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

201-225 of 327 results

IGNACIO CESARIIO VS GENERAL MOTORS, LLC

Code § 1794; 15 U.S.C. § 2301].) In contrast, Plaintiff’s seventh cause of action for fraud by omission could give rise to a recovery of punitive damages. Because the Court has overruled the demurrer to the seventh cause of action, Plaintiff’s prayer for punitive damages may stand. (See Civ. Code § 3294.) Accordingly, Defendant’s motion to strike the punitive damages is DENIED.

  • Hearing

    Apr 05, 2019

SAYRA ASRAR, ET AL. VS KIA MOTOR AMERICA, INC.

The motion to strike ¶ 82 regarding willful failure to comply with Civil Code § 1793.2(a)(3) supporting a civil penalty of two times actual damages pursuant to Civil Code § 1794(c) is DENIED.

  • Hearing

    Apr 03, 2019

STEWART V. MERCEDES BENZ USA, LLC

The parties also agreed upon plaintiff’s acceptance of the offer to compromise that defendant would pay a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time reasonably incurred by the buyer in connection with the commencement and prosecution of such action (See Civil Code, § 1794(d).), with the court to determine the amount should the parties be unable to agree. The parties concluded by agreeing that the offer was being made pursuant to Goodstein v.

  • Hearing

    Mar 28, 2019

HECTOR MALDONADO VS KIA MOTORS AMERICA, INC

., the Court found at page 993 that the fraudulent representations exposed the plaintiff to personal damages independent of the economic loss caused by the failure to deliver conforming products, e.g., injuries that could result from the defect helicopter parts. There was no claim that the fraud induced the helicopter manufacturer into the contract; instead, the fraudulent conduct occurred after the parties entered into the contract when the parts supplier provided false certificates with the goods.

  • Hearing

    Mar 26, 2019

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. 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

    Mar 12, 2019

RINCON VS GENERAL MOTORS LLC

Code, § 1794; see also Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187–88.) The replacement/restitution remedy is available only for breach of an express warranty. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.)

  • Hearing

    Mar 07, 2019

  • Type

    Contract

  • Sub Type

    Breach

SINGLETON VS CALL ME VAN LINE

s Exh. 16 [February 10, 2016 Letter], p. 1, ¶1); (ii) asserts Call Me's failure to deliver the goods (id. at pp. 1-2, ¶4) and a statement of Call Me's liability (id. at p. 2, ¶2); and (iii) it states the value of the undelivered property (in excess of $88,000) which, taken in context, appears sufficient to constitute a demand for payment if the goods are not delivered.

  • Hearing

    Mar 06, 2019

RINCON VS GENERAL MOTORS LLC

Code, § 1794; see also Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187–88.) The replacement/restitution remedy is available only for breach of an express warranty. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.)

  • Hearing

    Feb 26, 2019

  • Type

    Contract

  • Sub Type

    Breach

JAIME LOPEZ VS KIA MOTORS AMERICA INC

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. Defendant’s motion to strike punitive damages is therefore DENIED. Motion to Strike: Damages under Civ. Code section 1793.2(a) This portion of the motion is MOOT per the ruling on demurrer as to the third cause of action.

  • Hearing

    Feb 26, 2019

RICHARD GALVAN 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

    Feb 25, 2019

CYPRESS CREEK EPC, LLC VS. CANADIAN SOLAR

Plaintiff Cypress has failed to negate the existence of a triable issue of fact concerning the $ 150,000 bond premium it seeks to recover as breach of contract damages. There is no contractual language, either in the master contract or in the three subject purchase orders, suggesting that such a premium can fairly be characterized as part of the “price” to be paid for the subject solar modules. (See, Cal. U. Com. Code, § 2711, subd. (1).)

  • Hearing

    Feb 13, 2019

XXXXXXXXXXXX V. C3DNA, INC., ET AL.

’s failure to deliver a valid $3 million term sheet and their interference with Plaintiff’s negotiations to obtain financing.

  • Hearing

    Jan 24, 2019

  • Judge

    Presiding

  • County

    Santa Clara County, CA

MELROSE PLACE NO 56 LLC VS MARS THE WORLD CO LTD ET AL

Because the lease agreement provides for termination of the lease after delay in possession of 120 days, Defendants will argue that the failure to deliver possession within that time renders the lease unenforceable. (Motion at p. 3.) Defendants also argue that because these facts are known to Melrose, no prejudice will result. (Motion at p. 6.) Melrose has not opposed this motion. Defendants’ Motion for Leave to File First Amended Answer is GRANTED. Defendants to provide Notice.

  • Hearing

    Jan 24, 2019

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 11, 2019

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 11, 2019

ERICA ESCORSIA VS KIA MOTORS AMERICA 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 the civil penalty.

  • Hearing

    Jan 07, 2019

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 02, 2019

  • County

    Los Angeles County, CA

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 02, 2019

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 02, 2019

(NO CASE NAME AVAILABLE)

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 02, 2019

BRANDON CRAYTON VS FCA US LLC

Code, § 1794(d).) Section 1794 provides: 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. (Civ. Code, § 1794 [emphasis added].)

  • Hearing

    Jan 02, 2019

MARIA GONZALEZ V. GENERAL MOTORS, LLC

Code, § 1794, subds. (c), (e).) The Song-Beverly Act does not expressly provide for punitive damages. Plaintiff cites several federal district court decisions in support of the proposition that “the Song-Beverly Act . . . provides for punitive damages in case of willful breach.” (OPP at p. 9.)

  • Hearing

    Dec 06, 2018

STACHELEK VS. 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

    Dec 03, 2018

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

The crux of Plaintiff’s lawsuit is the District’s alleged delay in developing the Facility and failure to deliver sufficient quantities of compost material to Plaintiff. Plaintiff contends 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

    Nov 29, 2018

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

    Nov 29, 2018

  « first    1 2 3 4 5 6 7 8 9 10 ... 14     last » 

For full print and download access, please subscribe at https://www.trellis.law/.

Please wait a moment while we load this page.