Baker

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…