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

76-100 of 327 results

MARGRET HASHAWAY-RHODES, ET AL. VS KIA MOTORS AMERICA, INC

However, civil penalties are authorized for willful violations of section 1793.2(A)(3) by Civil Code § 1794, subd. (a), (c).) The demurrer did not address the Third Cause of Action and it is not clear “on the face of the challenged pleading or form any matter of which the court is required to take judicial notice” that Plaintiffs cannot maintain this cause of action. (Code Civ. Proc., § 437(a)).

  • Hearing

    Aug 19, 2020

ANTONIO NAVARRO ET AL VS GENERAL MOTORS LLC

Civil penalties are available under the Song-Beverly Act in Civil Code § 1794, subd. (c), not as punitive damages under Civil Code § 3294. GM in reply contends that civil penalties are like punitive damages. (Reply at pp. 2–3.) So they are. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 176 [civil penalties are “akin to punitive damages”].)

  • Hearing

    Aug 18, 2020

  • Type

    Contract

  • Sub Type

    Breach

JOHN LOPEZ, VS GENERAL MOTORS, LLC

Attorney’s 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

    Aug 05, 2020

JOHN LOPEZ, VS GENERAL MOTORS, LLC

Attorney’s 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

    Aug 05, 2020

RUSYNIAK V. MERCEDES-BENZ USA, LLC

Code § 1794(b).) Thus, in the usual situation, emotional distress damages are not recoverable under the Song–Beverly Consumer Warranty Act. (Kwan, supra, at pp. 187–192.) “The clear mandate of section 1794 ... is that the compensatory damages recoverable for breach of the Act are those available to a buyer for a seller's breach of a sales contract. [S]uch damages do not in most cases include recompense for mental suffering independent of physical injury.” (Id. at 188.)

  • Hearing

    Aug 03, 2020

OSCAR ELISAOLA GUEVARA ET AL VS SOUTHGATE AUTO INC ET AL

Code, § 1794(d).) Notably, however, such expenses beyond the definition of CCP § 1033.5 are not recoverable against Westlake, because Westlake is only liable under the Song-Beverly Act by virtue of the Holder Rule. Thus, the limitations of the Holder Rule apply to non-CCP § 1033.5 “expenses” recoverable under the Song-Beverly Act. (Spikener, supra, 50 Cal.App.5th at 158.)

  • Hearing

    Jul 30, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

CHARLES SODERSTROM VS AUTONATION FORD TORRANCE, UNKNOWN BUSINESS ENTITY, ET AL.

Code, § 1794(d).) In an action under the Song-Beverly Act, the trial court makes an initial determination of the actual time expended; and then ascertains under the circumstances whether the time expended and monetary charge being made for the time expended are reasonable. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 35, as modified (Oct. 11, 2019), review denied (Jan. 2, 2020).)

  • Hearing

    Jul 28, 2020

PETERSEN V. KIA MOTORS AMERICA, INC.

Code, § 1794). Further, given the ruling as to Motion No. 1 regarding the Sixth Cause of Action, there are no remaining causes of action to support punitive damages. Thus, the court GRANTS the Motion as to paragraph 57 of the Complaint and paragraph (f) in the Prayer of the Complaint. Second, Defendant seeks to strike paragraph 86 of the Complaint.

  • Hearing

    Jul 28, 2020

RICHARD SEYD, ET AL. VS FORD MOTOR COMPANY, ET AL.

Code, § 1794, subd. (a).) Defendants contend that Plaintiffs’ cause of action for breach of express warranty fails to plead the terms of the warranty, specifics regarding how or when the warranty was breached, the representative to whom the vehicle was presented, the repairs requested, and the actual work performed. (Motion at p. 7.) Plaintiffs have sufficiently alleged the terms of the warranty.

  • Hearing

    Jul 22, 2020

MARIA E. GUZMAN , ET AL. 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

    Jul 17, 2020

  • Type

    Contract

  • Sub Type

    Breach

GARCIA VS PEREZ

In fact, the Complaint does not plead a breach of contract cause of action, and the moving papers for this motion argue that attorney fees are properly awarded via the CLRA (Civil Code § 1780(e)) and the Song-Beverly Consumer Warranty Act (Civil Code § 1794(d)). As stated in Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal. App. 5th 398, 418: "Here, however, the Laffertys did not prevail against Wells Fargo on their breach of contract claim.

  • Hearing

    Jul 16, 2020

  • Type

    Contract

  • Sub Type

    Contract - Other

ADRIENNE KINGSLYN, ET AL. V. WINNEBAGO INDUSTRIES

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

    Jul 15, 2020

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

MARYAM S. ERSHADI VS BMW OF NORTH AMERICA, LLC, ET AL.

Code § 1794(a). · Anything that deprives consumers of that right “shall be deemed contrary to public policy and shall be unenforceable and void.” Cal. Civ. Code § 1790.1. Plaintiff, however, cites no cases that expressly hold that, by those terms, Song-Beverly claims are not arbitrable as a matter of law. The California Supreme Court has found that claims similar to Song-Beverly claims are procedurally arbitrable under the Federal Arbitration Act. (See Sanchez v.

  • Hearing

    Jul 14, 2020

JUANA EUSTOLIA HERNANDEZ VS. KIA MOTORS AMERICA, INC.

Code § 1794; see also Code Civ. Proc. § 1032(a)(4).) Attorneys’ fees compensation “ordinarily include[s] compensation for all hours reasonably spent, including those necessary to establish and defend the . . . claim.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.) The party moving for attorneys’ fees has “the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)

  • 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

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