# Appendix — Orkin v. Taylor (No. 07-216)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED MAY 18, 2007

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 05-55364

ANDREW J. ORKIN; EF MARK ORKIN;
SARAH-ROSE JOSEPHA ADLER;
A. HEINRICH ZILLE,

Plaintiffs-Appellants,
v.
ELIZABETH TAYLOR,

Defendant-Appellee.

Argued and Submitted Feb. 12, 2007
Filed May 18, 2007

Before: WILLIAM C. CANBY, JR. and SIDNEY R. THOMAS,
Circuit Judges, and SUZANNE B. CONLON,* District Judge.

THOMAS, Circuit Judge.

Descendants of Jewish art collector Margarete Mauthner
(collectively, “the Orkins”) claim that their ancestor was

* The Honorable Suzanne B. Conlon, Senior United States
District Judge for the Northern District of Illinois, sitting by
designation.

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Appendix A

wrongfully dispossessed of a painting during Hitler’s Nazi
regime, entitling them to ownership of the painting, which
was later purchased by actress Elizabeth Taylor. In this
appeal, we conclude that the Holocaust Victims Redress Act
does not create a private right of action and that the Orkins’
state law claims are barred by the statute of limitations. We
affirm the judgment of the district court, dismissing the
complaint.

Vincent van Gogh is said to have reflected that “paintings
have a life of their own that derives from the painter’s soul.”
The confused and perhaps turbulent history of his painting
Vue de l’Asile et de la Chapelle de Saint-Rémy may prove
the truth of his observation.

In 1889, a few months after cutting off the lower part of
his left ear following a dispute with Paul Gauguin, van Gogh
entered the Saint-Paul-de-Mausole asylum near the town of
Saint-Rémy-de-Provence. During this period of his life, he
produced over 150 paintings, including some of his most
famous works, such as The Starry Night. In the summer or
fall of 1889, he painted Vue de l’Asile et de la Chapelle de
Saint-Rémy, which may have been part of a series that he
described to his brother Theo as “Sketches of Autumn.” The
painting portrays either the Church of Labbeville near the
town Auvers, a few miles from the asylum, or a monastery
that was part of the asylum. Within a year of completing the
painting, van Gogh died from a self-inflicted gunshot wound.

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Appendix A

Van Gogh sold only one painting during his lifetime.
Since his death, however, his works have indeed had lives
of their own. After Vincent’s death in 1890, and his brother
Theo’s death six months later, ownership of Vue de l’Asile
et de la Chapelle de Saint-Rémy passed to Theo’s widow,
Johanna. The German art dealer Paul Cassirer, an early
promoter of the works of van Gogh and other post-
impressionist artists, purchased the painting in 1906 or 1907.
Shortly thereafter, Cassirer sold the picture to Margarete
Mauthner, an early collector of van Gogh’s works. The parties
vigorously dispute the circumstances under which Mauthner
parted with the painting, and that dispute forms the basis of
the current controversy between the parties. We need not,
and we do not, resolve those factual disputes in this appeal
because the issues before us are purely legal in nature.
However, a description of the general factual background of

the case-highlighting where appropriate the factual disputes-
is helpful to frame the legal issues presented.

One of the tools used by art historians to trace ownership
is an artist’s catalogue raisonné. Acatalogue raisonné is an
annotated, illustrated book of a particular artist’s works,
usually prepared by art historians, scholars, and dealers,
which constitutes “a definitive listing and accounting of the
works of an artist.” DeWeerth v. Baldinger, 836 F.2d 103,
112 (2d. Cir. 1987). A catalogue raisonné published in 1928,
L’oeuvre de Vincent Van Gogh Catalogue Raisonné, shows
Margarete Mauthner as the owner of the painting. J.B. de la
Faille’s catalogue raisonné of van Gogh, published in 1939,
also identifies Mauthner as the owner.

