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Filed 9/9/16 Certified for publication 10/5/16 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHRISTIE HJELM, et al.

Plaintiffs and Respondents,

v.

PROMETHEUS REAL ESTATE GROUP, 

INC.,

Defendant and Appellant.

 A142723

 (San Mateo County

 Super. Ct. No. CIV516959)

Plaintiffs Christie and Justin Hjelm (when referred to collectively, the Hjelms) 

leased an apartment in a large complex from Prometheus Real Estate Group 

(Prometheus). Their apartment became infested with bedbugs, and the complex had an 

ongoing raw sewage problem, the upshot of which was that the Hjelms and their children 

were forced to leave. The Hjelms sued Prometheus, and a jury returned a verdict for 

them. The trial court then awarded the Hjelms their attorney fees based on Civil Code 

section 1717. We affirm.

BACKGROUND

In May 2011, the Hjelms signed a residential lease agreement, renting apartment 

1720A in the Chesapeake Point Apartments, San Mateo (the property). As Prometheus 

itself describes it, the Hjelms “entered into a one-year residential lease with Prometheus 

for the property . . . .” The Hjelms signed the lease without any negotiation, indeed, 

while they were still out of state in their former home, the lease having been mailed to 

them.
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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 
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second order held in pertinent part as follows: “While Defendant argues at length that the 

multiple attorney’s fees provisions contained in the parties’ written lease are applicable 

only in specific circumstances, Plaintiffs are correct in pointing out that these 

circumstances cover nearly every situation in which the landlord would be aggrieved. 

There is no reciprocal remedy for any situation in which the tenant is the injured party. 

[¶] The Court notes that Paragraph 30 of the lease, which contains an attorney’s fee 

provision, contains this language: ‘Resident(s) shall further indemnify, defend and hold 

harmless Management from and against all claims arising from any breach of default in 

the performance of any obligation on Resident(s) part to be performed under the terms of 

the Rental Agreement.’ Such a one-sided attorney’s fee provision is in violation of Civil 

Code § 1717(a). Trope v. Katz (1995) 11 Cal.4th 274, 285.”

The case proceeded to jury trial, with the Honorable Joseph Bergeron presiding. 

Trial began on March 25, 2014, with testimony taken over eight days. On April 4, the 

jury returned a verdict for the Hjelms on all counts, awarding economic damage to the 

Hjelms in the amount of $11,652; non-economic damage to Christine Hjelm of $35,000; 

and non-economic damage to Justin Hjelm of $25,000. Prometheus did not ask for any 

clarification of the damages.

Judge Bergeron entered judgment on April 11, and the Hjelms gave notice of entry 

on April 14.

On April 25, Prometheus filed a notice of intention to move for new trial. Judge 

Bergeron denied it by order of June 12.

Meanwhile, on April 14, the Hjelms filed a motion for attorney fees. The original 

moving papers totaled some 76 pages, including a lengthy declaration and a supplemental 

declaration from the Hjelms’s attorney supporting the amount sought. Prometheus filed 

lengthy opposition, and the Hjelms a reply. The motion came on for hearing on June 12, 

following which Judge Bergeron permitted Prometheus to file a supplemental brief 

concerning a new case it had cited at the hearing, addressing an issue of apportionment, a

brief that was filed.
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Meanwhile, following the June 12 hearing, three minute orders were entered that

day. One denied a new trial. Another, that pertinent here, ordered that “Plaintiff’s 

Motion for an Order, Awarding Reasonable Attorney’s Fees . . . [is] GRANTED. [¶] 

Amount of attorneys fees to be determined after further briefing by counsel.”

On June 30, Judge Bergeron filed two formal orders, one denying Prometheus’s

motion to tax costs, the other denying Prometheus’s motion for new trial. He also filed a 

final judgment after verdict which, as pertinent here, recited that he “granted [the 

Hjelms’s] motion for an order awarding reasonable attorney’s fees in the amount of 

$326,475.00 The court finds that the amount of fees requested is reasonable. Therefore, 

[the Hjelms] are awarded $326,475.00 in attorney’s fees.”

On August 11, Prometheus filed its notice of appeal.

DISCUSSION

Introduction

Prometheus has filed a 64-page appellant’s opening brief. It has two arguments. 

The first, comprising some 70 percent of the argument, is that the attorney fee award 

“was incorrect and should be reversed.” The second is that the “underlying verdict 

should be reversed.” Since the second argument, if successful, would render the attorney 

fee award—and the first argument—moot, we begin with it. And conclude it cannot 

succeed—the appeal as to the verdict is untimely, not to mention premised on a factual 

representation in utter disregard of the rules of appellate procedure.

No Appeal of the Verdict Can Succeed

As noted above, judgment on the jury verdict was entered on April 11. Notice of 

entry was served on April 11 and filed on April 14. So, under the general rule, any 

appeal would have to be filed within sixty days. (Cal. Rules of Court, rule 8.104.) 

