MALEK FAMILY REAL ESTATE LLC VS. PAUL THIEBAUT, III, ET AL

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 2:00 PM LINE 10 26-UDL-00609 MALEK FAMILY REAL ESTATE LLC VS. PAUL THIEBAUT, III, ET AL

MALEK FAMILY REAL ESTATE LLC LAURIE LI PAUL THIEBAUT DAVID CARDUCCI

MOTION TO VACATE ENTRY OF DEFAULT JUDGMENT UNDER CCP 473

TENTATIVE RULING:

The Motion to Vacate Entry of Default Judgment brought by Defendant Paul Thiebaut III is GRANTED.

In its Order Shortening Time, the court expressly stated that, “There shall be no reply brief.” (Order Shortening Time, at p. 2.) Defendant nonetheless filed a reply on August 11, 2026. Because the reply papers are in violation of the court’s order shortening time, they have not been considered. Further, without seeking leave of the court nor citing any authority that would permit it to do so, plaintiff then improperly filed a “sur-reply brief” with an accompanying declaration on August 12, 2026. The court struck the sur-reply at an ex parte hearing on August 17, 2026.

A.

Background

Plaintiff owns a property at 1735 Woodland Avenue #11, East Palo Alto, California 94303. (Complaint, at p. 1, boxes 4 & 3.) Defendant signed a one-year lease of the Premises on or about October 29, 2009. (Id., at p. 2, box 6.a.)

On May 14, 2026, plaintiff served defendant with a three-day notice to pay rent or quit (Notice), including an election of forfeiture, at which time $1,640.79 in rent was due. (Complant, at p. 2, box 9.a.(1), & p. 3, boxes 9.c-e, 10.a.(1), & 13, & exh. 2.) The Notice expired on May 19, 2026, by which date defendant had failed to comply.

Plaintiff requested and the Clerk entered a default in favor of plaintiff on June 25, 2026, with a Memorandum of Costs indicating “POSSESSION ONLY.” That same day, plaintiff requested a default judgment by the Clerk for Possession Only, which the Clerk also signed and entered that day. The resulting Writ of Possession issued on June 30, 2026.

On August 3, 2026, the court granted defendant’s ex parte application for an order shortening time, setting the hearing on the instant Motion and requiring that: “Plaintiff’s opposition papers, if any, shall be filed and served no later than August 12, 2026. There shall be no reply brief.” (Order Shortening Time, at p. 2.) Also on that date, the court issued an order staying the judgment entered in this matter through August 26, 2026, directing defendant to pay rent through that date in the amount of $863.04. (Order, August 3, 2026.)

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Defendant now asks the court to set aside the default and the default judgment, so that his case can be decided on its merits.

B. Mistake: Code of Civil Procedure, section 473, subdivision (b)

Defendant asserts that judgment was entered against him through mistake, excusable neglect, inadvertence, and surprise. (Code Civ. Proc., § 473, subd. (b).) He further asserts his diligence in seeking assistance and bringing the Motion upon learning of the judgment. (Thiebaut Decl., ¶¶ 16-17.) Defendant files a proposed Answer with the Motion. Defendant contends that plaintiff could not be prejudiced because it was aware even before having served the notice that defendant was working to obtain rental assistance; that he succeeded in doing so; and that plaintiff chose to reject the payment. In contrast, defendant argues he would be severely prejudiced if he were to lose his rent-stabilized home of twenty years without the opportunity for his defenses to be heard.

C. Evidence

Defendant has lived at the property for almost twenty years, always having paid his rent timely until experiencing financial hardship in May 2026 (Thiebaut Decl., ¶ 2), when the income from his teen/adult life-coaching business which contracts with public schools dipped at the end of the school year. (Id., ¶¶ 3-4.) Defendant promptly informed the custodial manager of the property, George Carvalho, that he was applying for rental assistance with Samaritan House because he could not pay the rent for that month. (Thiebaut Decl., ¶ 4; Opp. at p. 3.) Mr. Carvalho handed defendant the Notice on May 6, 2026, and on May 12, 2026, Samaritan House informed defendant that his application had been approved for two months’ rent. (Thiebaut Decl., ¶¶ 5-6, exh. 1.)

