Briski v. Hersey

Filing 35

ORDER RE MOTION FOR ENTRY OF DEFAULT JUDGMENT by Judge William Alsup granting 28 Motion for Default Judgment.(whalc1, COURT STAFF) (Filed on 10/5/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ZANA BRISKI,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 17-02675 WHA

v.
DOROTHY HERSEY,

ORDER RE MOTION FOR
ENTRY OF DEFAULT
JUDGMENT

Defendant.
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INTRODUCTION

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Following entry of default, plaintiff moves for default judgment. To the extent stated
below, her motion is GRANTED.
STATEMENT

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Plaintiff Zana Briski is a professional artist and photographer in New York. In October

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2016, she consigned for sale eleven of her photographs and one photograph by fellow artist

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Chuck Kelton to defendant Dorothy Hersey, an art dealer in Menlo Park. In the consignment

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contract, the parties agreed that Briski’s artwork should be priced at $164,000 in total. Also

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pursuant to the contract, Hersey agreed to assume full responsibility for the photographs until

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they were either sold, or returned to Briski. This included a provision that the photographs

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would be handled “according to recognized art care and preservation standards” (Dkt. Nos. 29

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¶¶ 1, 4–6; 29-1 at 5).

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In January 2017, the art hadn’t sold. Hersey agreed, via text message, that if it was not

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sold by the end of February, she would return the work to Briski. February ended without any

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sale. Hersey nevertheless failed to return the photographs. Briski learned that Hersey had

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arranged to eventually ship the artwork with a shipping service that Briski found to be

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unacceptable because of its lack of experience and expertise handling fine art. Briski objected

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to the use of the shipper, and, after being unable to agree on other arrangements, scheduled what

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she considered to be a qualified shipper to pick up the art at Briski’s own expense. In May

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2017, shortly before the pickup, Briski filed this lawsuit against Hersey for breach of contract

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and conversion (Dkt. Nos. 29 ¶¶ 11–12, 14–17; 29-5).
After learning of this lawsuit, Hersey refused to return the photographs, telling Briski

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For the Northern District of California

United States District Court

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“[t]he artwork is not leaving now.” Hersey, however, failed to respond to Briski’s suit, and on

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June 9, Briski moved for default. The clerk entered default on June 15 (Dkt. Nos. 11, 12).

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On June 23, Briski learned that Hersey had been evicted from her home where the

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artwork had been stored and was in a contentious legal battle with her former landlord. Briski

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moved herein for provisional relief seeking the immediate return of her artwork. After

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requiring service on Hersey and allowing her time to respond, the Court held a hearing on

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Briski’s motion. Hersey did not appear or submit any opposition, and after consideration of the

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merits, an order granted Briski a preliminary injunction requiring Hersey to return Briski’s

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photographs by July 14 (Dkt. No. 15-2 at 21, 19, 21, 22, 29 ¶¶ 19–20).

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On July 7, Briski received a telephone call from Kate Powers, an art gallery owner in

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Menlo Park, who informed Briski that she had encountered Hersey standing on the street after

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having been evicted from her home. At the time of this encounter, Hersey had Briski’s

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photographs with her, so Powers offered to store the photographs at her gallery for the time

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being. Powers took five of the photographs back to her studio where she cleaned and wrapped

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them. When Powers learned, through a mutual friend, that the photographs were the subject of

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a lawsuit, she contacted Briski to inform her that she had taken possession of them and would

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arrange for their return to Briski. On July 14, Briski picked up the five photographs from

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Powers. On July 25, she picked up the remaining works from Hersey (Dkt. Nos. 29 ¶¶ 21–24;
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29-9 at 2–5).

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Briski has submitted a declaration stating that when she retrieved her photographs, the

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frames of each of her eleven pieces were damaged beyond repair. Because the photographs

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“once fit to the frames cannot be taken out and resold in new frames,” Briski states that

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“Irreparable damage to the frame is irreparable damage to the work.” Accordingly, she declares

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that “The artwork was rendered unsellable by Ms. Hersey’s mistreatment.” In support of her

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declaration, she includes photographs of some of the artwork (though it is not clear how many

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of her works, since most of the photographs are close-ups of portions of the frames), which

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show minor damage to the frames (Dkt. Nos. 29 ¶¶ 22, 25; 29-10; 29-12).1
Briski now seeks entry of default judgment and damages in the total amount of

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For the Northern District of California

United States District Court

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$303,602.59. This consists of the full value of all of her photographs based upon the agreed-

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upon retail sales price included in the consignment agreement ($164,000), the cost of crating

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and shipping her artwork to California and back to New York ($7,857.79), emotional distress

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($100,000), punitive damages ($30,000), and costs incurred prosecuting this action and

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attempting to serve Hersey ($1,744.80) (Dkt. Nos. 28 at 7–9).