However, on April 25, Prometheus moved for a new trial. And, as noted, Judge Bergeron 

denied it by minute order of June 12. An order denying new trial was approved by

Prometheus’s counsel on June 24 and filed on June 30. Thus California Rules of Court, 

rule 8.108(b)(1)(B) governed the time to appeal: “If any party serves and files a valid 

notice of intention to move for a new trial, the following extensions of time apply: [¶] 
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(1) If the motion for a new trial is denied, the time to appeal from the judgment is 

extended for all parties until the earliest of: [¶] (A) 30 days after the superior court clerk 

or a party serves an order denying the motion or a notice of entry of that order (rule 

8.108, subd. (b)(1)(A)); [¶] (B) 30 days after denial of the motion by operation of law 

(id., subd. (b)(1)(B)).” Thus, the time to appeal expired on July 30.

On June 30, Judge Bergeron also entered a new judgment that restated the denial 

of the motion for new trial and awarded the Hjelms attorney fees.

Prometheus filed its notice of appeal August 11. That appeal was timely to attack 

the attorney fee award. But not the verdict. And Judge Bergeron’s second judgment 

does not help Prometheus.

Torres v. City of San Diego (2007) 154 Cal.App.4th 214 (Torres) is on point. And 

dispositive. There, city retirement board members obtained summary judgment on their 

claims the city had to pay for their defense in an action against them filed by the city 

attorney. The city filed a late notice of appeal, and the Court of Appeal dismissed it. The 

trial court later issued an order awarding attorney fees. The city appealed again, which 

appeal included an attack on the summary judgment. The Court of Appeal dismissed the 

appeal to the extent it concerned the summary judgment. Discussing the effect of a 

second judgment, the court began by noting that “ ‘The effect of an amended judgment 

on the appeal time period depends on whether the amendment substantially changes the 

judgment or, instead, simply corrects a clerical error.’ ” (Id. at p. 222, quoting Eisenberg 

et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56, pp. 

3-24 to 3-25.) And the court concluded, “It is well settled, however, that ‘[w]here the 

judgment is modified merely to add costs, attorney fees and interest, the original 

judgment is not substantially changed and the time to appeal it is therefore not 

affected.’ ” (Ibid.; accord, Laraway v. Pasadena Unified School Dist. (2002) 

98 Cal.App.4th 579, 583.) 

Dakota Payphone, LLC v. Alcarez (2011) 192 Cal.App.4th 493, 504–505, 

discusses Torres and its holding at length: 
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“In Torres, supra, 154 Cal.App.4th 214, the issue was whether the amendment of 

the judgment to include an amount for attorney fees and costs was a substantial 

amendment, enabling the court to consider the propriety of granting summary judgment. 

(Id. at p. 221.) Again citing The Rutter Group treatise on civil appeals and writs, the 

Torres court concluded that there is no substantial modification to a judgment when it is 

merely amended to add costs, attorney fees and interest. (Torres, supra, 154 Cal.App.4th 

at p. 222.) . . . . The cases that have developed this rule with respect to attorney fees and 

interest appear to find ultimate support for their position in the line of cases that hold that 

postjudgment awards of attorney fees, costs and interest are separately appealable matters 

collateral to the actual judgment if they are not included therein. (See Robinson v. City of 

Yucaipa (1994) 28 Cal.App.4th 1506, 1517–1518 [Fourth Dist., Div. Two]; Grant v. List 

& Lathrop (1992) 2 Cal.App.4th 993, 996–998; Norman I. Krug Real Estate Investments, 

Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) In light of these rulings and the line of 

cases that they represent, it makes sense to conclude that a separately appealable order 

after final judgment does not substantially modify the judgment itself for purposes of 

computing the time in which to file a notice of appeal. Any problem the parties might 

have with the amendment can be pursued through a separate appeal of the postjudgment

order.”

In sum, to the extent the appeal sought to attack the verdict, it was too late. But 

even if it were not, we would refuse to consider it, because Prometheus’s brief violates 

settled rules of appellate procedure.

To put the issue in context, Prometheus’s brief statement of facts refers to the 

Hjelms’s “contention that their apartment . . . was uninhabitable,” ignoring, of course, all 

the evidence in the case supporting the facts of the bedbug infestation. Prometheus’s 

brief then goes on to discuss the companies it hired to address the problem, and on which 

it relied, ignoring, along the way, just what Prometheus’s own responsibility was—and 

how it was not met.

