Section 1717: Fees As Damages Under Breach Of Contract Claim Must Be Decided By The Jury At Trial, Not The Trial Judge On Noticed Motion

Jury Right Implicated, With Brandt Being Persuasive On The Issue.

Jury.  1918-20.  Library of Congress.

            In Monster, LLC v. Superior Court (Beats Electronics, LLC), Case No. B278289 (2d Dist., Div. 7 June 21, 2017) (published), cross-complainant brought a breach of contract cross-claim, alleging that the cross-defendants had caused the company to incur attorney’s fees and other litigation costs.  After cross-complainant gained a summary judgment against cross-defendants’ own primary claims, it asserted that the trial judge, not the jury, had to determine its attorney’s fees as a form of contract damages based on a noticed motion under Civil Code section 1717.  The trial judge agreed, but was overturned on appeal in a writ proceeding.  The appellate court found that fee entitlement was based on fees being damages, implicating jury trial rights and not simply adjudging fees as costs so as to invoke a law and motion procedure for determination of fees.  Among other authorities, it placed reliance on analogous reasoning in insurance bad faith cases, particularly Brandt v. Superior Court, 37 Cal.3d 813 (1985).