Filed 3/7/17

CERTIFIED FOR PUBLICATION

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 Civil No. B266931

(Super. Ct. No. 56-2015-

00465793-CU-UD-VTA)

(Ventura County)

A purchaser at a foreclosure sale seeks to evict the 

occupant of the property as soon as possible. It serves a notice to 

quit after the sale but before recording title to the property. Here 

we reject the occupant’s claim that the notice to quit is 

premature, and hold that Code of Civil Procedure section 1161a1

does not require that title be recorded before the notice to quit is 

served. We affirm.

 

1 All statutory references are to the Code of Civil Procedure 

unless otherwise stated.
2

BACKGROUND

Jeoung Hie Lee and Il Hie Lee own Westlake Village 

Property, L.P. (Westlake Village), a business entity that formerly 

owned a skilled nursing facility. In 2002, Westlake Village leased 

the facility to Westlake Health Care Center (Westlake Health), a 

corporation also owned and controlled by the Lees. The lease had

an automatic subordination clause and a permissible 

subordination clause with a nondisturbance provision. It was for 

a 20-year term. 

Six years into the lease, Westlake Village took out a 

five-year loan from TomatoBank, N.A., secured by a deed of trust 

on the nursing facility. When Westlake Village defaulted on the 

loan and filed for bankruptcy, TomatoBank sold the loan to Dr. 

Leevil, LLC (Leevil). Leevil obtained relief from the bankruptcy 

stay, instituted a nonjudicial foreclosure, and purchased the 

nursing facility at a trustee’s sale. 

The day after it purchased the facility, Leevil served 

Westlake Health with a notice to quit. Leevil recorded title to the 

facility five days later. Westlake Health did not vacate the 

facility, and Leevil sued for unlawful detainer. Westlake Health’s 

answer alleged that its lease was senior to the deed of trust and 

that the notice to quit was invalid because it was served before 

title was recorded. At a bifurcated trial, the court found that the 

lease was subordinate to the deed of trust and was extinguished 

by the trustee’s sale. The court also found that the notice to quit

was valid. 

Westlake Health agreed to surrender possession of 

the facility and pay damages before the second phase of trial

began. The parties stipulated that the judgment would “not 

affect any party’s appellate rights.” The sheriff evicted Westlake 
3

Health and Leevil leased the facility to another skilled nursing 

provider.

After Westlake Health filed its opening brief, Leevil 

filed a motion to dismiss the appeal as moot. We deferred ruling 

on the motion until after oral argument. While this case was 

under submission, our Supreme Court ordered publication of U.S. 

Financial, L.P. v. McLitus (2016) 6 Cal.App.5th Supp. 1

(McLitus). In McLitus, the Appellate Division of the San Diego 

County Superior Court held that a property owner’s service of a 

notice to quit before it perfects title to the property renders 

invalid any subsequent unlawful detainer proceeding. (Id. at pp. 

Supp. 3-5.) We vacated submission and ordered supplemental 

briefing.

DISCUSSION

The Motion to Dismiss

Leevil asks us to dismiss the appeal as moot because 

Westlake Health is no longer in possession of the facility and 

cannot operate it without a license. We deny this request. 

Westlake Health reserved the right to appeal in the 

stipulation, and correctly argues that this court can restore its 

possession of the facility. (Old National Financial Services, Inc. 

v. Seibert (1987) 194 Cal.App.3d 460, 467-468.) Moreover,

Westlake Health could apply to renew its license if possession 

were restored. The appeal is not moot.

The Opportunity to Present Argument and Evidence

Westlake Health complains that it was denied the 

opportunity to present extrinsic evidence concerning the intent 

and purpose behind the lease’s subordination clauses. We are not 

persuaded.
4

During the proceedings below, Westlake Health made 

offers of proof as to the testimony that would be provided: 

(1) testimony from Ms. Lee, who “would simply say that [the 

lease] was negotiated on behalf of, yes, her as the principal of the 

lessee, as well as the principal of the landlord” and that 

“[o]bviously the lender was not a party to the contract at that 

time”; and (2) testimony from the attorney who drafted the lease 

to explain why the subordination and nondisturbance clauses 

were included. The court then indicated how it intended to rule, 

and asked Westlake Health whether it intended to submit 

additional evidence. Westlake Health stated that it did not.

In the absence of disputed facts, interpretation of 

lease provisions presents a question of law for the court to decide. 

