December 20, 2012
Sent Via Facsimile and U.S. Mail
ATTN: Michael T. Bonetto
Hoge, Fenton, Jones & Appel, Inc.
60 S. Market Street #1400
San Jose, CA 95113
FAX: (408)-287-2583
Re: Kiraly v. Kiraly: 1-12-DV-015924 & Kiraly v. Kiraly: 1-12-DV-015910
General Meet and Confer Regarding CLETS Cases
Dear Michael:
I have received and forwarded to Mr. Robert Kiraly the revised proposed STIPULATION AND ORDER RE STAY AWAY ORDERS (NON-CLETS) WITH CLETS TRIGGER AND LIQUIDATED DAMAGES. Mr. Robert Kiraly has received a copy of same via email. Here are some relevant poionts:
First, the proposed Order is not Mutual with regards to the Trigger, meaning that a CLETS gets Ordered if it is proven that Robert violates it, but there is no provision for appropriate penalties if a false accusation is made. This is not agreeable. Robert Kiraly has never since childhood perpetrated physical violence against any Protected Person. Robert feels that the CLETS papers as filed contain numerous false allegations, and he is concerned that persons who made or implied said false allegations in their moving papers may employ false statements or misrepresentations again at a later date in attempts to obtain a CLETS.
Robert Kiraly understands that the purpose and effect of a CLETS trigger is to avoid entirely any hearing on the truth or falsity of the original claims made in the moving papers. Discovery regarding the number of calls made, whether the calls were authorized, the contents of the calls, etc., would all become irrelevant. He has been fully informed of both the potential cost savings in the future, and the absolutely preclusive effect regarding his claims that your clients did not tell the truth about many details.
Robert has stated that he most likely will not agree to a CLETS trigger; especially one that does not impose a penalty for any false accusation(s). As Robert’s counsel, I would nevertheless advise him to agree to a trigger, if it was Mutual – meaning that if, for instance, James later seeks a CLETS without grounds for doing so, and it is proven by a preponderance that he had no grounds, then a CLETS Order will be issued protecting Robert Kiraly from James Kiraly and an agreed sum of liquidated damages must, at a minimum, be paid for bringing the false claim.
I view the case perhaps more simply than either Robert or James – if they each stay away from the other, then they will save many thousands of dollars in litigation costs. Staying away is essentially free to both parties. The essence of the Peaceful Contact idea is that your clients get the assurance and peace of mind that Robert Kiraly will not do something that physically threatens them. This point he is readily willing to agree to. In fact, Robert asserts that, unlike both your clients, he has no history of physical violence or threats of physical violence for over 40 years, so agreeing to this is cost free to him.
Second, the caption recites that there are liquidated damages, and in fact I earlier proposed an amount of $5,000, but that item is not present in your draft. Liquidated damages should either be stated in the Stipulations text, or the caption should be changed. In light of the high cost of litigation, I expect that Robert Kiraly would prefer to use the sum of Twenty Five Thousand Dollars ($25,000) as the liquidated damages amount, as he has assured me that he will not violate any agreement to stay away, and if he is again falsely accused he will need to be adequately compensated.
Third, the distance of 200 yards is simply too great. Robert Kiraly will, if necessary, file a Motion to Limit the Scope of the CLETS so he can interview people for his books and for other lawful and appropriate purposes.
Some of those people may live or work within less than 200 yards of where a Protected Person may reside. Additionally, Robert Kiraly may wish to visit businesses in downtown areas and the unusually large distance would place him at increased risk of unintended issues, the points in item Fifth, below, notwithstanding.
In the typical Order I usually use a distance of 50 feet (much longer than anyone’s arms). Physical safety of Protected Persons is the purpose of the agreement.
Fourth, the proposed Order also refers to unnamed institutions and/or third parties. It seems to conflate physical presence and contact such as phone calls. All institutions and third parties that you wish to be covered by limitations should be listed specifically. The limitations should be clear about what is barred: physical presence only or contact as well.
Robert Kiraly has stated that he will not agree to limitations that apply to unnamed institutions and/or third parties. An unreasonably broad list will not be considered appropriate. Also, a Safe Harbor Clause is both reasonable and required: in no event will consensual interaction with institutions and/or third parties be deemed a violation of the Order. I am open to discuss just how the term “consensual” should be defined, and suggest that a bright line rule be used, where the sending, by a third party, (and actual receipt by Robert Kiraly) of written notice to NOT contact them will function to define further contact as non-consensual and terminate further contact. (This would elevate the existing rules of etiquette to the dignity of a Court Order, and just being polite and nice in this way is surely consistent with public policy).
