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“A cause of action for breach of contract requires
(Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.)
The first element is also stated as “contract” or “existence of a contract,” and the second is also stated as “plantiff’s performance or excuse for nonperformance.” Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830; Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614. The third element may also include “anticipatory breach.” Reichert, supra, 68 Cal.2d at p. 830;
“The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453).
The statute of limitations is four years in “[a]n action upon any contract . . . founded upon an instrument in writing...” (Code of Civil Procedure § 337(a)). “Ordinarily, a cause of action for breach of contract accrues on the failure of the promisor to do the thing contracted for at the time and in the manner contracted.” (Professional Collection Consultants v. Lauron (2017) 8 Cal. App. 5th 958, 966 (internal citation omitted)). Under Civil Code §1657, “[i]f no time is specified for the performance of an act required to be performed, a reasonable time is allowed. . . .”
The statute of limitations on a breach of oral contract claim is two years before the filing of the complaint. (Code of Civil Procedure §§ 312, 339.) A cause of action accrues when, in addition to alleged wrongdoing or breach, plaintiff has suffered actual and appreciable harm. (Davies v. Krasna (1975) 14 Cal.3d 502, 513).
“An executed contract is one, the object of which is fully performed.” (Civil Code § 1661). “Where a contract is still executory, the promissee is not bound to treat the contract as abandoned on the first breach or any particular breach, and the statute of limitations does not begin to run as long as the promissee elects to rely on the contract.” (Baugh v. Garl (2006) 137 Cal.App.4th 737, 747).
In Romano v. Rockwell, the Supreme Court of California noted that the plaintiff may elect to rely on the contract despite a breach when there are ongoing contractual obligations, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489). Even with successive breaches, “the injured party could wait until the time arrived for a complete performance by the other party and then bring an action for damages for such breaches.” (Id. at 489-490). The injured party is “not bound to treat the contract as abandoned on the first breach of it, or on any particular breach, but had his election to still rely on it, and the statute of limitations could not begin to run until it had made its election.” (Id.).
The current prevailing doctrine is that substantial performance is sufficient and justifies an action on the contract, although the other party is entitled to a reduction in the amount called for by the contract in order to compensate for the defects. This doctrine applies primarily in building contracts. What constitutes substantial performance is a question of fact. However, it is essential that there be no willful departure from the terms of the contract, and that the defects be such as may be easily remedied or compensated, so that the promisee may get practically what the contract calls for. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, 818, p. 908; Murray's Iron Works, 58 Cal.App.4th 1279, 1291).
The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate:
If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. Civil Code § 1512.
If performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance. Civil Code § 1514.
A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it. Civil Code § 1515.
“[E]very contract imposes upon each party a duty of good faith and fair dealing in the performance of the contract such that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55). “As to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct.” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374).
“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made. The covenant thus cannot be endowed with an existence independent of its contractual underpinnings. It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349–50 (internal citations omitted)).
‘‘[W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses... The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. Quite simply, the economic loss rule ‘prevent[s] the law of contract and the law of tort from dissolving one into the other.’” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988, internal citations omitted.)
[C]onduct amounting to a breach of contract becomes tortious when it also violates a duty independent of the contract arising from principles of tort law." (Robinson Helicopter, supra, 34 Cal.4th at p. 998 (internal citations omitted)). "'Tort damages have been permitted in contract cases where a breach of duty directly causes physical injury; for breach of the covenant of good faith and fair dealing in insurance contracts; for wrongful discharge in violation of fundamental public policy; or where the contract was fraudulently induced. '[I]n each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.” (Robinson Helicopter at pp. 989-990 (internal citations omitted); accord, Benavides v. State Farm General Ins. Co. (2006) 136 Cal.App.4th at pp. 1251-1252.)
Although punitive damages may not ordinarily be given for breach of contract, whether the breach be intentional, willful or in bad faith, such damages may be awarded where a defendant fraudulently induces the plaintiff to enter into a contract. The words 'oppression, fraud, or malice' in Civil Code § 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal. App. 3d 101, 135 (internal citation omitted)).
Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought. Code of Civil Procedure § 1060.
“The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79). The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties, and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606). Furthermore, “[d]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs.” (Babb v. Superior Court (1971) 3 Cal.3d 841, 848 (internal brackets omitted)).
To state entitlement to specific performance, Plaintiff must establish:
(Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal. App. 3d 571, 575).
In interpreting identical language, the Court of Appeal has held that where a contractor is terminated before finishing a project, it cannot be said to have completed the job under the terms of the products-completed operations hazards. (Clarendon America Ins. Co. v. General Security Indemnity Co. of Arizona (2011) 193 Cal.App.4th 1311, 1318-19).
It is well-established exception to the statute of frauds that where the buyer in a residential property sale takes possession of the property and makes at least partial performance, the agreement is no longer under the statute of frauds. (Winkler v. Jerue (1912) 20 Cal.App. 555, 559; see also Sutton v. Warner (2005) 12 Cal.App.4th 415; Hall v. Hall (1990) 222 Cal.App.3d 578).
Negligence When the negligent performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. North American Chemical Co. v. Superior Court (1997) 53 Cal.App.4th 186, 195. However, a negligent failure to perform contractual duties with care, skill, reasonable expedience, and faithfulness, can give rise to a tort claim for negligence. Id.
MICHAEL KIRKPATRICK, ET AL. VS FARZAD ESSAPOUR, ET AL.
21SMCV00486
Dec 16, 2021
Los Angeles County, CA
As Defendants demurrer states, the FAC fails to allege either Plaintiff’s performance under the contract or its excuse for failure to perform. While the FAC and Opposition highlight Defendants’ alleged breaches, Plaintiff has not alleged that itperformed its obligations or that there is an excuse for failure to perform.