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ANALYSIS

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Under FRCP 55(b)(2), a plaintiff can apply to the district court for a default judgment

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against a defendant that has failed to otherwise plead or defend against the action. Default

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judgments are generally disfavored as “cases should be decided upon their merits whenever

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reasonably possible.” A district court must consider the following factors when deciding

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whether or not to use its discretion in granting a motion for default judgment: (i) the possibility

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of prejudice to the plaintiff; (ii) the merits of plaintiff's substantive claims; (iii) the sufficiency

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of the complaint; (iv) the sum of money at stake in the action; (v) the possibility of a dispute

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concerning material facts; (vi) whether the default was due to excusable neglect; and (vii) the

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strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

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Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir.1986) (citation omitted). Here, these factors

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Briski does not explain why the photographs cannot be taken out of the frames and resold in new

frames.

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favor entry of default judgement against defendant.

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MERITS AND SUFFICIENCY OF THE COMPLAINT.

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With respect to determining liability and entry of default judgment, the general rule is

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that well-pleaded allegations in the complaint are deemed true, except for the amount of

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damages. Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.2002). Consequently,

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this order finds that the Eitel factors two, three, and five weigh in favor of the entry of default

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judgment against Hersey.

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Under California law, to prevail on a breach of contract claim, a plaintiff must show:
(1) the existence of a contract, (2) performance by the plaintiff, (3) a breach by the defendant,
and (4) damages. See Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1399

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For the Northern District of California

United States District Court

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(1990). To prevail on a conversion claim, a plaintiff must show (1) the plaintiff’s ownership or

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right to possession of the property at the time of conversion, (2) the defendant’s conversion by a

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wrongful act or disposition of property rights, and (3) damages. Mindys Cosmetics, Inc. v.

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Dakar, 611 F.3d 590, 601 (9th Cir. 2010) (internal quotation omitted).

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Plaintiff's complaint establishes each element of each claim. In short, in October 2016,

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the parties entered into a consignment agreement providing that Hersey would assume full

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responsibility for the artwork until sold or returned to Briski (Compl. ¶¶ 9–10; Dkt. No. 21-1).

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In January 2017, they agreed that Hersey would return all unsold artwork by the end of

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February 2017 (Compl. ¶ 12; Dkt. No. 29-2). Hersey failed to return the artwork at the agreed

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upon date and continued to refuse to return it until the July order (Compl. ¶¶ 13-14, 21). When

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she did return the artwork, it was damaged and Briski had to pay for the shipping and handling

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in contravention of their contract (Dkt. No. 28 at 3–4).

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2.

THE POSSIBILITY OF DISPUTE OF MATERIAL FACTS AND EXCUSABLE
NEGLECT.

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Because Hersey has failed to appear or submit any opposition to Briski’s motion, the
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factual allegations presented by Briski are taken as true. TeleVideo Sys., Inc. v. Heidenthal, 826
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F.2d 915, 917 (9th Cir. 1987). Moreover, in the correspondence Briski attached to her motion
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for preliminary injunction, Hersey admits that she was obligated to return the artwork (Dkt. 1628
3 at 6–7). There is little possibility of any dispute of material facts regarding this obligation.
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Additionally, Hersey has neglected this case. Hersey was first served four and a half

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months ago (Dkt. No. 10). She took no action, and the clerk entered default. Briski then served

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Hersey with a motion for a temporary restraining order (converted into a motion for preliminary

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injunction) in late June, and Hersey failed to respond to that motion or appear at the hearing

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(Dkt. No. 20, 21). On September 28, Briski again served her with notice of a hearing on default

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judgment, and Hersey has again failed to submit any opposition or appear in this action.

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this case indicate that default judgment is proper.
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DAMAGES.

For the purposes of default judgment, a court does not accept allegations relating to

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For the Northern District of California

United States District Court

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Although federal policy favors decisions on the merits, the circumstances surrounding

damages as true but must make an independent evaluation of claimed damages. TeleVideo Sys.,

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826 F.2d at 917-18. Here, Briski seeks $303,602.59 in damages; however, much of what she

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seeks is not supported by the facts or relevant law.

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First, she seeks $164,000 for the artwork that has since been returned to her. This

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represents the full retail sales price of the work (see Dkt. No. 29-1). Briski seeks this amount

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because all eleven of her photographs were allegedly irreparably damaged while in Hersey’s

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possession (Dkt. 29 ¶¶ 22, 25). Though Briski admits that only the frames were damaged, she

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states that the photographs “once fit to the frames cannot be taken out and resold in new

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frames,” and therefore “[i]rreparable damage to the frame is irreparable damage to the work”

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(ibid.). Briski has not explained why the frames cannot be replaced or repaired at a cost of less

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than the total estimated value of her paintings. Nor is her assumption that the artwork is now

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worthless — due to what appears to be minor damage to the frames (see Dkt. Nos. 29-10, 29-

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12) — reasonable. Briski has not submitted any evidence, aside from her own pithy say-so,

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supporting this dramatic decrease in the value of the art.

