AB 2867: Recovery of artwork and personal property lost due to persecution.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-09-16
Current Status:
Passed
(2024-09-16: Chaptered by Secretary of State - Chapter 257, Statutes of 2024.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or a law enforcement agency. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within 6 years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. Existing federal law, the Holocaust Expropriated Art Recovery Act of 2016, establishes a statute of limitation for claims to recover artwork and other property, as defined, stolen or misappropriated by the Nazis between 1933 and 1945.
This bill would provide that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs, as specified.
This bill would also permit a California resident or a representative of the estate of a California resident, as specified, to bring an action for damages or to recover artwork or personal property, as defined, that was stolen or otherwise lost as the result of political persecution. The bill would permit such actions to be brought within six years of the discovery of relevant facts, as provided. This bill would also permit those who discovered relevant facts prior to the effective date of this bill, to bring such actions within 6 years of the discovery of the relevant facts or within 2 years of the effective date of this bill, whichever is later. The bill would permit a cause of action previously dismissed on specified grounds to be brought again under these provisions within 2 years of either the effective date of the bill or the entry of final judgment and the termination of all appeals, whichever is later.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or a law enforcement agency. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within 6 years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. Existing federal law, the Holocaust Expropriated Art Recovery Act of 2016, establishes a statute of limitation for claims to recover artwork and other property, as defined, stolen or misappropriated by the Nazis between 1933 and 1945.
This bill would provide that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs, as specified.
This bill would also permit a California resident or a representative of the estate of a California resident, as specified, to bring an action for damages or to recover artwork or personal property, as defined, that was stolen or otherwise lost as the result of political persecution. The bill would permit such actions to be brought within six years of the discovery of relevant facts, as provided. This bill would also permit those who discovered relevant facts prior to the effective date of this bill, to bring such actions within 6 years of the discovery of the relevant facts or within 2 years of the effective date of this bill, whichever is later. The bill would permit a cause of action previously dismissed on specified grounds to be brought again under these provisions within 2 years of either the effective date of the bill or the entry of final judgment and the termination of all appeals, whichever is later.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or a law enforcement agency. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within 6 years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. Existing federal law, the Holocaust Expropriated Art Recovery Act of 2016, establishes a statute of limitation for claims to recover artwork and other property, as defined, stolen or misappropriated by the Nazis between 1933 and 1945.
This bill would provide that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs, as specified.
This bill would also permit a California resident or a representative of the estate of a California resident, as specified, to bring an action for damages or to recover artwork or personal property, as defined, that was stolen or otherwise lost as the result of political persecution. The bill would permit such actions to be brought within six years of the discovery of relevant facts, as provided. This bill would also permit those who discovered relevant facts prior to the effective date of this bill, to bring such actions within 6 years of the discovery of the relevant facts or within 2 years of the effective date of this bill, whichever is later. The bill would permit a cause of action previously dismissed on specified grounds to be brought again under these provisions within 2 years of either the effective date of the bill or the entry of final judgment and the termination of all appeals, whichever is later.
This bill would declare that it is to take effect immediately as an urgency statute.
Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or a law enforcement agency. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within 6 years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. Existing federal law, the Holocaust Expropriated Art Recovery Act of 2016, establishes a statute of limitation for claims to recover artwork and other property, as defined, stolen or misappropriated by the Nazis between 1933 and 1945.
This bill would provide that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs, as specified.
This bill would also permit a California resident or a representative of the estate of a California resident, as specified, to bring an action for damages or to recover artwork or personal property, as defined, that was stolen or otherwise lost as the result of political persecution. The bill would permit such actions to be brought within six years of the discovery of relevant facts, as provided. This bill would also permit those who discovered relevant facts prior to the effective date of this bill, to bring such actions within 6 years of the discovery of the relevant facts or within 2 years of the effective date of this bill, whichever is later. The bill would permit a cause of action previously dismissed on specified grounds to be brought again under these provisions within 2 years of either the effective date of the bill or the entry of final judgment and the termination of all appeals, whichever is later.
Existing law provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or a law enforcement agency. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within 6 years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. Existing federal law, the Holocaust Expropriated Art Recovery Act of 2016, establishes a statute of limitation for claims to recover artwork and other property, as defined, stolen or misappropriated by the Nazis between 1933 and 1945.
This bill would provide that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the Holocaust Expropriated Art Recovery Act of 2016, brought by a California resident or their heirs, as specified.
This bill would also permit a California resident or a representative of the estate of a California resident, as specified, to bring an action for damages or to recover artwork or personal property, as defined, that was stolen or otherwise lost as the result of political persecution. The bill would permit such actions to be brought within six years of the discovery of relevant facts, as provided.
The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.The Eminent Domain Law provides the procedure for the exercise of the constitutional power and authorizes the plaintiff to make an application to the court to take possession of property prior to judgment and sets forth the procedures the plaintiff must follow. Existing law also provides the procedures to oppose an application to take possession of a property prior to judgment as well the standards used to grant or deny such an application.The bill would make a technical, nonsubstantive change to the provisions governing applications to take possession of a property prior to judgment.The California Constitution authorizes governmental entities to take or damage private property for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.
The Eminent Domain Law provides the procedure for the exercise of the constitutional power and authorizes the plaintiff to make an application to the court to take possession of property prior to judgment and sets forth the procedures the plaintiff must follow. Existing law also provides the procedures to oppose an application to take possession of a property prior to judgment as well the standards used to grant or deny such an application.
The bill would make a technical, nonsubstantive change to the provisions governing applications to take possession of a property prior to judgment.
(a)Under California law, a thief cannot convey good title to stolen works of art, and the true owner cannot be divested of ownership without actual discovery of their rights in, and the location and possessor of, the artwork.
(b)In 2010, the Legislature affirmed these principles when it rejected the holding of the Ninth Circuit Court of Appeals in Von Saher v. Norton Simon Museum (9th Cir. 2010) 592 F.3d 954, 969, that California law allowed theft victims claims to be defeated based on constructive rather than actual discovery; amended Section 338 of the Code of Civil Procedure to allow an action to recover stolen art from a museum, gallery, auctioneer, or dealer to be filed within six years of actual discovery, and specifically defined actual discovery to exclude any constructive knowledge imputed by law.
(c)The legislative history of paragraph (3) of subdivision (c) of Section 338 of the Code of Civil Procedure explained that the imputation of constructive discovery . . . does not lead to equitable results when works may be displayed anywhere in the world and traffickers engage in purposeful concealment; approved judicial decisions that applied actual discovery and rejected constructive discovery in stolen property cases, such as Naftzger v. American Numismatic Socy (1996) 42 Cal. App. 4th, 421; and stated that the amendments reaffirmed the States commitment to the rule that a thief cannot convey good title, and that stolen art should be returned to its rightful, original owner.
(d)In a recent Ninth Circuit Court of Appeals decision, the court refused to credit Californias laws and interests supporting owners of stolen art, including its rejection of constructive discovery. The court in Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir. 2024) 89 F.4th 1226, held that Californias governmental interests test for choice of law required Spanish substantive law, not California law, to apply in a case by Claude Cassirer, a Holocaust survivor and long-time California resident, to recover an Impressionist masterpiece looted by the Nazis from his grandmother, and now held by a Spanish government-owned museum.
(e)The Cassirer court held under Spanish law that the museum acquired good title after three years of possession, even though Mr. Cassirer did not know the museum had the painting. In so doing, the court applied Spains law of acquisitive prescription or adverse possession, which is based on the principle of constructive notice that the California courts and Legislature have rejected.
(f)Mandating California substantive law in stolen art cases will discourage art theft and trafficking in stolen art, and will encourage integrity and diligence in the art market. Further, mandating California substantive law will draw a clear line of liability in litigation, eliminate costly defense tactics, and encourage settlements.
(g)It is the intent of the Legislature to align California law with federal laws, policies, and international agreements, which prohibit pillage and seizure of works of art and cultural property, and call for restitution of seized property.
(h)In 2016, the United States Congress cited and followed California law in enacting a national six-year statute of limitations based on actual discovery for claims for Nazi-looted art, in the Holocaust Expropriated Art Recovery (HEAR) Act. The HEAR Acts six-year discovery rule applies notwithstanding . . . any defense at law relating to the passage of time. The provisions of this act mandating application of California substantive law will reinforce the HEAR Acts preclusion of defenses at law relating to the passage of time.
(i)It is the intent of the Legislature that California families (or heirs of Californians) whose art was looted based on persecution, including Holocaust survivors and heirs, who did not have an opportunity to bring those claims with the certainty that California law would supply the rule of decision, to be able to do so, and that the law apply retroactively for families who would be eligible to use the new law, but for whom the six-year limitations period would have already passed, or whose prior cases were rejected based on the defenses proscribed in Section 338.2 of the Code of Civil Procedure, to be added by Section 3 of this act.
(j)The Legislature has the authority to mandate California substantive law as the rule of decision in specified matters, as indicated in California case law and Section 6(1), Restatement (Second), Conflict of Laws: A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(k)This law effectuates Californias established laws and public policies against theft and trafficking in stolen property; precluding a thief from passing good title to any subsequent purchaser of stolen property; protecting the rights of true owners to recover stolen artwork and other items of cultural property; and precluding the true owners of stolen property from being divested of title without actual knowledge of their rights in and the location of the property. This law aligns California law with federal laws, federal policies, and international agreements prohibiting pillage and seizure of works of art and cultural property and calling for restitution of seized property, as embodied in the Hague Convention of 1907 (and 1899), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the National Stolen Property Act of 1934, the Holocaust Victims Redress Act, the Holocaust Expropriated Art Recovery Act of 2016, and related federal executive branch policies and international agreements.
SEC. 2.Section 338 of the Code of Civil Procedure is amended to read:338.Within three years:
(a)An action upon a liability created by statute, other than a penalty or forfeiture.
(b)An action for trespass upon or injury to real property.
(c)(1)An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2)The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or the law enforcement agency that originally investigated the theft.
(3)(A)Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(i)The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B)This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C)For purposes of this paragraph:
(i)Actual discovery, notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii)Auctioneer means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii)Dealer means a person who holds a valid sellers permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv)Duress means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owners family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v)Fine art has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi)Museum or gallery shall include any public or private organization or foundation operating as a museum or gallery.
(4)Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5)A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6)Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d)An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e)An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action upon the bond.
(f)(1)An action against a notary public on the notary publics bond or in the notary publics official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action.
(2)Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3)Notwithstanding paragraph (1), an action against a notary public on the notary publics bond or in the notary publics official capacity shall be commenced within six years.
(g)An action for slander of title to real property.
(h)An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i)An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j)An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k)An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l)An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m)An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n)An action commencing under Section 51.7 of the Civil Code.
(o)An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p)An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 3.Section 338.2 is added to the Code of Civil Procedure, to read:338.2.(a)A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b)Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(1)The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c)If a claimant had actual knowledge of the facts described in subdivision (b) prior to the enactment of this section, any action brought pursuant to this section shall be commenced within of six years of actual discovery or two years from the enactment of this section, whichever is later.
(d)For purposes of this section the following definitions shall apply:
(1)Artwork or other personal property means any of the following:
(A)Pictures, paintings, and drawings.
(B)Statuary art and sculpture.
(C)Engravings, prints lithographs, and other works of graphic art.
(D)Applied art and original artistic assemblages and montages.
(E)Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F)Sacred and ceremonial objects.
(G)Objects of cultural significance.
(2)Political persecution means persecution of a specific group of individuals based on their membership in a protected class under the states Unruh Civil Rights Act (Section 51 of the Civil Code).
(e)Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(f)In an action brought pursuant to this section, where an item specified in subdivision (d) is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner. Defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply to cases brought under this section.
(g)An action may be brought by a claimant who, prior to the enactment of this section, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses listed in subdivision (f), or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Any such actions shall be commenced within two years of the effective date of this section or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
(h)A prevailing plaintiff shall be entitled to reasonable attorneys costs and fees.
SEC. 4.The provisions of this Act are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that California law is applied as specified herein in any pending or future cases brought by California residents, it is necessary that this act take effect immediately.
(a)Under California law, a thief cannot convey good title to stolen works of art, and the true owner cannot be divested of ownership without actual discovery of their rights in, and the location and possessor of, the artwork.
(b)In 2010, the Legislature affirmed these principles when it rejected the holding of the Ninth Circuit Court of Appeals in Von Saher v. Norton Simon Museum (9th Cir. 2010) 592 F.3d 954, 969, that California law allowed theft victims claims to be defeated based on constructive rather than actual discovery; amended Section 338 of the Code of Civil Procedure to allow an action to recover stolen art from a museum, gallery, auctioneer, or dealer to be filed within six years of actual discovery, and specifically defined actual discovery to exclude any constructive knowledge imputed by law.
(c)The legislative history of paragraph (3) of subdivision (c) of Section 338 of the Code of Civil Procedure explained that the imputation of constructive discovery . . . does not lead to equitable results when works may be displayed anywhere in the world and traffickers engage in purposeful concealment; approved judicial decisions that applied actual discovery and rejected constructive discovery in stolen property cases, such as Naftzger v. American Numismatic Socy (1996) 42 Cal. App. 4th, 421; and stated that the amendments reaffirmed the States commitment to the rule that a thief cannot convey good title, and that stolen art should be returned to its rightful, original owner.
(d)In a recent Ninth Circuit Court of Appeals decision, the court refused to credit Californias laws and interests supporting owners of stolen art, including its rejection of constructive discovery. The court in Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir. 2024) 89 F.4th 1226, held that Californias governmental interests test for choice of law required Spanish substantive law, not California law, to apply in a case by Claude Cassirer, a Holocaust survivor and long-time California resident, to recover an Impressionist masterpiece looted by the Nazis from his grandmother, and now held by a Spanish government-owned museum.
(e)The Cassirer court held under Spanish law that the museum acquired good title after three years of possession, even though Mr. Cassirer did not know the museum had the painting. In so doing, the court applied Spains law of acquisitive prescription or adverse possession, which is based on the principle of constructive notice that the California courts and Legislature have rejected.
(f)Mandating California substantive law in stolen art cases will discourage art theft and trafficking in stolen art, and will encourage integrity and diligence in the art market. Further, mandating California substantive law will draw a clear line of liability in litigation, eliminate costly defense tactics, and encourage settlements.
(g)It is the intent of the Legislature to align California law with federal laws, policies, and international agreements, which prohibit pillage and seizure of works of art and cultural property, and call for restitution of seized property.
(h)In 2016, the United States Congress cited and followed California law in enacting a national six-year statute of limitations based on actual discovery for claims for Nazi-looted art, in the Holocaust Expropriated Art Recovery (HEAR) Act. The HEAR Acts six-year discovery rule applies notwithstanding . . . any defense at law relating to the passage of time. The provisions of this act mandating application of California substantive law will reinforce the HEAR Acts preclusion of defenses at law relating to the passage of time.