CORMAN LEIGH COMPANIES VS LAKE ELSINORE AIRPORT, LLC
CVRI2201688
Jan 19, 2023
Riverside County, CA
But according to defendant's discovery responses, she terminated the contract due to Medico's failure to perform under the contract. Response to Special Interrogatory No. 13 states that Medico's services were substandard, listing seven complaints including "blood and medical sensors attached to linens" and "torn, damages linens."
CREDITORS ADJUSTMENT BUREAU VS IVONE DIAMOND
37-2017-00043625-CL-BC-CTL
Mar 01, 2018
San Diego County, CA
Contract
Breach
Plaintiff has pleaded a written contract and attached the contract to the complaint in haec verba. (Complaint, ¶ BC-1, exhibit A.) The element of plaintiff’s performance or excuse for failure to perform may be alleged generally. (Code Civ. Proc., § 457.) Plaintiff has pleaded the element by the pre-printed allegation in the Judicial Council form. (Complaint, ¶ BC-3.)
COAST REHABILITATION SERVICES INC VS THE DORTON FIRM PC
1370065
Sep 13, 2010
Santa Barbara County, CA
Dana Corp. (2004) 34 Cal. 4th 979, 988, the economic loss rule “prevents the law of contract and the law of tort from dissolving into one another.”). Nonetheless, where the alleged fraud is something more than failure to perform the contract, a fraud cause of action may be stated. In Robinson Helicopter v.
BROWN, ET AL. V. CAMBRIDGE HOMES, ET AL.
30-2015-00824794-CU-CO-CJC
Oct 01, 2016
Orange County, CA
Declaratory Relief Plaintiff seeks declaratory relief based on defendant’s alleged failure to perform under the contract and alleged false promises. Complaint at ¶¶14-15. This is duplicative of the breach of contract and fraud actions. Plaintiff’s request for declaratory relief does not allege any dispute not fully embraced within the complaint’s contract and tort claims. SUSTAINED without leave to amend.
LA GYMNASTICS CENTER, INC. VS ALPINE EQUITIES LLC
21SMCV00805
Oct 20, 2021
Los Angeles County, CA
Plaintiff submits evidence of a valid guaranty [SSUMF 9-13]; Defendant Cottonwood Electric's default [SSUMF 14]; and Defendant Armando Salazar's failure to perform under the guaranty [SSUMF 14]. Plaintiff also submits evidence of Plaintiff's performance [SSUMF 15] and resulting damages [SSUMF 16-17]. Defendant Armando Salazar submits no evidence in dispute.
NATIONAL FUNDING INC VS COTTONWOOD ELECTRIC CART SERVICE INCORPORATED
37-2018-00000599-CU-BC-CTL
Dec 06, 2018
San Diego County, CA
Contract
Breach
Under those circumstances, it is an absolute failure to perform, not performance that was partial or inadequate due to the defendant’s negligence.
HERNANDEZ VS KADVA PATIDAR 42 GAM SAMAJ
RIC2000118
Aug 24, 2020
Riverside County, CA
First Cause of Action - Breach of Contract. The elements of a cause of action for breach of contract are: (i) A contract; (ii) Plaintiff's performance or excuse for failure to perform; (iii) Defendant's breach; and (iv) Damage to plaintiff resulting therefrom. 4 Witkin, California Procedure (5th ed. 2008) Pleading, § 515, p. 648. (i) A contract.
SHAOULIAN VS. YOCCA
30-2015-00791004-CU-BC-CJC
Sep 01, 2016
Orange County, CA
Plaintiff Wells Fargo Bank brought the instant action against Defendant Eric Korshavn alleging: (1) breach of written contract; (2) breach of contract (implied in fact); (3) money lent; (4) money paid; (5) open book account; and (6) account stated. “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (Spinks v.
WELLS FARGO BANK, N.A. VS KORSHAVN
CVSW2110449
Jun 30, 2022
Riverside County, CA
Rather, the issue is whether EBMUD's alleged interference with contract is based solely on its own failure to perform under the subcontract with WM, or whether it is based on other affirmative conduct. (See Caliber Paving Co. Inc. v. Rexford Industrial Realty & Management Inc. (2020) 54 Cal.App.5th 175, 180-187.)
WASTE MANAGEMENT OF ALAMEDA C VS EAST BAY MUNICIPAL UTILITY
RG21094336
Jul 29, 2021
Alameda County, CA
The elements of breach of contract are (1) parties capable of contacting, (2) their consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civ. Code §§ 1550, 1605; CDF Firefighters v. Maldonado (2008) 158 Cal. App. 4th 1226, 1239.
CAPITAL BENEFIT, INC. V. DOE
30-2019-01088625
May 24, 2021
Orange County, CA
Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 ("A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom."); see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390 ("A complaint must allege the ultimate facts necessary to the statement of an actionable claim.").
GALLARDO VS AREYALO
37-2022-00035597-CL-CO-CTL
Dec 08, 2023
San Diego County, CA
Where, as here, the only negligence alleged is the failure to perform pursuant to the terms of a contract--as opposed to failure to perform contracted-for professional services in a reasonable manner--the appropriate claim is for breach of contract, not negligence. (See North American Chem. Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [citation omitted].) The demurrer to the Seventh Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED.
SALLY PETERSON VS. DENNIS CAPELLO
34-2010-00092537-CU-BC-GDS
Jun 09, 2011
Sacramento County, CA
Contract
Breach
Licensor may incur by reason of Licensee’s breach of or the failure to perform any of its . . . commitments, or covenants in this Agreement . . . .} By using both the terms “breach” and “failure to perform” the agreement makes clear that licensee may incur liability to the licensor for a default even if it does not qualify as a “breach” as defined therein. Defendant’s motion for summary adjudication of the 1st c/a is DENIED. Second Cause of Action for Fraud.
