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by seeking to define or interpret its terms or to determine or enforce a party’s rights or
duties under the agreement, and (2) the agreement contains an attorney fees clause.”
Prometheus’s second sub-argument is that the Hjelms “Elected and Accepted
Distinctive Tort Remedies, so Their Action was Not ‘On a Contract’ Within the Meaning
of Section 1717.” Prometheus is wrong again.
The argument begins this way: “In addition to alleging tort claims only, the
Hjelms elected distinctive tort remedies; they sought, and were awarded, emotional
distress damages, further barring section 1717’s application here. (Perry v. Robertson
[1988] 201 Cal.App.3d at 335 (‘Perry’); Fairchild v. Park (2001) 90 Cal.App.4th 919,
924-925 (‘Fairchild’); Stoiber v. Honeychuck, supra, 101 Cal.App.3d at 929-930
(‘Stoiber’).)” This is a less than accurate description of the record.
While the Hjelms were in fact awarded emotional distress damages, this does not
mean they “elected distinctive tort remedies.” They “elected” nothing. As noted, the
Hjelms’s complaint alleged contract claims. The jury was instructed on contract claims.
The lawyers argued contract claims. And the jury in fact awarded the Hjelms economic
damages, not just damages for emotional distress.
Prometheus states that “the trial court instructed the jury as to negligence, but not
breach of contract. (6 RT 649:23-652:19.)” Had Prometheus read a few pages later in
the instructions, however, it would come upon the special instructions, which included
these:
“Every lease contains an implied covenant of quiet enjoyment where the landlord
promises . . . to allow the tenant to quiet enjoyment of the premises. If the defendant
Prometheus Real Estate Group Inc.’s act or omissions substantially interfered with
Christie Hjelm and Justin Hjelm’s right to use and enjoy the premises for the purposes
contemplated by the tenancy, the defendant, Prometheus Real Estate Group Inc., has
breached the covenant of quiet enjoyment.
“If defendant Prometheus Real Estate Group Inc.’s acts or omissions affected
Christie Hjelm and Justin Hjelm’s use or enjoyment of the property and the Hjelms were