Overall, the choice of remedies is the act of choosing between two or more simultaneous but inconsistent remedies based on the same facts. [1] Normally, an applicant does not have to choose inconsistent remedies during the trial proceedings, nor can he or she be forced to choose to do so. (Williams v. Marshall, 37 Cal. 2d 445, 457 [235 p.2d 372]; Thorson v. Western Development Corp., 251 Cal. App. 2d 206, 213-214 [59 Cal. Rptr.
299].) However, if an applicant has clearly and competently chosen to pursue one of the remedies he pursues, he or she may be prohibited from using the other. (Mansfield v. Pickwick Stages, 191 Cal. 129, 130-131 [215 p. 389].) Such a situation is mentioned in the doctrine of the choice of remedies. The choice of remedies doctrine constitutes an obstacle preventing an applicant from seeking an adversarial remedy because of his or her previous conduct or choice. In California, the doctrine is theorized on the principle of confiscation. [2] “Whenever a party entitled to assert two remedies brings a legal action for one of those remedies [41 Cal. App.3d 1040] or brings an action by pursuing such an appeal by obtaining an advantage over the other party, or if it has caused harm to the other party, it is presumed that: it has made an election for such a remedy and is not entitled to pursue another remedy for assert its right. (De Laval Pac. Co.
v. United C. & D. Co., 65 Cal. App. 584, 586 [224 p. 766]; Steiner v Rowley, 35 Cal. 2d 713, 720 [221 p.2d 9].) The choice between inconsistent remedies, which are authorized by law on the basis of the same facts, and its purpose is to prevent the double reparation of a single injustice. If the same act or omission constitutes a violation of this Chapter and applicable federal law, a person aggrieved by such conduct may bring an action for damages under this Chapter or federal Law, but not both. This choice of remedies does not apply to legal actions in which the appeal sought does not include pecuniary damages or to administrative actions. On appeal, Goffstein argued that immunity and the imposition of seizure were a binding choice to respond by means of the contract, thus preventing unauthorized recovery. In return, Acme, relying on Klinger v.
Modesto Fruit Co., Inc., 107 Cal. App. 97 [290 p. 127], argued that the choice of remedies defence had been dropped because it had not been filed prior to the appeal. Under the old English common law, a party had to make a choice of recourse at the time of filing the complaint. Most jurisdictions have now abandoned this requirement. Plaintiffs can now generally file initial pleadings for further remedies and do not have to choose a remedy until a judgment has been rendered on the defendant`s liability. In his first argument, Roam cites Symcox v. Zuk, 221 Cal.
App. 2d 383 [34 Cal. Rptr. 462]. In the present case, the argument that, where separate and independent pleas have been raised, each based on different primary rights, the application of the protective remedy in respect of one does not constitute a choice for the other. If there are independent means, each based on separate constituent elements, the applicant has the right to pursue them all to his satisfaction. In the present case, ten separate contracts were concluded over a period of approximately two years. Although they all concern the same general object, it can be assumed that each contains a distinct primary right and thus leads to a distinct and independent means. Although Roam may have had 10 independent pleas based on these contracts, it lost the advantage of their independence when it received an attachment order because the order for payment was not limited to some of the 10 contracts. [8] And as a general rule, an appellate court will not consider procedural flaws related to the appeals sought if an objection could have been raised but was not raised in the lower court.
(6 Witkin, Cal. Verfahren (2nd ed.) § 276, p. 4264.) In this case, Koop could have complied with the tortious plea (Estrada v. Alvarez, 38 Cal. 2d 386, 391 [240 p.2d 278]) or invoked doctrine as an affirmative defence. He did neither. In support of his theory that doctrine can be addressed for the first time in the appeal, he cites Acme Paper Co. v. Goffstein, 125 Cal.
App. 2d 175 [270 p.2d 505]. This case raised the doctrine of choice of remedies in a case similar to the one we have now, although it was not raised until the time of the appeal. We do not seek to distinguish Goffstein on the basis of his facts and doubt that such a result can be obtained legitimately or without a certain occasional tomorrow. Rather, an examination of this point of view shows that the result obtained will not withstand critical forensic analysis. [5] The doctrine of choice of remedies is only an extension of the general principles of equitable forfeiture and is based on a similar theory that inconsistent actions by the party will disadvantage its opponent to some extent. (City Bank of San Diego v. Ramage, 266 Cal. App. 2d 570, 588 [72 Cal.