Marina Industries, LLC v. Dimano, Inc.
Nov 01, 2016
Orange County, CA
This has merit, as the FAC merely alleges the same promise and failure as the contract claim, and consists of the same failure to perform a promise. This does not support fraud. See Aas v. Superior Court (2000) 24 Cal.4th 627, 643 (“A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.”); accord Stop Loss Ins. Brokers v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041.
JOSE ARNOLDO FUENTES VS B & N TRUCK REPAIR ET AL
BC626955
Dec 14, 2016
Los Angeles County, CA
Personal Injury/ Tort
Fraud
Thus, Defendant has raised Plaintiffs failure to perform under the contract as a defense. Last, Plaintiff claims Defendants answer is uncertain because he labeled it as a Response to Summons rather than a Response to the Complaint. But Defendant clarifies he is responding to the complaint. (Answer, p. 1:2.) CONCLUSION The court overrules Plaintiffs demurrer to the answer. Plaintiff shall give notice.
TAKUMA YAMAMOTO VS JOHNNIE KENNEDY FARMS, JR.
23STCV07253
Feb 23, 2024
Los Angeles County, CA
Demurrer to causes of action for breach of covenant of good faith, fraud, promissory estoppel and unfair competition is SUSTAINED with leave to amend to allege fraud with requisite particularity; to allege breach of covenant of good faith based on contract between parties, e.g. Note, DOT; to allege unambiguous promise and facts showing defendant's failure to perform under promise. Plaintiff may allege cause of action for negligence if she may do so in good faith. Prevailing party prepare order. =(501/LS)
STEPHANIE CHU VS. JP MORGAN CHASE NATIONAL CORPORATE SERVICES, INC ET AL
CGC12518775
Apr 18, 2014
San Francisco County, CA
HPS's first amended cross-complaint alleges seven causes of action against V&G (named as Roe 61) - (1) Equitable/Partial/Total Indemnity and Contribution; (2) Express Indemnity; (3) Breach of Contract: Failure to Perform Work in Workmanlike Manner, (4) Breach of Contract: Failure to Name Cross-Complainant as Additional Insured, (5) Breach of Express and Implied Warranties; (6) Declaratory Relief: Duty to Defend; and (7) Declaratory Relief.
THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY VS THERMACOR PROCESS INC
37-2018-00033147-CU-CD-CTL
Aug 17, 2023
San Diego County, CA
First Cause of Action for Breach of Contract. The School District’s demurrer is sustained. The TAC fails to state facts sufficient to state a cause of action. (See Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 [elements].) Plaintiff fails to allege sufficient facts showing plaintiff’s performance or excuse for failure to perform, the School District’s breach, and damages to plaintiff resulting from the School District’s breach. Moving party to give notice.
ELIZABETH MACLYMAN VS. GARDEN GROVE
30-2015-00791461-CU-JR-CJC
Mar 01, 2017
Orange County, CA
The Lease agreement between the parties contains an attorney fee provision that states: “Any other amount necessary to compensate Owner for all the detriment proximately caused by Resident's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, the cost of recovering possession of the Unit, expenses of reletting, attorneys' fees, costs of alterations and repairs, recording fees, filing fees and any other
CAMDEN JAMBOREE DEVELOPMENT, LP V. WANLY
30-2018-01014115-CU-NP-CJC
Dec 05, 2019
Orange County, CA
to perform the Services or any other breach of this Agreement.
AMSTER V. SIMON PROPERTY GROUP, INC., ET AL.
17CV311418
Nov 21, 2019
Santa Clara County, CA
Old Republics arguments regarding mitigation and failure to perform conditions precedent are factual claims, not a proper basis for demurrer. OVERRULED. Old Republic to answer within 15 days.
AFAKORI, INC. DBA., A CALIFORNIA CORPORATION VS ICON WEST, INC., A CALIFORNIA CORPORATION, ET AL.
22SMCV00512
Jan 30, 2023
Los Angeles County, CA
On this motion Thermacor seeks summary adjudication as to HPS's causes of action for Breach of Contract: Failure to Perform Work in Workmanlike Manner, Breach of Contract: Failure to Name Cross-Complainant as Additional Insured, Breach of Express and Implied Warranties and Declaratory Relief.
THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY VS THERMACOR PROCESS INC
37-2018-00033147-CU-CD-CTL
Aug 11, 2023
San Diego County, CA
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. Brown v. Grimes (2011) 192 Cal. App. 4th 265, 277. Disputed facts exist demonstrating that Plaintiffs may have breached one or more material terms of the "Settlement Agreement and General Release" such that Plaintiffs are barred from suing to enforce the same agreement.
TERRELL VS DALEY
37-2018-00024923-CU-BC-CTL
Oct 22, 2019
San Diego County, CA
Contract
Breach
The remedy for failure to perform as promised was termination (which apparently happened here). The Third Cause of Action alleges "Breach of Contract." The only relationship alleged in the pleadings was an at-will employment relationship. It is axiomatic that the remedy for the breach of an at-will employment agreement is to terminate the at-will employee's employment. (Labor Code § 2922.)
CELINA GONZABA VS FLASHBACKS INC
37-2016-00040060-CU-OE-CTL
Jun 28, 2017
San Diego County, CA
Employment
Other Employment
ASSOCIATES Tentative Ruling: Breach of Contract: “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal. App. 5th 757, 792.)
PERRY VS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
CVRI2104046
Aug 02, 2022
Riverside County, CA
SC121358 is enforceable against Defendant Nationstar is irrelevant to this Motion because none of the causes of action alleged herein relate to the failure to perform under the judgment.As to the 1st Cause of Action (Declaratory Relief), it is a recognized cause of action.
THOMAS LEI, ET AL., VS BAC HOME LOANS SERVICING, LP., ET AL.
