Charles Tenborg v.

CalCoast News, CV13-0237

RE: Motion for New Trial

Date: May 11, 2017

Defendants motion for new trial pursuant to CCP 657(5) contends that the damage award is
improper because the evidence failed to establish that the defamatory statements constituted libel
per se. The implication here is that Plaintiff was improperly allowed to recover presumed
damages without having to prove such damage. Defendants further contend that the punitive
damage award was improper because there was no proof of the financial condition of the
Defendants.

The defamatory statements were correctly considered libelous per se because the statements
injured Plaintiff with respect to his profession. Here, Defendants argue that specific statements
concerning Tenborgs firing for undisclosed reasons, and the use of a photograph of a radioactive
waste barrel were never adjudicated to constitute libel per se. Defendants reason that since these
statements were grouped with other defamatory statements in the jury instruction, it is impossible
to ascertain whether the presumed damages could have been based upon either of these two
statements. This Court notes that the Court of Appeal concluded that the gist and sting of
the statements injured Tenborg with respect to his profession. See Tenborg v.
CalCoastNews/UncoveredSLO.com LLC (Cal. Ct. App., July 28, 2015, No. 2D CIV. B254094)
2015 WL 4537168, at *4.

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.)
Tenborg v. CalCoastNews/UncoveredSLO.com LLC (Cal. Ct. App., July 28, 2015,
No. 2D CIV. B254094) 2015 WL 4537168, at *7.

The defamatory statements were properly considered in their entirety and the statements
referenced by Defendants supported the gist and sting of the defamation. Furthermore, the fact
that they constitute defamation per se is the law of the case.

As to the punitive damage award, the Court concludes that Defendants failed to comply with
court-ordered discovery concerning their financial condition. Defendants failure resulted in a
waiver of their right to challenge a punitive damage award based upon lack of wealth evidence.

And where defendant outright fails or refuses to comply with valid discovery
requests and ensuing court orders to produce financial information (see 6:158
ff.), leaving plaintiff with little or no evidence of defendant's wealth, defendant is
deemed to have waived any right to challenge a punitives award based on lack of
1
 wealth evidence. [Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1337-
1339, 156 Cal.Rptr.3d 347, 368-369; Mike Davidov Co. v. Issod (2000) 78
Cal.App.4th 597, 608-610, 92 Cal.Rptr.2d 897, 904-906; see Caira v. Offner
(2005) 126 Cal.App.4th 12, 37-38, 24 Cal.Rptr.3d 233, 252-253; Haning, et al.,
Personal Injury, (The Rutter Group 2017) 3:281.1d.]

Accordingly, the motion for new trial is denied.