Spiteri v. State of California

Filed 7/5/07 Spiteri v. State of California CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

Carmel Spiteri appeals pro se from a judgment entered following the granting of respondent Ray Canter's motion for summary judgment on a single cause of action. The motion was granted after the trial court had sustained without leave to amend demurrers to four other causes of action. The demurrers were filed by Canter and the following respondents: The State of California (State), the California Department of Corrections (CDC), the Parole and Community Services Division (PCSD), Dennis Acosta, and Victoria Wood. Appellant contends that the trial court erred in sustaining the demurrers and in granting the motion for summary judgment. We affirm.

Factual and Procedural Background

In 1998 appellant was convicted of two felony offenses involving minors: participating in an act of oral copulation (Pen. Code, 288a, subd. (b)(2)) and participating in an act of sodomy. (Id.,  286, subd. (b)(2).) Appellant was sentenced to prison for 16 months. On February 9, 1999, he was released on parole. Ray Canter was the parole agent initially assigned to supervise appellant. Appellant's case was later reassigned to Parole Agent Victoria Wood.

On November 4, 2002, appellant filed a first amended complaint against the State, the CDC, Acosta, Wood, and Canter. Acosta was allegedly the supervisor of Wood and Canter. The complaint consisted of eleven causes of action. Only the first five causes of action are relevant to this appeal. The first, second, and third causes of action alleged that the defendants had violated appellant's constitutional rights under title 42 United States Code sections 1981, 1982, and 1983. The fourth cause of action alleged that they had violated "the Americans with Disabilities Act." The fifth cause of action alleged that they had violated the Rehabilitation Act of 1973. (29 U.S.C.  794.) As to these five causes of action, the trial court sustained demurrers with leave to amend. As to the remaining six causes of action, the trial court sustained demurrers without leave to amend.

Appellant filed a second amended complaint. It incorporated the first five causes of action of the first amended complaint, but consolidated them into three causes of action. The first cause of action of the second amended complaint alleged that the State and CDC had violated "the Americans with Disabilities and the Rehabilitation Acts." The second cause of action alleged that all defendants had violated appellant's constitutional rights under 42 United States Code sections 1981, 1982, and 1983. The third cause of action was against Canter alone. It sought damages for violation of appellant's constitutional rights under 42 United States Code section 1983 (hereafter section 1983).

As to the first and second causes of action of the second amended complaint, the trial court sustained demurrers with leave to amend. It overruled Canter's demurrer to the third cause of action.

Appellant filed a third amended complaint consisting of five causes of action. The third amended complaint named the PCSD as an additional defendant. The first cause of action, against Canter alone, was the same as the third cause of action in the second amended complaint. The second cause of action was also against Canter alone. It alleged a violation of appellant's right to privacy under the California Constitution. The third cause of action was against Acosta, Wood, the PCSD, and the CDC. It alleged that they had negligently supervised Canter. The fourth cause of action was against all respondents except the State. It alleged that Canter had negligently caused damage to appellant and that the defendants had negligently supervised Canter. The fifth cause of action sought injunctive and declaratory relief against the State, the PCSD, and the CDC. As to the second through fifth causes of action, on March 17, 2004, the trial court sustained demurrers without leave to amend.

Canter moved for summary judgment on the surviving first cause of action against him alone. The trial court granted the motion. On August 25, 2005, it entered judgment "in favor of defendant Ray Canter." On September 29, 2005, appellant filed a notice of appeal.

Parties to this Appeal and Status of Appeal

The Attorney General has continuously represented all of the respondents in this matter. However, the Attorney General filed a respondent's brief only on behalf of Canter. That brief discussed only the granting of the motion for summary judgment. The Attorney General argued that, as to the orders sustaining Canter's demurrers to the third amended complaint, the notice of appeal was untimely.

In his reply brief, appellant contended that he "has appealed the entire case of dismissal regarding all the Respondents, which resulted in the finalization of the underlying case when Hon. Judge Hilton issued his 'JUDGMENT BY THE COURT' on August 25th., 2005 . . . . That judgment dismissed the entire case." Appellant argued that, since the notice of appeal was filed on September 29, 2005, it was timely filed after entry of final judgment on August 25, 2005. Appellant alleged: "[S]ince no answer has been filed by the remaining Respondents, Appellant's request [sic] that the Order of the Court regarding said remaining Respondents be reversed."

