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 Resources for Breach of Contract – Failing to Deliver Goods Sold or Promised

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

226-250 of 327 results

RICHARD GALVAN VS KIA MOTORS AMERICA INC

But Civil Code § 1794 plainly allows for the provision of civil penalties for willful violations of the Song-Beverly Act. (Civ. Code § 1794, subd. (c).) Accordingly, the Motion to Strike is GRANTED with leave to amend as to punitive damages, and DENIED as to the request for civil penalties.

  • Hearing

    Nov 27, 2018

YOUNG V. FCA US LLC

Here, Civil Code § 1794, provides for the recovery of costs and fees when a “buyer of consumer goods who is damaged by a failure to comply with any obligation…or under an implied or express warranty or service contract…” Specifically, § 1794(d) states: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by

  • Hearing

    Nov 26, 2018

RAFIK Y KAMELL VS HANY BOUSHRA MOURICE GUINDY ET AL

Kamel sent Guindy an email on June 21, 2017 stating: “We genuinely apologize for any Inconvenience we may have caused you by violating your the [sic] self-Imposed timeline, Mr DeMarr never received the goods promised for payment made to you on May 30, 2017. Accordingly, this will serve as a formal demand of an Immediate refund of Mr. DeMarr's $275,000 wired to you on May 30, 2017.

  • Hearing

    Nov 13, 2018

LINDA SHORES ET AL VS JUAN C FUENTES INSURANCE ET AL

This is not a "failure to recommend more coverage" case; it is a "failure to deliver the agreed-upon coverage" case. A "failure to deliver the agreed-upon coverage" case is actionable, unlike the "failure to recommend" cases cited by Farmers. An insurance agent has an "obligation to use reasonable care, diligence, and judgment in procuring insurance requested by an insured." (Jones v. Grewe, supra, 189 Cal. App. 3d at p. 954; Kurtz, Richards, Wilson & Co. v.

  • Hearing

    Nov 06, 2018

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

CROWD FUND INVESTMENT GROUP

The court leaves until summary judgment or trial the issue whether the failure to deliver the disclosures and the entity formation documents was a material breach. For purposes of this motion, it concludes the NBP was just a pretext to get Huang out of a contract about which she had reservations. On this issue, the court finds it telling that Huang received an offer from the new buyer one day after she issued the notice of cancellation of the Contract, and accepted that offer the following day. (See Ex.

  • Hearing

    Nov 05, 2018

NORBERTO MASUPIL MARQUINEZ ET AL VS BMW OF NORTH AMERICA LLC

California Uniform Commercial Code, section 2711 applies where “the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract” as was the case in Music Acceptance. (Cal. U. Com. Code, § 2711, emphasis added.)

  • Hearing

    Oct 25, 2018

  • Type

    Contract

  • Sub Type

    Breach

LORENA DOUCET VS GENERAL MOTORS LLC

Code § 1794; 15 U.S.C. § 2301.) In her opposition, plaintiff erroneously contends that claims under the Song-Beverly Consumer Warranty Act can give rise to punitive damages when the violation of the act is willful. (Opposition, p. 3:26-4:14.) In reply, defendant correctly notes that Song-Beverly provides for a “civil penalty” which shall not exceed two times the amount of actual damages. (See Reply, p. 6:28-7:15 [citing Civ. Code § 1794, subd. (c).)

  • Hearing

    Oct 23, 2018

DUK VS FORD MOTOR COMPANY

Civil Code 1794 is specifically applicable to claims brought pursuant to the Song-Beverly Consumer Warranty Act.

  • Hearing

    Oct 04, 2018

  • Type

    Contract

  • Sub Type

    Breach

CISNEROS VS. FCA

Code § 1794(a) very clearly defines who can bring a Song–Beverly claim: 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

    Sep 24, 2018

ROSE VS KIA MOTORS AMERICA INC

Code, § 1794(b)(1).) "Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform." (Civ. Code, § 1794(b)(2).) Commercial Code sections 2712 and 2715 allow for incidental and consequential damages.

  • Hearing

    Sep 12, 2018

  • Type

    Contract

  • Sub Type

    Breach

RAMBOD ETESSAMIAZAM VS MASERATI NORTH AMERICA INC

Code § 1794, subd. (d).) Plaintiff argues that he is the prevailing party because he obtained a $15,000 from Mazerati, with a provision in the settlement agreement providing for an award of attorneys’ fees between five and 32 thousand dollars. (Motion at p. 6.) Mazerati responds that Plaintiff is not the prevailing party because the fees requested — $32,000 — are out of proportion to Plaintiff’s actual $15,000 recovery. (Motion at p. 4.)

