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Cassirer v. Thyssen-Bornemisza Collection Foundation

United States Court of Appeals, Ninth Circuit

December 9, 2013

David CASSIRER; Ava Cassirer; United Jewish Federation of San Diego County, a California nonprofit corporation, Plaintiffs-Appellants,
v.
THYSSEN-BORNEMISZA COLLECTION FOUNDATION, Defendant-Appellee.

Argued and Submitted Aug. 22, 2013.

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[Copyrighted Material Omitted]

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Stuart R. Dunwoody (argued), Victor A. Kovner, and Catherine E. Maxson, Davis Wright Tremaine LLP, Seattle, WA, for Plaintiffs-Appellants.

Thaddeus J. Stauber (argued), Sarah E. André, and Michael O. Azat, Nixon Peabody LLP, Los Angeles, CA, for Defendant-Appellee.

Kamala D. Harris, Attorney General of California, Susan Duncan Lee, Acting Solicitor General, Mark Breckler, Chief Assistant Attorney General, Angela Sierra, Acting Senior Assistant Attorney General, Antonette Benita Cordero and Catherine Z. Ysrael, Deputy Attorneys General, Los Angeles, CA, for Amicus Curiae State of California.

Luis Li, Eric Tuttle, and Amelia L.B. Sargent, Munger Tolles & Olson LLP, Los Angeles, CA, for Amici Curiae California Association of Museums.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:05-cv-03459-GAF-E.

Before: HARRY PREGERSON, DOROTHY W. NELSON, and KIM McLANE WARDLAW, Circuit Judges.

OPINION

PREGERSON, Circuit Judge:

The Cassirers appeal the district court's grant of the Thyssen-Bornemisza Collection Foundation's motion to dismiss their complaint without leave to amend. The Cassirers' lawsuit seeks to recover a masterpiece French impressionist painting that was allegedly taken from their ancestors by the Nazi regime. For the Cassirers' claims to be timely, they must rely on amended California Code of Civil Procedure § 338(c)(3), which provides for a six-year limitation period for the recovery of fine art against a museum, gallery, auctioneer, or dealer. The district court held that § 338(c)(3), as amended, is unconstitutional on the basis of field preemption. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

STANDARD OF REVIEW

We review the district court's grant of the Foundation's motion to dismiss de novo. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). In reviewing the Cassirers' claims, we treat the allegations in the complaint as true. Id.

FACTUAL AND PROCEDURAL BACKGROUND

Camille Pissarro completed the impressionist painting Rue Saint-Honoré, après-midi, effet de pluie (the " Painting" ) in 1897. Julius Cassirer purchased the Painting in 1898. The Cassirers were a well-known Jewish family that played a prominent role in Germany's economic and cultural life. When Julius died, his son Fritz and Fritz's wife, Lilly, inherited the Painting.

In 1939, Lilly decided to flee Germany because of the discriminatory Nuremberg Laws enacted in 1935 that stripped Jews of their civil rights and citizenship. Lilly and Fritz had to obtain permission to leave Germany and had to subject any works of art that they wished to take with them to an official appraiser. The appraiser was appointed by the Nazis. He told Lilly that

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she could not take the Painting out of Germany. The appraiser demanded that Lilly hand the Painting over to him for a payment of 900 Reichsmarks (around $360 at 1939 exchange rates). Lilly surrendered the Painting.

In 1943, the Painting was sold to an anonymous purchaser. After the war, Lilly attempted to locate the Painting without success. She obtained compensation for the loss of the Painting in the German courts. When Lilly died in 1962, she named her grandson Claude Cassirer as her sole heir.

In 1976, Baron Hans-Heinrich Thyssen-Bornemisza, one of the world's most prolific private art collectors, bought the Painting. In 1993, the Thyssen-Bornemisza Collection Foundation (the " Foundation" ), an agency of the Kingdom of Spain, purchased the Thyssen-Bornemisza collection, including ...


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