Filed 7/28/15 Tenborg v. CalCoastNews CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


CHARLES TENBORG,                                                             2d Civil No. B254094
                                                                          (Super. Ct. No. CV 130237)
     Plaintiff and Respondent,                                             (San Luis Obispo County)

v.

CALCOASTNEWS/
UNCOVEREDSLO.COM LLC et al.,

     Defendants and Appellants.



                   Appellants Karen Velie and Daniel Blackburn authored a news article
allegedly quoting statements purportedly made at a public meeting which accused
respondent Charles Tenborg of illegally transporting hazardous waste that "exposed
taxpayers to huge fines by encouraging [San Luis Obispo County] public agencies to
ignore state law." They also alleged that he had been "fired" from an earlier job with the
County. Appellant blogger CalCoastNews/UncoveredSLO.com LLC (CalCoastNews)
and the authors were sued by Tenborg for libel—there was no such statement at the
meeting and the allegations were "lies." Appellants moved to strike the complaint as a
strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16.) The
trial court denied the anti-SLAPP motion. Appellants challenge that ruling. We affirm.
                                           FACTS
              We reproduce in relevant part the article at issue here, entitled "Hazardous
waste chief skirts law." The specific statements that Tenborg identifies in his complaint
as defamatory are in boldface:
              "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 recommended as a hazardous waste transporter by the IWMA.
              "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.


                                              2
              "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 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 wastes by
transporters or waste facilities that fail to properly manage the waste.
              "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.


                                              3
                "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,
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 . . . ."
                The remainder of the article concerns, in appellants' words, Worrell's
"similarly controversial" professional history and "questionable activities."




                                                4
                                       DISCUSSION
              "The analysis of an anti-SLAPP motion . . . involves two steps. 'First, the
court decides whether the defendant has made a threshold showing that the challenged
cause of action is one "arising from" protected activity. ([Code Civ. Proc.,] § 425.16,
subd. (b)(1).) If the court finds such a showing has been made, it then must consider
whether the plaintiff has demonstrated a probability of prevailing on the claim.'
[Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a
SLAPP, subject to being stricken under the statute.' [Citation.] We review an order
granting or denying a motion to strike under section 425.16 de novo. [Citation.]" (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.)
              The trial court found that Tenborg's cause of action arises from protected
activity, a ruling he does not contest. The sole issue before us is whether he has shown a
probability of prevailing on his libel claim. We conclude that he has.
              In general, libel is "a written communication that is false, that is not
protected by any privilege, and that exposes a person to contempt or ridicule or certain
other reputational injuries." (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) To
prevail on a libel claim, "the First Amendment also requires that the statement on which
the claim is based must specifically refer to, or be 'of and concerning,' the plaintiff in
some way."1 (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042.) Appellants
challenge Tenborg's showing on each of these elements.
              In a concise, well-reasoned decision, Judge Tangeman rejected appellants'
contentions. The trial court found that the article was not protected as a matter of law by
the privilege for fair and true reports of a public proceeding (Civ. Code, § 47, subds. (d),
(e)) because "the . . . article makes no reference to or report of what transpired during the

