal.Rptr. 628,
608 P.2d 716].) “The language used may give rise to conflicting inferences as
to the meaning intended, but when it is addressed to the public at large, it is
reasonable to assume that at least some of the readers will take it in its
defamatory sense.” (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d at p.
549.)
In this case and given the multiple falsities in the article, it is important
to underscore that a defendant is liable for what is insinuated, as well as for
what is stated explicitly. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1372 [117
Cal.Rptr.3d 747] [manner in which review written implies false assertion of
fact]; Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688,
704 [16 Cal.Rptr.3d 29] [challenged reports could reasonably be understood as
implying plaintiff manipulated accounting procedures and was “cooking the
books”]; Weller v. American Broadcasting Cos., Inc. (1991) 232 Cal.App.3d 991,
1004 [283 Cal.Rptr. 644] [use of interrogative language alone can be
understood as implying false defamatory fact].)

36
 3. In the context of the article, accusing Tenborg of
entering into an illegal no-bid contract was
defamatory per se

Defendants argue that there is “nothing illegal or unethical about a no-

bid contract.” That argument ignores both the evidence at trial and common
sense (which is why Defendants did not make it below). The Article itself
asserts that the contract was illegal. (RA pp. 11-14.) The title says that the
“Hazardous Waste Chief skirts law,” asserts that “the IWMA is required by
law to put work of more than $15,000 out to bid and to avoid using public
resources to support private business,” and implies that Tenborg received the
contract because of his relationship with Worrell and “similarly controversial”
history. (RA pp. 11, 13.) The obvious inference, which was lost on no one at
trial, is that Tenborg was obtaining illegal contracts through corrupt personal
connections. (RT pp. 410:21-24, 512:6-16.)
As discussed above, the context provided by the Article itself is not
extrinsic, and libel per se is found through “its import and the effect that it
was calculated to have on the reader, and construed in the light of the whole
scope and apparent object of the writer, considering not only the actual
language used, but the sense and meaning that may be fairly presumed to have
been conveyed to those who read it.” (Bartholomew v. YouTube, LLC., supra, 17
Cal.App.5th at 1227-28.) Defendants’ hair-splitting assertion that some no bid
contracts might be totally fine bears no relationship to the message conveyed
by the Article. The trial court correctly instructed the jury, as Defendants’
stipulated, that these assertions were libelous per se.

37
 4. In the context of the article, implying that Tenborg
was illegally and dangerously transporting
radioactive waste was defamatory per se

Defendants attempt the same baseless argument that the “mere image
of radioactive waste, appearing on the margin of the article” is not defamatory.
(AOB pp. 32-33.) Nonsense. There is liability for defamatory implications.
(MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d at p. 548-49.) “‘If the
defendant juxtaposes a series of facts so as to imply a defamatory connection
between them, or otherwise creates a defamatory implication ... he may be
held responsible for the defamatory implication, ... even though the particular
facts are correct.…’” (Weller v. American Broadcasting Cos., Inc., supra, 232
Cal.App.3d at p. 1003, fn. 10.) 11 “A court examines the totality of the
circumstances, including the context in which the statement was made.”
(Daniel v. Wayans (2017) 8 Cal.App.5th 367, 397 [213 Cal.Rptr.3d 865], citing
Baker v. L.A. Herald Exam’r (1986) 42 Cal. 3d 254, 260-61 [228 Cal.Rptr. 206,
721 P.2d 87].) “We must examine the totality of the circumstances of the
publication. A defamatory meaning must be found, if at all, in a reading of the
publication as a whole.” (Manzari v. Associated Newspapers Ltd. (9th Cir. 2016)
830 F.3d 881, 890 [applying California law and cleaned up].)
Courts in this state have long upheld libel by juxtaposition, including in
cases brought by public figures otherwise requiring a showing of malice.

11
This principle of implied libel by juxtaposition has been applied when a
photograph (along with its caption or context) places a plaintiff in a false light
or otherwise defames him or her. (Selleck v. Globe International, Inc., supra, 166
Cal.App.3d at pp. 1131-32 [article and photograph of famous actor’s father
actionable because they falsely stated and implied father gave negative
interview about his son with caption stating: “His Father Reveals All”].) In
fact, defendants’ expert in this case conceded and wrote in his textbook that:
“Pictures in and of themselves can be defamatory if they convey false
impressions about the conduct and character of those depicted.” (RT p.
965:19-25, B. Loving, Law of Mass Communications (2016) p. 268.)

