What is failing to deliver goods sold or promised?

Elements for a Breach of Contract:

  1. the existence of a contract;
  2. plaintiff’s performance or excuse for nonperformance;
  3. defendant’s breach; and
  4. resulting damages.

(See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

The Court looks to the Parties’ written agreements as clear evidence of their intentions. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 800-801.)

“When a party's failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. Whether a partial breach of a contract is material depends on the importance or seriousness thereof and the probability of the injured party getting substantial performance. A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.” (Brown v. Grimes (2011) 192 Cal. App. 4th 265, 277-278.) “The mental state of the breaching party and the timing of the breach are also relevant factors to determining the materiality of a breach.” (See Schellinger Brothers v. Cotter (2016) 2 Cal. App. 5th 984, 1002.)

Furnishing/Delivery of Goods

In Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App. 4th 1233 the Court of Appeal found that the word “furnished” should be given its ordinary meaning:

“We need only resort to the first level of statutory analysis--the ordinary meaning of the language--to determine whether the beams were ‘furnished’ to the site within the meaning of the release. The usual, ordinary import of ‘furnish’ is to make something available. The first definition of "furnish" in Webster's Third New International Dictionary (1986) at page 923, is: ‘to provide or supply with what is needed, useful, or desirable.’ To deliver materials to a job site is certainly to ‘provide" materials.’” (Id. at 1240.)

Useful Rulings on Breach of Contract – Failing to Deliver Goods Sold or Promised

Recent Rulings on Breach of Contract – Failing to Deliver Goods Sold or Promised

DANIEL KANG VS VOLVO CARS OF NORTH AMERICA, LLC, ET AL.

Civil Code § 1794(c) Civil Code section 1794 provides, in relevant part: (a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

  • Hearing

    Jul 14, 2020

FELICIA JACINTA ANARO VS MASON-MCDUFFIE MORTGAGE CORPORATION AND U.S. BANK, N.A. ET AL.

Any failure of the creditor to comply with the requirements of HOEPA is treated as a failure to deliver material disclosures, thereby triggering the debtor's right to rescind. (Id., § 1639(j).) Holbert v. Fremont Investment & Loan (2009) 179 Cal.App.4th 1067, 1075–1076.

  • Hearing

    Jul 08, 2020

  • Judge

    George J. Abdallah

  • County

    San Joaquin County, CA

KIM NGO VS BMW OF NORTH AMERICA, LLC , ET AL.

First, the Contract furnishes Plaintiff with standing to bring her Song-Beverly Act claims. As Defendants note, standing to bring Song-Beverly Act claims is limited to a “buyer of consumer goods” (Civ. Code § 1794(a)), which the Song-Beverly Act defines as “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.” (Civ. Code § 1791(b).)

  • Hearing

    Jul 08, 2020

ALEXANDER NABIL BASSILY, ET AL. VS KIA MOTORS AMERICA, INC

Code, § 1794.) The Court notes that in Kia’s reply, Kia includes an additional request to strike Plaintiffs’ prayer for prejudgment interest. Because this request was not contained in Kia’s moving papers, the Court declines to consider its merits. Conclusion For the foregoing reasons, the Court sustains Kia’s demurrer in part and overrules Kia’s demurrer in part. The demurrer to the fifth, sixth, and seventh causes of action is sustained with leave to amend.

  • Hearing

    Jul 06, 2020

MIGUEL ANGEL OLVERA, ET AL. V. HYUNDAI MOTOR AMERICA, INC.

Code, § 1794, subd. (a).) “Under the implied merchantability warranty, ‘every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable.’” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545 [reversing order granting nonsuit on implied warranty claim against manufacturer], quoting Civ. Code, § 1792.)

  • Hearing

    Jul 02, 2020

JUAN ARREGUIN, ET AL. VS KIA MOTORS AMERICA, INC. A CALIFORNIA CORPORATION

However, Civil Code § 1794(c) provides for an additional remedy of civil penalties where there is a willful failure to comply “with any obligation under this chapter or under an . . . express warranty”: (a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief. . . .

  • Hearing

    Jul 02, 2020

  • Type

    Contract

  • Sub Type

    Breach

ARBY NAHAPETIAN VS TESLA, INC. D/B/A TESLA MOTORS, INC.