       1 In addition, if the plaintiff is a public figure, the First Amendment requires a
showing by clear and convincing evidence that the defamatory statement was made with
actual malice. (Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1349.) The trial
court declined to consider whether Tenborg is a public figure because appellants first
raised the issue in a supplemental reply brief. They do not renew that argument here.
We assume for present purposes that Tenborg is not a public figure.
                                               5
[public meeting at issue]" and there is a factual dispute about what was said there. In
addition, the trial court found that Tenborg "provides sufficient evidence to establish the
falsity of the statement[s]," that "a few of the statements are clearly defamatory," and that
the statements were of and concerning him because "the . . . article names [him], includes
his photograph, and identifies Eco Solutions as a company that [he] owns." We agree.
                                             Falsity
               Appellants contend that Tenborg failed to prove that most of the statements
at issue were false (the exception being the statement that he was "fired" from CUPA).
"'". . .". . . The dispositive question . . . is whether a reasonable trier of fact could
conclude that the published statements imply a provably false factual assertion.
[Citation.]' [Citation.]" (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1048.) "Minor inaccuracies do not amount to falsity so long as 'the substance, the gist,
the sting, of the libelous charge be justified.' [Citations.]" (Masson v. New Yorker
Magazine, Inc. (1991) 501 U.S. 496, 517.) At the same time, "even if a statement is
literally accurate, defamation may be proven if it has a false implication." (Hawran v.
Hixson (2012) 209 Cal.App.4th 256, 293.)
               "When the speech involves a matter of public concern, a private-figure
plaintiff has the burden of proving the falsity of the defamation. [Citation.]" (Brown v.
Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.) The trial court did not, as appellants
assert, "turn[] this burden on its head . . . by rejecting [their] anti-SLAPP motion because
the court was unable to determine 'that all the alleged defamatory statements are true.'"
The trial court acknowledged that "[t]he burden is on a plaintiff . . . to proffer a prima
facie showing of facts supporting a judgment in plaintiff's favor." It cited falsity as one
of the "essential elements" of defamation and explained that "[Tenborg] must
establish . . . that the statements are false." Tenborg provided evidence of falsity, which
appellants attempted to refute with conflicting evidence. Because the trial court found
that "[t]here is substantial evidence to support [his] allegations which, if believed, would
support a finding of liability," it could not "determine, as a matter of law on this motion,


                                                6
that all the alleged defamatory statements are true." This analysis was sound. (See
Hawran v. Hixson, supra, 209 Cal.App.4th at p. 293 [performing similar analysis].)
              Appellants argue that Tenborg's evidence was insufficient because "it did
not establish that the 'gist' and 'sting' of each of the statements at issue was false." We
disagree. The "gist" and "sting" of the statements are that Tenborg "illegally transports
hazardous wastes" and "encourages municipalities to ignore reporting protocols" required
by state law. To show the falsity of these statements, Tenborg submitted declarations
stating that neither he nor Eco Solutions ever illegally transported or dumped hazardous
waste, that he was properly licensed and registered with the state to transport hazardous
waste at all times, and that he stopped hauling hazardous waste for the IWMA more than
two years before the article was published. In addition, he stated that when he
transported hazardous waste from entities designated as conditionally-exempt small
quantity generators (CESQGs) on the IWMA's behalf, the entities self-certified their
status as CESQGs and he never encouraged them to violate state law. He also submitted
evidence of the hazardous materials endorsement on his driver's license, letters from the
Transportation Security Administration confirming that he met the requirements for the
endorsement, and registrations with the California Department of Toxic Substances
Control.
              To controvert this evidence, appellants submitted a declaration of a former
Eco Solutions employee, Aaron Wynn, who claims to have seen Tenborg and other Eco
Solutions employees illegally transporting and disposing of hazardous waste. In a
supplemental declaration, Tenborg disputes Wynn's account. Given that Wynn was fired
for reasons that "did not make sense to [him]" and was denied a license to transport
hazardous waste because of "an incident on [his] record where the authorities thought
[he] was transporting a pipe bomb," the trier of fact might not credit his testimony. "This
sort of factual dispute is one that we do not resolve on [appellants'] section 425.16 special
motion to strike." (Hawran v. Hixson, supra, 209 Cal.App.4th at p. 293.)
              Appellants' other evidence, an IWMA form that purportedly shows "an
indisputable violation of the small quantity hazardous waste generator requirements,"

                                              7
does not even call Tenborg's evidence into question. The form, a "CESQG Data Sheet &
Waiver," contains a statement signed by the City of San Luis Obispo certifying that the
City "generates no more than 100 kilograms (27 gallons or 220 pounds) of hazardous
waste per month based on an annual average." The "Inventory" section, signed by
Tenborg, lists 31 gallons of latex paint, four gallons of batteries, and various lamps.
Latex paint is not inherently a federally regulated hazardous waste that would affect a
CESQG's classification.2 (Health & Saf. Code, § 25218.1, subd. (a); 40 C.F.R.
§§ 261.5(a) (2010), 261.3 (2014).) Batteries and lamps are generally considered
"universal waste" and as such are not counted in the monthly limit on hazardous waste
from CESQG entities. (40 C.F.R. §§ 261.5, subd. (c)(6), 261.9, subds. (a), (d).) Thus,
none of the waste listed on the IWMA form is incompatible with the City of San Luis
Obispo's lawful self-certification as a CESQG.
                 The trial court properly found that Tenborg's evidence was sufficient to
prove falsity.
                                           Privilege
                 Appellants contend that the statements at issue are privileged under
subdivisions (d) and (e) of section 47 of the Civil Code, which provide absolute
immunity for "a fair and true report" of a public proceeding.3 (Civ. Code, § 47, subds.
(d), (e); see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961,


