Filed 5/26/22 AWCC Acquisition I, LLC v. ON Wind Energy, LLC CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. David R. Lampe, Judge.

McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie; Kibler Fowler & Cave and Matthew J. Cave for Plaintiff and Appellant.

Alpha Trial Group, Richard K. Welsh and Jeff Zuidema; Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett and James R. Harvey, for Defendants and Respondents.

-ooOoo-

This is the companion case to AWCC Acquisition I, LLC v. ON Wind Energy, LLC (May 26, 2022, F079057) [nonpub. opn.]), in which we affirmed the trial court’s grant of summary judgment in favor of defendant and respondent ON Wind Energy, LLC (ON Wind), on plaintiff AWCC Acquisition I, LLC’s (AWCC) claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. Another defendant in AWCC’s lawsuit, Oak Creek Wind Power, LLC (Oak Creek), also obtained summary judgment against AWCC in a separate motion.[1] In a postjudgment proceeding, the trial court jointly awarded ON Wind and Oak Creek, who filed separate attorney fee motions, attorney fees as the prevailing party totaling $465,680.70. AWCC appeals from the ruling awarding ON Wind and Oak Creek their attorney fees.

As AWCC concedes, this appeal is purely protective: If AWCC had prevailed in its challenge to the judgment on the merits, it would not want to be burdened with a judgment for the other side’s attorney fees against it. AWCC also asserts that if we reverse the judgment as to ON Wind, we should order the trial court to apportion the fees between Oak Creek and ON Wind. AWCC does not make any arguments concerning the merits of the award.

We express no opinion as to whether a purely protective appeal of this nature is even necessary, i.e., whether an attorney fee order, otherwise unchallenged, might be void if the judgment on which it was based were reversed on appeal. It is enough to say here that the judgment is not being reversed on the merits, so there is no basis to reverse the attorney fee order. We need only add that ON Wind shall recover its costs in this proceeding as well.

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondents.

DE SANTOS, J.

WE CONCUR:

POOCHIGIAN, ACTING P. J.

SMITH, J.

[1] AWCC appealed the Oak Creek judgment, but it later dismissed the appeal.