Marriage of Stacey CA5

Filed 5/17/21 Marriage of Stacey 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of DENNIS and MARSHA STACEY.

DENNIS STACEY, F082473

Appellant, (Super. Ct. No. RFL-15-000137)

v. OPINION MARSHA STACEY,

Respondent.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Jason W. Webster, Judge. Dennis Stacey, in pro. per., for Appellant. No appearance for Respondent. -ooOoo- Appellant Dennis Stacey filed this appeal to challenge an order denying his motion for a change of venue. This court (1) notified the parties that an order denying a venue motion is not appealable, (2) provided them with a copy of pages from Calhoun v.

* Before Franson, Acting P.J., Peña, J. and De Santos, J.

Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39 (Calhoun) discussing appealability, and (3) asked whether unusual or extraordinary circumstances existed that justified treating his appeal as a petition for writ of mandate. Dennis’s response asserted extraordinary circumstances existed because the commissioner who issued the venue order had been disqualified but continued to issue orders and conduct proceedings in this case. Based on our review of the December 6, 2017 minute order and Dennis’s statement that no court reporter was present when he made his application to disqualify the commissioner, there is no realistic probability that Dennis will be able to demonstrate (1) he made a timely and proper peremptory challenge to the commissioner under Code of Civil Procedure section 170.61 and (2) the challenge was accepted. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9:121.20, p. 9(I)-102 [disqualification effective upon acceptance by court].) Therefore, we conclude the circumstances presented do not justify exercising our discretionary authority to treat this appeal from a nonappealable order as a petition for writ of mandate. We therefore dismiss this appeal. DISCUSSION I. NONAPPEALABLE ORDER A. Trial Court Proceedings On February 22, 2021, Dennis filed a document titled “PETITIONER’S MOTION TO APPEAL THE DECISION MADE TO CHANGE VENUE” in the Kern County Superior Court. This document stated Dennis was “requesting an appeal on an order to change the venue to Kings County Court” and referred to a request to change venue heard