Briski v. Hersey
3:17-cv-02675
N.D. Cal.Oct 5, 2017Background
- Briski (artist) consigned 11 photographs to Hersey (art dealer) under a contract setting an aggregate retail price of $164,000 and making Hersey responsible for care, sale, or return of the works.
- Parties agreed Hersey would return unsold works by end of February 2017; Hersey failed to do so and later refused return after suit was filed.
- Briski sued for breach of contract and conversion, obtained clerk’s default against Hersey, and won a preliminary injunction ordering return of the photographs by July 14, 2017.
- After eviction, Hersey had the works; a third party (Powers) temporarily stored five pieces; Briski recovered all works in July but alleges frame damage making the works unsellable.
- Briski sought $303,602.59 (full retail value, shipping/crating costs, emotional distress, punitive damages, and costs). Court evaluated liability on default and independently assessed damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for breach of contract | Hersey breached the consignment agreement by failing to return works and by mishandling them | (No opposition; Hersey admitted obligation in correspondence but did not contest) | Default admitted well-pleaded facts; breach and conversion established; default judgment appropriate under Eitel factors |
| Measure of damages for damaged artwork | Full retail price ($164,000) because frame damage allegedly renders works unsellable | (No opposition; court considered absence of proof that works are worthless or irreparable) | Awarded nominal damages ($1) for the artwork; plaintiff failed to prove diminution in value or repair costs |
| Emotional distress damages for conversion | Seeks $100,000 for anxiety, migraines, sleeplessness during five-month period | Argues no proof of severe or prolonged distress; timeline limited | Court awarded $5,000 (conversion can support emotional distress but plaintiff’s showing was limited) |
| Punitive damages, shipping, and costs | Seeks $30,000 punitive; $7,857.79 shipping/crating; $1,744.80 costs | Punitive damages require clear-and-convincing evidence of malice/oppression; shipping/costs contractually Hersey’s responsibility | Denied punitive damages; awarded $7,857.79 shipping/crating and $1,744.80 costs; final judgment $14,602.59 total |
Key Cases Cited
- Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (factors courts weigh in deciding default judgment)
- TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 (9th Cir. 1987) (well-pleaded allegations in complaint accepted as true on default; damages must be independently assessed)
- Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371 (Cal. Ct. App. 1990) (elements of breach of contract under California law)
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (elements of conversion claim)
- Pacific Gas & Elec. Co. v. Mounteer, 66 Cal. App. 3d 809 (Cal. Ct. App. 1977) (measure of damages for harm to personal property: diminution in value or reasonable cost of repair)
- Erlich v. Menezes, 21 Cal. 4th 543 (Cal. 1999) (emotional distress damages generally not recoverable in breach of contract)
- Gonzales v. Personal Storage, Inc., 56 Cal. App. 4th 464 (Cal. Ct. App. 1997) (emotional distress damages may be available for conversion)