Filed 11/25/15 Russell v. Wells Fargo Bank CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

,

Plaintiff and Appellant

,

v.

WELL S FARGO BANK N.A . et al.,

Defendant s and Respondents

. B25 5457

(Los Angeles County Super. Ct. No. BC503749 )

APPEAL from a judgment of the Superior Court of Los Angeles County,

Maureen Duffy

- Lewis , Judge

. Reversed

.

Karan Russell, in pro. per., f or Plaintiff and Appellant

.

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

Defendants and Respondents.

_____________________2 INTRODUCTION

Plaintiff Karan Russell appeals from a judgment entered after the trial court

sustained the d emurrer 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sustaining the demurrer after Plaintiff filed an amended complaint that superseded her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.

FACT S 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. D espite

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 deni ed Plaintiff’s motion to

vacate and entered a judgment of dismissal. Plaintiff filed a timely notice of appeal from

the judgment.3 DISCUSSION

Pursuant to Code of Civil Procedure section 472, a plaintiff has the right to amend

her complaint once, without le ave of court, after a demurrer is filed and before the

demurrer is heard

. If the plaintiff files an amended co mplaint, the amended pleading

“ ‘ supersedes the original one, which ceases to perform any function as a pleading

. [Citations.]’ ” ( Foreman & Cl ark 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 conce de, 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 o f 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 rem and for further proceedings on Plaintiff’s first amended complaint. We cannot adjudicate the merits of a demurrer that Defendants have yet to file.4 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.