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 N o. 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 rec ording title to the pro perty. Here

w e reject the occupant ’s claim that the notice to quit is premature, and hold that Code of Civil Procedure section 1161a 1 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

u nless 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

. T he lease had an automatic subordination clause and a permissible subordination clause with a nondisturbance provision. It w as for

a 20

- year term

.

Six years into the lease

, Westlake Village took out a
five

- year loan from Tom atoBank, 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 n onjudicial 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 no t 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 sti pulated that the judgment would “ not affect any party’s appellate rights

. ” The s heriff evicted Westlake3

Health and Leevil leased the facility to another skilled nursing provider.
After Westlake Health fi led 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 subseque nt unlawful detainer p roceeding . ( Id

. at pp. Supp. 3

- 5.) W e 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 opera te it without a license. We de ny thi s request.

Westlake Health reserved the rig ht 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) 1 94 Cal.App.3d 460, 467

- 468.) Moreover,
Westlake Health could apply to renew its licens e if posse ssion
were restored. T he appeal is not moot. The Opportunity t o 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 wo uld be provided: (1) t estimony fr om Ms. Lee , who “would simply say that [ th e 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) testi mony from the attorney who drafted th e 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. Westlak e Health stated that it did not

.

In the absence of disputed facts, interpretation of lease provisions present s a question of law for the court to decide. ( City of Hope Nat ional Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 396 ( City of Hope ) .) Westlake Health has made

n o showing that the trial court failed to consider any relevant
facts. There was thus no need for it to consider extrinsic
evidence.
The Lease Provision s

Westlake Health claims that the trial court erred in finding the lease s ubordinate 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, M cCord & Freedman (1998) 65 Cal.App.4th 1469, 1478 .) A tenant can , however, agree to
subordinate its lease to a f uture deed of trust. ( Id

. at pp. 1478

- 1479.) This is usually done through an automatic subordination
clause

, which provides that the l ease wi ll b e 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 De velopment Co. (1997) 52 Cal.App.4th 1320, 132 8 ( Miscione ).) If the lease
contains both a pe rmissible 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 clause 2 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 clau s e . It had no need t o; 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 encu mbrances against the Premises.”

3 The permissible subordination clause wi th a nondisturbance provision is at paragraph 19: “ La nd lord shall ha v e the right to subordinate this Lease to a n y deed of trust

or m ortg a ge enc u m beri n g the Pr e m i s es . . . . Tenant s hall

c o operate with Landlord a n d a n y le n der which is acquiri n g a securi t y interest i n t h e Pr e mises or t h e Le a se. Tena n t s hall

exe c ute such f

urther doc u m ents and assurances as such lender

m a y require, provided that Tenant ’ s ob l igatio n s under this Lease shall not be i n creased in a n y m ater i al w a y , a n d Tenant sh a ll not be d e prived of its r i ghts u n d er this L ease. Tenant’s

r i ght to quiet possess i on of the Pr e m i s es dur i ng the Te r m shall not be d isturbed if Ten a nt p a y s the re n t and per f or m s all of Tenant’s obligati o ns under th is Lease and is not otherwise in de f ault. ”6

Health’s lease was automatically subordinate to TomatoBank’s
deed of trus t. ( Miscione

, supra , 52 Cal.App.4th at p. 1328.) The trustee’s sale extinguished the le ase. ( 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 prohibi ting terminati on of the lease so long as it i s not in default. But TomatoBank never invoked the permissible subordination clause. Moreover,
Westlake Health’s interpretation fails to reconcile the lease’s

automat ic subordination clause with the permissibl e subordination clause. Westlake Health argued below that the

“ ambiguities in the contract” present “an issue that may requ ire some factual interpretation ” to be decided by a jury. But interpretation of the lease’s provisions presents a legal question
fo r the court. ( Miscione

, supra , 52 Cal.App.4th at p. 1325 .) And

contract amb iguities are construed against the drafter. ( City of Hope

, supra , 43 Cal.4th at p p

. 397

- 398 ; see also Civ. Code, § 1654.) The trial court correctly construed the subordination

c lauses against the drafter, i.e., Westlake Health

. 4
The Notice to Quit Relying on McLitus

, Westlake Health contends that
the trial court should have grant ed judgment on the pleadings
because Leevil did not perfect title before it served the notice to qui t. It claims the notice to quit was premature and nullified the

4 Given our c onclusion, 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 third

party beneficiary. ( Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 121 6.)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.” T h e 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

t itle be perfected before a tenant “may be remo ved” 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 re moved from the property. Section 1161a’s requirements were strictly complied with.

T o conclude otherwise, this court would have to impose an additional requirem ent onto the statutorily required
notice to quit , i.e., p erfection 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 iden tity 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 m ore than five weeks between service of the notice to quit and filing of the unlawful detainer complaint to do8

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.4 th 982, 1010 [t itle can be litigated in a
section 1161a unlawful detainer action ] .)

N one of t he case s cited in McLitus support the

r equirement 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
di fferent. (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

. Ke ssler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 841, d escrib es 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, s uggest
, 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 detai ner 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. ( Bor s uk v. Appellate Division of Superior Court ( 2015) 242 Cal.App.4 th 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 compl aint i s the beginning o f 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 r equirement 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 PUBLI CATION.

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 D efendant 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.