Page v. City of Montebello

• Decision Date: 26 November 1980
• Citation: 169 Cal.Rptr. 447,112 Cal.App.3d 658
• Court: California Court of Appeals Court of Appeals
• Parties: Elsa M. PAGE et al., Plaintiffs and Appellants, v. CITY OF MONTEBELLO, Defendant and Respondent. Civ. 54611.

Page 447

169 Cal.Rptr. 447

112 Cal.App.3d 658

Elsa M. PAGE et al., Plaintiffs and Appellants, v. CITY OF MONTEBELLO, Defendant and Respondent.

Civ. 54611.

Court of Appeal, Second District, Division 1, California.

Nov. 26, 1980.

Hearing Denied Feb. 11, 1981.

Einstein, Einstein & Spiegel and Gary Einstein, Los Angeles, for plaintiffs and appellants

Burke, Williams & Sorensen, J. Robert Flandrick and Mark C. Allen, Jr., Los Angeles, for defendant and respondent.

L. THAXTON HANSON, Associate Justice.

Plaintiff Elsa Page, widow of decedent Perry J. Page, individually and as guardian ad litem for Tina Page, minor daughter of decedent, appeals summary judgment for defendants in this action to recover death benefits on the basis of a promise allegedly made to decedent and his spouse by a police officer employed by the City of Montebello.

FACTS

On July 18, 1976, there was a robbery at Now Sound, Inc. (hereinafter referred to as Now Sound), the stereo store in Montebello where Perry Page was employed as manager. Perry Page was abducted, shot and killed by the robber. In the months preceding his death, Page had been working with the Montebello police as an informant and had assisted them in apprehending several suspects engaged in narcotics dealings. His widow was informed that his death was related to his undercover narcotics activities.

Plaintiffs thereafter instituted this action against the City of Montebello (hereinafter referred to as the City), its agents and/or employees named as Does, and the Montebello Police Department (hereinafter referred to as the Department). Their complaint alleges, inter alia, that on or about November of 1975 and January of 1976, Elsa Page and decedent were orally promised by defendants that if anything physical happened to decedent through his work with the Department as an undercover narcotics agent, decedent, or his wife and child, would be compensated as though he were a policeman; that decedent was working as an undercover agent at the time of his death and was killed as a result of these duties; that decedent and plaintiff performed all conditions of this contract, which was made expressly for their benefit; and that the City breached by refusing to perform. In a second cause of action plaintiffs further allege that when defendants made the promise they knew, or should have known, that decedent would be reasonably induced to rely on their promise; that he did so rely in becoming an undercover narcotics agent; that defendants failed to perform and that justice requires that the promise be enforced. In a third cause of action, plaintiffs allege in addition that defendants at the time of making the promise had no intent to perform; that Elsa Page and decedent had no way of knowing this; that decedent performed in reliance on that promise, without which he would not have done such work; that defendants failed to perform; and that as the result of their fraud plaintiffs were injured. As a result of defendants' breach, Elsa Page alleges she was deprived of "the society, consortium and income of decedent" while Tina Page was deprived of a parent-child relationship and the support of her father; each prays to be awarded the benefits paid to a widow or child, respectively, of a policeman killed while performing his duty or, in the alternative, the sum of $250,000 damages.

Concurrently with the filing of this civil action, plaintiffs filed a claim to recover workers compensation benefits from both Now Sound and the City alleging that Page's death arose out of and related to the scope of his employment by both employers. The workers compensation judge on January 31, 1978, following an evidentiary hearing, issued an Opinion on Decision finding that Page's death arose out of and in the On April 24, 1978, the WCAB issued its opinion and order granting reconsideration. The WCAB rescinded the earlier award and order, and found that Perry Page, while employed on July 18, 1976 by both Now Sound and the City sustained an injury arising out of and occurring in the course of employment which proximately resulted in his death on that date. In holding both Now Sound and the City responsible, the WCAB relied upon Labor Code section 3366 ¹ and its earlier decision in Amend v. City of Long Beach (1965) 30 Cal.Comp.Cases 29. Subsequently the City's petition for reconsideration was granted and the WCAB on July 18, 1978, filed a second opinion affirming and adopting its April 24, 1978, decision. The WCAB quoting from testimony given by an officer at the December 15, 1977, hearing, concluded that Page performed services on request of the Department. The City's petition for writ of review relating to the WCAB decision was subsequently denied by the Court of Appeal (Page v. City of Montebello (Apr. 29, 1980) 2 Civ. 54309) and the California Supreme Court (June 25, 1980).

scope of his employment by Now Sound; that the City did not employ Page; and that his widow and daughter were entitled to an award of $55,000 death benefits. Petitions for reconsideration were filed by both parties, and the judge on March 8, 1978, issued a recommendation to the Workers Compensation Appeals Board (hereinafter referred to as the WCAB) that both petitions be denied.

