In Lerner v. Ward (1993) 13 Cal.App.4th 155, the plaintiffs' contract claim was dismissed and they proceeded on a fraud theory. The defendants prevailed and sought attorney's fees. The trial court denied the request on the grounds that Civil Code section 1717 does not permit a recovery of attorney's fees in connection with a tort. The appellate court reversed, relying on Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1343, which held that section 1021 controls attorney's fees provisions broad enough to encompass tort actions. "The Xuereb court found the language in the purchase agreement, providing for attorney fees to the prevailing party in any '"lawsuit or other legal proceeding" to which "this Agreement gives rise,"' sufficiently broad 'to encompass both contract actions and actions in tort . . . .' The Xuereb court determined that its interpretation of the circumstances is in accord with the apparent intention of the parties because 'the complaint does not indicate that respondents were seeking attorney fees only in connection with their contract cause of action and not in connection with their tort claims, or that their attorney fees claim was limited to parties other than appellants.' In the instant case, the clause in the contract concerning attorney fees was similar to the clause in the Xuereb case. The clause was not limited merely to an action on the contract, but to any action or proceeding arising out of the agreement. This included any action for fraud arising out of that agreement." ( Lerner, supra, 13 Cal.App.4th at p. 160.)