And as to the raw sewage issue, this is how Prometheus’s brief describes it: 

“Another issue at trial was the Hjelms’ complaint of sewage in the common area behind 
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their apartment. [Citations.] Ms. Hjelm testified that she and her husband had reported 

the sewage issue to Prometheus, but neither she nor her husband provided a written 

complaint. [Citation.] She further testified that Prometheus scheduled a time to fix the 

sewer line and that its maintenance employees responded to her complaints, although 

ineffectively in her opinion. [Citation [asserting that Prometheus’s maintenance 

employees ‘would . . . use little tools, but not fix anything’].] The evidence further 

showed that Prometheus was seeking a long-term solution for repairing the sewer line 

[citation], but the issue was not resolved during the Hjelms’ tenancy. [Citation.]”

Then, in its argument asserting “there was no evidence that Prometheus breached 

the standard of care applicable to property managers,” Prometheus fundamentally argues 

that the Hjelms provided no expert witness, at least not one with the required 

qualifications. As Prometheus sums up at one point, “[t]hus, while Dr. Kaae’s testimony 

may have been relevant to the standard of care applicable to professionals in the pest 

control industry, it was not relevant to the property management industry.” Prometheus 

says the same thing about the sewer line, and then sums up by reference to its expert, 

who, it claims, provided the “only competent expert testimony on the subject of property 

management.”

Prometheus’s argument has several fundamental flaws.

To begin with, Prometheus may be content to call itself a property manager. The 

fact is, it signed the lease.

Second, Prometheus cites nothing supporting the proposition that one needs expert 

testimony to support a claim that bedbug infestation and/or raw sewage on the property 

may violate the warranty of habitability or the covenant of quiet enjoyment. Put 

otherwise, is that not something that might be within the knowledge of an average juror?

Third, and most fundamentally, Prometheus’s brief ignores all the evidence—and

much there was in the eight-day trial—about prior complaints about bedbugs and about 

the lack of training Prometheus gave to its employees about how to address the issue. A 

few illustrations should suffice.
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Prometheus’s employee Jennifer Lau testified that the tenants of 1732A made 

several complaints about bedbugs. Terminex employee Joel Pangilinan testified that the 

1732A bedbug infestation was “severe.”

The Hjelms’s expert on bedbugs, Dr. Richard Kaae, confirmed that Prometheus 

had not followed its own bedbug policy in this case—indeed, that its bedbug policy was 

inadequate, even if it had been followed. Because bedbug detection is so difficult, it 

should not be left to Prometheus’s untrained maintenance crew.

The evidence also established that Prometheus failed to adequately train their 

management personnel, and that there was such significant turnover that new employees 

often did not even have the ability to consult with their predecessors. Kevin Song, the 

property manager at the complex in August 2012, testified that he received very little 

training or support from management. When he began his job, he learned that one of the 

buildings had a bedbug infestation that had not been addressed for over a year. He had 

no prior experience dealing with bedbugs, and was unaware of Prometheus’s bedbug 

policy. 

Multiple witnesses testified to observing the raw sewage on the property behind 

the apartment buildings. Lau testified that she called for support to clean up raw sewage 

upon seeing toilet paper floating up onto the property grounds, and cleaned it up herself 

on at least one occasion. Song said that Prometheus just fixed the sewage in a 

“patchwork” way. All this was against the background that Prometheus’s own expert, 

David Saldivar, conceded that raw sewage is a public health and safety emergency.

None of this is mentioned in Prometheus’s brief, which recites the facts favorable 

to it. Such conduct is “not to be condoned,” as we said in In re Marriage of Davenport 

(2011) 194 Cal.App.4th 1507, 1530–1531, going on to explain why: 

“California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant’s 

opening brief shall ‘[p]rovide a summary of the significant facts . . . .’ And the leading 

California appellate practice guide instructs about this: ‘Before addressing the legal 

issues, your brief should accurately and fairly state the critical facts (including the 

evidence), free of bias, and likewise as to the applicable law. [¶] Misstatements, 
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misrepresentations and/or material omissions of the relevant facts or law can instantly 

“undo” an otherwise effective brief, waiving issues and arguments; it will certainly cast 

doubt on your credibility, may draw sanctions [citation], and may well cause you to lose 

the case!’ (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter 

Group 2010) ¶ 9:27, p. 9-8, italics omitted.) [Prometheus’s] brief . . . ignores such 

instruction.

“[The] brief also ignores the precept that all evidence must be viewed most 

favorably to [the Hjelms] and in support of the [verdict]. (Nestle v. City of Santa Monica

(1972) 6 Cal.3d 920, 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 

881.) . . . .

“What [Prometheus] attempts here is merely to reargue the ‘facts’ as [it] would 

have them, an argumentative presentation that not only violates the rules noted above, but 

also disregards the admonition that [it] is not to ‘merely reassert [its] position at . . . trial.’ 

(Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687; accord, Albaugh 

v. Mt. Shasta Power Corp. (1937) 9 Cal.2d 751, 773.) In sum, [Prometheus’s] brief 

manifests a treatment of the record that disregards the most fundamental rules of 

appellate review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 365, 368, 

421–424, pp. 425–426.) As Justice Mosk well put it, such ‘factual presentation is but an 

attempt to reargue on appeal those factual issues decided adversely to it at the trial level, 

contrary to established precepts of appellate review. As such, it is doomed to fail.’ 

