Baker v. Superior Court

• Decision Date: 23 December 1983
• Citation: 150 Cal.App.3d 140,197 Cal.Rptr. 480
• Court: California Court of Appeals Court of Appeals
• Parties: J.L. BAKER, et al., Petitioners, v. SUPERIOR COURT etc., COUNTY OF SAN DIEGO, Respondent, SAN DIEGO BEST BUILDERS, INC., Real Party in Interest. Civ. 31071.

Page 480

197 Cal.Rptr. 480

150 Cal.App.3d 140

J.L. BAKER, et al., Petitioners, v. SUPERIOR COURT etc., COUNTY OF SAN DIEGO, Respondent SAN DIEGO BEST BUILDERS, INC., Real Party in Interest.

Civ. 31071.

Court of Appeal, Fourth District, Division 1, California.

Dec. 23, 1983.

Wilson, Yale & Shoberg, Eugene P. Yale and David A. Niddrie, San Diego, for petitioners.

John C. Edwards, San Diego, for real party in interest.

WIENER, Associate Justice.

J.L. and Fritz Baker and Rhonda Sanderlin (collectively, the Bakers) seek a writ of mandate to compel the Superior Court of San Diego County to vacate its order granting partial summary judgment against them in favor of San Diego Best Builders, Inc. (Best) on the third, fourth and fifth causes of action of their cross-complaint against Best, Robert Chatham and James Williams. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854; Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 111-112, 77 Cal.Rptr. 243, 453 P.2d 747.) Best obtained the partial summary judgment on the ground the Bakers, by obtaining a prejudgment writ of attachment, elected to pursue a contract remedy under their first cause of action and thus were barred from further pursuing tort remedies under their third, fourth and fifth causes of action. Best did not challenge the Bakers' second cause of action. For the reasons set forth below, we conclude the court's grant of summary judgment was improper and consequently direct the court to enter an order denying summary judgment.

Factual and Procedural Background

In August 1977 the Bakers entered into a contract with Best to remodel and add an additional unit to their duplex for slightly under $100,000. Chatham and Williams, Best's president and vice-president, promised the Bakers the project would be completed within six months in a competent manner. Sixteen months later Best had withdrawn approximately 90 percent of the Bakers' construction funds but had completed less than 70 percent of the project. Much of the work Best managed to complete was allegedly shoddy and defective.

After being discharged from the project Best filed an action to foreclose its mechanic's lien; the Bakers cross-complained alleging five causes of action. Their first cause of action against Best for breach of contract alleges Best "wholly failed to perform" the remodeling contract. Their fourth and fifth causes of action against Best for intentional and negligent infliction of emotional distress are grounded on Best's "outrageous and flagrant conduct in not completing the rental units by the specified completion date." The third cause of action for fraud in the inducement alleges Best, Chatham and Williams fraudulently induced them to enter into the remodeling contract by falsely promising "that the rental units would be constructed in a good and workmanlike manner within six months and at the agreed price." The Bakers seek compensatory damages under the first and third causes of action, general damages and medical expenses under the fourth and fifth causes of action and punitive damages under the third and fourth causes of action.

Several days before trial the Bakers applied for a right to attach order and a writ of attachment against Best (Code Civ.Proc., § 484.010) ¹ and a corresponding temporary protective order. (§ 486.010.) The court issued the protective order (§ 486.050, subd. (a)) and later denied Best's ex parte application, opposed by the Bakers, to vacate the order. (§ 486.100.) The Bakers then filed papers in support of their attachment application. (See § 484.030.) Best filed opposing papers (§ 484.060, subd. (a)) in which it conceded an attachment was proper but contested the amount and items of property to be attached. The court issued a right to attach order and ordered the issuance of a writ of attachment (§ 484.090, subds. (a) and (b)) against certain real property of Best. Three months later Best, Chatham and Williams moved for partial summary judgment ² on election of remedies grounds. ³ (§ 437c, subd. (f).)

