18
Stoiber, supra, 101 Cal.App.3d 903, had nothing to do with attorney fees. It arose
when a trial court sustained demurrers and granted motions for judgment on the
pleadings, to the end that all the tenant’s causes of action were stricken other than her one
cause of action for breach of the warranty of habitability. The Court of Appeal reversed,
and issued a writ of mandate to set aside its orders as to the tenant’s claims for nuisance,
intentional infliction of emotional distress, and constructive eviction. (Id. at p. 904). In
the words of the court: “[T]he tenant’s remedies against the landlord are not limited to
breach of the warranty of habitability and he may also plead tort actions.” (Id. at p. 929.)
In light of all of the above, we question how Prometheus can assert that “under
Perry, Fairchild and Stoiber, the plaintiff must choose between inconsistent remedies.”
Prometheus’s last argument against any fee award is that the lease contained
“three narrow attorney fee provisions that did not apply to the Hjelms’ noncontract
claims.” The argument is fatuous.
Paragraph 23 of the lease broadly provides for attorney fees to Prometheus if it
gives the tenant notice to terminate the lease for any reason and the tenants do not move
out. The clause broadly provides that the tenants “shall be responsible for all losses
suffered by management and displaced tenants who anticipated taking occupancy at the
end of the notice period, including attorney’s fees and costs.” Prometheus asserts, in
conclusory fashion, that this is not a case of a holdover tenancy and therefore the attorney
fee provision does not apply here.
To interpret this provision as Prometheus asserts is contrary to the express
language of section 1717, that where a contract provides for attorney fees to enforce the
contract, “that provision shall be construed as applying to the entire contract, unless each
party was represented by counsel in the negotiation and execution of the contract, and the
fact of that representation is specified in the contract.” (Civ. Code, § 1717, subd. (a).)
There is no dispute that the Hjelms were not represented by counsel, and had no
opportunity to negotiate the terms of the lease.
Perhaps recognizing the weakness of this argument, Prometheus then claims that
the attorney fees provision in paragraph 23 cannot apply because a claim involving a