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Appendix A

From the time of Adolf Hitler’s election as Chancellor
of Germany in 1933 until the end of World War II, Hitler’s
Nazi regime engaged in a systematic effort to confiscate
thousands of works of art throughout Europe. Hector
Feliciano, The Lost Museum: The Nazi Conspiracy to Steal
the World’s Greatest Works of Art 3 (Basic Books 1997).
Within Germany, the enactment of the Ordinance for the
Attachment of the Property of the People’s and State’s
Enemies and the Ordinance for the Employment of Jewish
Property gave Nazi officials the authority to seize artwork
from Jewish owners under color of law. Jonathan
Petropoulos, Art as Politics in the Third Reich 190
(University of North Carolina Press 1996).

As the Nazis’ persecution accelerated, Mauthner fled
Germany to South Africa in 1939, leaving her possessions
behind. She remained there until her death in 1947, at the
age of 84. What happened to Vue de l’Asile et de la Chapelle
de Saint-Rémy during that time is not clear from the record.
A 1970 catalogue raisonné prepared by a committee of
scholars in the Netherlands lists the next owner as Alfred
Wolf, a Jewish businessman who left Germany for
Switzerland in 1934 and ultimately relocated to South
America. The auction catalogue prepared by Sotheby & Co.
in 1963 lists the provenance, or chain of title, as including
three owners prior to Wolf. The Sotheby’s catalogue traces
the ownership of the painting from Mauthner to Paul Cassirer,
to Marcel Goldschmidt, and then to Alfred Wolf. The Orkins
contend that this chain of ownership cannot be correct
because Paul Cassirer had committed suicide in 1926, two
years before the 1928 catalogue raisonné was published,
listing Mauthner as the owner.

Sa

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Appendix A

Notably, the Orkins do not contend that the painting was
confiscated by the Nazis. Rather, they allege economic
coercion, contending that Mauthner sold the painting “under
duress.” They note that laws promulgated by the Allied Forces
after the conclusion of World War II established a >
presumption that any transfer or relinquishment of property
by a persecuted person within the period January 30, 1933
to May 8, 1945 was an act of confiscation. Military
Government Law No. 59 § 375(b).

Taylor contends that, at best, the record shows that the
painting was sold through two Jewish art dealers to a Jewish
art collector, with no evidence of any Nazi coercion or
participation in the transactions.

In short, the parties agree that Mauthner once owned the
painting and that it was later possessed by Alfred Wolf. At
this point in the development of the case, the rest of what
transpired with the painting during the 1930s in Berlin is
clouded in uncertainty. Sometime in the early 1960s, the
Estate of Alfred Wolf commissioned Sotheby’s to sell by
auction a number of Impressionist and Post-Impressionist
paintings, including Vue de l’Asile et de la Chapelle de Saint-
Rémy.

With the help of her father, who was an art dealer,
Elizabeth Taylor began collecting art in the 1950s, acquiring
works of Degas, Renoir, Pissarro, Monet, Cassatt and other
prominent artists. She had long wanted to acquire a van Gogh.
While living in London with her husband, Richard Burton,
Taylor learned that Vue de l’Asile et de la Chapelle de Saint-
Rémy would be offered at a Sotheby’s auction in April 1963.

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Appendix A

She authorized her father to bid for her at the auction, and
he was successful in purchasing the painting on her behalf
for £ 92,000.

Taylor’s acquisition was publicized at the time.
Subsequently, the 1970 catalogue raisonné referenced
Taylor’s ownership. From November 1986 until March 1987,
the painting was exhibited publicly at the Metropolitan
Museum of Art in New York, in an exhibition entitled Van
Gogh in Saint Rémy and Auvers.

In 1990, Taylor offered the painting for sale through
Christie’s auction house in London. The provenance for the
sale lists Taylor as the current owner, with the prior owners
being Alfred Wolf (of Stuttgart and Buenos Aires), Marcel
Goldschmidt & Co. (of Frankfurt), Margarete Mauthner

(of Berlin), Paul Cassirer (of Berlin), and Johanna van Gogh-
Bonger (of Amsterdam). The work did not sell at the auction.

