Breach of Contract for Not Completing a Job in California

What Is Breach of Contract for Not Completing a Job?

Elements

“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.)

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;

Oral and Written Contracts

“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).

Statute of limitations

Written Contracts

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. . . .”

Oral Contracts

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).

Breach

“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.).

Potential Defenses to Failure to Complete Performance

Substantial Performance

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).

Ability to Perform

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:

  1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; however, the parties may expressly require in a contract that the party relying on the provisions of this paragraph give written notice to the other party or parties, within a reasonable time after the occurrence of the event excusing performance, of an intention to claim an extension of time or of an intention to bring suit or of any other similar or related intent, provided the requirement of such notice is reasonable and just;
  2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or,
  3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.

Civil Code § 1511

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.

Caselaw

“[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)).

Damages

Economic Loss Rule

‘‘[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.)

Tort Damages

[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.)

Punitive Damages

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)).

Other Forms of Relief

Declaratory Relief

Code of Civil Procedure

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.

Caselaw

“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)).

Specific Performance

To state entitlement to specific performance, Plaintiff must establish:

  1. the inadequacy of his legal remedy;
  2. an underlying contract that is both reasonable and supported by adequate consideration;
  3. the existence of a mutuality of remedies;
  4. contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and
  5. a substantial similarity of the requested performance to that promised in the contract.

(Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal. App. 3d 571, 575).

Partial Performance in Relation to Early Termination

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).

Partial Performance in Relation to the Statue of Frauds

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).

Rulings for Breach of Contract – Not Completing a Job in California

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.

  • Name

    MICHAEL KIRKPATRICK, ET AL. VS FARZAD ESSAPOUR, ET AL.

  • Case No.

    21SMCV00486

  • Hearing

    Dec 16, 2021

  • County

    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.

  • Name

    CORMAN LEIGH COMPANIES VS LAKE ELSINORE AIRPORT, LLC

  • Case No.

    CVRI2201688

  • Hearing

    Jan 19, 2023

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."

  • Name

    CREDITORS ADJUSTMENT BUREAU VS IVONE DIAMOND

  • Case No.

    37-2017-00043625-CL-BC-CTL

  • Hearing

    Mar 01, 2018

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.)

  • Name

    COAST REHABILITATION SERVICES INC VS THE DORTON FIRM PC

  • Case No.

    1370065

  • Hearing

    Sep 13, 2010

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.

  • Name

    BROWN, ET AL. V. CAMBRIDGE HOMES, ET AL.

  • Case No.

    30-2015-00824794-CU-CO-CJC

  • Hearing

    Oct 01, 2016

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.

  • Name

    LA GYMNASTICS CENTER, INC. VS ALPINE EQUITIES LLC

  • Case No.

    21SMCV00805

  • Hearing

    Oct 20, 2021

  • County

    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.

  • Name

    NATIONAL FUNDING INC VS COTTONWOOD ELECTRIC CART SERVICE INCORPORATED

  • Case No.

    37-2018-00000599-CU-BC-CTL

  • Hearing

    Dec 06, 2018

Under those circumstances, it is an absolute failure to perform, not performance that was partial or inadequate due to the defendant’s negligence.

  • Name

    HERNANDEZ VS KADVA PATIDAR 42 GAM SAMAJ

  • Case No.

    RIC2000118

  • Hearing

    Aug 24, 2020

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.

  • Name

    SHAOULIAN VS. YOCCA

  • Case No.

    30-2015-00791004-CU-BC-CJC

  • Hearing

    Sep 01, 2016

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.

  • Name

    WELLS FARGO BANK, N.A. VS KORSHAVN

  • Case No.

    CVSW2110449

  • Hearing

    Jun 30, 2022

  • County

    Riverside 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.

  • Name

    CAPITAL BENEFIT, INC. V. DOE

  • Case No.

    30-2019-01088625

  • Hearing

    May 24, 2021

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.").

  • Name

    GALLARDO VS AREYALO

  • Case No.

    37-2022-00035597-CL-CO-CTL

  • Hearing

    Dec 08, 2023

  • County

    San Diego 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.)

  • Name

    WASTE MANAGEMENT OF ALAMEDA C VS EAST BAY MUNICIPAL UTILITY

  • Case No.

