Legal Question in Business Law in California

Re: Do Not Call list question

In the U.S. legal system, judges do not undertake independent investigations to determine the truth or falsity of a litigant's claims. Only the evidence and testimony presented in court will be weighed. If you appear and say X is true, and your opponent does not deny that, the judge must accept X as true. If, however, the other party presents evidence and/or testimony showing that X is untrue but Y is true, then the judge (or jury) will have to decide which party is more credible.

In the European legal system, judges often make their own investigations or use independent court-retained investigators to study disputes. Not so here, at least not usually. There are a few statutory exceptions, and in an arbitration the parties can give the arbitrator authority to hire investigators or consultants.

In the usual court case, you make or break your case on the relative strength and credibility of your legal briefs, argument, evidence and witness testimony.

Re: Do Not Call list question

Both Mr. Whipple and Mr. Grant are correct. I would only add that the legislative history of the TCPA suggests that Congress intended that you would present your case to the small claims court.

Note however, that the legal issues are different for pre-recorded advertisements than for live telephone calls. If the ad is a recording, then you have rights under California state law beyond those available under the TCPA.

In any case, you should have some evidence that the Defendant is the correct defendant to sue, and whatever evidence you have to show should be presented to the judge. Do *not* rely on the judge to accept your word for it (unless you really have no paper evidence) or to gloss over any issue of fact that might be necessary for a finding of liability.

If you think you know the Defendant, but cannot prove it, you might consider filing the small claims suit and asking the clerk to send a subpoena to the phone company for paper evidence showing that the number belongs to the Defendant.

Re: Do Not Call list question

Take it to small claims court, bring all your evidence, and tell your side of the story without hyperbole. If the other side even bothers to show up, they will tell their side. The judge will rule, and will probably not call the number (although in small claims court the rules are somewhat looser). Also, file an FTC complaint - they likely won't act on one complaint, but if they get enough about the same number/company, they may: https://www.donotcall.gov/Complaint/ComplaintCheck.aspx