Future-Link v. WebTV Networks
Filed 4/11/06 Future-Link v. WebTV Networks CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
| FUTURE-LINK, INC., Cross-complainant and Appellant, v. WEBTV NETWORKS, INC., Cross-defendant and Respondent. | B176816 (Los Angeles County Super. Ct. No. PC019071) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael J. Farrell, Judge. Reversed.
Ford Law Firm, William H. Ford III, George H. Kim and Richard M. Duignan III for Cross-complainant and Appellant.
Sidley Austin Brown & Wood, Sidley Austin, Peter I. Ostroff, James M. Harris and Anne Mayer Turk for Cross-defendant and Respondent.
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Appellant Future-Link, Inc. (Future-Link), filed a cross-complaint that included a cause of action against respondent WebTV Networks, Inc. (WebTV), for interference with a contract between Future-Link and a corporation named FutureNet Online, Inc. (FutureNet). After the rest of the litigation had been settled or dismissed, WebTV moved to dismiss Future-Link's cross-complaint as against it, on grounds no corporation of that name was registered in New Jersey (Future-Link's alleged home state) or qualified to do business in California. WebTV acknowledged that there existed a New Jersey corporation named Future-Link Online, Inc. (Future-Link Online), whose officers overlapped those of Future-Link, but Future-Link Online also was not qualified in California.
Opposing the motion to dismiss, Future-Link also sought leave to amend its cross-complaint, to designate the cross-complainant as Future-Link Online, which Future-Link urged was the true name of the cross-complainant. Despite effectively uncontradicted evidence that Future-Link Online was the aggrieved party to the contract, and the real party in interest, the trial court denied the motion to amend. WebTV then renewed its motion to dismiss, urging that because Future-Link Online was the real party in interest, Future-Link was not entitled to sue. (Code Civ. Proc., § 367.)[1] The court granted the motion, and entered judgment for WebTV.
We hold that it was an abuse of discretion to deny leave to amend to designate Future-Link Online as the cross-complainant, either by correction of misnomer or by substitution. This error decisively affected the dismissal and judgment, because had leave to amend been granted, the grounds for dismissal would not have appeared. We therefore reverse the judgment.
FACTS
This litigation is the sole remnant of a broader set of claims concerning Future-Link's (or Future-Link Online's) December 1996 contract with the now bankrupt FutureNet, under which Future-Link was to provide internet services for FutureNet's television set-top internet customers. In February 1997, shortly after entering into the contract, FutureNet agreed to market WebTV's set-top internet devices, and this agreement eliminated Future-Link's status as FutureNet's exclusive internet service provider. Future-Link then stopped providing service to FutureNet's subscribers, and FutureNet responded with an action against Future-Link, for breach of contract and related claims. The complaint also named David Durko (Durko), a principal of Future-Link, and a related entity, Kabardine Associates. FutureNet commenced the action in California, its home state. The complaint identified Future-Link as â€
