Monday, November 30, 2015
Page 3
C.A.: Judge Duffy-Lewis Erred in Dismissing Action Based on Superseded Pleading
By a MetNews Staff Writer
The Court of Appeal for this district has reversed a judgment of dismissal that was entered after a judge sustained a demurrer, without leave to amend, to a superseded complaint.
On appeal, the defendant, Wells Fargo Bank conceded that Los Angeles Superior Court Judge Maureen Duffy-Lewis committed error, and Div. Three agreed.
Acting Justice Ann Jones, a Los Angeles Superior Court judge sitting on assignment, recited that Wells Fargo demurrered to a complaint filed by Karan J. Russell over the foreclosure on her property; at the time of the hearing on the demurrer, neither the bank’s lawyer nor Duffy-Lewis realized that an amended complaint had been filed; the demurrer was sustained without leave to amend; Russell moved to vacate the order on the ground that the initial complaint was no longer operative; Duffy-Lewis denied the motion and ordered entry of a judgment of dismissal.
Jones wrote:
“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.]’…Under this rule, the filing of an amended complaint moots a demurrer directed at the original complaint….
“Defendants concede, and we agree, that Plaintiff’s first amended complaint superseded her original complaint, thereby rendering Defendants’ demurrer to the original complaint moot.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.”
The case is Russell v. Wells Fargo Bank, B255457.
Elizabeth P. Beazley and Kendra S. Canape of Keesal Young & Logan represented Wells Fargo.
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