(7) "It has been well established in this state that if the cause of action arises from a breach of a promise set forth in the contract, the action is ex contractu but if it arises from a breach of duty growing out of the contract it is ex delicto. [Citations.]" ( Little v. Speckert (1959) 170 Cal.App.2d 725, 727 [ 339 P.2d 611].) The cross-complaint alleged Wass and Reiss breached the Parkview Terrace agreement by authorizing negative comments to be made about Wentland's management, not because such comments were false (although it alleged they were), but because they had promised not to continue to make such comments.
It is upon this fraud that appellants assert the invalidity of the releases, in connection with the alleged larger underlying conspiracy to defraud appellants by preventing them from discovering respondents' negligence in the design, building, and repairing of their home foundations. ( Silberg, supra, 50 Cal.3d at pp. 211, 220; Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, 356 [ 128 Cal.Rptr. 608]; Mahon v. Berg (1968) 267 Cal.App.2d 588, 590 [ 73 Cal.Rptr. 356]; cf. Little v. Speckert (1959) 170 Cal.App.2d 725, 726-727 [ 339 P.2d 611] [cause of action alleging breach of promise set forth in contract sounds in contract and not tort].) (7) Appellants also contend that section 47(b) does not bar their causes of action against respondents for negligence and willful misconduct because those causes of action are based in part on evidence of respondents' supposedly noncommunicative conduct of preparing a defective design for repair of the slab foundations, and making inadequate repairs.