(i)It is the intent of the Legislature that California families (or heirs of Californians) whose art was looted based on persecution, including Holocaust survivors and heirs, who did not have an opportunity to bring those claims with the certainty that California law would supply the rule of decision, to be able to do so, and that the law apply retroactively for families who would be eligible to use the new law, but for whom the six-year limitations period would have already passed, or whose prior cases were rejected based on the defenses proscribed in Section 338.2 of the Code of Civil Procedure, to be added by Section 3 of this act.
(j)The Legislature has the authority to mandate California substantive law as the rule of decision in specified matters, as indicated in California case law and Section 6(1), Restatement (Second), Conflict of Laws: A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(k)This law effectuates Californias established laws and public policies against theft and trafficking in stolen property; precluding a thief from passing good title to any subsequent purchaser of stolen property; protecting the rights of true owners to recover stolen artwork and other items of cultural property; and precluding the true owners of stolen property from being divested of title without actual knowledge of their rights in and the location of the property. This law aligns California law with federal laws, federal policies, and international agreements prohibiting pillage and seizure of works of art and cultural property and calling for restitution of seized property, as embodied in the Hague Convention of 1907 (and 1899), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the National Stolen Property Act of 1934, the Holocaust Victims Redress Act, the Holocaust Expropriated Art Recovery Act of 2016, and related federal executive branch policies and international agreements.
SEC. 2.Section 338 of the Code of Civil Procedure is amended to read:338.Within three years:
(a)An action upon a liability created by statute, other than a penalty or forfeiture.
(b)An action for trespass upon or injury to real property.
(c)(1)An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2)The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or the law enforcement agency that originally investigated the theft.
(3)(A)Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(i)The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B)This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C)For purposes of this paragraph:
(i)Actual discovery, notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii)Auctioneer means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii)Dealer means a person who holds a valid sellers permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv)Duress means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owners family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v)Fine art has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi)Museum or gallery shall include any public or private organization or foundation operating as a museum or gallery.
(4)Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5)A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6)Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d)An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e)An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action upon the bond.
(f)(1)An action against a notary public on the notary publics bond or in the notary publics official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action.
(2)Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3)Notwithstanding paragraph (1), an action against a notary public on the notary publics bond or in the notary publics official capacity shall be commenced within six years.
(g)An action for slander of title to real property.
(h)An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i)An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j)An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k)An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l)An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m)An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n)An action commencing under Section 51.7 of the Civil Code.
(o)An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p)An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 3.Section 338.2 is added to the Code of Civil Procedure, to read:338.2.(a)A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b)Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(1)The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c)If a claimant had actual knowledge of the facts described in subdivision (b) prior to the enactment of this section, any action brought pursuant to this section shall be commenced within of six years of actual discovery or two years from the enactment of this section, whichever is later.
(d)For purposes of this section the following definitions shall apply:
(1)Artwork or other personal property means any of the following:
(A)Pictures, paintings, and drawings.
(B)Statuary art and sculpture.
(C)Engravings, prints lithographs, and other works of graphic art.
(D)Applied art and original artistic assemblages and montages.
(E)Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F)Sacred and ceremonial objects.
(G)Objects of cultural significance.
(2)Political persecution means persecution of a specific group of individuals based on their membership in a protected class under the states Unruh Civil Rights Act (Section 51 of the Civil Code).
(e)Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(f)In an action brought pursuant to this section, where an item specified in subdivision (d) is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner. Defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply to cases brought under this section.
(g)An action may be brought by a claimant who, prior to the enactment of this section, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses listed in subdivision (f), or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Any such actions shall be commenced within two years of the effective date of this section or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
(h)A prevailing plaintiff shall be entitled to reasonable attorneys costs and fees.
SEC. 4.The provisions of this Act are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that California law is applied as specified herein in any pending or future cases brought by California residents, it is necessary that this act take effect immediately.
This
(a)Under California law, a thief cannot convey good title to stolen works of art, and the true owner cannot be divested of ownership without actual discovery of their rights in, and the location and possessor of, the artwork.
(b)In 2010, the Legislature affirmed these principles when it rejected the holding of the Ninth Circuit Court of Appeals in Von Saher v. Norton Simon Museum (9th Cir. 2010) 592 F.3d 954, 969, that California law allowed theft victims claims to be defeated based on constructive rather than actual discovery; amended Section 338 of the Code of Civil Procedure to allow an action to recover stolen art from a museum, gallery, auctioneer, or dealer to be filed within six years of actual discovery, and specifically defined actual discovery to exclude any constructive knowledge imputed by law.
(c)The legislative history of paragraph (3) of subdivision (c) of Section 338 of the Code of Civil Procedure explained that the imputation of constructive discovery . . . does not lead to equitable results when works may be displayed anywhere in the world and traffickers engage in purposeful concealment; approved judicial decisions that applied actual discovery and rejected constructive discovery in stolen property cases, such as Naftzger v. American Numismatic Socy (1996) 42 Cal. App. 4th, 421; and stated that the amendments reaffirmed the States commitment to the rule that a thief cannot convey good title, and that stolen art should be returned to its rightful, original owner.
(d)In a recent Ninth Circuit Court of Appeals decision, the court refused to credit Californias laws and interests supporting owners of stolen art, including its rejection of constructive discovery. The court in Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir. 2024) 89 F.4th 1226, held that Californias governmental interests test for choice of law required Spanish substantive law, not California law, to apply in a case by Claude Cassirer, a Holocaust survivor and long-time California resident, to recover an Impressionist masterpiece looted by the Nazis from his grandmother, and now held by a Spanish government-owned museum.
(e)The Cassirer court held under Spanish law that the museum acquired good title after three years of possession, even though Mr. Cassirer did not know the museum had the painting. In so doing, the court applied Spains law of acquisitive prescription or adverse possession, which is based on the principle of constructive notice that the California courts and Legislature have rejected.
(f)Mandating California substantive law in stolen art cases will discourage art theft and trafficking in stolen art, and will encourage integrity and diligence in the art market. Further, mandating California substantive law will draw a clear line of liability in litigation, eliminate costly defense tactics, and encourage settlements.
(g)It is the intent of the Legislature to align California law with federal laws, policies, and international agreements, which prohibit pillage and seizure of works of art and cultural property, and call for restitution of seized property.
(h)In 2016, the United States Congress cited and followed California law in enacting a national six-year statute of limitations based on actual discovery for claims for Nazi-looted art, in the Holocaust Expropriated Art Recovery (HEAR) Act. The HEAR Acts six-year discovery rule applies notwithstanding . . . any defense at law relating to the passage of time. The provisions of this act mandating application of California substantive law will reinforce the HEAR Acts preclusion of defenses at law relating to the passage of time.
(i)It is the intent of the Legislature that California families (or heirs of Californians) whose art was looted based on persecution, including Holocaust survivors and heirs, who did not have an opportunity to bring those claims with the certainty that California law would supply the rule of decision, to be able to do so, and that the law apply retroactively for families who would be eligible to use the new law, but for whom the six-year limitations period would have already passed, or whose prior cases were rejected based on the defenses proscribed in Section 338.2 of the Code of Civil Procedure, to be added by Section 3 of this act.
(j)The Legislature has the authority to mandate California substantive law as the rule of decision in specified matters, as indicated in California case law and Section 6(1), Restatement (Second), Conflict of Laws: A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(k)This law effectuates Californias established laws and public policies against theft and trafficking in stolen property; precluding a thief from passing good title to any subsequent purchaser of stolen property; protecting the rights of true owners to recover stolen artwork and other items of cultural property; and precluding the true owners of stolen property from being divested of title without actual knowledge of their rights in and the location of the property. This law aligns California law with federal laws, federal policies, and international agreements prohibiting pillage and seizure of works of art and cultural property and calling for restitution of seized property, as embodied in the Hague Convention of 1907 (and 1899), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the National Stolen Property Act of 1934, the Holocaust Victims Redress Act, the Holocaust Expropriated Art Recovery Act of 2016, and related federal executive branch policies and international agreements.
SEC. 2.Section 338 of the Code of Civil Procedure is amended to read:338.Within three years:
(a)An action upon a liability created by statute, other than a penalty or forfeiture.
(b)An action for trespass upon or injury to real property.
(c)(1)An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2)The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or the law enforcement agency that originally investigated the theft.
(3)(A)Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(i)The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B)This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C)For purposes of this paragraph:
(i)Actual discovery, notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii)Auctioneer means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii)Dealer means a person who holds a valid sellers permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv)Duress means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owners family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v)Fine art has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi)Museum or gallery shall include any public or private organization or foundation operating as a museum or gallery.
(4)Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5)A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6)Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d)An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e)An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action upon the bond.
(f)(1)An action against a notary public on the notary publics bond or in the notary publics official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action.
(2)Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3)Notwithstanding paragraph (1), an action against a notary public on the notary publics bond or in the notary publics official capacity shall be commenced within six years.
(g)An action for slander of title to real property.
(h)An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i)An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j)An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k)An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l)An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m)An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n)An action commencing under Section 51.7 of the Civil Code.
(o)An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p)An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 3.Section 338.2 is added to the Code of Civil Procedure, to read:338.2.(a)A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b)Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(1)The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c)If a claimant had actual knowledge of the facts described in subdivision (b) prior to the enactment of this section, any action brought pursuant to this section shall be commenced within of six years of actual discovery or two years from the enactment of this section, whichever is later.
(d)For purposes of this section the following definitions shall apply:
(1)Artwork or other personal property means any of the following:
(A)Pictures, paintings, and drawings.
(B)Statuary art and sculpture.
(C)Engravings, prints lithographs, and other works of graphic art.
(D)Applied art and original artistic assemblages and montages.
(E)Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F)Sacred and ceremonial objects.
(G)Objects of cultural significance.
(2)Political persecution means persecution of a specific group of individuals based on their membership in a protected class under the states Unruh Civil Rights Act (Section 51 of the Civil Code).
(e)Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(f)In an action brought pursuant to this section, where an item specified in subdivision (d) is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner. Defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply to cases brought under this section.
(g)An action may be brought by a claimant who, prior to the enactment of this section, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses listed in subdivision (f), or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Any such actions shall be commenced within two years of the effective date of this section or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
(h)A prevailing plaintiff shall be entitled to reasonable attorneys costs and fees.
(i)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.SEC. 4.The provisions of this Act are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5.This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that California law is applied as specified herein in any pending or future cases brought by California residents, it is necessary that this act take effect immediately.
This law effectuates Californias established laws and public policies against theft and trafficking in stolen property; precluding a thief from passing good title to any subsequent purchaser of stolen property; protecting the rights of true owners to recover stolen artwork and other items of cultural property; and precluding the true owners of stolen property from being divested of title without actual knowledge of their rights in and the location of the property. This law aligns California law with federal laws, federal policies, and international agreements prohibiting pillage and seizure of works of art and cultural property and calling for restitution of seized property, as embodied in the Hague Convention of 1907 (and 1899), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the National Stolen Property Act of 1934, the Holocaust Victims Redress Act, the Holocaust Expropriated Art Recovery Act of 2016, and related federal executive branch policies and international agreements.
SECTION 1.SEC. 2.Section 338 of the Code of Civil Procedure is amended to read:338.Within three years:
(a)An action upon a liability created by statute, other than a penalty or forfeiture.
(b)An action for trespass upon or injury to real property.
(c)(1)An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2)The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or the law enforcement agency that originally investigated the theft.
(3)(A)Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(i)The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B)This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C)For purposes of this paragraph:
(i)Actual discovery, notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii)Auctioneer means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii)Dealer means a person who holds a valid sellers permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv)Duress means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owners family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v)Fine art has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi)Museum or gallery shall include any public or private organization or foundation operating as a museum or gallery.
(4)Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5)A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6)Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d)An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e)An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action upon the bond.
(f)(1)An action against a notary public on the notary publics bond or in the notary publics official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action.
(2)Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3)Notwithstanding paragraph (1), an action against a notary public on the notary publics bond or in the notary publics official capacity shall be commenced within six years.
(g)An action for slander of title to real property.
(h)An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i)An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j)An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k)An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l)An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m)An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n)An action commencing under Section 51.7 of the Civil Code.
(o)An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p)An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 2.SEC. 3.Section 338.2 is added to the Code of Civil Procedure, to read:338.2.(a)A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b)Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(1)The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c)If a claimant had actual knowledge of the facts described in subdivision (b) prior to the enactment of this section, any action brought pursuant to this section shall be commenced within of six years of actual discovery or two years from the enactment of this section, whichever is later.
(c)(d)For purposes of this section the following definitions shall apply:
(1)Artwork or other personal property means any of the following:
(A)Pictures, paintings, and drawings.
(B)Statuary art and sculpture.
(C)Engravings, prints lithographs, and other works of graphic art.
(D)Applied art and original artistic assemblages and montages.
(E)Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F)Sacred and ceremonial objects.
(G)Objects of cultural significance.
(2)Political persecution means persecution of a specific group of individuals based on their membership in a protected class under the states Unruh Civil Rights Act (Section 51 of the Civil Code).
(d)(e)Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(e)No defense or affirmative defense in law or equity is established by a current owner or possessor of the artwork or other personal property by demonstrating that they legally obtained the property at issue.(f)In an action brought pursuant to this section, where an item specified in subdivision (d) is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner. Defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply to cases brought under this section.
(g)An action may be brought by a claimant who, prior to the enactment of this section, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses listed in subdivision (f), or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Any such actions shall be commenced within two years of the effective date of this section or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
(f)(h)A prevailing plaintiff shall be entitled to reasonable attorneys costs and fees.
(i)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
Within three years:
(a)An action upon a liability created by statute, other than a penalty or forfeiture.
(b)An action for trespass upon or injury to real property.
(c)(1)An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2)The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved partys agent, or the law enforcement agency that originally investigated the theft.
(3)(A)Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(i)The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B)This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C)For purposes of this paragraph:
(i)Actual discovery, notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii)Auctioneer means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii)Dealer means a person who holds a valid sellers permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv)Duress means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owners family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v)Fine art has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi)Museum or gallery shall include any public or private organization or foundation operating as a museum or gallery.
(4)Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5)A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6)Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d)An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e)An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action upon the bond.
(f)(1)An action against a notary public on the notary publics bond or in the notary publics official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action.
(2)Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved partys agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3)Notwithstanding paragraph (1), an action against a notary public on the notary publics bond or in the notary publics official capacity shall be commenced within six years.
(g)An action for slander of title to real property.
(h)An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i)An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j)An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k)An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l)An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m)An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n)An action commencing under Section 51.7 of the Civil Code.
(o)An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p)An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 2.Section 338.2 is added to the Code of Civil Procedure, to read:338.2.(a)A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b)Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimants agent, of both of the following:
(1)The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2)Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c)For purposes of this section the following definitions shall apply:
(1)Artwork or other personal property means any of the following:
(A)Pictures, paintings, and drawings.
(B)Statuary art and sculpture.
(C)Engravings, prints lithographs, and other works of graphic art.
(D)Applied art and original artistic assemblages and montages.
(E)Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F)Sacred and ceremonial objects.
(G)Objects of cultural significance.
(2)Political persecution means persecution of a specific group of individuals based on their membership in a protected class under the states Unruh Civil Rights Act (Section 51 of the Civil Code).