       2 Latex paint may qualify as hazardous waste if it contains toxic substances. For
instance, until 1990 mercury was commonly added to latex paint as a preservative and
fungicide. (See Stephen M. Jasinski, U.S. Dept. of the Interior, Bur. of Mines, The
Materials Flow of Mercury in the United States (1994) p. 17 <http://pubs.usgs.gov/
usbmic/ic-9412/mercury.pdf> [as of June 12, 2015].) Here, nothing on the form indicates
that the latex paint contained a substance rendering it hazardous waste.
        3 The differences between these two subdivisions are irrelevant here. Subdivision
(d) provides immunity for "a fair and true report in . . . a public journal, of [a] public
official proceeding, or . . . of anything said in the course thereof," so long as the report
does not violate Rule 5-120 of the State Bar Rules of Professional Conduct, a court order,
or any confidentiality requirement imposed by law. Subdivision (e) provides immunity
for "a fair and true report of (1) the proceedings of a public meeting, if the meeting was
lawfully convened for a lawful purpose and open to the public, or (2) the publication of
the matter complained of was for the public benefit." It is undisputed that the public
proceeding at issue was lawfully convened for a lawful purpose, that it was open to the
public, and that no legal or ethical duty prevented appellants from reporting on it.
                                               8
974.) They assert that the subject of Tenborg illegally transporting hazardous waste
without a license was brought up at a meeting of the San Luis Obispo Stormwater
Management Team held on January 12, 2010.
               Appellants are not entitled to have Tenborg's defamation claim stricken on
the basis of privilege. First, there is a factual dispute whether the article is a "fair and
true report" of the Stormwater Management Team meeting. Appellants, supported by the
declaration of former city employee Douglas Dowden, assert that during the meeting
team member Kerry Boyle "informed the group that Eco Solutions had not been properly
licensed to haul hazardous waste, even though it was transporting hazardous waste for the
City [of San Luis Obispo]." They also rely on "Meeting Notes" that state, "Eco-Solutions
no longer licensed to haul . . . ." Boyle denies making this statement and "do[es] not
recall anyone else making [this] or similar statements at that meeting."4 Because the
basis of appellants' entitlement to privilege turns on a disputed fact—whether their report
is "fair and true"—it cannot be decided in a ruling on an anti-SLAPP motion. (See
Jennings v. Telegram-Tribune Co. (1985) 164 Cal.App.3d 119, 128, italics omitted
["'[T]he fairness of the report is a question of fact for the jury'"].)
               Second, appellants are not entitled to section 47 privilege as a matter of law
because their article in no way conveyed that they were reporting on a public meeting.
To the contrary, the article suggests in its opening paragraph that it is the product of "a
CalCoastNews investigation." (See Hawran v. Hixson, supra, 209 Cal.App.4th at pp.




