Drybread

Plaintiffs brought an unlawful detainer action (Code Civ. Proc., §1161 et seq.) against defendant. Plaintiffs alleged defendant was unlawfully in possession of premises after a written sublease had expired.

Prior to trial, plaintiffs dismissed the unlawful detainer action without prejudice. Defendant moved the court for an award of attorney’s fees pursuant to a provision in the sublease providing the prevailing party shall be entitled to attorney’s fees in “any action or other proceeding arising out of this Sublease . . . .”

Plaintiffs resisted an award of attorney’s fees, relying on Civil Code section 1717, which provides as pertinent that “[i]n any action on a contract . . . fiD • • • [ID • • • [w]here an action has been voluntarily dismissed . . . , there shall be no prevailing party for purposes of this section.” (Italics added.)

The trial court agreed with plaintiffs, concluding 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 following termination of the lease sounded in tort. Civil Code section 1717, subdivision…