Defendant’s evidence shows that Samaritan House offered plaintiff two months’ rent, establishing a reasonable basis for his erroneous conviction that since plaintiff had been paid, the action would be moot. (See e.g., Thiebaut Decl., ¶¶ 8, 10-11, 7, & exh. 2). Defendant learned to his surprise that plaintiff had rejected the double-rent payment on June 22, 2025, and promptly followed up with several contacts to determine what the issue was. (Id., ¶ 14.) The default and default judgment were entered three days later.

Mr. Carvalho is plaintiff’s “authorized agent.” (Carvalho Decl., ¶ 1.) He acknowledges that he “had conversations with Defendant regarding his attempts to secure rental assistance” (id., ¶ 2), but denies that he provided defendant with legal advice regarding the notice or this lawsuit. (Id., ¶¶ 2-4.)

D. Legal Standards

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. ...

(Code Civ. Proc., § 473, subd. (b).) Plaintiff’s motion is timely; the default and the clerk’s default judgment were entered on June 25, 2026.

“The purpose of this section is to enable courts to relieve a party from the consequences of enforcing the strict and technical rules of procedure, by applying such equitable rules in any individual case as will do justice between the litigants.” (Melde v. Reynolds (1900) 129 Cal. 308, 312 (Melde).) Further, “[b]ecause the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default ... .’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980, citations omitted.)

A “mistake” justifying relief may be either a mistake of fact or a mistake of law. “A mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction.” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1369, citation omitted.) “Inadvertence is lack of heedfulness or attentiveness, inattention, fault from negligence. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276, citation omitted.)

Finally, strong policies favoring adjudication on the merits. Accordingly, liberal construction of Code of Civil Procedure section 473, subdivision (b), favors granting the Motion:

the broad remedial provisions of Code of Civil Procedure section 473 “should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits.” Thus, in determining the merits of a Code of Civil Procedure section 473 motion, the court should take into account the circumstances of the case and the prejudice, if any, to the parties. There is also a strong policy behind granting relief if the moving party brings the motion for relief within the statutory time.

(Carrasco v. Craft (1985) 164 Cal.App.3d 796, 803, citations omitted.)

E. Mistake, and Inadvertence

Defendant’s mistake was in believing that he did not have to respond to the lawsuit because, he believed, the rent that he owed plaintiff had been paid. (See e.g., Thiebaut Decl., ¶¶ 8, 10-11, 17, & exh. 2.) Under this erroneous conviction, defendant did not attempt to file his answer until he learned of the default and default judgment and consulted an attorney. (See id., ¶¶ 15-17.)

Plaintiff asserts that defendant is not entitled to relief because his evidence is the hearsay statement by its agent, that plaintiff’s agent told defendant not to respond to the lawsuit. However, this is not defendant’s only evidence, and even if it were, it is admissible. “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ whether the statement was made in his individual or representative capacity.” (Evid. Code, § 1220.)

Plaintiff erroneously asserts that a reasonable person would not have disregarded the lawsuit in light of the summons, but the very existence of Code of Civil Procedure section 473, subdivision (b), shows that the Legislature contemplates the possibility that a reasonable person might do so on the basis of mistake, inadvertence, surprise, or excusable neglect. Plaintiff further asserts that “Defendant makes no attempt to explain why he failed to seek [legal] advice after being served with the Summons and Complaint” (Opp., at p. 4:14-15), but defendant has presented evidence supporting his erroneous conclusion that “now that the landlord had received the check, there was no need to move forward with the legal process to collect the unpaid rent.” (Thiebaut Decl., ¶ 12.)

Plaintiff further asserts that although rental assistance was issued on defendant’s behalf on the same day he was served with the summons, the notice period had expired so that plaintiff was not obliged “to accept rental assistance. In fact, doing so would have jeopardized this action.” (Opp., at p. 5:1-2.) That argument does not undercut defendant’s argument regarding mistake under Code of Civil Procedure, section 473, subdivision (b).

Rather, because defendant ensured that plaintiff received not only the rent due but that for the following month as well, it is understandable that he believed that the lawsuit had been rendered moot, and that he did not have to respond.

Finally, granting the motion would not prejudice plaintiff, which simply would be required to present its case at trial. Plaintiff has not offered evidence of prejudice.

For all of these reasons, defendant has shown mistake under Code of Civil Procedure, section 473, subdivision (b), and has met the other requirements of the statute.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendant’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, providing written notice of the ruling to all parties who have appeared in this action, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), which states in part that the “prevailing party on a tentative ruling is required to prepare a proposed order repeating verbatim the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the court.