We asked the parties to submit letter briefs on the following issues concerning the parties to this appeal and the status of the appeal: "1. The Attorney General has filed a respondent's brief on behalf of Canter, but not on behalf of the other defendants named in the third amended complaint. Are these other defendants parties to this appeal? [] 2. Assuming that they are parties to this appeal, does the summary judgment operate as a final judgment as to them, or does it operate as a final judgment only as to Canter? If it does not operate as a final judgment as to the other defendants, what is their present status in this case? Was a judgment of dismissal entered as to these other defendants? [] 3. Are the orders sustaining demurrers reviewable on appeal from the summary judgment? . . . [] 4. Assuming that the other defendants are parties to this appeal and that the orders sustaining demurrers as to them are not reviewable on appeal from the summary judgment, should the appeal as to the other defendants be dismissed?"[1]

In his letter brief, the Attorney General states that he "has filed an appellee's brief on behalf of Parole Agent Canter only, because he is the only defendant party to the appeal." The Attorney General construes appellant's notice of appeal as encompassing only the order granting Canter's motion for summary judgment. On the other hand, if the notice of appeal should be construed as also encompassing the orders sustaining demurrers on the causes of action against the other respondents, the Attorney General contends that such an appeal would be time barred. According to the Attorney General, the trial court "effectively dismissed" the claims against the other respondents on March 17, 2004, when it sustained the demurrers without leave to amend on the second through fifth causes of action of the third amended complaint. Because the claims against the other respondents were "effectively dismissed" more than one year before the filing of the notice of appeal, that notice was untimely. However, the Attorney General acknowledges that the record on appeal does not contain a judgment of dismissal as to these causes of action or as to the other respondents.

"The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) Appellant's notice of appeal expressly refers to the judgment entered on August 25, 2005, and makes it clear that he is appealing from this judgment. The notice of appeal also makes it clear that the appeal was intended to encompass all of the respondents, not just Canter. The notice is directed to "the defendants and their defence counsels [sic]." In stating grounds for the appeal, the notice alleges that "Defendants" may properly be sued under a variety of theories for damages and injunctive relief. The third amended complaint did not seek injunctive relief against Canter. The fifth cause of action of the third amended complaint sought injunctive relief against the State, the PCSD, and the CDC. Accordingly, we construe the notice of appeal as constituting an appeal from the judgment entered on August 25, 2005, and encompassing all of the respondents. We do not construe it as seeking review only of the trial court's order granting Canter's motion for summary judgment.

We reject the Attorney General's contention that review of the orders sustaining the other respondents' demurrers is time barred because the trial court "effectively dismissed" the claims against these respondents on March 17, 2004, when it sustained the demurrers without leave to amend on the second through fifth causes of action of the third amended complaint. The record contains no order or judgment dismissing these causes of action or the other respondents. According to the minutes for March 17, 2004, the trial court ordered the Attorney General to "prepare the order/judgment and submit [it] to the court." But the Attorney General failed to comply with the court's order. In the absence of a judgment of dismissal as to the other respondents or the second through fifth causes of action, appellant was not entitled to file an appeal. "An appeal lies from a judgment of dismissal entered on an order sustaining demurrer. (Code Civ. Proc., 904.1 subd. (a); [citation].) An appeal does not lie from an order sustaining a demurrer without leave to amend [citations] . . . ." (Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425; see also Vibert v. Berger (1966) 64 Cal.2d 65, 67 ["our courts have held it to be 'hornbook law that [an] order sustaining a demurrer is interlocutory, is not appealable, and that the appeal must be taken from the subsequently entered judgment' "]; People v. Adamson (1949) 33 Cal.2d 286, 288 [" 'no appeal will lie from an order sustaining a demurrer to . . . a pleading' " because "the order sustaining a demurrer does not finally dispose of the matter; the proceeding is still pending until a judgment of dismissal is entered"]; De La Beckwith v. Superior Court (1905) 146 Cal. 496, 500-501 [in absence of final judgment, party whose demurrer has been sustained without leave to amend "has never really been effectually dismissed from the action"; court has the power "at any time prior to final judgment in favor of a party, to reconsider a ruling sustaining his demurrer to a pleading"].)

