Jamie Kirdain v. Zachary Thompson

or proceedings are entitled to their costs, as hereinafter provided." (Code Civ. Proc., Sec. 1021.)

"[A] party seeking to recover attorneys' fees as the prevailing party in an action on a contract providing for such fees must make an election whether to plead and prove such fees as damages under the contract or claim them as costs of suit. In other words the party must follow either procedure but not both." (Herzog v. Riel (1979) 99 Cal.App.3d Supp. 12, 15.)

Civil Code, section 1717(a) provides, in pertinent part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."

"Section 1717 and its reciprocity principles, however, have " 'limited application. [They] cover[] only contract actions, where the theory of the case is breach of contract, and where the contract sued upon itself specifically provides for an award of attorney fees incurred to enforce that contract. [Section 1717's] only effect is to make an otherwise unilateral right to attorney fees reciprocally binding upon all parties to actions to enforce the contract.' " [Citation.]" (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 820.)

The portion of the agreement relied upon by Plaintiff for recovery of attorney fees provides: "In the event of default in the payment of any amount due, and if this account is placed in the hands of an agency or attorney for collection or legal action, client will pay an additional charge equal to the cost of collection including agency and attorney fees and Court costs incurred and permitted by laws governing these transactions. The terms of this agreement/proposal may be modified if not signed within thirty days of the date first written above. Mutual as to both parties." (Agreement, Art. 12, p. 25.)

Defendants argue that the attorneys' fees provision does not apply to this action because it is not a collection action. Plaintiff argues that Defendants are basing their argument on an unduly narrow reading of the agreement and a premature factual determination regarding whether there are sums presently due under the contract.

Reading the entirety of the complaint, as well as the agreement, the Court agrees with Defendants. The complaint itself is comprised of allegations that Defendants breached the contract in the manner set forth in paragraphs 13 through 15. There are no allegations of a "default in the payment of any amount due" or that an account was placed in the hands of any agency or attorney for collection. The provision relied upon by Plaintiff simply does not apply to this action as the complaint is drafted. The motion to strike will be granted.

However, Plaintiff will not be precluded from either moving to amend the complaint if discovery reveals a basis for recovery of attorneys' fees, or, moving for attorneys' fees, as costs, should Plaintiff prevail in the matter and there are legally supported grounds for doing so.

Tentative Ruling: Jamie Kirdain v. Zachary Thompson Tentative Ruling: Jamie Kirdain v. Zachary Thompson Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 05/27/2026 - 10:00 Nature of Proceedings 1. Application for Writ of Possession; 2. Application for Temporary Restraining Order Tentative Ruling For Plaintiff Jamie Kirdain: Self-Represented For Defendant Zachary Thompson: No Appearance

RULING For all reasons stated herein, Plaintiff Jamie Kirdain's application for writ of possession and application for temporary restraining order are continued to July 29, 2026, at 10:00 a.m. in this department. On or before July 1, 2026, Plaintiff shall effectuate service of summons and complaint, the applications at issue in this hearing, and this minute order on Defendant Zachary Thompson and file appropriate proofs of service with the Court.

Background

On January 20, 2026, Plaintiff Jamie Kirdain initiated this action by filing a verified complaint against Defendant Zachary Thompson, asserting three causes of action for (1) claim and delivery, (2) conversion, and (3) restitution/unjust enrichment.

As alleged in the complaint: Defendant has possession of Plaintiff's belongings, including medication, personal effects, silver coins, and identity-related documents. (Compl., P.P. 6-8.) Despite Plaintiff notifying Defendant and requesting that Defendant return Plaintiff's belongings, Defendant has refused to do so. (Compl., P.P. 9-13.) Defendant has stated an intent to sell Plaintiff's belongings. (Compl., P. 11.) Defendant's continued retention and threatened sale of Plaintiff's belongings is wrongful and unlawful. (Compl., P.P. 10, 13.) Among other relief, Plaintiff seeks the issuance of a writ of possession and return of these belongings to Plaintiff. (Compl., P. 19.)

On March 2, 2026, Plaintiff filed an application for writ of possession and an application for a temporary restraining order. Plaintiff attached a citizen crime report dated January 10, 2026 (Police Report), to her application for writ of possession. The Police Report further describes the situation. According to the narrative section in the Police Report filled out by Plaintiff: Plaintiff left her studio for the holidays on December 16, 2025. There was a sign taped to the door that Plaintiff had trouble reading.

When Plaintiff returned on December 31, 2025, she could not enter. Plaintiff emailed Defendant, Plaintiff's apparent landlord or property manager, inquiring of the status of her belongings. Defendant only provided a photograph. On January 13, 2026, Plaintiff, accompanied by two police officers, attempted unsuccessfully to secure the return of Plaintiff's belongings from Defendant.

Plaintiff has not filed proof of service of the summons and complaint or her applications at issue in this hearing. Defendant has not appeared in this action or filed any response or opposition to Plaintiff's applications.

Analysis

"Upon the filing of the complaint or at any time thereafter, the Plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the Court in which the action is brought." (Code Civ. Proc., Sec. 512.010, subd. (a).) Except for limited exceptions, "no writ shall be issued under this chapter except after a hearing on a noticed motion." (Code Civ. Proc., Sec. 512.020.)

Plaintiff has not sought a writ of possession on an ex parte basis, but no apparent notice has been provided to Defendant. Plaintiff has not filed a proof of service of the summons and complaint. "A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery." (Code Civ. Proc., Sec. 415.10.) "Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a Defendant." (Code Civ. Proc., Sec. 583.210.)

Plaintiff has also not filed a proof of service of her application for writ of possession or her application for temporary restraining order. "Notices must be in writing, and the notice of a motion ... must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice. Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code." (Code Civ. Proc., Sec. 1010.)

The Court will continue this hearing to July 29, 2026, so that Plaintiff may serve the summons and complaint and serve her application for writ of possession and application for temporary restraining order, and serve a copy of this minute order. Plaintiff must effectuate service and file appropriate proofs of service with the Court in compliance with the Code of Civil Procedure. (See Code Civ. Proc. Sec.Sec. 415.10-415.95 [manner of service of summons and complaint]; Code Civ. Proc. Sec.Sec. 1010-1020 [notices and filing of service of papers].)