In 1998, Congress enacted three statutes pertaining to
victims of Nazi persecution: the Holocaust Victims Redress
Act (“Act”), Pub.L. No. 105-158, 112 Stat. 15 (1998), the
Nazi War Crimes Disclosure Act of 1998, Pub.L. No. 105-
167, 114 Stat. 2865 (1998), and the United States Holocaust
Assets Commission Act of 1998, Pub.L. No. 105-186, 112
Stat. 611 (1998). The Orkins allege that their inquiry into
whether their ancestor, Mauthner, may have lost her art
collection due to Nazi persecution began upon the passage
of these acts. They retained a law firm in 2001 and claim
that, until their attorneys completed their investigation, they
did not discover the basis of their current claim. The Orkins
allege that, before they began that investigation, they did not

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Appendix A

know that Mauthner had owned Vue de I/’Asile et de la
Chapelle de Saint-Rémy, that she had lost the painting as a
result of Nazi persecution, that Taylor had bought the
painting, or that there was a legal basis for recovering the
painting. They also claim that they first learned of Taylor’s
ownership in 2002, through a rumor on the internet that
Taylor was interested in selling the painting.

In December 2003, the Orkins wrote a letter to Taylor,
demanding that she return the painting to them. After some
discussion of settlement, Taylor wrote a response letter
declining settlement and asserting that the Orkins’ claim to
the painting was untimely. Taylor then filed a complaint for
declaratory relief to establish her title.

In 2005, the Orkins filed their First Amended Complaint
for recovery of the painting under theories of specific
recovery, replevin, constructive trust, restitution, and
conversion. The district court dismissed the complaint,
concluding that the state-law actions were time-barred and
that the federal statute did not create a private right of action.
Because there is complete diversity between the parties and
because the painting is worth more than $75,000, the district
court had jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction under 28 U.S.C. § 1291, and we review de novo
the district court’s dismissal of the complaint pursuant to
Rule 12(b)(6). Cervantes v. United States, 330 F.3d 1186,
1187 (9th Cir.2003).

Because the district court dismissed this case on a Rule
12(b)(6) motion, we must assume that all facts stated in the
complaint are true and that they are provable by admissible

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Appendix A

evidence. Although the parties vigorously dispute whether
the painting was effectively confiscated by the Nazis through
forced sale or was legitimately sold through Jewish art
dealers, we need not resolve that issue. We assume, for the
purposes of our discussion, that the allegations of the
complaint are true and that Mauthner was coerced into giving
up the painting before she left Germany.

II

The district court properly dismissed the Orkins’ federal
claims on the ground that the Holocaust Victims Redress Act
did not create a private right of action against private art
owners. In determining whether a federal statute creates a
private right of action, congressional intent is the cornerstone

of the analysis. The Supreme Court has established a four-
factor test for discerning whether a statute creates a private
right of action. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45
L.Ed.2d 26 (1975). Under that test, we must ask: (1) whether
the plaintiff is a member of a class that the statute especially
intended to benefit, (2) whether the legislature explicitly or
implicitly intended to create a private cause of action,
(3) whether the general purpose of the statutory scheme
would be served by creation of a private right of action, and
(4) whether the cause of action is traditionally relegated to
state law such that implication of a federal remedy would be
inappropriate. 422 U.S. at 78, 95 S.Ct. 2080.

The most important inquiry under Cort is the second
factor: whether there is “any indication of legislative intent,
explicit or implicit, either to create such a remedy or to deny
one.” Opera Plaza Residential Parcel Homeowners Assn. v.

