Filed 1/23/20 Meritage Homes of Cal., Inc. v. Peppertree Land Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MERITAGE HOMES OF CALIFORNIA, INC.,

Plaintiff and Appellant,

v.

PEPPERTREE LAND COMPANY et al.,

Defendants and Respondents.

D075718

(Super. Ct. No. 37-2014-00040032- CU-BC-NC)

APPEAL from an order of the Superior Court of San Diego County, Earl H. Maas III, Judge. Appeal dismissed without prejudice.

Higgs, Fletcher & Mack, John Morris for Defendant and Respondent Peppertree Land Company.

Williams Iagmin, Jon R. Williams; Palomar Law Group, Randolph W. Ortlieb and Andre C. Didier for Defendant and Respondent Walter Osgood.

Huguenin Kahn, Edward R. Huguenin and James L. Bothwell for Plaintiff and Appellant.

Meritage Homes of California, Inc. (Meritage) appeals from a postjudgment order denying its motion to amend judgment. We dismiss the appeal because as the parties now concede, the underlying judgment itself is not a final appealable judgment.

DISCUSSION

The litigation facts are not germane to the dispositive jurisdiction issues and, therefore, we omit the customary factual background. “The right to appeal in a civil case is conferred exclusively by statute. [Citation.] In the absence of a statute authorizing an appeal, we lack jurisdiction to review a case even by consent, waiver, or estoppel.” (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083.)

The primary statute addressing the appealability of judgments and orders in civil cases is Code of Civil Procedure section 904.1. (Samuel v. Stevedoring Services (1994) 24 Cal.App.4th 414, 417.) Section 904.1 serves to avoid piecemeal litigation by limiting appeals to final judgments, postjudgment orders, and certain enumerated orders. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696-697.)

Generally speaking, section 904.1, subdivision (a)(1) provides an appeal may be taken from a final judgment. Under subdivision (a)(2) of that statute, an appeal may also be taken from an order made after a judgment that is itself appealable under subdivision (a)(1). (Olson v. Cory (1983) 35 Cal.3d 390, 399.) Reading both of these subdivisions together: A postjudgment order made after a nonappealable judgment is itself nonappealable.

Here, Meritage appeals from an order entered December 11, 2018 (the Order) denying its motion to amend a judgment. In its notice of appeal, Meritage asserted appellate jurisdiction under section 904.1, subdivision (a)(2), as an “order after judgment.”

Recently in a related appeal, Meritage Homes of California, Inc. v. Peppertree Land Village-VII, LLC, et al., (Dec. 20, 2019, D073088) [nonpub. opn.] (Meritage I), we held that the underlying judgment in this case entered in July 2017 is not a final appealable judgment. Therefore, the Order is not an appealable as a postjudgment order because no appealable judgment has yet been entered. We have no jurisdiction to consider Meritage’s appeal from the Order. Until a final judgment is entered, Meritage’s time to appeal from the Order has not begun to run.

We stayed briefing on the merits in the instant appeal pending our disposition of Meritage I. After dismissing the purported appeals in Meritage I, we notified the parties that we were inclined to dismiss the instant appeal without prejudice for lack of appellate jurisdiction, with the parties to bear their own costs. We invited any party who objected to that disposition to timely file a brief explaining the basis for appellate jurisdiction. We further admonished that the failure to timely file such a brief would be construed as a concession that the court lacks jurisdiction over this appeal. No party filed a brief objecting to dismissal of this appeal on such terms.

DISPOSITION

The appeal from the order entered December 11, 2018, denying Meritage’s motion to amend the judgment is dismissed without prejudice. The parties shall bear their own costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

DATO, J.