Result Might Have Been Different If Clause Said “Arising Out Of Agreement Or Tenancy.”
Ramos v. Bay Breeze #60 , Case No. D069175 (4th Dist., Div. 1 Jan. 17, 2017) (unpublished) is a good reminder about how the specific wording of a contractual fees clause may be dispositive on whether fee entitlement exists in the first place.
In this one, a fees clause applied to actions “arising out of this agreement,” and there were Community Guidelines acknowledging landlord could be liable for common law negligence but found amidst indemnification language in favor of landlord vis-à-vis tenant. The tenant won an $8,500 parking lot slip and fall verdict, later moving to recover attorney’s fees and costs. The lower court said “no,” and the appellate court agreed.
The reason was that the “arising out of this agreement” language did not encompass a personal injury action, unlike situations where fraud or unlawful detainer actions did arise out of the operative contract. With respect to the Community Guidelines indemnification language, it simply acknowledged landlord’s common law negligence and then specified that tenant would not have any indemnification obligation for such negligence—it did not create fee entitlement. However, the reviewing court did acknowledge that the result may have been different had the agreement included language indicating fee entitlement for “actions arising out of one’s tenancy.”