Vithlani v. McMahon
Filed 8/21/08 Vithlani v. McMahon CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DILIP VITHLANI, Plaintiff and Respondent, v. ARNOLD A. McMAHON, Defendant and Appellant. | G038909 (Super. Ct. No. 06CC09497) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT |
It is ordered that the opinion filed July 24, 2008, be modified in the following particulars:
1. On page 18, first full paragraph, the last sentence is deleted which begins with The court correctly deemed . . . . Replace with the following three sentences and place footnote 4 at the end of the first complete sentence: The change of venue motion based on Code of Civil Procedure section 397, subdivision (b), was meritless.[4] We acknowledge the trial court declared the motion moot. We find no reason to disturb this ruling.
The petition for rehearing is DENIED. This modification does not change the judgment.
OLEARY, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.
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[4] We recognize, [Code of Civil Procedure section] 397, [subdivision (d),] states as a ground for change of venue: When from any cause there is no judge of the court qualified to act. [Citations.] No grounds for disqualification are stated in the venue statutes, and reference must be made to [Code of Civil Procedure section] 170.1. [Citation.] . . . [] [Code of Civil Procedure section ] 397, [subdivision] (d)[,] is virtually obsolete. Under the present system of assignment of outside judges by the Chief Justice, no useful purpose is served by transferring the entire case to another county. Assignment of a qualified judge in place of the disqualified judge is all that is necessary. (See People v. Spring Valley Co. (1952) 109 [Cal.App.]2d 656, 672, . . . [dictum that disqualification of all judges in county does not ordinarily require change of venue, for a qualified judge may be assigned]; . . . .) (3 Witkin, Cal. Procedure (1996) Actions, 872, p. 1061.) McMahon argued Judge Monroe was biased due to the proximity of his courtroom to Judge Brookss courtroom. But Orange County has many courtrooms and different courthouses. A motion under this subdivision would have been premature because McMahon never sought to have Judge Monroe disqualified.
