Inhabitability Suit Indeed Was “On The Contract” For 1717 Purposes.
SUMMER AMUSEMENT. BUG HUNTING. 1782. Isaac Cruikshank, artist. Library of Congress.
Plaintiffs/tenants sued landlord after having to vacate an apartment because of a bedbug infestation. They won a jury verdict, and then moved to recoup $326,475 in attorney’s fees under Civil Code section 1717. The trial court awarded all of the request, a result affirmed by the appellate court in Hjelm v. Prometheus Real Estate Group, Inc., Case No. A142723 (1st Dist., Div. 2 Sept. 9, 2016) (unpublished).
The lease had fees clauses encompassing a holdover tenancy provision/broad violations of use and broad indemnification costs clause all unilaterally in favor of landlord—but which are made reciprocal under section 1717. Landlord’s principal argument was that no contract claim was asserted by tenants. However, the breach of inhabitability claim is “on the contract” for purposes of section 1717. (Erlach v. Sierra Asset Servicing, LLC, 226 Cal.App.4th 1281, 1299 (2014).) Also, the constructive eviction claim was “on the contract.” (Beeman v. Burling, 216 Cal.App.3d 1586, 1608 (1990).) Nothing showed that tenants elected only tort remedies over the contract-based claims. Fee award affirmed.
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