  • Hearing

    Sep 06, 2018

PARTY CITY VS. HEMET VALLEY

This cause of action is essentially an accrued breach of contract claim involving past wrongs. Issue No. 3: DENIED. This cause of action is based on Defendant’s failure to deliver possession on the designated date as required pursuant to the Lease. Plaintiff’s position here is that Defendant breached the Lease by failing to deliver possession of the property on the Date of Delivery and failing to provide free rent under Paragraph 2.02(b) of the Lease.

  • Hearing

    Aug 29, 2018

NICOLE CRAMER ET AL VS FCA US LLC

The Court finds attorney’s fees are not recoverable by Defendant through contract, statute or law as the Song-Beverly Act provides a unilateral fee shifting statute permitting plaintiff’s to recover fees under Cal. Civ. Code §1794(d). (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 988.) Based on the foregoing, the motion for attorney’s fees is DENIED.

  • Hearing

    Aug 29, 2018

RUBEN SEROBYAN VS. KIA MOTORS AMERICA, INC.

In Civil Code, §1794(a), “[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.” Plaintiff’s cause of action for violation of Civil Code, §1793.3 is an obligation provided in the same chapter as section 1794.

  • Hearing

    Aug 24, 2018

NICOLE CRAMER ET AL VS FCA US LLC

As such, the request to strike the $800 for expert witness fees for Dan Calef is DENIED. // // Item 10 Plaintiff requests the Court tax Defendant’s requests attorney’s fees in the amount of $122,456.00 on the grounds that these fees are not recoverable by contract, statute or law as the Song-Beverly Act provides a unilateral fee shifting statute permitting plaintiff’s to recover fees under Cal. Civ. Code §1794(d).

  • Hearing

    Aug 22, 2018

JAIME G MONTECLARO VS JOEL STEIN

Code § 1794, subd. (d).) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)

  • Hearing

    Aug 13, 2018

  • Type

    Personal Injury/ Tort

  • Sub Type

    Auto

  • Judge

    Robert S. Draper or Gail Ruderman Feuer

  • County

    Los Angeles County, CA

ADAM CAPLAN ET AL VS FCA US LLC

Code, § 1794, subd. (d).) Defendant FCA does not dispute Plaintiffs’ entitlement to attorney’s fees and only disputes the reasonableness of the amount sought. The court’s objective is to award a fee at the fair market value for the particular action. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The analysis generally begins with the lodestar figure—i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id. at pp. 1131-1132.)

  • Hearing

    Aug 08, 2018

LORIK MIKHAEILPOOR VS BMW OF NORTH AMERICA LLC ET AL

Civil Code § 1794(d) provides: (d) If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. (Bold emphasis added.)

  • Hearing

    Jul 31, 2018

LISA NIEDERMEIER VS FCA US LLC ET AL

ANALYSIS “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.” (Cal. Civil Code 1794(a).)

  • Hearing

    Jul 27, 2018

DOUGLAS BRADLEY SPELTS ET AL. V. FCA US LLC, ET AL.

Legal Authority 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.

  • Hearing

    Jul 19, 2018

SALVADOR H MARQUEZ ET AL VS FCA US LLC ET AL

Civil Code §1794(d) mandates an award of attorney’s fees for attorney’s fees to a prevailing party in an action under the Song-Beverly Consumer Warranty Act. To recover fees, the fess must be based upon actual time expended and the time must have been reasonably incurred.

  • Hearing

    Jul 09, 2018

WEAKLEY V. FORD MOTOR COMPANY

Code § 1794, subd. (d).) Explanation: Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song-Beverly Act via the mediation settlement, wherein defendant agreed to pay them $200,000 in damages, including a full statutory “buy-back” of their vehicle, incidental and consequential damages, and a maximum civil penalty.

  • Hearing

    Jun 27, 2018

BERGMAN VS. COASTAL FERTILITY MEDICAL CENTER, INC.

In other words: “Not every failure to deliver property to the rightful owner constitutes a conversion. To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.

  • Hearing

    Jun 15, 2018

MENLO LAND & CAPITAL VI, LLC V. ATIEVA USA, INC.

Failure to Deliver Timely Possession of the Premises Atieva also asserts that Menlo failed to timely deliver possession of the Premises. (See Atieva’s Separate Statement of Undisputed Facts at Nos. 3, 4, 5, 6, 34.)

  • Hearing

    Jun 14, 2018

MIKE FORNALDES VS MERCEDES-BENZ USA LLC ET AL

.: BC 636992 Hearing Date: May 2, 2018 [TENTATIVE] order RE: plaintiff’s motion for attorneys fees and costs DISCUSSION Plaintiff Mike Fornaldes (“Plaintiff”) moves for attorney’s fees of $26,761.50 and litigation expenses of $2,484.24 pursuant to Civil Code §1794(d) and a multiplier of the lodestar fee award by a factor of 1.0.

  • Hearing

    May 02, 2018

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