(d)Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(e)No defense or affirmative defense in law or equity is established by a current owner or possessor of the artwork or other personal property by demonstrating that they legally obtained the property at issue.
(f)A prevailing plaintiff shall be entitled to reasonable attorneys costs and fees.
SECTION 1.Section 1255.410 of the Code of Civil Procedure is amended to read:1255.410.(a)At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.The motion shall describe the property of which the plaintiff is seeking to take possession, which description may be by reference to the complaint, and shall state the date after which the plaintiff is seeking to take possession of the property. The motion shall include a statement substantially in the following form: You have the right to oppose this motion for an order of possession of your property. If you oppose this motion you must serve the plaintiff and file with the court a written opposition to the motion within 30 days from the date you were served with this motion. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.(b)The plaintiff shall serve a copy of the motion on the record owner of the property and on the occupants, if any. The plaintiff shall set the court hearing on the motion not less than 60 days after service of the notice of motion on the record owner of unoccupied property. If the property is lawfully occupied by a person dwelling thereon or by a farm or business operation, service of the notice of motion shall be made not less than 90 days prior to the hearing on the motion.(c)Not later than 30 days after service of the plaintiffs motion seeking to take possession of the property, any defendant or occupant of the property may oppose the motion in writing by serving the plaintiff and filing the opposition with the court. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship. The plaintiff shall serve and file any reply to the opposition not less than 15 days before the hearing.(d)(1)If the motion is not opposed within 30 days of service on each defendant and occupant of the property, the court shall make an order for possession of the property if the court finds each of the following:(A)The plaintiff is entitled to take the property by eminent domain.(B)The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.(2)If the motion is opposed by a defendant or occupant within 30 days of service, the court may make an order for possession of the property upon consideration of the relevant facts and any opposition, and upon completion of a hearing on the motion, if the court finds each of the following:(A)The plaintiff is entitled to take the property by eminent domain.(B)The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.(C)There is an overriding need for the plaintiff to possess the property prior to the issuance of final judgment in the case, and the plaintiff will suffer a substantial hardship if the application for possession is denied or limited.(D)The hardship that the plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of possession.(e)(1)Notwithstanding the time limits for notice prescribed by this section and Section 1255.450, a court may issue an order of possession upon an ex parte application by a water, wastewater, gas, electric, or telephone utility, as the court deems appropriate under the circumstances of the case, if the court finds each of the following:(A)An emergency exists and as a consequence the utility has an urgent need for possession of the property. For purposes of this section, an emergency is defined to include, but is not limited to, a utilitys urgent need to protect the publics health and safety or the reliability of utility service.(B)An emergency order of possession will not displace or unreasonably affect any person in actual and lawful possession of the property to be taken or the larger parcel of which it is a part.(2)Not later than 30 days after service of the order authorizing the plaintiff to take possession of the property, any defendant or occupant of the property may move for relief from an emergency order of possession that has been issued under this subdivision. The court may modify, stay, or vacate the order upon consideration of the relevant facts and any objections raised, and upon completion of a hearing if requested.(a)At the time of filing the complaint or at any time after filing the complaint and prior to entry of judgment, the plaintiff may move the court for an order for possession under this article, demonstrating that the plaintiff is entitled to take the property by eminent domain and has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
The motion shall describe the property of which the plaintiff is seeking to take possession, which description may be by reference to the complaint, and shall state the date after which the plaintiff is seeking to take possession of the property. The motion shall include a statement substantially in the following form: You have the right to oppose this motion for an order of possession of your property. If you oppose this motion you must serve the plaintiff and file with the court a written opposition to the motion within 30 days from the date you were served with this motion. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship.
(b)The plaintiff shall serve a copy of the motion on the record owner of the property and on the occupants, if any. The plaintiff shall set the court hearing on the motion not less than 60 days after service of the notice of motion on the record owner of unoccupied property. If the property is lawfully occupied by a person dwelling thereon or by a farm or business operation, service of the notice of motion shall be made not less than 90 days prior to the hearing on the motion.
(c)Not later than 30 days after service of the plaintiffs motion seeking to take possession of the property, any defendant or occupant of the property may oppose the motion in writing by serving the plaintiff and filing with the court the opposition. the opposition with the court. If the written opposition asserts a hardship, it shall be supported by a declaration signed under penalty of perjury stating facts supporting the hardship. The plaintiff shall serve and file any reply to the opposition not less than 15 days before the hearing.
(d)(1)If the motion is not opposed within 30 days of service on each defendant and occupant of the property, the court shall make an order for possession of the property if the court finds each of the following:
(A)The plaintiff is entitled to take the property by eminent domain.
(B)The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
(2)If the motion is opposed by a defendant or occupant within 30 days of service, the court may make an order for possession of the property upon consideration of the relevant facts and any opposition, and upon completion of a hearing on the motion, if the court finds each of the following:
(A)The plaintiff is entitled to take the property by eminent domain.
(B)The plaintiff has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that satisfies the requirements of that article.
(C)There is an overriding need for the plaintiff to possess the property prior to the issuance of final judgment in the case, and the plaintiff will suffer a substantial hardship if the application for possession is denied or limited.
(D)The hardship that the plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of possession.
(e)(1)Notwithstanding the time limits for notice prescribed by this section and Section 1255.450, a court may issue an order of possession upon an ex parte application by a water, wastewater, gas, electric, or telephone utility, as the court deems appropriate under the circumstances of the case, if the court finds each of the following:
(A)An emergency exists and as a consequence the utility has an urgent need for possession of the property. For purposes of this section, an emergency is defined to include, but is not limited to, a utilitys urgent need to protect the publics health and safety or the reliability of utility service.
(B)An emergency order of possession will not displace or unreasonably affect any person in actual and lawful possession of the property to be taken or the larger parcel of which it is a part.
(2)Not later than 30 days after service of the order authorizing the plaintiff to take possession of the property, any defendant or occupant of the property may move for relief from an emergency order of possession that has been issued under this subdivision. The court may modify, stay, or vacate the order upon consideration of the relevant facts and any objections raised, and upon completion of a hearing if requested.
|
Date
|
Status
|
|---|---|
| Sep 16, 2024 | Chaptered by Secretary of State - Chapter 257, Statutes of 2024. |
| Sep 16, 2024 | Approved by the Governor. |
| Aug 23, 2024 | Enrolled and presented to the Governor at 4 p.m. |
| Aug 15, 2024 | Urgency clause adopted. Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0. Page 6308.). |
| Aug 12, 2024 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 14 pursuant to Assembly Rule 77. |
| Aug 12, 2024 | Read third time. Urgency clause adopted. Passed. Ordered to the Assembly. (Ayes 38. Noes 0. Page 5040.). |
| Jul 1, 2024 | Read second time and amended. Ordered to consent calendar. |
| Jul 1, 2024 | Ordered to third reading. |
| Jul 1, 2024 | From Consent Calendar. |
| Jun 27, 2024 | From committee: Amend, and do pass as amended. To Consent Calendar. (Ayes 11. Noes 0.) (June 25). |
| May 22, 2024 | Referred to Com. on JUD. |
| May 13, 2024 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 13, 2024 | Read third time. Passed. Ordered to the Senate. (Ayes 75. Noes 0. Page 5189.) |
| May 2, 2024 | Read second time. Ordered to third reading. |
| May 1, 2024 | From committee: Do pass. (Ayes 12. Noes 0.) (April 30). |
| Apr 29, 2024 | Re-referred to Com. on JUD. |
| Apr 25, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Mar 19, 2024 | Re-referred to Com. on JUD. |
| Mar 18, 2024 | Referred to Com. on JUD. |
| Mar 18, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Feb 16, 2024 | From printer. May be heard in committee March 17. |
| Feb 15, 2024 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 15, 2024 | AB 2867 Gabriel Concurrence - Urgency Added | Assembly Floor |
Passed |
|
| Aug 12, 2024 | Assembly 3rd Reading AB2867 Gabriel et al. By Wiener Urgency Clause | Senate Floor |
Passed |
|
| Jun 25, 2024 | Do pass as amended, and be ordered to the Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| May 13, 2024 | AB 2867 Gabriel Assembly Third Reading | Assembly Floor |
Passed |
|
| Apr 30, 2024 | Do pass. | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 30years After | ** Support | |
| American Jewish Committee – Los Angeles | ** Support | |
| American Jewish Committee, San Diego | ** Support | |
| American Jewish Committee, San Francisco | ** Support | |
| ART ASHES | ** Support | |
| Democrats for Israel - CA | ** Support | |
| Democrats for Israel Los Angeles | ** Support | |
| ETTA | ** Support | |
| Hadassah | ** Support | |
| Hias | ** Support | |
| Hillel of San Diego | ** Support | |
| Hillel of Silicon Valley | ** Support | |
| Holocaust Museum LA | ** Support | |
| Holocaust Survivors Foundation USA | ** Support | |
| Jewish Big Brothers Big Sisters of Los Angeles | ** Support | |
| Jewish Center for Justice | ** Support | |
| Jewish Community Federation and Endowment Fund | ** Support | |
| Jewish Community Relations Council | ** Support | |
| Jewish Community Relations Council, Bay Area | ** Support | |
| Jewish Community Relations Council, Sacramento | ** Support | |
| Jewish Community Relations Council, Santa Barbara | ** Support | |
| Jewish Democratic Club of Marin | ** Support | |
| Jewish Democratic Club of Solano County | ** Support | |
| Jewish Democratic Coalition of the Bay Area | ** Support | |
| Jewish Democrats of San Diego County | ** Support | |
| Jewish Family & Community Services East Bay | ** Support | |
| Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties | ** Support | |
| Jewish Family and Children’s Service of Long Beach and Orange County | ** Support | |
| Jewish Family Service of Los Angeles | ** Support | |
| Jewish Family Service of San Diego | ** Support | |
| Jewish Family Service of the Desert | ** Support | |
| Jewish Family Services of Silicon Valley | ** Support | |
| Jewish Federation Of Greater Los Angeles The | ** Support | |
| Jewish Federation of Greater Santa Barbara | ** Support | |
| Jewish Federation of The Greater San Gabriel and Pomona Valleys | ** Support | |
| Jewish Federation Of The Sacramento Region | ** Support | |
| Jewish Free Loan Association | ** Support | |
| Jewish Long Beach | ** Support | |
| Jewish Public Affairs Committee | ** Support | |
| Jewish Silicon Valley | ** Support | |
| Jewish War Veterans of the USA | ** Support | |
| JVS SoCal | ** Support | |
| Lieutenant Governor of California Eleni Kounalakis | ** Support | |
| Monuments Men and Women Foundation | ** Support | |
| Progressive Zionists of California | ** Support | |
| Raoul Wallenberg Jewish Democratic Club | ** Support | |
| StandWithUs | ** Support |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2867
Author:(Gabriel and Bryan)
As Amended Ver:July 1, 2024
2/3 vote. Urgency.
SUMMARY
Provides that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, as specified, and creates a new cause of action for damages or recovery of artwork or other personal property that was stolen or lost as the result of political persecution.
Major Provisions
- Declares that this bill effectuates California's established laws and public policies against theft and trafficking in stolen property and protecting the rights of true owners to recover stolen artwork and other items of cultural property. Declares further that this bill aligns California law with specified federal laws and international agreements.
- Provides, notwithstanding any other law or prior judicial decision, that any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property, including personal property covered by the Holocaust Expropriated Art Recovery Act, that California substantive law shall apply.
- Specifies that 2), above, shall apply to all actions pending on the date the bill's provisions become operative or that are commenced thereafter, including any action in which judgment is not yet final or the time for filing an appeal has not expired, or, if filed, has not been decided.
- Permits a California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, to bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
- Provides, notwithstanding any other law, that actions brought pursuant to 4) above shall be commenced within six years of the plaintiff's actual discovery of both (a) the identity and the whereabouts of the artwork or other personal property; and (b) facts sufficient to indicate that the claimant has a possessory interest in the artwork or other personal property.
- Defines "artwork or other personal" property to include the following: pictures, paintings, and drawings; statuary art and sculpture; engravings, prints lithographs, and other works of graphic art; applied art and original artistic assemblages and montages; books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums; sacred and ceremonial objects; objects of cultural significance.
- Defines "political persecution" to mean persecution of a specific group of individuals based on their membership in a protected class under the state's Unruh Civil Rights Act.
- Provides that notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016, California substantive law shall apply.
- Provides that in an action brought pursuant to 4) above defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches shall not apply.
- Adopts an urgency and severability clause.
Senate Amendments
- Make findings about prior state and federal legislation and case law relating to stolen works of art, and its relevance to this bill.
- Add an urgency clause and severability clause.
COMMENTS
This bill makes two changes to California law relating to the recovery of stolen art. First, it requires a court to apply California substantive law in an action brought by a California resident to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including in an action brought under the federal Holocaust Expropriated Art Recovery (HEAR) Act. This part of the bill would only matter where the court confronts a "choice of law" question, as explained in the analysis. Second, this bill creates a new cause of action that allows any California resident to seek damages or to recover artwork or personal property that was stolen or lost as the result of "political persecution." The bill permits such actions to be brought within six years of the discovery of relevant facts. Although the bill speaks in general terms of "political persecution," the author and supporters are primarily concerned about art stolen by the Nazis during World War II, as the reference to the HEAR Act indicates.
The case for extended statutes of limitations for stolen art. Most stolen art cases involve a conflict between two innocent parties: a victim of art theft and a good faith purchaser who did not know that they were buying a stolen good. Existing law generally favors the theft victim, because it is a basic principle of property law that possessors of property cannot pass better title than they possess. Accordingly the good faith purchaser cannot acquire or subsequently transfer any title. While this general rule favors the original owner over subsequent good faith purchasers, the law nonetheless recognizes the potential inequity to the good faith purchaser and requires the original owner to bring any action for recovery in a reasonable period of time prescribed by a statute of limitations (SOL). However, especially in cases of stolen art, the theft victim may not learn of the whereabouts of the work until long after the SOL has expired. In an effort to balance the competing equities, most states – either by statute or case law, or some combination thereof – have adopted a "discovery" rule. That is, the SOL does not begin to run until the theft victim discovers the whereabouts of the work and identifies its present possessor.
California first adopted an express discovery rule in 1983. In 2010, AB 2765 (Chapter 691, Statutes of 2010) clarified that California has adopted an "actual" discovery. Under an "actual" discovery rule, the SOL does not start running until the plaintiff discovers the whereabouts of the stolen object and the identity of its present possessor. "Actual" discovery stands in contrast to "constructive" discovery, which is imputed as a matter of law if the person through reasonable diligence should have discovered the relevant facts. For recovery of most kinds of personal property, the appropriate standard is "constructive" discovery, for it prevents claimants from "sitting on their rights." However, stolen art is not like other kinds of property, especially given that such thefts are followed by deliberate efforts to conceal the work and its provenance. AB 2765 also increased the SOL for such actions from three to six years after actual discovery.
