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

NEIL YESCHIN VS HYUNDAI MOTOR AMERICA

Code § 1794(c).) In striking the trial court’s award of punitive damages in addition to civil penalties on a Song-Beverly claim, the Troensegaard court held that had the Legislature, by Civil Code sections 3294 (permitting punitive damages ) and 1794 (permitting a civil penalty), intended a double recovery of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so.

  • Hearing

NIETO V. GENERAL MOTORS, LLC

Code, § 1794). Further, given the ruling as to the demurrer regarding the third cause of action, there are no remaining causes of action to support punitive damages. Defendant is to give notice.

  • Hearing

ANUSHAVAN HARUTUNYAN VS ROLLS-ROYCE MOTOR CARS NA, LLC A LIMITED LIABILITY COMPANY, ET AL.

Code § 1794(d) [buyer prevailing under Song-Beverly Warranty Act entitled to recover reasonable attorney fees]; Civ. Code § 1795.4(b) [buyers under Song-Beverly Warranty Act include lessees].) The arbitration clause does not prohibit the award of costs and fees; rather, it specifically provides that “[t]he arbitrator may award any damages or other relief or remedies permitted by applicable law,” which may include costs and fees. (Beatt Decl. ¶ 4 & Ex. A, ¶ 41.)

  • Hearing

WESTCOTT ENTERPRISES INC VS FEDERATED MUTUAL INSURANCE COMPANY

On the other hand, an insurance agent must use reasonable care in procuring the insurance requested by the applicant; and the failure to deliver the agreed-upon coverage may constitute actionable negligence for which the insurer may be vicariously liable. Id. at ¶ 11:212.5 (citing Butcher v. Truck Ins. Exch. (2000) 77 Cal. App. 4th 1442, 1461, 1462).

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

WESTCOTT ENTERPRISES INC VS FEDERATED MUTUAL INSURANCE COMPANY

On the other hand, an insurance agent must use reasonable care in procuring the insurance requested by the applicant; and the failure to deliver the agreed-upon coverage may constitute actionable negligence for which the insurer may be vicariously liable. Id. at ¶ 11:212.5 (citing Butcher v. Truck Ins. Exch. (2000) 77 Cal. App. 4th 1442, 1461, 1462).

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

BMO HARRIS BANK N.A., A NATIONAL BANKING ASSOCIATION VS NBA AUTOMOTIVE, INC., A CALIFORNIA CORPORATION, ET AL.

The Dealerships and the Guarantors are in default under the Loan Documents, including without limitation, as a result of: (a) material misrepresentations made by the Dealerships; (b) the failure to timely repay Advances when due as required under Section 3.1(A) and (B) of the IFSA; (c) audit violations, including, but not limited to, the double flooring of Vehicles requiring the necessity of collateral monitoring; (d) the Dealerships’ and Guarantors’ failure to deliver timely and complete financial statements

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

NIA LOWE CASSELMAN VS KIA MOTORS AMERICA, INC

Code § 1794.) Song-Beverly provides for a “civil penalty” which shall not exceed two times the amount of actual damages. (Civ. Code § 1794(c).) However, Plaintiffs sixth cause of action—fraud by omission—could give rise to a recovery of punitive damages. As discussed above, the fraud cause of action is well-stated. Defendant also contends that there are no allegations of corporate ratification.

  • Hearing

PATRICIA LADD VS KIA MOTORS AMERICA, INC

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

GOMEZ V. VOLVO CARS OF NORTH AMERICA, LLC

Code § 1794, allows for punitive damages in addition to the statutory remedies. Likewise, emotional distress damages are generally not available in connection with the purchase of an automobile. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 190.)

  • Hearing

JAMES SMITH, ET AL. VS FCA US LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

In Robinson, the court found that fraudulent representations by the defendant exposed the plaintiff to personal damages independent of the economic loss caused by the failure to deliver conforming products, e.g., injuries that could result from the defective helicopter parts. Robinson, supra, 34 Cal.4th at 990.

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

CESAR MENDEZ VS MERCEDES-BENZ USA, LLC, A LIMITED LIABILITY COMPANY, ET AL.