(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398–399.)”

And fail it does, as we deem the argument waived. (See Schmidlin v. City of Palo 

Alto (2007) 157 Cal.App.4th 728, 738 [“Where a party presents only facts and inferences 

favorable to his or her position, ‘the contention that the findings are not supported by 

substantial evidence may be deemed waived’ ”]; Nwosu v. Uba (2004) 122 Cal.App.4th 

1229, 1247.)
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The Attorney Fee Award Was Proper

Background and Introduction to the Issue

As mentioned, two different provisions in the lease provided for attorney fees, 

paragraph 23 and 30, as follows:

Paragraph 23: “Resident(s) agrees that if they fail to vacate past the ending date of 

a proper notice to terminate by either party, [sic] shall become a holdover tenancy 

commencing with the first day after the expiration of the notice period, and that 

Resident(s) 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.”

Paragraph 30: . . . “This Agreement is made on the express condition that 

Management is to be free from all liability or loss caused by Resident(s), or Resident(s) 

guests’, agents’ or invitees’, improper, negligent or intentional acts or 

omissions . . . . Resident(s) hereby covenants and agrees to indemnify, hold harmless, and 

defend Management against all claims, losses or liabilities . . . by Resident(s) or 

Resident(s) agents or invitees, unless such claim, loss or liability is solely as a result of 

Management’s gross negligence or willful misconduct. Such indemnification shall 

include and apply to attorney’s fees, investigator costs, and other costs actually incurred 

by Management. Resident(s) shall further indemnify, defend and hold harmless 

Management from and against any and all claims arising from any breach or default in 

the performance of any obligation on Resident(s) part to be performed under the terms of 

this Rental Agreement.”

The mold addendum also had a fee provision: “Resident agrees to defend, 

indemnify and hold harmless Management . . . from claims, liabilities, losses, damages 

and expenses (including attorneys’ fees), that they incur that are related to the Resident’s 

breach of the Resident’s obligations to Management.”

In light of these provisions giving Prometheus the right to recover attorney fees if 

it were to sue the Hjelms, the Hjelms sought attorney fees under section 1717. Judge 

Bergeron agreed, and awarded the Hjelms fees.
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Prometheus appeals, its fundamental argument being that section 1717 does not 

apply, an argument with three sub-parts, described by Prometheus as follows:

“(1) The Hjelms asserted no contract claims, so section 1717 did not apply. . . .

“(2) The Hjelms elected—and accepted—a distinctive tort remedy (i.e., emotional 

distress damages), so their action was not ‘on a contract’ under section 1717. . . .

“(3) The Lease contained three narrow attorney fee provisions that did not apply 

to the Hjelms’ noncontract claims.”

Section 1717 and Its Application

Section 1717 provides in pertinent part: “In any action on a contract, where the 

contract specifically provides that attorney’s fees and costs, which are incurred to enforce 

that contract, shall be awarded either to one of the parties or to the prevailing party, then 

the party who is determined to be the party prevailing on the contract, whether he or she 

is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees 

in addition to other costs.” (§ 1717, subd. (a).)

The primary purpose of section 1717 is “to establish mutuality of remedy when a 

contractual provision makes recovery of attorneys fees available to only one party, and to 

prevent the oppressive use of one-sided attorneys fee provisions.” (Trope v. Katz, supra, 

11 Cal.4th at p. 285; Santisas v. Goodin (1998) 17 Cal.4th 599, 610.) The section

“reflects legislative intent that equitable considerations must prevail over both the 

bargaining power of the parties and the technical rules of contractual construction.” 

(International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 223–224.) So, to achieve its 

goal, section 1717 “ ‘generally must apply in favor of the party prevailing on a contract 

claim whenever that party would have been liable under the contract for attorney fees had 

the other party prevailed.’ ” (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 

1113–1114; accord, Santisas, supra, at p. 611.) In short, section 1717 was enacted to 

“avoid the perceived unfairness of one-sided attorney fee provisions.” (International 

Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1182.)

Finally, and fundamentally, “California courts liberally construe the term ‘ “ ‘on a 

contract’ ” ’ as used within section 1717. [Citation.] As long as the action ‘involve[s]’ a 
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contract it is ‘ “on [the] contract” ’ within the meaning of section 1717. [Citations].” 

(Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455; Care Constr., Inc. v. 

Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d 701, 706.)

The Hjelms Sued on a Contract

Prometheus’s first argument is that section 1717 did not apply because the Hjelms 

“alleged no contract claims.” Prometheus is wrong.

Among other things, the Hjelms sued for breach of the warranty of habitability. 