Holocaust Expropriated Art Recovery Act (HEAR) Act of 2016. In 2016 a Republican Congress passed, and Democratic President Obama signed, the HEAR Act, which followed California's six-year SOL and "actual" discovery. The primary purpose of the HEAR Act was "to ensure that artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitation but are resolved in a just and fair manner." (Public Law 114-308, SEC. 3.) The HEAR Act provided that notwithstanding any other federal or state law an action to recover artwork or other property that was lost because of Nazi persecution between 1933 and 1945 may be commenced not later than six years after the actual discovery by 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. SEC. 5 (a).) The HEAR Act, which will sunset on January 1, 2027, applies to any civil action pending in any court, federal or state, and any act filed during the period beginning from the date of enactment and ending on December 31, 2026.
The need for the present bill. According the author, the need for this bill is illustrated by the on-going case involving Claude Cassirer, a Holocaust survivor, and the grandson of Paul Cassirer, the original owner of the painting, Rue Saint Honore, by the Impressionist painter, Camille Pissarro. After the painting was taken from Cassirer's family as they fled the Nazi regime in 1939, the painting traveled from Germany to California, St. Louis, Missouri, New York, and Switzerland before ending up in the Thyssen-Bornemisza Collection Foundation, a museum owned by the Spanish government. Although the case has a long and complicated legal history – and is apparently still active – it reached the United States Supreme Court in 2022 and was remanded to the Ninth Circuit Court of Appeal. At issue in both courts was a "choice of law" question; that is, whether the court should apply the substantive law of Spain or the substantive law of California. The U.S. Supreme Court held that in a case raising non-federal claims, the Ninth Circuit should have applied California's choice of law rules and remanded the case to the Ninth Circuit to determine which substantive law should apply under California's choice of law rules. (Cassirer v. Thyssen-Bornemisza Collection Foundation (2022) 596 U.S. 107.)
California courts use the "government interest" choice of law test, which effectively asks which government has the greatest stake in having its laws apply. When the Ninth Circuit applied California's choice of law rules it concluded that they favored the application of Spain's substantive law. And under Spanish property law, the museum had acquired the painting by prescription. (Cassirer v. Thyssen-Bornemisza, U.S. Court of Appeals for the 9th Circuit, No. 19-55616, D.C. No. 2:05-cv-03459-JFW-E, filed January 9, 2024, slip opinion, at pp. 17-22, 38.)
Avoiding the "Choice of Law" problem. This bill was introduced in response to the Ninth Circuit opinion. First, this bill attempts to circumvent the "choice of law" question by simply asserting that in any case for recovery of fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the HEAR Act and brought by a California resident, then California substantive law shall apply. In other words a court, whether federal or state, would not conduct a choice of law analysis and would instead simply apply California substantive law, no matter the claims of the other jurisdiction. In theory, there is nothing that would necessarily prevent a state from making this assertion, though it is unclear if a court would interpret this as requiring it to forgo its own developed choice of law rules and simply apply California law.
Creating a new cause of action. This bill also creates a new cause of action that authorizes a California resident, or their heir or representative, to bring an action for damages or recovery of artwork lost as a result of political persecution. The new cause of action establishes an SOL of six years from actual discovery. In addition, the bill contains two provisions that go beyond both state law and the HEAR Act. First, bill would require a court to apply California substantive law, thus eliminating any choice of law analysis. Second, the bill would bar many common defenses, including good faith or bona fide purchaser, laches, or acquisition of property by adverse possession or prescription.
Potential federal preemption issue. California's first effort to expand the statute of limitation for actions to recover Nazi-looted art created Code Civil Procedure Section 354.3 in 2002. However, in 2009 the Ninth Circuit struck down Section 354.3, reasoning that by singling out art stolen by a foreign regime the statute was preempted under the "foreign policy field preemption" doctrine. (Marie von Saher v. Norton Simon Museum (2009) 578 F.3d 1016.) To be sure, this bill does not solely apply to art stolen by the Nazi regime, but rather to any artwork or other property stolen or lost as a result of political persecution. However, the bill expressly references the HEAR Act and includes cases covered by the HEAR Act. One could also argue, as the author suggests in the background material, that von Saher was decided before the HEAR Act, and that the purpose of the HEAR Act was to facilitate the recovery of stolen artwork. However, this bill goes beyond the federal law in important ways. The HEAR Act, for example, does not bar common defenses, nor does it say that when a choice of law question emerges that the court must apply the substantive law of the plaintiff's home state. This is not to say that a court will find that the bill is preempted, but only that the bill certainly raises a preemption issue.
According to the Author
According to the author, this bill will "ensure that Holocaust survivors and other victims of persecution can secure justice through our legal system and recover property that rightfully belongs to them and their families. Our effort will make it crystal clear that California law must triumph over foreign law, that California stands with Holocaust survivors, and that cases must be decided based on morality and justice, not the misapplication of legal technicalities."
Arguments in Support
Lieutenant Governor Eleni Kounalakis, the sponsor, supports this bill because:
California has long provided strong protections for art theft victims. However, a recent ruling by the U.S. Ninth Circuit Court of Appeals brought to light an issue with existing law. The ruling involved the Cassirer family and their effort to reclaim a masterpiece by the famous impressionist Camille Pissarro that was looted by the Nazis as the family fled from Nazi Germany, and later purchased by a Spanish museum. The Ninth Circuit found that Spanish law should apply in this case and minimized California's substantial interest in helping return stolen property to the rightful owners, effectively allowing a Spanish museum to retain ownership of the stolen painting. AB 2867 would address this recent and future potential injustices by requiring courts to properly weigh the applicability of California law in lawsuits involving the theft of art or other personal property looted during the Holocaust or other acts of persecution.
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
None.
VOTES:
ASM JUDICIARY: 12-0-0
YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Essayli, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez
ASSEMBLY FLOOR: 75-0-5
YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
ABS, ABST OR NV: Bauer-Kahan, Megan Dahle, Grayson, Mathis, Quirk-Silva
SENATE FLOOR: 38-0-2
YES: Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Wahab, Wiener, Wilk
ABS, ABST OR NV: Allen, Umberg
UPDATED
VERSION: July 1, 2024
CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0003713
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2867 |
CONSENT
Bill No: AB 2867
Author: Gabriel (D) and Bryan (D), et al.
Amended: 7/1/24 in Senate
Vote: 27 - Urgency
SENATE JUDICIARY COMMITTEE: 11-0, 6/25/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab
ASSEMBLY FLOOR: 75-0, 5/13/24 - See last page for vote
SUBJECT: Recovery of artwork and personal property lost due to persecution
SOURCE: Lieutenant Governor of California Eleni Kounalakis
DIGEST:
This bill retroactively requires that California substantive law be applied in causes of action to recover works of art, including actions under the federal Holocaust Expropriated Art Recovery Act of 2016, and allows a California resident or representative of the estate of a California resident to bring a cause of action for damages or recovery of artwork or personal property stolen or lost as a result of political persecution, as provided.
ANALYSIS: Existing federal law establishes, under the federal Holocaust Expropriated Art Recovery Act of 2016, a civil claim or cause of action against a defendant to recover any artwork or other property that was misappropriated by Germany’s Nazi Government between 1933 and 1945 may be commenced not later than six years after the claimant’s actual discovery of the identity and location of the artwork or other property and a possessory interest of the claimant in the artwork or the property. Provides that this provision and the HEAR Act is repealed on January 1, 2027, except with regard to any civil claim or cause of action that is pending on that date. (P.L. No. 114-308 (2016).)
Existing state law:
- Provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or a law enforcement agency. (Civ. Proc. Code § 338 (c)(2).)
- Requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within six years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. (Civ. Proc. Code § 338 (c)(3)(A).)
- Specifies for purposes of 2) above that “actual discovery” does not include constructive knowledge imputed by law. (Civ. Proc. Code § 338 (c)(3)(C).)
- Specifies for purposes of 2) above that a party in an action may raise all equitable and legal affirmative defenses and doctrines, including, without limitations, laches and unclean hands. (Civ. Proc. Code § 338 (c)(5).)
This bill:
- Declares that this bill effectuates California’s established laws and public policies against theft and trafficking in stolen property and protecting the rights of true owners to recover stolen artwork and other items of cultural property. Declares further that this bill aligns California law with specified federal laws and international agreements.
- Provides, notwithstanding any other law or prior judicial decision, that any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property, including personal property covered by the HEAR Act, that California substantive law shall apply.
- Specifies that this provision shall apply to all actions pending on the date the bill’s provisions become operative, including any action in which judgment is not yet final or the time for filing an appeal has not expired, or, if filed, has not been decided, and to all actions that are commenced on the enactment of this bill.
- Provides a cause of action by a California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
- Provides, notwithstanding any other law, that actions brought pursuant to 3), above, shall be commenced within six years of the plaintiff’s actual discovery of both:
- The identity and the whereabouts of the artwork or other personal property; and
- Facts sufficient to indicate that the claimant has a possessory interest in the artwork or other personal property.
- Provides, for the purposes for the cause of action in 3), above, that the following definitions:
- “artwork or other personal” property to include the following:
- pictures, paintings, and drawings;
- statuary art and sculpture;
- engravings, prints lithographs, and other works of graphic art;
- applied art and original artistic assemblages and montages;
- books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums;
- sacred and ceremonial objects; and
- objects of cultural significance.
- “political persecution” to mean persecution of a specific group of individuals based on their membership in a protected class under the state’s Unruh Civil Rights Act.
- “artwork or other personal” property to include the following:
- Provides that, notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016, California substantive law shall apply.
- Provides that, in an action brought pursuant to 3), above, defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches shall not apply.
- Provides that, if a claimant had actual discovery prior to the enactment of this bill, any action must be commenced within of six years of actual discovery, or two years from the enactment of this bill, whichever is later.
- Provides that, in an action brought pursuant to 3), above, where the art is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner, and that the defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply.
- Provides that an action may be brought by a claimant who, prior to the enactment of this bill, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses in 9), above, or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Provides that any such actions must be commenced within two years of the effective date of this bill or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
- Provides that a prevailing plaintiff in a cause of action under 3), above, shall be entitled to reasonable attorney’s costs and fees.
- Specifies that the provisions of this bill are severable, and that, if any provision is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 7/1/24)
Lieutenant Governor of California Eleni Kounalakis (source)
30years After
American Jewish Committee San Francisco
American Jewish Committee San Diego
American Jewish Committee - Los Angeles
Art Ashes
Democrats for Israel - CA
Democrats for Israel Los Angeles
Etta
Hadassah
Hias
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Holocaust Survivors Foundation USA
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council Bay Area
Jewish Community Relations Council (SACRAMENTO)
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Service of The Desert
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jewish War Veterans of the USA
JVS SoCal
Monuments Men and Women Foundation
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Standwithus
OPPOSITION: (Verified 7/1/24)
None received
ARGUMENTS IN SUPPORT: According to the Lieutenant Governor of California, who is the sponsor of this bill:
California has long provided strong protections for art theft victims. However, a recent ruling by the U.S. Ninth Circuit Court of Appeals brought to light an issue with existing law. The ruling involved the Cassirer family and their effort to reclaim a masterpiece by the famous impressionist Camille Pissarro that was looted by the Nazis as the family fled from Nazi Germany, and later purchased by a Spanish museum. The Ninth Circuit found that Spanish law should apply in this case and minimized California’s substantial interest in helping return stolen property to the rightful owners, effectively allowing a Spanish museum to retain ownership of the stolen painting.
AB 2867 would address this recent and future potential injustices by requiring courts to properly weigh the applicability of California law in lawsuits involving the theft of art or other personal property looted during the Holocaust or other acts of persecution.
My time spent in Budapest as U.S. Ambassador, where nearly half a million Jews were mercilessly killed and their property stolen, was a profound lesson in Holocaust history. The decades-long effort to return confiscated property to Jewish families is morally courageous, and AB 2867 will help families recover what is rightfully theirs.
ASSEMBLY FLOOR: 75-0, 5/13/24
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bauer-Kahan, Megan Dahle, Grayson, Mathis, Quirk-Silva
Prepared by: Ian Dougherty / JUD. / (916) 651-4113
7/2/24 15:16:48
**** END ****
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: AB 2867 (Author:Gabriel)
Version: April 25, 2024
Hearing Date: June 25, 2024
Fiscal: No
Urgency: No
Consultant: ID
SUBJECT
Recovery of artwork and personal property lost due to persecution
DIGEST
This bill retroactively requires that California substantive law be applied in causes of action to recover works of art, including actions under the federal Holocaust Expropriated Art Recovery Act of 2016, and allows a California resident or representative of the estate of a California resident to bring a cause of action for damages or recovery of artwork or personal property stolen or lost as a result of political persecution, as provided.
EXECUTIVE SUMMARY
During World War II, the Nazi regime in Germany confiscated and stole hundreds of thousands of works of art throughout Europe. Much of this theft was part of the Nazis’ persecution of Jewish people. After the end of the war, many survivors of Nazi persecution went about trying to find or recover some of this art. To help address issues with statutes of limitations encountered in many cases brought to recover such art, Congress passed the Holocaust Expropriated Art Recovery Act of 2016. In a long-running case, the Cassirer family sought to recover an impressionist painting from a Spanish museum that obtained it after it had passed through multiple owners since being stolen by the Nazis. However, in January 2024, the Ninth Circuit Court of Appeals ruled that, under California’s “choice of laws” rule, Spanish property law must be applied, and awarded possession of the painting to the Spanish museum. This bill aims to undo the law as applied by the Ninth Circuit by requiring that California substantive law apply in causes of action to recover works of art, including under the federal law, and it applies its provisions to all cases pending as of the date of the enactment of this bill. Additionally, this bill creates a new cause of action to recover artwork stolen or lost as a result of political persecution. This bill is sponsored by the Lieutenant Governor of California, and is supported by numerous Holocaust Survivors and Jewish organizations. The Committee has received no timely opposition.
PROPOSED CHANGES TO THE LAW
Existing federal law:
- Establishes, under the federal Holocaust Expropriated Art Recovery Act of 2016, a civil claim or cause of action against a defendant to recover any artwork or other property that was misappropriated by Germany’s Nazi Government between 1933 and 1945 may be commenced not later than six years after the claimant’s actual discovery of the identity and location of the artwork or other property and a possessory interest of the claimant in the artwork or the property. Provides that this provision and the HEAR Act is repealed on January 1, 2027, except with regard to any civil claim or cause of action that is pending on that date. (P.L. No. 114-308 (2016).)
Existing state law:
- Provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or a law enforcement agency. (Civ. Proc. Code § 338 (c)(2).)
- Requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within six years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. (Civ. Proc. Code § 338 (c)(3)(A).)
- Specifies for purposes of 2) above that “actual discovery” does not include constructive knowledge imputed by law. (Civ. Proc. Code § 338 (c)(3)(C).)
- Specifies for purposes of 2) above that a party in an action may raise all equitable and legal affirmative defenses and doctrines, including, without limitations, laches and unclean hands. (Civ. Proc. Code § 338 (c)(5).)
