## Facts

- An artist consigned 10 paintings to an art gallery under an agreement providing a 40% gallery commission on sales.
- While in the gallery’s custody, a fire destroyed or damaged nine paintings.
- The gallery received insurance proceeds for the loss.
- The artist alleged the gallery wrongfully retained insurance proceeds belonging to him and sued for conversion, breach of trust, and statutory remedies under California’s fine art consignment statutes (Civ. Code § 1738 et seq.).
- The trial was bifurcated and produced two special verdicts:
  - The jury found the paintings were entrusted to the gallery, assigned fair market value to each work, and assessed additional losses for future income/benefits from each painting.
  - The jury found conversion of insurance proceeds and awarded $42,500 for the artist’s time and money spent pursuing the converted proceeds; it found no oppression, fraud, or malice.
- Judgment was entered for the artist totaling $55,603 plus interest on a portion.

## Issues

1. Whether the trial court properly denied the artist’s motion for new trial as untimely under mandatory statutory deadlines.
2. Whether damages for destroyed consigned paintings must be reduced by the gallery’s hypothetical 40% sales commission, justifying a new trial to change the computation method.
3. Whether the trial court properly granted a limited new trial on the $42,500 award for time and money spent pursuing converted insurance proceeds due to insufficient evidentiary support.

## Decision

- The denial of the artist’s new-trial motion as untimely was affirmed.
- The order granting the gallery a limited new trial was affirmed in part and reversed in part:
  - Reversed as to any new trial premised on reducing the artist’s recovery by a 40% commission offset; the artist was entitled to full fair market value.
  - Affirmed as to a new trial limited to reassessing the $42,500 “time and money” award because the trial court could find it unsupported by the evidence.

## Legal Principles

- Statutory time limits for filing a California new-trial motion are mandatory and jurisdictional; an untimely motion must be denied.
- Under California’s fine art consignment statutes, a gallery holds consigned art and related proceeds in a fiduciary/trust-like capacity for the artist.
- A gallery commission is contingent on an actual sale; when consigned art is destroyed and not sold, the artist’s recovery is not reduced by a hypothetical commission the gallery would have earned.
- A trial court may grant a limited new trial on damages when it concludes the evidence does not support the amount awarded, and appellate review is deferential to that discretionary determination.

## Conclusion

The appellate court held the artist’s new-trial motion was jurisdictionally late and upheld a limited new trial only on the unsupported $42,500 damages component, while rejecting any reduction of the artist’s fair market value recovery by a commission that was never earned because the paintings were not sold.


Pelletier v. Eisenberg, 177 Cal. App. 3d 558, 223 Cal. Rptr. 84 (Cal. Ct. App. 1986)