38
(Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 945-49 [120
Cal.Rptr. 186] [public figure plaintiff jury verdict upheld based on TV Guide
press release entitling upcoming interview as “From Party-Girl to Call Girl”
when defendant knowingly deleted additional information that plaintiff was
appearing to discuss her book “How to Be a Party Girl”]; Gill v. Curtis Pub. Co.
(1952) 38 Cal.2d 273, 279-280 [239 P.2d 630] [magazine photograph of
married couple sitting in public cheek to cheek and illustrating article titled
“Love” found actionable since, juxtaposed to caption “Publicized as
glamorous, desirable, ‘love at first sight’ is a bad risk,” it implies couple’s only
interest in each other was sex].)
Other jurisdictions have also upheld liability when based on falsities
resulting from deliberate juxtaposition. In Time, Inc. v. Ragano (5th Cir. 1970)
427 F.2d 219, 12 the picture in question showed several men at a restaurant
table in an article referring to the gathering as a meeting of “top Cosa Nostra
hoodlums.” Actually two of the men pictured were attorneys who represented
one or more of the alleged “hoodlums.” The court held that the article could
be actionable because the juxtaposition clearly implied that plaintiff was a top
Cosa Nostra hoodlum, and there was sufficient evidence of malice since the
magazine staff knew plaintiff attorney was merely a “mouthpiece” for his
client and not a member of organized crime. (Id. at p. 221; see also Kiesau v.
Bantz (Iowa 2004) 686 N.W.2d 164 [court upheld defamation jury verdict
based on altered photograph falsely showing deputy sheriff standing in front
of squad car with her breasts exposed] [cited as example in B. Loving, Law of
Mass Communications (2016) p. 268].)
Here, the Article, which is headlined “Hazardous waste chief skirts
law,” directly asserts that Tenborg “illegally transports hazardous wastes” and

12
Cited with approval in Montandon v. Triangle Publications, Inc., supra, 45
Cal.App.3d at p. 945.

39
provides, as the only picture of any waste, a barrel of radioactive waste. (RA
pp. 11-14.) This is not “innuendo and outside explanatory material” as
Defendants’ claim (AOB p. 33), it is the logical meaning a reasonable person
would draw directly from the article itself (particularly given the accompanying
text that Tenborg said “[w]e . . . pack it in drums”). (RA pp. 12-13.) Velie
herself admitted that readers often look to the headline and then any pictures.
(RT p. 341:5-17.) The implication of the headline and pictures is clear as it
salaciously taps into fears of toxic exposure:

Velie admitted that the waste at issue was “absolutely not” radioactive.
(RT p. 442:20-27.) She admitted, contrary to what her brief argues, that an
allegation of mishandling radioactive waste presents a much greater danger to
the health and safety of the community, and that the picture “was not the best
choice for this article.” (RT pp. 442:28-443:13.) Yet, again, she lacked the
candor to admit that the article gives the false impression that Tenborg was
accused of illegally hauling radioactive waste. (RT p. 443:14-17.) Blackburn
also admits none of the reporting has anything to do with radioactive waste.
(RT p. 684:1-9.) But he was even more evasive on this issue than Velie.
(RT pp. 684:7-685:21.) He was also impeached with deposition testimony
admitting he “may have” selected the photo (although he claimed not to
recall). (RT p. 685:16-21.) Even the editor, Loving, admitted that the photo
was not relevant to the article, nor was it appropriate to include that picture.
(RT p. 942:5-7.) The jury was well within its rights to conclude the photograph

40
was selected precisely for the defamatory, clickbait impression it creates about
Tenborg.
The question is not whether a random picture of radioactive waste
standing alone on an empty page is capable of defamatory meaning. The
question is whether this picture, placed on this hatchet job article attacking
Tenborg as someone who illegally transports hazardous waste, was capable of
defamatory meaning. It plainly was. The trial court’s instruction that it is
libelous per se to use this image to imply that Mr. Tenborg transported
radioactive waste and the jury’s verdict finding liability were absolutely correct.

