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The lease was a standard Prometheus-drafted lease. The basic agreement was
seven pages long and, with various addenda, it totaled 24 pages. As discussed in detail
below, the lease (and one addendum) had three provisions allowing Prometheus to
recover attorney fees, all of them one-sided, allowing fees only to Prometheus.
In June 2011, the Hjelms moved into apartment 1720A. Fifteen months later, they
moved out, their apartment plagued by a bedbug infestation that Prometheus failed to
address, not to mention that there was raw sewage on the property.
In September 2012, the Hjelms filed suit against Prometheus. The operative first
amended complaint (complaint) alleged seven causes of action, styled as follows:
(1) negligence; (2) premises liability; (3) constructive eviction; (4) breach of warranty of
habitability; (5) negligent infliction of emotional distress; (6) breach of the covenant of
quiet enjoyment; and (7) nuisance. The complaint referred to Prometheus’s duty under
the lease to provide the Hjelms safe and habitable premises, illustrated, for example, by
the cause of action for breach of the covenant of quiet enjoyment, which specifically
alleged that “through the lease of the Premises, as well as implicit in Plaintiffs’ tenancy,”
the Hjelms were “entitled to quiet enjoyment of their tenancy as it is defined by Civil
Code § 1927.” The prayer sought damages and among other things “attorney fees
pursuant to contract and statute.”
Prometheus filed a general denial that included numerous affirmative defenses,
some relevant only to contract claims, illustrated by the fifteenth, which alleged that
“plaintiffs substantially and materially breached the contract complained of prior to
commencement of this action, which conduct extinguishes the right to maintain the
instant action.” The thirteenth affirmative defense alleged that the applicable statute of
limitations were Code of Civil Procedure sections 337 (contract) and 337.2 (breach of
written lease).
Prometheus filed two motions for summary adjudication on the issue of the
Hjelms’s entitlement to attorney fees. Both motions were denied, the trial court
concluding that Civil Code section 1717 (section 1717) applied, to render the attorney
fees provisions reciprocal should the Hjelms prevail at trial. Thus, for example, the