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Cassirer v. Thyssen-Bornemisza Collection Foundation

United States Court of Appeals, Ninth Circuit

July 10, 2017

David Cassirer; Ava Cassirer; United Jewish Federation of San Diego County, a California nonprofit corporation, Plaintiffs-Appellees,
v.
Thyssen-Bornemisza Collection Foundation, an agency or instrumentality of the Kingdom of Spain, Defendant-Appellant. David Cassirer; Ava Cassirer; United Jewish Federation of San Diego County, a California nonprofit corporation, Plaintiffs-Appellants,
v.
Thyssen-Bornemisza Collection Foundation, an agency or instrumentality of the Kingdom of Spain, Defendant-Appellee.

          Argued and Submitted December 5, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding D.C. No. 2:05-cv-03459-JFW-E

          David Boies (argued), Boies Schiller & Flexner LLP, Armonk, New York; Devin Velvel Freedman and Stephen N. Zack, Boies Schiller & Flexner LLP, Miami, Florida; for Plaintiffs-Appellants/Cross-Appellees.

          Thaddeus H. Stauber (argued), Jessica N. Walker, and Sarah Erickson André, Nixon Peabody LLP, Los Angeles, California, for Defendant-Appellee/Cross-Appellant.

          Martin M. Ellison and Mary-Christine Sungaila, Haynes and Boone LLP, Costa Mesa, California, for Amicus Curiae Bet Tzedek Legal Services.

          Kathleen Vermazen Radez, Associate Deputy Solicitor General; Joshua A. Klein, Deputy Solicitor General; Edward C. DuMont, Solicitor General; Office of the Attorney General, San Francisco, California; for Amicus Curiae State of California.

          Sarah E. Gettings, Connie Lam, Christie P. Bahna, Benjamin G. Schatz, and Stanley W. Levy, Manatt Phelps & Phillips LLP, Los Angeles, California; Michael Bazyler,

          Dale E. Fowler School of Law, Chapman University, Orange, California; for Amicus Curiae The 1939 Society.

          Daragh M. Brehony and Bernardo M. Cremades Román, B. Cremades & Asociados, Madrid, Spain, for Amici Curiae Comunidad Judía de Madrid and Federación de Comunidades Judías de España.

          Kelly L. Perigoe and Jeanne A. Fugate, Caldwell Leslie & Proctor PC, Los Angeles, California, for Amicus Curiae José Luis de Castro.

          Jackson Herndon, Kelly A. Bonner, and Owen C. Pell, White & Case LLP, New York, New York; Agnes Peresztegi, Soffer Avocats, Paris, France; for Amicus Curiae Commission for Art Recovery.

          Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

          BEA, Circuit Judge whom Judge Callahan concurs. Judge Ikuta concurs except as to Sections III.C.1.iii.b and III.C.1.iv:

         SUMMARY[*]

         Foreign Sovereign Immunities Act / Holocaust Expropriated Art Recovery Act

         The panel reversed the district court's grant of summary judgment, on remand, in favor of Thyssen-Bornemisza Collection Foundation, the defendant in an action under the Foreign Sovereign Immunities Act concerning a Camille Pissarro painting that was forcibly taken from the plaintiffs' great-grandmother by an art dealer who had been appointed by the Nazi government to conduct an appraisal.

         The panel held that the Holocaust Expropriated Art Recovery Act of 2016 supplied the statute of limitations for the plaintiffs' claims. The claims were timely because they were filed within six years of the date of the plaintiffs' actual discovery of the artwork's location.

         The panel held that when jurisdiction is based on the FSIA, federal common law, which follows the approach of the Restatement (Second) of Conflict of Laws, applies to the choice of law rule determination. Under the Second Restatement, Spain's substantive law governed defendant TBC's claim that it was the rightful owner of the painting.