Such claim can be “a contract action with contract damages.” (See generally 12 Witkin, 

Summary of Cal. Law. (10th ed. 2005) Real Property, § 627, p. 733; Fairchild v. Park 

(2001) 90 Cal.App.4th 919, 927.)

Prometheus recognizes this principle, but attempts to distinguish it away, its 

opening brief stating as follows: “Moreover, while a claim for breach of the warranty of 

habitability or breach of covenant of quiet enjoyment may sound in contract, the facts 

necessary to support such claims may also be pled in tort. (See Stoiber v. Honeychuck 

(1980) 101 Cal.App.3d 903, 918–919 [‘ . . . assuming appropriate pleadings of fact, a 

tenant may state a cause of action in tort against his landlord for damages resulting from a 

breach of the implied warranty of habitability’]; see also Green v. Superior Court (1974) 

10 Cal.3d 616, 619 [recognizing ‘a common law implied warranty of habitability in 

residential leases in California . . .’].) Here, the Hjelms pled facts sounding in tort only 

and they sought tort damages with respect to all seven of their claims, including Breach 

of Warranty of Habitability and Breach of Covenant of Quiet Enjoyment. ([Citations] 

[specifically seeking damages for ‘emotional distress’].)”

Prometheus’s attempt at distinction is myopic: the Hjelms’s claims were not “in 

tort only.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281 

persuasively shows why. There, in a demurrer case, the Court of Appeal summed up its 

discussion—and its holding for plaintiffs—as follows: “Here, the complaint contains 

causes of action for breach of the warranty of habitability in various forms—(1) 

‘Violation of California Civil Code Section 1942.4’; (2) ‘Tortious Violation for Breach of 

the Warranty of Habitability’; (3) ‘Intentional Infliction of Extreme Emotional Distress’; 
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(4) ‘Negligent Infliction of Extreme Emotional Distress’; and (5) ‘Negligence: Violation 

of Duty to Maintain Habitable Conditions.’ Based on the foregoing, we cannot say as a 

matter of law that these causes of action are not viable.” (Erlach v. Sierra Asset 

Servicing, LLC, supra, at p. 1299.) So, the warranty of habitability claim can take many 

forms, as the Hjelms demonstrated here.

In sum, the claim for breach of warranty of habitability was on the contract. So, 

too, the claim for constructive eviction. It, too, arises from the lease, as conceded by 

Prometheus’s counsel below, conceding that apportionment under Proposition 51 was not 

proper because constructive eviction is not a tort claim.

Beeman v. Burling (1990) 216 Cal.App.3d 1586 is instructive. There, a plaintiff 

brought a wrongful eviction action under a housing ordinance, and was awarded 

economic damages, emotional distress damages, and punitive damages. The court held 

that the plaintiff was entitled to attorney fees under section 1717 because his action was 

“fundamentally . . . based upon the lease.” (Id. at p. 1608; see also Bruckman v. 

Parliament Escrow Corp. (1987) 190 Cal.App.3d 1051, 1059 [action was on a contract 

even though it also contained negligence claims].)

In sum, courts have found claims to be “on a contract” in a variety of 

circumstances extending beyond a direct breach of contract claim. (See, e.g., In re 

Tobacco Cases I (2011) 193 Cal.App.4th 1591, 1601 [action for declaratory and 

injunctive relief to enforce consent decree]; Kachlon v. Markowitz (2008) 

168 Cal.App.4th 316, 347–348 [equitable action seeking declaratory and injunctive relief 

and quiet title based on violations of the terms of a promissory note and deed of trust]; 

Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 

479, 490 [unlawful detainer action based on a lessee’s breach of covenants in a lease].)

Summing up in a lengthy exposition of the law, the court in Douglas E. Barnhart, 

Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241–242 distilled the 

following principle: “An action (or cause of action) is ‘on a contract’ for purposes of 

section 1717 if (1) the action (or cause of action) ‘involves’ an agreement, in the sense 

that the action (or cause of action) arises out of, is based upon, or relates to an agreement 
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by seeking to define or interpret its terms or to determine or enforce a party’s rights or 

duties under the agreement, and (2) the agreement contains an attorney fees clause.”

Prometheus’s second sub-argument is that the Hjelms “Elected and Accepted 

Distinctive Tort Remedies, so Their Action was Not ‘On a Contract’ Within the Meaning 

of Section 1717.” Prometheus is wrong again.

The argument begins this way: “In addition to alleging tort claims only, the 

Hjelms elected distinctive tort remedies; they sought, and were awarded, emotional 

distress damages, further barring section 1717’s application here. (Perry v. Robertson

[1988] 201 Cal.App.3d at 335 (‘Perry’); Fairchild v. Park (2001) 90 Cal.App.4th 919, 

924-925 (‘Fairchild’); Stoiber v. Honeychuck, supra, 101 Cal.App.3d at 929-930 

(‘Stoiber’).)” This is a less than accurate description of the record.