5. Defendants fail to provide an adequate record to

evaluate the impact of any alleged error

Finally, even assuming arguendo that one or more of those statements

was not libelous per se (which they plainly were), Defendants failed to provide
an adequate record for the Court to evaluate their baseless and citation-free
claim that there is a reasonable chance the jury would have awarded smaller
damages. 13 Defendants fail to provide a transcript of Tenborg’s direct
examination, which is obviously necessary in order to evaluate the “extent and
magnitude of Tenborg’s harm.” (See AOB p. 34.) Because Defendants failed
to secure an adequate record, the Court must presume that the missing
portions support the jury’s verdict. (Estate of Fain, supra, 75 Cal.App.4th at p.
992.)

13
That claim seems logically at odds with Defendants’ insistence that the
statements were not defamatory. If, as Defendants baselessly insist, a
reasonable person would not attach any defamatory meaning to them, why
would they have had a meaningful impact on the jury’s award?

41
 C. The Evidence Was Overwhelming That Appellants
Acted With Malice in Publishing the Article
Both Blackburn (in challenging presumed damages) and Velie (in
seeking to avoid punitive damages) insists there was insufficient evidence they
acted with constitutional malice. As addressed above, the Court cannot even
evaluate these arguments because Appellants failed to provide a complete
record of the trial. Yet even if the Court does so, there was overwhelming
evidence of constitutional malice. Indeed, this is a textbook case of malicious
defamation.

1. This is precisely the type of case where malice is

usually found

Appellants simply fail to address any of the longstanding bases for

finding constitutional malice. Constitutional malice can be shown if the
publisher of a defamatory statement “in fact entertained serious doubts as to
the truth of his publication.” (St. Amant v. Thompson (1968) 390 U.S. 727, 731
[88 S.Ct. 1323].) This includes proof that the false publication was made with a
“high degree of awareness of probable falsity.” (Garrison v. Louisiana (1964)
379 U.S. 64, 74 [85 S.Ct. 209].)
Defendants like Blackburn and Velie cannot “automatically insure a
favorable verdict by testifying that [they] published with a belief that the
statements were true. . . Professions of good faith will be unlikely to prove
persuasive, for example, where a story is fabricated by the defendant, is the
product of his imagination, or is based wholly on an unverified anonymous
telephone call. Nor will they be likely to prevail when the publisher’s
allegations are so inherently improbable that only a reckless man would have
put them in circulation. Likewise, recklessness may be found where there are
obvious reasons to doubt the veracity of the informant or the accuracy of his
reports.” (St. Amant v. Thompson, supra, 390 U.S. at p. 732; see also Khawar v.

42
Globe International, Inc. (1998) 19 Cal.4th 254, 275 [79 Cal.Rptr.2d 178, 965 P.2d
696].)
In Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 157-58 [87 S.Ct.
1975], the Supreme Court upheld a jury verdict in a public figure libel suit filed
by a coach falsely accused of fixing a college football game. Specifically, the
Court found that multiple factors supported a finding of actual malice
including: the fact that the story was in no sense hot news, that the editors
recognized the need for a thorough investigation of such a serious charge, that
elementary precautions were ignored, that the sources relied on had credibility
problems while others were not even interviewed, that the defendant was
anxious to have the image of a “sophisticated muckraker” and there was
pressure to produce a successful expose. (Ibid.) 14
There are many parallels between the evidence tending to prove actual
malice in this case and the proof in Curtis Publishing Co. v. Butts, supra, 388 U.S.
at pages 157-158 which the Supreme Court held was sufficient to establish
actual malice. The CalCoast News article did not contain “hot news”;
Blackburn and Velie were very much aware of the possible resulting harm; the

