Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a dog-bite case.  Plaintiff Marilyn Hebert is a dog walker for Defendant Wag Group, Co.  She was walking Defendant Adam Olenjniczk’s dogs when she was allegedly viciously attacked and bitten by them.  She sued Defendants for negligence, strict liability, and negligent infliction of emotional distress. 

On July 15, 2024, Plaintiff filed a motion for publication on the ground she had exhausted all efforts to serve Olenjniczk.  The Court denied the motion for publication on July 16, 2024, on the ground Plaintiff’s motion was not supported by admissible evidence.  There was no declaration provided by the process server as to the previous attempts at service.   

On October 21, 2024, Plaintiff filed a second motion for publication.  Before the motion could be heard, on October 22, 2024, this Court dismissed the complaint without prejudice because Plaintiff had failed to file a proof of service showing Defendants had been served.   

Plaintiff now seeks to vacate the dismissal.  Plaintiff argues that her failure to file a proof of service was due to her counsel’s mistake, inadvertence, surprise or excusable neglect.  She maintains that she attempted to serve Olenjniczk multiple times but he was allegedly dodging service.  Her motion is silent as to why she failed to serve the other defendant, Wag Group Inc., although she claims Wag has now been served (on November 27, 2024).   

 

LEGAL STANDARD 

Pursuant to Code Civ. Proc. §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code of Civ. Proc. § 473(b).)  

Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Id.)  The purpose of the attorney affidavit provision is to “relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.”  (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.) 

An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court[.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

DISCUSSION 

Plaintiff’s motion to vacate dismissal is untimely.  The Court dismissed Plaintiff’s complaint on October 22, 2024.  Six months from October 22, 2024 is April 22, 2025.  Plaintiff filed her motion on April 24, 2025.  Accordingly, the motion is untimely and will be denied.    

CONCLUSION AND ORDER 

Based on the foregoing, the Court DENIES Plaintiff’s motion for order reinstating her case and setting trial date.     

 

IT IS SO ORDERED. 

 

DATED: May 15, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court