    RG21094336

  • Hearing

    Jul 29, 2021

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.

  • Case No.

    Marina Industries, LLC v. Dimano, Inc.

  • Hearing

    Nov 01, 2016

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.

  • Name

    SALLY PETERSON VS. DENNIS CAPELLO

  • Case No.

    34-2010-00092537-CU-BC-GDS

  • Hearing

    Jun 09, 2011

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.

  • Name

    JOSE ARNOLDO FUENTES VS B & N TRUCK REPAIR ET AL

  • Case No.

    BC626955

  • Hearing

    Dec 14, 2016

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.

  • Name

    TAKUMA YAMAMOTO VS JOHNNIE KENNEDY FARMS, JR.

  • Case No.

    23STCV07253

  • Hearing

    Feb 23, 2024

  • County

    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)

  • Name

    STEPHANIE CHU VS. JP MORGAN CHASE NATIONAL CORPORATE SERVICES, INC ET AL

  • Case No.

    CGC12518775

  • Hearing

    Apr 18, 2014

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.

  • Name

    THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY VS THERMACOR PROCESS INC

  • Case No.

    37-2018-00033147-CU-CD-CTL

  • Hearing

    Aug 17, 2023

  • County

    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.

  • Name

    ELIZABETH MACLYMAN VS. GARDEN GROVE

  • Case No.

    30-2015-00791461-CU-JR-CJC

  • Hearing

    Mar 01, 2017

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

  • Name

    CAMDEN JAMBOREE DEVELOPMENT, LP V. WANLY

  • Case No.

    30-2018-01014115-CU-NP-CJC

  • Hearing

    Dec 05, 2019

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.

  • Name

    AFAKORI, INC. DBA., A CALIFORNIA CORPORATION VS ICON WEST, INC., A CALIFORNIA CORPORATION, ET AL.

  • Case No.

    22SMCV00512

  • Hearing

    Jan 30, 2023

  • County

    Los Angeles County, CA

to perform the Services or any other breach of this Agreement.

  • Name

    AMSTER V. SIMON PROPERTY GROUP, INC., ET AL.

  • Case No.

    17CV311418

  • Hearing

    Nov 21, 2019

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.

  • Name

    THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY VS THERMACOR PROCESS INC

  • Case No.

    37-2018-00033147-CU-CD-CTL

  • Hearing

    Aug 11, 2023

  • County

    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.

  • Name

    TERRELL VS DALEY

  • Case No.

    37-2018-00024923-CU-BC-CTL

  • Hearing

    Oct 22, 2019

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.)

  • Name

    CELINA GONZABA VS FLASHBACKS INC

  • Case No.

    37-2016-00040060-CU-OE-CTL

  • Hearing

    Jun 28, 2017

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.)

  • Name

    PERRY VS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

  • Case No.

    CVRI2104046

  • Hearing

    Aug 02, 2022

  • County

    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.

  • Name

    THOMAS LEI, ET AL., VS BAC HOME LOANS SERVICING, LP., ET AL.

  • Case No.

    SC126554

  • Hearing

    Jul 25, 2017

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.

  • Name

    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

  • Case No.

    20SMCV01263

  • Hearing

    Sep 23, 2021

  • County

    Los Angeles County, CA

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.

  • Name

    COEUR SPORTS, INC. VS GDMC USA, LLC

  • Case No.

    19SMCV01392

  • Hearing

    Sep 17, 2020

(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.

  • Name

    LASHLEY VS. WESTERN NA HOLDINGS LLC/ WESTERN NATIONAL SECURITIES

  • Case No.

    30-2016-00891548-CU-JR-CJC

  • Hearing

    Apr 06, 2017

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.

  • Name

    OLEARY CONSTRUCTION VS PREFERRED CONTRACTORS

  • Case No.

    56-2019-00534652-CU-IC-VTA

  • Hearing

    Dec 07, 2020

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.

  • Name

    CASTAIC VILLAGE CENTER, LLC, A LIMITED LIABILITY COMPANY VS GYMCHEER USA, INC., A CALIFORNIA CORPORATION, ET AL.

  • Case No.