14
See also Goldwater v. Ginzburg (2nd Cir. 1969) 414 F.2d 324, 339-40
[evidence story was a preconceived plan to attack plaintiff shows malice];
Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 711
[evidence defendant “relied on information from biased sources, made
statements in its reports without doing the necessary investigation and due
diligence, and made statements with defamatory implication to achieve a
preconceived result”]; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 639-40 [188
Cal.Rptr. 216] [accusing plaintiff of blackmail and bribery actionable due to
defendant’s unjustified acceptance of hearsay version from known hostile
source and without investigation or contacting other known sources]; Grewal v.
Jammu (2011) 191 Cal.App.4th 977, 994 [119 Cal.Rptr.3d 835] [malice shown
by defendants’ reliance solely on unreliable source]; Harte-Hanks
Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 688-92 [109 S.Ct. 2678]
[recklessness shown where defendant purposefully avoided the truth]; Khawar
v. Globe International, Inc., supra, 19 Cal.4th at p. 276 [malice shown if obvious
reasons to doubt accuracy of charge].

43
seriousness of the charges called for a thorough investigation but the evidence
reveals only the careless utilization of slipshod and sketchy investigative
techniques; appellants were not experts in hazardous waste nor did they have
any expert review; they persisted in their reporting despite warnings and
contrary information from reputable sources, and they relied on a biased
“source” (Dowden) who himself conceded he had no facts for the scurrilous
charge.
Overall, therefore, this is indeed a textbook case of defamation with
ample proof of actual and constitutional malice. In fact, the evidence here
shows more than the required recklessness, this is one of those rare cases
where the evidence demonstrates calculated falsehoods and fabrication.

2. The presumed damages verdict against Blackburn

was well supported and should be affirmed

Blackburn asserts that the jury’s verdict form did not include an
express finding that he acted with malice, and thus that the $300,000 in
presumed damages against him should be reversed. 15 Blackburn’s arguments
fail because (1) the jury was clearly instructed that it had to find Blackburn
acted with malice in order to award presumed damages against him, and (2) he
waived any argument that the verdict form is inadequate when he stipulated to
it below.
Blackburn admits that the jury was properly instructed that Tenborg
had to prove by clear and convincing evidence that each defendant acted with
malice. (AA p. 539; AOB p. 37.) The jury is presumed to have followed its
instructions. (People v. Adams (2014) 60 Cal.4th 541, 578 [179 Cal.Rptr.3d 644,
336 P.3d 1223] [“We presume the jury followed the trial court’s
instructions.”]; Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1131 [122

15
Blackburn makes no attempt to avoid the $300,000 in actual damages
awarded against him by the jury.

44
Cal.Rptr.2d 139] [“The California Supreme Court has consistently stated that
on appeal, we must, of course, presume that the jury followed the
trial court’s instructions . . .”] [cleaned up].) Given the jury instruction, the jury
must therefore have found that Blackburn acted with malice.
Blackburn argues, however, that the jury verdict form does not contain
a specific question asking whether he acted with malice. But Blackburn
stipulated to the verdict form. (AA p. 588 [“the parties agreed on the
instructions and verdict form except as stipulated below”].) “Prior approval of
the form of a verdict or a failure to object to the form of verdict submitted to
a jury has often been held to be a waiver of any defect in the form.” (Mixon v.
Riverview Hospital (1967) 254 Cal.App.2d 364, 376 [62 Cal.Rptr. 379] [citations
omitted].) “An objection to a defective verdict must be made before the jury is
discharged. Defects apparent when the verdict was read, and that could have
been corrected, are waived [forfeited] by counsel’s failure to timely object
unless the verdict itself is inconsistent.” (Keener v. Jeld-Wen, Inc. (2009) 46
Cal.4th 247, 265 [92 Cal.Rptr.3d 862, 206 P.3d 403] [cleaned up].) “The rule is
designed to advance efficiency and deter gamesmanship. If any other rule were
to obtain, the party would in most cases be careful to be silent as to his
objections until it would be too late to obviate them.” (Taylor v. Nabors Drilling
USA, LP (2014) 222 Cal.App.4th 1228, 1242 [166 Cal.Rptr.3d 676] [cleaned
up].)
Blackburn also argues that there was no evidence he acted with malice,
but, other than the assertion the jury rejected that he did not write the
defamatory material, he offers no argument about why the record evidence is
insufficient. Once again Blackburn is attempting to shift his obligation to
show error. If Blackburn wanted to make a sufficiency challenge to the finding
of malice he had to (1) provide a complete record, and (2) candidly discuss the
evidence against him, and (3) make specific arguments on this point in his
opening brief. He did none of that. Tenborg is not required to shadow box

45
against an unsubstantiated one-sentence assertion. Because Blackburn fails to
properly present this issue, the Court must presume there was no error. 16
(Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 261; Huong Que, Inc. v. Luu, supra,
150 Cal.App.4th at p. 409; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246
[19 Cal.Rptr.3d 416].) The presumed damages award against Blackburn should
be affirmed.

