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

176-200 of 327 results

WILLIAMS CERON LOPEZ ET AL VS FORD MOTOR COMPANY

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

    Jul 22, 2019

  • Type

    Contract

  • Sub Type

    Breach

LYNDA YAO V. KIA MOTORS AMERICA, INC.

Code, § 1794, subd. (c); see Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249-1250 [regarding the willful requirement of Civil Code section, subdivision (c), a civil penalty may be awarded if the jury determines the manufacturer knew of its obligations but intentionally declined to fulfill them].)

  • Hearing

    Jul 18, 2019

  • Judge

    Presiding

  • County

    Santa Clara County, CA

RAFAEL ALANIZ, ET AL. VS GENERAL MOTORS LLC

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 if it is well plead. Defendant does not provide sufficient authority that recovery of both punitive damages and civil penalties is improper when there is an independent claim for fraud. (See Troensegaard v.

  • Hearing

    Jul 18, 2019

RANDY COATES V. MOBILE REVOLUTION LLC, ET AL.

And the contract indicates Coates was responsible for providing “registration and proof of insurance” on the vehicle. (Mtn., Ex. B-1.) Moreover, while the breach of contract action is based on the failure to deliver the step van, the real issue, and the basis of the negligence causes of action against Mobile, is its decision to hire NWS – a decision which occurred in Texas, and resulted in damages which occurred in New Mexico.

  • Hearing

    Jul 18, 2019

(NO CASE NAME AVAILABLE)

Code § 1794 subd. (d).) Here, the parties do not dispute that Plaintiff is entitled to recover his attorney’s fees in this action because he is the prevailing party. The dispute centers around the amount of the fees to be awarded. Reasonable Fees Here, Plaintiff seeks a lodestar amount of $34,606.00. Plaintiff’s counsel attests to having expended 51.2 hours in litigating this case at his rate of $605.00 per hour. (Davoodi Decl., ¶¶ 19, 27.)

  • Hearing

    Jul 17, 2019

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

APARICIO VALENZUELA VS NISSAN NORTH AMERICA INC

Civil Code § 1794; Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188. The replacement/restitution remedy is available only for breach of an express warranty. Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.

  • Hearing

    Jul 17, 2019

  • Type

    Contract

  • Sub Type

    Breach

APARICIO VALENZUELA VS NISSAN NORTH AMERICA INC

Civil Code § 1794; Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188. The replacement/restitution remedy is available only for breach of an express warranty. Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.

  • Hearing

    Jul 17, 2019

  • Type

    Contract

  • Sub Type

    Breach

VERA VS. KIA MOTORS AMERICA, INC

However, Defendant fails to cite any authority that requires this claim to be pled with such particularity. 4th COA – Overruled 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.”

  • Hearing

    Jul 11, 2019

FAYE A THOMAS VS FCA US 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

    Jul 01, 2019

DIMANNO V. PARVIS

The 1st amended complaint’s allegation that the agreement was breached by failure to disclose unusual costs in excess of $100,000 to connect the house to the common utilities, except for septic, or by the the failure to deliver the property with utility connections that will not require unusual costs to install is not inconsistent with the written agreement attached to the 1st amended complaint as Exhibit 1.

  • Hearing

    Jun 28, 2019

CYPRESS CREEK EPC, LLC VS. CANADIAN SOLAR

Com. Code, §§ 2711 and 2712.) Defendant Canadian’s argument that the word “furnished” should be interpreted as meaning “ordered” is strained and unpersuasive. Plaintiff Cypress’s interpretation of the limitation of liability clause is supported by established case law. (See, Hawaiian Tel. Co. v. Microform Data Systems, Inc. (9th Cir. 1987) 829 F.2d 919, 924. Cf., Milgard Tempering, Inc. v.

  • Hearing

    Jun 26, 2019

MELLO VS GENERAL MOTORS LLC

Civil Code § 1794; Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188. The replacement/restitution remedy is available only for breach of an express warranty. Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.

  • Hearing

    Jun 13, 2019

  • Type

    Contract

  • Sub Type

    Breach

MELLO VS GENERAL MOTORS LLC

Civil Code § 1794; Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188. The replacement/restitution remedy is available only for breach of an express warranty. Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.

  • Hearing

    Jun 13, 2019

  • Type

    Contract

  • Sub Type

    Breach

ERICA ESCORSIA VS KIA MOTORS AMERICA INC

But civil penalties are authorized for willful violations of this statute by Civil Code § 1794, subd. (a), (c).) The Motion to Strike is therefore DENIED. Defendant to provide notice. DATED: May 29, 2019 ________________________________ Hon. Robert S. Draper Judge of the Superior Court

  • Hearing

    May 29, 2019

HECTOR A ESCOBEDO MARTIN VS INDARG ENGINEERING, INC.

Code § 1794, subd. (e)(1).) Some courts have held the civil penalties are “akin to punitive damages” because “like other civil penalties, [the penalty] imposed as punishment or deterrence of the defendant, rather than to compensate the plaintiff.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184.) But that a civil penalty is “akin” to punitive damages is not a basis for pleading punitive damages separately from entitlement to civil penalties.

