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June 2017

Los Angeles Team Successfully Obtains Writ of Mandate Confirming Client’s Right to Jury Trial for Breach of Contract Claim When Attorney’s Fees Are the Only Alleged Damage

Gordon & Rees Los Angeles partner Gary J. Lorch and associate Elizabeth B. Vanalek successfully obtained a Writ of Mandate from the California Court of Appeal directing the Los Angeles Superior Court to set aside its ruling denying the firm’s client a right to a jury trial on a cross-complaint which sought attorney’s fees as the only claimed damage. 

The plaintiffs, a leading AV audio equipment company and its principal, had brought suit against a renowned manufacturer and distributor of audio products, founded by a famous music producer and rapper. The plaintiffs sought significant damages for tort claims that arose from fraud with regard to termination of certain contracts by and between the parties. The defendants cross-claimed, contending that by filing suit, the plaintiffs had breached certain release provisions found in other contracts entered into by and between the parties. 

Gordon & Rees was retained to defend its clients against the claims subject of the cross-complaint.  After summary judgment was granted in favor of the defendants (cross-complainants) on the complaint, the cross-complainants argued that their claim for the attorney’s fees demanded as damages in the cross-complaint could and should be decided by noticed motion pursuant to Civil Code section 1717, rather than by a jury, and the trial court agreed. 

In granting the Writ of Mandate, the Court of Appeal directed that the trial court set aside its ruling, finding that the trial court erred in denying a jury trial on the cross-complainants’ claim for damages. The Court of Appeal reasoned that the cross-complainant did not seek to recover attorney’s fees as prevailing party on the fraud claims alleged in the complaint under section 1717; rather, the cross-complainants had elected to seek an award of attorney’s fees as damages on the cross-claims for breach of contract. The Court of Appeal further reasoned that the damages were a fundamental part of the relief sought and must be pled and proven at trial. 

To read the decision, please click here.

Gary J. Lorch
Elizabeth B. Vanalek



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