Date and Time: 01/07/2014 6:17 PM EST Job Number: 7058819

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Document(1)

1. Drybread v. Chipain Chiropractic Corp., 151 Cal. App. 4th 1063

Client/matter: FR-007

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As of: January 7, 2014 6:17 PM EST

Drybread v. Chipain Chiropractic Corp.

Court of Appeal of California, Third Appellate District
June 6, 2007, Filed

C053568

Reporter: 151 Cal. App. 4th 1063; 60 Cal. Rptr.

TODD DRYBREAD et al., Plaintiffs and Re-
spondents, v. CHIPAIN CHIROPRACTIC COR-
PORATION, Defendant and Appellant.

Subsequent History: [***1] Corrected by Dry-
bread v. Chipain Chiropractic Corp., 2007 Cal.
App. LEXIS 964 (Cal. App. 3d Dist., June 12,
2007)

Disposition: Reversed.

Core Terms

attorney’s fees, lease, sublease, unlawful
detainer action, landlord, expire, unlawful
detainer, prevailing party, noncontract, trial

court, contractual, terminate, right to recover,
lessee, contract claim, notice to quit, tenant,
inception, detainer, notice, breach of lease,

renew, tort claim, chiropractic, coverage, rend,
statutory procedure, encompass, disapprove,
tortious

Case Summary

Procedural Posture

Plaintiff sublessors dismissed without prejudice an unlawful detainer action brought under

Code Civ. Proc., § 1161, and defendant subles-
see moved for attorney fees pursuant to a pro-
vision in the sublease. The Superior Court of
Sacramento County (California), denied the

motion, and the sublessee appealed.

Overview

3d 580; 2007 Cal. App. LEXIS 934

The complaint alleged that a written sublease
for commercial premises had expired and that
the sublessee’s continued possession was ma-
licious. The sublease contained a clause that pro-
vided for an award of attorney fees to the pre-
vailing party in any action thereunder. The

trial court concluded that the unlawful detainer proceeding was an action on a contract and

that Civ. Code, § 1717, subd. (b)(2), barred the
sublessee from recovering attorney fees after
a voluntary dismissal. The court, in reversing,
stated that the attorney fees clause was broad
enough to encompass noncontract claims and
that holding over after expiration of the sub-
lease was a noncontract claim. The notice to
quit did not allege any contractual breach. More-
over, the allegation that the sublessee’s contin-
ued possession was malicious sounded in

tort. Although the complaint also sought attor-
ney fees pursuant to contract, that did not nec-
essarily make the unlawful detainer proceeding an action based on contract because contrac-
tual attorney fee clauses could encompass tort claims. Thus, as the prevailing party pursuant to Code Civ. Proc., § 1032, subd. (a)(4), the sub-
lessee was entitled to attorney fees.

Outcome

The court reversed the denial of attorney fees and remanded for further proceedings.

LexisNexis® Headnotes

Civil Procedure > ... > Costs & Attorney Fees > At-
torney Fees & Expenses > General Overview

Civil Procedure > Appeals > Standards of Re-
view > De Novo Review

HN1 The determination of the legal basis for

Page 2 of 12

151 Cal. App. 4th 1063, *1063; 60 Cal. Rptr. 3d 580, **580; 2007 Cal. App. LEXIS 934, ***1

an award of attorney fees is a question of law which is reviewed de novo.

Civil Procedure > ... > Attorney Fees & Ex-
penses > Basis of Recovery > Statutory Awards

HN2 See Civ. Code, § 1717.

Civil Procedure > ... > Attorney Fees & Ex-
penses > Basis of Recovery > Statutory Awards

HN3 The limitation of Civ. Code, § 1717,
subd. (b)(2)—precluding attorney’s fees when
a complaint is voluntarily dismissed—applies
only to contract claims. It does not apply to
noncontract claims and thus does not preclude
attorney’s fees on noncontract claims where the
contractual attorney’s fees clause is broad
enough to encompass noncontract claims.

Civil Procedure > ... > Attorney Fees & Ex-
penses > Basis of Recovery > Statutory Awards

HN4 In general, “prevailing party” includes a
defendant in whose favor a dismissal is en-
tered. Code Civ. Proc., § 1032, subd. (a)(4).

Real Property Law > ... > Landlord’s Remedies &
Rights > Eviction Actions > Forcible Entry & De-
tainer

HN5 The summary proceedings for unlawful de-
tainer are based on the English statutes that ab-
rogated the common law right of a person

wrongfully dispossessed to regain possession
of real property by force. The statutory situa-
tions in which the remedy of unlawful detainer is
available are exclusive, and the statutory pro-
cedure must be strictly followed. The proceed-
ing has characteristics of a contract action,

e.g., it usually involves a lease, and often seeks
its termination and recovery of rent. But this
type of relief is deemed incidental to the main
purpose of the suit—recovery of possession.
Title is not in issue in the conventional unlaw-
ful detainer suit. Unlawful detainer actions

may be based on (1) a breach of the lease dur-
ing the term of the lease (arguably suggest-

ing contract claims), or (2) a tenant holding over after the lease expires (arguably suggesting

tort claims for unlawful possession).

