Elements for a Breach of Contract:
(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.)
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.)
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).)
Jul 22, 2019
Contract
Breach
Los Angeles County, CA
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].)
Jul 18, 2019
Presiding
Santa Clara County, CA
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.
Jul 18, 2019
Los Angeles County, CA
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.
Jul 18, 2019
San Luis Obispo County, CA
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.)
Jul 17, 2019
Los Angeles County, CA
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.
Jul 17, 2019
Contract
Breach
San Diego County, CA
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.
Jul 17, 2019
Contract
Breach
San Diego County, CA
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.”
Jul 11, 2019
Orange County, CA
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).)
Jul 01, 2019
Los Angeles County, CA
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.
Jun 28, 2019
El Dorado County, CA
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.
Jun 26, 2019
Contra Costa County, CA
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.
Jun 13, 2019
Contract
Breach
San Diego County, CA
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.
Jun 13, 2019
Contract
Breach
San Diego County, CA
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
May 29, 2019
Los Angeles County, CA
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.
May 22, 2019
Employment
Other Employment
Los Angeles County, CA
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).)
May 22, 2019
Los Angeles County, CA
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.
May 15, 2019
Los Angeles County, CA
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.”
May 13, 2019
Riverside County, CA
“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.
May 09, 2019
Presiding
Santa Clara County, CA
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.
May 09, 2019
Contract
Breach
San Diego County, CA
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.
May 09, 2019
James E. Blancarte or Wendy Chang
Los Angeles County, CA
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.
May 09, 2019
Contract
Breach
San Diego County, CA
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.
May 09, 2019
San Luis Obispo County, CA
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.
May 06, 2019
Los Angeles County, CA
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.
Apr 29, 2019
Los Angeles County, CA
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