Case Name: Corvin Business Center Owners’ Association, et al. v. Corvin Commercial Condominiums, LLC, et al.
Case No.: 2010-1-CV-189732

Currently before the Court are several motions for attorney’s fees and motions to strike or tax costs. The Court previously continued these motions to May 27, 2016, so that defendants Corvin Commercial Condominiums, LLC, Calvano Commercial Enterprises, Inc., Mark Calvano, Calvano Development, Inc., Berkshire Pacific Ventures, LLC, and Mac Commercial Enterprises (collectively, “Defendants”) could submit a supplemental declaration with lodestar information and billing records. Defendants have done so, but plaintiffs Future Securities, LLC and the Corvin Business Owners’ Association (collectively, “Plaintiffs”) assert that they only had four days to review the billing records due to the briefing schedule and the fact that the billing records were served on Plaintiffs by regular mail. Consequently, Plaintiffs have not submitted a substantive response concerning Defendants’ allocations.

In light of the amount at stake and in the interest of fairness, the Court will give Plaintiffs the opportunity to more meaningfully review the billing records and provide a response. Accordingly, Plaintiffs may file a new supplemental brief of no more than five pages by July 8, 2016, responding to Defendants’ submission of the billing records. The hearing on these motions will be continued to July 22, 2016.

The Court notes that the parties will have the opportunity at the July 22, 2016, hearing to respond substantively to all of the issues raised in the underlying motions. None of the issues are final and the parties have not yet had a chance to present their arguments at a hearing.

Plaintiffs also object to the fact that of the 1462 pages of billing records identified by Defendants, the redacted version received by Plaintiffs’ counsel consists of only 770 pages. The parties are ordered to appear at the hearing on May 27, 2016, so that the Court can resolve the issue of which billing records Plaintiffs and T.F. McGuckin are entitled to see. Defendants are ordered to bring a complete unredacted set of billing records for the Court.

As a final matter, on May 13, 2016, T.F. McGuckin filed a sur-reply to Defendants’ motion for attorney’s fees. There is no authority permitting the filing of a “sur-reply.” Further, it is not apparent why the Bramalea case, cited in the sur-reply, was not cited previously. Nevertheless, the Court acknowledges that the case may have an impact on Defendants’ right to recover attorney’s fees from T.F. McGuckin. While Bramalea states that attorney’s fees can be recovered as costs by a party that has incurred, but not actually paid, the fees, it also states that the same does not hold true when attorney’s fees are sought as damages. (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 471-473.) Under circumstances where an insurance company has paid for the attorney’s fees associated with a case (as T.F. McGuckin contends happened here), the recovery of attorney’s fees from other parties is a prohibited double recovery unless allowed by the collateral source rule. (Id. at p. 472.) The collateral source rule applies to tort damages, not to damages for breach of contract. (Ibid.) Therefore, it does not appear that the collateral source rule applies in this case and Defendants may be barred from recovering attorney’s fees from T.F. McGuckin.

Defendants argue in an objection to the sur-reply that the Court already addressed the insurance coverage issue raised by the sur-reply and, relying on Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, found it unpersuasive. While it is true that the Court relied on Nemecek in the prior tentative ruling, the Court now notes that Nemecek concerned the recovery of attorney’s fees as costs pursuant to a contractual attorney’s fees provision. (See Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 651.) Bramalea seems to be more directly on point in this situation because Defendants are not seeking fees from T.F. McGuckin as the prevailing parties, but rather based on a purported duty to defend.

The Court is cognizant of the fact that T.F. McGuckin raised Bramalea for the first time in an unauthorized sur-reply after the Court’s prior tentative ruling was published. Therefore, the Court will permit Defendants to submit an additional supplemental brief of no more than three pages by June 17, 2016, addressing the case and its application to the motions before the Court. The parties will have the opportunity to argue the issue at the hearing on July 22, 2016.

All motions scheduled for May 27, 2016, are CONTINUED to July 22, 2016.