    20CHCV00417

  • Hearing

    Feb 24, 2021

  • County

    Los Angeles County, CA

  • Type

    Real Property

  • Sub Type

    Landlord Tenant

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.

  • Name

    ADR INC. VS KAIO CONSTRUCTION GROUP, INC.

  • Case No.

    23VECV00218

  • Hearing

    Dec 05, 2023

  • County

    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.

  • Name

    B G PLUMBING & ROOTER, INC. VS TERRA HOME REMODELING, INC., ET AL.

  • Case No.

    23VECV02016

  • Hearing

    Sep 07, 2023

  • County

    Los Angeles County, CA

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.)

  • Name

    JIANGLONG WANG VS SHAO WEI FANG

  • Case No.

    KC070549

  • Hearing

    Nov 19, 2019

“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.)

  • Name

    COMO VS CITY OF RIVERSIDE

  • Case No.

    RIC1826211

  • Hearing

    Mar 25, 2021

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.

  • Name

    SMILE STATIONS, INC. V. WESTERN DENTAL

  • Case No.

    30-2016-00872674-CU-BC-CJC

  • Hearing

    Dec 01, 2016

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.

  • Case No.

    Smile Stations, Inc. v. Western Dental 16-872674

  • Hearing

    Nov 01, 2016

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.”

  • Name

    INFANTE VS. JIF REPROGRAPHICS, INC.

  • Case No.

    FCS048600

  • Hearing

    Nov 16, 2018

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.)

  • Name

    OCEAN POINT DEVELOPMENT, INC. VS KMD ELECTRIC, INC

  • Case No.

    LC106106

  • Hearing

    Oct 29, 2018

  • County

    Los Angeles County, CA

  • Type

    Contract

  • Sub Type

    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.

  • Name

    SAN DIEGO HOUSING COMMISSION VS APR CONSTRUCTION INC

  • Case No.

    37-2016-00012455-CU-BC-CTL

  • Hearing

    Dec 01, 2016

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

  • Name

    SAN DIEGO HOUSING COMMISSION VS APR CONSTRUCTION INC

  • Case No.

    37-2016-00011386-CU-BC-CTL

  • Hearing

    Dec 01, 2016

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.)

  • Name

    WELLS FARGO BANK, N.A. V. MANDI PICKENS

  • Case No.

    18LC-0006

  • Hearing

    Aug 23, 2018

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.

  • Name

    COSTA, KEVIN VS. STEWART TITLE OF PLACER

  • Case No.

    S-CV-0041095

  • Hearing

    Dec 11, 2018

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.

  • Name

    SAM RAD VS BABAK ARAB, ET AL.

  • Case No.

    22VECV00067

  • Hearing

    Jun 28, 2022

  • County

    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.)

  • Name

    KIMBERLY KIM VS J BARON CONSTRUCTION, INC., ET AL.

  • Case No.

    19SMCV01536

  • Hearing

    Mar 21, 2024

  • Judge

    11/28/2022

  • County

    Los Angeles County, CA

(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: “...

  • Name

    A&A SUSHI, LLC VS. AGER HOLDINGS, INC., ET AL

  • Case No.

    EC066982

  • Hearing

    Mar 29, 2019

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.

  • Name

    TENANT MIKE HARSINI VS SOUTH BAY PROPERTY MANAGEMENT INC, ET AL.

  • Case No.

    22STCV22174

  • Hearing

    Dec 20, 2023

  • County

    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.

  • Name

    AUCK VS ALLEN OLDSMOBILE CADILLAC, INC.

  • Case No.

    30-2019-01078600

  • Hearing

    Jun 15, 2020

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

  • Name

    MARIA BAUER VS. BON COEUR INC

  • Case No.

    56-2009-00361405-CU-BC-VTA

  • Hearing

    Sep 02, 2010

.: 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.

  • Case No.

    37-2023-00000573-CU-BC-CTL

  • Hearing

    Jan 12, 2024

  • County

    San Diego 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.)

  • Case No.

    CL23-01514

  • Hearing

    Feb 23, 2024

  • County

    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.)

  • Case No.

    CL23-01514

  • Hearing

    Feb 24, 2024

  • County

    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.)

  • Case No.

    CL23-01514

  • Hearing

    Feb 25, 2024

  • County

    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.)