3. The punitive damages verdict against Velie was well

supported and should be affirmed

Defendants argue that the jury had insufficient evidence to find Velie
acted with punitive damages malice, and that this Court should exercise
independent judgment on this question under Khawar v. Globe International, Inc.
(1998) 19 Cal.4th 254 [79 Cal.Rptr.2d 178, 965 P.2d 696]. Independent
judgment is not, of course, a re-weighing of credibility, which this Court never
does (and can never do as it has no opportunity to see the witnesses testify
live). (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496
P.2d 480] [“All issues of credibility are likewise within the province of the trier
of fact.”]; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494 [274 Cal.Rptr.
911] [“Reading a typed reporter’s transcript does not enable us to view the
witnesses, determine credibility or determine which conflicting evidence is to
be given greater weight.”]; see Khawar v. Globe International, Inc., supra, 19
Cal.4th at p. 275.) Defendants do not make any assertion that the jury was
improperly instructed as to what constitutes actual malice.
The first problem with Defendants’ argument, as with the rest of the
appeal, is Defendants’ failure to provide the complete record. The Court
cannot independently “consider the factual record in full” (Khawar v. Globe
International, Inc., supra, 19 Cal.4th at p. 275) because it does not have the full

16
And, as discussed above, there is ample evidence to show Blackburn’s
involvement and malice even in the partial record before this Court.

46
record. This is critical to the question of Velie’s malice because of the
significant factual disagreement below about conversations between Velie and
Tenborg. The Court cannot review the full record of Velie’s intent without
knowing what Tenborg said to Velie and what Velie said to him before she
published the Article. Again, the Court conclusively presumes that the missing
portions of the record support the verdict. (Oliveira v. Kiesler, supra, 206
Cal.App.4th at p. 1362; Stasz v. Eisenberg, supra, 190 Cal.App.4th at p. 1039.)
Because Velie (and the other Defendants) made no effort to preserve or
present that record, their appeal is barred.
The second problem with Defendants’ argument is that it all rests on
the jury believing Velie’s own self-serving testimony about information she
supposedly received from sources. The jury was well justified in concluding
that Velie was not telling the truth about these sources. She produced no
notes of conversations with any source. 17 Instead, she vaguely and non-
credibly asserted that her notes were lost after she knew there was a dispute.
(RT pp. 345:13-346:13.) She had very few emails with any supposed source,
and none that proved the truth of her reports. None of the sources testified at
trial 18 and, without notes to back up the testimony, the jury could have
reasonably concluded that Velie was simply making it up. In particular, Velie’s
claim that a senior state criminal investigator – who she had never met in
person – spoke to her over 50 times about an alleged ongoing investigation of
Tenborg and even followed him with binoculars sounds more like a bad spy
novel than something that actually happened. (RT pp. 432:23-433:7, 1044:3-8.)
Velie provided no reason for the jury to believe that secret knowledge was

17
See RT pages 372:8-19, 482:21-27, 651:18-19, 738:3-739:13, 1085:14-
18.
18
She claimed as sources two people who were reportedly deceased,
making it impossible for them to rebut or confirm her testimony. (RT pp.
428:15-16, 1033:19-24.)