         The panel held that the district court erred in deciding that, as a matter of law, TBC had acquired title to the painting through Article 1955 of the Spanish Civil Code. The panel held that there was a triable issue of fact whether TBC was an encubridor, or accessory, to the theft of the painting within the meaning of Civil Code Article 1956. In Section III.C.1 of its opinion, the panel considered the following Spanish rules of statutory interpretation: (i) proper meaning of wording; (ii) context; (iii) historical and legislative background, including (a) definition of encubridor in the 1870 Penal Code, and (b) the 1950 Law; and (iv) social reality at the time of enactment. The panel concluded that an encubridor within the meaning of Article 1956 could include someone who, with knowledge that the good had been stolen from the rightful owner, received stolen goods for his personal benefit. The panel concluded that TBC had not established, as a matter of law, that it lacked actual knowledge that the painting was stolen property. The district court therefore erred in granting summary judgment on the grounds that, as a matter of law, TBC acquired the painting through acquisitive prescription.

         The panel rejected TBC's other arguments for affirming the grant of summary judgment. First, the panel held that TBC was not entitled to summary judgment based on its claim that Baron Hans Heinrich Thyssen-Bornemisza, from whom it bought the painting, had lawful title under Swiss law. The panel concluded that there was a triable issue of fact as to the Baron's good faith in his possession of the painting. Second, the panel held that TBC was not entitled to summary judgment based on a laches defense under California law. Third, the panel held that the plaintiffs' claims were not foreclosed by their great-grandmother's acceptance of a 1958 settlement agreement with the Nazi art appraiser, the heir of another Jewish victim, and the German government.

         The panel also concluded that the plaintiffs' other arguments against applying Article 1955 were without merit. The panel held that Spain's Historical Heritage Law did not prevent TBC from acquiring prescriptive title to the painting. The panel also affirmed the district court's conclusion that the application of Article 1955 to vest TBC with title to the painting would not violate the European Convention on Human Rights.

         The panel reversed the district court's judgment and remanded the case to the district court for further proceedings.

          OPINION

          BEA, Circuit Judge

         In 1939 Germany, as part of the "Aryanization" of the property of German Jews, Lilly Neubauer ("Lilly")[1] was forced to "sell" a painting by Camille Pissarro (the "Painting"), a French Impressionist, to Jackob Scheidwimmer ("Scheidwimmer"), a Berlin art dealer. We use quotation marks around "sell" to distinguish the act from a true sale because Scheidwimmer had been appointed to appraise the Painting by the Nazi government, had refused to allow Lilly to take the Painting with her out of Germany, and had demanded that she sell it to him for all of $360 in Reichsmarks, which were to be deposited in a blocked account. Lilly justifiably feared that unless she sold the Painting to Scheidwimmer she would not be allowed to leave Germany. The district court found, and the parties agree, that the Painting was forcibly taken from Lilly.

         The history of how the Cassirer family came to own the Painting, as well as the application of the Foreign Sovereign Immunity Act ("FSIA") which resulted in recognition of our jurisdiction to deal with the claims to the Painting, are detailed in our earlier en banc opinion.[2] What primarily concerns us now is the sale of the Painting by the Baron Hans Heinrich Thyssen-Bornemisza (the "Baron") to the Thyssen-Bornemisza Collection ("TBC") in 1993, its display at TBC's museum in Madrid ever since, and what effect, if any, that possession has had on the claims of title by the parties to this action.

         In short, in this third appeal to this Court, we are called upon to decide whether the district court correctly granted summary judgment to TBC based on TBC's claim that it acquired good title to the Painting through the operation of Spain's law of prescriptive acquisition (or "usucaption") as a result of TBC's public, peaceful, and uninterrupted possession in the capacity as owner of the Painting from 1993 until the Cassirers filed a petition requesting the return of the Painting in 2001. Second, although not ruled upon by the district court, we consider whether the Baron's purchase of the Painting, and his possession of it for years, vested him with good title under Swiss law-title he could validly pass to TBC in the 1993 sale. Third, we consider TBC's arguments that the Cassirers' claims are barred by laches or by Lilly's acceptance of a post-war settlement agreement with the German government. Finally, we consider the Cassirers' arguments that Spain's Historical Heritage Law and the European Convention on Human Rights prevent TBC from acquiring prescriptive title. Ultimately, we reverse the order which granted summary judgment and remand for further proceedings.