  • Case No.

    CL23-01514

  • Hearing

    Feb 26, 2024

  • County

    Solano 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.

  • Name

    HAKENJOS HALL PROFESSIONAL SERVICES INC V KATHY BLAND

  • Case No.

    37-2013-00077851-CU-BT-CTL

  • Hearing

    Jan 17, 2019

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.

  • Name

    ALL SERVICE INDUSTRIES VS. VAUGHAN

  • Case No.

    30-2015-00822826-CU-CO-CJC

  • Hearing

    Jul 01, 2017

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.

  • Name

    MARYAM KHANI VS BOBBY BABAK SAADIAN, ET AL.

  • Case No.

    22STCV26639

  • Hearing

    Apr 10, 2023

  • County

    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.

  • Name

    BLUMENTHAL VS. JONES

  • Case No.

    30-2018-01003027-CU-BT-CJC

  • Hearing

    Mar 08, 2019

“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.)

  • Name

    JOSEPH DIBARTOLOMEO V UNILAB CORPORATION DBA QUEST DIAGNOSTICS, INC.

  • Case No.

    22CV00695

  • Hearing

    Feb 22, 2023

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.

  • Name

    ANGEL OSORNIO VS PLAYA VISTA MEDICAL CENTER

  • Case No.

    19STCV12226

  • Hearing

    Aug 21, 2019

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.)

  • Name

    JACOB MACIAS VS VOLKSWAGEN GROUP OF AMERICA, INC.

  • Case No.

    19GDCV00003

  • Hearing

    Oct 09, 2020

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.)

  • Name

    HENLEY H. LE VS. ALFRED SOLORIO, ET.AL

  • Case No.

    VC065840

  • Hearing

    Mar 27, 2018

[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).

  • Case No.

    CV2101323

  • Hearing

    Dec 01, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 03, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 07, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 05, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 02, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 06, 2021

  • County

    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).

  • Case No.

    CV2101323

  • Hearing

    Dec 04, 2021

  • County

    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.)

  • Name

    WELLS FARGO BANK NA V. RALPH PEREZ

  • Case No.

    16CV-0607

  • Hearing

    May 03, 2018

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.

  • Name

    JULIAN PEREZ VS JOAN LEWIS, ET AL.

  • Case No.

    20STCV32063

  • Hearing

    Jul 06, 2021

  • County

    Los Angeles County, CA

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

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.

  • Name

    ADMIRAL INSURANCE COMPANY VS TASLIMI CONSTRUCTION CO., INC., ET AL.

  • Case No.

    19SMCV00210

  • Hearing

    Aug 12, 2020

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.

  • Name

    BRIXTON AC VENTURES, LP VS TABLETOP VENTURES, LLC

  • Case No.

    30-2020-01137749

  • Hearing

    Nov 30, 2020

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.)

  • Name

    WELLS FARGO BANK, N.A. VS. JASON HOLLAND

  • Case No.

    17LCP-0700

  • Hearing

    May 14, 2019

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.)

  • Name

    DIGITAL REALTY TRUST, INC., A MARYLAND CORPORATION ET AL VS. MICHAEL F. FOUST

  • Case No.

    CGC14542455

  • Hearing

    Jul 17, 2015

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.

  • Name

    JACQUELINE MISHO VS JAMES MARINO

  • Case No.

    1416944

  • Hearing

    Feb 11, 2014

(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.

  • Name

    BALBOA CAPITAL CORPORATION VS. PARISA SAFAEI D.M.D.

  • Case No.

    30-2018-01041349-CU-CL-CJC

  • Hearing

    Jan 27, 2021

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.

  • Name

    E&G MANAGEMENT CO. VS GRIFFIS NEE CROSS

  • Case No.

    CVRI2000779

  • Hearing

    Jan 07, 2022

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.

  • Name

    HANOLD PROPERTIES VS. LEWIS SCHAINUCK

  • Case No.

    30-2016-00845400-CU-CO-CJC

  • Hearing

    Sep 23, 2016

“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.

  • Name

    NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL

  • Case No.

    20-CIV-02750

  • Hearing

    Dec 05, 2021

“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.

  • Name

    NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL

  • Case No.

