If a party seeks a contractual attorney fee award as an adjunct to a judgment, the court determines the fee award on motion after entry of judgment; but if the party instead seeks attorney fees as an item of damage in a suit on the contract, the claim is an ordinary contract claim on which there is a right to a jury trial. When a party seeks attorney fees as an adjunct to a judgment obtained either in defending against a claim based on a contract containing an attorney fee clause or in prosecuting a claim under such a contract, fees are determined by the court on motion after entry of judgment. However, when a party seeks attorney fees as an item of damage in a suit on a contract, the claim is an ordinary contract claim on which there is a right to a jury trial, so a jury, not the judge, determines the amount of fees to be awarded as damages. Here, Beats, the real party in interest, prevailed against Monster on Monster’s fraud claims, based on releases contained in an agreement that also had an attorney fee clause. Had Beats sought attorney fees as an adjunct to its victory on the fraud claim, it could have obtained them from the judge by post-trial motion. But, instead, Beats chose to pursue its fees as damages on its cross-claim for breach of the agreement that contained the fee clause. In that context, Monster was entitled to have a jury decide the amount of fees to be awarded as contract damages to Beats.
California Court of Appeal, Second District, Division 7 (Zelon, Acting P.J.); June 21, 2017; 2017 WL 2665193