Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc.

*482 Opinion

Mitchell Land and Improvement Co. (Mitchell) brought an unlawful detainer action (Code Civ. Proc., § 1161 et seq.) against its lessee, Ristorante Ferrantelli, Inc. (Ferrantelli), based on alleged violations of a lease provision requiring the premises only be used for lawful purposes. Mitchell contended Ferrantelli had erected an outdoor tent and firepit in a patio dining area without proper permits. Mitchell later voluntarily dismissed its action after Ferrantelli filed a motion for summary judgment. Mitchell appeals from the trial court’s subsequent order awarding Ferrantelli its attorney fees contending Civil Code section 1717, subdivision (b)(2), 1 which prohibits an award of attorney fees when an action on a contract has been voluntarily dismissed, precludes such an award. We agree that because this unlawful detainer is one based upon an alleged breach of contract, section 1717, subdivision (b)(2), applies and the attorney fees award was improper. Accordingly, we modify the order to strike the award of attorney fees.

FACTS

The essential procedural facts are not in dispute. In May 2005, Mitchell served Ferrantelli with a “[30-]day notice to cure covenants or…