         I. FACTS AND PROCEDURAL HISTORY[3]

         A. The 1958 Settlement Agreement

         After the Nazis forced Lilly to sell the Painting to Scheidwimmer in 1939, Scheidwimmer then forced another Jewish collector, Julius Sulzbacher ("Sulzbacher"), to exchange three German paintings for the Painting. Sulzbacher was also seeking to escape Nazi Germany. After the Sulzbacher family fled Germany, the Gestapo confiscated the Painting.

         After the war, the Allies established a process for restoring property to the victims of Nazi looting. Military Law No. 59 ("MGL No. 59") authorized victims to seek restitution of looted property. In 1948, Lilly filed a timely claim against Scheidwimmer under MGL No. 59 for restitution of, or compensation for, the Painting. Sulzbacher also filed claims under MGL No. 59 seeking restitution of, or compensation for, the Painting and the three German paintings. In 1954, the United States Court of Restitution Appeals ("CORA") published a decision confirming that Lilly owned the Painting.

         Although they knew Lilly was the owner of the Painting, Lilly, Sulzbacher, and Scheidwimmer believed the Painting was lost or destroyed during the war. In 1957, after the German Federal Republic regained its sovereignty, Germany established a law governing claims relating to Nazi-looted property known as the Brüg. Lilly then dropped her restitution claim against Scheidwimmer and initiated a claim against Germany for compensation for the wrongful taking of the Painting. Grete Kahn, Sulzbacher's heir, was also a party in this action.

         The parties to the action against Germany were unaware of the location of the Painting and only two of the German paintings originally owned by Sulzbacher were still available for return. In 1958, the parties reached a settlement agreement (the "1958 Settlement Agreement"). This agreement provided that: (1) Germany would pay Lilly 120, 000 Deutschmarks (the Painting's agreed value as of April 1, 1956); (2) Grete Kahn would receive 14, 000 Deutschmarks from the payment to Lilly; and (3) Scheidwimmer would receive two of Sulzbacher's three German paintings.

         B. The Painting's Post-War History

         After the Nazis confiscated the Painting from Sulzbacher, it allegedly was sold at a Nazi government auction in Dusseldorf. In 1943, the Painting was sold by an unknown consignor at the Lange Auction in Berlin to an unknown purchaser for 95, 000 Reichsmarks. In 1951, the Frank Perls Gallery of Beverly Hills arranged to move the Painting out of Germany and into California to sell the Painting to collector Sidney Brody for $14, 850. In 1952, Sydney Schoenberg, a St. Louis art collector, purchased the Painting for $16, 500. In 1976, the Baron purchased the Painting through the Stephen Hahn Gallery in New York for $275, 000. The Baron kept the Painting in Switzerland as part of his collection until 1992, except when it was on public display in exhibitions outside Switzerland.

         C. TBC's Purchase of the Painting

         In 1988, Favorita Trustees Limited, an entity of the Baron, and Spain reached an agreement that the Baron would loan his art collection (the "Collection"), including the Painting, to Spain. Pursuant to this agreement, Spain created TBC[4] to maintain, conserve, publicly exhibit, and promote the Collection's artwork. TBC's initial board of directors had five members acting on behalf of the Spanish government and five members acting on behalf of the Baron and his family. Spain agreed to display the Collection at the Villahermosa Palace in Madrid, Spain, and to restore and redesign the palace as a museum (the "Museum"). After the Villahermosa Palace had been restored and redesigned as the Museum, in 1992, pursuant to the loan agreement, the Museum received a number of paintings from Favorita Trustees Limited, including the Painting, and the Museum opened to the public. In 1993, the Spanish government passed Real Decreto-Ley 11/1993, which authorized and funded the purchase of the Collection. Spain bought the Collection by entering into an acquisition agreement with Favorita Trustees Limited. The Real Decreto-Ley 11/1993 classified the Collection as part of the Spanish Historical Heritage, which made the property subject to the provisions of the Spanish Historical Heritage Law. TBC paid the Baron $350 million for the Collection. The estimated value of the Collection at that time was somewhere between $1 billion and $2 billion.

