Kurt Knutsson, et al. v. Judith Salkow Shapiro, et al.

PLAINTIFFS’ MOTION TO VACATE VOLUNTARY DISMISSAL WITHOUT PREJUDICE PURSUANT TO PRIOR STIPULATION

 

MOVING PARTIES: Plaintiffs Kurt Knutsson and Woojivas, Inc.

RESPONDING PARTY(S): Non-parties Susan Salkow Shapiro Moss, Kenneth Salkow Shapiro, and Ben Shapiro.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Kurt Knutsson and Woojivas, Inc. bring this suit against the law corporation of their deceased former lawyer, Judith Salkow Shapiro, for legal malpractice and fraud in the handling of an underlying employment and right of publicity action against KTLA, Local TV, and other television stations.  The operative Second Amended Complaint asserts causes of action for (1) Breach of Contract, (2) Professional Negligence/Legal Malpractice, (3) Fraud and Deceit, (4) Negligent Misrepresentation, and (5) Breach of Fiduciary Duty.  

Plaintiffs now move to vacate the voluntary dismissal of non-party Defendants pursuant to a prior stipulation. Non-party Defendants opposed.

It should be noted that the Court has read and considered the Supplemental Declaration of Alexandra A. Letzel in Response to Plaintiff’s Reply, although it was improperly filed on 2/7/24.  In essence, there was nothing in that filing which altered or changed this ruling.

TENTATIVE RULING:

Plaintiffs’ Motion to Vacate is DENIED.

Non-parties Susan Salkow Shapiro Moss, Kenneth Salkow Shapiro, and Ben Shapiro to give notice, unless waived.

DISCUSSION:

Plaintiffs Motion to Vacate Dismissal

Analysis

Plaintiffs move for an order vacating the voluntary dismissal without prejudice that Plaintiffs filed in this action on February 8, 2023, as to the beneficiaries of the Shapiro Family Trust. 

Plaintiffs represent that they agreed to dismiss the beneficiaries from the lawsuit pending a potentially dispositive motion for summary judgment, pursuant to the agreement titled “Dismissal of Action and Tolling Agreement.” (Denison Decl. ¶¶ 7, 8; Exh. 1.) The Agreement includes a provision allowing claims against the Beneficiaries to proceed “if the Trustee pursues a summary judgment or summary adjudication motion in the trial court and does not prevail.” (Denison Decl., Exh. 1, ¶ 4.)

Following denial of the Defendants’ motion for summary judgment on December 14, 2023, Plaintiffs now move to vacate that dismissal and bring the beneficiaries back into the lawsuit. 

The Beneficiaries opposed the motion.  Their first line of defense is that the current motion is not the correct procedural motion to bring the Beneficiaries back into this case.  (Opp. 6:11 – 9:7)  For the reasons set forth infra, this Court must hesitantly agree with that argument. [FN 1]

Additionally, the Beneficiaries do not dispute that they agreed they could be brought back into the case following the summary judgment motion. They argue, however, that this motion was unnecessary, and there were other “less wasteful alternatives” to bring the Beneficiaries back into the case. (Opp. 2: 15.) The Beneficiaries go on to argue that they should not be brought back into the case at this late stage, attempting to attack the merits of the claims against them and noting that trial is imminent. 

Here, there can be no doubt that the parties agreed—in a highly negotiated and thorough stipulation—that the Beneficiaries would be brought back into this case if Plaintiffs defeated a motion for summary judgment. Oddly enough, the parties apparently did not negotiate how the parties would be brought back into the lawsuit. 

Unfortunately, the authority for the relief Plaintiffs seek is not clear and does not appear in their notice of motion. In their brief, Plaintiffs cite CCP section 581 and 473 as support, as well as the California Supreme Court decision in Kurwa v. Kislinger (2017) 4 Cal. 5th 109. But these authorities do not help them.

CCP section 581(c) allows a Plaintiff to “dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.” However, it says nothing about vacating the dismissal. 

Similarly, CCP section 473(b) allows relief from “a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” But there is no evident mistake, inadvertence, surprise, or excusable neglect—as those terms are contemplated by the statute—to justify setting aside the dismissal. Section 473(d) is likewise of no help, because the order here is not “void.” 

Finally, a review of Kurwa does not offer the broad support Plaintiffs suggest. (Kurwa v. Kislinger (2017) 4 Cal. 5th 109, 117.) Kurwa involved a trial court’s ability to “resurrect” causes of action “upon completion of [an] appeal,” which is not at issue here. (See McConnell v. Advantest Am., Inc. (2023) 92 Cal. App. 5th 596, 611 “A case is not authority for a proposition not considered therein or an issue not presented by its own particular facts.”].) The exact authority on which the Kurwa court relied for this proposition is also not clear from the opinion.

The fact of the matter is this: There is no doubt that the parties agreed and contemplated the scenario where the Beneficiaries would be brought back into this lawsuit. The parties should honor that agreement in good faith. Consistent with that agreement, the reasonable solution is to simply stipulate bringing the beneficiaries back in, followed by any necessary amendments to the complaint. 

Alternatively, Plaintiffs could file a request for leave to amend the Complaint to add these dismissed Beneficiaries, which likely would be granted.  Last, but not least, perhaps a motion to enforce a settlement may be appropriate, assuming this Court properly reserved jurisdiction to enforce any such settlement at the time of the dismissal?

Of course, this Court still has considerable doubts as to why, for any practical reason, do the Plaintiffs actually need these Beneficiaries back in this case at this time?  Additionally, if they are actually needed, why did you dismiss them in the first place?  And why did you not put in an expressly agreed mechanism to bring these parties back?

With all of this in mind, Plaintiffs’ Motion to Vacate the prior dismissal is DENIED.

IT IS SO ORDERED.

Dated:   February 15, 2024 ___________________________________

FN 1 - Be that as it may, this Court completely disavows and rejects the suggestion in the Opposition that this motion somehow “flirts with the unethical.”  (Opp.  9:6-7.)  Indeed, that type of unwarranted suggestion more likely does such “flirting.”  Enough is enough.