Filed 11/25/15 Russell v. Wells Fargo Bank CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


KARAN J. RUSSELL,                                                     B255457

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. BC503749)
         v.

WELLS FARGO BANK N.A. et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Maureen Duffy-Lewis, Judge. Reversed.


         Karan Russell, in pro. per., for Plaintiff and Appellant.


         Keesal, Young & Logan, Elizabeth P. Beazley and Kendra S. Canape for
Defendants and Respondents.


                                            _____________________
                                   INTRODUCTION
       Plaintiff Karan Russell appeals from a judgment entered after the trial court
sustained the demurrer of Defendants Wells Fargo Bank, N.A. and JPMorgan Chase
Bank, N.A. to her original complaint. Defendants concede that the trial court erred by
sustaining the demurrer after Plaintiff filed an amended complaint that superseded her
original pleading. We also conclude this was error and reverse.
                   FACTS AND PROCEDURAL BACKGROUND
       On March 25, 2013, Plaintiff filed her original complaint against Defendants,
asserting various causes of action related to the deed of trust encumbering her property,
her loan modification review, and the foreclosure proceedings on her property.
Defendants filed a demurrer to the original complaint on May 9, 2013, noticing a hearing
date of September 17, 2013.
       On September 6, 2013, Plaintiff filed a first amended complaint. Despite
Plaintiff’s filing of the amended pleading, neither Defendants nor the court took the
demurrer hearing off calendar.
       On September 17, 2013, the trial court took Defendants’ demurrer under
submission, and issued a minute order sustaining the demurrer without leave to amend.
       On October 3, 2013, Plaintiff filed a motion to vacate, in which she argued, among
other things, that her filing of an amended complaint rendered the demurrer to the
original complaint moot. On March 13, 2014, the trial court denied Plaintiff’s motion to
vacate and entered a judgment of dismissal. Plaintiff filed a timely notice of appeal from
the judgment.




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                                      DISCUSSION
       Pursuant to Code of Civil Procedure section 472, a plaintiff has the right to amend
her complaint once, without leave of court, after a demurrer is filed and before the
demurrer is heard. If the plaintiff files an amended complaint, the amended pleading
“ ‘supersedes the original one, which ceases to perform any function as a pleading.
[Citations.]’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Under this
rule, the filing of an amended complaint moots a demurrer directed at the original
complaint. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th
487, 506.)
       Defendants concede, and we agree, that Plaintiff’s first amended complaint
superseded her original complaint, thereby rendering Defendants’ demurrer to the
original complaint moot. The trial court’s subsequent ruling on the demurrer was
therefore ineffective to dispose of the case. Accordingly, the judgment of dismissal is
reversed.1




1
       As for Plaintiff’s invitation to address whether collateral estoppel or res judicata
would apply to the claims asserted in her amended complaint, we have no cause to
consider these claims at this time. Defendants have yet to respond to Plaintiff’s amended
pleading, and Plaintiff’s appeal was taken from a judgment of dismissal entered upon her
original complaint. In view of this procedural posture, the only appropriate relief this
court can provide is reversal of the judgment and remand for further proceedings on
Plaintiff’s first amended complaint. We cannot adjudicate the merits of a demurrer that
Defendants have yet to file.


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                                    DISPOSITION
      The judgment is reversed. Plaintiff is entitled to her costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                JONES, J.*

We concur:




                    ALDRICH, Acting P. J.




                    LAVIN, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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