SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al.

2025CUPA044571: SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al. 08/27/2026 in Department 43 Demurrer to Second Amended Complaint by State of California acting by and through the Department of Transportation

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Motion: Defendant, Cross-Defendant, and Cross-Complainant, the People of the State of California, (Caltrans) Demurrer to the First and Fourth Causes of Action of Plaintiffs’ Second Amended Complaint

Tentative Ruling: The Court rules on Defendant Caltrans’ Demurrer to Plaintiffs’ Second Amended Complaint as follows:

1. The Demurrer to the First Cause of Action for Negligence is SUSTAINED without leave to amend.

2. The Demurrer to the Fourth Cause of Action for Loss of Consortium is SUSTAINED with leave to amend. Plaintiffs may file a Third Amended Complaint which alleges facts necessary to support a loss of consortium claim if such facts exist. Leave is granted to file a Third Amended Complaint to rectify this issue on or before September 9, 2026.

2025CUPA044571: SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al.

Moving party is ordered to serve notice of the Court’s ruling.

DISCUSSION

A. Legal Standard:

Demurrer for Failure to State Facts Sufficient to Constitute a Cause of Action

CCP section 430.10 identifies the statutory grounds upon which a defendant may demur to a complaint. Subdivision (e) applies where “[t]he pleading does not state facts sufficient to constitute a cause of action.”

A demurrer ordinarily tests defects appearing on the face of the pleading or from matters properly subject to judicial notice. (CCP, § 430.30, subd. (a).)

“A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231, 18 Cal.Rptr.2d 308.) ‘[I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory.’” (Ibid.) (Angie M. v. Superior Ct. (1995) 37 Cal. App. 4th 1217, 1223-24.)

On demurrer, courts admit all material facts properly pleaded and facts that may be inferred from those that are expressly alleged, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7.) Courts must also consider facts set forth in exhibits attached to the complaint. (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) Consideration of extrinsic evidence by the court is error. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer tests only the legal sufficiency of the complaint, not the plaintiff’s ability to prove the facts alleged, or possible difficulty in making such proof. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) Courts must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Id. at 38.) “In considering the merits of a demurrer, however, ’the facts alleged in the pleading are deemed to be true, however improbable they may be.’ [citations]” (Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280.)

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. (Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.App.4th 1443, 1447.) Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the

2025CUPA044571: SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al.

complaint state some valid claim for relief. (Quelimane Co. Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39.)

A demurrer directed to the entire complaint must be overruled if any cause of action survives the demurrer. (Shook v. Pearson (1950) 99 Cal.App.2d 348, 351.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153.) Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992) 7 Cal.App.4th 1088, 1098; HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3.)

Loss of Consortium

“To support a loss of consortium claim, marital spouses must allege that their partner suffered an injury that is “sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired.” (Est. of Tucker ex rel. Tucker v. Interscope Recs., Inc. (9th Cir. 2008) 515 F.3d 1019, 1039, citing Molien v. Kaiser Found. Hosp. (1980) 27 Cal.3d 916 (1980); Anderson v. Northrop Corp. (1988) (Anderson) 203 Cal.App.3d 772.). “The injury may be physical or psychological, but psychological injury must ‘rise [] to the level of a ‘neurosis, psychosis, chronic depression, or phobia’ [to be] sufficient to substantially disturb the marital relationship.’” (Ibid., citing Anderson, supra, 203 Cal.App.3d at 780.)

B. Analysis

1. First Cause of Action Against Defendant Caltrans

Plaintiff has not sufficiently pled the First Cause of Action (for negligence) against Defendant Caltrans. Plaintiff alleges a factual basis under section 815.2, even though Plaintiff alleges liability under Section 842.2. But Plaintiffs’ reliance on Section 842.2, subdivision (a), is misplaced. As explained by the moving party, sections 840 and 842.2. may be pled against Defendant Caltrans’ employees but not Defendant Caltrans. Defendant Caltrans is correct that section 815.2, subdivision (a), is not applicable to a cause of action brought under sections 840 through 840.6 (Article 3 of the Act defining the liability of public employees).

As stated by the court in Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal. App. 3d 822:

2025CUPA044571: SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al.

“Section 840 makes it explicit that except as provided in article 3 (§§ 840-840.6) a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment. The Law Revision Commission comment also emphasizes that the liability of a public employee for a condition of public property must be grounded upon article 3 and upon no other statute. (Van Alstyne, Cal. Government Tort Liability, p. 584.) Since the public entity's liability is a vicarious one, it cannot be held liable for an employee's act or omission where the employee himself would be or is immune (Gov. Code, § 815.2, subd. (b)).

In accord with the foregoing principles, the court in Hilts v. County of Solano (1968) 265 Cal.App.2d 161 [71 Cal.Rptr. 275] held that giving instructions both on negligence and on statutory liability of a public entity under the Government Code for a dangerous condition of public property was error because the liability of the public entity could only be statutory and could not rest on a theory of common law negligence (pp. 169-170).

The facts of this case leave no doubt whatever that notwithstanding any attempt to phrase the theory of recovery differently, the accident complained of by appellants (i) occurred on public property; (ii) was caused by an artificial condition; and (iii) that condition existed owing to the alleged omission of respondent's employees acting within the scope of their employment to make said bench secure. It inescapably follows that the rules set forth above are applicable to the instant case.”

Van Kempen v. Hayward Area Park Etc. Dist. (1972) 23 Cal. App. 3d 822, 825

Like in VanKempen, the allegations of the complaint allege “the accident complained of by appellants (i) occurred on public property; (ii) was caused by an artificial condition; and (iii) that condition existed owing to the alleged omission of respondent's employees acting within the scope of their employment to [take adequate measures to protect against the dangerous condition]. It inescapably follows that the rules set forth above are applicable to the instant case.” The factual allegations made in this respect are merely the factual framework required to satisfy the notice and failure to remedy element of the § 835 claim for dangerous condition of public property, which is the exclusive remedy for injuries cause by a dangerous condition of public property.

The Demurrer to the First Cause of Action is sustained without leave to amend with respect to Defendant Caltrans.

2. Fourth Cause of Action Against Defendant Caltrans

As provided above, Plaintiffs’ First Cause of Action is insufficiently pled. Defendant is correct that Plaintiff has failed to plead facts sufficient to sustain a loss of consortium finding. The SAC only alleges Plaintiff SILVIA VELASCO sustained injuries including traumatic brain injury. These assertions are conclusionary and lack requisite specificity. To properly claim a loss of consortium, Plaintiffs must assert facts which would support a finding that as a result of Caltrans tortious acts, Plaintiff SILVIA VELASCO’s resulting injury is sufficiently serious and disabling

2025CUPA044571: SILVIA VELASCO, et al. vs JOSHYMON KAVANAMALIL KURIAKOSE, et al.

to raise the inference that the conjugal relationship between Plaintiffs SILVIA VELASCO and JOSE VELASCO is more than superficially or temporarily impaired.

Accordingly, the Demurrer to the First Cause of Action is sustained without leave to amend and the Demurrer to the Fourth Cause of Action sustained with leave to amend.

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