SC126554
Jul 25, 2017
Los Angeles County, CA
While the latter only gives rise to an action in contract, the former can give rise to an action in tort for negligence: “This court recently endorsed the general rule that where the ‘negligent’ performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence.
STEVEN GRYCZMAN, TRUSTEE OF THE GRYCZMAN LIVING TRUST DATED MARCH 30, 1990, ET AL. VS ALTAMARGUERITA SOUTH HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION
20SMCV01263
Sep 23, 2021
Los Angeles County, CA
Superior Court (2014) 227 Cal.App.4th 226, 241 ("As damages are an element of a breach of contract cause of action ... a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.") Moreover, whether coverage was properly denied based on Plaintiff's failure to perform its obligations under the contract raises a triable issue of material fact.
OLEARY CONSTRUCTION VS PREFERRED CONTRACTORS
56-2019-00534652-CU-IC-VTA
Dec 07, 2020
Ventura County, CA
Insurance
Intellectual Property
While a failure to perform a contractual promise is, without more, insufficient to establish a fraud cause of action, Vomax alleged Coeur Sports made multiple promises with no intent to perform, adequate to allege misrepresentation. Cross-complaint ¶¶9, 26. DENIED. DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND APPEAR REMOTELY VIA LA COURT CONNECT.
COEUR SPORTS, INC. VS GDMC USA, LLC
19SMCV01392
Sep 17, 2020
Los Angeles County, CA
(Defendant’s contention that the Complaint fails to allege if the contract is written, oral or implied is meritless.) Plaintiff must explain how defendant did something that violated one or more of the promises set forth in the lease. For example, if plaintiff alleges a failure to perform property maintenance, she must explain how the obligation is the landlord’s under paragraph 21 of the lease, which allocates maintenance responsibilities.
LASHLEY VS. WESTERN NA HOLDINGS LLC/ WESTERN NATIONAL SECURITIES
30-2016-00891548-CU-JR-CJC
Apr 06, 2017
Orange County, CA
The failure to perform a contract obligation is not a tort, unless the omission is also an omission of a legal duty. See Erlich (1999) 21 C4th 543, 551-552. Here, the alleged misrepresentations are merely terms of the lease and the facts alleged merely establish a failure to perform the terms of the lease. The alleged misrepresentations do not relate to a past or existing fact, but are terms of the lease to be performed in the future.
CASTAIC VILLAGE CENTER, LLC, A LIMITED LIABILITY COMPANY VS GYMCHEER USA, INC., A CALIFORNIA CORPORATION, ET AL.
20CHCV00417
Feb 24, 2021
Los Angeles County, CA
Real Property
Landlord Tenant
Plaintiff, therefore, was damaged in the amount of $350,000 because of Defendant A&A’s failure to perform under the Management Agreement, specifically that Arbor is no longer in business, and Plaintiff never received a single distribution or payment from Arbor, whose stock is now completely worthless. (Declarations of Jianglong Wang ¶ 11 (“Wang Decl.”) and Hubert Kuo (“Kuo Decl.”) ¶ 13, Exhibit (“Ex.”) 15.)
JIANGLONG WANG VS SHAO WEI FANG
KC070549
Nov 19, 2019
Los Angeles County, CA
Personal Injury/ Tort
Fraud
Further, the relief sought in this action is not for compensation but for redress in damages incurred for Defendants alleged failure to perform and/or demanding sums over the amount agreed upon in the contract. Because the complaint does not assert that Plaintiff was required to perform an act or contract that required a license, the statute is inapplicable. Because the contractor licensing statute is inapplicable on the face of the complaint, the demurrer is not persuasive.
ADR INC. VS KAIO CONSTRUCTION GROUP, INC.
23VECV00218
Dec 05, 2023
Los Angeles County, CA
However, Defendant presented evidence to dispute Plaintiffs alleged performance and presented facts to show Plaintiffs failure to perform their contractual obligations and/or fraud in invoicing their alleged performance. (Declaration of Shmuel Lopez.) With the contradictory facts presented by both declarations, there is insufficient showing as to the probable validity of the claim due to disputes as to Plaintiffs alleged performance.
B G PLUMBING & ROOTER, INC. VS TERRA HOME REMODELING, INC., ET AL.
23VECV02016
Sep 07, 2023
Los Angeles County, CA
“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1031.) A contact will be enforced if it is sufficiently definite for the court to ascertain the parties’ obligations and to determine whether there has been a breach. (Bustamante v. Intuit Inc. (2006) 141 Cal. App. 4th 199, 209.)
COMO VS CITY OF RIVERSIDE
RIC1826211
Mar 25, 2021
Riverside County, CA
Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Precision or in haec verba is not required, nor is attaching the actual contract if in writing.
SMILE STATIONS, INC. V. WESTERN DENTAL
30-2016-00872674-CU-BC-CJC
Dec 01, 2016
Orange County, CA
Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Precision or in haec verba is not required, nor is attaching the actual contract if in writing.
Smile Stations, Inc. v. Western Dental 16-872674
Nov 01, 2016
Orange County, CA
Failure to perform provides evidentiary support to negate her claim that she purchased the real property and that her status is that of a renter. The pleadings show that Plaintiff has been inconsistent in her payments, whether they are characterized as purchase payments or rent, since 2016. “A very strong and urgent case is required to justify a mandatory preliminary injunction. A clear case of prospective injury for which the plaintiff will have no adequate remedy at law is indispensable.”
INFANTE VS. JIF REPROGRAPHICS, INC.
FCS048600
Nov 16, 2018
Solano County, CA
The characteristic feature of a penalty is its lack of proportional relation to the damages which may actually flow from failure to perform under a contract. [Citations.]’ (Citation.) In short, ‘[a]n amount disproportionate to the anticipated damages is termed a “penalty.” A contractual provision imposing a 'penalty' is ineffective, and the wronged party can collect only the actual damages sustained.’ (Citations.)” (Ridgley v. Topa Thrift & Loan Ass'n (1998) 17 Cal.4th 970, 977–978.)