47
being passed to her – a would-be muckracker at a small online anti-
government tabloid – by a government official who was conveniently
unavailable to refute this story.
Velie also got caught in a flat out lie – which she repeats in the
Opening Brief – that she called Tenborg “numerous times” to confirm
information “and he did not respond.” (AOB pp. 42-43.) Confirming his
unreported testimony on direct, Tenborg confirmed with telephone records that he
had spoken to Velie twice during the time she claimed he would not respond.
(RT pp. 1099:1-1103:3.)
Defendants seem to think that because Velie did not admit her doubts
about the facts (or lack of caring about them), the jury could not have found
she had them. As discussed above, the jury was not required to believe her
denials. (Sprague v. Equifax, Inc., supra, 166 Cal.App.3d at p. 1028; Bazaure v.
Richman, supra, 169 Cal.App.2d at p. 222.) “[D]eterminations regarding
motivation and intent depend on complicated inferences from the evidence
and are therefore peculiarly within the province of the factfinder.” (Begnal v.
Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66, 77 [92 Cal.Rptr.2d 611].)
Third, even though the jury clearly found that the assertions in the
article were false – a finding that is not challenged on appeal – Velie insisted at
trial that everything she said was true and that she stood by every word of the
story. (RT p. 336:8-10.) Velie’s intransigent repetition of these lies is further
evidence of malice. (See Shumate v. Johnson Pub. Co., supra, 139 Cal.App.2d at
pp. 137-39.)
Finally, as discussed in more detail above, there was abundant evidence
that Velie was trying to create a story of corruption to fit with her anti-
government abuse tabloid image, and simply did not let facts get in her way.
She was told Tenborg was not fired, but ignored that information and said he
was. (RT p. 320:1-28.) She had no evidence whatsoever that Tenborg
transported anything illegally, but said it anyway. And, while denying selecting

48
the photograph, she allowed her story to include a picture of radioactive waste
– clearly implying Tenborg’s “illegal transportation” was of such waste – even
though she knew Tenborg had nothing to do with that kind of waste. (RT p.
442:20-27; RA p. 12.) She was told to follow up with Tenborg again to
confirm facts (RT pp. 349:24-350:3), but then when he did not confirm the
facts lied and said she had not been able to reach him. (RT pp. 343:6-13,
348:19-349:9, 421:21-422:7, 1073:20-1074:4, 1093:16-1094:27, 1095:11-16.)
She testified at trial that Tenborg was not credible (RT p. 1049:11-14), even
though she was the one who got all the facts wrong. She rushed the story to
print even though there was no deadline and it was not fresh news.
(RT pp. 342:24-343:13, 348:9-18.)
On cross-examination Velie was evasive, and repeatedly denied
obvious insinuations contained in her article, pretending not even to see the
clear negative impact on Tenborg. The jury had no reason to believe these
self-serving evasions. (See Gomez v. Acquistapace (1996) 50 Cal.App.4th 740,
746 [57 Cal.Rptr.2d 821] [“As a general rule, California law recognizes that ‘…
every person is presumed to intend the natural and probable consequences of
his acts.’”]; Montandon v. Triangle Publications, Inc., supra, 45 Cal.App.3d at p. 949
[foreseeable result of communication demonstrates malice].)
The jury was thus well justified in concluding that Velie acted
maliciously, with intent to harm Tenborg and either actual knowledge of
falsity or a total indifference to the truth. (Khawar v. Globe International, Inc.,
supra, 19 Cal.4th at pp. 275-76.) The evidence – even ignoring the critical
failure to provide a complete transcript of the trial testimony – establishes
Velie’s malice towards Tenborg with convincing clarity. The punitive damages
must be affirmed.

49
VI. CONCLUSION

Charles Tenborg has incurred substantial expense and waited several

years, through the delaying tactics of an unjustified anti-SLAPP motion and
appeal, a long trial and this proceeding, to seek redress for the calculated and
ongoing campaign of disparagement launched against him by Appellants.
Society too has a strong interest in redressing defamation because the “harm
done to one’s reputation by erroneous charges of corruption or dishonesty
can never be fully undone, . . .For even an erased question mark still suffices
to raise the question, where perhaps none existed before.” (McCoy v. Hearst
Corp. (1986) 42 Cal.3d 835, 858 [231 Cal.Rptr. 518, 727 P.2d 711].) The time
has come for a final and public vindication of Mr. Tenborg’s reputation. For
the foregoing reasons, the judgment should be affirmed and costs on appeal
awarded to Tenborg.