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Moreover, the agreed-on retail sales price does not translate to value. We must

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remember that no one bought the works at that price. It was merely what the two agreed they

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would try to get. And, even if the full price had been fetched, the dealer would have kept

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twenty five percent of the sale. Via a default, Briski wants to reap the full sales price (without
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deduction for commission) and wants to keep the works. The Court will not be a party to such

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an inequity.

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Ordinarily, the measure of damages for harm to personal property is either the

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diminution in value or the reasonable cost of repair. Pacific Gas & Elec. Co. v. Mounteer, 66

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Cal. App. 3d 809, 812 (1977). Briski’s request for the full value of her artwork is unreasonable,

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and would result in an inequitable windfall. Accordingly, given Briski’s failure to provide

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proof of actual damages, this order awards one dollar in nominal damages for the artwork,

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which has now all been returned to her.

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Second, Briski seeks $100,000 for emotional distress suffered as a result of being unable
to secure the return of her artwork, and, upon retrieving it finding it was irreparably damaged.

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For the Northern District of California

United States District Court

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Except in very narrow circumstances not present here, emotional distress damages are not

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recoverable in a breach of contract action. Erlich v. Menezes, 21 Cal. 4th 543 (1999).

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Emotional distress damages are, however, available as a remedy for conversion. Gonzales v.

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Pers. Storage, Inc., 56 Cal. App. 4th 464, 477 (1997). Medical evidence is not required to

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establish emotional distress damages, and such damages may be established by testimony or

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inferred from the circumstances. Johnson v. Hale, 940 F.2d 1192, 1193 (9th Cir. 1991).

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Here, Briski has not made a strong showing to support the damages claimed. She cites

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Hernandez v. Madrigal, No. CIV. S-09-0413 MCE, 2011 WL 6936364, at *3 (E.D. Cal. Dec.

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30, 2011) (Magistrate Judge Gregory Hollows), as a supposedly comparable case, but there the

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defendant lost all equity in his property due to a fraudulent loan scheme, spent four years of

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sleepless nights, and had such sustained stress that it resulted in persistent, severe stomach

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pains. In Hernandez, the court noted that awards for emotional damages of the this type span a

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wide range, from $5,000 to $125,000, and ultimately awarded the plaintiff $75,000. In contrast

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to Hernandez, Briski’s complaint covers a period of only five months. During this time, she

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declares she was unable to sell her photographs, which put financial strain on her, and that she

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suffered from a variety of anxiety-related symptoms including migraines, depression, and

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inability to sleep (Dkt. No. 28 at 8). Given the limited time frame of her distress, and the fact

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that she was able to recover her artwork, an award of $5,000, the low end of the wide range
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cited by Briski, is all that is warranted.
Third, Briski seeks $30,000 in punitive damages. Under California law, punitive

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damages are appropriate where “the defendant's acts are reprehensible, fraudulent or in blatant

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violation of law or policy.” Tomaselli v. Transamerica Ins. Co., 25 Cal.App.4th 1269, 1287, 31

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Cal.Rptr.2d 433 (1994); see also Cal. Civ.Code § 3294(a). For punitive damages to be awarded,

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the plaintiff must establish by clear and convincing evidence that the defendant is guilty of

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fraud, oppression, or malice. Henry v. Lehman Commercial Paper, Inc., 471 F.3d 977, 998 (9th

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Cir. 2006). Here, Briski has failed to make such a showing. This instead appears to be a

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garden-variety contract dispute, in which Briski is entitled to actual damages, but no more.
Fourth, Briski seeks $7,857.79 for the cost of packaging and shipping her artwork to

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For the Northern District of California

United States District Court

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California, and then back to New York. Pursuant to her agreement with Hersey, Hersey was

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responsible for all shipping and crating expenses (Dkt. No. 29-1 at 5). Briski spent $3,412.33

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shipping her art from New York to California (Dkt. No. 29 ¶ 8; Exh. 3). She then spent

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$1,055.46 to have her photographs recovered from Powers shipped to a storage facility and

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another $3,390 to have all of her photographs shipped back to New York, totaling $7,857.79

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(Dkt. No. 29 ¶¶ 26–27; Exhs.13–14 ). She is entitled to the full amount of these costs.

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Fifth and finally, Briski seeks $1,744.80 in costs incurred prosecuting this action and
attempting to serve Hersey. Briski is entitled to recover the full amount of these costs.

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CONCLUSION
For the foregoing reasons and to the extent stated herein, Briski’s application for default

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judgment is GRANTED. FINAL JUDGMENT IS HEREBY ENTERED in favor of plaintiff Zana

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Briski, and against defendant Dorothy Hersey. Defendant is ordered to pay $14,602.59 in

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damages, representing shipping and crating costs, emotional distress damages, and court costs.

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The Clerk SHALL CLOSE THE FILE.

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IT IS SO ORDERED.
Dated: October 5, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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