This bill:
- Declares that this bill effectuates California’s established laws and public policies against theft and trafficking in stolen property and protecting the rights of true owners to recover stolen artwork and other items of cultural property. Declares further that this bill aligns California law with specified federal laws and international agreements.
- Provides, notwithstanding any other law or prior judicial decision, that any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property, including personal property covered by the HEAR Act, that California substantive law shall apply.
- Specifies that this provision shall apply to all actions pending on the date the bill’s provisions become operative, including any action in which judgment is not yet final or the time for filing an appeal has not expired, or, if filed, has not been decided, and to all actions that are commenced on the enactment of this bill.
- Provides a cause of action by a California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
- Provides, notwithstanding any other law, that actions brought pursuant to (3), above, shall be commenced within six years of the plaintiff’s actual discovery of both:
- the identity and the whereabouts of the artwork or other personal property; and
- facts sufficient to indicate that the claimant has a possessory interest in the artwork or other personal property.
- For the purposes for the cause of action in (3), above, provides the following definitions:
- “artwork or other personal” property to include the following:
- pictures, paintings, and drawings;
- statuary art and sculpture;
- engravings, prints lithographs, and other works of graphic art;
- applied art and original artistic assemblages and montages;
- books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums;
- sacred and ceremonial objects; and
- objects of cultural significance.
- “political persecution” to mean persecution of a specific group of individuals based on their membership in a protected class under the state’s Unruh Civil Rights Act.
- “artwork or other personal” property to include the following:
- Provides that, notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016, California substantive law shall apply.
- Provides that, in an action brought pursuant to (3), above, defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches shall not apply.
- Provides that, if a claimant had actual discovery prior to the enactment of this bill, any action must be commenced within of six years of actual discovery, or two years from the enactment of this bill, whichever is later.
- Provides that, in an action brought pursuant to (3), above, where the art is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner, and that the defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply.
- Provides that an action may be brought by a claimant who, prior to the enactment of this bill, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses in (9), above, or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Provides that any such actions must be commenced within two years of the effective date of this bill or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
- Provides that a prevailing plaintiff in a cause of action under (3), above, shall be entitled to reasonable attorney’s costs and fees.
- Specifies that the provisions of this bill are severable, and that, if any provision is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
COMMENTS
- Author’s statement
According to the author:
This bill will ensure that Holocaust survivors and other victims of persecution can secure justice through our legal system and recover property that rightfully belongs to them and their families. Our effort will make it crystal clear that California law must triumph over foreign law, that California stands with Holocaust survivors, and that cases must be decided based on morality and justice, not the misapplication of legal technicalities.
AB 2867 provides a multipronged approach: (1) mandating application of California substantive law as the rule of decision in cases to recover stolen art from a museum, gallery, auctioneer, or dealer; and (2) creating a new private right of action for recovery of art of other personal property taken or lost as a result of political persecution, which can be brought within six years of the owners’ actual discovery of their rights in, and the location of, the property.
- The HEAR Act and lost or stolen art due to Nazi persecution
During World War II, Nazis stole or appropriated hundreds of thousands of works of art throughout Europe. According to the Assembly Judiciary Committee Analysis of this bill:
According to the Congressional findings that accompanied the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 (Public Law 114-308), it is estimated that the Nazis stole or fraudulently appropriated hundreds of thousands of works of art throughout Europe. As the Nazi’s art theft campaign was part and parcel of its larger genocidal campaign, European Jews were disproportionately victimized by Nazi looting. Following World War II, the Western allies collectively committed to returning the artworks to the country of origin and, eventually, to their rightful owners. Despite the creation of international agreements to pursue these ends, the Congressional findings concluded that “many works were never reunited with their owners.” Those unreturned [artworks] apparently circulated underground for several years before appearing in museums around the world. After the breakup of the Soviet Union in the late 1980s and early 1990s, and the corresponding opening up of archives in East Germany and Eastern Europe, it became possible (although not easy) to trace the history and movement of these works. Of course, by the time it became possible for victims of Nazi art theft to identify the location of these works, and to prove their title, statutes of limitation (SOL) had long since expired, and the works themselves were by this time in the hands of bona fide purchasers who may not have known that the works had ever been stolen. The peculiar facts of war and postwar crisis, political persecution, and the massive scale of theft called for a reconsideration of the usual rules that governed conflicts between victims of theft and bona fide purchasers.[1]
After the war and later, survivors and descendants of survivors of Nazi persecution began to try to obtain possession of this lost or stolen art again. However, a common issue became whether the theft victims could actually bring claims, as it often had been decades since the art went missing or was stolen and many claims were precluded by statutes of limitations. Statutes of limitations may limit the amount of time that a plaintiff has to bring a claim for a particular injury, and usually run from the time of the injury. However, in cases of stolen or lost art, the victim may not know of the whereabouts of the art or who has the work of art for many years, thus are effectively foreclosed from bringing any legal action to recover the art by the statute of limitations. In light of this issue, California enacted a change to its statute of limitations to provide for a six year statute of limitations for a case against a museum, gallery, auctioneer, or dealer, to run upon the theft victim’s “actual discovery” of the whereabouts of the work of art. (Civ. Proc. Code § 338(c).)
In 2016, Congress passed the HEAR Act (P.L. 114-308, § 3). The purpose of the HEAR Act, as stated in its Legislative findings, were to: ensure that laws governing claims to Nazi-confiscated art and other property further United States policy, as set forth in the Washington Conference Principles on Nazi-Confiscated Art, the Holocaust Victims Redress Act, and the Terezin Declaration; and ensure that claims to artwork stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations, but are instead resolved in a just and fair manner. (P.L. 114-308, § 3.) The HEAR Act provides that, notwithstanding any other federal law or state law or any time-based legal defense, a civil claim or cause of action to recover artwork or other property that was lost between January 1, 1933 and December 31, 1945 because of Nazi persecution, can be commenced within six years of the actual discovery by the plaintiff or their agent of the identity and location of the artwork and the possessory interest of the plaintiff in the artwork. (Id., § 5.) Notably, the HEAR Act made its provisions applicable to civil actions pending on the date of enactment, as well as to claims filed between the date of enactment and December 31, 2026. (Id.) It also deemed some claims, for the purposes of its statute of limitations, to be actually discovered as of the date of enactment. (Id.)
- Cassirer v. Thyssen-Bornemisza Collection Foundation
This bill arises from a recent Ninth Circuit decision regarding a work of art that was confiscated by the Nazis. The suit related to an Impressionist painting by Camille Pissarro, which was originally owned by the Cassirer family prior to the Nazi regime’s rise to power. Lilly Cassirer was required to surrender the painting to the Nazis in order to obtain an exit visa from Germany. In around the 1990’s, Lilly Cassirer’s grandson, Claude Cassirer, learned that the painting had made its way through various owners to the Thyssen-Bornemisza Collection Foundation, an entity created and controlled by the Kingdom of Spain. Claude sued the Foundation for the painting’s return. Because the case involved a claim being raised in California regarding a defendant and property in Spain, a primary question in the case was which jurisdiction’s property laws would apply, a question that is decided by a “choice of laws” test. However, because the suit involved both California state property law claims and federal law regarding suits against foreign states or instrumentalities, the Court first had to determine which “choice of laws” rule applied, the California or the federal “choice of laws” rules. (Cassirer v. Thyssen-Bornemisza Collection Foundation (2022), 596 U.S. 107.) The Ninth Circuit initially applied the federal rule, which it determined required the application of Spanish property law. Under Spanish property law, the Ninth Circuit determined that the Spanish Foundation had rightful ownership of the painting. On appeal to the United States Supreme Court, the Court ruled that California’s “choice of laws” rule should apply in determining whether California property law or the property law of Spain apply. (Id., 117.)
In applying California’s “choice of laws” rule on remand, the Ninth Circuit again found that Spanish property law should apply, and that thus the painting should remain in possession of the Foundation. (Cassirer v. Thyssen-Bornemisza Collection Foundation (Jan. 9, 2024) 89 F.4th 1226.) The Ninth Circuit issued this latest ruling on January 9, 2024, and the case is still currently pending on a petition for rehearing.
- AB 2867 reverses the “choice of laws” analysis relied upon in the Cassirer decision and creates a new cause of action
AB 2867 would require that California courts apply California substantive law in any dispute involving theft of a work of art under California law or the HEAR Act. It specifies that this shall apply to all actions pending on the date of enactment of its provisions, including actions in which the judgement is not yet final or the time for filing appeal or a writ of certiorari has not yet expired or been decided.
In addition, AB 2867 creates a new cause of action in which a California resident or related person to an estate of a California resident may bring an action for damages, title, recovery, or ownership of artwork or other personal property that was taken or otherwise lost as a result of political persecution. This new cause of action is similar to the cause of action provided under the HEAR Act in some respects: it provides for a six-year statute of limitations of actual discovery. However, it is also different in some respects. It includes slightly different definitions of actual discovery. It also applies not just to Nazi persecution, but to any political persecution. Moreover, it specifies both that California substantive law must apply in any action brought under its provisions or under the HEAR Act, and it specifies that, where an item was taken or lost due to political persecution, clear title is not conveyed to any subsequent purchaser or owner. It prohibits any defenses relating to adverse possession, acquisitive prescription, or laches. It also specifies that an action may be brought by a claimant who, prior to its enactment, had brought a claim to recover lost or stolen property due to political persecution in which the case was dismissed based on the prohibited defenses, or on any procedural basis. In such a case, the cause of action must be brought within two years of the effective date of the final judgement or the enactment of this bill. If a claimant had actual discovery of the identity and whereabouts of the art prior to the enactment of this bill, AB 2867 also provides for an additional window of two years from the date of AB 2867’s enactment in which to file a claim under the new cause of action.
- Additional considerations
Considering the provisions of this bill apply to pending cases, this bill would likely directly affect the pending Cassirer case. Moreover, the bill explicitly rejects the Ninth Circuit’s January 2024 ruling in Cassirer, as it mandates that California substantive law always apply, and eliminates the use of a choice of laws rule entirely. Choice of laws rules exist primarily for cases in which there are parties of two jurisdictions, both of which have a claim as to why the substantive law of their jurisdiction should apply. Where the Ninth Circuit determined that Spanish substantive law apply under California’s choice of laws rule, AB 2867 would require courts to always apply California substantive law.
Additionally, in creating a new cause of action that is similar to the one created in the HEAR Act, AB 2867 raises a potential question of “foreign policy field preemption” and conflict preemption. In 2002, California enacted Code of Civil Procedure Section 354.3, which created a cause of action for recovery of art taken as a result of Nazi persecution that was substantially similar to the cause of action provided for by the HEAR Act. The cause of action under Code of Civil Procedure Section 354.3 could be brought against any museum or gallery to recover the stolen art, including museums or galleries outside the United States. However, the Ninth Circuit struck down Code of Civil Procedure Section 354.3, reasoning that the law infringed on the federal government’s exclusive power to conduct foreign affairs, even though it did not directly conflict with federal law or policy. (Von Saher v. Norton Simon Museum of Art at Pasadena (3009) 578 F.3d 1016.) Here, AB 2867 also could allow suits to be brought against foreign entities, as it does not specify such a suit would be prohibited. Thus, a Court may well find it to be prohibited under the same reasoning as Von Saher. Moreover, the provisions of AB 2867’s cause of action differ from that of the HEAR Act, such that there is an actual conflict in their provisions. Although AB 2867’s cause of action does not specifically apply to Nazi persecution, it can encompass Nazi persecution along with a variety of other instances of political persecution. Thus, if not preempted under the foreign policy field preemption doctrine, AB 2867’s provisions may be subject to conflict preemption for directly conflicting with federal law.
- Amendments
Amendments to add Legislative findings, include an urgency clause, and move the bill’s severability clause into a new section are attached at the end of this analysis.[2]
SUPPORT
Lieutenant Governor of California Eleni Kounalakis (sponsor)
30years After
Ajc San Francisco
American Jewish Committee (AJC) San Diego
American Jewish Committee - Los Angeles
Art Ashes
Democrats for Israel - CA
Democrats for Israel Los Angeles
Etta
Hadassah
Hias
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Holocaust Survivors Foundation USA
Jcrc Bay Area
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council (SACRAMENTO)
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of The Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Service of The Desert
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jewish War Veterans of The USA
Jvs Socal
Monuments Men and Women Foundation
Office of Lieutenant Governor Eleni Kounalakis
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Standwithus
OPPOSITION
None received
RELATED LEGISLATION
Pending Legislation: None known.
Prior Legislation:
AB 2765 (Assembly Committee on Judiciary, Ch. 691, Stats. 2010) authorized a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, and provided a six year statute of limitations to run after actual discover, as provided.
AB 1758 (Nakano, Ch. 332, Stats. 2002) authorized any owner, heir, or beneficiary of the owner of Holocaust-era artwork, as defined, to bring an action in superior court to recover that artwork from any museum or gallery. Provided that such a claim may not be dismissed for failing to meet an applicable statute of limitation if the action commenced on or before December 31, 2010.
PRIOR VOTES:
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 12, Noes 0)
**************
Mock-up of Proposed Amendments for AB 2867 (Gabriel)
(subject to any technical or corrective changes made by legislative counsel)
SECTION 1. The Legislature finds and declares the following:
(a) Under California law, a thief cannot convey good title to stolen works of art, and the true owner cannot be divested of ownership without actual discovery of their rights in, and the location and possessor of, the artwork.
(b) In 2010, the Legislature affirmed these principles when it rejected the holding of the Ninth Circuit Court of Appeals in Von Saher v. Norton Simon Museum (9th Cir. 2010) 592 F.3d 954, 969, that California law allowed theft victims’ claims to be defeated based on “constructive” rather than actual discovery; amended Section 338 of the Code of Civil Procedure to allow an action to recover stolen art from a museum, gallery, auctioneer, or dealer to be filed within six years of actual discovery, and specifically defined “actual discovery” to exclude “any constructive knowledge imputed by law.”
(c) The legislative history of paragraph (3) of subdivision (c) of Section 338 of the Code of Civil Procedure explained that the “imputation of ‘constructive’ discovery . . . does not lead to equitable results when works may be displayed anywhere in the world and traffickers engage in purposeful concealment;” approved judicial decisions that applied actual discovery and rejected constructive discovery in stolen property cases, such as Naftzger v. American Numismatic Soc’y, (1996) 42 Cal. App. 4th, 421; and stated that the amendments reaffirmed the State’s commitment “to the rule that a thief cannot convey good title, and that stolen art should be returned to its rightful, original owner.”
(d) In a recent Ninth Circuit decision, the court refused to credit California’s laws and interests supporting owners of stolen art, including its rejection of “constructive discovery.” The court in Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir. 2024) 89 F.4th 1226, held that California’s “governmental interests” test for choice of law required Spanish substantive law, not California law, to apply in a case by Claude Cassirer, a Holocaust survivor and long-time California resident, to recover an Impressionist masterpiece looted by the Nazis from his grandmother, and now held by a Spanish government-owned museum.
