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with the case here, where the Hjelms did pursue both contract and tort claims.
Prometheus’s reliance on Perry is hard to understand. Its reliance on Fairchild is
astonishing.
In Fairchild, supra, 90 Cal.App.4th 919, a tenant was successful in suing his
landlord, but the trial court denied him attorney fees. The Court of Appeal reversed.
Doing so, this is how the court described the issue: “The landlord contends that the
tenants are not entitled to attorney’s fees under the lease because they prevailed on a tort
claim, not a contract claim. . . . But we conclude that the tenants are entitled to attorney’s
fees on a contract theory.
“There is ‘a common law implied warranty of habitability in residential leases in
California . . . .’ (Green v. Superior Court (1974) 10 Cal.3d 616, 619 (Green).) In the
present case, the tenants ‘did assert a contractual cause of action: breach of the implied
warranty of habitability.’ (Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1798.)
‘An action by a tenant alleging a breach of the warranty of habitability is an action on the
contract that authorizes the recovery of fees pursuant to an attorney fee provision in the
rental agreement.’ (9 Miller & Starr, Cal. Real Estate (2001 supp.) § 30:17, p. 383.)
“Further, ‘[w]hether an action is based on contract or tort depends upon the nature
of the right sued upon, not the form of the pleading or relief demanded. If based on
breach of promise it is contractual; if based on breach of a noncontractual duty it is
tortious. . . . If unclear the action will be considered based on contract rather than
tort. . . . [¶] In the final analysis we look to the pleading to determine the nature of
plaintiff’s claim.’ [Citations.]” (Fairchild, supra, at pp. 924–925.)
Three paragraphs later the court said this: “And, even assuming that the
habitability claim was based on more than one theory—contract, statutory, or tort—the
tenants would still be entitled to attorney’s fees on the contract theory. As one Court of
Appeal has explained in a similar situation: [¶] ‘ “[T]he same act may be both a breach
of contract and a tort. Even where there is a contractual relationship between parties, a
cause of action in tort . . . .” ’ ” Fairchild went on to discuss that Court of Appeal
opinion at length. That opinion was Perry. (Fairchild, supra, at pp. 925–927.)