While the Hjelms were in fact awarded emotional distress damages, this does not 

mean they “elected distinctive tort remedies.” They “elected” nothing. As noted, the 

Hjelms’s complaint alleged contract claims. The jury was instructed on contract claims. 

The lawyers argued contract claims. And the jury in fact awarded the Hjelms economic 

damages, not just damages for emotional distress.

Prometheus states that “the trial court instructed the jury as to negligence, but not 

breach of contract. (6 RT 649:23-652:19.)” Had Prometheus read a few pages later in

the instructions, however, it would come upon the special instructions, which included 

these:

“Every lease contains an implied covenant of quiet enjoyment where the landlord 

promises . . . to allow the tenant to quiet enjoyment of the premises. If the defendant 

Prometheus Real Estate Group Inc.’s act or omissions substantially interfered with 

Christie Hjelm and Justin Hjelm’s right to use and enjoy the premises for the purposes 

contemplated by the tenancy, the defendant, Prometheus Real Estate Group Inc., has 

breached the covenant of quiet enjoyment.

“If defendant Prometheus Real Estate Group Inc.’s acts or omissions affected 

Christie Hjelm and Justin Hjelm’s use or enjoyment of the property and the Hjelms were 
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compelled to vacate, there is a constructive eviction and Christie Hjelm and Justin Hjelm 

are not liable for the remaining portion of rent under the lease. [¶] . . . [¶]

“Under the implied warranty of habitability in a residential lease, the defendant, 

Prometheus Real Estate Group Inc., promised that premises leased to Christie Hjelm and 

Justin Hjelm . . . would be maintained in a habitable state for the duration of the lease. 

Defendant, Prometheus Real Estate Group Inc., was required to maintain a building, 

grounds, and all area of the—all area under its control clean, sanitary, and free from all 

accumulations of debris, filth, rubbish, garbage, rodents, and vermin. [¶] . . . [¶]

“If you decide that Christie Hjelm and Justin Hjelm have proven their claim 

against Prometheus Real Estate Group, you must decide how much money will 

reasonably compensate Christie Hjelm and Justin Hjelm for the harm. This 

compensation is called damages. The amount of damages must include an award for 

each item of harm that was caused by Prometheus Real Estate Group Inc.’s wrongful

conduct, even if that particular harm could not have been anticipated.

“Christie Hjelm and Justin Hjelm do not have to prove the exact amount of 

damages that will provide reasonable compensation for the harm; however, you must not 

speculate or guess in awarding damages. The damages claimed by Christie Hjelm and 

Justin Hjelm for the harm caused by Prometheus Real Estate Group fall into two 

categories called economic damages and noneconomic damages. You will be asked on 

the verdict form to state the two categories of damages separately.

“The following are the items of economic damages claimed by Christie Hjelm and 

Justin Hjelm; property damage; moving expenses; and lost earnings. [¶] . . . [¶]

“Christie Hjelm and Justin Hjelm seek damages from Prometheus Real Estate 

Group Inc. under more than one legal theory; however, each item of damages may be 

awarded only once regardless of the number of legal theories alleged. You will be asked 

to decide whether Prometheus Real Estate Group is liable to Christie Hjelm and Justin 

Hjelm under the following reasonable theories; negligence; premises liability; 

constructive eviction; breach of the implied warranty of habitability; negligent infliction 

of emotional distress; breach of the covenant of quiet enjoyment; nuisance.
16

“Economic damages are recovered [sic: recoverable] under the following legal 

theories[:] negligence; premises liability; constructive eviction; breach of the implied 

warranty of habitability; breach of the covenant of quiet enjoyment.

“Noneconomic damages are recovered [sic: recoverable] under the following 

legal theories[:] negligence; premises liability; constructive eviction; breach of [the]

implied warranty of habitability; negligent infliction of emotional distress; breach of the 

covenant of quiet enjoyment; and nuisance.” 

The jury verdict included findings for the Hjelms on multiple theories, including 

their claims for constructive eviction, breach of the warranty of habitability, and breach 

of the covenant of quiet enjoyment. And the jury answered “[y]es,” the Hjelms were 

damaged under each theory, in answers to questions B3, C3, and E3. 

The penultimate page of the verdict reads as follows:

“DAMAGES

“If Christie Hjelm and Justin Hjelm have proved any damages, then please 

proceed below. [¶] . . . [¶]

“If you answered ‘YES’ to any of the following questions: Question No. A.4, B.3, 

C.3, E.3 or G.4, please answer the following section:

“1. What are Christie Hjelm and Justin Hjelm’s total economic damages?

“Economic loss

“Property damage and loss $6,965

“Moving expenses $2,687

“Lost earnings $600

“Security deposit $1,400

“Total Economic Damages: $11,652

“If you answered ‘YES’ to any of the following questions: Question No. A.4, B.3, 

C.3, D.3, D.4, E.3, F.5, please answer the following section:

“2. What are Christie Hjelm’s total non-economic damages?