  • Hearing

    May 22, 2019

  • Type

    Employment

  • Sub Type

    Other Employment

DIANA MIRSAKOV VS BMW OF NORTH AMERICA LLC ET AL

Code § 1794, subd. (e)(1).) Thus BMW’s Motion to Strike is GRANTED as to the prayer for punitive damages, with leave to amend. BMW also argues that Mirsakov cannot seek general or special damages, but that damages under the Song-Beverly Act are limited to out of pocket costs resulting from the violation. (Motion at pp. 5–6; Civ. Code § 1794, subd. (b).)

  • Hearing

    May 22, 2019

TRISH L. TATUM VS GENERAL MOTORS, LLC

Code § 1794, subd. (e)(1).) Some courts have held the civil penalties are “akin to punitive damages” because “like other civil penalties, [the penalty] imposed as punishment or deterrence of the defendant, rather than to compensate the plaintiff.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184.) But that a civil penalty is “akin” to punitive damages is not a basis for pleading punitive damages separately from entitlement to civil penalties. The Motion to Strike is GRANTED.

  • Hearing

    May 15, 2019

ENRIQUEZ VS KIA MOTORS AMERICA INC

Civil Code §1794(a) provides: “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

    May 13, 2019

DAMON PELLEGRINI V. TOYOTA MOTOR SALES U.S.A., INC., 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.” (Civ. Code, §1794, subd. (a).) In his third cause of action, Plaintiff alleges, in relevant part, “Plaintiff delivered the subject vehicle to TOYOTA’s authorized service representative(s), TOYOTA WALNUT CREEK, on multiple occasions.

  • Hearing

    May 09, 2019

  • Judge

    Presiding

  • County

    Santa Clara County, CA

WEBB VS FCA US LLC

Code, § 1794(d).) The court finds Plaintiff is the prevailing party for purposes of the award of attorneys' fees, costs, and expenses under Civil Code section 1794(d). Defendants argue that fees should be disallowed, in their entirety, because most of them were incurred after Plaintiff rejected Defendants' section 998 offer and Plaintiff settled for only $7,000 more. To the extent Defendants contend the fees are disproportionate to the result obtained, the argument carries little weight.

  • Hearing

    May 09, 2019

  • Type

    Contract

  • Sub Type

    Breach

SABRINA SCHLOSS VS JOSHUA CANDELARIA, ET AL.

Therefore, the demurrer to the seventh cause of action for breach of contract is overruled. 8th Cause of Action for Unfair Business Practices This cause of action is premised on Defendants’ alleged grand promises, collection of all payment up front, failure to deliver on the promises, and refusal to refund the payment. (Id. at ¶188.) The only basis for demurrer to this cause of action is that it is duplicative of Plaintiff’s other claims.

  • Hearing

    May 09, 2019

  • Judge

    James E. Blancarte or Wendy Chang

  • County

    Los Angeles County, CA

GEORG LINGENBRINK VS. STEPHEN C GAMES

This case ultimately arises out of Games's (and now Grande Bahia's) alleged failure to deliver water for free pursuant to the April 2012 agreement. Grande Bahia's groundskeepers are not material witnesses. Moreover, Lingenbrink, Games, Jennings and Fryzer all reside in San Diego or Los Angeles County. Lingenbrink Decl., ¶¶ 2-3, 5-6. Grande Bahia's principal place of business is in Baja California, but it has an office in Los Angeles. Compl. in Interv., ¶ 6.

  • Hearing

    May 09, 2019

  • Type

    Contract

  • Sub Type

    Breach

WESTLAKE FARMS V. COUNTY SANITATION DISTRICT NO. 2 OF LA COUNTY

The crux of this lawsuit is the District’s alleged delay in developing the Facility and failure to deliver sufficient quantities of compost material to the Westlake Parties, who contend these are material breaches of the Sale and Leaseback Agreements. The District counters that the Leaseback Agreement does not require it to produce specific quantities of composting material and there was no specific timetable for the Facility’s construction and development or delivery of the compost.

  • Hearing

    May 09, 2019

JOHN WOODWARD ET AL VS LOWES HOME CENTERS LLC ET AL

The FAC seeks fees under Civil Code § 1794, which allows the recovery of fees for a prevailing plaintiff “in an action under this section.” (Civ. Code § 1794, subd. (d).) Defendants argue that this statute applies to breaches of warranty for goods, not defective installation services as alleged in the FAC. (Motion at p. 6; see Civ.

  • Hearing

    May 06, 2019

LAURIE MCRAE VS KIA MOTORS AMERICA, INC

But Civil Code § 1794 allows the bringing of private actions for “failure to comply with any obligation under this chapter,” which includes section 1793.2, subd. (a)(3), and the same section further authorizes the imposition of civil penalties “[i]f the buyer establishes that the failure to comply was willful.” (Civ. Code § 1794, subd. (c).) Thus civil penalties are available. The Motion to Strike is DENIED.

  • Hearing

    Apr 29, 2019

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