DATED: May 8, 2018 KERR & WAGSTAFFE LLP

By:
MICHAEL VON LOEWENFELDT

Attorneys for Respondent

CHARLES TENBORG

50
 CERTIFICATION OF COMPLIANCE WITH WORD LIMIT

Pursuant to California Rules of Court, rule 8.204(c)(1), I certify that

this Respondent’s Brief is proportionately spaced, has a typeface of 13-point,
proportionally-spaced font, and contains 12,441 words according to the word
count feature of Microsoft Word 2016.

DATED: May 8, 2018 KERR & WAGSTAFFE LLP

By:
MICHAEL VON LOEWENFELDT

Attorneys for Respondent

CHARLES TENBORG

57
 calcoast news.com http://calcoastnews.com/2012/11/hazardous-waste-chief-skirts-law/

Hazardous waste chief skirts law

November 14, 2012

By KAREN VELIE and DANIEL BLACKBURN

A contractor paid more than $400,000 annually by San Luis Obispo County’s
Integrated Waste Management Authority (IWMA) illegally transports hazardous
wastes and has exposed taxpayers to huge fines by encouraging member public
agencies to ignore state law, a CalCoastNews investigation shows.

Charles Tenborg, the IWMA’s hazardous waste disposal site manager, also owns
ECO Solutions, a private waste disposal and management company William
recommended as a hazardous waste transporter by the IWMA. Worrell

In the mid-1990’s, Tenborg was fired for undisclosed reasons from his job with the
San Luis Obispo County Environmental Health Certified Unified Program Agency (CUPA), which
licenses the five household hazardous waste facilities.

He then formed ECO Solutions. His relationship with the IWMA started in 1997 when he was
awarded a no-bid contract by IWMA manager William Worrell for $21,000 a year to run the
Household Hazardous waste facilities at Cold Canyon and Chicago Grade landfills. Each year
since, the IWMA board has voted to approve a new no-bid contract, with the latest totaling more
than $400,000 for the management of the five county hazardous waste facilities.

In a recent interview with CalCoastNews, Worrell said Tenborg got the no-bid contracts because
he was the most qualified for the job. However, as a public entity, the IWMA is required by law to
put work of more than $15,000 out to bid and to avoid using public resources to support private
business.

IWMA is a joint powers authority formed in 1994 to deal with state regulation of hazardous waste
disposal requirements. All seven San Luis Obispo County cities, the county, and eight special
districts are members, and officials of each entity are represented on its board of directors.

A primary responsibility of the authority is to plan for, suggest, and offer solutions to common
waste problems through the creation and management of waste and recycling facilities. Currently,
the IWMA asks generators of hazardous waste to utilize its transportation services.

“If you are a conditionally exempt small business and generate less than 27 gallons or 220 pounds
of hazardous waste per month, we can provide hazardous waste collection and disposal service
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of hazardous waste per month, we can provide hazardous waste collection and disposal service
for you,” the IWMA says on its website.

However, staff at the IWMA said the public agency does not transport waste,
though it does serve as a work generator for Tenborg’s private transport company.

State regulators require documentation of cradle-to-grave movement of waste

materials of more than 50 pounds in any month, unless the entity is given a “small
generator” status. This is designed to prevent the illegal disposal of hazardous Charles
wastes by transporters or waste facilities that fail to properly manage the waste. T enborg

The city of San Luis Obispo does not haul its own hazardous waste and regularly
utilizes ECO Solutions as a transporter, city employees said.

Under reporting requirements, a “small” load of hazardous waste material — less than 220 pounds
per month — can be exempted from state reporting regulations if it is hauled by a municipality
itself after certification of the load’s weight.

City employees said Tenborg encourages municipalities to ignore reporting protocols by filling out
IWMA forms that allege the municipality is a small generator because it self-transports; then,
Tenborg transports the loads himself in violation of state law. He charges the city $2,000 to
$3,000 for each load, and takes them to one of IWMA’s five household hazardous waste facilities
— all managed by Tenborg. The materials are then supposed to be transported ultimately to a
hazardous waste facility like the one located near Kettleman City.

Tenborg contends he stopped hauling hazardous waste for municipalities two years ago when
IWMA manager Worrell said they needed to make sure cities claiming to be conditionally-exempt
small waste generators moved their own waste.