         In 1989, after the 1988 loan agreement, Spain and TBC investigated title to the works in the Collection. In 1993, Spain and TBC did a second title investigation in connection with the purchase agreement.

         D. Procedural History

         In 2000, Claude Cassirer, a photographer, learned from a client that the Painting was in the Museum. TBC does not dispute that Mr. Cassirer had "actual knowledge" of the Painting's location by 2000. On May 3, 2001, the Cassirer family filed a petition in Spain seeking the return of the Painting. After that petition was denied, in 2005, Claude Cassirer filed this action in the United States District Court for the Central District of California seeking the return of the

         Painting.[5]

         As noted above, this case has been before this Court in two prior appeals. After the second remand to the district court, TBC filed a motion for summary adjudication. TBC moved for summary adjudication of the following issues:

(1) Plaintiffs' predecessor-in-interest, Lilly, waived her rights to the Pissarro Painting in the 1958 Settlement Agreement; (2) the Court lacks jurisdiction because any "taking in violation of international law" has already been remedied by Germany; and (3) the tenets of U.S. policy on Nazi-looted art require honoring the finality of the 1958 Settlement Agreement.

         In a written order, the district court denied TBC's motion on the grounds that Lilly did not waive her right to physical restitution by accepting the Settlement Agreement, which also meant that the court retained jurisdiction under the FSIA and the Cassirers' claims do not conflict with federal policy. TBC filed an interlocutory appeal of that portion of the order which denied TBC's claim of sovereign immunity, as to which the district court denied TBC a certificate of appealability on the grounds that TBC's attempted interlocutory appeal was frivolous and/or waived because of this Court's decision in 2010, which determined that the district court could properly exercise jurisdiction pursuant to the FSIA. The district court thereby retained jurisdiction of the case pursuant to Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992). TBC now cross-appeals the district court's order denying its motion for summary adjudication based on the 1958 Settlement Agreement.

         After its summary adjudication motion was denied, TBC moved for summary judgment on the grounds that it had obtained ownership of the Painting pursuant to Spain's law of acquisitive prescription as stated in Spain Civil Code Article 1955 ("Article 1955"). The Cassirers filed a motion for summary adjudication asking the court to hold that California law, not Spanish law, governs the merits of the case. The district court granted summary judgment in favor of TBC and denied the Cassirers' motion for summary adjudication. The district court concluded that Spanish law governed TBC's claim that it owned the Painting pursuant to acquisitive prescription and that TBC owned the Painting because TBC had fulfilled the requirements of Article 1955. Before the district court, the Cassirers argued that their claims were timely pursuant to California Code of Civil Procedure § 338(c)(3)(A) ("§ 338(c)(3)(A)"), California's special statute of limitations for actions "for the specific recovery of a work of fine art brought against a museum . . . in the case of an unlawful taking or theft[.]" California enacted § 338(c)(3)(A) in 2010, five years after the Cassirers filed suit, but § 338(c)(3)(A) states that it applies to cases that are pending, see Cal. Civ. Proc. Code § 338(c)(3)(B). The district court held that, since TBC had acquired ownership of the Painting under Spanish law prior to the California legislature's enactment of § 338(c)(3)(A), retroactive application of that special statute of limitations would violate TBC's due process rights.

         The district court entered judgment in favor of TBC. The Cassirers timely appealed.

         TBC cross-appealed the summary judgment order to the extent that it did not address two arguments advanced in TBC's motion for summary judgment. First, that the Baron had acquired ownership of the Painting under Swiss law through prescriptive acquisition and had subsequently conveyed good title to TBC. Second, that the Cassirers' claims are barred by the equitable defense of laches. TBC also cross-appealed "any interlocutory decisions or orders adverse to [TBC]" and the motions filed by TBC that were denied as moot by the district court following the district court's entry of judgment.[6]

         This Court consolidated the parties' appeals. In summary, the following appeals on the merits are before this Court: (1) the Cassirers' appeal of the order which granted summary judgment in favor of TBC on the grounds that under applicable Spanish law, TBC acquired title to the Painting by prescriptive acquisition (usucaption), (2) TBC's appeal of the order which denied TBC's motion for summary adjudication, based on the assertion that Lilly waived her ownership rights to the Painting pursuant to the 1958 Settlement Agreement and that the district court lacked jurisdiction under the FSIA, (3) TBC's cross-appeal of the summary judgment order in its favor, for failure to consider and rule upon its claim under Swiss law and its defense of laches.

