Churchill

MEMORANDUM *

On appeal, David Churchill challenges a jury instruction. We agree with Churchill that under Cal. Civ. Pro. § 1440 and Romano v. Rockwell Int’l, Inc., 14 Cal.4th 479 , 59 Cal.Rptr.2d 20 , 926 P.2d 1114, 1119 (1996), repudiation by Winter Chevrolet gave Churchill an election to sue for damages for the breach without continuing his performance, or else to continue his performance and sue for damages resulting from the threatened breach if and when it happened. Churchill conceded in his brief that the jury was correctly instructed on this point.

Although Churchill was entitled to make an election of remedies, the election had consequences upon which the judge instructed pursuant to Lucian v. All States Trucking Co., 116 Cal.App.3d 972 , 171 Cal. Rptr. 262 (1981). That case holds that “an employee who voluntarily leaves his employment before the calculation date is not entitled to receive it.” Id. at 264; see also Schachter v. Citigroup, Inc., 159 Cal. App.4th 10 , 70 Cal.Rptr.3d 776 (2008); *668 Hill v. Aetna, 130 Cal.App.3d 188 , 181 Cal.Rptr. 564 (1982); Chinn v. China Nat’l Aviation Corp., 138 Cal.App.2d 98 , 291 P.2d 91 (Cal.Dist.Ct.App.1955). The Chinn exception…

dissenting:

I would reverse and remand for a new trial because the jury was not properly instructed under California law on the doctrine of anticipatory repudiation and the consequences that flow therefrom. See Cal. Civ.Code § 1440; Romano v. Rockwell Int’l, Inc., 14 Cal.4th 479 , 59 Cal. Rptr.2d 20 , 926 P.2d 1114, 1119-21 (1996); Kelly v. Stamps.com Inc., 135 Cal.App.4th 1088 , 38 Cal.Rptr .3d 240, 252 (2005).