Nevertheless, employees in San Luis Obispo, one of whom said his departments did not utilize Eco
Solutions, said that the city does not transport hazardous waste because of the liability involved.
City officials, however, still claim conditionally-exempt small waste generator status and rarely
send reports to the state.

In this way, municipalities get bargain-basement pricing on their hazardous waste loads.

Keeping track of the hazardous waste and assuring that it is handled

properly is difficult and time-consuming.

Data showing how much hazardous waste San Luis Obispo produces is
convoluted, because the city also utilizes the services of more than 10
other haulers.

When asked, as manager of the county’s five hazardous waste facilities,

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how much waste the city of San Luis Obispo self-transported during the
past month, Tenborg said he did not know and went on to explain what happens to waste after it
arrives at the IWMA facilities.

“We manage it, pack it in drums and then transport it to the appropriate facility,” Tenborg said.

San Luis Obispo management’s response to a records request for hazardous waste manifests
resulted in dozens of documents bearing the names of those transporters.

Of those manifests, only five had been sent to regulators during a three-year period of time,
according to the Department of Hazardous Substance Control. Three other manifests the city
delivered to regulators were not part of the city’s response to CalCoastNews’ records request —
demonstrating the city’s failure to properly keep records in a specific file as required by law.

Tenborg’s and Worrell’s relationship dates back at least 15 years, and Worrell’s professional
history has been similarly controversial.

Dozens of newspaper reports by the San Diego Union-Tribune and the Los Angeles Times detail a
long list of questionable activities by Worrell during his tenure in San Diego County. Some of those
activities nearly bankrupted the county.

In 1990, Worrell arrived in California from Florida to become the deputy director of San Diego
County’s solid waste division. He quickly began advocating for a $140 million “super-sized”
recycling facility to be built in San Marcos. That facility was funded with taxpayer-backed bonds,
and was conceived as a multi-jurisdictional destination point for refuse from numerous
communities in the San Diego region.

A key feature of that plant was its supposed ability to handle disposal of plastic refuse. In the
recycling of plastics, materials are first separated into types of plastics, ground into small pieces
and then placed into a furnace so that it can be melted down and reused.

Construction of the plant was hugely controversial, and its approval came on the barest of vote
margins by San Diego County’s Board of Supervisors.

Following its completion, costs to individual waste haulers rose rapidly, in part because of massive
budget overruns. In addition, it was later discovered that Worrell had not even purchased a furnace
to melt the plastic. During daylight hours, while members of the public looked on, workers sorted
recyclables, but in the evening, plastics were shredded and later simply disposed in a landfill, said
several waste company officials in San Diego County.

In less than 13 months, the plant was closed and subsequently dismantled, its parts sold for 10
cents on the dollar, according to a long series of articles in the Union-Tribune. San Diego County
taxpayers continue to shoulder the bond indebtedness for that project.
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In December 1993, Worrell was placed on administrative leave after auditors discovered a pattern
of questionable management practices and the apparent misappropriation of county funds,
according to the results of two investigations initiated by San Diego County officials.

Among the problems discovered by San Diego County was Worrell’s routine approval of fraudulent
claims filed by private contractors working on the San Marcos “super dump.”

One top county official referred to Worrell’s shortcomings as “a pervasive default of responsibility
through all levels of management in its solid waste division.”

The county’s controller’s office discovered that taxpayers had doled out $1.2 million to local
businesses to develop innovative recycling programs, and that Worrell had failed to follow
contractual requirements or monitor the grants’ expenditures.

Investigators also found that Worrell, who oversaw the recycling grant program, showed “little or
no fiduciary responsibility” for the public funds he administered.

Worrell, faced with the threat of demotion, resigned his post in April 1994 amid a firestorm of
controversy.

“I told them demotion was unacceptable, and I resigned instead,” Worrell said at the time.

But several county officials told the Union-Tribune that Worrell would have been fired had he not
chosen to leave voluntarily.

Worrell was never charged with criminal activity and soon left for friendlier climes – San Luis Obispo
County, where he was handed the top spot in the IWMA despite the controversy surrounding his
stint in San Diego.

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