OCEAN POINT DEVELOPMENT, INC. VS KMD ELECTRIC, INC
LC106106
Oct 29, 2018
Los Angeles County, CA
Contract
Breach
(iv) an other amounts necessary to compensate Landlord for all of the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary court of things would be likely to result therefrom, including, without limitation, the cost of repairing the Premises and reasonable attorney’s fees." (Commercial Lease at p.25.) - Section 19.4 of the Commercial Lease states in relevant part: “...
A&A SUSHI, LLC VS. AGER HOLDINGS, INC., ET AL
EC066982
Mar 29, 2019
Los Angeles County, CA
Because Defendants argument misconstrues the allegations of the Complaint, Defendants argument of boot-strapping tort claims and contract claims is unpersuasive. Defendants then argue that allegations based upon future events or actions are not actionable frauds when all that is alleged is a failure to perform the promise. A promise of future conduct is actionable as fraud only if made without a present intent to perform.
SAM RAD VS BABAK ARAB, ET AL.
22VECV00067
Jun 28, 2022
Los Angeles County, CA
In the complaint, Plaintiff alleges that Defendant breached the parties agreement by failing to obtain permits for the property, failure of Warren Braithwaite to be licensed, failure to perform any work other than demolition, improper completion of framing, use of materials not up to code, improper performance of work, and failure to perform asbestos testing and remediation. (Compl., p. 3, Attachment BC-2.)
KIMBERLY KIM VS J BARON CONSTRUCTION, INC., ET AL.
19SMCV01536
Mar 21, 2024
11/28/2022
Los Angeles County, CA
Where the negligence amounts to nothing more than failure to perform under the contract, the claim is breach of contract and not negligence. (See also Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47 Cal.App.4th 464, 47) The Court GRANTS 10 days leave to amend.
SAN DIEGO HOUSING COMMISSION VS APR CONSTRUCTION INC
37-2016-00012455-CU-BC-CTL
Dec 01, 2016
San Diego County, CA
Contract
Breach
Where the negligence amounts to nothing more than failure to perform under the contract, the claim is breach of contract and not negligence. (See also Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47 Cal.App.4th 464, 47) The Court GRANTS 10 days leave to amend
SAN DIEGO HOUSING COMMISSION VS APR CONSTRUCTION INC
37-2016-00011386-CU-BC-CTL
Dec 01, 2016
San Diego County, CA
Contract
Breach
Plaintiff states that [t]his Motion is made on the following grounds that: The defendants attorney Spivey has been given a variety of chances by this court to respond to the Plaintiffs complaint on the Breach of the Commercial Leasing Contract agreement based on the Landlords failure to perform his duty within 30 days per the lease agreement contract he signed to resolve the Plaintiffs complaint.
TENANT MIKE HARSINI VS SOUTH BAY PROPERTY MANAGEMENT INC, ET AL.
22STCV22174
Dec 20, 2023
Los Angeles County, CA
Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988-989 (also noting prior application of economic loss rule to negligence cause of action).) As a general rule, a defendant’s failure to perform under a contract does not give rise to a fraud cause of action.
AUCK VS ALLEN OLDSMOBILE CADILLAC, INC.
30-2019-01078600
Jun 15, 2020
Orange County, CA
Nor does the second amended complaint plead the alleged terms verbatim, or plead the legal effect of the subject contract. The demurrer is also sustained as to plaintiff’s second cause of action for bad faith. Plaintiff alleges a bad faith claim against defendants pursuant to Insurance Code section 790.03 based on defendants’ alleged failure to perform contractual obligations in good faith.
COSTA, KEVIN VS. STEWART TITLE OF PLACER
S-CV-0041095
Dec 11, 2018
Placer County, CA
The essential elements to prove a breach of a contract are (1) a contract, (2) the plaintiff’s performance or excuse for failure to perform, (3) defendant’s breach, and (4) damage to plaintiff resulting therefrom. (McKell v. Washington Mut. (2006) 142 Cal.App.4th 1457, 1489.)
WELLS FARGO BANK, N.A. V. MANDI PICKENS
18LC-0006
Aug 23, 2018
San Luis Obispo County, CA
Such allegations are sufficient to indicate defendant breached the specific terms of the contract. The fact that the complaint refers to this failure as incompetent or improper is irrelevant to whether the allegations sufficiently allege a failure to perform. Motion to Strike The unopposed motion to strike is granted.
CALIFORNIA CAPITAL INSURANCE COMPANY AS SUBROGEE OF ITS INSURED, BUCKHORN ENTERPRISES LLC VS. AQUA CLEAN SOLUTIONS
CU23-02888
Apr 23, 2024
Solano County, CA
Such allegations are sufficient to indicate defendant breached the specific terms of the contract. The fact that the complaint refers to this failure as incompetent or improper is irrelevant to whether the allegations sufficiently allege a failure to perform. Motion to Strike The unopposed motion to strike is granted.
