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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

WELLS FARGO BANK N.A. et al.,

Defendants and Respondents.

B255457

(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., for 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 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sustaining the demurrer after Plaintiff filed an amended complaint that superseded her 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.
3

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.