Semole v. Sansoucie

• Decision Date: 14 November 1972
• Citation: 104 Cal.Rptr. 897,28 Cal.App.3d 714
• Court: California Court of Appeals Court of Appeals
• Parties: Lewis A. SEMOLE and Nora Semole, Plaintiffs and Appellants, v. Robert J. SANSOUCIE, Defendant and Respondent. Civ. 39706.

Page 897

104 Cal.Rptr. 897

28 Cal.App.3d 714

Lewis A. SEMOLE and Nora Semole, Plaintiffs and Appellants, v. Robert J. SANSOUCIE, Defendant and Respondent.

Civ. 39706.

Court of Appeal, Second District, Division 2, California.

Nov. 14, 1972.

Rehearing Denied Dec. 7, 1972.

Hearing Denied Jan. 11, 1973.

Mestad & Sanborn and John B. Mestad, Los Angeles, for plaintiffs and appellants.

William E. Still, Norman T. Ollestad, and Edwin C. Martin, Jr., Los Angeles, for defendant and respondent.

HERNDON, Acting Presiding Justice.

Plaintiffs (appellants) appeal from the order dismissing this action brought against respondent to recover damages for wrongful death. The dismissal was entered after respondent's demurrer to appellants' second amended complaint had been sustained without leave to amend on the ground that no cause of action had been stated.

The original complaint, filed on July 11, 1966, alleges that on May 9, 1966, appellants' son, John Semole, was fatally injured while loading piggyback trailers onto railroad flatcars. It named as defendants the decedent's employer, Pacific Motor Trucking Company, and a fellow employee, Robert J. Sansoucie, respondent herein, and ten Does.

On December 11, 1970, the court below granted the motion of the defendant corporation for summary judgment and dismissed the action as to that defendant on the ground that the action against decedent's employer was barred by Labor Code section 3601 which, with inapplicable exceptions, limits the remedy to the recovery of workmen's compensation. Appellants took no appeal from that judgment but have sought to maintain the action against respondent, decedent's fellow employee, by invoking Labor Code section 3601(a)(3) which read at that time as follows:

'(a) Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in Section 3706, the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, except that an employee, or his dependents in the event of his death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, tn the following cases: . . .

'(3) When the injury or death is proximately caused by an act of such other employee which evinces a reckless diregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death to such employee.'

Although named as a party defendant in the original complaint, respondent was not served with summons until January 5, 1971, four and one-half years after the commencement of the action. Respondent filed a general demurrer to the complaint and sought a dismissal of the action on the grounds: (1) that summons was not served upon him within the three-year period as provided in Code of Civil Procedure section 581a; and (2) that the action was barred by Labor Code section 3601.

The trial court refused to dismiss the action under section 581a holding that the filing of respondent's answers to interrogatories on March 2, 1970, had constituted a general appearance. This ruling, which we shall review hereinafter, was based on the decision of this court in Chitwood v. County of Los Angeles, 14 Cal.App.3d 522, 92 Cal.Rptr. 441. Respondent's demurrer was sustained with leave to amend on the ground that facts sufficient to state a cause of action under Labor Code section 3601(a)(3) had not been alleged.

Respondent demurred to appellant's first and second amended complaints on the grounds that a cause of action under Labor Code section 3601(a)(3) had still not been stated and that the action was barred by the statute of limitations. (Code Civ.Proc. § 340.) The court sustained the demurrers, the latter without leave to amend, 'pursuant to points and authorities filed.' Thus, the first issue presented is whether or not the second amended complaint alleges facts

sufficient to state a cause of action. The Complaint Does Set Forth Facts Sufficient To State A Cause Of Action.

The earlier versions of the complaint charged respondent with negligence and reckless disregard for the safety of others. Since this action is subject to the provisions of Labor Code section 3601, above quoted, they were manifestly insufficient to state a claim, for they failed to allege the 'calculated and conscious willingness to permit injury or death' required by the statute.

In an effort to remedy the indicated deficiency, the second amended complaint, the charging allegations of which are set forth in full in the margin, ¹ included an allegation cast in the words of the statute. Citing the rule that allegations of 'wilful misconduct' require that the facts must be stated more fully than in ordinary negligence cases (Snider v. Whitson, 184 Cal.App.2d 211, 7 Cal.Rptr. 353), respondent contends that the complaint must be held inadequate.