CALIFORNIA CAPITAL INSURANCE COMPANY AS SUBROGEE OF ITS INSURED, BUCKHORN ENTERPRISES LLC VS. AQUA CLEAN SOLUTIONS
CU23-02888
Apr 24, 2024
Solano County, CA
Finally, on count six, Ds argue that mere failure to perform a contract is not a tort, but here (¶ ¶ 53-56) P alleges an intentional tort. The demurrer is in many ways, frivolous, and is overruled in its entirety. Likewise, because P states a cause of action for actual fraud, P's punitive damage allegation (¶ 56) withstands Ds' MTS. MTS denied. Ten days to answer. gmr
MARIA BAUER VS. BON COEUR INC
56-2009-00361405-CU-BC-VTA
Sep 02, 2010
Ventura County, CA
The elements of a cause of action for breach of contract are: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract or excused failure to perform, (3) the defendant’s breach of the contract, and (4) damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
CL23-01514
Feb 23, 2024
Solano County, CA
The elements of a cause of action for breach of contract are: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract or excused failure to perform, (3) the defendant’s breach of the contract, and (4) damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
CL23-01514
Feb 24, 2024
Solano County, CA
The elements of a cause of action for breach of contract are: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract or excused failure to perform, (3) the defendant’s breach of the contract, and (4) damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
CL23-01514
Feb 25, 2024
Solano County, CA
The elements of a cause of action for breach of contract are: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract or excused failure to perform, (3) the defendant’s breach of the contract, and (4) damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
CL23-01514
Feb 26, 2024
Solano County, CA
.: 57 Page: 1 CASE TITLE: NATIONAL FUNDING INC VS KAAR CASE NUMBER: 37-2023-00000573-CU-BC-CTL DIRECT MAIL & FULFILLMENT LLC The elements of a cause of action for breach of guaranty are a valid guaranty, the borrower's default, and the guarantor's failure to perform. Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486. Here, plaintiff met its initial burden to show each element of the cause of action. SSUMF Nos. 1-11, citing Otero Decl. ¶¶ 4-9 and Exs 1-2.
37-2023-00000573-CU-BC-CTL
Jan 12, 2024
San Diego County, CA
The Demurrer to The Ninth Cause of Action For Breach of Contract –Third Party Beneficiary is SUSTAINED with leave to amend, on the basis that the FAC fails to allege facts showing all of the essential terms of the contract, performance or excuse for failure to perform by the parties to the contract; Defendant's breach, damage to plaintiff resulting therefrom, and facts showing that the contracting parties intended that the plaintiff benefit from their contract.
ALL SERVICE INDUSTRIES VS. VAUGHAN
30-2015-00822826-CU-CO-CJC
Jul 01, 2017
Orange County, CA
The jury was also instructed as follows: In contract law, a "material" breach of contract is a breach (a failure to perform the contract) that strikes so deeply at the heart of the contract that it renders the agreement "irreparably broken" and defeats the purpose of making the contract in the first place. The breach must go to the very root of the agreement between the parties.
HAKENJOS HALL PROFESSIONAL SERVICES INC V KATHY BLAND
37-2013-00077851-CU-BT-CTL
Jan 17, 2019
San Diego County, CA
Business
Intellectual Property
Defendants failure to perform that promise is really just a failure to perform the contract terms. Plaintiff has not alleged any other statements, and certainly not with the requisite specificity. (See Lazar, supra, 12 Cal.4th at p. 645.) The demurrer is SUSTAINED without leave to amend as to the second cause of action. III.
MARYAM KHANI VS BOBBY BABAK SAADIAN, ET AL.
22STCV26639
Apr 10, 2023
Los Angeles County, CA
The Demurrer to the Second Cause of Action for Breach of Contract is SUSTAINED with leave to amend, on the basis that the FAC fails to adequately allege facts showing plaintiff's performance or excuse for failure to perform. The Demurrer to the Third Cause of Action for Breach of Oral Contract is OVERRRULED. The statute of frauds is limited to “…only to those contracts which, by their terms, cannot possibly be performed within one year.” (See Foley v.
BLUMENTHAL VS. JONES
30-2018-01003027-CU-BT-CJC
Mar 08, 2019
Orange County, CA
The failure to perform under a contract may also be excused when performance is impracticable. “‘A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.’ [Citation.]” (Mineral Park Land Co. v. Howard (1916) 172 Cal. 289, 293.)
JACOB MACIAS VS VOLKSWAGEN GROUP OF AMERICA, INC.
19GDCV00003
Oct 09, 2020
Los Angeles County, CA
Contract
Breach
“A cause of action for breach of contract requires pleading of a contract, Plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting the refrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
JOSEPH DIBARTOLOMEO V UNILAB CORPORATION DBA QUEST DIAGNOSTICS, INC.
22CV00695
Feb 22, 2023
Santa Barbara County, CA
BACKGROUND On June 15, 2018, Plaintiff Angel Osornio (“Plaintiff”) filed a complaint against Defendant Beach Cities Urgent Care (erroneously sued as Playa Vista Medical Center) (“Defendant”) alleging medical negligence, fraud, infliction of emotional distress, and a breach of contract for a failure to perform a proper examination of Plaintiff during a January 9, 2013 urgent care visit. On June 6, 2019, the Court sustained Defendant’s demurrer to Plaintiff’s complaint with 20 days’ leave to amend.
ANGEL OSORNIO VS PLAYA VISTA MEDICAL CENTER
19STCV12226
Aug 21, 2019
Los Angeles County, CA
Personal Injury/ Tort
Medical Malpractice
Here, Plaintiff argues that Defendant’s failure to perform bars Defendant from asserting a valid defense to Plaintiff’s claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and specific performance. The parties do not dispute that Plaintiff was provided a Notice to Perform on September 26, 2016. (SSUDF No. 3.) The Notice requires Plaintiff to remove all contingencies and fund escrow. (Id. Nos. 3-4.)
HENLEY H. LE VS. ALFRED SOLORIO, ET.AL
VC065840
Mar 27, 2018
Los Angeles County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 01, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 03, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 07, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 05, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 02, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 06, 2021
Marin County, CA
[DEFT] JUAN VELASQUEZ RULING Defendants Juan Lopez Velasquez and Lopez Velasquez Company, Inc. generally demurrer to Plaintiff Mark Shawn Keltner’s unverified complaint alleging one cause of action for breach of contract based upon Defendants’ failure to perform pursuant to a settlement agreement entered into in the matter of Keltner v. Temnikoff, et al., CIV1704335. On November 17, 2021, Plaintiff filed a first amended complaint (FAC).
