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

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

    Jan 26, 2021

PAUL WARGO, ET AL. VS KIA MOTORS AMERICA, INC.

(Civil Code §1794; Motion, pgs. 4, 9-10.) In opposition, Plaintiffs argue punitive damages are available under Song-Beverly in cases where a Plaintiffs have demonstrated Defendant’s willful breach. (Opposition, pg. 5.) However, a showing of willful breach would entitle Plaintiffs to the civil penalty described in Civil Code §1794(c), which courts have considered as “akin to punitive damages” though Song-Beverly “does not expressly provide for punitive damages.” (See Brady v.

  • Hearing

    Jan 14, 2021

ARMEN SAVADIAN VS BMW OF NORTH AMERICA, LLC, ET AL.

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

    Jan 12, 2021

  • Type

    Contract

  • Sub Type

    Breach

BENJAMIN CALDERON, ET AL. VS FCA US, LLC, ET AL.

Code § 1794(c).) In striking the trial court’s award of punitive damages in addition to civil penalties on a Song-Beverly claim, the Troensegaard court held that had the Legislature, by Civil Code sections 3294 (permitting punitive damages ) and 1794 (permitting a civil penalty), intended a double recovery of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so.

  • Hearing

    Jan 11, 2021

BOLUN ALLEN DENG VS JOSEPH LIU, ET AL.

In addition, the Court is not convinced there was a total “failure of consideration” as a result of Defendants’ failure to deliver the Property. As noted above, Paragraph 54 specified the date of key delivery would be on or before December 31, 2020. (FAC, Exh. A.) Plaintiff, however, commenced this action on May 8, 2019, more than a year before that date. Thus, the Demurrer as to the second cause of action is also SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  • Hearing

    Jan 07, 2021

JEFF ANTHONY VS IRON MOUNTAIN, INC., ET AL.

This allegation suffices to maintain a request for civil penalties pursuant to Civil Code § 1794(c). Finally, Defendant argues that the request for prejudgment interest is improper. “[P]rejudgment interest is allowable where the amount due plaintiff is fixed by the terms of a contract, or is readily ascertainable by reference to well-established market values.” (Leaf v. Phil Rauch, Inc. (1975) 47 Cal. App. 3d 371, 375.) Here, Plaintiffs’ Complaint does not specify a certain amount of damages.

  • Hearing

    Jan 06, 2021

  • Type

    Other

  • Sub Type

    Intellectual Property

SIMMONS V. KIA MOTORS AMERICA, INC.

damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2…” (See Civil Code §1794(b)).

  • Hearing

    Jan 04, 2021

SIMMONS V. KIA MOTORS AMERICA, INC.

damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2…” (See Civil Code §1794(b)).

  • Hearing

    Jan 04, 2021

ARMEN SAVADIAN VS BMW OF NORTH AMERICA, LLC, ET AL.

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

    Dec 30, 2020

  • Type

    Contract

  • Sub Type

    Breach

HENRY VALDIVIA VS C.H.I. AUTOMART, INC., ET AL.

Automart Inc. dba Robertsons Palmdale Honda, Plaintiff asserts the following causes of action: (1) Violation of the Consumer Legal Remedies Act—Civil Code § 1750 et seq.; (2) Breach of Express Warranty—Civil Code § 1794; (3) Breach of the Implied Warranty of Merchantability—Civil Code § 1794; (4) Failure to Commence Repairs Within a Reasonable Time and To Complete Them Within 30 Days—Civil Code § 1793.2(b); (5) Failure to Promptly Repurchase Product; (6) Fraud And Deceit; (7) Negligent Misrepresentation; (8)

  • Hearing

    Dec 16, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

YOSSI SABAG VS FCA US LLC

“Unless specifically provided otherwise, a statute or contract allowing recovery of attorney fees at trial also authorizes attorney fees on appeal.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 637; CRC Rule 8.278.) Song-Beverly provides a statutory basis for allowing recovery of attorneys’ fees at trial, and as such, attorneys’ fees on appeal are also recoverable. (Civil Code §1794(d).)

  • Hearing

    Dec 15, 2020

ISRAEL GONZALES VS MERCEDES-BENZ USA, LLC

Plaintiff moves for attorneys’ fees pursuant to the Song-Beverly Consumer Warranty Act, Civil Code § 1794(d). Plaintiff seeks attorneys’ fees in the amount of (1) $100,961.00 for Strategic Legal Practices, APC ("SLP"); (2) $61,502.50 for the Law Office of Michael Rosenstein; (3) a 1.35 multiplier enhancement on the attorney fees (or $56,862.23); and (4) $7,500 in connection with time incurred on this motion, the motion for prejudgment interest, and the motion to tax costs, for a total of $226,825.73.

  • Hearing

    Dec 08, 2020

MARIA JULIA VILLATORO MACHADO, ET AL. VS FCA US LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Defendant also offers to pay a double civil penalty pursuant to Civil Code § 1794(c). Plaintiffs are invited to submit an itemization of the amounts paid or payable for the Subject Vehicle at the time this offer is accepted together with proof of same. b. In addition, and subject to proof, Defendant will pay to Plaintiffs any incidental and consequential damages to which Plaintiffs are legally entitled under Civil Code Sections 1793.2(d)(2)(B) and 1794(b).

