Tenborg vs. CalCoastNews: Week 1 Coverage

This is part one of SLO Truth’s coverage of the Tenborg v. CalCoastNews defamation trial. Each part will cover approximately one week of events. 

Introduction

Before I document what happened in the trial, I want to make a few necessary disclosures. That way, I’m able to provide context for my personal observations.

Arroyo Grande businessman Charles Tenborg filed a defamation lawsuit against CalCoastNews (CCN) on May 10, 2013. The basis of the lawsuit was an article the website published nearly a year earlier, titled, “Hazardous waste chief skirts law.” The article accused Tenborg of illegally transporting hazardous waste, being “fired for undisclosed reasons” in the mid-1990s, encouraging municipalities to ignore proper protocols, among other things. The article also strongly insinuated that Tenborg and Integrated Waste Management Authority (IWMA) manager William Worrell were in some illicit contractual relationship, based on a no-bid contract that CCN suggested wasn’t legal.

Shortly after it was published, the article was distributed to an intranet mailing list called “Morning Coffee,” which had several subscribers from the waste management industry. Many of those subscribers knew Tenborg on a professional basis. The article, which remains online and untouched to this day, was spread among his professional contacts and clientele.

Shortly after the article was published, Tenborg and Worrell issued a detailed joint demand for retraction of the article to CCN. The website didn’t respond to the retraction demand. The failure to retract led Tenborg to file his defamation claim several months later. Tenborg is seeking personal damages for the tarnishing of his reputation.

Leading up to the trial — which started over four years after the article was published — CCN has argued that every assertion mentioned in the article is true based on discussions they’ve had with several of their sources, but ultimately conceded they had no notes, documentation or additional physical evidence to verify the claims Tenborg contested.

The website later pivoted to a defense strategy, asserting that Tenborg’s legal claim was a strategic lawsuit against public participation; that the lawsuit was attempting to stifle their free speech and prohibit them for producing stories in the public interest. The trial court ruled against that defense motion and ordered the case go to trial. The website appealed that ruling to the Second District Appellate Court in 2015, but was ultimately unsuccessful.

After their appeal was struck down, CCN unveiled a new defense. In support of their effort to raise money for legal expenses, co-founder and defendant Karen Velie claimed Tenborg’s case was a malicious lawsuit that was financially backed by District 3 Supervisor Adam Hill. She asserted on the website’s GoFundMe page that Hill “boasted in writing” that he is pushing the lawsuit against CCN “in an undisguised effort to destroy the eight-year-old online news agency.” None of the exhibits they’ve presented for their case provided a foundation for her claim.

In 2011, my father Ed and I were in preliminary discussions with CCN and a few other alternative news platforms to form a news aggregate network similar to the Huffington Post. Talks fizzled after I expressed concern about Velie’s reporting as a legal liability.

I covered the lawsuit since it was first reported in The Tribune in 2013. At the time the lawsuit was filed, I was employed as a writer for Information Press, a monthly newspaper. As someone investigating and fact-checking the website, I reported that CCN published unsubstantiated assertions about Tenborg. Approximately a year later, my employer heard from Velie, who claimed I libeled her by stating her claims about Tenborg were unsubstantiated. As a result of reporting on the case, Velie personally threatened my employer and my family. I’ve covered my experiences with CCN since then in this article.

“Disgrace to the Bar”: Circus Before Trial

More than four years after CCN published their article about Tenborg, the trial for Tenborg v. CalCoastNews began. As the New Times pointed out, the trial had a contentious start.

Appearing noticeably gaunt, disheveled and disoriented, CCN attorney James Duenow made disparaging comments about the law firm representing Tenborg, Kerr & Wagstaffe. Outside the courtroom, Duenow specifically took aim at Tenborg’s lead attorney James Wagstaffe and called him a “fucking disgrace to the bar” and a “motherfucker.” The insults were coupled with Duenow aggressively poking Wagstaffe. This behavior continued into the courtroom during a brief recess. Before leaving the courtroom, Duenow mused, “How about if I punch him?”

As he wobbled around in the audience, Duenow made a handful of claims that could not be independently verified. One of the claims was that District 3 Supervisor Adam Hill was “biasing” witnesses against the defendant. When pressed for evidence by presiding Judge Barry LaBarbara, Duenow failed to muster a response. The other claim was that an attorney from Kerr & Wagstaffe threatened one of the witnesses in the case had been threatened over the phone with a lawsuit. Judge LaBarbara pressed Duenow for a foundation to his claim, but he came up empty-handed.