(e) The Cassirer court held under Spanish law that the museum acquired “good title” after three years of possession, even though Mr. Cassirer did not know the museum had the painting. In so doing, the court applied Spain’s law of acquisitive prescription or adverse possession, which is based on the principle of constructive notice that the California courts and Legislature have rejected.
(f) Mandating California substantive law in stolen art cases will discourage art theft and trafficking in stolen art, and will encourage integrity and diligence in the art market. Further, mandating California substantive law will draw a clear line of liability in litigation, eliminate costly defense tactics, and encourage settlements.
(g) It is the intent of the Legislature to align California law with federal laws, policies, and international agreements, which prohibit pillage and seizure of works of art and cultural property, and call for restitution of seized property.
(h) In 2016, the United States Congress cited and followed California law in enacting a national six-year statute of limitations based on actual discovery for claims for Nazi-looted art, in the Holocaust Expropriated Art Recovery (HEAR) Act. The HEAR Act’s six-year discovery rule applies “notwithstanding . . . any defense at law relating to the passage of time.” The provisions of this act mandating application of California substantive law will reinforce the HEAR Act’s preclusion of defenses at law “relating to the passage of time.”
(i) It is the intent of the Legislature that California families (or heirs of Californians) whose art was looted based on persecution, including Holocaust survivors and heirs, who did not have an opportunity to bring those claims with the certainty that California law would supply the rule of decision, to be able to do so, and that the law apply retroactively for families who would be eligible to use the new law, but for whom the six-year limitations period would have already passed, or whose prior cases were rejected based on the defenses proscribed in Section 338.2 of the Code of Civil Procedure, to be added by Section 3 of this act.
(j) The Legislature has the authority to mandate California substantive law as the rule of decision in specified matters, as indicated in California case law and Section 6(1), Restatement (Second), Conflict of Laws: “A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.” (k)
SECTION 1.
(k) This law effectuates California’s established laws and public policies against theft and trafficking in stolen property; precluding a thief from passing good title to any subsequent purchaser of stolen property; protecting the rights of true owners to recover stolen artwork and other items of cultural property; and precluding the true owners of stolen property from being divested of title without actual knowledge of their rights in and the location of the property. This law aligns California law with federal laws, federal policies, and international agreements prohibiting pillage and seizure of works of art and cultural property and calling for restitution of seized property, as embodied in the Hague Convention of 1907 (and 1899), the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the National Stolen Property Act of 1934, the Holocaust Victims Redress Act, the Holocaust Expropriated Art Recovery Act of 2016, and related federal executive branch policies and international agreements.
SEC. 2.
Section 338 of the Code of Civil Procedure is amended to read:
338.
Within three years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) (1) An action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property.
(2) The cause of action in the case of theft, as described in Section 484 of the Penal Code, of an article of historical, interpretive, scientific, or artistic significance is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or the law enforcement agency that originally investigated the theft.
(3) (A) Notwithstanding paragraphs (1) and (2), an action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or the claimant’s agent, of both of the following:
(i) The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen.
(ii) Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen.
(B) This paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including an action dismissed based on the expiration of statutes of limitations in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.
(C) For purposes of this paragraph:
(i) “Actual discovery,” notwithstanding Section 19 of the Civil Code, does not include constructive knowledge imputed by law.
(ii) “Auctioneer” means an individual who is engaged in, or who by advertising or otherwise holds the individual out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction as defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii) “Dealer” means a person who holds a valid seller’s permit and who is actively and principally engaged in, or conducting the business of, selling works of fine art.
(iv) “Duress” means a threat of force, violence, danger, or retribution against an owner of the work of fine art in question, or the owner’s family member, sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act that otherwise would not have been performed or to acquiesce to an act to which the person would otherwise not have acquiesced.
(v) “Fine art” has the same meaning as defined in paragraph (1) of subdivision (d) of Section 982 of the Civil Code.
(vi) “Museum or gallery” shall include any public or private organization or foundation operating as a museum or gallery.
(4) Section 361 shall not apply to an action brought pursuant to paragraph (3).
(5) A party in an action to which paragraph (3) applies may raise all equitable and legal affirmative defenses and doctrines, including, without limitation, laches and unclean hands.
(6) Notwithstanding any other law or prior judicial decision, in any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property as described in paragraph (2) or (3), or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), including claims for money damages, California substantive law shall apply. This paragraph shall apply to all actions pending on the date this paragraph becomes operative or that are commenced thereafter, including any action in which the judgment is not yet final or the time for filing any appeal, including a petition for a writ of certiorari in the United States Supreme Court, has not expired, or, if filed, has not been decided.
(d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
(e) An action upon a bond of a public official except any cause of action based on fraud or embezzlement is not deemed to have accrued until the discovery, by the aggrieved party or the aggrieved party’s agent, of the facts constituting the cause of action upon the bond.
(f) (1) An action against a notary public on the notary public’s bond or in the notary public’s official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved party’s agent, of the facts constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved party’s agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary public on the notary public’s bond or in the notary public’s official capacity shall be commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and Professions Code. The cause of action in that case shall not be deemed to have accrued until the discovery by the aggrieved party, the Attorney General, the district attorney, the county counsel, the city prosecutor, or the city attorney of the facts constituting grounds for commencing the action.
(i) An action commenced under the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code). The cause of action in that case shall not be deemed to have accrued until the discovery by the State Water Resources Control Board or a regional water quality control board of the facts constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section 39000) of the Health and Safety Code. These causes of action shall not be deemed to have accrued until the discovery by the State Air Resources Board or by a district, as defined in Section 39025 of the Health and Safety Code, of the facts constituting grounds for commencing the action under its jurisdiction.
(l) An action commenced under Section 1602, 1615, or 5650.1 of the Fish and Game Code. These causes of action shall not be deemed to have accrued until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.
(o) An action commenced under Section 4601.1 of the Public Resources Code, if the underlying violation is of Section 4571, 4581, or 4621 of the Public Resources Code, or of Section 1103.1 of Title 14 of the California Code of Regulations, and the underlying violation is related to the conversion of timberland to nonforestry-related agricultural uses. These causes of action shall not be deemed to have accrued until discovery by the Department of Forestry and Fire Protection.
(p) An action for civil penalties commenced under Section 26038 of the Business and Professions Code.
SEC. 3.
Section 338.2 is added to the Code of Civil Procedure, to read:
338.2.
(a) A California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, may bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
(b) Notwithstanding any other law, actions brought pursuant to this section shall be commenced within six years of the actual discovery by the claimant or the claimant’s agent, of both of the following:
(1) The identity and the whereabouts of the artwork or other personal property. Where there is a possibility of misidentification of the object in question, the identity can be satisfied by the identification of facts sufficient to determine that the artwork or other personal property is likely to be the artwork or other personal property that was unlawfully taken or stolen.
(2) Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the artwork or other personal property that was unlawfully taken or stolen.
(c) If a claimant had actual knowledge of the facts described in subdivision (b) prior to the enactment of this section, any action brought pursuant to this section shall be commenced within of six years of actual discovery or two years from the enactment of this section, whichever is later.
(d) For purposes of this section the following definitions shall apply:
(1) “Artwork or other personal property” means any of the following:
(A) Pictures, paintings, and drawings.
(B) Statuary art and sculpture.
(C) Engravings, prints lithographs, and other works of graphic art.
(D) Applied art and original artistic assemblages and montages.
(E) Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
(F) Sacred and ceremonial objects.
(G) Objects of cultural significance.
(2) “Political persecution” means persecution of a specific group of individuals based on their membership in a protected class under the state’s Unruh Civil Rights Act (Section 51 of the Civil Code).
(e) Notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) (Pub. L. No. 114-308), California substantive law shall apply.
(f) In an action brought pursuant to this section, where an item specified in subdivision (d) is taken or lost as a result of political persecution, clear title is not conveyed to any subsequent purchaser or owner. Defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches do not apply to cases brought under this section.
(g) An action may be brought by a claimant who, prior to the enactment of this section, brought a claim to recover personal property that was stolen or lost due to political persecution, and the case was dismissed by a court based on any of the defenses listed in subdivision (f), or based on any procedural basis such as standing, personal jurisdiction, or subject matter jurisdiction. Any such actions shall be commenced within two years of the effective date of this section or the entry of a final judgment and the termination of all appeals, including any petition for a writ of certiorari, whichever is later.
(h) A prevailing plaintiff shall be entitled to reasonable attorney’s costs and fees.
(i)SEC. 4. The provisions of this section Act are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that California law is applied as specified herein in any pending or future cases brought by California residents, it is necessary that this act take effect immediately.
ASSEMBLY THIRD READING
ATR Bill Id:AB 2867
Author:(Gabriel and Bryan)
As Amended Ver:April 25, 2024
Majority vote
SUMMARY
Provides that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, as specified, and creates a new cause of action for damages or recovery of artwork or other personal property that was stolen or lost as the result of political persecution.
Major Provisions
- Declares that this bill effectuates California's established laws and public policies against theft and trafficking in stolen property and protecting the rights of true owners to recover stolen artwork and other items of cultural property. Declares further that this bill aligns California law with specified federal laws and international agreements.
- Provides, notwithstanding any other law or prior judicial decision, that any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property, including personal property covered by the Holocaust Expropriated Art Recovery Act, that California substantive law shall apply.
- Specifies that 2), above, shall apply to all actions pending on the date the bill's provisions become operative or that are commenced thereafter, including any action in which judgment is not yet final or the time for filing an appeal has not expired, or, if filed, has not been decided.
- Permits a California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, to bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
- Provides, notwithstanding any other law, that actions brought pursuant to 4) above shall be commenced within six years of the plaintiff's actual discovery of both (a) the identity and the whereabouts of the artwork or other personal property; and (b) facts sufficient to indicate that the claimant has a possessory interest in the artwork or other personal property.
- Defines "artwork or other personal" property to include the following: pictures, paintings, and drawings; statuary art and sculpture; engravings, prints lithographs, and other works of graphic art; applied art and original artistic assemblages and montages; books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums; sacred and ceremonial objects; objects of cultural significance.
- Defines "political persecution" to mean persecution of a specific group of individuals based on their membership in a protected class under the state's Unruh Civil Rights Act.
- Provides that notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016, California substantive law shall apply.
- Provides that in an action brought pursuant to 4) above defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches shall not apply.
COMMENTS
This bill makes two changes to California law relating to the recovery of stolen art. First, it requires a court to apply California substantive law in an action brought by a California resident to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including in an action brought under the federal Holocaust Expropriated Art Recovery (HEAR) Act. This part of the bill would only matter where the court confronts a "choice of law" question, as explained in the analysis. Second, this bill creates a new cause of action that allows any California resident to seek damages or to recover artwork or personal property that was stolen or lost as the result of "political persecution." The bill permits such actions to be brought within six years of the discovery of relevant facts. Although the bill speaks in general terms of "political persecution," the author and supporters are primarily concerned about art stolen by the Nazis during World War II, as the reference to the HEAR Act indicates.
The case for extended statutes of limitations for stolen art. Most stolen art cases involve a conflict between two innocent parties: a victim of art theft and a good faith purchaser who did not know that they were buying a stolen good. Existing law generally favors the theft victim, because it is a basic principle of property law that possessors of property cannot pass better title than they possess. Accordingly the good faith purchaser cannot acquire or subsequently transfer any title. While this general rule favors the original owner over subsequent good faith purchasers, the law nonetheless recognizes the potential inequity to the good faith purchaser and requires the original owner to bring any action for recovery in a reasonable period of time prescribed by a statute of limitations (SOL). However, especially in cases of stolen art, the theft victim may not learn of the whereabouts of the work until long after the SOL has expired. In an effort to balance the competing equities, most states – either by statute or case law, or some combination thereof – have adopted a "discovery" rule. That is, the SOL does not begin to run until the theft victim discovers the whereabouts of the work and identifies its present possessor.
California first adopted an express discovery rule in 1983. In 2010, AB 2765 (Chapter 691, Statutes of 2010) clarified that California has adopted an "actual" discovery. Under an "actual" discovery rule, the SOL does not start running until the plaintiff discovers the whereabouts of the stolen object and the identity of its present possessor. "Actual" discovery stands in contrast to "constructive" discovery, which is imputed as a matter of law if the person through reasonable diligence should have discovered the relevant facts. For recovery of most kinds of personal property, the appropriate standard is "constructive" discovery, for it prevents claimants from "sitting on their rights." However, stolen art is not like other kinds of property, especially given that such thefts are followed by deliberate efforts to conceal the work and its provenance. AB 2765 also increased the SOL for such actions from three to six years after actual discovery.
Holocaust Expropriated Art Recovery Act (HEAR) Act of 2016. In 2016 a Republican Congress passed, and Democratic President Obama signed, the HEAR Act, which followed California's six-year SOL and "actual" discovery. The primary purpose of the HEAR Act was "to ensure that artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitation but are resolved in a just and fair manner." (Public Law 114-308, SEC. 3.) The HEAR Act provided that notwithstanding any other federal or state law an action to recover artwork or other property that was lost because of Nazi persecution between 1933 and 1945 may be commenced not later than six years after the actual discovery by 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. SEC. 5 (a).) The HEAR Act, which will sunset on January 1, 2027, applies to any civil action pending in any court, federal or state, and any act filed during the period beginning from the date of enactment and ending on December 31, 2026.
The need for the present bill. According the author, the need for this bill is illustrated by the on-going case involving Claude Cassirer, a Holocaust survivor, and the grandson of Paul Cassirer, the original owner of the painting, Rue Saint Honore, by the Impressionist painter, Camille Pissarro. After the painting was taken from Cassirer's family as they fled the Nazi regime in 1939, the painting traveled from Germany to California, St. Louis, Missouri, New York, and Switzerland before ending up in the Thyssen-Bornemisza Collection Foundation, a museum owned by the Spanish government. Although the case has a long and complicated legal history – and is apparently still active – it reached the United States Supreme Court in 2022 and was remanded to the Ninth Circuit Court of Appeal. At issue in both courts was a "choice of law" question; that is, whether the court should apply the substantive law of Spain or the substantive law of California. The U.S. Supreme Court held that in a case raising non-federal claims, the Ninth Circuit should have applied California's choice of law rules and remanded the case to the Ninth Circuit to determine which substantive law should apply under California's choice of law rules. (Cassirer v. Thyssen-Bornemisza Collection Foundation (2022) 596 U.S. 107.)
California courts use the "government interest" choice of law test, which effectively asks which government has the greatest stake in having its laws apply. When the Ninth Circuit applied California's choice of law rules it concluded that they favored the application of Spain's substantive law. And under Spanish property law, the museum had acquired the painting by prescription. (Cassirer v. Thyssen-Bornemisza, U.S. Court of Appeals for the 9th Circuit, No. 19-55616, D.C. No. 2:05-cv-03459-JFW-E, filed January 9, 2024, slip opinion, at pp. 17-22, 38.)