Real Property Law > ... > Landlord’s Remedies &
Rights > Eviction Actions > Forcible Entry & De-
tainer

HN6 See Code Civ. Proc., § 1161.

Real Property Law > ... > Landlord’s Remedies &
Rights > Eviction Actions > Forcible Entry & De-
tainer

HN7 In order to determine whether the sum-
mary and statutory procedure of unlawful de-
tainer sounds in contract or in tort, the grava-
men of the facts giving rise to the right to

recovery must be examined. If the right to re-
cover realty emanates from the breach of a lease
provision occurring during an unexpired term
of a lease, then the right to recover has its in-
ception in a contractual arrangement between
the parties. If the right to recovery is based upon
a civil wrong such as possession of property
by a trespasser ab initio, or by a holdover ten-
ant as a resulting trespasser, or by an en-

croacher then the right to recover possession of
the property by way of the summary and statu-
tory procedure of unlawful detainer has its in-
ception in tortious conduct. It is therefore nec-
essary to analyze and determine whether or not
the right to possession by the landlord had its
inception in a lease or contractual right or
whether the right to possession by the land-

lord had its inception in some sort of tortious conduct by the lessee.

Headnotes/Syllabus

Summary

CALIFORNIA OFFICIAL REPORTS SUM-
MARY

The trial court denied a sublessee’s motion for
an award of attorney fees after the sublessors
dismissed without prejudice an unlawful de-
tainer action brought under Code Civ. Proc.,
§ 1161. The complaint alleged that a written sub-
lease for commercial premises had expired

and that the sublessee’s continued possession
was malicious. The sublease contained a clause
that provided for an award of attorney fees to
the prevailing party in any action thereunder.
The trial court concluded that the unlawful de-
tainer proceeding was an action on a contract

Page 3 of 12

151 Cal. App. 4th 1063, *1063; 60 Cal. Rptr. 3d 580, **580; 2007 Cal. App. LEXIS 934, ***1

and that Civ. Code, § 1717, subd. (b)(2),
barred the sublessee from recovering attorney
fees after a voluntary dismissal. (Superior Court
of Sacramento County, No. 05UD05598, Alan

G. Perkins, Judge.)

The Court of Appeal reversed the denial of at-
torney fees and remanded for further proceed-
ings. The court stated that the attorney fees clause was broad enough to encompass non-
contract claims and that holding over after expi-
ration of the sublease was a noncontract

claim. The notice to quit did not allege any con-
tractual breach. Moreover, the allegation that the sublessee’s continued possession was mali-
cious sounded in tort. Although the com-

plaint also sought attorney fees pursuant to con-
tract, that did not necessarily make the

unlawful detainer proceeding an action based
on contract because contractual attorney fee
clauses could encompass tort claims. Thus,
as the prevailing party pursuant to Code Civ.

Proc., § 1032, subd. (a)(4), the sublessee was en-
titled to attorney fees. (Opinion by Sims, J.,

with Scotland, P. J., and Cantil-Sakauye, J., concurring.) [*1064]

Headnotes

CALIFORNIA OFFICIAL REPORTS HEAD-
NOTES

CA(1) (1)

Costs § 25 > Attorney Fees > Contract Provi-
sions > When Complaint Voluntarily Dismissed.

The limitation of Civ. Code, § 1717, subd. (b)(2) —precluding attorney fees when a complaint is voluntarily dismissed—applies only to con-
tract claims. It does not apply to noncontract claims and thus does not preclude attorney’s fees on noncontract claims where the contrac-
tual attorney fees clause is broad enough to en-
compass noncontract claims.

CA(2) (2)

Costs § 25 > Attorney Fees > Contract Provi-
sions > Prevailing Party.

In general, “prevailing party” includes a defen-
dant in whose favor a dismissal is entered

( Code Civ. Proc., § 1032, subd. (a)(4)).

CA(3) (3)

Landlord and Tenant § 167 > Unlawful De-
tainer > Nature of Action.

The summary proceedings for unlawful de-
tainer are based on the English statutes that ab-
rogated the common law right of a person
wrongfully dispossessed to regain possession
of real property by force. The statutory situa-
tions in which the remedy of unlawful detainer is
available are exclusive, and the statutory pro-
cedure must be strictly followed. The proceed-
ing has characteristics of a contract action,
e.g., it usually involves a lease, and often seeks
its termination and recovery of rent. But this
type of relief is deemed incidental to the main
purpose of the suit—recovery of possession.
Title is not in issue in the conventional unlaw-
ful detainer suit. Unlawful detainer actions
may be based on (1) a breach of the lease dur-
ing the term of the lease (arguably suggest-
ing contract claims), or (2) a tenant holding over
after the lease expires (arguably suggesting
tort claims for unlawful possession).

