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

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

    Nov 03, 2020

  • 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

    Nov 01, 2020

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

    Oct 30, 2020

  • 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

    Oct 30, 2020

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

    Oct 29, 2020

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

    Oct 23, 2020

  • 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

    Oct 23, 2020

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

    Oct 20, 2020

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

    Oct 15, 2020

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

    Oct 14, 2020

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

    Oct 08, 2020

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

    Oct 08, 2020

  • 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

    Oct 08, 2020

  • 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

    Oct 08, 2020

  • 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

    Oct 08, 2020

  • Type

    Contract

  • Sub Type

    Breach

GERMAIN GREEN, ET AL. VS HYUNDAI MOTOR AMERICA, INC.

Civil Code § 1794(3) Defendant’s argument that Civil Code § 1794 requires a complaint to pead willfulness is incorrect. And assuming, arguendo, there were such a requirement the operative complain so alleges. (Complaint, ¶97.) The motion to strike the civil penalties allegations and prayer is DENIED.

  • Hearing

    Oct 02, 2020

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

Civil Penalties Under Civil Code section 1794, subdivision (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.” (Civ. Code, § 1794, subd. (a).) “[A] civil penalty may be awarded if the jury determines that the manufacturer ‘knew of its obligations but intentionally declined to fulfill them.”

  • Hearing

    Oct 01, 2020

MARIA GOMEZ VS HYUANDI MOTOR AMERICA

Code §1794(b); Cal. U. Com. Code §§2711-2715.) It seems questionable, however, that a buyer could cancel the sale and get the purchase price back solely for delay in completing repairs, particularly if the repairs were ultimately successful.”

  • Hearing

    Sep 30, 2020

NELSON RENE PINEDA VS FCA US, LLC, ET AL.

Code, § 1794(a) ("Any buyer of consumer goods . . . may bring an action . . . ."). Plaintiff's claims do not rely on any of the terms in the Purchase Agreement, only the fact that he purchased the vehicle. This case is not distinguishable from Kramer where the plaintiffs also brought claims for implied warranty of merchantability, which similarly required that the plaintiffs had purchased their vehicles. See 705 F.3d at 1131.

  • Hearing

    Sep 29, 2020

ESTATE OF LAURENCE O PILGERAM

The causes of action in the petition are: 1) extrinsic fraud (Kurt), 2) fraud (Kurt), 3) failure to deliver wills to probate court in violation of Prob. Code § 8200(b) (Kurt), 4) breach of fiduciary duty (Kurt), 5) wrongful possession of property (Kurt and Parks), and 6) fraud (Parks).

  • Hearing

    Sep 24, 2020

LUIS SALAZAR VS JAGUAR LAND ROVER NORTH AMERICA, LLC, ET AL.

Code, § 1794.) The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.

  • Hearing

    Sep 24, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge

    Lori Ann Fournier or Olivia Rosales

  • County

    Los Angeles County, CA

EDWIN HAMMOND MEREDITH VS FRANZ GERALD TISSERA, ET AL.

Upon Meredith’s arrival in Japan on July 10, 2018, he requested to inspect and take immediate delivery the vehicles that he purchased from Defendants, but Franz, Fredrick and Angela delayed and made excuses for their failure to deliver over three million dollars of vehicles immediately. Meredith Decl., ¶¶ 1D, 2, 3. After several weeks and multiple attempts to inspect the Vehicles, Meredith was given the address of a storage lot by Defendants. Meredith Decl., ¶¶ 1E, 2, 3.

  • Hearing

    Sep 24, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

SAGE TELECOMMUNICATIONS INC ET AL VS D-LINK SYSTEMS INC

There are no terms in the agreement indicating that the Devices were to be of the same firmware as the original units in the underlying litigation; the terms rather indicate that the Devices were to be accepted “as is”, rather than as asserted by Plaintiffs that there was a failure in consideration by the failure to deliver the Devices as agreed.

  • Hearing

    Sep 22, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

CHRISTOPHER SANFORD, ET AL. VS KIA MOTORS AMERICA, INC., A CALIFORNIA CORPORATION

This language appears to imply that Plaintiffs were the prevailing party as Civil Code § 1794(d) only applies if the buyer prevails. Moreover, the action requested replacement or restitution, and Defendant fails to explain why the $4,000 amount of the settlement may not constitute restitution. (FAC Prayer ¶ A.) Plaintiffs have attached to their reply emails that appear to show that the offered $4,000 was above restitution.

  • Hearing

    Sep 21, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

ALEXANDER WEINBERGER VS MCLAREN AUTOMOTIVE, INC., A DELAWARE CORPORATION, ET AL.

Code, § 1794, subd. (a) [authorizing a private action for damages and other relief for buyers of consumer goods who are damaged “by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract”].) Both MAI and the Dealership contend that Weinberger is not the true “buyer” of the Subject Vehicle, and that ASW Enterprise Inc. dba Golden Compass Insurance Services (the “Corporation”) is the true “buyer” of the Subject Vehicle.

  • Hearing

    Sep 17, 2020

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