The only judgment in this matter is the judgment of August 25, 2005, which was entered after the granting of Canter's motion for summary judgment. We construe this judgment as an appealable final judgment disposing of the entire case as to all of the respondents, not just Canter. "[T]here was nothing further in the nature of judicial action on the part of the court essential to a final determination of the asserted rights of the respective parties." (Eldridge v. Burns (1978) 76 Cal.App.3d 396, 405.) Since the time period for filing a notice of appeal did not begin to run until August 25, 2005, appellant's notice of appeal was timely filed. The orders sustaining respondents' demurrers are reviewable on appeal from the final judgment. (See Code Civ. Proc.,  472c.)

Summary Judgment

Canter's motion for summary judgment was granted on the first cause of action, which was the sole remaining cause of action of the third amended complaint after the sustaining of the demurrers without leave to amend. The first cause of action alleges as follows: "On or about the months of September through November 2001, Defendant Canter entered into [appellant's] residence, while [appellant] was not present, without probable cause or reasonable suspicions that a crime had been committed or was in the process of being committed by [appellant]. Defendant Canter . . . went into [appellant's] bedroom, where he kept a filing cabinets [sic], located, opened and removed files marked attorney-client and work product, made [a] copy [of], reviewed, duplicated and disseminated said confidential attorney-client and work product documents, notes, etc, which included . . . placing said confidential documents in [appellant's] Parole & Community Service Division case file(s), held and maintained by the Defendants." The first cause of action claims that Canter's actions violated his constitutional rights under section 1983.

In his motion for summary judgment, Canter argued that the motion should be granted for four reasons: (1) the undisputed evidence established that Canter had not committed the alleged acts; (2) as a condition of his parole, appellant had waived his Fourth Amendment rights; (3) the action was "barred by the qualified immunity doctrine"; and (4) appellant had failed to state facts sufficient to support a claim of a First Amendment violation.

The trial court considered only the first reason. It ruled that Canter had not violated appellant's constitutional rights because no evidence was presented that Canter had searched appellant's "file cabinet or [his] files marked attorney-client and work-product."

Evidence Presented

In support of his motion for summary judgment, Canter submitted a document signed by appellant and entitled, "Notice and Conditions of Parole." In the document appellant agreed that any parole officer could search his residence and property "at any time of the day or night, with or without a search warrant and with or without cause." Appellant stated that his signing of the document "is undisputed."

Canter also submitted a declaration under penalty of perjury in which he stated as follows: Canter is the parole agent who was assigned to supervise appellant from June 1, 2001 until September 29, 2001. On the latter date, appellant's case was reassigned to Parole Agent Victoria Wood. "As a courtesy to Agent Wood," Canter made several attempts to contact Spiteri at the motel room where he was residing, but Spiteri was never there. During these attempts, Canter entered appellant's room on only one occasion. Canter described the occasion as follows: "[T]he manager requested that I perform a welfare check to determine if [appellant] was injured or ill in his motel room. The manager used the motel's key to let me into the room. Without opening any file cabinets, or touching any files, papers or documents, I performed a welfare check of [appellant's] motel room." Canter declared that he had not searched any filing cabinets in the motel room. Nor had he searched or removed any "files, documents, notes or written materials in [appellant's] motel room."

Canter's statements were included in his separate statement of undisputed material facts. Appellant's response disputed Canter's statements, but it did not set forth any facts showing that Canter's statements were false. Appellant merely declared that, since Canter had stated that "he was at [appellant's] residence when [appellant] was not present," Canter had "the means and opportunity to enter [appellant's] residence in [appellant's] absence and cease [sic] said confidential documents."

Standard of Review

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., 437c, subd. (c).) A triable issue of material fact exists only if "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.)

A defendant moving for summary judgment "bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.]" (Aguilar v. Atlantic Richfield Co ., supra, 25 Cal.4th at p. 850; see also 437c, subd. (p)(2).) He also "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]" ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850) If the defendant carries this burden, the burden of production shifts to the plaintiff "to make a prima facie showing of the existence of a triable issue of material fact." ( Id., at p. 850.) The plaintiff must present evidence that would allow a reasonable trier of fact to find the underlying material fact more likely than not. ( Id., at p. 852.)

On appeal we conduct a de novo review, applying the same standard as the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our obligation is " ' "to determine whether issues of fact exist, not to decide the merits of the issues themselves." ' " (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We "must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

Appellant Failed to Show the Existence of a

Triable Issue of Material Fact

Canter's separate statement of undisputed material facts, supported by his declaration and the search and seizure waiver signed by appellant, met his "initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact[.]" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) The burden then shifted to appellant to show the existence of a triable issue of material fact. (Id., at pp. 850, 852.)