Rptr. 273]; Mansfield v. Pickwick Stages, above, 191 Cal. 129, 131; Crittenden v. St. Hill, 34 Cal. App. 107, 110 [166 p. 1016].) Since this is a form of forfeiture, the doctrine of choice of remedies is an affirmative defence, which must generally be invoked in particular, unless it appears prima facie of the complaint.
(City Bank of San Diego v. Ramage, loc. cit., p. 588; Modoc Mineral & Oil Co. v. Cal-Vada Drilling etc. Co., 236 Cal. App.
2d 868 875 [46 Cal. Rptr. 508]; Karapetian v Carolan, 83 Cal. App. 2d 344, 346-347 [188 P.2d 809, 1 A.L.R.2d 1075]; 3 Witkin, California Procedure (2nd ed.) § 944, p. 2524; see 99 A.L.R.2d 1315 et seq.) In civil procedure law, the choice of remedies is the situation in which a successful party in a dispute must choose the means by which his damage is remedied. For example, if a court finds that the plaintiff`s paint was stolen by the defendant, the plaintiff has two options to recover the loss. The plaintiff may choose to receive either financial damages equal to the total value of the painting, or ask the court to order the return of the stolen property (plus a small amount of compensation for the suffering caused by his deprivation). However, the applicant cannot have both and therefore must make a choice between one or the other. In the Klinger case, no application for election was made during the process. The judgment was rendered against both the agents and the undisclosed client.
On appeal, the court stated: “If the request for election during the trial is not made by demurrer or by petition of the party for whom this doctrine is intended, it must be presumed that it has been lifted. Although a choice in the circumstances presented in this case may reasonably be required upon application and, if exercised, should constitute an obstacle to a subsequent attempt to hold the defendant liable to the other party, in the absence of a request or request for such an election, there does not appear to be a valid reason why each defendant, which otherwise should not be held liable. (107 Cal.App. at p. 104.) [3] Punitive damages are legally permissible in actions for breach of an obligation that does not result from a contract in which the defendant acted in a punitive, fraudulent or malicious manner. (Code Civ., § 3294.) Punitive damages may not be invoked in contractually justified actions. (Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn., 18 Cal.3d 1023, 1038 [96 Cal. Rptr. 338]; Entrepreneur, etc.
Assn. v. Cal. Comp. Ins. Co., 48 Cal. 2d 71, 77 [307 p.2d 626].) A fraud tort action that seeks punitive damages is incompatible with a lawsuit for the money it had and received. (Steiner v. Rowley, loc. cit., 35 Cal. 2d 713, 720.) [4a] Relying on pleas and offences, Roam brought simultaneous and contradictory appeals.
However, the mere recourse to contradictory pleas does not constitute a binding choice of remedies, since contradictory heads are admissible. (Steiner v. Rowley, loc. cit.) But Roam obtained a notice of seizure, which was only available as part of its contractual action. (Code Civ. Proc., § 537; Stowe vs Matson, 94 Cal. App. 2d 678, 683 [211 p.2d 591].) Obtaining a seizure was a positive step to pursue his contractual remedy. By filing the application, Koop was deprived of the use of his property and the plaintiff obtained an advantage over him. (Barrett vs. Hammer Builders, Inc., 195 Cal.
App. 2d 305, 316 [16 Cal. Rptr. 49].) The doctrine of choice of remedies is a doctrine of estoppel which cannot be pursued for the other remedy by a party who has two coexisting but inconsistent remedies and who chooses to pursue one remedy until a conclusion. Usually, this doctrine applies only if a party has chosen to seek a solution until its conclusion, and then attempts to pursue a subsequent claim of an incoherent second theory. Despite the involvement in Klinger, the court in Acme Paper Co. v. Goffstein was of the view that the defence had not been lifted and could be raised for the first time on appeal. The court distinguished Klinger on the ground that, in that case, there had been no positive conduct on the part of the plaintiff with respect to the amount of an election, whereas in the case currently pending before him, a seizure had been raised. The holding company was based on a statement in Klinger: “ If a representative or an undisclosed procuring entity jointly defends itself in a suit against them and the plaintiff`s conduct does not constitute a choice and the defendants allow a judgment to be rendered and registered against both without raising the issue of a choice by derepresentation, motion, demand or otherwise, the right to force an election is thus invoked by: and cannot be raised for the first time in the appeal.
(Klinger v.
