The Plaintiff sued Fairlane Credit in small claims court for violating the Telephone Consumer Protection Act.  (Kinder v. Fairlane Credit (S.D. Sup. No. 37-2008-00009227-SC-SC-CTL). Fairlane Credit offered a Trial Brief, which explained the basis for the Plaintiff’s claim against Fairlane Credit, and the procedural history of his lawsuit:

This is [the Plaintiff’s] cottage industry:  Plaintiff’s claims arise out of Defendants’ alleged misuse of plaintiff’s voicemail pager number.  Plaintiff contends that within the last three years he obtained the voicemail telephone number (619) 999-9999.  (Comp.  6)  Plaintiff obtained this number because his clients, customers, and potential customers could easily remember it, making it extremely valuable.  (Id.).  According to plaintiff, defendants are primarily engaged in the collection of consumer debts.  (Id.  5).  Defendants utilize computer programs and databases that automatically dial the telephone numbers of consumer debtors. (Id.  9)  When the telephone number contained in the computer is incorrect or out of service, defendants’ computer system automatically replaces the number with the default number 999-9999.  (Id.,  11-12)  Consequently, plaintiff’s voicemail pager has allegedly received as many as 200 debt collection messages each day.  (Id.  13).   (Kinder v. Citibank (S.D. Cal. 2000) 2000 WL 1409762).     Kinder has sued hundreds of California businesses arising out of messages he received on his golden number.  (Exhibit “A.”)   Where [Plaintiff] retained counsel and filed lawsuits outside of Small Claims Court, those matters were consolidated into a single action, and [Plaintiff] was declared a vexation litigant.  (Kinder v. Allied Interstate, et. al. (S.D.Sup. No. 37-2007-00073604) (“Vexatious Litigant Order”; Exhibit B).  Kinder appealed his requirement to post a vexatious litigant bond.  (Kinder v. Allied Interstate, et. al. (Ct. of App. No. E04786)    [Plaintiff] now apparently has taken his case back to small claims court.  Liaison counsel in the Consolidated Case challenged these filings in Small Claims Court based on Judge Styn’s Consolidation Order.  However, Judge Styn deferred to the presiding Judge, who apparently has granted [Plaintiff] permission to file in Small Claims.    [Plaintiff] claims complains about calls Fairlane Credit made to him over 4 years ago.   Judge Styn held in his Vexatious Litigant Order that [Plaintiff] is unlikely to succeed on the merits.  Judge Styn is correct.  (See also Kinder v. Associates Housing Finance, LLC, et al., U.S.D.C. Case No. 99-CV-2411-J.) 


Fairlane Credit appeared, and defended the small claims action.  The Court sought post-trial briefing, which Fairlane Credit submitted.  Kinder Post-Trial Brief  After hearing the evidence, and reviewing the post-trial briefing, the Court found in favor of Fairlane Credit, explaining:


In a civil case, the party making the claim has the legal burden of proving by a preponderance of the evidence presented in court that the opposing party should be held liable for the amount of each item of damages claimed.  The Court has considered the testimony of the parties, witnesses, and the documentary evidence submitted.  The court finds in the instant case, Plaintiff is precluded from recovery under the TCPA.  A private right of action exists under the TCPA in state court only if otherwise permitted by laws of the State of California. In this State, the defense of the assumption of the risk is available where a Plaintiff under takes (sic) to encounter a known risk.    Based upon Defendant’s legal arguments, the Court is persuaded, Plaintiff’s conduct of intentionally subjecting himself to unwanted telephone calls at his 619-999-999 number subjects his actions to the defense of assumption of the risk.  Grey v. Fibreboard Paper Products, Co. (1966) 65 Cal.2d 240, 245, Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120-1121 citing Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537.


Kinder Judgment  The Plaintiff filed a Motion to Reconsider, to which Fairlane Credit objected as procedurally improper, which Fairlane Credit opposed.  Kinder — Fairlane’s Objection  As Plaintiff’s Motion is procedurally improper, Fairlane Credit expects no ruling, and the Court’s judgment to remain final.   Subsequent Small Claims Courts have found similarly against this Plaintiff, and also found that the Plaintiff was collaterally estopped from pursuing the claim.  Kinder v. MCG Judgment