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Appendix A

Hoang, 376 F.3d 831, 834-35 (9th Cir.2004) (quoting Cort,
422 U.S. at 78, 95 S.Ct. 2080); First Pacific Bancorp, Inc. v.
Helfer, 224 F.3d 1117, 1121-22 (9th Cir.2000) (same). Indeed,
the three Cort questions that are not explicitly focused on
legislative intent are actually indicia of legislative intent, such
that the Cort test itself is focused entirely on intent. Touche
Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct.
2479, 61 L.Ed.2d 82 (1979). The four Cort factors, thus, are
merely targeted inquiries to guide our central project of
discerning Congress’s intent. /d.

The plain text of the Holocaust Victims Redress Act
leaves little doubt that Congress did not intend to create a
private right of action. The Orkins rely on § 202 of the Act,
entitled “Sense of the Congress Regarding Restitution. of
Private Property, Such as Works of Art.” That section reads
in its entirety as follows:

It is the sense of the Congress that consistent with
the 1907. Hague Convention, 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.

Act § 202, 112 Stat. at 17-18.

“Sense of the Congress” provisions are precatory
provisions, which do not in themselves create individual
rights or, for that matter, any enforceable law. Yang v. Cal.

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Appendix A

Dept. of Soc. Servs., 183 F.3d 953, 958-59 (9th Cir.1999).
Although “sense of the Congress” provisions are sometimes
relevant to our determination of whether other mandatory
provisions create private rights of action, id. at 959 & n. 4,
the Orkins can point to no provision of the Act or of any of
its companion legislation that can fairly be characterized as
mandatory. There is simply no “right- or duty-creating
language” anywhere in the statutory scheme, Cannon v. Univ.
of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60
L.Ed.2d 560 (1979), and § 202’s announcement of a “sense
of the Congress” cannot, of its own force, imply a private
right of action, Yang, 183 F.3d at 958-59.

Additionally, the Act’s legislative history indicates that
even its most ardent supporter did not intend for the bill to

create a private right of action. Rather, the legislative intent
was to encourage state and foreign governments to enforce
existing rights for the protection of Holocaust victims. The
sponsor and primary champion of the legislation,
Representative Jim Leach (R-IA), believed that existing law
would suffice to restitute Nazi-stolen artworks to their Nazi-
era owners. At a hearing that occurred after passage of the
Act, Representative Leach noted the possibility that new
“domestic legislation” might assist in restitution of stolen
art, but he went on to conclude that “Congress may have
gone as far as it appropriately should on this subject in the
Holocaust Victims Redress Act.” Holocaust Victims’ Claims,
Hearing before the House Committee on Banking and
Financial Services, 105th Cong., 2d Sess. (1998). That
Statement strongly implies, consistently with the precatory
language of the legislation itself, that the Act was a limited
bill, passed with an understanding of constitutional

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Appendix A

limitations on congressional power. The second Cort factor,
thus, does not support the Orkins’ claim; the bill simply did
not intend to create a private right of action.

Examination of the remaining Cort factors buttresses this
conclusion. With respect to the first Cort factor, although
there is no doubt that the Act was focused on Holocaust
victims and (in a colloquial sense) intended to benefit them,
Holocaust victims do not constitute a “beneficiary class”
within the meaning of the Cort test. The provision’s focus is
on “governments” rather than individuals, urging those
governments “to facilitate” enforcement of preexisting
property rights. Act § 202, 112 Stat. at 17-18. The statute,
thus, does not “explicitly confer[{ ] a benefit on” Holocaust
victims; it merely expresses Congress’s sense that Holocaust
survivors and heirs should benefit fully from preexisting
protections. Cf. Cannon, 441 U.S. at 693-94, 99 S.Ct. 1946
(concluding that the first Cort factor was met because the
statute at issue “explicitly confers a benefit on” an identifiable
class and because the plaintiff was a member of that class).
The Orkins, thus, are not members of a class that Congress
“intended to benefit,” as that phrase is used in Cort.