“Non-economic loss for Christie Hjelm

“Past noneconomic loss, including
17

“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 
18

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.)
19

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 
20

holdover tenancy—that is, an unlawful detainer action—is a tort claim that it is beyond

the reach of section 1717. Prometheus is wrong again, as shown, for example, by 

Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc., supra, 158 Cal.App.4th 

479, holding that an unlawful detainer action based upon an “alleged breach of the lease 

covenant concerning use of the premises during an unexpired term” was a contract action 

for purposes of section 1717. (Id. at p. 488.)

The broad attorney fees provision in paragraph 23 does not restrict fees only to 

claims arising due to a holdover after expiration of the lease. To the contrary, it applies 

to virtually any situation under which Prometheus seeks to take action against its tenants. 

So, for example, under this provision Prometheus could give notice and deem a tenant a 

holdover for, among other things, nonpayment of rent, subletting, having a pet, causing a 

disturbance—indeed, any minor violation of the lease. All that Prometheus would want 

under the lease are possession and money. And it has given itself the right to collect 

attorney fees in the pursuit of both. Section 1717 applies to give the Hjelms equal rights. 

Prometheus Has Not Demonstrated That the Fee Award Should Be Reduced

Prometheus’s next argument is that the fee award “should be reduced, as the trial 

court offered no reasoning for its award.” Prometheus also suggests a 0.163 multiplier, 

based on the proportion of the economic loss to the total damage award. We are not 

persuaded.

We set forth the applicable law in Calvo Fisher & Jacob LLP v. Lujan (2015) 

234 Cal.App.4th 608, 619–620:

“We have on many occasions set out the law and the standard of review when the 

issue is the reasonableness of attorney fees awarded, most recently in Syers Properties 

III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 697–698:

“ ‘The abuse of discretion standard governs our review of the trial court’s 

determination of a reasonable attorney fee. [Citations.]

“ ‘ “Under the lodestar method, attorney fees are calculated by first multiplying 

the number of hours reasonably expended on the litigation by a reasonable hourly rate of 

compensation. [Citations.]” ’
21

“ ‘Our Supreme Court has recognized that the lodestar is the basic fee for 

comparable legal services in the community and that it may be adjusted by the court 

based on a number of factors in order “to fix a fee at the fair market value for the 

particular action. . . . ‘[T]he Legislature appears to have endorsed the [lodestar 

adjustment] method of calculating fees, except in certain limited situations.’ [Citation.] 

When the Legislature has determined that the lodestar adjustment approach is not 

appropriate, it has expressly so stated.” [Citations.] . . . Here, as appropriate in this type 

of case, counsel were compensated based on the lodestar calculated by the court, without 

adjustment.’ ”

Here, as noted, the Hjelms’s motion was supported by detailed declarations from 

their counsel that included all of the actual time and expense records in the case. The 

motion was based on a lodestar analysis with no multiplier, and with an hourly rate that 

was below market rate for an attorney of counsel’s experience. (See Heritage Pacific 

Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) In short, the Hjelms 

produced substantial—and unrebutted—evidence of the amount of hours spent by their 

counsel. Judge Bergeron, who had been involved with the case almost from inception, 

determined that the fees claimed based on that evidence were “reasonable.” He was in 

the best position to determine that, a determination within his discretion. (See PLCM 

Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 [hourly rate]; Syers Properties III, 

Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698 [number of hours].) We can reverse only 

if Prometheus establishes an abuse of that discretion. (Chacon v. Litke (2010) 

181 Cal.App.4th 1234, 1258.) It has not.

To the extent Prometheus argues that Judge Bergeron did not apportion fee, settled 

law is contrary: “Once a trial court determines entitlement to an award of attorney fees, 

apportionment of that award rests within the court’s sound discretion.” (Carver v. 

Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 505.) And the burden is on 

Prometheus “to establish that discretion was clearly abused and a miscarriage of justice 

resulted.” (Carver, supra, at p. 505.) Prometheus ignores this law—and the record, 

where the issues were “inextricably intertwined.”
22

Many cases address the issue of attorney fees in the context where the claims are 

“so intertwined as to make it impracticable, if not impossible, to separate the attorneys’ 

time, exemplified by Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 

208 Cal.App.4th 286 (Maxim). Maxim arose when a construction worker sued Maxim, a 

crane company, for personal injuries arising from a worksite incident. Maxim filed a 

cross-complaint against the injured worker’s employer, Tilbury, seeking indemnity. The 

cross-complaint failed, as the trial court enforced an unfavorable choice-of-law provision 

in the contract written by Maxim, and found the indemnity agreement inapplicable to the 

employee’s claim. The trial court thereafter awarded Tilbury its full attorney fees, 

accepting “Tilbury’s contention that defense against Maxim’s indemnity cross-complaint 

was ‘inextricably intertwined’ with Tilbury’s defense against Gorski’s tort suit.” (Id. at p. 

