Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC076017, Richard Adler, Judge.
Bleau Fox, P.L.C., Martin Fox and Sam Helmi for Plaintiffs and Appellants.
Klinedinst PC, G. Dale Britton and Lori J. Maund for Defendants and Respondents.
KRIEGLER, J.
Plaintiffs and appellants Evelyn Thomopoulos and her husband Andreas Thomopoulos appeal from a judgment following an order granting summary judgment in favor of defendants and respondents Oakwood Woodland Hills Lessee, LLC, doing business as Oakwood Woodland Hills, Oakwood Worldwide, LP, and ASN Woodland Hills East, LLC (collectively Oakwood) in this premises liability action. Evelyn tripped on a floor mat that had been rolled or folded to prop open a fire door in the Oakwood apartment building in which the Thomopouloses live. The Thomopouloses contend triable issues of fact exist as to whether Oakwood had actual or constructive knowledge of the dangerous condition. We conclude there was no evidence from which a trier of fact could conclude that Oakwood had actual or constructive notice of a dangerous condition, and therefore affirm the judgment.
Because plaintiffs share the same last name, they will be referred to individually by their first names.
FACTS AND PROCEDURAL BACKGROUND
Allegations of the Complaint
On October 11, 2006, the Thomopouloses filed a complaint against Oakwood for premises liability. In an amended complaint filed on January 24, 2007, the Thomopouloses alleged that Oakwood negligently created and permitted a dangerous condition on their property in Woodland Hills, causing Evelyn to trip and fall on January 24, 2006, resulting in serious injuries and loss of consortium.
Motion for Summary Judgment and Supporting Evidence
On May 18, 2007, Oakwood filed a motion for summary judgment on the grounds that: (1) Oakwood did not have actual or constructive knowledge of the condition that caused Evelyn’s injuries; and (2) the condition was open and obvious. In support of the motion, Oakwood submitted the declaration of property manager William Friel. Friel declared that he works at the Oakwood Apartments in Woodland Hills, which is owned by ASN Woodland Hills East, LLC and controlled by Oakwood Woodland Hills Lessee, LLC. Oakwood had never received any complaints about floor mats being used to prop open fire doors at the property. Oakwood employees did not roll or fold a floor mat to prop open the fire door on January 24, 2006, and Oakwood did not have notice that the door was propped open with a floor mat. Friel responded to the scene of Evelyn’s injury at approximately 12:50 p.m. Oakwood employees were not performing construction or maintenance in the area where she had fallen, nor did Oakwood hire any independent contractors to perform construction or maintenance at the property that day.
Oakwood also submitted the Thomopouloses’ deposition testimony, in which Evelyn stated that she had seen the fire doors propped open on two or three occasions per month, sometimes with a brick or pine cone, and she had never complained to Oakwood. She did not notice any construction or maintenance work on the property when she left the premises or when she returned, prior to her fall. There was light in the area and she saw the rolled floor mat. When Andreas ran to help her, he did not see any maintenance or construction work in the area.
Opposition to Motion and Supporting Evidence
On July 25, 2007, the Thomopouloses opposed the motion on the grounds that triable issues of fact existed as to whether Oakwood had actual or constructive notice of the condition, and the condition was not open and obvious. They submitted Evelyn’s declaration in support of the motion. Evelyn clarified her deposition testimony by stating that she did not see the rolled floor mat until after she tripped, and the floor mat was dark.
They also submitted a portion of Andreas’s deposition testimony. Andreas stated that he had not complained to Oakwood about fire doors being propped open, but he consistently had seen Oakwood employees prop open fire doors with folded floor mats, pine cones and rocks while performing maintenance and repairs prior to the incident. On the day of the accident, he was at his truck when he heard his wife calling for him. He ran to her and found several employees with her, including “three [or] four girls from Oakwood” and two or three Hispanic men. Friel arrived and called an ambulance. Andreas was down on the ground with his wife. Andreas could not understand the employees’ conversation, either because they spoke in Spanish or because he could not understand their accents. Friel told Andreas, “I’m sorry this happened.”
The Thomopouloses also submitted Andreas’s declaration. He declared that after Evelyn tripped, he heard Oakwood employees and maintenance staff in the immediate area apologize to both of them. He inferred that they were apologizing for propping the door open while they performed repairs and maintenance. The Thomopouloses also submitted the expert declaration of a licensed civil engineer.
They submitted deposition testimony of tenant Robert Bress in which he stated that he saw the fire doors propped open only when someone was moving a large number of items into the area or maintenance cleaned the hallway carpeting.
