Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Appeal from the Ninth Circuit Bankruptcy Appellate Panel Montali, Brandt, and Perris, Bankruptcy Judges, Presiding.
Before: C ANBY, THOMAS, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Cecilia Rodriguez and Leonardo Preciado appeal from a decision of the Bankruptcy Appellate Panel affirming the judgment of the bankruptcy court. The bankruptcy court ruled that appellee 2525 Ocean Park Blvd., LLC, is entitled to an allowed claim for breach under Cal. Civ.Code § 1951.2 even though it had previously attempted to invoke the remedy provided by Cal Civ.Code § 1951.4. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.
It is true that appellee originally pursued damages under § 1951.4, which provides a remedy that is "mutually exclusive" with that of § 1951.2. See 250 L.L. C. v. PhotoPoint Corp., 32 Cal.Rptr.3d 296, 300-01 (Cal.Ct.App.2005). The bankruptcy court found, however, and appellants do not contest, that the § 1951.4 remedy was unavailable to appellee under the lease. "California courts have made clear that a plaintiff's decision to pursue, even to a defense judgment, a theory that was not available to him or her at the time of suit will not bar subsequent pursuit of a viable alternative theory." Capogeannis v. Superior Court, 15 Cal.Rptr.2d 796, 805 (Cal.Ct.App.1993); see also Agar v. Winslow, 56 P. 422, 423 (Cal.1899). Because the § 1951.4 remedy was unavailable to appellee, the election of remedies doctrine does not bar it from pursuing the alternative remedy provided by § 1951.2.
AFFIRMED.