Filed 3/17/21 Dr. Leevil v. Westlake Health Care Center CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DR. LEEVIL, LLC,

 Plaintiff and Respondent,

v.

WESTLAKE HEALTH CARE 

CENTER,

 Defendant and Appellant.

2d Civ. No. B304339

(Super. Ct. No. 56-2015-

00465793-CU-UD-VTA)

(Ventura County)

Westlake Health Care Center (Westlake Health) 

appeals from the trial court’s denial of its motion for restitution. 

We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2002, Westlake Village Property, L.P. (Westlake 

Village), leased a skilled nursing facility to Westlake Health for a 

term of 20 years. (Dr. Leevil, LLC v. Westlake Health Care

Center (2017) 9 Cal.App.5th 450, 452 (Leevil I), reversed in part 

by Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 

Cal.5th 474 (Leevil II).) The lease had an automatic 
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subordination clause providing that it was to be “subordinated to 

all existing and future liens and encumbrances against the 

[facility].” (Leevil I, at p. 455, fn. 2.) Six years later, Westlake 

Village took out a loan from TomatoBank, N.A., secured by its

deed of trust on the facility. (Id. at p. 452.) When Westlake 

Village defaulted, TomatoBank sold the loan to Dr. Leevil, LLC

(Leevil). (Id. at pp. 452-453.) Leevil instituted foreclosure

proceedings, and purchased the facility at a trustee’s sale. (Id. at 

p. 453.)

The day after it purchased the facility, Leevil served 

Westlake Health with a notice to quit. (Leevil I, supra, 9 

Cal.App.5th at p. 453.) Leevil recorded title five days later. 

(Ibid.) When Westlake Health refused to vacate the facility, 

Leevil sued for unlawful detainer. (Ibid.) 

The trial court found that Westlake Health’s lease 

was subordinate to Leevil’s deed of trust and had been

extinguished by the trustee’s sale. (Leevil I, supra, 9 Cal.App.5th 

at p. 453.) The court also found that the notice to quit was valid

notwithstanding that it was served before title was perfected. 

(Ibid.) Westlake Health then “withdr[ew] its defense as to service 

of the three-day notice” and stipulated to judgment of possession 

in favor of Leevil. 

We affirmed the trial court’s findings on appeal. 

(Leevil I, supra, 9 Cal.App.5th at pp. 454-457.) The Supreme 

Court subsequently granted Westlake Health’s petition for review 

of our decision, limiting its review to the issue of whether title 

must be perfected before serving a notice to quit. (Leevil II, 

supra, 6 Cal.5th at p. 477.) The court concluded that it was, and 

reversed that portion of our decision holding to the contrary. (Id.

at pp. 484-485.)
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After the remittiturs issued, Leevil dismissed its 

unlawful detainer action against Westlake Health. Ten months 

later, Westlake Health moved for $5.7 million in restitution, an 

amount representing the income it allegedly would have earned 

during the four years following its October 2015 surrender of the 

skilled nursing facility to Leevil. 

The trial court denied Westlake Health’s motion. It 

concluded that the law of the case was that Westlake Health’s

lease was subordinate to the foreclosure deed of trust and had 

been extinguished by the foreclosure sale. (Cf. Morohoshi v.

Pacific Home (2004) 34 Cal.4th 482, 491 [“‘The decision of an 

appellate court, stating a rule of law necessary to the decision of 

the case, conclusively establishes that rule and makes it 

determinative of the rights of the same parties in any subsequent 

retrial or appeal in the same case’”].) Westlake Health thus had 

no legal claim to possession of the skilled nursing facility after 

the sale. Under these circumstances, the trial court ruled that a

restitution award would be inequitable.

It also determined that Leevil’s failure to serve a 

valid notice to quit did not alter the balance of equities. Between 

July 2015 (when Westlake Health surrendered possession of the 

facility) and December 2018 (when the Supreme Court issued its 

opinion), Leevil had no need to serve a new notice since the case 

had consistently been decided in its favor. Only after the 

Supreme Court issued its opinion did Leevil know that a new 

notice would be required. But by that point Westlake Health had 

long since vacated the facility. A new notice would have been 

meaningless. 
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DISCUSSION

Westlake Health contends the trial court erroneously 

denied its motion for restitution. We disagree.

If an appellate court reverses a judgment or order, it 

may “order restitution on reasonable terms and conditions of all 

property and rights lost by the erroneous judgment or order . . .

and may direct the entry of a money judgment sufficient to 

compensate for property or rights not restored.” (Code Civ. Proc., 

§ 908.) But “[e]ven if the reviewing court has not ordered 

restitution, the trial court whose order or judgment has been 

reversed on appeal has the inherent authority to afford 

restitutionary relief.” (Beach Break Equities, LLC v.