Understandably irate, Wagstaffe informed Judge LaBarbara about the verbal and physical altercations with Duenow. LaBarbara hesitated to admonish Duenow, instead suggesting to help resolve the dispute in his chambers. Wagstaffe turned down the suggestion. According to two sources close to the case, Wagstaffe reportedly opted to file a formal complaint against Duenow, and discovered something peculiar. According to the State Bar of California, Duenow had a suspended law license from July 2016 until the first day of trial. According to archives of the San Luis Obispo Courthouse, Duenow has presided in several pretrial conferences during the time his license was suspended. On CCN, Duenow had two columns published during that time period that prominently mentioned he was currently practicing law as a “semi-retired” civil trial lawyer.

CCN decided to drop Duenow from their counsel. Records show that a criminal complaint was filed against Duenow for practicing law without a license, a felony.

Aside from the spat between Duenow and Wagstaffe, the trial addressed a number of pretrial motions.

In one motion, CCN attorney James McKiernon attempted to claim that Tenborg was a public figure, though the trial court previously ruled that he wasn’t. If he was ruled a public figure, Tenborg would have to show actual malice: that evidence showed the defendants knowingly attempted to tarnish his reputation. McKiernon argued that Tenborg was a public figure because he “injected himself in a public controversy,” but McKiernon could not identify the controversy. When that line of argument failed to sway LaBarbara, McKiernon focused on Tenborg’s involvement at conferences where he allegedly educated the public on hazardous waste management. Tenborg was called to the stand to clarify his public involvement, if any. Tenborg testified that his public involvement, which was mostly at waste management conferences, was limited to promoting his business and garnering clients. After hearing Tenborg’s testimony, LaBarbara ruled that Tenborg is a private figure.

CCN’s counsel touched briefly on another motion, which pertained to their trial subpoena of Adam Hill. According to LaBarbara’s tentative ruling dated March 3, CCN sought to examine Hill on four topics: (1) Whether Hill urged the plaintiff to file the lawsuit; (2) Whether it was true that Hill sent text messages to CCN advertiser/developer John King that stated he was behind the lawsuit; (3) Whether the purpose of the lawsuit was to put Velie out of business; and (4) Whether contracts with IWMA for more than $100,000 must be sent out to bid. LaBarbara ruled that the first three topics were irrelevant and the fourth could be gathered from other sources. LaBarbara also ruled that Tenborg’s alleged motivations were irrelevant to the case and the article in question.

It’s worth noting that Velie filed a lawsuit against Hill last month, alleging the supervisor conspired with other county officials and myself to ruin her reputation and shut down her business. The lawsuit, which remains active, is a slightly revised version of a claim Velie filed in federal court last year. The federal claim was dismissed with prejudice by the presiding judge, who ruled that Velie failed to furnish evidence of retaliation. There is a question of whether CCN’s subpoena of Hill constitutes an abuse of process claim, given the fact that CCN sought Hill’s irrelevant testimony in Tenborg’s lawsuit, and that testimony uniquely relates to her retaliation claim.

On the first day of trial, CCN’s counsel decided to withdraw their subpoena of Hill.

Who Were CalCoastNews’ Sources?

Once the jury was assembled, plaintiff’s counsel called Tenborg to the stand. From the onset, it appeared the counsel’s focus was to capture Tenborg’s personal and immediate response to the article. His attorney James Wagstaffe asked Tenborg to not only review the allegations, but also discuss the insinuations made in the article. For example, Tenborg answered yes when he thought the article’s headline, “Hazardous waste chief skirts law,” referred to him. Tenborg explained the implication was clear, given he was the subject of the article’s lead paragraph and five subsequent paragraphs. In later testimony, CCN claimed the “hazardous waste chief” was Worrell, not Tenborg, and that the article was about the IWMA, not Tenborg specifically.

A significant portion of Tenborg’s testimony focused on CCN’s claim that he was fired in the mid-1990s for undisclosed reasons from the SLO County Environmental Health Certified Unified Program Agency. Counsel admitted into evidence a memorandum of his resignation from 1997. Counsel also brought in Tenborg’s former employer at the time, former SLO County Director of Environmental Health Curtis Batson, to testify. Batson stated that Tenborg had a good reputation prior to his resignation and confirmed he wasn’t fired. Batson reportedly told Velie of Tenborg’s employment status shortly before the article was published. CCN attorney David Vogel sought to discredit Batson’s testimony on cross-examination, stating that it wasn’t proper protocol to discuss the nature of employment status of his subordinates; that he should have referred Velie to the personnel or Human Resources department. However, no records show that Velie made any attempt to contact Human Resources about Tenborg.

Later, when Velie took the stand, she stood by her reporting that he was fired, despite hard evidence showing otherwise. Velie claimed she relied on “several” sources that turned out to be three, two of them now deceased.

