Facts

Plaintiff Bernard Zimmerman, an 84-year-old sculptor and artist, sued Mohr Construction Company Inc. for allegedly violating the California Art Preservation Act (Civil Code section 987) by destroying a sculpture created by Zimmerman when Mohr Construction was hired by a new owner to remodel the private Beverly Hills residence where the sculpture was originally installed.

Zimmerman also sued individual defendant Mary Mohr, for intentional and negligent infliction of emotional distress on Zimmerman for allegedly calling him at his home and saying the sculpture, which had been destroyed, was "a pile of junk" and "belonged in a junk pile."

PLAINTIFF'S CONTENTIONS:
On the claim for destruction of a work of fine art, plaintiff contended that the sculptural room divider, which he had created and installed in 1953 was a work of fine art, entitled to protection under the California Art Preservation Act.

A photo of plaintiff's untitled work was featured in a 2010 encyclopedia of Los Angeles art edited by Lynn Keinholtz entitled "Rising LA," establishing plaintiff's sculpture as an iconic work of fine art. Plaintiff's art appraisal expert, Nancy Escher, testified that the work was "A++," a masterpiece and architecturally significant.

On his claims for intentional and negligent infliction of emotional distress against Mary Mohr, plaintiff sought monetary damages for ongoing fear, anxiety, depression and other physical and emotional pain and suffering, past and future medicine and medical treatment, and punitive damages.

Plaintiff's claims for trade disparagement and slander were dismissed prior to trial.

DEFENDANT'S CONTENTIONS:
On the art destruction claim, Mohr Construction admitted the work was destroyed, but contended that the work was not a work of fine art subject to protection under Civil Code section 987. Defendant further contended that plaintiff could only recover for damage to his reputation as an artist, not the fair market value of the work that was destroyed. Defendant further contended that because plaintiff's expert offered no testimony as to reputational damage, plaintiff was barred from any recovery on his Civil Code section 987 claim.

On the intentional and negligent infliction of emotional distress claims, Mohr contended that she never placed the offending call to plaintiff.

Damages

Plaintiff sought monetary damages for the fair market value of the sculpture that was destroyed, notwithstanding that plaintiff sold the piece in 1953, on the basis that, under Civil Code section 987(e)(2) the artist is entitled to recover actual damages and under Civil Code section 987(h)(3), Mohr Construction had a duty to notify plaintiff before removing or destroying the artwork. If plaintiff had received such notice and removed the work, under section 987(h)(3), title to the work would have automatically reverted to plaintiff, who could then sell it for fair market value. Thus, plaintiff contended, one of the elements of actual damage recoverable for destruction of a work of fine art, which can be removed from a structure, is the fair market value of the art. Plaintiff sought further monetary damages for damage to the artist's "oeuvre," (the lifetime body of his artistic work) under Pelletier vs. Eisenberg, (1986) 177 Cal App. 3d 558, lost resale royalties under Civil Code section 986, attorney and expert fees payable under Civil Code section 987(e)(4), and punitive damages payable under Civil Code section 987(e)(3) to be paid to a children's charity.

Result

The case settled for $26,000.

Other Information

MEDIATOR: Hon. Andrew Kaufman, retired of ARC.