California Court of Appeals, Second District, Sixth Division
DR. LEEVIL, LLC, Plaintiff and Respondent,
WESTLAKE HEALTH CARE CENTER, Defendant and Appellant.
Court County of Ventura No. 56-2015-00465793-CU-UD-VTA
Vincent J. O'Neill, Jr., Judge
Enenstein Ribakoff LaViña & Pham, Teri T. Pham and
Courtney M. Havens, for Defendant and Appellant.
Offices of Ronald Richards & Associates, Ronald N.
Richards, Nicholas Bravo; Law Offices of Geoffrey Long and
Geoffrey S. Long, for Plaintiff and Respondent.
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 1161a does not require that title be
recorded before the notice to quit is served. We affirm.
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.
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.
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.
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 Health and Leevil leased the facility to another
skilled nursing provider.
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
Motion to Dismiss
asks us to dismiss the appeal as moot because Westlake Health
is no longer in possession of the facility and cannot operate