DeMirjian v. Ideal Heating Corp.

This is an appeal from an order denying motion of defendant and appellant to discharge an attachment issued and levied upon its bank account. The appeal is presented upon a clerk’s transcript. The action is based upon a fire allegedly caused by defendant’s negligence. Plaintiffs are seeking to recover damages for the destruction of and injury to their real and personal property, for loss of profits, and for attorney’s fees incurred in enforcing plaintiffs’ rights.

At the time of the fire, plaintiffs were the owners of two adjoining parcels of real property both of which were improved with business buildings, and which were located respectively at 807 East Gage Street and 817 East Gage Street in the city of Los Angeles. On August 21, 1940, defendant had leased the premises at No. 807 from plaintiffs’ predecessors in interest. Plaintiffs occupied and carried on an art and lamp business in their building at No. 817. The fire, out of which the action arose, commenced upon the premises leased by defendant and spread to the adjoining premises occupied by plaintiffs, causing extensive destruction and damage to both. The complaint sets forth five causes of action, the first three of which purportedly state a basis for liability under the terms of the written lease. Counts four and five are concededly grounded solely upon negligence. The issue which we are called upon to determine is whether plaintiffs’ complaint states, or purports to state, a cause of action which is based “upon a contract, express or implied, for the direct payment of money” (Code Civ. Proc., § 537), and which will therefore support an attachment.

Plaintiffs’ first three causes alleged are predicated upon a provision appearing in paragraph 8 of the lease which reads: “Lessee agrees to hold Lessors and said premises free and harmless from any damage resulting from the use, misuse or neglect thereof and all appurtenances thereto.” The nature of plaintiffs’ action is sufficiently indicated by the allegations which appear in the first cause of action. They may be summarized as follows: By the terms of the lease, the lessee expressly and impliedly agreed to reimburse plaintiffs for all damage resulting both to plaintiffs and to said leased premises from said defendants’ use, misuse or neglect of said premises; defendants so used, misused and neglected said premises and their appurtenances as to render them in a highly inflammable and dangerous condition in that they maintained thereon, unguarded and exposed, large stocks of

Despite plaintiffs ’ artfully contrived attempt to state causes of action within the scope of section 537 of the Code of Civil Procedure, we think they have failed to do so and that the court below was in error in refusing to discharge the attachment.

When a party seeks the remedy of attachment it is the fundamental basis of his cause of action, rather than the form or phraseology of his pleadings which determines his right to the writ. (Hallidie v. Enginger, 175 Cal. 505 [ 166 P. 1 ]; San Francisco Iron etc. Co. v. Abraham, 211 Cal. 552 , 554 [ 296 P. 82 ]; Powers v. Freeland, 114 Cal.App. 146 , 149 [ 299 P. 736 ]; Bullard v. Rosenberg, 130 Cal.App. 542 [ 20 P.2d 104 ]; Rosenberg v. Bullard, 127 Cal.App. 315 [ 15 P.2d 870 ].) In the Powers case (p. 149) it was declared to be an “elementary principle” that “it is the substance of the cause of action which is important rather than its form . . . for if the cause of action is one that in reality sounds in tort the remedy of attachment, which is purely statutory, is not available to a complainant under our statutes and the statutory inhibition may not be overcome by pleading a cause of action, which is really one in tort, as one sounding in contract.” (See, also, 2 R.C.L. § 815; 4 Am.Jur. § 106, p. 622; 7 C.J.S. § 13, p. 201, and cases there cited.)

It is well established that there are certain situations in which a plaintiff may elect to sue upon a contract theory, rather than a tort theory, and may be entitled to an attachment if he does so. (Los Angeles Drug Co. v. Superior Ct., 8 Cal.2d 71 [ 63 P.2d 1124 ]; McCall v. Superior Court, 1 Cal.2d 527 [ 36 P.2d 642 , 95 A.L.R. 1019 ]; Oil Well Core Drilling Co. v. Barnhart, 20 Cal.App.2d 677 [ 67 P.2d 696 ]; Yosemite etc. Assn. v. Case-Swayne Co., 73 Cal.App.2d 806 [ 167 P.2d 541 ].) In cases of this nature, however, it invariably appears that the alleged tortious conduct is merely incidental to the contractual liability relied upon, or as pointed out in Oil Well Core Drilling Co. v. Barnhart, supra, that it is unnecessary