"In opposing a defendant's motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations.] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts. [Citation.] When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out. [Citation.]" (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)

Appellant failed to meet his burden of showing the existence of a triable issue of material fact. He failed to set forth any facts showing that Canter's entry into the motel room was unlawful or that Canter had searched appellant's filing cabinets and had seized confidential documents. Appellant attempted to create a triable issue of material fact by speculating as to what Canter may have done inside his motel room. "An issue of fact is not created by speculation, conjecture, imagination, or guesswork; it can be created only by a conflict in the evidence submitted to the trial court in support of and in opposition to the motion. [Citation.]" (Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116.) Thus, "all the papers submitted show that there is no triable issue as to any material fact and that [Canter] is entitled to a judgment as a matter of law." (Code Civ. Proc., 437c, subd. (c).) The trial court, therefore, did not err in granting Canter's motion for summary judgment.

Demurrers

First Amended Complaint

As to the first through fifth causes of action of the first amended complaint, appellant contends that the trial court erroneously sustained demurrers with leave to amend.[2] Appellant filed a second amended complaint consolidating the five causes of action into three causes of action. Appellant's choice to amend waived any error as to the sustaining of the demurrers. (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 311; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312; Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306 -1307.)

Third Amended Complaint

Appellant contends that the trial court erred in sustaining without leave to amend the demurrers to the second through fifth causes of action of the third amended complaint. The second through fourth causes of action were against public entities and their employees. Appellant sought damages for violations of state law by the defendants. These causes of action were subject to demurrer because appellant failed to allege facts demonstrating or excusing compliance with the Government Claims Act (Gov. Code,  810 et seq.). (State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239 ["[w]e conclude that failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action"]; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612-613, 618 [complaint against public employee based on acts or omissions within scope of employment is subject to general demurrer absent allegation of compliance with Government Claims Act].)

The fifth cause of action was against public entities, but it sought declaratory and injunctive relief instead of damages. As a general rule, the Government Claims Act does not "impose any requirements for nonpecuniary actions, such as those seeking injunctive, specific or declaratory relief. [Citations.]" (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1081.) "This exception does not apply, however, where the demand for nonmonetary relief is merely incidental or ancillary to a prayer for damages. [Citation.]" (Hart v. Alameda County (1999) 76 Cal.App.4th 766, 782; accord, Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 761-762; Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at p. 1081.) k The claim for declaratory and injunctive relief in the fifth cause of action was incidental or ancillary to the claim for damages in the first through fourth causes of action. The primary purpose of the third amended complaint was to obtain monetary relief. As to each of the first four causes of action, appellant sought "[a] monetary award not less than $1,500,000.00," as well as punitive damages. Thus, the fifth cause of action was also subject to demurrer to the extent that it was based on state law.

Appellant contends that the second through fifth causes of action of the third amended complaint were not subject to demurrer because they were brought under section 1983.[3] (Reply letter, p. 10) Our Supreme Court has held that the Government Claims Act does not apply to actions brought under section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 1240.) But the fifth cause of action for injunctive and declaratory relief is the only cause of action that mentions section 1983. The defendants in that cause of action are the State and two state agencies: the CDC and the PCSD. An action under section 1983 cannot be brought against the state or agencies that are arms of the state. (Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1101-1105.) "Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, . . . a State cannot be sued directly in its own name regardless of the relief sought. [Citation.]" (Kentucky v. Graham (1985) 473 U.S. 159, 167, fn. 14.) Thus, to the extent that the fifth cause of action of the third amended complaint alleges a violation of section 1983, it was subject to demurrer because the defendants enjoyed the state's immunity from liability. (Kirchmann v. Lake Elsinore Unified School Dist, supra, 83 Cal.App.4th 1098.)

When a demurrer "is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) " 'To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court.' [Citation.] '[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.' [Citation.]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)

The trial court did not abuse its discretion in not allowing appellant to amend the complaint. The record shows that appellant filed a claim against the state, but it was not timely filed. "[A] plaintiff must timely file a claim for money or damages with the public entity. [Citation.] The failure to do so bars the plaintiff from bringing suit against that entity. [Citation.]" (State v. Superior Court (Bodde), supra, 32 Cal.4th at p. 1237.)