No cases dealing precisely with the question before the court have been cited, nor has our independent investigation uncovered any, and so our inquiry must necessarily be rooted in general principles.

It is well settled that '(i)n considering the sufficiency of a pleading, we are bound by the rule that on appeal from a judgment entered on demurrer, the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ. Proc. § 452.)' (Youngman v. Nevada Irrigation Dist., 70 Cal.2d 240, 244--245, 74 Cal.Rptr. 398, 401, 449 P.2d 462, 465.) Obviously, the complaint must be read as a whole (Smith v Kern County Land Co., 51 Cal.2d 205, 207, 331 P.2d 645), and each part must be given the meaning it derives from the total context wherein it appears. (National Automobile & Cas. Ins. Co. v. Payne, 261 Cal.App.2d 403, 408, 67 Cal.Rptr. 784; Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc., 237 Cal.App.2d 724, 727, 47 Cal.Rptr. 294.)

The Supreme Court has consistently stated the guideline that 'a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.' (Youngman v. Nevada Irrigation Dist., Supra, 70 Cal.2d at p. 245, 74 Cal.Rptr. at p. 401, 449 P.2d at p. 465; Smith v. Kern County Land Co., Supra, 51 Cal.2d at p. 209, 331 P.2d 645.) It has also been stated that '(t)he particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff.' (Jackson v. Pasadena City School Dist., 59 Cal.2d 876, 879, 31 Cal.Rptr. 606, 608, 382 P.2d 878, 880; Burks v. Poppy Construction Co., 57 Cal.2d 463, 474, 20 Cal.Rptr. 609, 370 P.2d 313.) This seems particularly applicable to a wrongful death action where none of the plaintiff-heirs was present at the site of the fatal injury.

Finally, it must be noted that the modern discovery procedures necessarily affect the amount of detail that should be required in a pleading. (See Dahlquist v. State of California, 243 Cal.App.2d 208, 212--213, 52 Cal.Rptr. 324.)

Applying these principles to the case at bar, we hold that the complaint, though hardly a model of pleading, stated a cause of action. The statutory requirement is that the death be caused by a fellow-employee's act 'which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death to such employee.' (Lab.Code, § 3601, subd. (a)(3).) In substance, the complaint alleges that respondent failed to inspect the area into which he was backing and that he acted with the state of mind required by the statute.

Respondent contends that Breceda v. Gamsby, 267 Cal.App.2d 167, 178, 72 Cal.Rptr. 832, indicates that a pleading of a 'calculated and conscious willingness' is insufficient. That issue was apparently not before the Breceda court, which made no such ruling. Indeed, the opinion there proceeds on the assumption that such language would be sufficient. The amended complaint there alleged that "in reckless disregard of the health and safety of plaintiff . . . and with a calculated and conscious willingness to expose plaintiff . . . to the risk of injury from falling lumber,' (defendant) Gamsby had ordered that a guard designed to protect the operator be removed from the forklift. A second amended complaint was filed November 27, 1964. It merely added that Gamsby had also 'permitted' the removal of the guard from the forklift. The purpose of the two amendments was to state a cause of action under Labor Code, section 3601, subdivision (a)(3).' Id. at p. 169, 72 Cal.Rptr. at p. 834. Italics added, ellipses in original.)

Respondent contends that paragraph X of the complaint is only a characterization--a conclusion of law--with no additional factual support. 'The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. (Citations.) For example, the courts have permitted allegations which obviously included conclusions of law and have termed them 'ultimate facts' or 'conclusions of fact. " (Burks v. Poppy Construction Co., Supra, 57 Cal.2d at p. 473, 20 Cal.Rptr. at p. 615, 370 P.2d at p. 319.)

In Smith v. Kern County Land Co., Supra, 51 Cal.2d 205, 331 P.2d 645, the issue was whether an allegation that defendant 'desired and wished' that plaintiff come onto his land to remove tree stumps and roots was a sufficient averment of plaintiff's status as an invitee, not a licensee. The Supreme Court ruled, at page 208, 331 P.2d at page 647:

'This allegation...