To be clear, Robert Kiraly intends to interview persons from churches attended by Protected Persons as part of the research for his books. No Court will issue a Prior Restraint to bar consensual contact with parties who are not parties to the action, and using the stay away distance as an end-around the combined jurisdictional and Constitutional issues will not be agreed to.
Fifth, there is no provisions for unintentional and/or chance meetings stated in the Order. The language I have used in the past, and prefer to use, states:
“If either party encounters the other party in a public place, they both agree to maintain a respectful distance from the other party, and have no verbal or physical contact. Both parties agree to treat the other party with civility, as if the other party were a stranger to them.”
Absent some language covering chance meetings, I will not advise Robert Kiraly to sign. He cannot agree that if he unexpectedly runs into someone on the list at Lucky’s he will suddenly be slapped with a CLETS Order.
Sixth, Paragraph 7 states:
“The mere inclusion of the names of any Protected Persons in a book written by any party shall not be considered a violation of this Order.”
The use of the words “mere” and “names” is not acceptable.
Limiting the use of names to a Book (i.e. leaving internet posts as possible violations) is not acceptable.
There should be an express statement that detailed recollections of, or writings of or about, events that included any Protected Persons, and/or large portions of books, articles, Internet Posts, Websites, or other collections of or instances of text being devoted to analyses of Protected Persons and the evolution and/or motivations of Protected Persons shall not be considered violations of the Order. In fact, the use and/or quotation this very letter and the response of the Protected Persons (despite the terms of Evidence Code §1152) shall not be a violation of the Order.
Mr. Robert Kiraly has stated that he wants to write a book about families and relationships, which book will include specific events that he experienced. He feels that life with his father, James Kiraly, was difficult at times. James Kiraly was offered the opportunity to provide his own perspective on events. James’ response was to go to the police circa one business day later. While it is regrettable that James Kiraly chose not to participate in the project, and to have his views represented accurately and fairly, nevertheless, the book will be written.
Robert Kiraly cannot, and will not, agree that writing about events that occurred in the context of his own childhood, his own adolescence, and/or subsequent interactions with his own family members, including but not limited to your clients, in writing about relationships that he had with family members or the forces that shaped those relationships, will constitute a violation of any Court Order.
Seventh, under the peculiar circumstances of this case, the underlying purpose of the CLETS procedure is actually directly at odds with what your clients want to use it for. James Kiraly, in particular, seeks to use the CLETS to prevent Robert Kiraly from communicating details related to Robert’s own past to institutions and/or third parties or at the very least to frustrate such communication. In short, James Kiraly wishes to use the CLETS as a tool to aid what is commonly referred to as a “cover up.” The actual purpose of the CLETS is described as follows:
§ 6220.
The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.
That statute does not authorize any Prior Restraints, nor does it characterize writing a book as any form of violence.
§ 6300.
An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.
This statute also does not authorize Prior Restraints aimed at silencing the victim of abuse, or at silencing people at all.
Your clients should understand that Robert Kiraly is agreeable to staying away and never engaging in any form of violence against them.
Robert Kiraly notes that it might have been simpler if James Kiraly or Thomas Kiraly had simply chosen to ask Robert in 2012 not to communicate as opposed to initiating a CLETS. There was no physical violence, no attempts at extortion, and no significant attempts to communicate initiated by Robert Kiraly after any unabrogated request that he not do so save for a single day when James threatened Robert with the police and declined to explain what was happening. Nor were there every any non-consensual telephone calls at all to Thomas Kiraly that Robert can recall. There was no actual basis for a CLETS.
Robert Kiraly’s willingness to assure your clients that they always have been, and always will be, safe from any physical threat of violence by him, is in complete accord with the purpose of the CLETS sections in the Family Code. Nevertheless, if he must litigate, he will seek any and all remedies available to him, including but not limited to an award of attorney’s fees under Family Code §271 and/or §6344.