       4
         At oral argument, appellants' counsel asserted that Boyle's declaration is "very
carefully written in how [he] den[ies] what was said at the meeting" and "leaves open the
question of whether something similar was said there." Not so. Boyle's denial is
categorical: "I did not make these statements at the January 12, 2010 [Stormwater]
Management Team meeting, or anywhere else, ever. I also do not recall anyone else
making these or similar statements at that meeting. At a recent meeting of the same
Stormwater Management Team, in early October 2013, we discussed the comment
attributed to me regarding the status of Mr. Tenborg's license. Nobody remembered that
statement being made, nobody knew where it came from, and nobody knew what to make
of it. So I want to confirm very strongly and with 100% certainty that I never made that
statement, it was not made at the January meeting,—basically, I believe the statement as
written is a false or inaccurate statement."
                                                9
280-281 [privilege did not apply where publication did not "report on, summarize or
describe the SEC proceeding or investigation, the history of the SEC proceeding or
investigation, or any communications made 'in the course of' that investigation" but rather
"report[ed] the results and consequences of [the defendant's] own internal
investigation"].) "'The fair report privilege is required because of the public's need for
information to fulfill its supervisory role over government. Thus, reports of official
proceedings are not privileged "merely to satisfy the curiosity of individuals," but to tell
them how their government is performing. . . .'" (McClatchy Newspapers, Inc. v.
Superior Court, supra, 189 Cal.App.3d at pp. 974-975.) Here, however, the article
neither mentions nor references the Stormwater Management Team meeting. As the trial
court found, "a reader of the article would have no understanding that the article was a
report on what took place at the meeting." The privilege for fair and true reports is
inapplicable. (See Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265
Cal.App.2d 255, 259 ["[I]n order to qualify as privileged . . . an article must state the
source of its information"].)
                        Defamatory Meaning and Special Damages
              Appellants assert that several of the statements at issue are not reasonably
susceptible of a defamatory meaning or that Tenborg failed to prove specific statements
damaged him. Although appellants conflate two separate elements, underlying both of
their contentions is their position that "each statement should have been independently
evaluated" as to whether it supported a claim for libel and, if not, stricken. This is
incorrect. "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. [Citation.]" (Selleck v. Globe International, Inc. (1985)




                                             10
166 Cal.App.3d 1123, 1131; see Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th
at p. 820 ["If the plaintiff 'can show a probability of prevailing on any part of its claim,
the cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a
probability of prevailing on any part of its claim, the plaintiff has established that its
cause of action has some merit and the entire cause of action stands'"].)5
              We agree 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."
Consequently, these statements were "libelous per se, and actionable without proof of
special damage." (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382.)
                               "Of and Concerning" Tenborg
              Appellants argue that three of the 11 statements at issue are not "of and
concerning" Tenborg. As we have explained, the proper focus is on the article as a whole
rather than on specific statements within the article. The entire first half of the article is
about Tenborg and his "controversial" professional history. Determining whether each of




       5 Appellants point out that the Supreme Court has recently taken up the issue of
whether "the anti-SLAPP statute can be used to strike nonmeritorious allegations of
protected activity within an entire cause of action." (Baral v. Schnitt (2015) 233
Cal.App.4th 1423, 1437, review granted May 13, 2015, S225090.) Regardless of how the
Supreme Court resolves Baral, the case is distinguishable in that it involved separable
allegations of protected activity. After the trial court in Baral struck two defamation
causes of action based solely on allegations regarding privileged communications made
in a prelitigation fraud investigation, the plaintiff amended the complaint and included
the same allegations in otherwise colorable causes of action for breach of fiduciary duty,
constructive fraud, and declaratory relief. (Id. at p. 1430.) Baral held that the anti-
SLAPP statute could not be used to selectively strike the allegations of privileged
activity. (Id. at p. 1443.) Here, in contrast, there was of necessity only a single,
indivisible cause of action for libel. (See Civ. Code, § 3425.3 ["No person shall have
more than one cause of action for damages for libel . . . founded upon any single
publication"].) If appellants maintain that certain statements in the article neither directly
defame Tenborg nor contextualize the defamatory nature of the article as a whole, they
can move in limine to exclude the statements as irrelevant. Using an anti-SLAPP motion
in this way serves no purpose.
                                              11
the three statements flagged by appellants are "of and concerning" Tenborg would be a
pointless endeavor.
                                    DISPOSITION
             The judgment is affirmed. Costs to respondent.
             NOT TO BE PUBLISHED.


                                        PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                                          12
                             Martin J. Tangeman, Judge

                      Superior Court County of San Luis Obispo

                        ______________________________



            Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox and Jeanne
M. Sheahan for Defendants and Appellants.

            Kerr & Wagstaffe, James M. Wagstaffe and Kevin B. Clune for Plaintiff
and Respondent.




                                        13