Avoiding the "Choice of Law" problem. This bill was introduced in response to the Ninth Circuit opinion. First, this bill attempts to circumvent the "choice of law" question by simply asserting that in any case for recovery of fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the HEAR Act and brought by a California resident, then California substantive law shall apply. In other words a court, whether federal or state, would not conduct a choice of law analysis and would instead simply apply California substantive law, no matter the claims of the other jurisdiction. In theory, there is nothing that would necessarily prevent a state from making this assertion, though it is unclear if a court would interpret this as requiring it to forgo its own developed choice of law rules and simply apply California law.
Creating a new cause of action. This bill also creates a new cause of action that authorizes a California resident, or their heir or representative, to bring an action for damages or recovery of artwork lost as a result of political persecution. The new cause of action establishes an SOL of six years from actual discovery. In addition, the bill contains two provisions that go beyond both state law and the HEAR Act. First, bill would require a court to apply California substantive law, thus eliminating any choice of law analysis. Second, the bill would bar many common defenses, including good faith or bona fide purchaser, laches, or acquisition of property by adverse possession or prescription.
Potential federal preemption issue. California's first effort to expand the statute of limitation for actions to recover Nazi-looted art created Code Civil Procedure Section 354.3 in 2002. However, in 2009 the Ninth Circuit struck down Section 354.3, reasoning that by singling out art stolen by a foreign regime the statute was preempted under the "foreign policy field preemption" doctrine. (Marie von Saher v. Norton Simon Museum (2009) 578 F.3d 1016.) To be sure, this bill does not solely apply to art stolen by the Nazi regime, but rather to any artwork or other property stolen or lost as a result of political persecution. However, the bill expressly references the HEAR Act and includes cases covered by the HEAR Act. One could also argue, as the author suggests in the background material, that von Saher was decided before the HEAR Act, and that the purpose of the HEAR Act was to facilitate the recovery of stolen artwork. However, this bill goes beyond the federal law in important ways. The HEAR Act, for example, does not bar common defenses, nor does it say that when a choice of law question emerges that the court must apply the substantive law of the plaintiff's home state. This is not to say that a court will find that the bill is preempted, but only that the bill certainly raises a preemption issue.
According to the Author
According to the author, this bill will "ensure that Holocaust survivors and other victims of persecution can secure justice through our legal system and recover property that rightfully belongs to them and their families. Our effort will make it crystal clear that California law must triumph over foreign law, that California stands with Holocaust survivors, and that cases must be decided based on morality and justice, not the misapplication of legal technicalities."
Arguments in Support
Lieutenant Governor Eleni Kounalakis, the sponsor, supports this bill because:
California has long provided strong protections for art theft victims. However, a recent ruling by the U.S. Ninth Circuit Court of Appeals brought to light an issue with existing law. The ruling involved the Cassirer family and their effort to reclaim a masterpiece by the famous impressionist Camille Pissarro that was looted by the Nazis as the family fled from Nazi Germany, and later purchased by a Spanish museum. The Ninth Circuit found that Spanish law should apply in this case and minimized California's substantial interest in helping return stolen property to the rightful owners, effectively allowing a Spanish museum to retain ownership of the stolen painting. AB 2867 would address this recent and future potential injustices by requiring courts to properly weigh the applicability of California law in lawsuits involving the theft of art or other personal property looted during the Holocaust or other acts of persecution.
Arguments in Opposition
No opposition on file.
FISCAL COMMENTS
None.
VOTES
ASM JUDICIARY: 12-0-0
YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Essayli, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez
UPDATED
VERSION: April 25, 2024
CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0002819
Date of Hearing: April 30, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
ABPCA Bill Id:AB 2867
Author:(Gabriel) – As Amended Ver:April 25, 2024
SUBJECT: Recovery of artwork and personal property lost due to persecution
KEY ISSUES:
- should california substantive law apply in actions to recover fine art, or an item of historical, interpretive, scientific, or artistic significance, that was stolen or lost because of political perseCution?
- Should a california resident have a cause of action for damages or recovery of artwork or other property that was stolen or lost as the result of political persecution, provided the action is brought within six years of discovery of the relevant facts?
SYNOPSIS
Existing law provides that the statute of limitations (SOL) for an action to recover a stolen article of historical, interpretive, scientific, cultural, or artistic significance is not triggered until the discovery of the whereabouts of the article by the aggrieved party. Existing law requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of stolen works of art to be commenced within six years of the time that the plaintiff actually discovers the whereabouts of the work of art and other relevant facts. Existing federal law, the Holocaust Expropriated Art Recovery (HEAR) Act of 2016, establishes a six-year SOL for claims to recover artwork and other property stolen or misappropriated by the Nazis between 1933 and 1945. As with California law, the federal SOL begins to run upon “actual” discovery, as opposed to a “constructive” discovery imposed by law.
This bill makes two changes to the existing law relating to the recovery of stolen art. First, it provides that, California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including in an action brought under the federal HEAR Act by a California resident. This part of the bill would only matter where the court confronts a “choice of law” question, as explained in the analysis. Second, this bill creates a new cause of action that would allow any California resident to seek damages or to recover artwork or personal property that was stolen or lost as the result of “political persecution.” The bill would permit such actions to be brought within six years of the discovery of relevant facts. Although the bill speaks in general terms of “political persecution,” the author and supporters are primarily concerned about art stolen by the Nazis during World War II, as the reference to the HEAR Act indicates. This bill is supported by several Jewish-American organizations from throughout the state. There is no registered opposition to this bill.
SUMMARY: Provides that California substantive law shall apply in actions to recover fine art or an item of historical, interpretive, scientific, or artistic significance, as specified, and creates a new cause of action for damages or recovery of artwork or other personal property that was stolen or lost as the result of political persecution. Specifically, this bill:
- Declares that this bill effectuates California’s established laws and public policies against theft and trafficking in stolen property and protecting the rights of true owners to recover stolen artwork and other items of cultural property. Declares further that this bill aligns California law with specified federal laws and international agreements.
- Provides, notwithstanding any other law or prior judicial decision, that any action brought by a California resident, or by an heir, trustee, assignee, or representative of the estate of a California resident, involving claims relating to title, ownership, or recovery of personal property, including personal property covered by the Holocaust Expropriated Art Recovery Act, that California substantive law shall apply.
- Specifies that 2) above shall apply to all actions pending on the date the bill’s provisions become operative or that are commenced thereafter, including any action in which judgment is not yet final or the time for filing an appeal has not expired, or, if filed, has not been decided.
- Permits a California resident, or an heir, trustee, assignee, or representative of the estate of a California resident, to bring an action for damages, other financial recovery, title, recovery, or ownership, of artwork or other personal property that was taken or otherwise lost as a result of political persecution.
- Provides, notwithstanding any other law, that actions brought pursuant 4) above shall be commenced within six years of the plaintiff’s actual discovery of both (a) the identity and the whereabouts of the artwork or other personal property; and (b) facts sufficient to indicate that the claimant has a possessory interest in the artwork or other personal property.
- Defines “artwork or other personal” property to include the following:
- Pictures, paintings, and drawings.
- Statuary art and sculpture.
- Engravings, prints lithographs, and other works of graphic art.
- Applied art and original artistic assemblages and montages.
- Books, archives, musical instruments, musical objects, and manuscripts, including musical manuscripts and sheets, and sound, photographic, and cinematographic archives and mediums.
- Sacred and ceremonial objects.
- Objects of cultural significance.
- Defines “political persecution” to mean persecution of a specific group of individuals based on their membership in a protected class under the state’s Unruh Civil Rights Act.
- Provides that notwithstanding any other provision of law or prior judicial decision, in any action brought pursuant to this section or in the Holocaust Expropriated Art Recovery Act of 2016, California substantive law shall apply.
- Provides that in an action brought pursuant to 4) above defenses that the defendant acquired the title in good faith, by acquisitive prescription, or by adverse possession, and the defense of laches shall not apply.
EXISTING LAW:
- Provides that in the case of a theft of any article of historical, interpretive, scientific, cultural, or artistic significance, a cause of action is not deemed to have accrued until the discovery of the whereabouts of the article by the aggrieved party, the aggrieved party’s agent, or a law enforcement agency. (Code of Civil Procedure Section 338 (c)(2). Subsequent section numbers refer to this code unless otherwise indicated.)
- Requires a civil action against a museum, gallery, auctioneer, or dealer for the recovery of works of fine art that were unlawfully taken or stolen, including a taking or theft by means of fraud or duress, to be commenced within six years of the actual discovery by the claimant or their agent of the identity and whereabouts of the work of fine art and information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art. (Section 338 (c)(3)(A).)
- Specifies for purposes of 2) above that “actual discovery” does not include constructive knowledge imputed by law. (Section 338 (c)(3)(C).)
- Specifies for purposes of 2) above that a party in an action may raise all equitable and legal affirmative defenses and doctrines, including, without limitations, laches and unclean hands. (Section 338 (c)(5).)
- Provides under the federal Holocaust Expropriated Art Recovery Act of 2016 that a civil claim or cause of action against a defendant to recover any artwork or other property that was misappropriated by Germany’s Nazi Government between 1933 and 1945 may be commenced not later than six years after the claimant’s actual discovery of (a) the identity and location of the artwork or other property and (b) a possessory interest of the claimant in the artwork or the property. (Public Law No. 114-308.)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: According to the author, this bill will “ensure that Holocaust survivors and other victims of persecution can secure justice through our legal system and recover property that rightfully belongs to them and their families. Our effort will make it crystal clear that California law must triumph over foreign law, that California stands with Holocaust survivors, and that cases must be decided based on morality and justice, not the misapplication of legal technicalities.”
This bill makes two changes to California law relating to the recovery of stolen art. First, it requires a court to apply California substantive law in an action brought by a California resident to recover fine art or an item of historical, interpretive, scientific, or artistic significance, including in an action brought under the federal HEAR Act. This part of the bill would only matter where the court confronts a “choice of law” question, as explained in the analysis. Second, this bill creates a new cause of action that would allow any California resident to seek damages or to recover artwork or personal property that was stolen or lost as the result of “political persecution.” The bill would permit such actions to be brought within six years of the discovery of relevant facts. Although the bill speaks in general terms of “political persecution,” the author and supporters are primarily concerned about art stolen by the Nazis during World War II, as the reference to the HEAR Act indicates.
War, Political Persecution, and Art Theft. According to the Congressional findings that accompanied the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 (Public Law 114-308), it is estimated that the Nazis stole or fraudulently appropriated hundreds of thousands of works of art throughout Europe. As the Nazi’s art theft campaign was part and parcel of its larger genocidal campaign, European Jews were disproportionately victimized by Nazi looting. Following World War II, the Western allies collectively committed to returning the artworks to the country of origin and, eventually, to their rightful owners. Despite the creation of international agreements to pursue these ends, the Congressional findings concluded that “many works were never reunited with their owners.” Those unreturned art apparently circulated underground for several years before appearing in museums around the world. After the breakup of the Soviet Union in the late 1980s and early 1990s, and the corresponding opening up of archives in East Germany and Eastern Europe, it became possible (although not easy) to trace the history and movement of these works. Of course, by the time it became possible for victims of Nazi art theft to identify the location of these works, and to prove their title, statutes of limitation (SOL) had long since expired, and the works themselves were by this time in the hands of bona fide purchasers who may not have known that the works had ever been stolen. The peculiar facts of war and postwar crisis, political persecution, and the massive scale of theft called for a reconsideration of the usual rules that governed conflicts between victims of theft and bona fide purchasers.
In an effort to address these issues, in 1998 the United States and 43 other countries attended the “Washington Conference” which produced the “Principles on Nazi-Confiscated Art.” One of these principles was that “steps should be taken expeditiously to achieve a just and fair solution” for any art that had not yet been returned to owners or their heirs, assuming they could be identified. In 1998 Congress also enacted the Holocaust Victims Redress Act (Public Law 105-158) which declared that “all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.” By the time that the U.S. participated in the Holocaust Era Assets Conference in Prague in 2009, victims of Nazi art theft and their heirs in the United States had begun to take legal action to recover the art, assuming they could overcome SOL hurdles and have their cases heard on the merits. [The above summary is based on the “Findings” in the HEAR Act, Public Law 114-208, SEC. 2, para. 1-5; and “Note: Holocaust Expropriated Art Recovery (HEAR) Act of 2016: A Federal Reform to State Statutes of Limitation for Art Restitution Claims,” 56 Columbia Journal of Transnational Law 593 (2018.)]
California’s contribution: “Actual” Discovery. Most stolen art cases involve a conflict between two innocent parties: a victim of art theft and a good faith purchaser who did not know that they were buying a stolen good. However, in such situations, the law generally favors the theft victim, because it is a basic principle of property law that possessors of property cannot pass better title than they possess. Therefore, when the thief sells the object, even to an innocent purchaser, the thief cannot transfer good title to the property. Accordingly the good faith purchaser cannot transfer any title to a subsequent purchaser, and so on down the line. While this general rule favors the original owner over subsequent good faith purchasers, the law nonetheless recognizes the potential inequity to the good faith purchaser and requires the original owner to bring any action for recovery in a reasonable period of time prescribed by a SOL. However, especially in cases of stolen art, the theft victim may not learn of the whereabouts of the work until long after the SOL has expired. In such cases, a strict adherence to the SOL seems unfair to the theft victim. In an effort to balance the competing equities, most states – either by statute or case law, or some combination thereof – have adopted a “discovery” rule. That is, the SOL does not begin to run until the theft victim discovers the whereabouts of the work and identifies its present possessor.
California, like many other states, adopted an express discovery rule in 1983, largely in response to the important ruling of O'Keeffe v. Snyder (1980) 416 A.2d 862, decided by the New Jersey Supreme Court. In that case, the artist Georgia O'Keeffe first brought an action in replevin in 1976 to recover three of her paintings that had been stolen from a gallery in 1946. By the time that O'Keeffe discovered the whereabouts of the paintings, they were in the hands of the defendant Snyder, who by all accounts was a bona fide purchaser who did not know that the paintings were stolen. The trial court dismissed O'Keeffe's complaint, claiming that New Jersey's six-year SOL had expired. An intermediate appellate court then ruled in O'Keeffe's favor, but it limited its ruling to the defendant's related "adverse possession" claim. The New Jersey Supreme Court, however, returned to the question of the proper trigger for the SOL. The Court overruled the trial court's finding that the SOL expired six years after the theft of the paintings, and instead concluded that "O'Keeffe's cause of action accrued when she first knew, or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor of the paintings." (416 A.2d at 870.) The Court concluded that the SOL did not begin to run at the time of theft, or even when the paintings were first publicly displayed; it began to run when O'Keeffe knew the identity of the present possessor.
In the wake of the O'Keeffe ruling a number of states, including California, amended their replevin or other recovery statutes to create an express discovery rule in stolen art cases. California passed its bill in 1982, and the statute became effective in 1983. Prior to 1983, Code of Civil Procedure Section 338(c) created a three-year SOL for an action to recover personal property that had been wrongfully taken. The original statute was silent as to whether the SOL would begin to run at the wrongful taking or at discovery, and it did not distinguish works of art from any other form of personal property. The 1983 law, however, created a special category for a work of "art or artifact" and expressly provided that an action for specific recovery did not accrue until "discovery of the whereabouts" of the "art or artifact." (In 1989, the phrase "art or artifact" was changed to read "article of historical, interpretive, scientific, or artistic significance.")
