## Facts

- John Semole, an employee of Pacific Motor Trucking Company, died on May 9, 1966 while loading piggyback trailers onto railroad flatcars in the course of his employment.
- His parents filed a wrongful-death action on July 11, 1966 against the employer and a fellow employee, Robert J. Sansoucie.
- The trial court granted the employer summary judgment on December 11, 1970 based on workers’ compensation exclusivity under Labor Code § 3601; plaintiffs did not appeal that ruling.
- Plaintiffs proceeded only against Sansoucie under former Labor Code § 3601(a)(3), which permitted suits against a co-employee only when the injury or death was proximately caused by an act that “evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death.”
- Sansoucie was not served until January 5, 1971, more than four years after the complaint was filed.
- Sansoucie demurred and sought dismissal, arguing (among other grounds) that the pleadings failed to allege facts sufficient to fit the § 3601(a)(3) exception; after multiple amendments, the trial court sustained the demurrer to the second amended complaint without leave to amend and dismissed the action.

## Issues

1. Whether the second amended complaint alleged specific facts sufficient to state a claim against a co-employee under former Labor Code § 3601(a)(3), requiring both reckless disregard for safety and a calculated, conscious willingness to permit injury or death.
2. Whether dismissal was warranted for failure to serve Sansoucie within the statutory period under Code of Civil Procedure § 581a.

## Decision

- The Court of Appeal affirmed the dismissal in favor of Sansoucie.
- The court held the second amended complaint did not state a cause of action under former Labor Code § 3601(a)(3) because it alleged conclusions and statutory labels, not specific facts showing the required level of culpability.
- The trial court did not abuse its discretion in sustaining the demurrer without leave to amend after plaintiffs had multiple opportunities to plead adequate facts.

## Legal Principles

- Workers’ compensation generally provides the exclusive remedy for workplace injury or death; statutory exceptions permitting civil suits against co-employees are construed narrowly.
- Former Labor Code § 3601(a)(3) required fact allegations showing (1) reckless disregard for the injured employee’s safety and (2) a calculated, conscious willingness to permit injury or death; allegations amounting only to negligence or generalized “willful misconduct” do not suffice.
- A plaintiff cannot survive demurrer by merely reciting statutory language or conclusory characterizations; the pleading must allege particular acts or omissions that, if proved, would meet the statutory standard.
- Sustaining a demurrer without leave to amend is proper where repeated amendments fail to cure the absence of essential factual allegations.

## Conclusion

The court affirmed dismissal because the wrongful-death complaint against the co-employee did not plead concrete facts bringing the case within former Labor Code § 3601(a)(3)’s narrow exception to workers’ compensation exclusivity, and plaintiffs were not entitled to further leave to amend after repeated deficient pleadings.


Semole v. Sansoucie, 28 Cal. App. 3d 714, 104 Cal. Rptr. 897 (Ct. App. 1972)