Filed: Nov. 25, 2015
Latest Update: Nov. 25, 2015
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. JONES , J. * INTRODUCTION Plaintiff Karan Russell appeals from a judgment entered after the trial court sustained the demurrer of Defendants Wells
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. JONES , J. * INTRODUCTION Plaintiff Karan Russell appeals from a judgment entered after the trial court sustained the demurrer of Defendants Wells ..
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
JONES, J.*
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concede that the trial court erred by sustaining the demurrer after Plaintiff filed an amended complaint that superseded her original pleading.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.
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
DISPOSITION
The judgment is reversed. Plaintiff is entitled to her costs on appeal.
ALDRICH, Acting P. J. and LAVIN, J., concurs.