CV2101323
Dec 04, 2021
Marin County, CA
The essential elements to prove a breach of a contract are (1) a contract, (2) the plaintiff's performance or excuse for failure to perform, (3) defendant's breach, and (4) damage to plaintiff resulting therefrom. (McKell v. Washington Mutual (2006) 142 Cal.App.4th 1457, 1489.)
WELLS FARGO BANK NA V. RALPH PEREZ
16CV-0607
May 03, 2018
San Luis Obispo County, CA
Plaintiff also alleges that various defendants reneged on a lease-to-own contract regarding a single family home, and failed to return Plaintiff’s down payment. Plaintiff appears to seek to quiet title to that property, and alleges breach of contract claims premised on the failure to perform under that contract.
JULIAN PEREZ VS JOAN LEWIS, ET AL.
20STCV32063
Jul 06, 2021
Los Angeles County, CA
Personal Injury/ Tort
Fraud
Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damages. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525.
BRIXTON AC VENTURES, LP VS TABLETOP VENTURES, LLC
30-2020-01137749
Nov 30, 2020
Orange County, CA
Admiral brings a subrogation claim for breach of contract against defendant Travelers, Aref’s other insurer, arguing Travelers breached its agreement with Aref by failing to defend it in the litigation. Travelers demurs to the breach of contract cause of action. The elements of a cause of action for breach of contract include (1) a contract, (2) plaintiff’s performance or excuse for failure to perform, (3) defendant’s breach of the contract, and (4) resulting damages. McKell v.
ADMIRAL INSURANCE COMPANY VS TASLIMI CONSTRUCTION CO., INC., ET AL.
19SMCV00210
Aug 12, 2020
Los Angeles County, CA
Contract
Breach
(f)(1).) 1st COA for Breach of Equipment Financing Agreement against Red Rock “A cause of action for breach of contract requires [1] pleading of a contract, [2] plaintiff’s performance or excuse for failure to perform, [3] defendant's breach, and [4] damage to plaintiff resulting therefrom.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.) “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage.” (Troyk v.
BALBOA CAPITAL CORPORATION VS. PARISA SAFAEI D.M.D.
30-2018-01041349-CU-CL-CJC
Jan 27, 2021
Orange County, CA
Plaintiffs argue that the breach of contract cause of action is based on Defendant’s failure to perform services under the Consulting Agreement, which Plaintiffs claim is a breach of the covenant of good faith and fairdealing. Plaintiffs argue that Defendant ratified the contract by demanding payments as an individual. Plaintiffs argue that the fraud cause of action is properly pled based on promises to perform under the Consulting Agreement.
E&G MANAGEMENT CO. VS GRIFFIS NEE CROSS
CVRI2000779
Jan 07, 2022
Riverside County, CA
Failure to perform on the contract applies to both parties: “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.” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.) Marino’s SACC is consistent with a claim that Misho materially breached the contract first and thereby excused Marino’s further performance.
JACQUELINE MISHO VS JAMES MARINO
1416944
Feb 11, 2014
Santa Barbara County, CA
Grimes (2011) 192 Cal.App.4th 265, 277 establishes that "[w]hen 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." Further, "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." (Id.)
DIGITAL REALTY TRUST, INC., A MARYLAND CORPORATION ET AL VS. MICHAEL F. FOUST
CGC14542455
Jul 17, 2015
San Francisco County, CA
The essential elements to prove a breach of a contract are (1) a contract, (2) the plaintiff's performance or excuse for failure to perform, (3) defendant's breach, and (4) damage to plaintiff resulting therefrom. (McKell v. Washington Mutual (2006) 142 Cal.App.4th 1457, 1489.) Plaintiff and Defendant entered into a written contract wherein the parties agreed that Plaintiff would extend credit to Defendant, in exchange for repayment of the principal amount lent, plus interest and applicable fees. (UMF 1.)
WELLS FARGO BANK, N.A. VS. JASON HOLLAND
17LCP-0700
May 14, 2019
San Luis Obispo County, CA
The elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525.
HANOLD PROPERTIES VS. LEWIS SCHAINUCK
30-2016-00845400-CU-CO-CJC
Sep 23, 2016
Orange County, CA
“A condition is waived when a promisor by his words or conduct justifies the promisee in believing that a conditional promise will be performed despite the failure to perform the condition, and the promisee relies upon the promisor's manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210 Cal.App.2d 258, 264.) 1.
NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL
20-CIV-02750
Dec 05, 2021
San Mateo County, CA
“A condition is waived when a promisor by his words or conduct justifies the promisee in believing that a conditional promise will be performed despite the failure to perform the condition, and the promisee relies upon the promisor's manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210 Cal.App.2d 258, 264.) 1.
NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL
20-CIV-02750
Nov 28, 2021
San Mateo County, CA
“A condition is waived when a promisor by his words or conduct justifies the promisee in believing that a conditional promise will be performed despite the failure to perform the condition, and the promisee relies upon the promisor's manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210 Cal.App.2d 258, 264.) 1.
NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL
20-CIV-02750
Nov 21, 2021
San Mateo County, CA
. [¶] Plaintiff is informed and believes and thereon alleges that Defendants breached Fiduciary Duty of the contract entered into In September 2017 by reckless failure to perform legal service with competence. [¶] Plaintiff is informed and believes and thereon alleges that Defendant defrauded the Plaintiff by virtue of Business and Professional Code.” (Complaint ¶¶7-9.)