CA(4) (4)

Landlord and Tenant § 167 > Unlawful De-
tainer > Nature of Action.

In order to determine whether the summary
and statutory procedure of unlawful detainer

sounds in contract or in tort, the gravamen of the
facts giving rise to the right to recovery must
be examined. If the right to recover realty ema-
nates from the breach of a lease provision oc-
curring during an unexpired term of a lease, then
the right to recover has its inception in a con-
tractual arrangement between the parties. If the
right to recovery is based upon a civil wrong
such as possession of property by a trespasser ab
initio, or by a holdover tenant as a resulting

trespasser, or by an encroacher then the right to
recover possession of the property by way of
the summary and statutory procedure of unlaw-
ful detainer has its inception in tortious con-
duct. It is therefore necessary to analyze and de-
termine whether or not the right to possession
by the landlord had its inception in a lease or
contractual right or whether the right to pos-
session by the landlord had its inception in some
sort of tortious conduct by the lessee.

Page 4 of 12

151 Cal. App. 4th 1063, *1064; 60 Cal. Rptr. 3d 580, **580; 2007 Cal. App. LEXIS 934, ***1

moved the court for an award of attorney’s

CA(5) (5)

Costs § 26 > Attorney Fees > Contract Provi-
sions > Fees Allowed > Voluntary Dismissal of Unlaw-
ful Detainer Action.

An unlawful detainer action alleging that a sub-
lessee was unlawfully in possession of prem-
ises after the expiration of the sublease did not
sound in contract, and therefore Civ. Code, §
1717 (which bars attorney fees where contract
claims are voluntarily dismissed) did not apply.
Rather, the sublessee was the prevailing party
pursuant to Code Civ. Proc., § 1032, subd.

(a)(4), and was entitled to attorney fees pursu-
ant to the provisions of the sublease.

[ Cal. Forms of Pleading and Practice (2007)
ch. 174, Costs and Attorney’s Fees, § 174.276;

2 Cathcart et al., Matthew Bender Practice
Guide: Cal. Trial and Post-Trial Civil Proce-
dure (2006) § 25.09; 7 Witkin, Cal. Procedure
(4th ed. 1997) Judgment, § 184A; 5 Witkin,
Cal. Procedure (4th ed. 1997) Pleading, § 597.]

Counsel: Ishikawa Law Office and Brendon
Ishikawa; Law Offices of D. Robert Morris and

D. Robert Morris for Defendant and Appel-
lant.

Law Office of Felix G. Poggemann and Felix

G. Poggemann for Plaintiffs and Respondents.

Judges: Sims, J., with Scotland, P. J., and Cantil

-Sakauye, J., concurring.

Opinion by: Sims

Opinion

[**581] SIMS, J.—Plaintiffs brought an un-
lawful detainer action ( Code Civ. Proc., § 1161 et seq.)1 against defendant. Plaintiffs alleged defendant was unlawfully in possession of prem-
ises after a written sublease had expired.

Prior to trial, plaintiffs dismissed the unlawful
detainer action without prejudice. Defendant

fees pursuant to a provision in the sublease pro-
viding the prevailing party shall be entitled to attorney’s fees in “any action or other proceed-
ing arising out of this Sublease … .”

Plaintiffs resisted an award of attorney’s fees, re-
lying on Civil Code section 1717, which pro-
vides as pertinent that “[i]n any action on a con-
tract … [¶] … [¶] … [w]here an action has

been voluntarily dismissed … , there

[***2] shall be no prevailing party for pur-
poses of this section.” (Italics added.) [*1066]

The trial court agreed with plaintiffs, conclud-
ing plaintiffs’ action sounded more in contract than in tort, so fees were barred by Civil

Code section 1717.

We respectfully disagree with the trial court. Plaintiffs’ action for wrongful possession follow-
ing termination of the lease sounded in tort.

Civil Code section 1717, subdivision (b)(2), does not apply. Defendant was the prevailing party pursuant to section 1032, subdivision (a)(4), 2 and was entitled to attorney’s fees pursuant

to the clause in the sublease. We shall there-
fore reverse the trial court order denying attor-
ney’s fees.

FACTUAL AND PROCEDURAL BACK-
GROUND

On August 2, 2005, plaintiffs filed an unlawful
detainer action against defendant, seeking to
evict defendant from commercial [**582]

premises following expiration of a one-year
written sublease which commenced on Janu-
ary 5, 2004. The complaint said, “Plaintiff de-
mands possession from each defendant because
of expiration of a fixed-term lease.” The com-
plaint sought fair rental value of [***3] $82.88
per day and statutory damages under section
1174, subdivision (b), on the ground that defen-
dant’s continued possession was malicious.