         II. JURISDICTION AND STANDARD OF REVIEW

         The FSIA, 28 U.S.C. § 1330(a), gave the district court jurisdiction. 28 U.S.C. § 1291 gives this Court jurisdiction over this appeal.

         This Court reviews an appeal from summary judgment de novo. Jones v. Union Pac. R.R. Co., 968 F.2d 937, 940 (9th Cir. 1992). This Court reviews a district court's choice of law analysis de novo. Abogados v. AT&T, Inc., 223 F.3d 932, 934 (9th Cir. 2000). A district court's interpretation of foreign law is a question of law that this Court reviews de novo. Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). "In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence." Fed.R.Civ.P. 44.1.

         III. ANALYSIS

         A. The Cassirers' claims are timely within the statute of limitations recently enacted by Congress to govern claims involving art expropriated during the Holocaust.

         Before the district court, the parties and the district court agreed that California, as the forum, supplied the statute of limitations for the Cassirers' claims. California Code of Civil Procedure § 338(c)(3)(A) requires that "an action for the specific recovery of a work of fine art" brought against a museum in the case of an "unlawful taking" be commenced within "six years of the actual discovery by the claimant" of the "identity and whereabouts of the work of fine art" and "[i]nformation or facts that [were] sufficient to indicate that the claimant ha[d] a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen." Cal. Civ. Proc. Code § 338(c)(3)(A)(i)-(ii). The primary issue below was whether retroactive application of § 338(c)(3)(A), which was passed in 2010, five years after the Cassirers filed suit, would violate TBC's due process rights. The district court held that, since TBC "acquired ownership of the Painting under Spanish law prior to [the] California Legislature's retroactive extension of the statute of limitations" and the Cassirers' claims were time barred before the legislature passed § 338(c)(3)(A), retroactive application of § 338(c)(3)(A) would violate TBC's due process rights. On appeal, TBC contends that retroactive application of § 338(c)(3)(A) would violate its due process rights.

         However, while these appeals were pending before us, Congress passed, and the President signed, the Holocaust Expropriated Art Recovery Act of 2016 ("HEAR"), H.R. 6130. For the reasons stated below, we conclude that HEAR supplies the statute of limitations to be applied in this case in federal court and that the Cassirers' claims are timely under this law.

         HEAR states:

Notwithstanding any other provision of Federal or State law or any defense at law relating to the passage of time, and except as otherwise provided in this section, a civil claim or cause of action against a defendant to recover any artwork or other property that was lost during the covered period because of Nazi persecution may be commenced not later than 6 years after the actual discovery by the claimant or the agent of the claimant of- (1) the identity and location of the artwork or other property; and (2) a possessory interest of the claimant in the artwork or other property.

Id. § 5(a). Thus, HEAR creates a six-year statute of limitations period that commences on the date of actual discovery of the artwork's location by the claimant. Id. § 5(a). Lilly suffered the taking of the Painting in 1939, which is during the "covered period" of HEAR (January 1, 1933, and ending on December 31, 1945). See id. § 4(3). The six-year statute of limitations applies to any claims that are pending on the date of HEAR's enactment, which was December 16, 2016, including claims on appeal such as the Cassirers'. See id. § 5(d)(1) ("Subsection (a) shall apply to any civil claim or cause of action that is . . . pending in any court on the date of enactment of this Act, including any civil claim or cause of action that is pending on appeal . . . .").

         Viewing the facts in the light most favorable to the Cassirers, as we must on an appeal from an order which granted summary judgment, Am. Int'l Grp., Inc. v. Am. Int'l Bank, 926 F.2d 829, 831 (9th Cir. 1991), the Cassirers acquired actual knowledge of the Painting's location in 2000 when Claude Cassirer learned from a client that the Painting was in the Museum.[7] After the Cassirer family's 2001 petition in Spain was denied, the family filed this action on May 10, 2005. Since the lawsuit appears to have been filed within six years of actual discovery, the Cassirers' claims are timely under the statute of limitations created by HEAR.

