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Lender’s $1.16 Miscalculation Is Trivial, Not Giving Rise to Breach-of-Contract Suit—C.A.
Segal Says Admitted Error Is So Trifling That Even Nominal Damages Are Not Awardable
By a MetNews Staff Writer
The Court of Appeal for this district has held that no cause of action for a breach of contract lies against a bank that, admittedly, in 1989 overstated by $1.16 the amount that was due in principal on a loan, rejecting the plaintiff’s contention that the miscalculation—which, with accrued interest, created a $7.71 debt as of 2015 when suit was brought—was sufficient to overcome the defendant’s motion for summary judgment.
A computational mistake in so paltry a sum is within the realm of acceptability and does not constitute a contractual breach, the justices said, declaring that even an award of nominal damages is unavailable.
Granting the summary judgment motion in favor of PNC Bank was Los Angeles Superior Court Judge Ronald F. Frank who declared that a discrepancy in so small an amount “would be de minimis, would be insubstantial, and does not raise a ‘material’ issue of disputed fact.”
Affirmance came Thursday in an unpublished opinion by Justice John L. Segal of Div. Seven. He declared that Frank “did not err in ruling a potential overcharge of $7.71 on a $375,000 loan was a trivial discrepancy that did not constitute a breach of contract.”
Segal cited Civil Code §3533, contained among that code’s “Maxims of Jurisprudence.” The section says:
“The law disregards trifles.”
The California Supreme Court noted in a 2018 opinion that the 1872 code section is based on the ancient maxim, “de minimis non curat lex,” which means “[t]he law does not concern itself with trifles.”
Plaintiff’s Contention
Appellant Fred Tucker’s brief on appeal, filed by West Los Angeles attorney Edward A. Hoffman, quotes the California Supreme Court as saying in its 1893 opinion in Kenyon v. Western Union Telegraph Co.:
“The failure to perform a duty required by contract is a legal wrong, independently of actual damage sustained by the party to whom performance is due; and in general, where a contract right is violated, the maxim ‘de minimis non curat lex’ has no application, and nominal damages will be given.”
Tucker argued that “if the case proceeds to a judgment on the merits and results in a judgment in Fred’s favor, even for just $7.11 plus whatever additional interest may accrue in the meantime, then he will be the prevailing party,” potentially entitled to an award of attorney fees, under a contractual fee-shifting provision. (The figure should have read $7.71.)
Segal responded:
“Although Tucker generally describes the law regarding nominal damages correctly, it does not apply here.”
The jurist explained:
“This is not a case where the plaintiff proves the defendant breached the contract but fails to prove the breach caused any actual damages. Tucker did not prove a breach. The evidence showed that, because PNC accurately charged interest within a trivial margin of error, Tucker could not prove PNC breached the promissory note.”
1988 Loan
The loan was taken out in 1988 by Zula Tucker, who died in 2012. Her son, Fred Tucker, in 2015 brought suit, individually and as trustee of his mother’s 2006 living trust, contending that the loan not only isn’t outstanding, but that there had been a substantial overpayment.
PNC said in its respondent’s brief, drafted by Stuart B. Wolfe and Libby Wong of the Irvine firm of Wolfe & Wyman LLP, that over the past nine years, Fred Tucker brought “no less than six lawsuits—plus the instant appeal—against Respondent PNC BANK, N.A…in a futile attempt to prevent the foreclosure sale of his real property” in Palos Verdes Estates, which was put up by his mother as security for the loan.
Frank rejected the assertion that there was an overpayment on the loan, and Segal commented that “even if PNC overcharged Tucker by $7.71, that amount (or an award of nominal damages) would be offset by the much larger amount Tucker owed PNC on the promissory note.”
After Frank awarded summary judgment to PNC, the defendant moved for an award of costs in the amount of $134,936.85, including $131,791 in attorney fees. The judge deferred action on that motion pending a resolution of Tucker’s appeal.
That appeal was decided Thursday in Tucker v. PNC Bank, B323708.
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