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contract it is ‘ “on [the] contract” ’ within the meaning of section 1717. [Citations].”
(Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455; Care Constr., Inc. v.
Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d 701, 706.)
The Hjelms Sued on a Contract
Prometheus’s first argument is that section 1717 did not apply because the Hjelms
“alleged no contract claims.” Prometheus is wrong.
Among other things, the Hjelms sued for breach of the warranty of habitability.
Such claim can be “a contract action with contract damages.” (See generally 12 Witkin,
Summary of Cal. Law. (10th ed. 2005) Real Property, § 627, p. 733; Fairchild v. Park
(2001) 90 Cal.App.4th 919, 927.)
Prometheus recognizes this principle, but attempts to distinguish it away, its
opening brief stating as follows: “Moreover, while a claim for breach of the warranty of
habitability or breach of covenant of quiet enjoyment may sound in contract, the facts
necessary to support such claims may also be pled in tort. (See Stoiber v. Honeychuck
(1980) 101 Cal.App.3d 903, 918–919 [‘ . . . assuming appropriate pleadings of fact, a
tenant may state a cause of action in tort against his landlord for damages resulting from a
breach of the implied warranty of habitability’]; see also Green v. Superior Court (1974)
10 Cal.3d 616, 619 [recognizing ‘a common law implied warranty of habitability in
residential leases in California . . .’].) Here, the Hjelms pled facts sounding in tort only
and they sought tort damages with respect to all seven of their claims, including Breach
of Warranty of Habitability and Breach of Covenant of Quiet Enjoyment. ([Citations]
[specifically seeking damages for ‘emotional distress’].)”
Prometheus’s attempt at distinction is myopic: the Hjelms’s claims were not “in
tort only.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281
persuasively shows why. There, in a demurrer case, the Court of Appeal summed up its
discussion—and its holding for plaintiffs—as follows: “Here, the complaint contains
causes of action for breach of the warranty of habitability in various forms—(1)
‘Violation of California Civil Code Section 1942.4’; (2) ‘Tortious Violation for Breach of
the Warranty of Habitability’; (3) ‘Intentional Infliction of Extreme Emotional Distress’;