With these rules in mind, we turn to a consideration of the nature of plaintiff’s action. Under varying circumstances, it has been repeatedly affirmed that if the complaint states a cause of action for breach of a promise set forth in the contract the- action is to be regarded as ex contractu, but if it seeks damages arising out of the breach of a duty growing out of the contract, the action will be regarded as ex delicto. (Jones v. Kelly, 208 Cal. 251 , 254 [ 280 P. 942 ; Peterson v. Sherman, 68 Cal.App.2d 706 , 711 [ 157 P.2d 863 ].) Accordingly, it has been held that a cause of action against a carrier for personal injuries, although pleaded as a breach of contract for safe conveyance, sounds in tort. (Williamson v. Pacific Greyhound Lines, 67 Cal.App.2d 250 [ 153 P.2d 990 ]; Basler v. Sacramento etc. Ry. Co., 166 Cal. 33 [ 134 P. 993 ]; Rushing v. Pickwick Stages System, 113 Cal.App. 240 [ 298 P. 150 ].) Similar conclusions have been reached in actions for injury to persons or property caused by defective or impure products, pleaded in terms of breach of warranty. (Singley v. Bigelow, 108 Cal.App. 436 [ 291 P. 899 ]; Gosling v. Nichols, 59 Cal.App.2d 442 [ 139 P.2d 86 ]; Automobile Ins. Co. v. Union Oil Co., 85 Cal.App.2d 302 [ 193 P.2d 48 ]), and in actions for malpractice based upon alleged breach of contract to provide competent medical care (Harding v. Liberty Hospital Corp., 177 Cal. 520 [ 171 P. 98 ]; Marty v. Somers, 35 Cal.App. 182 [ 169 P. 411 ]; Speer v. Brown, 26 Cal.App.2d 283 [ 79 P.2d 179 ]). “In such cases the tort which is the basis of the claim for damages lies in the breach of the duty imposed by law, and the allegations of the contract relations between the parties are merely for the purpose of showing that the plaintiff was not a trespasser or that he was lawfully in the position or situation at the time the defendant’s breach occurred.” (Nathan v. Locke, 108 Cal.App. 158 , 162 [ 287 P. 550 , 291 P. 286 ].)

Applying the foregoing principles to the present case, it is manifest that plaintiffs’ complaint sounds in tort

Plaintiffs’ third cause of action contains a count for attorney’s fees in the sum of $75,000 which is based upon a clause in section 12 of the lease reading as follows: “In any action at law or equity necessary to enforce Lessors’ rights hereunder, Lessee agrees to pay all reasonable costs including attorney’s fees, incurred by Lessors herein.”

It is contended that the cause of action for attorney’s fees furnishes ground for an attachment, in the amount of the demand. We entertain a contrary view. It would require a strained construction of the attorney’s fee provision to extend its coverage to actions to enforce a liability such as the one pleaded, which exists independently of the lessor-lessee relationship.

Provisions imposing an obligation to pay for attorney’s fees incurred in the enforcement of rights arising out of contracts are commonly found in leases and many other types of contracts. It may not be questioned that at would be permis

There are several other reasons for our conclusion that the demand for attorney’s fees does not furnish support for the attachment.

The prayer of the complaint is for $302,474.28, including $75,000 demanded for attorney’s fees. It is averred in the amended affidavit for attachment that the defendants are indebted to plaintiffs in the sum of $200,000 upon a written contract for the direct payment of money, to wit: “Payment for damage to and destruction of premises leased to defendants and for damage to and destruction of personal property located in said adjoining premises and loss of profits resulting from destruction of plaintiff’s business conducted therein, together with reasonable attorney’s fees as prayed for in the complaint as, amended on file herein.” This affidavit is insufficient to support an attachment upon the claim for attorney’s fees. Exclusive of that claim, the amount sued for as damages for destruction of property and loss of profits exceeds the amount for which the attachment was sought and issued. It is impossible to determine from the affidavit whether the attachment was sought in the amount of $75,000 or any other sum on the basis of the claim for attorney’s fees as distinguished from the alleged damage to the buildings, the destruction of personal property and the loss of profits. It follows from our first holding that considerably more than $200,000 was sought upon demands for which an attachment will not lie. The affidavit therefore does not state the amount

The order is reversed with instructions to dissolve the attachment.

Wood, J., and Vallée, J., concurred.

A petition for a rehearing was denied June 8, 1949, and respondents’ petition for a hearing by the Supreme Court was denied July 14,1949.