Former president George H.W. Bush pledged to make the U.S. a “kinder and gentler nation.” He was not thinking of James Kinder of La Jolla, a onetime lawyer who resigned from the state bar in 1989 after being recommended for disbarment. For one thing, Kinder’s name rhymes with “tinder,” not “binder.” For another, Kinder has continued filing lawsuits by the hundreds, even after his run-in with the bar and, later, being named a vexatious litigant, or chronic court abuser, by superior court in 2003.
Kinder’s presence won’t make any place gentler. For example, in a deposition that he took under penalty of perjury in the year 2000, Kinder referred to a judge who had denied his claim as “the old fart judge pro tem.” Asked why he was filing so many lawsuits against companies he claimed were harassing him telephonically, Kinder replied, “I am going to sue the shit out of every one of them because they are screwing with me and they don’t care.” When asked how many calls he had received from a company he was suing, Kinder replied, “Shit, I don’t know. I get so fuckin’ pissed off about this.”
Since the late 1970s, Kinder has been involved in well over 600 lawsuits, overwhelmingly as the plaintiff, in superior court and small claims court. On February 1, in the courtroom of Judge Ronald L. Styn, 85 companies and organizations will ask to have their cases combined. They have been named defendants in individual Kinder suits. The defendants include some hefty outfits: Wells Fargo, JPMorgan Chase, General Motors Acceptance, Time Warner Cable, Blockbuster, Travelers Insurance, and Microsoft. The defendants won’t talk, but the word is that a bundling of these cases is a certainty. You see, in Kinder’s own words, judges are “fuckin’ pissed off” too.
Here’s Kinder’s game: In 1996, he got the phone number 619-999-9999 for his pager. Immediately, he began getting swamped with autodialer calls. Within three years, he launched the lawsuit binge. There are several reasons why calls may flood into a 999-9999 number. One is that a collection agency, say, that doesn’t have a number for someone it wants to reach has to put something in the computer on the phone number line. If the blank isn’t filled in, the computer will balk like a mule. So an area code plus 999-9999 is put in the blanks. The 999-9999 number is the default or “dead air” number for most autodialers. Also, some people filling out a form, but not wanting to receive calls, will plug in 999-9999. Clerks who haven’t been given a phone number will write in the 9s too.
After he got hundreds of calls, Kinder began recording the calls and suing those who made them under the Telephone Consumer Protection Act of 1991, which was signed into law by the aforementioned President George H.W. Bush. This federal law restricts telemarketers in the use of automatic dialing systems and prerecorded voice messages. Among many other things, it bans early-morning and late-evening solicitation calls. Kinder has elaborate systems to monitor the calls he receives, and then he goes to court to collect money, usually $500 to $1500 per autodialer call to a receiver that he calls a pager. Although the protection act is federal, most lawsuits filed under it are in state courts.
Kinder has claimed in a deposition that he received as many as 63,000 calls one month. The volume is down to 4000 to 5000 now. He has insisted in these depositions that the calls drive him absolutely crazy. Consistently, he is asked: if you are going crazy, why don’t you get rid of that number? He replies that such a number is a valuable marketing tool for his various businesses. In fact, when I interviewed him, that was the only question he would answer: “I have a B.S. in marketing. This is the most valuable telephone number in the San Diego area code, so I am not willing to give up my number. It is an unforgettable number,” he said. In a deposition, he said it was worth $2 million to $3 million.
He claims in depositions that he represents the little people against telemarketers, but his opponents argue that he is abusing the court system to make money. Many defendants have simply settled, but others won’t. He claims he sued one company for $75 million. It fought. Other defendants say they are not telemarketers; for example, they may be a doctor’s office trying to reach a patient with a reminder of an upcoming appointment. And the Telephone Consumer Protection Act often does not apply in suits Kinder files, say defendants.
Kinder’s credibility is not helped by his record. In July 1988, the hearing panel of the State Bar of California recommended that he be disbarred after being convicted of crimes involving moral turpitude. (He got a five-year stayed sentence.) He had been a personal injury lawyer. In 1979, according to the panel, Kinder forged a document certifying that his client had married a man. Problem: the groom was dead. The bride got the dead groom’s benefits, and Kinder took one-third of them, or $3300, according to the panel. Kinder had officially tied the knot as a minister of the Universal Life Church, a Modesto-based mail-order operation that hands out minister’s ordinations almost immediately for free. (The so-called church would go on to lose money in San Diego’s J. David pyramid scheme of the 1980s.) According to the bar panel, Kinder concealed the crime for six years and then tried to get the faux widow not to sing to the police.
The panel also noted two occasions on which Kinder warned opposing lawyers that he would counsel his clients to make untrue statements. Kinder had an alcohol problem in those years, and a psychiatrist testified that he was in treatment and could practice law. But the panel said the “bad faith, dishonesty, concealment, and overreaching” added up to moral turpitude, and he should be disbarred. Early the next year, he resigned and went on to operate Rainbow Towing, Rainbow Rent-A-Car, Rainbow Carpet Cleaning, and Rainbow Auto Repair from an unimposing building at 3129 India Street.
He soon ran into other problems. Rainbow was parking cars all over the street. In the late 1990s, Dona Loshonkohl Hufford of the San Diego Police Department began ticketing those cars. Kinder filed numerous complaints against her. She countersued and was awarded $350,000 and got a restraining order against him. Early last year, she won another $900,000 from him. Her boyfriend was dying as a result of a bad auto accident. At the accident scene, as she held him in her arms, Kinder stared her down. The court sided with her.
From Rainbow’s humble headquarters, Kinder began the lawsuits in 1999, suing in propria persona, or on his own behalf, but in 2003 he was declared a vexatious litigant, or one who repeatedly files groundless suits. Then he hired two young lawyers. The Kinder team still operates from the India Street office, monitoring calls and suing the so-called offenders.
In a typical letter, one of his lawyers, Chad Austin, wrote Equidata of Newport News, Virginia, in February of last year, claiming that it had made 64 autodialer calls to Kinder’s so-called pager and owed $64,000. His letter to Kenneth Copeland Ministries of Newark, Texas, also in February, demanded $10,000. Both have been named in the suits that the defense seeks to consolidate February 1. Austin refused comment.
Defendants in those suits charge that the paging function has been disconnected and replaced by a sophisticated computer system with multiple tape recorders and date/time stamps.
Los Angeles lawyer Andrew Struve is defending U.S. HealthWorks in the ongoing case. It is charged with making 223 calls. The telephone protection law “was a well-intentioned law designed to prevent people from receiving unsolicited calls from telemarketers where the receiver gets charged,” says Struve. Kinder claims his device is a pager, and he has to pay for incoming calls, “but it is not a pager.” Struve’s client consists of doctors trying to contact patients.
Ronald Stargis, a Sacramento lawyer, won against Kinder in small-claims court. Stargis was able to show that a dialing machine used by a collection agency was “not statutorily defined as an automated dialing device,” he said.
As the current case proceeds, such arguments will ring out in superior court. Call it Kindergarten.