Lowell (2016) 6 Cal.App.5th 847, 852 (Beach Break).) This 

authority includes “the award of profits of business conducted on 

[property] taken from tenant following incorrect initial 

judgment.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 

662 (Munoz).) “‘“The fundamental rule guiding the court in such 

proceedings is, so far as possible, to place the parties in as 

favorable a position as they could have been in had the 

judgments not been enforced pending appeal.” [Citation.]’ 

[Citation.]” (Beach Break, at p. 852, alterations omitted.)

Restitution is “a matter of a right if the judgment is 

reversed or set aside, unless [it] would be inequitable.” (Beach 

Break, supra, 6 Cal.App.5th at pp. 852-853.) “Whether a party is 

entitled to restitution following reversal [thus] presents a 

question calling for judicial discretion.” (Id. at p. 853.) We will 

not disturb a trial court’s denial of restitution absent “a showing 

of manifest abuse of [that] discretion.” (Ibid.)

Westlake Health has failed to show that the trial 

court abused its discretion here. After Leevil purchased the 
5

skilled nursing facility at the trustee’s sale, Westlake Health 

occupied it without a valid lease—i.e., as a holdover tenant. (See 

Aviel v. Ng (2008) 161 Cal.App.4th 809, 820.) Westlake Health 

then voluntarily gave up its holdover tenancy when it stipulated 

to Leevil’s possession of the facility. That stipulation is binding. 

(Code Civ. Proc., § 664.6, subd. (a).) As such, Westlake Health 

cannot now claim that it is entitled to restitution for profits it 

would have earned had it remained in possession of the facility 

post stipulation. (Civ. Code, § 3515 [party that “consents to an 

act is not wronged by it”].) Such a result would be inequitable, as 

the court below rightly concluded.

That Leevil prematurely served the notice to quit 

does not shift the balance of equities in Westlake Health’s favor. 

In the stipulated judgment, Westlake Health withdrew any 

defense to its possession of the skilled nursing facility based on 

the notice to quit—valid or otherwise.1 It thus cannot now claim 

that it had the right to be served with a valid notice before

dispossession. (Cf. Civ. Code, § 3532 [“law neither does nor 

requires idle acts”].)

Additionally, a holdover tenant is entitled to 

possession of property only “until the detainer action culminates 

in a judgment of forfeiture.” (Four Seas Inv. Corp. v.

International Hotel Tenants’ Assn. (1978) 81 Cal.App.3d 604, 

612.) That the parties here secured that judgment through 

1 Westlake Health claims that this court previously rejected 

Leevil’s arguments regarding its withdrawal of any notice-to-quit 

defense. But that withdrawal was separate from Westlake 

Health’s preservation of its appellate rights in the stipulation. 

Our prior opinion considered only the latter. (See Leevil I, supra, 

9 Cal.App.5th at p. 453.)
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stipulation rather than at the conclusion of trial does not change 

this rule. A “‘judgment entered without contest, by consent or

stipulation, is as conclusive a merger or bar as a judgment

rendered after trial.’ [Citation.]” (Studley v. Benicia Unified Sch.

Dist. (1991) 230 Cal.App.3d 454, 460.)

None of the cases on which Westlake Health relies 

supports a restitution award here. First, none of the cited cases 

involved a lease that had been extinguished. (See Beach Break, 

supra, 6 Cal.App.5th at p. 850 [no evidence that foreclosure sale 

automatically extinguished lease]; Munoz, supra, 195 

Cal.App.4th at pp. 651-652 [existing lease with two five-year 

options]; Stockton Theatres, Inc. v. Palermo (1953) 121 

Cal.App.2d 616, 618-619 [competing claims over whether lease 

was valid].) And second, none involved a situation where the 

party moving for restitution had stipulated to giving up 

possession of the contested property.

In short, the foreclosure sale extinguished Westlake 

Health’s lease of the skilled nursing facility. The stipulated 

judgment then terminated its right to possession of the facility. 

Westlake Health thus stands in “as nearly as may be in the 

condition in which [it] stood previously” without a restitution 

award. (Ward v. Sherman (1909) 155 Cal. 287, 291.) The trial 

court did not abuse its discretion in denying the restitution claim.
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DISPOSITION

The trial court’s order denying Westlake Health’s

motion for restitution, entered December 12, 2019, is affirmed. 

Leevil shall recover its costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.
Vincent J. O’Neill, Jr., Judge

Superior Court County of Ventura

______________________________

Enenstein Pham & Glass, Teri T. Pham and Matthew 

W. Rosene for Defendant and Appellant.

Law Offices of Ronald Richards & Associates and 

Ronald N. Richards; Law Offices of Geoffrey Long and Geoffrey S. 

Long for Plaintiff and Respondent.