One living source, former San Luis Obispo city employee Doug Dowden, claimed that he heard Tenborg was fired, but didn’t have proof. Plaintiff’s counsel admitted into evidence an email Dowden sent to CCN, which stated exactly that. Counsel argued that the email showed, in no uncertain terms, that Dowden’s comments were hearsay and uncorroborated rumor. Velie claimed Dowden was credible because he was a “whistleblower.” CCN reported in Jan. 2011 that Wastewater Collections Supervisor Bud Nance reportedly told staffers to remove contents of the hazardous waste storage shed at the city corporation yard on Prado Road and empty cans in a nearby yard. Dowden blew the whistle on what happened, stating that city officials failed to report the illegal discharge as required by law. Tenborg was not involved in that incident.

The second source of Velie’s “firing” claim, Valarie Alvarez, was a criminal investigator employed by the California Dept. of Toxic Substances Control. According to Velie, Alvarez communicated to her that Tenborg was fired. Additionally, Velie claimed that Alvarez was investigating and “following” him. Alvarez passed away in Jan. 2016. In questioning Velie, Wagstaffe revealed during trial that she didn’t save any notes of her communications with Alvarez, so Velie’s claims could not be verified.  Velie claimed she wrote notes that she later typed on the computer. Velie stated she subsequently threw away her handwritten notes once she converted them to digital format. However, her computer “broke” shortly after the article was published, and taken to the “shop [from] over there” — presumably in San Luis Obispo — but most of her files on the hard drive couldn’t be recovered, she claimed.

The third source was Aaron Wynn, a former employee of Tenborg’s. In his declaration, Wynn claimed that Tenborg illegally transported and disposed hazardous waste. Tenborg questioned the credibility of his testimony because Wynn was fired from his position and didn’t understand why, and he 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.” Following his declaration was a video Wynn posted on YouTube in 2014, which he narrated. The video showed Wynn walking around the Cold Canyon landfill where Tenborg hauled waste to, and made accusations that mirrored the ones he made in his declaration. Though he was shown collecting soil samples, nothing in the court records show that the samples were tested or that the soil was dumped onto the ground by Tenborg himself.

In 2014, Wynn committed suicide. On CCN, anonymous commenters supporting the website insinuated that Wynn was murdered, and that the murder was allegedly orchestrated by Tenborg and his supposed co-conspirators. CCN fueled the conspiracy theory in a Facebook post on their page dated Oct. 25, 2016, insinuating that Wynn died from a “gunshot wound” as a result of videotaping and reporting the “wrongful dumping” of PG&E waste.

The anonymous commenters that originally floated the conspiracy theory created a Facebook page called “Fire Adam Hill.” Shortly before CCN tried to subpoena Hill for a deposition on the same grounds, “Fire Adam Hill” claimed they had “evidence” that the County of San Luis Obispo and Hill were behind the lawsuit. Similar to CCN, the page offered no evidence.

Wagstaffe scrutinized the sources one by one, and determined that Velie relied on hearsay and uncorroborated rumor from a few questionable sources over the hard evidence provided by several sources. Yet Velie still maintained that she had “several sources,” some of whom she claimed were anonymous and confidential. When pressed about her creative interpretation of state laws governing no-bid contracts of joint powers agencies (namely the IWMA), Velie stated she “didn’t know what the laws were” specifically, and that she consulted “several attorneys” to confirm her claims.

However, CCN’s witness list had no attorneys listed and Velie could not name a single attorney that specifically assisted her in legal research. She did name her attorney, James McKiernon, as an attorney who allegedly reminded her that he spoke with her about the article at an unspecified time. Velie had also communicated with William Worrell and visited his office to discuss questions she asked about IWMA regulations. Worrell testified on the stand that he provided specific statutes that clarified her misconceptions about conditionally exempt small waste generators. Velie’s reporting contradicted the statutes Worrell personally provided her in email.

After she was thoroughly scrutinized over her sources, Velie reiterated her allegation that Tenborg dumped PG&E vault waste from the hillside of the Cold Canyon landfill, and that she personally witnessed Tenborg’s brother Maurice illegally transporting hazardous waste. The jury was not impressed.

Who Dropped the Ball?

Plaintiff’s counsel revealed the article was passed around CCN staff, including to co-founder/Senior Correspondent Dan Blackburn and editor Bill Loving. Blackburn and Loving assisted Velie by providing editorial notes. Some of the notes asked Velie to either elaborate and provide more information or cite her sources. The article went through several revisions prior to being published, but the claims Tenborg contested appeared in the final draft. For at least two months prior to the article being published on their website, CCN had focused their investigation on IWMA’s practices, not Tenborg or Worrell specifically. However, shortly after Dowden contacted Velie about Tenborg and his professional relationship with Worrell, the overall tone of the article changed.