  • Hearing

    Dec 04, 2020

  • Type

    Contract

  • Sub Type

    Breach

DRAPER VS GENERAL MOTORS LLC

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

    Dec 02, 2020

  • Type

    Contract

  • Sub Type

    Breach

JOSEPH GRESSIS VS CORPORATE MANAGEMENT SERVICES, INC.

Code, § 1794, subd. (d); Wohlgemuth, supra, 207 Cal.App.4th at pp. 1260-1261, 144 Cal.Rptr.3d 545.)” This last sentence is critical to understanding Hyundai’s holding because it emphasizes the unique “circumstances” and “statutory intent” at issue in that case. The appellate court explained in a preceding paragraph: “The Song-Beverly Act bears out the need for a judgment (or its equivalent) as a final disposition of the litigation to which the attorney fee award attaches.

  • Hearing

    Nov 30, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

NEIL YESCHIN VS HYUNDAI MOTOR AMERICA

Code § 1794(c).) In striking the trial court’s award of punitive damages in addition to civil penalties on a Song-Beverly claim, the Troensegaard court held that had the Legislature, by Civil Code sections 3294 (permitting punitive damages ) and 1794 (permitting a civil penalty), intended a double recovery of punitive and penal damages for the same willful, oppressive, malicious, and oppressive acts, it would in some appropriate manner have said so.

  • Hearing

    Nov 30, 2020

NIETO V. GENERAL MOTORS, LLC

Code, § 1794). Further, given the ruling as to the demurrer regarding the third cause of action, there are no remaining causes of action to support punitive damages. Defendant is to give notice.

  • Hearing

    Nov 23, 2020

ANUSHAVAN HARUTUNYAN VS ROLLS-ROYCE MOTOR CARS NA, LLC A LIMITED LIABILITY COMPANY, ET AL.

Code § 1794(d) [buyer prevailing under Song-Beverly Warranty Act entitled to recover reasonable attorney fees]; Civ. Code § 1795.4(b) [buyers under Song-Beverly Warranty Act include lessees].) The arbitration clause does not prohibit the award of costs and fees; rather, it specifically provides that “[t]he arbitrator may award any damages or other relief or remedies permitted by applicable law,” which may include costs and fees. (Beatt Decl. ¶ 4 & Ex. A, ¶ 41.)

  • Hearing

    Nov 13, 2020

WESTCOTT ENTERPRISES INC VS FEDERATED MUTUAL INSURANCE COMPANY

On the other hand, an insurance agent must use reasonable care in procuring the insurance requested by the applicant; and the failure to deliver the agreed-upon coverage may constitute actionable negligence for which the insurer may be vicariously liable. Id. at ¶ 11:212.5 (citing Butcher v. Truck Ins. Exch. (2000) 77 Cal. App. 4th 1442, 1461, 1462).

  • Hearing

    Nov 12, 2020

  • Type

    Contract

  • Sub Type

    Breach

WESTCOTT ENTERPRISES INC VS FEDERATED MUTUAL INSURANCE COMPANY

On the other hand, an insurance agent must use reasonable care in procuring the insurance requested by the applicant; and the failure to deliver the agreed-upon coverage may constitute actionable negligence for which the insurer may be vicariously liable. Id. at ¶ 11:212.5 (citing Butcher v. Truck Ins. Exch. (2000) 77 Cal. App. 4th 1442, 1461, 1462).

  • Hearing

    Nov 12, 2020

  • Type

    Contract

  • Sub Type

    Breach

BMO HARRIS BANK N.A., A NATIONAL BANKING ASSOCIATION VS NBA AUTOMOTIVE, INC., A CALIFORNIA CORPORATION, ET AL.

The Dealerships and the Guarantors are in default under the Loan Documents, including without limitation, as a result of: (a) material misrepresentations made by the Dealerships; (b) the failure to timely repay Advances when due as required under Section 3.1(A) and (B) of the IFSA; (c) audit violations, including, but not limited to, the double flooring of Vehicles requiring the necessity of collateral monitoring; (d) the Dealerships’ and Guarantors’ failure to deliver timely and complete financial statements

  • Hearing

    Nov 10, 2020

  • Type

    Contract

  • Sub Type

    Breach

NIA LOWE CASSELMAN 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. As discussed above, the fraud cause of action is well-stated. Defendant also contends that there are no allegations of corporate ratification.

  • Hearing

    Nov 09, 2020

PATRICIA LADD VS KIA MOTORS AMERICA, INC

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

    Nov 06, 2020

GOMEZ V. VOLVO CARS OF NORTH AMERICA, LLC

Code § 1794, allows for punitive damages in addition to the statutory remedies. Likewise, emotional distress damages are generally not available in connection with the purchase of an automobile. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 190.)

  • Hearing

    Nov 05, 2020

JAMES SMITH, ET AL. VS FCA US LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

In Robinson, the court found that fraudulent representations by the defendant 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 defective helicopter parts. Robinson, supra, 34 Cal.4th at 990.

  • Hearing

    Nov 04, 2020

  • Type

    Contract

  • Sub Type

    Breach

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