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(4) ‘Negligent Infliction of Extreme Emotional Distress’; and (5) ‘Negligence: Violation
of Duty to Maintain Habitable Conditions.’ Based on the foregoing, we cannot say as a
matter of law that these causes of action are not viable.” (Erlach v. Sierra Asset
Servicing, LLC, supra, at p. 1299.) So, the warranty of habitability claim can take many
forms, as the Hjelms demonstrated here.
In sum, the claim for breach of warranty of habitability was on the contract. So,
too, the claim for constructive eviction. It, too, arises from the lease, as conceded by
Prometheus’s counsel below, conceding that apportionment under Proposition 51 was not
proper because constructive eviction is not a tort claim.
Beeman v. Burling (1990) 216 Cal.App.3d 1586 is instructive. There, a plaintiff
brought a wrongful eviction action under a housing ordinance, and was awarded
economic damages, emotional distress damages, and punitive damages. The court held
that the plaintiff was entitled to attorney fees under section 1717 because his action was
“fundamentally . . . based upon the lease.” (Id. at p. 1608; see also Bruckman v.
Parliament Escrow Corp. (1987) 190 Cal.App.3d 1051, 1059 [action was on a contract
even though it also contained negligence claims].)
In sum, courts have found claims to be “on a contract” in a variety of
circumstances extending beyond a direct breach of contract claim. (See, e.g., In re
Tobacco Cases I (2011) 193 Cal.App.4th 1591, 1601 [action for declaratory and
injunctive relief to enforce consent decree]; Kachlon v. Markowitz (2008)
168 Cal.App.4th 316, 347–348 [equitable action seeking declaratory and injunctive relief
and quiet title based on violations of the terms of a promissory note and deed of trust];
Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th
479, 490 [unlawful detainer action based on a lessee’s breach of covenants in a lease].)
Summing up in a lengthy exposition of the law, the court in Douglas E. Barnhart,
Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241–242 distilled the
following principle: “An action (or cause of action) is ‘on a contract’ for purposes of
section 1717 if (1) the action (or cause of action) ‘involves’ an agreement, in the sense
that the action (or cause of action) arises out of, is based upon, or relates to an agreement