Within an hour of Velie receiving the email from Dowden, Blackburn contacted a reporter at the San Diego Union-Tribune and stated as fact that Tenborg or Worrell were in an illicit contractual relationship. Blackburn contacted the San Diego Union-Tribune because Worrell once served San Diego County as their Deputy Director for the Solid Waste Division. According to “several sources,” Blackburn wrote in the article that Worrell had a “long list of questionable activities” during his tenure in the early 1990s.

On the witness stand, Blackburn scrambled with his narrative, stating initially that he may or may not have had information about Worrell/IWMA’s no-bid contract with Tenborg, but that he withheld publishing it. Blackburn stated the information would later appear in a follow-up to the Tenborg story, which wasn’t published because of Tenborg’s lawsuit. However, Wagstaffe revealed that Blackburn stated, in his 2013 deposition, that he had no evidence to show Tenborg and Worrell engaged in any wrongdoing by being in a no-bid contract.

Blackburn maintained that he worked on one half of the story, which covered Worrell’s activities in San Diego, and Velie worked on the other half, which mentioned Tenborg and the contested claims. Velie backed Blackburn’s testimony, adding she was responsible for her reporting and research. Likewise, Blackburn testified that he worked independently of her and was not intimately familiar with her reporting methodology for the story. Wagstaffe reminded both Velie and Blackburn that they share responsibility for the article since they share the byline. Additionally, Blackburn could not separate himself from the fact that he participated in rewrites and several revisions of the story, as evidenced by the various emails between him, Velie and Loving that were submitted into the record.

Though most of the article singled out Tenborg and Worrell extensively, Blackburn insisted the article was more about the IWMA.

In what appeared to be a move to reduce his personal liability in the article’s publishing, Blackburn testified that he has not been a business partner with Velie since 2010. This is true, since CCN announced at the time that he was departing the website to focus more on producing short news documentaries for his new website, KCCN.tv. According to state records, the only owner listed on CCN’s limited liability company forms is Velie.

However, since 2010, Blackburn has appeared numerous times on the 920 KVEC’s “The Dave Congalton Show” on behalf of the site and rigorously defended Velie’s reporting, including her reporting on Tenborg. In Dec. 2015, Blackburn appeared as a featured speaker at Freedom Force International’s “Operation Destination” workshop in Paso Robles. In the workshop’s press materials, Blackburn was listed as CCN’s publisher.

Observations

The Tenborg v. CalCoastNews trial offers a shocking inside look into a local tabloid’s journalism methods. The plaintiff’s counsel was able to create a revealing juxtaposition between a site that brags about being “non-partisan and adhere to the strictest journalism ethics and standards,” yet they recklessly abandon those standards in their delusional pursuit of scandal.

The delusional aspect comes from their willingness to value hearsay over hard evidence. It was intriguing to see Velie state unequivocally on the witness stand — in spite of hard evidence appearing before her, contradicting her published claims — that she has not retracted the story or corrected it, in any way, since it was published over four years ago. And yet, leading up to the trial, it was clear CCN knew they were in trouble. Prior to trial, CCN used the discovery process as a costly substitute for due diligence that they should have done for the story. They scrambled to find witnesses and connect dots they once connected in their written work, but not in reality.

CCN’s attorneys David Vogel and Berndt Ingo Brauer couldn’t muster a defense that CCN once promised would be “vigorous.” Vogel argued over the accuracy of page numbers in plaintiff exhibits while Ingo Brauer failed to cast reasonable doubt of plaintiff’s witness testimony during his listless cross-examinations. At times, their attorneys appeared resigned and withdrawn. For the trial’s second week, CCN is expected to bring in their witnesses, but it seems unlikely that their testimony will have a strong impact.

During one of the breaks, I overheard Velie complaining to her attorneys that the lawsuit was hurting her reputation. Given her incoherent, often rambling testimony, her narcissistic self-pity on display outside the courtroom and her rampant peddling of self-victimizing conspiracy theories, it’s clear to me Karen Velie has severe psychological problems. You have someone who is literally incapable of admitting to mistakes or making corrections. Velie’s legally and factually unjustified hubris has cost residents and taxpayers hundreds of thousands in litigation-related costs, despite her site decrying the fleecing of American taxpayers. That’s not taking into account the financial and emotional toll of those she’s maligned in her reporting.

Now, it seems karma has come to finally settle the score. Let’s see what happens in the second week.

Author: Aaron Ochs

Aaron Ochs is a local columnist, entrepreneur and founder of SLO Truth. Ochs is also a member of the SLO Progressives club.

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