On October 2, 2020, Plaintiff filed the instant motion for attorneys’ fees pursuant to the parties’ settlement agreement and Civil Code § 1794(d). On October 21, 2020, Defendants filed an opposition. On October 27, 2020, Plaintiff filed a reply.

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

NAUTA V GENERAL MOTORS, LLC

Civil Code §1794(a) states: “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.” Defendant argues that Plaintiff failed to adequately allege a contract for warranty by setting out the terms verbatim or attaching the same.

  • Hearing

JULIO P. AYALA, ET AL. VS GENERAL MOTORS LLC, A DELAWARE LIMITED LIABILITY COMPANY

Code § 1794(c) because Defendant’s repurchase offer fully complied with its obligations under Civ.

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

SALEH YOUSEFZADEH VS BMW OF NORTH AMERICA, LLC, A LIMITED LIABILITY COMPANY

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).) Without this purchase agreement, Plaintiff cannot meet this standing requirement or, indeed, the standing requirement for any warranty claim.

  • Hearing

DIHEN V. VOLVO USA, INC., ET AL.

Code, § 1794, subds. (c) and (e).) This civil penalty is distinct from punitive damages under California law, and a plaintiff may not recover both forms of relief for the same conduct. (Troensegaard v. Silvercrest Indust. (1985) 175 Cal.App.3d 218, 228 (Troensegaard); Johnson v. Ford Motor Co. (2005) 135 Cal.App.4th 137, 148 [distinguishing between civil penalties under the Song-Beverly Act and punitive damages awarded for fraudulent conduct]; Romo v. FFG Ins. Co. (C.D.

  • Hearing

ALCOR LIFE EXTENSION FOUNDATION VS KARL E PILGERAM ET AL

The probate petition is a legal proceeding against Kurt and Erin Parks for extrinsic fraud, failure to deliver wills to probate court, breach of fiduciary duty, and wrongful possession of property. (Bretteville Dec., ¶3, Ex. B.) Karl is not the subject of the action and is not named as a party.

  • Hearing

  • Judge Donna Geck
  • County

    Santa Barbara County, CA

ROCHA V. GENERAL MOTORS, LLC

“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).) “As used in this chapter: ¶ (a) "Consumer goods" means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.

  • Hearing

MARIO CLAMAR V. FCA US, LLC, ET AL.

Attorney’s fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc., §1033.5(a)(10)(B).) The prevailing buyer in an action brought under the Act is entitled to reasonable attorney’s fees and costs. (Civ. Code, § 1794(d).) Attorney’s fees under the Act are appropriately determined by the “lodestar” method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination ...

  • Hearing

MURPHY V. FCA US, LLC

Code § 1794, subd. (d).) To reduce the amount of fees to $65,418.33, which includes a lodestar multiplier of 0.15. To grant costs in the amount of $5,179.42.

  • Hearing

EVELYN LOPEZ VS GENERAL MOTORS, LLC

Code § 1794(a).) Plaintiff clearly alleges this. (Compl. ¶¶ 4-13.) Second, the Song-Beverly Act applies to “new motor vehicles” which means, among other things, “a new motor vehicle that is bought or used primarily for personal, family, or household purposes.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 920.) Plaintiff alleges this is so. (Compl. ¶ 5.)

  • Hearing

VERA VS. KIA MOTORS AMERICA, INC

Code, § 1794. In light of the Court’s ruling on the demurrer, Defendant’s motion to strike Plaintiff’s prayer for punitive damages is granted without leave to amend, subject to Plaintiff bringing a motion for leave to amend if evidence is subsequently discovered that would support such relief,.

  • Hearing

PUMPELLY VS KIA MOTORS AMERICA INC

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," if the "failure to comply was willful."

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

PUMPELLY VS KIA MOTORS AMERICA INC

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," if the "failure to comply was willful."

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

PUMPELLY VS KIA MOTORS AMERICA INC

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," if the "failure to comply was willful."

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

PUMPELLY VS KIA MOTORS AMERICA INC

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," if the "failure to comply was willful."

  • Hearing

  • Type

    Contract

  • Sub Type

    Breach

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