In an unpublished decision, Kinder v. Allied Interstate, Inc., 2010 WL 2993958 (Cal.App. 4 Dist.) Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115), the California Court of Appeal found that Mr. Kinder’s TCPA claims arising out of calls placed to his cellular telephone failed. We previously had discussed Mr. Kinder’s litigation in small claims court here: http://www.calautofinance.com/?p=679. The Court of Appeal described Mr. Kinder’s case as follows:
Kinder operated a rental car business in which he used a pager. In September 1996, Kinder inadvertently destroyed his pager. He called the company handling his service and requested a new one. Kinder indicated he was interested in knowing if any new blocks of pager numbers had been released. He learned the number 619-999-9999 was available. Kinder believed the number was valuable because no one would ever forget it. He was able to obtain the number by paying a “tip” to the servicer. Kinder soon learned that the pager number was unusable due to the sheer volume of pages he received. During the number’s first 20 hours in operation, Kinder received 184 pages not intended for him. Kinder eventually received as many as 63,000 unwanted pages per month. Thus, he was never able to engage in any business or corresponding advertising with the number other than initially informing acquaintances by word of mouth. He later learned that it was standard practice in the industry of automated dialing to “9 in” or “9 out” a number, i.e., when an industry engaged in automated dialing has the name of an individual in its database, but no corresponding phone number, it will automatically fill-in the blank phone number in its system with all nines and call that number. Within a week or two of acquiring the number, Kinder obtained a waiver of all overage charges-those charges above his flat monthly fee. While initially he was permitted 400 calls per month, calls exceeding that number cost him $.10 each. Thus, due to the volume of calls he received he would have been required to pay thousands of dollars in overage charges per month. At some point thereafter, he disconnected the pager service, converting it to a stand-alone voicemail: “You have to understand, I didn’t keep the number activated very long with that pager.” Kinder then paid a flat monthly fee for operation of the number. Kinder created intake logs and hired staff to record the calls he continued to receive. In 1999, Kinder began issuing demand letters to purported violators requesting settlements and threatening to file lawsuits if settlements were not paid. Around May or June 1999, Kinder began filing hundreds of lawsuits. On May 21, 2003, Kinder was proclaimed a vexatious litigant. Kinder subsequently filed numerous applications for leave to file actions pursuant to section 391.7. Many, if not most or all of those applications, were denied. Section 391.7, subsection (a) provides that an order declaring a litigant to be vexatious may require the litigant to obtain leave of the presiding judge of any court where that litigant proposes to file new litigation. The order declaring plaintiff a vexatious litigant is not a part of this record; however, we have obtained a copy from the Judicial Council and take judicial notice of that order on our own motion. That order expressly requires that plaintiff obtain a prefiling order prior to filing any new litigation. Kinder, represented by an attorney, initiated the current action against defendant Allied Interstate on February 6, 2007, alleging a single cause of action. Kinder contemporaneously filed a declaration pursuant to section 391.7 seeking permission to file the instant action as a vexatious litigant. The trial court granted his request. Defendants filed a motion to require Kinder to post security as a vexatious litigant. The court granted the request. Kinder failed to post the bond and the “non-telemarketing” cases were dismissed.