In his first amended complaint, appellant alleged that he had presented "a claim with the state," but the claim "was denied on or about March 2002 on the basis that it was untimely." The record includes a letter, dated March 8, 2002, to appellant from the Victim Compensation and Government Claims Board (Board). The letter states that the Board "has no jurisdiction to consider [appellant's] claim" because it "was filed more than one year from the date of the incident that is the basis of the claim, and it is too late for the Board to consider an application to present a late claim." According to the letter, the claim was received on February 21, 2002.

The record also includes appellant's claim. The only specific incidents referred to in the claim were alleged to have occurred on February 9, 2000, and February 9, 2001, when the state wrongfully refused to discharge appellant from parole. Appellant also alleged: "During the year 2000 and a few months into the year 2001, the Offending Officials denied the claimant's request for treatment, diagnosis, and testing by the physicians of his choosing as authorized by the Offending Official's regulations and the California Penal Code." Appellant stated that "[t]he acts and omissions of the Offending Officials caused injury and damage to the claimant . . . ."

"A claim relating to a cause of action . . . for injury to person shall be presented . . . not later than six months after the accrual of the cause of action." (Gov. Code,  911.2, subd. (a).) Appellant's claim related to alleged causes of action that had accrued more than six months before the claim was presented to the Board. Thus, appellant was barred from bringing a suit based on the untimely claim.

Furthermore, the trial court did not abuse its discretion because appellant's claim failed to set forth the facts underlying the causes of action in appellant's third amended complaint. These facts concerned Canter's entry into appellant's residence and the ensuing search of appellant's file cabinets. The claim, however, did not even mention Canter. Thus, even if appellant's claim had been timely filed, the second through fifth causes of action of the third amended complaint would still have been subject to demurrer for failure to comply with the Government Claims Act. " 'The primary function of the [Government Tort Claims Act] is to apprise the governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate, avoid litigation by settling meritorious claims.' [Citation.] It is therefore necessary for the claim served on the governmental entity to describe fairly what that entity is alleged to have done. 'If a plaintiff relies on more than one theory of recovery against the State, each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.' [Citation.]" (Turner v. State of California (1991) 232 Cal.App.3d 883, 888.) Appellant's third amended complaint alleged a factual basis for recovery that was entirely absent from his written claim presented to the Board.

Disposition

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Douglas Hilton, Judge

Superior Court County of San Luis Obispo

______________________________

Carmel Arthur Spiteri, in pro per.

Bill Lockyer and Edmund G. Brown, Jr., Attorney Generals, James M.Humes, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Rene L. Lucaric, Supervising Deputy Attorney General, J. Conrad Schroeder, Deputy Attorney General, for Plaintiff and Respondent.

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[1] Our letter to the parties also requested that they discuss a number of issues concerning the trial court's orders sustaining demurrers. These issues were as follows: "5. The trial court sustained with leave to amend the demurrers to the first through fifth causes of action in the first amended complaint. Appellant contends that the trial court's order was erroneous. Was any error waived because appellant filed a second amended complaint that included these causes of action? [Citations.] []  6. Appellant contends that the trial court erred in sustaining without leave to amend the demurrers to the second through fifth causes of action of the third amended complaint. Were these causes of action subject to demurrer because appellant failed to allege facts demonstrating or excusing compliance with the Government Claims Act (Gov. Code,  810 et seq.)? [Citations.] []  7. In view of appellant's statement in his first amended complaint that his claim 'was denied on or about March 2002 on the basis that it was untimely,' did the trial court act within its discretion in refusing to allow appellant to amend the second through fifth causes of action of the third amended complaint?"

[2] In his opening brief, appellant states: "The First Amended . . . and Second Amended Complaint . . . are almost identical and will be addressed jointly and not separately [footnote omitted]." However, appellant presents argument only as to the sustaining of the demurrers to the first five causes of action of the first amended complaint. His argument does not even mention the second amended complaint. Accordingly, any alleged error is waived as to the sustaining of demurrers to the second amended complaint. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [" '[t]his court is not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record' "]; see also Stoll v. Shuff  (1994) 22 Cal.App.4th 22, 25, fn. 1 [alleged error mentioned in introduction but never discussed in body of opening brief was not "serious effort to raise the issue on appeal" and therefore was waived].)

[3] "The state courts of California have accepted concurrent jurisdiction with the federal courts to adjudicate suits brought under the federal Civil Rights Act ( 1983). [Citations.]" (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 560, fn. omitted.)