16
“mental suffering and emotional distress $35,000
“Future noneconomic loss, including
“mental suffering and emotional distress $0
“Total Non-Economic Damages for Christie Hjelm: $35,000”
In sum and in short, the Hjelms sued on theories that included contract. The jury
found for the Hjelms on those theories, and that Prometheus’s breach or violation caused
damage. Those theories included constructive eviction. There is no doubt that is a
contract claim, as Prometheus’s own counsel acknowledged below, in the post instruction
pre-closing argument conference, where Prometheus was arguing, however belatedly, for
Proposition 51 apportionment. And Prometheus’s counsel said, “[w]e’re only asking for
a portion as to the tort causes of action. Constructive eviction is a contract claim. We’re
not asking for an apportionment on that.”
The three cases cited by Prometheus are not to the contrary—indeed, they support
the Hjelms.
Perry, supra, 201 Cal.App.3d 333, the primary case on which Prometheus relies,
was an action by Perry against her real estate broker and salespersons, claiming she
received inadequate compensation for the sale of her home due to their negligence in
drafting the written sales agreement. The complaint was in “a single count,” the court
noted, with allegations “adequate to tender both the tort and contract claims for relief.”
(Id. at p. 340–341.) Perry won and the trial court awarded her attorney fees. Defendants
appealed, and the Court of Appeal affirmed, ending its opinion with this: “The question
is whether plaintiff may pursue a breach of contract theory of remedy when defendants
have negligently failed to adequately perform a contractual undertaking. Such an action
is one to enforce the provisions of the contract. For the reasons given, we hold that when
the prevailing plaintiff in such an action has not elected a distinctive remedy in tort, such
an action may be, and here is, ‘on a contract’ within the meaning of section 1717.” (Id. at
p. 344.)
Prometheus’s reliance on the observation in the case that “Perry did not
pursue . . . damages for personal injuries, a characteristic tort remedy” has nothing to do