Judge, Jury and . . . Attorney's Fees

When a contract awards attorneys' fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney's fees to the prevailing party, regardless of the party awarded fees in the contract, and b) requiring the court to fix the attorney's fees as an element of the costs of suit. But does § 1717 supplant the right to a jury trial in situations where attorney's fees are sought as damages, instead of as costs? As the California Court of Appeal recently held in Monster, LLC v. Superior Court of Los Angeles County: No.

Background

In 2012, Dr. Dre, Jimmy Iovine (collectively, the founders of "Beats") and Monster, LLC terminated a licensing agreement that granted Monster the right to manufacture and sell "Beats by Dre" headphones. Noel Lee, Monster's founder, subsequently sold back the interest in Beats he had obtained pursuant to the now terminated licensing agreement. The termination and unit repurchase agreements governing