Code, § 1794, subd. (a).) Section 1794, however, does not specify that a consumer has a right to bring an action solely in the California Superior Courts nor does it discuss arbitration. (See ibid.) Courts resolve doubts regarding the scope of arbitrable issues in favor of arbitration. (Moncharsh, supra, at 3 Cal.4th at p. 9.) Furthermore, the court notes that the California Supreme Court has recognized the arbitrability of Song-Beverly Act claims. (See Sanchez v.

  • Hearing

    Jul 01, 2020

TRIWEST DEVELOPMENT, LLC... VS SAM OSTAYAN; ET AL

Defendant argues that any alleged failure to deliver the required plans before close of escrow did not cause Plaintiff Triwest Homes’ alleged damages. “By statute, notice may be actual or constructive. Actual notice is defined as ‘express information of a fact,’ while constructive notice is that ‘which is imputed by law.’ (Civ. Code, § 18.)

  • Hearing

    Jun 29, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

STEPHEN QIU, ET AL. VS BMW OF NORTH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Plaintiffs are relying on the Contract in asserting their claims in a vital sense because the Contract furnishes Plaintiffs with standing. As BMWNA notes, standing to bring Song-Beverly Act claims is limited to a “buyer of consumer goods” (Civ. Code § 1794(a)), which the Song-Beverly Act defines as “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.” (Civ. Code § 1791(b).)

  • Hearing

    Jun 26, 2020

  • Type

    Contract

  • Sub Type

    Breach

GOMEZ VS. NOMAN

While plaintiff contends that punitive damages are allowed under the Song-Beverly Act, plaintiff cites no California authority which indicates punitive damages are recoverable pursuant to Civil Code § 3294, in addition to the penalty articulated within Civil Code §1794(c). Thus, the prayer for punitive damages is stricken from the FAC and the motion to strike is GRANTED. Defendant to give notice.

  • Hearing

    Jun 25, 2020

DONALD J. BIENVENU, SR. VS FCA US LLC, ET AL.

Code § 1794(e).) However, the requested scope is overbroad as there is no geographical limit. Accordingly, the Court limits each of these RPDs to require production of documents about complaints by owners of 2015 Chrysler 200 vehicles within the geographical limit of California. A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.

  • Hearing

    Jun 24, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

IGAL KAHENASSA VS HYUNDAI MOTOR AMERICA, ET AL.

Defendant is to attempt to meet and confer with Plaintiff regarding the remedies provided in Civil Code § 1794(b)(1) and the civil penalties sought under Civil Code § 1794(c) and to file a meet and confer declaration by August 17, 2020. However, if Plaintiff properly files an amended complaint before the continued hearing, the motion to strike will go off calendar as moot.

  • Hearing

    Jun 23, 2020

  • Type

    Contract

  • Sub Type

    Breach

NEREYDA LLAMAS VS GENERAL MOTORS LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

(Civil Code § 1794, subd. (a).) A buyer of consumer goods who is damaged by the manufacturer's failure to comply with the Act may bring an action to recover damages. If the buyer proves the violation was willful, “the judgment may include, in addition to [damages], a civil penalty which shall not exceed two times the amount of actual damages.” (Civil Code § 1794, subd. (c); Jensen, supra, 226 Cal. App. 4th at 121.)

  • Hearing

    Mar 19, 2020

  • Type

    Contract

  • Sub Type

    Breach

MELINDA LEBLANC VS KIA MOTORS AMERICA, INC, ET AL.

Code, § 1794.) Kia also moves to strike the claim for civil penalties under Civil Code section 1793.2, subdivision (a)(3). (FAC, ¶ 91.) Kia argues that section 1793.2, subdivision (d)(1) specifies that the only remedies available under section 1793.2, subdivision (a)(3) is for Kia to accept the return of non-conforming goods or reimburse the plaintiff.

  • Hearing

    Mar 13, 2020

  • Type

    Contract

  • Sub Type

    Breach

PAN V. VOLVO CARS OF NORTH AMERICA, LLC, ET AL.,

Code, § 1794, subd. (b).) This language clearly indicates that the relief articulated in Civil Code section 1793.2, subdivision (d) is not the only relief permissible. Thus, the motion to strike the civil penalty request is denied. Defendant is ordered to answer the SAC, no later than March 23, 2020. Defendant shall give notice of the ruling.