Please be aware that this instant correspondence, as well as your client’s responses and/or offers, will be attached to my Declaration in Support of Attorney’s Fees, as Robert Kiraly’s willingness to provide to your clients the same type of protections they would get from a CLETS, even when he is innocent of your client’s allegations, will be relevant to whether they wasted everyone’s time.
Eighth, also, in accord with the provisions of Family Code §271(b), please be aware that Robert Kiraly has now incurred about $15,000 in legal fees, all of which he expects to be compensated for as part of the described settlement. As the case drags on, this number will increase.
Robert Kiraly can and will testify that there never were any 70 non-consensual telephone calls to James and Grace, or any other significant number thereof save for a single day when James threatened Robert with the police and declined to explain what was happening. Nor were there every any non-consensual telephone calls at all to Thomas Kiraly that Robert can recall.
On the single day alluded to above, no Court Order had been filed or served at that time, and attempts to ask one’s father why there was an aggressive threat to involve the police is not likely to support any CLETS – particularly when the underlying accusations that were being threatened were entirely and unambiguously false and were connected to an attempt to prevent the writing of a book.
There never were any demands for money (this letter is a demand for $15,000, as attorney’s fees). In fact, Grace had asked Robert if he wanted money and he told her “absolutely not” or similar words.
There was never any attempt at extortion. The attempted gift to Thomas of Robert’s grandfather’s religious writings was never extortionate, and it has been misrepresented.
Grace Kiraly visited Robert Kiraly (her son) in early 2012 without notifying him in advance or seeking permission. A document provided by the Kiralys during discovery confirms that the visit took place. Robert recalls no communications to James and Grace in 2012 prior to this visit aside from one accidental misdial that was aborted.
Grace gave Robert permission to phone her church (this does not mean that he needed that permission, just that it was given). Robert set up that call as a normal interview appointment and had a pleasant conversation with the pastor (Pastor Ron). The discussion was about Christ Followers. Robert did not mention abuse by James during the call. Robert also made a polite and consensual call to S.C.O.R.E. to discuss altruism. He did not mention abuse by James during this call either.
The police never once spoke to Robert except when Robert requested it. The police story outlined by Thomas not only did not involve Thomas at all, it never actually happened.
Robert’s initial call to Thomas in 2012 was set up in advance, was entirely consensual, and involved a “Happy Birthday” greeting from Robert to Thomas as opposed to “stalking.” Thomas invited Robert to call back two to three weeks later. At no point during the initial call or any subsequent call did Thomas ever once ask Robert not to communicate with him.
Robert never once indicated or suggested in any communication before the filing of the CLETS that Thomas or Kenneth had committed abuse. In fact, all mention of those unfortunate issues came from James Kiraly. Subsequent to the CLETS being filed, any and all mention of those unfortunate issues by Robert Kiraly has been based upon his accurate and clear recollections.
Robert learned that James was threatening him, and he sent admittedly chilly postcards. You have copies of those postcards. Robert discussed the postcards with the police prior to sending them, and was told that there were no problems with sending postcards or the contents.
There has never been any physical violence, or threats of physical violence, in this case.
Robert Kiraly never hacked Amazon Corporation or James Kiraly’s computer. The claims made or implied are both entertaining and sensational, but they are not true.
In making his demand for payment of Fifteen Thousand Dollars ($15,000) to his attorney of record, Thomas Chase Stutzman, A Professional Corporation, within Five (5) calendar days of the filing of the Stipulation and Order, Robert Kiraly has considered both the flaws in your client’s cases and the probable cost of proceeding to prove up each and every flaw. Agreeing to settle will not constitute an admission by anyone of anything, other than the fact that the parties want to stop paying for litigation.
Ninth, the proposed Stipulation uses vague terms for prohibited actions like “stalk” or “threaten.” Robert Kiraly is concerned that if the matter goes back to Court significant time will be spent debating what those vague terms mean, as he has not engaged in physical violence, and expects that of he sees the Protected Persons it will be inadvertently (SEE AGAIN item Fifth above). Vague terms like “stalk” or “threaten” must be defined or removed.
Tenth, the phrase “other electronic means” is not defined, and that is not acceptable. Robert Kiraly would be agreeable to not contacting the Protected Persons by telephone, voice mail message, “text” (SMS) message, and/or email. If some other means were stated he would consider it as well. He is not agreeable to signing off on a vague term that he does not know what all it might include.