The Court of Appeal found that Mr. Kinder bore no probability of success on the merits, and that the doctrine of assumption of the risk applied to his claim. The Court of Appeal explained:
We find substantial evidence supported the trial court’s determination that Kinder had no reasonable probability of prevailing in his litigation with respect to those calls made while his pager was disconnected. Ample evidence supported defendants’ contention that Kinder did not have a “telephone number assigned to a paging service” at any time period that was the subject of the instant litigation. In support of their motion to require Kinder to post a security bond, defendants submitted the declaration of Kimberly Edwards, the custodian of records for Arch Wireless/USA Mobility, the service provider for Kinder’s pager service. In that declaration, Edwards averred that “the number (619) 999-9999 is not currently connected to a pager, and has not been connected to a pager at any time since the year 2002. It is a stand-alone voice mail.” She further declared that “Arch Wireless/USA Mobility’s records reflect that there are no data communications, by transmission of coded radio signals or any other method, sent to a mobile device for the number (619) 999-9999 to alert the account holder when a message or call to this number is received. [¶] Arch Wireless/USA Mobility’s records reflect that Mr. Kinder is not currently assigned paging service for the number (619) 999-9999, nor is Mr. Kinder alerted by paging service that a call has been made to or received by that number. [¶] … [¶] In order to receive messages from the stand-alone voice mail, Mr. Kinder must periodically call his voice mail and check for messages. He is able to do this by calling his voice mail and entering a password. The message(s), if any, are then played back to him.” In his deposition testimony Kinder admitted that he did not keep the pager service with the number activated for very long, implicating an even earlier date than that reflected in Edwards’s declaration. While Kinder reactivated his pager service in May of 2007, he conceded that “the vast majority, if not all, of the calls in the cases where [liaison counsel] is defense counsel involve[d] calls made prior to May, 2007 (when Mr. Kinder turned on his pager).” This, again, implicates that the vast majority, if not all, of the calls made by defendants to Kinder were during the period his pager was inactive. The statute of limitations on a TCPA action is four years. (Sznyter v. Malone (2007) 155 Cal.App.4th 1152, 1167-1168.) Kinder’s current action was filed on February 6, 2007. Thus, sufficient evidence supported the trial court’s determination that Kinder’s pager had been deactivated for the entire time period for which he was claiming damages in the instant case with respect to those calls made prior to his reconnection of the pager. Kinder did not dispute below, and does not argue on appeal, that his pager was connected during the subject time frame. Rather, he argues that whether it was connected or not is immaterial. According to Kinder, the fact that his number was assigned to a paging service, active or not, was the determinative factor. We disagree. Reading the statute as a whole, the statement of congressional findings, and case law interpreting the statute reveals that its primary purpose was to preserve the privacy rights of owners of the subject devices from the harassment and annoyance of persistent intrusive interruption by telemarketers or other unwanted callers. (47 U.S.C., § 227; Moser v. F.C.C. (C.A.9 Or.1995) 46 F.3d 970; Oklahoma ex rel. Edmondson v. Pope (W.D.Okla.2007) 505 F.Supp.2d 1098; Minnesota ex rel. Hatch v. Sunbelt Communications and Marketing (D.Minn.2002) 282 F.Supp.2d 976.) Indeed, as the trial court noted, it was “persuaded the number must be assigned to one of the enumerated devices that is operated as assigned…. [A]ny other interpretation is clearly contrary to the purpose of the TCPA-to prevent wireless device users from receiving and paying for calls from unwanted solicitors.” “The TCPA is not intended to apply to circumstances such as is presented in this case where the Plaintiff intentionally subjects himself to unwanted telephone calls and disconnects the number from his pager device, connects the number to a voice mail tape-recording system and employs a staff to listen to the voice mail messages and catalog the calls for the sole purpose of filing lawsuits.” “The court finds [Kinder]’s conduct of intentionally subjecting himself to unwanted telephone calls, as a matter of policy, precludes [Kinder]’s recovery under the TCPA.” Thus, substantial evidence supported the court’s order.
The Court of Appeal, after extensive analysis, found the doctrine of assumption of the risk applicable, and applied the following metaphor to Mr. Kinder’s claim:
At oral argument, defendant argued that, unlike the property owner in Donovan, plaintiff actually metaphorically placed his “cows” on the railroad tracks hoping they would be stricken. We would extend the analogy even further: Plaintiff’s actions are consonant with an individual searching for unfenced land through which a railroad ran, purchasing the property at above-market prices, placing cows upon the rails without ever communicating his intention of doing so, or requesting that the railroad “fence in” the road, ceasing the placement of cows on the railroad when their procurement became oppressive, but continuing to sue for hypothetical cows he could have continued to place on the railroad, and then, again, placing cows on the railroad when he discovered that he could not recover for hypothetical cows.