  • Hearing

    Mar 06, 2020

LUIS GONZALEZ , ET AL. VS KIA MOTORS AMERICA, INC, ET AL.

However, civil penalties are authorized for willful violations of this statute by Civil Code § 1794, subd. (a), (c).) The Motion to Strike is therefore DENIED. DATED: March 3, 2020 ____________________________ Hon. Robert S. Draper Judge of the Superior Court

  • Hearing

    Mar 03, 2020

  • Type

    Contract

  • Sub Type

    Breach

ERIK A HENNINGS VS BMW OF NORTH AMERICA LLC ET AL

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” Civil Code § 1794(a). Fitness for the ordinary purpose for which a product is sold “is shown if the product is in safe condition and substantially free of defects.” Mexia v.

  • Hearing

    Feb 28, 2020

  • Judge Donna Geck
  • County

    Santa Barbara County, CA

NABIL FADEL VS BMW OF NORTH AMERICA, LLC, ET AL.

Attorneys’ Fees Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).) In a lemon law action, costs and expenses, including attorney’s fees, may be recovered by a prevailing buyer under the Song-Beverly Act. (See Civ. Code, § 1794(d).)

  • Hearing

    Feb 28, 2020

SUPERIOR COURT VS. TUTTLECLICK FORD

(Civil Code, §1794, subd. (c).) Again, defendant Ford takes issue with the lack of any factual detail in Plaintiff’s third cause of action, but implicitly acknowledges Plaintiff has mirrored the language of Civil Code section 1793.2, subdivision (a)(3). While it may lack detailed specifics, the complaint does make an averment of fact which, for purposes of a motion for judgment on the pleadings, this court accepts as true. Defendant Ford may obtain more factual detail during discovery.

  • Hearing

    Feb 27, 2020

PAULA GONZALEZ ET AL VS FCA US LLC

Legal Standard Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).) In a lemon law action, costs and expenses, including attorney’s fees, may be recovered by a prevailing buyer under the Song-Beverly Act. (See Civ. Code, § 1794(d).)

  • Hearing

    Feb 25, 2020

KAY VS KIA MOTORS AMERICA INC

More importantly, Civil Code section 1794(a) states "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code, § 1794(a) [Emphasis added].) Civil Code section 1794(c) specifically provides for civil penalties, which qualifies as "other legal and equitable relief."

  • Hearing

    Feb 20, 2020

  • Type

    Contract

  • Sub Type

    Breach

KAY VS KIA MOTORS AMERICA INC

More importantly, Civil Code section 1794(a) states "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code, § 1794(a) [Emphasis added].) Civil Code section 1794(c) specifically provides for civil penalties, which qualifies as "other legal and equitable relief."

  • Hearing

    Feb 20, 2020

  • Type

    Contract

  • Sub Type

    Breach

KAY VS KIA MOTORS AMERICA INC

More importantly, Civil Code section 1794(a) states "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code, § 1794(a) [Emphasis added].) Civil Code section 1794(c) specifically provides for civil penalties, which qualifies as "other legal and equitable relief."

  • Hearing

    Feb 20, 2020

  • Type

    Contract

  • Sub Type

    Breach

KAY VS KIA MOTORS AMERICA INC

More importantly, Civil Code section 1794(a) states "[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief." (Civ. Code, § 1794(a) [Emphasis added].) Civil Code section 1794(c) specifically provides for civil penalties, which qualifies as "other legal and equitable relief."

  • Hearing

    Feb 20, 2020

  • Type

    Contract

  • Sub Type

    Breach

ANTONIO GUTIERREZ VS FORD MOTOR COMPANY

Plaintiffs now move to confirm those costs and for an award of attorney fees (under Civil Code § 1794(d)), which together total $19,623.27. Ford opposes. Merits of Motion There are essentially two main threads of argument raised by the parties. The first has to do with whether the amount of litigation that took place in this case was even necessary because, according to Ford, it made an offer to repurchase the Vehicle before the case was even filed.

  • Hearing

    Feb 20, 2020

  • Type

    Contract

  • Sub Type

    Contract - Other

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