Meanwhile, on November 14, 1977, their demurrers to the complaint having been overruled, defendants filed in the case at bench a motion for summary judgment. The principal thrust of the motion, which is supported by declarations of the City Administrator, the City's Employee Relations Officer, the Chief of Police, and one of the attorneys for the City, is that because decedent was never an employee of the City, and the City was not aware of any promise made by any employee to decedent, it cannot be held liable for the payment of benefits to the plaintiffs which would be contrary to the public interest. Hearing on the motion was held on March 10, 1978. In the interim plaintiffs filed their opposition to the motion incorporating therein their opposition to defendants' demurrer. The opposition was supported by the declarations of Elsa Page and Gary Einstein, her attorney; attached to Einstein's declaration is the police report relating to the arrest of certain narcotics suspects with which decedent assisted. Plaintiffs also requested the court to take judicial notice of the Opinion on Decision issued by the workers compensation judge on January 31, 1978, together with the award and minutes of the hearing. In addition, the court file included the deposition of Elsa Page and responses to interrogatories by both parties.

The material facts disclosed by the record show that Perry Page, through his business at the stereo store where he was employed, sometimes came into contact with individuals who asked him whether he wanted to purchase illegal drugs. Decedent told his wife in November 1975 that he had given this information to Officer McConnell of the Montebello Police Department. Elsa Page expressed concern that decedent or his family might be endangered by this conduct. However, Officer McConnell in a telephone conversation with husband and wife later that month told Mrs. Page not to worry about her husband's activities as an informant because he would not be involved in anything dangerous, and if he was injured "he would be taken care of" and his family would be taken care of.

Subsequently in January 1976 Officer McConnell came to the Page home and repeated to Elsa Page that if anything should happen to her husband, he and his family would be taken care of "as a police officer and that his family would be taken care of." Elsa Page in her supporting declaration alleges, inter alia, that she knows from discussions with her husband that he would not have placed himself in danger or participated as he did with the Department but for the representations made by Officer McConnell. Thereafter in early June 1976, decedent told his wife that he had been involved with the Department in narcotics activities and that he had "helped set up" the arrests of several individuals on narcotics charges.

The circumstances gleaned from the WCAB opinion and police report disclose that Page agreed to aid the Department in the apprehension of certain persons who were dealing in narcotics. Page was to arrange to meet with the dealer to make a purchase of narcotics and the police, who maintained surveillance, would then arrest the dealer. This plan was effectuated; decedent purchased drugs and upon his signal to police officers that the purchase was completed, those involved were apprehended.

Subsequently on July 18, 1976, while Page was at the stereo store where he was regularly employed, an individual who was later identified as Johnson aka Karnes, entered the premises on the pretext of buying stereo equipment. Johnson/Karnes drew a gun on Page and his coemployee, demanded the money from the cash register, and then told Page and his coemployee to accompany him to Page's car. When he learned the car would hold only two persons, he ordered the coemployee to lock himself inside the store. Johnson/Karnes then departed with Page who was found shot to death at a location near the store later that day.

When Perry Page did not return from work, his wife contacted the Department and was told that her husband was dead. On July 19, 1976, she visited the Department and was told by Officer McConnell and Detective Sertansky that they were investigating the murder and that the death was not connected with Page's activities as an informant. On July 20 these officers told her the suspect had been apprehended. Then on July 24 Officer McConnell told her that her husband's death was related to the work he was doing with them; that the man who killed him was a friend of the people arrested in the drug bust the end of May or early June. It appears that Johnson/Karnes was the roommate of Allen Merry who was arrested as a result of Page's activities; that in the presence of Johnson/Karnes,...