The Thomopouloses also submitted a portion of Friel’s deposition testimony. Friel stated that Oakwood purchased the floor mats used near the doors of the complex to remove asphalt and tar from shoes before people stepped into the hallways. Oakwood instructs staff not to prop open doors except for specific reasons, because it is a safety concern. The staff uses small rocks underneath the door to prop it open. Prior to Evelyn’s fall, Friel had seen doors propped open with floor mats, rolled newspaper, and a paper towel roll insert. When he has seen a mat propping open a door, he has removed the mat from the door. Oakwood’s policy is to perform monthly inspections of the facility. In his deposition, Friel confirmed that a particular document was a report of a property inspection on October 20, 2005.
Reply and Trial Court Ruling
Oakwood filed a reply on August 3, 2007. The trial court granted the motion for summary judgment and entered judgment in favor of Oakwood on August 28, 2007. The Thomopouloses filed a timely notice of appeal on September 27, 2007.
DISCUSSION
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decisions de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings…but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) “There is a triable issue of material fact if, and 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. (2001) 25 Cal.4th 826, 850.)
Oakwood’s Knowledge of the Condition
The Thomopouloses contend a triable issue of fact exists as to whether Oakwood had actual or constructive knowledge of the dangerous condition. We disagree.
A. Applicable Law
A landowner is responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself or herself.” (Civ. Code, § 1714, subd. (a).) The duty owed to invitees is one of reasonable care, and a landowner’s failure to repair, or warn an invitee about, a dangerous condition can constitute negligence. (Rowland v. Christian (1968) 69 Cal.2d 108, 119.) California law imposes liability “only if the owner had actual or constructive knowledge of the dangerous condition that precipitated the [injury].” (Moore v. Walk-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 474.) Actual notice consists in express information of a fact, and constructive notice is imputed by law. (Civ. Code, § 18.)
“Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him. [Citation.] Where the dangerous condition is brought about by natural wear and tear, or third persons, or acts of God or by other causes which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806.)
B. Use of Floor Mats
The Thomopouloses contend Oakwood created a dangerous condition by placing a floor mat in front of the door, knowing that mats are misused to prop open doors. As a matter of law, Oakwood did not create a peril or an unreasonable hazard by placing an unsecured floor mat in front of a door, even though floor mats are occasionally misused as doorstops. There was no evidence of any hazard caused by the floor mat itself or its placement in front of the door. The evidence showed that employees, tenants, and visitors to the building used a variety of objects to prop open the fire doors, including rocks, pine cones, newspapers, floor mats, and even a cardboard paper towel tube. No unreasonable hazard was created by using a common floor mat for its intended purpose.
C. Creation of the Condition
The Thomopouloses contend there is a triable issue of fact as to whether it was Oakwood employees who used the mat to prop the door open. We find no triable issue of fact presented. There is no evidence as to who propped the fire door open with the floor mat. Andrea’s testimony that in the midst of a conversation that he did not understand, an employee said, “I’m sorry,” or Friel told Andreas, “I’m sorry this happened,” are not sufficient to support an inference that it was an Oakwood employee rolled up the mat and propped open the door.
D. Constructive Notice
The Thomopouloses contend there is a triable issue of fact as to whether Oakwood had constructive notice of the dangerous condition.
“The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) The plaintiff must show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection, but the failure to inspect alone could not satisfy the plaintiff’s burden to prove constructive knowledge. (Id. at pp. 1207-1208.) “Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’” (Id. at pp. 1206-1207.)
There is no evidence to establish that Oakwood had constructive knowledge of the condition. Contrary to the Thomopouloses’ argument, no evidence was presented to show Oakwood failed to conduct regular inspections of the premises, and no one had ever complained about floor mats being used to prop open doors. There was no evidence as to who created the condition or the length of time the dangerous condition had existed before the accident. We cannot conclude the condition had existed for such a length of time as to justify charging Oakwood with lack of ordinary care. The property manager’s knowledge that the fire doors were occasionally propped open with various objects, including floor mats, is not sufficient to charge Oakwood with constructive knowledge of a dangerous condition on this occasion. (See Ortega v. Kmart Corp., supra, 26 Cal.4th at pp. 1206-1209.) The trial court correctly concluded that Oakwood did not have actual or constructive notice. Therefore, Oakwood had no duty to repair or warn of the condition. Summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Defendants and respondents Oakwood Woodland Hills Lessee, LLC, doing business as Oakwood Woodland Hills, Oakwood Worldwide, LP, and ASN Woodland Hills East, LLC are awarded their costs on appeal.
We concur: TURNER, P. J., MOSK, J.