    20-CIV-02750

  • Hearing

    Nov 28, 2021

“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.

  • Name

    NEWTON----THE CHILDREN'S LEARNING CENTER, INC., A CALIFORNIA CORPORATION, ET AL VS. DE RITZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL

  • Case No.

    20-CIV-02750

  • Hearing

    Nov 21, 2021

. [¶] 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.)

  • Name

    SHERMAN E. MAYERS VS. PATRICIA RENE RODRIGUEZ

  • Case No.

    VC067222

  • Hearing

    Nov 08, 2018

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.

  • Name

    STEP AND REPEAT PRODUCTIONS, LLC VS JOHN HYLAND

  • Case No.

    19BBCV00801

  • Hearing

    Feb 07, 2020

  • County

    Los Angeles County, CA

  • Type

    Personal Injury/ Tort

  • Sub Type

    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.

  • Name

    SABA VS F.P.R.

  • Case No.

    RIC2000802

  • Hearing

    Nov 19, 2020

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.

  • Name

    MOON VS. YI

  • Case No.

    30-2019-01044219-CU-FR-CJC

  • Hearing

    Jun 06, 2019

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.)

  • Name

    KAREN HARUTYUNYAN VS ANNA HAKOBYAN, ET AL.

  • Case No.

    22STCV36723

  • Hearing

    Mar 06, 2023

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.

  • Name

    ROBERT MAKUTA, ET AL. VS PRISTINE WINDOWS, INC., ET AL.

  • Case No.

    20STCV07539

  • Hearing

    Oct 28, 2020

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.

  • Name

    FUENTES VS HAMMOND

  • Case No.

    CVPS2201372

  • Hearing

    Oct 30, 2022

  • County

    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.

  • Name

    FUENTES VS HAMMOND

  • Case No.

    CVPS2201372

  • Hearing

    Oct 31, 2022

  • County

    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.

  • Name

    WILLIAM HANDEL, ET AL. VS OVATION FERTILITY, AN ENTITY OF UNKNOWN FORM, ET AL.

  • Case No.

    20STCV17139

  • Hearing

    Sep 28, 2022

  • County

    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.

  • Name

    RENTAL ACQUISITIONS LLC VS KING EQUIPMENT LLC, ET AL.

  • Case No.

    20NWCV00482

  • Hearing

    May 18, 2021

  • County

    Los Angeles County, CA

  • Type

    Personal Injury/ Tort

  • Sub Type

    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.)

  • Name

    FENTON LAW GROUP LLP VS SUBHASH C VARSHNEY

  • Case No.

    BC692681

  • Hearing

    Oct 10, 2018

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.

  • Name

    HILL V. NAGER

  • Case No.

    30-2017-00948360

  • Hearing

    Jul 05, 2018

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.

  • Name

    HILL V. NAGER

  • Case No.

    30-2017-00948360-CU-BC-CJC

  • Hearing

    Jul 05, 2018

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.

  • Name

    JONATHAN BAKER, ET AL. VS MAREE, INC., ET AL.

  • Case No.

    18SMCV00115

  • Hearing

    May 27, 2022

  • County

    Los Angeles County, CA

Plaintiff submits evidence of a valid guaranty [SSUMF Issue 3: 1-8]; MB Xpress's default [SSUMF Issue 3: 10]; and Defendant Bains' failure to perform under the guaranty [SSUMF Issue 3: 11]. Plaintiff also submits evidence of Plaintiff's performance [SSUMF Issue 3: 9] and resulting damages [SSUMF Issue3: 12-14]. As this motion is unopposed Defendant Bains submits no evidence in dispute.

  • Name

    PACIFIC WESTERN BANK VS MB XPRESS INC

  • Case No.

    37-2019-00033303-CU-BC-CTL

  • Hearing

    Sep 03, 2020

As a general rule, a defendant’s failure to perform under a contract does not give rise to a fraud cause of action. This is both because of the economic loss rule and the recognition, also referred to above, that contract and tort law are and should remain separate areas of law. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514-516; Robinson Helicopter Co., Inc. v.

  • Name

    BROGDON VS. FCA US, LLC

  • Case No.

    30-2019-01091430

  • Hearing

    Dec 19, 2019

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