297.) The Court of Appeal affirmed.

After beginning with the observation its scope of review was “narrow,” Maxim

concluded with this:

“The California Supreme Court has stated that, ‘Attorney’s fees need not be 

apportioned when incurred for representation on an issue common to both a cause of 

action in which fees are proper and one in which they are not allowed.’ (Reynolds Metals 

Co. v. Alperson (1979) 25 Cal.3d 124, 129–130; see Abdallah v. United Savings Bank

(1996) 43 Cal.App.4th 1101, 1111.)

“Further, ‘Apportionment is not required when the claims for relief are so 

intertwined that it would be impracticable, if not impossible, to separate the attorney’s 

time into compensable and noncompensable units.’ (Bell v. Vista Unified School Dist.

(2000) 82 Cal.App.4th 672, 687; see Drouin v. Fleetwood Enterprises (1985) 

163 Cal.App.3d 486, 493 [‘Attorneys fees need not be apportioned between distinct 

causes of action where plaintiff’s various claims involve a common core of facts or are 

based on related legal theories.’].)” (Maxim, supra, 208 Cal.App.4th at p. 298.)

Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, cited by Prometheus for 

the proposition that the “trial court abused [its] discretion by failing to apportion fees,” is 

distinguishable. Heppler recognized the trial court’s discretion, and that a “ ‘recognized 
23

barrier to’ ” apportionment is “ ‘inextricably intertwined issues.’ ” (Id. at p. 1297.) The 

court nevertheless held some fees had to be apportioned in the setting there, which 

included that the trial court assessed all fees against Martin, including trial preparation 

and “trial time (seven weeks) of plaintiffs’ counsel.” The Court of Appeal held that 

“Martin’s part of the case could have been tried in considerably less time than seven 

weeks had the trial not taken up issues that involved the other nonsettling subcontractors. 

It strikes us as eminently unfair to tag Martin with all of plaintiffs’ attorney fees for the 

entire seven-week trial.” (Ibid.) There is nothing unfair about the award here.

Prometheus’ brief asserts that we “may also see fit to reduce the overall attorney 

fee award because the trial court offered no reasoning for its decision.” The assertion is 

less than candid, as Judge Bergeron found that the “amount of fees requested is 

reasonable.” This is enough, as a ruling on a fee motion does not require judicial 

explanation or a statement of decision. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294; 

Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.)

The Verdict Form Was Not Error

Prometheus’s last argument, set forth in a page, is that “[t]he trial court also erred 

when it overruled Prometheus’s objection to the single verdict form which did not allow 

the jury to apportion damages as to each cause of action.” The essence of the argument is 

that the damages portion of the verdict should have been set forth specifically between 

contract and tort claims, apparently so that the attorney fees could be apportioned. 

Prometheus demonstrates no error.

As the leading treatise on trial practice puts it, “The use of special verdicts is 

discretionary with the trial court. Thus, refusal of a request for a special verdict is rarely 

ground for reversal on appeal.” (Wegner, et al., Cal. Practice Guide: Civil Trials and 

Evidence (The Rutter Group 2015) ¶ 17:14, p. 17-6).

Prometheus has shown no abuse.

Beyond that, to the extent that Prometheus’s argument focuses on attorney fees, its 

argument would fail under the cases and authorities discussed above. 
24

DISPOSITION

The judgment is affirmed. The Hjelms shall recover their costs on appeal and, in 

addition, their appropriate attorney fees for their success on appeal, to be determined by 

the trial court on remand. 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.
1

Filed 10/5/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHRISTIE HJELM, et al.,

Plaintiffs and Respondents,

v.

PROMETHEUS REAL ESTATE GROUP, 

INC.,

Defendant and Appellant.

 A142723

 (San Mateo County

 Super. Ct. No. CIV516959)

ORDER CERTIFYING OPINION

FOR PUBLICATION

THE COURT:

The opinion in the above-entitled matted filed on September 9, 2016 was not 

certified for publication in the Official Reports. For good cause, the request for 

publication by respondents Christie Hjelm, et al. and others is granted.

Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion in the 

above-entitled matter is ordered certified for publication in the Official Reports. Listing 

of counsel for the Official Reports is attached hereto.

Dated: _______________________

____________________________________

Kline, P.J.
2

Trial Court: Superior Court of San Mateo County

Trial Judge: Hon. Joseph E. Bergeron

Attorneys for Appellants: Ericksen Arbuthnot 

Gregory A. Mase

Joseph Jonathan Minioza

Andrew J. Kozlow

Attorneys for Respondents: Duckworth Peters Lebowitz Olivier

Monique Olivier

Brod Law Firm

Gregory Jay Brod