         B. This Court applies the Second Restatement of the Conflict of Laws to determine which state's substantive law applies in deciding the merits of this case. The Second Restatement directs this Court to apply Spain's substantive law.

         Although Congress has directed federal courts to apply HEAR's six-year statute of limitations for claims involving art expropriated during the Holocaust, HEAR does not specify which state's substantive law will govern the merits of such claims. Under California law, thieves cannot pass good title to anyone, including a good faith purchaser. Crocker Nat'l Bank v. Byrne & McDonnell, 178 Cal. 329, 332 (1918). This is also the general rule at common law. See Kingdom of Spain, 616 F.3d at 1030, n.14 (quoting Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 Seattle U. L. Rev. 631, 633-34 (2000)) ("One who purchases, no matter how innocently, from a thief, or all subsequent purchasers from a thief, acquires no title in the property. Title always remains with the true owner."). This notion traces its lineage to Roman law (nemo dat quod non habet, meaning "no one gives what he does not have").[8]

         But the application of our choice of law jurisprudence requires that we not apply such familiar rules, under the circumstances of this case. As we shall see, Spain's property laws will determine whether the Painting has passed to TBC via acquisitive prescription.

         This Court has held that, when jurisdiction is based on the FSIA, "federal common law applies to the choice of law rule determination. Federal common law follows the approach of the Restatement (Second) of Conflict of Laws." Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th Cir. 1991) (citations omitted). The district court recognized this precedent, but believed that language from this Court's decision in Sachs v. Republic of Austria, 737 F.3d 584, 600 n.14 (9th Cir. 2013) (en banc), rev'd on other grounds by OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390 (2015), called Schoenberg's holding into question.

         Sachs does not clearly overrule the Schoenberg precedent. In Sachs, the plaintiff had been injured trying to board a train in Austria operated by a railroad ("OBB") that was owned by the Austrian government. Id. at 587. The district court granted OBB's motion to dismiss on the grounds of a lack of subject-matter jurisdiction, holding that OBB was immune from suit under the FSIA. Id. Sitting en banc, this Court reversed and held that it had subject matter jurisdiction pursuant to the commercial-activity exception to sovereign immunity in the FSIA. Id. at 603. In footnote 14 of the Sachs opinion, this Court held that California law governed the plaintiff's negligence claim. Id. at 600 n.14. This Court assumed that California law applied because the railroad ticket was purchased in California and Sachs' action was brought in California. Id. ("[W]e think it is a permissible view of Supreme Court precedent to look to California law to determine the elements of Sachs's claims[]" without engaging in a formal choice of law analysis.). However, this Court then cited Schoenberg and took into consideration the Second Restatement choice of law test. See id. ("Even if we should make a separate conflicts analysis under the Restatement, that conflicts analysis supports the same conclusion that California law applies to Sachs's claims."). Since Sachs did not expressly overrule Schoenberg and the Supreme Court has not overruled or effectively overruled Schoenberg, we must apply Schoenberg to determine which state's substantive law applies. See Miller v. Gammie, 335 F.3d 889, 896-900 (9th Cir. 2003). And, as noted above, Schoenberg instructs us to apply the Second Restatement. To the extent Sachs calls into doubt the need to apply the Second Restatement in certain FSIA cases, Sachs is distinguishable because in Sachs the plaintiff purchased her railroad ticket in California, Sachs, 737 F.3d at 587, while in this case TBC purchased the Painting in Spain and claims to have acquired prescriptive title by possessing the Painting in Spain. Therefore, we apply Schoenberg and the Second Restatement.[9]

         The Second Restatement includes jurisdiction-selecting rules and a multi-factor inquiry in Section 6, which provides choice of law factors that a court should apply in the absence of a statutory directive to decide the applicable rule of law. In addition to considering any specific jurisdiction-selecting rule, a court is supposed to apply the Section 6 ...


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