SHERMAN E. MAYERS VS. PATRICIA RENE RODRIGUEZ
VC067222
Nov 08, 2018
Los Angeles County, CA
Personal Injury/ Tort
Fraud
Finally, Defendants contend that the fraud claim should be dismissed because it is “simply duplicative of his contract claim” and “would be contrary to the cautious policy of the courts about extending tort remedies to ordinary commercial contracts.” (Dem. at 6-7) However, a fraud claim may be stated where the alleged fraud is something more than failure to perform the contract, such as committing fraud during the contract formation or performance. This is the gravamen of Plaintiffs’ fraud claim, here.
MOON VS. YI
30-2019-01044219-CU-FR-CJC
Jun 06, 2019
Orange County, CA
Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) The failure to perform a contract obligation is never a tort, unless that failure to perform is also an omission of a legal duty. (Id.) Here, Plaintiff has not alleged such facts. Plaintiff argues in the opposition that this is a fraud in the inducement claim.
STEP AND REPEAT PRODUCTIONS, LLC VS JOHN HYLAND
19BBCV00801
Feb 07, 2020
Los Angeles County, CA
Personal Injury/ Tort
Fraud
First, by basing their fraud claim on Defendants’ alleged failure to perform their contractual obligations, Plaintiffs improperly conflate a failure to perform a contractual obligation with a false promise. If these promises were one in the same, then every breach of contract claim would also support a fraud cause of action. Put simply, Plaintiffs facts are sufficient only to show a breach of a contractual promise.
ROBERT MAKUTA, ET AL. VS PRISTINE WINDOWS, INC., ET AL.
20STCV07539
Oct 28, 2020
Los Angeles County, CA
Personal Injury/ Tort
Fraud
To the extent Plaintiff’s negligence claim depends on failure to perform under the contract, the claim fails. If Plaintiff is alleging Defendants damaged property beyond the performance of the contract, the court grants leave to amend. For the seventh cause of action, intentional infliction of emotional distress, Plaintiff fails to allege extreme or outrageous conduct. Defendants’ alleged negligence in the completion of the home repairs is insufficient. (See (Fuentes v. Perez (1977) 66 Cal.
SABA VS F.P.R.
RIC2000802
Nov 19, 2020
Riverside County, CA
A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. ( Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.) Plaintiffs FAC alleges one cause of action against A&H for Breach of Contract. (FAC p. 4.)
KAREN HARUTYUNYAN VS ANNA HAKOBYAN, ET AL.
22STCV36723
Mar 06, 2023
Los Angeles County, CA
Although attorney Fuentes was clearly obligated to perform legal services in Imperial County, this case is not an action based on his failure to perform an obligation. Itis not clear where Defendant was required to make the payments for the legal services provided by Plaintiff, but since Defendant resides in Riverside and Plaintiff’s office is located in San Bernardino county, it is unlikely she was required to perform in Imperial County. Certainly, there is no contract in writing so stating.
FUENTES VS HAMMOND
CVPS2201372
Oct 30, 2022
Riverside County, CA
Although attorney Fuentes was clearly obligated to perform legal services in Imperial County, this case is not an action based on his failure to perform an obligation. Itis not clear where Defendant was required to make the payments for the legal services provided by Plaintiff, but since Defendant resides in Riverside and Plaintiff’s office is located in San Bernardino county, it is unlikely she was required to perform in Imperial County. Certainly, there is no contract in writing so stating.
FUENTES VS HAMMOND
CVPS2201372
Oct 31, 2022
Riverside County, CA
While such testimony may be relevant to ultimate questions of whether one party breached the contract or the covenant of good faith and fair dealing, opinions on the failure to perform according to industry standards is admissible, even though an expert is generally not permitted to offer opinions on the ultimate issue of breach.
WILLIAM HANDEL, ET AL. VS OVATION FERTILITY, AN ENTITY OF UNKNOWN FORM, ET AL.
20STCV17139
Sep 28, 2022
Los Angeles County, CA
¶ 47 alleges Defendants’ failure to perform the promise. ¶¶48-51 allege resulting damages. The court finds the allegations are sufficiently specific, and allege a cause of action for promissory fraud. On demurrer, Defendants contend that the claim alleges tort damages for what is a contract claim. An action for promissory fraud may lie where a defendant fraudulently induces a plaintiff to enter into a contract.
RENTAL ACQUISITIONS LLC VS KING EQUIPMENT LLC, ET AL.
20NWCV00482
May 18, 2021
Los Angeles County, CA
Personal Injury/ Tort
Fraud
“A cause of action for breach of contract requires (1) pleading of a contract, (2) plaintiff's performance or excuse for failure to perform, (3) defendant's breach and (4) damage to plaintiff resulting therefrom.” McKell v. Washington Mutual, Inc.¿(2006) 142 Cal.App.4th 1457, 1489. Here, Plaintiff submitted the Declaration of Nicholas Jurkowitz, who is Plaintiff’s Custodian of Records, in support of default judgment. (Jurkowitz Decl., ¶ 1.)
FENTON LAW GROUP LLP VS SUBHASH C VARSHNEY
BC692681
Oct 10, 2018
Los Angeles County, CA
Houck argues the fraud and negligent misrepresentation claims fail, as the Bakers allege only failure to perform. The Bakers set forth a series of false representations Houck allegedly made to induce them to enter into the contract (e.g. he had extensive experience remodeling luxury homes[.] Cross-complaint ¶¶11-12). The fraud causes of action are not duplicative of the breach of contract claims.
JONATHAN BAKER, ET AL. VS MAREE, INC., ET AL.
18SMCV00115
May 27, 2022
Los Angeles County, CA
Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525.
HILL V. NAGER
30-2017-00948360-CU-BC-CJC
Jul 05, 2018
Orange County, CA
Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff’s performance or excuse for failure to perform, (6) defendant’s breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525.
HILL V. NAGER
30-2017-00948360
Jul 05, 2018
Orange County, CA
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