(City of Hope National Medical Center v. Genentech, Inc. (2008) 

43 Cal.4th 375, 396 (City of Hope).) Westlake Health has made 

no showing that the trial court failed to consider any relevant 

facts. There was thus no need for it to consider extrinsic 

evidence.

The Lease Provisions

Westlake Health claims that the trial court erred in 

finding the lease subordinate to the deed of trust. We disagree.

A lease made before the execution of a deed of trust 

survives a subsequent foreclosure and requires that the 

purchaser take the property subject to the lease. (Principal 

Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65 

Cal.App.4th 1469, 1478.) A tenant can, however, agree to 

subordinate its lease to a future deed of trust. (Id. at pp. 1478-

1479.) This is usually done through an automatic subordination 

clause, which provides that the lease will be subordinate to

encumbrances on the property that later attach. (Id. at p. 1479.) 
5

It can also be done through a permissible subordination clause, 

which permits the deed holder to compel the lessee to 

subordinate its interest. (Miscione v. Barton Development Co.

(1997) 52 Cal.App.4th 1320, 1328 (Miscione).) If the lease 

contains both a permissible subordination clause and a 

nondisturbance provision, the lessee can compel the new owner to 

abide by the terms of the lease. (Ibid.) 

Westlake Health’s lease contains both an automatic 

subordination clause2 and a permissible subordination clause 

with a nondisturbance provision.3 There is no evidence that 

TomatoBank, as the deed holder, ever invoked the permissible

subordination clause. It had no need to; its position was fixed by 

the automatic subordination clause. Under that clause, Westlake 

 

2 The automatic subordination clause is at paragraph 21.6 

of the lease: “This Lease is and shall be subordinated to all 

existing and future liens and encumbrances against the 

Premises.”

3 The permissible subordination clause with a 

nondisturbance provision is at paragraph 19: “Landlord shall

have the right to subordinate this Lease to any deed of trust

or mortgage encumbering the Premises . . . . Tenant shall

cooperate with Landlord and any lender which is acquiring a 

security interest in the Premises or the Lease. Tenant shall

execute such further documents and assurances as such lender

may require, provided that Tenant’s obligations under this

Lease shall not be increased in any material way, and Tenant

shall not be deprived of its rights under this Lease. Tenant’s

right to quiet possession of the Premises during the Term shall

not be disturbed if Tenant pays the rent and performs all of

Tenant’s obligations under this Lease and is not otherwise in

default.” 
6

Health’s lease was automatically subordinate to TomatoBank’s

deed of trust. (Miscione, supra, 52 Cal.App.4th at p. 1328.) The 

trustee’s sale extinguished the lease. (Dover Mobile Estates v. 

Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1498-

1499.) 

The permissible subordination clause with its 

nondisturbance provision does not compel a contrary finding. 

Westlake Health interprets the clause as prohibiting termination 

of the lease so long as it is not in default. But TomatoBank never 

invoked the permissible subordination clause. Moreover, 

Westlake Health’s interpretation fails to reconcile the lease’s

automatic subordination clause with the permissible 

subordination clause. Westlake Health argued below that the 

“ambiguities in the contract” present “an issue that may require 

some factual interpretation” to be decided by a jury. But 

interpretation of the lease’s provisions presents a legal question 

for the court. (Miscione, supra, 52 Cal.App.4th at p. 1325.) And

contract ambiguities are construed against the drafter. (City of 

Hope, supra, 43 Cal.4th at pp. 397-398; see also Civ. Code, 

§ 1654.) The trial court correctly construed the subordination 

clauses against the drafter, i.e., Westlake Health.

4

The Notice to Quit

Relying on McLitus, Westlake Health contends that 

the trial court should have granted judgment on the pleadings 

because Leevil did not perfect title before it served the notice to 

quit. It claims the notice to quit was premature and nullified the 

 

4 Given our conclusion, there is no need to consider 

Westlake Health’s claim that the trial court erred in finding that 

Leevil was not bound by the nondisturbance clause as a thirdparty beneficiary. (Schabarum v. California Legislature (1998) 

60 Cal.App.4th 1205, 1216.)
7

unlawful detainer proceedings that followed. We are not 

persuaded by the reasoning of McLitus and reject this contention.