One of the first cases to directly consider the scope of the 1983 amendment was Naftzger v. American Numismatic Society (1996) 42 Cal. App. 4th 421. Naftzger involved an effort to recover coins that had been stolen from the plaintiff museum around 1970, though the museum did not discover the whereabouts of the coins and their present possessor (a bona fide purchaser) until 1993. The museum attempted to recover under California’s 1983 statute but the trial court dismissed the action on SOL grounds, arguing that the "discovery" rule adopted in 1983 did not apply to works stolen prior to that date, since the SOL would have long since expired before the statute was adopted. The Court of Appeal overturned the trial court and held that the discovery rule applied to works stolen before 1983 because the older statute contained an implicit discovery rule. The Court reasonably assumed that when the Legislature enacted the discovery rule in 1983 it was not creating a "new" discovery rule; rather, the Court reasoned that there must have been an implicit discovery rule in the older statute, since one cannot possibly bring an action in specific recovery unless one can identify the whereabouts of the object and identify its possessor. In 1983 the Legislature was simply making the implicit rule express in order to avoid confusion.
About six weeks after the Naftzger ruling, the Third Appellate District Court of Appeal issued a contrary ruling in Society of California Pioneers v. Baker (1996) 43 Cal. App. 774. In a case involving the theft of an engraved cane handle from a history museum, the Third District appellate court held that the 1983 statute would not apply if the older SOL had already expired by 1983. Thus the Third District expressly rejected the Naftzger holding that the 1983 discovery rule applies to pre-1983 thefts.
No subsequent California case has reconciled the contrary holdings of Naftzger and Society of California of Pioneers. However, in Marie von Saher v. Norton Simon Museum (2009) 578 F.3d 1016, the Ninth Circuit Court of Appeal raised the conflict without resolving it. The von Saher decision did not deal directly with the discovery provision; instead, von Saher was brought under Civil Code of Procedure 354.3, a 2002 statute that purported to extend the SOL for art stolen by Nazis during World War II. The Ninth Circuit struck down Section 354.3 on federal preemption grounds, reasoning that by singling out art stolen by a foreign regime, the statute was preempted under the "foreign policy field preemption" doctrine. The Court noted in dictum that von Saher’s action could have been brought under Code of Civil Procedure 338, which, we have seen, had been amended in 1983 to include a “discovery” rule. However, the Ninth Circuit also noted the uncertain state of this statute given the conflicting California opinions in Naftzger and Society of California Pioneers. The Court seemed to invite the Legislature to clarify the statute.
This Committee’s contribution. AB 2765 (Committee on Judiciary, Chap. 691, Stats. 2010) resolved the conflict between Naftzger and Society of California Pioneers by clarifying that the discovery rule applies to works stolen before 1983. In addition, AB 2765 clarified that California has adopted an “actual” discovery, another issue raised in Naftzger. The question was whether the Legislature adopted an "actual" or a "constructive" discovery rule. Under an "actual" discovery rule, the SOL does not start running until the plaintiff discovers the whereabouts of the stolen object and the identity of its present possessor. "Constructive" discovery – like "constructive knowledge" in other areas of law – is imputed as a matter of law if the person through reasonable diligence should have discovered the relevant facts. For recovery of most kinds of personal property, the appropriate standard is "constructive" discovery, for it prevents claimants from “sitting on their rights.” However several leading cases, in California and elsewhere, have concluded that stolen art is not like other kinds of property, especially given that such thefts are followed by deliberate efforts to conceal the work and its provenance. (Naftzger, supra at 432-434.) Therefore, AB 2765 also clarified that California had adopted an “actual” discovery rule in actions to recover a stolen article of historical, interpretive, scientific, cultural, or artistic significance. Finally, AB 2765 increased the SOL for such actions from three to six years, which seemed more consistent with other states and more reasonable given the inherent difficulty in establishing provenance of works of art.
Holocaust Expropriated Art Recovery Act (HEAR) Act of 2016. In 2016 a Republican Congress passed, and Democratic President Obama signed, the HEAR Act, which followed California’s six-year SOL and “actual” discovery. The two primary purposes of the HEAR Act were (1) to ensure that laws governing claims to Nazi-confiscated art were consistent with the principles set forth in the Washington Conference and other agreements, and (2) “to ensure that artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitation but are resolved in a just and fair manner.” (Public Law 114-308, SEC. 3.) The HEAR Act provided that notwithstanding any other federal or state law an action to recover artwork or other property that was lost because of Nazi persecution between 1933 and 1945 may be commenced not later than six years after the actual discovery by 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. SEC. 5 (a).) The HEAR Act, which will sunset on January 1, 2027, applies to any civil action pending in any court, federal or state, and any act filed during the period beginning from the date of enactment and ending on December 31, 2026.
The need for the present bill. According the author, the need for this bill is illustrated by the on-going case involving Claude Cassirer, a Holocaust survivor, and the grandson of Paul Cassirer, the original owner of the painting, Rue Saint Honore, by the Impressionist painter, Camille Pissarro. After the painting was taken from Cassirer’s family as they fled the Nazi regime in 1939, the painting traveled from Germany to California, St. Louis, Missouri, New York, and Switzerland before ending up in the Thyssen-Bornemisza Collection Foundation, a museum owned by the Spanish government. Although the case has a long and complicated legal history – and is apparently still active – it reached the United States Supreme Court in 2022 and was remanded to the Ninth Circuit Court of Appeal. At issue in both courts was a “choice of law” question; that is, whether the court should apply the substantive law of Spain or the substantive law of California. The plaintiffs urged the use of California’s “choice of law” rules to determine which substantive law should apply; the defendant, the Spanish museum, argued for the application of “federal common law” rules. The Ninth Circuit, in its first decision on the issue, sided with the defendant and applied federal common law. The U.S. Supreme Court, however, held that in a case raising non-federal claims, the Ninth Circuit should have applied California’s choice of law rules. It is important to note that the U.S. Supreme Court did not say that California substantive law should apply; it said the California’s “choice of law rules” should apply. Choice of law rules decide which substantive law should apply when more than one jurisdiction has a stake in the outcome. The U.S. Supreme Court remanded the case to the Ninth Circuit to determine which substantive law should apply under California’s choice of law rules. (Cassirer v. Thyssen-Bornemisza Collection Foundation (2022) 596 U.S. 107.)
California courts use the “government interest” choice of law test, which effectively asks which government has the greatest stake in having its laws apply. When the Ninth Circuit applied California’s choice of law rules it concluded that they favored the application of Spain’s substantive law. Spanish property law tended to favor bona fide purchasers and those who acquired title through “adverse possession” (the doctrine that title to property passes to the adverse possessor if the rightful owner does not take timely action to recover.) California, on the other hand, tended to favor the victims of theft. Spanish and California law clearly differed, so the Ninth Circuit applied California’s choice of law test and concluded that Spain’s government interests would be more impaired by the application of California law than would California’s interests be impaired by the application of Spanish law. And under Spanish property law, the museum had acquired the painting by prescription. (Cassirer v. Thyssen-Bornemisza, U.S. Court of Appeals for the 9th Circuit, No. 19-55616, D.C. No. 2:05-cv-03459-JFW-E, filed January 9, 2024, slip opinion, at pp. 17-22, 38.)
Avoiding the “Choice of Law” problem. This bill was introduced in response to the Ninth Circuit opinion. First, this bill attempts to circumvent the “choice of law” question by simply asserting that in any case for recovery of fine art or an item of historical, interpretive, scientific, or artistic significance, including those covered by the HEAR Act and brought by a California resident, then California substantive law shall apply. In other words a court, whether federal or state, would not conduct a choice of law analysis and would instead simply apply California substantive law, no matter the claims of the other jurisdiction. In theory, there is nothing that would necessarily prevent a state from making this assertion, though it is unclear if a court would interpret this as requiring it to forgo its own developed choice of law rules and simply apply California law. What would happen, for example, if a California resident sought to recover artwork from a New York resident in federal court, and New York had enacted a law claiming that in cases involving the recovery of artwork New York substantive law should apply? Which law would a federal court apply? Perhaps if there were competing laws the court would need to revert to its choice of law rules. It is also possible that a court could find that a statute asserting that its own state’s substantive law must be the applicable law violates the principle of separation of powers, overriding the court’s long-standing rules for settling conflict of laws issues.
Creating a new cause of action. This bill would also create a new cause of action that authorizes a California resident, or an heir or representative of the resident’s estate, to bring an action for damages or recovery of artwork or other property taken or lost as a result of political persecution. As with both Section 338, as amended by AB 2765, and the federal HEAR Act, the bill establishes an SOL of six years from actual discovery. However, this bill also goes substantially beyond both existing California law and the federal HEAR Act. First, the new cause of action also contains the provision that the court must apply California substantive law, again eliminating any choice of law test if the case involves more than one jurisdiction. Second, the bill states that in any case involving artwork or property taken or lost as a result of political persecution, the defendant would be barred from using the use of many common defenses, including good faith or bona fide purchaser, laches, or acquisition of property by adverse possession or prescription. Existing California law expressly asserts that such defenses are allowed. Whether a court would see this as a reasonable effort to obtain justice for particularly egregious thefts, or a denial of due process to a bona fide purchaser remains to be seen.
Issues (and unintended consequences) that the author may wish to consider if the bill moves out of this Committee. As the author writes in support of the bill, “California stands with Holocaust survivors, and that cases must be decided based on morality and justice, not the misapplication of legal technicalities.” Which “technicalities” have been misapplied is not entirely clear, though the author is apparently referring to the Ninth Circuit’s conclusion that California’s “choice of law” rules required the application of Spanish law. Conflict of laws, especially in cases where two jurisdictions have a colorable claim that its substantive law should apply, is a complex area of law, not “legal technicalities.” Indeed, the right result is not always obvious to the litigants. After all, in the first hearing before the Ninth Circuit it was the plaintiff who argued that California choice of law rules should determine which substantive law should apply, while the defendant urged the use of federal common law rules.
The author’s seems to assume that California substantive law will always favor the claimants. Certainly California law favored claimants more than Spanish law did on the particular legal issue before the court. However, there are two things worth considering. First, not all future litigants will find themselves in a conflict with persons or entities from Spain. The competing jurisdiction may be another country or another state, and their laws may be more favorable to plaintiffs than California law. Second, not only do we not know what jurisdiction will be involved in the next case, we cannot know what particular point of law will be before the court. California may have a more appealing substantive law on that matter, or it may not. If the bill moves out of this Committee, the author may wish to think of other ways to handle choice of law issues, perhaps by allowing the plaintiff to choose which substantive law applies. This will address the issues raised above – as to whether courts would defer to the statute – but if the author’s aim to ensure substantive law most favorable to the plaintiff, this might be a more effective way to accomplish it.
Potential federal preemption issue. Finally, California’s first effort to expand the statute of limitation for actions to recover Nazi-looted art created Code Civil Procedure Section 354.3 in 2002. However, as discussed above, in 2009 the Ninth Circuit struck down Section 354.3 on federal preemption grounds, reasoning that by singling out art stolen by a foreign regime, the statute was preempted under the "foreign policy field preemption" doctrine. (Marie von Saher v. Norton Simon Museum (2009) 578 F.3d 1016.) To be sure, this bill does not solely apply to art stolen by the Nazi regime, but rather to any artwork or other property stolen or lost as a result of political persecution. However, the bill also expressly references the HEAR Act and, more significant, includes cases covered by the HEAR Act, which is restricted to art stolen by the Nazis between 1933 and 1945. One could also argue, as the author suggests in the background material, that von Saher was decided before the HEAR Act, and that the purpose of the HEAR Act was to facilitate the recovery of stolen artwork. This is a compelling argument in many ways, though it should be noted that under “field preemption” it does not matter whether or not a state law does not conflict, or is even fully consistent, with federal law. The von Saher case was based on “field preemption” not “conflict preemption.”
In addition, while this bill is largely consistent with the HEAR Act, it also goes beyond it important ways. The HEAR Act, for example, did not bar common defenses, nor does it say that when a choice of law question emerges that the court must apply the substantive law of the plaintiff’s home state. This is not to say that a court will find that the bill is preempted, but only that the bill certainly raises a preemption issue.
ARGUMENTS IN SUPPORT: Lieutenant Governor Eleni Kounalakis, the sponsor, supports this bill because:
California has long provided strong protections for art theft victims. However, a recent ruling by the U.S. Ninth Circuit Court of Appeals brought to light an issue with existing law. The ruling involved the Cassirer family and their effort to reclaim a masterpiece by the famous impressionist Camille Pissarro that was looted by the Nazis as the family fled from Nazi Germany, and later purchased by a Spanish museum. The Ninth Circuit found that Spanish law should apply in this case and minimized California’s substantial interest in helping return stolen property to the rightful owners, effectively allowing a Spanish museum to retain ownership of the stolen painting. AB 2867 would address this recent and future potential injustices by requiring courts to properly weigh the applicability of California law in lawsuits involving the theft of art or other personal property looted during the Holocaust or other acts of persecution.
REGISTERED SUPPORT / OPPOSITION:
Support
Office of Lieutenant Governor Eleni Kounalakis (sponsor)
30years After
American Jewish Committee San Francisco
American Jewish Committee San Diego
American Jewish Committee Los Angeles
ART ASHES
Democrats for Israel - CA
Democrats for Israel Los Angeles
ETTA
Hadassah
HIAS
Hillel of San Diego
Hillel of Silicon Valley
Holocaust Museum LA
Holocaust Survivors Foundation USA
JCRC Bay Area
Jewish Big Brothers Big Sisters of Los Angeles
Jewish Center for Justice
Jewish Community Federation and Endowment Fund
Jewish Community Relations Council, Sacramento
Jewish Community Relations Council, Santa Barbara
Jewish Democratic Club of Marin
Jewish Democratic Club of Solano County
Jewish Democratic Coalition of the Bay Area
Jewish Democrats of San Diego County
Jewish Family & Community Services East Bay
Jewish Family and Children's Service of Long Beach and Orange County
Jewish Family and Children's Services of San Francisco, the Peninsula, Marin and Sonoma Counties
Jewish Family Service of Los Angeles
Jewish Family Service of San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Los Angeles, the
Jewish Federation of Greater Santa Barbara
Jewish Federation of the Greater San Gabriel and Pomona Valleys
Jewish Federation of the Sacramento Region
Jewish Free Loan Association
Jewish Long Beach
Jewish Public Affairs Committee
Jewish Silicon Valley
Jewish War Veterans of the USA
JVS SoCal
Monuments Men and Women Foundation
Progressive Zionists of California
Raoul Wallenberg Jewish Democratic Club
Stand With Us
Opposition
None on file
Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334
Discussed in Hearing
2MIN
Assembly Floor
5MIN
Senate Floor
1MIN
Assembly Floor
6MIN