Discussion

"Broadly speaking, election of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts. Ordinarily a plaintiff need not elect, and cannot be compelled to elect, between inconsistent remedies during the course of trial prior to judgment. [Citations.] However, if a plaintiff has unequivocally and knowledgeably elected to proceed on one of the remedies he is pursuing, he may be barred recourse to the other. [Citation.]" (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039, 116 Cal.Rptr. 539; see also 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 112.) "The doctrine of election of remedies is but a specific application of the doctrine of equitable estoppel. [Citations.] The doctrine rests on the rationale that when plaintiff has pursued a remedy which is inconsistent with an alternative remedy and thereby causes the defendant substantial prejudice, plaintiff should be estopped from pursuing the alternative remedy." (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 137, 135 Cal.Rptr. 802.)

Courts and commentators have long recognized the harshness of the election of remedies doctrine and have for some time looked upon it with disfavor. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co., supra, 66 Cal.App.3d at p. 138, 135 Cal.Rptr. 802, and authorities cited; 2 Witkin, Cal.Procedure, supra, Actions, § 113, and authorities cited.) To mitigate the doctrine's effects, courts over the years have devised various ways of narrowing its application. Originally one could be held to an election of remedies by actions taken before filing suit, or by the act itself of filing suit. (2 Witkin, Cal.Procedure, supra, Actions, §§ 116-117.) Forty to forty-five years ago California courts adopted a more modern approach, which viewed the doctrine as based on equitable principles of estoppel. (Id., at §§ 113, 119.) Under this approach, a plaintiff will not be held to have elected between remedies unless he affirmatively pursues a particular remedy to defendant's disadvantage. (Id., at §§ 119-123, 128.) Even then, defendant will lose his election of remedies defense if he fails to raise it in a timely manner. (Roam v. Koop, supra, 41 Cal.App.3d at pp. 1041-1045, 116 Cal.Rptr. 539.) Other miscellaneous exceptions have also developed to limit the doctrine's applicability. (2 Witkin, Cal.Procedure, supra, Actions, §§ 124-127, 129.) The net effect of these developments has been to establish a trend in the law toward the ever greater restriction of the election of remedies doctrine.

One limitation on the doctrine applicable in this case is the requirement that the plaintiff seek inconsistent remedies in causes of action based on the same set of facts. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co., supra, 66 Cal.App.3d at p. 136, 135 Cal.Rptr. 802; Roam v. Koop, supra, 41 Cal.App.3d at p. 1039, 116 Cal.Rptr. 539; 2 Witkin, Cal.Procedure, supra, Actions, § 112, p. 981.) In Glendale Federal defendant developers argued plaintiff's obtaining a prejudgment writ of attachment on a breach of contract cause of action barred it from recovering damages for fraud in the inducement of the contract. (66 Cal.App.3d at pp. 135-136, 135 Cal.Rptr. 802.) The Glendale Federal court rejected the defendants' argument: "Here, as in Symcox [v. Zuk (1963) 221 Cal.App.2d 383, 391, 34 Cal.Rptr. 462], the cause of action for fraud was not inconsistent with the remedy for breach of contract and the operative facts giving rise to each cause of action are different. The contract cause of action was for breach of the agreement guaranteeing completion of the Window Hill improvements whereas the fraud cause of action was based on the false promise on behalf of Marina View that the loan funds would be expended solely for the Window Hill offsites. Thus, each cause of action arose out of different obligations and different operative facts." (66 Cal.App.3d at p. 137, 135 Cal.Rptr. 802.) In like manner, the Bakers' fraud in the inducement and breach of contract causes of action arise out of different obligations and different operative facts. Best, Chatham and Williams were obliged to deal honestly with the Bakers and to perform their contract with them. The fraud in the inducement of the remodeling contract allegedly perpetrated by Best, Chatham and Williams and Best's later breach violated those separate obligations and also involved separate acts at different points in time. Consequently, the court below erroneously applied the election of remedies doctrine against the Bakers' third cause of action. As a result of that error, the court improperly granted summary judgment against the Bakers on that cause of action.

As for the Bakers' first, fourth and fifth causes of action, we cannot determine from the record whether those actions are based on the same or different facts. To prevail on a summary judgment motion, it is def...