Robert Kiraly intends to make use of social media to communicate with the general public, and he may use YouTube channels, Twitter streams, weblogs, conventional websites, RSS feeds, Scribd publications, Reddit IAMAs, IRC channels, and/or other means of communications aimed at the general public (like a traditional magazine article) and/or third parties. Communications intended for the general public and/or third parties are not to be treated as violations. Terms that may be used to treat them as such are not acceptable.
Eleventh, Robert Kiraly is not agreeable to the term in Paragraph 4 that communications from him can be recorded, unless the term is made mutual, so that he can record any communications from any Protected Persons as well.
Twelfth, the expiration period stated of December 31, 2017 is a little more than 5 years away. When Courts grant CLETS Orders they usually grant them for periods of one to three years, and reserve the 5 year Orders for only the most extreme cases. There was no physical violence in this case, nor in fact any legitimate grounds for a CLETS, meaning that other than its unusual complexity, this case is NOT an extreme case justifying a 5 year Order. Accordingly, a 5 year Order is nor acceptable. If you wish, I can further discuss this with Robert Kiraly; however, a simple three year period is preferred, as that would certainly be long enough for the parties to all “cool off.”
Thirteenth, you removed previous references to website postings about attorneys. Robert Kiraly is most likely interested in quoting Michael Bonetto in his book and on the Internet. Even if the only quote were to be “I’m sorry, that is attorney client privilege,” in the interests of fairness, accuracy, and balance, Robert Kiraly would most likely seek to include said quotation. Some reasonable process whereby counsel is afforded advance notice of what might or included in works that are otherwise published or distributed, and given opportunities to comment, would probably be agreeable to Mr. Kiraly.
Stated differently, Robert Kiraly would prefer a collaborative long term relationship with Michael Bonetto as opposed to a combative one.
Fourteenth, Robert Kiraly is and always has been concerned about the need to avoid misunderstandings. Accordingly, he proposes to proceed as follows:
It is his desire to prepare a document to be read by each adult Protected Person in this case. The document, and reading it, shall be an exception to the no-contact Orders. Counsel may read the document first to verify that it contains no threats and/or other matter(s) which could harm your clients just by reading it, and the copy pre-delivered will be admissible into evidence should the agreement fall apart. Thus, seeing the document is completely risk free to your clients.
The document will outline Robert’s understanding of the cases, and his plans for the future. Each adult Protected Person may only remain a Protected Person by reading the document, and asserting under penalty of perjury that they have read the document in its entirety. No response thereto other than reading, and then signing that they have read, will be called for or permitted. Counsel for the Kiraly’s is not to pass any communications other than signed verifications back. Any adult Protected Person(s) who refuse to read the document and verify that they have read it will be dropped from the Order.
To be clear, the verifications shall mean only that the document was read, and shall not signify any agreement to anything contained therein.
Robert Kiraly has not yet provided to me a copy of the document, but I have been told that it will not endorse or threaten physical violence in any way. Should my profession opinion differ with the personal opinion of Robert Kiraly regarding the contents of the document, this term will be dropped from his settlement terms and you will never get to see the document.
It may be that some cliche statements about having the last word could be applied to this term stated by Robert Kiraly. I express no opinion regarding that point. I do however, express my personal opinion that wanting to be heard and be clear about things, with your close family members is neither an uncommon nor a frightening part of being human.
Fifteenth, there is a clause regarding service of process by mail in Paragraph 6. Robert Kiraly will not agree to that provision, as he recollects a dispute over service. He is agreeable to using personal service on counsel of record, and/or, when agreed to, service by Notice and Acknowledgment of Receipt. Merely dropping something in the mail is not good enough.
Sixteenth, Robert Kiraly wants a discussion about partial sealing of the Court records in this case.
Finally, this response letter is perhaps longer than some I have written in other cases. You should take that as a cause for optimism, as it tells you that Robert Kiraly is willing to settle this matter without protracted litigation. His intense attention to the details of the draft Stipulation underscores his genuine interest in resolution.
A Stipulation that is agreeable to Robert Kiraly could be drafted and signed, and it would provide your clients all the legitimate protections the Court would be likely to grant if the matter went to Trial – at a fraction of the costs of a full Trial.
Yours very truly,
THOMAS CHASE STUTZMAN
A Professional Corporation
By:
John H. Perrott, Associate
JHP/tnz
cc: Client