McLitus relies on the language of section 1161a, 

subdivision (b)(3), which provides that “a person who holds over 

and continues in possession of . . . real property after a three-day 

written notice to quit the property has been served . . . may be 

removed therefrom . . . [w]here the property has been sold in 

accordance with [s]ection 2924 of the Civil Code . . . and the title 

under the sale has been duly perfected.” The statute does not 

require that title be perfected (i.e., that the trustee’s deed be 

recorded) before service of the three-day notice. It requires that 

title be perfected before a tenant “may be removed” from the 

property. 

Westlake Health concedes that it held over in 

possession after the three-day notice to quit was served. It does 

not contend that the trustee’s sale failed to comply with section 

2924 of the Civil Code, or that Leevil failed to perfect title before 

Westlake Health was removed from the property. Section 

1161a’s requirements were strictly complied with. 

To conclude otherwise, this court would have to 

impose an additional requirement onto the statutorily required

notice to quit, i.e., perfection of title before service. McLitus held 

that unless the trustee’s deed was recorded prior to service of the 

notice to quit, the tenant would be prevented “from effectively 

verifying the identity of the alleged purchaser of a property as a 

search of recorded documents would prove futile.” (McLitus, 

supra, 6 Cal.App.5th at p. Supp. 4.) But here, if Westlake Health 

were concerned with verifying Leevil as the purchaser of the 

property, it had more than five weeks between service of the 

notice to quit and filing of the unlawful detainer complaint to do 
8

so. And, in any event, Westlake Health was free to challenge 

Leevil’s claimed ownership in court. (Orcilla v. Big Sur, Inc.

(2016) 244 Cal.App.4th 982, 1010 [title can be litigated in a 

section 1161a unlawful detainer action].) 

None of the cases cited in McLitus support the

requirement that title be perfected before service of the notice to 

quit: Baugh v. Consumers Associates, Limited (1966) 241 

Cal.App.2d 672, 674-675 and Bevill v. Zoura (1994) 27 

Cal.App.4th 694, 697 (Bevill), consider the required contents of a 

notice to quit served in a landlord-tenant dispute, not one served 

after a trustee’s sale. The contents of the two notices are 

different. (Compare § 1161, subd. (2) with § 1161a, subd. (b)(3).) 

Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 

Cal.App.4th 531, 540-541, discusses when a controversy is ripe in 

a declaratory judgment action, not the type of proceeding here. 

Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, describes 

the steps required to perfect title, an issue not raised in this case. 

Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 275 (Garfinkle)

and Salazar v. Thomas (2015) 236 Cal.App.4th 467, 480, suggest, 

in dicta, that the purchaser of property at a trustee’s sale “is 

entitled to bring an unlawful detainer action” (Garfinkle, at p. 

275) after recording the trustee’s deed: precisely what happened 

here. 

The McLitus court read Bevill’s statement that a 

three-day notice “is a prerequisite to an unlawful detainer action”

(Bevill, supra, 27 Cal.App.4th at p. 697) as holding that service of 

the three-day notice marks the start of an unlawful detainer 

action. But one does not “bring an unlawful detainer action” by 

serving a notice to quit. 
9

A trial court acquires jurisdiction over the parties 

when the plaintiff serves the defendant with the unlawful 

detainer summons and complaint. (Borsuk v. Appellate Division 

of Superior Court (2015) 242 Cal.App.4th 607, 612.) Service of 

the notice to quit is an element of the action that must be alleged 

in the complaint and proven at trial (id. at pp. 612-613), but it 

does not give the court jurisdiction over the parties (id. at pp. 

616-617). Filing of the complaint is the beginning of an unlawful 

detainer action. Because title was perfected before the complaint 

was filed, the unlawful detainer proceedings were valid. To 

conclude otherwise, we would have to rewrite section 1161a, 

subdivision (b)(3) to add the requirement that title be perfected 

before the notice to quit is served. That, however, is a legislative 

function. 

DISPOSITION

The motion to dismiss the appeal is denied. The 

judgment is affirmed. Leevil is awarded costs on appeal.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

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

Superior Court County of Ventura

______________________________

Enenstein Ribakoff LaViña & Pham, Teri T. Pham 

and Courtney M. Havens, for Defendant and Appellant.

Law Offices of Ronald Richards & Associates, Ronald 

N. Richards, Nicholas Bravo; Law Offices of Geoffrey Long and 

Geoffrey S. Long, for Plaintiff and Respondent.