With respect to the third Cort factor, the text and history
of the legislation reveal that its overarching purpose was not
to provide for private litigation. Rather, the general purpose
of the statutory scheme was to fund research efforts and to
declassify records, while simultaneously encouraging foreign
governments, as well as public and private institutions, to
do likewise. In other words, the motivating concern was not
access to courts; it was access to information. In fact,
throughout the committee hearings, witnesses testified that

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Appendix A

courts would likely do a poor job of resolving Holocaust
victims’ claims. Specifically, the committee heard testimony
that the difficulties of tracing information would likely
preclude effective judicial resolution of discrete claims, and
several museum directors testified that alternative fora such
as mediation and arbitration were preferable to litigation.
Holocaust Victims’ Claims, Hearing before the House
Committee on Banking and Financial Services, 105th Cong.,
2d Sess. (1998) (testimony of Philippe de Montebello,
director of the Metropolitan Museum of Art). The general
purposes of the statute, therefore, do not support the
conclusion that Congress intended to provide a private right
of action in this case.

Finally, with respect to the fourth Cort factor, there can
be no doubt-as this case amply demonstrates-that state law
provides causes of action for restitution of stolen artworks.
Furthermore, the torts asserted here are undoubtedly causes
of action that are traditionally relegated to state law.
Implication of a federal remedy in this case, therefore, would
be inappropriate under the fourth Cort factor. Representative
Leach’s statement that “Congress may have gone as far as it
appropriately should” when it passed the Act strongly
supports the conclusion that Congress did not intend to
supersede traditional state-law remedies when it passed the
Act. Holocaust Victims’ Claims, Hearing before the House
Committee on Banking and Financial Services, 105th Cong.,
2d Sess. (1998).

In short, the Act does not satisfy any of the Cort factors;
none of the relevant indicia of intent supports the conclusion
that Congress intended to create an implied private right of

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Appendix A

action in this case. The Act is a precatory announcement of
the “sense of the Congress,” which neither confers rights
nor creates duties. Given the absence of congressional intent
to create a private right of action, the Orkins’ assertion of a
federal right of action must fail.

II

The district court also properly concluded that the
Orkins’ state-law claims were time-barred. California
provides a three-year statute of limitations for any action
arising from the “taking, detaining, or injuring” of any “goods
or chattels.” Cal.Civ.Proc.Code § 338(c). In 1983, the statute
of limitations was amended to specify that a “discovery rule”
governs accrual of causes of action for recovery of “any

article of historical, interpretive, scientific, or artistic
significance.” Jd. In other words, under the new law, an action
for recovery of artwork accrues when the rightful owner
discovers the whereabouts of the artwork. Before 1983, the
statute did not specify when a cause of action for theft would
accrue.

The Orkins do not argue that the 1983 amendment applies
retroactively to their allegations of a 1939 theft and a 1963
conversion. Rather, they contend that the discovery rule
applies even under pre-1983 law, citing an intermediate
appeals court decision that so held. Naftzger v. Am.
Numismatic Soc’y, 42 Cal.App.4th 421, 49 Cal.Rptr.2d 784
(1996).

“The task of a federal court in a diversity action is to
approximate state law as closely as possible in order to make

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Appendix A

sure that the vindication of the state right is without
discrimination because of the federal forum.” Ticknor v.
Choice Hotels Intern., Inc., 265 F.3d 931, 939 (9th Cir.2001)
(quoting Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th
Cir.19$0)). If the state’s highest appellate court has not
decided the question presented, then we must predict how
the state’s highest court would decide the question. /d.
In doing so, we take state law as it exists without speculating
as to future changes in the law. /d.

The California Supreme Court has never confronted the
question of what rule governs accrual of pre-1983 causes of
action for theft and conversion. The California Supreme
Court has, however, specifically held that the discovery rule,
whenever it applies, incorporates the principle of constructive
notice. In Jolly v. Eli Lilly & Co., the California Supreme
Court held that, under California’s discovery rule, “[a]
plaintiff is held to her actual knowledge as well as knowledge
that could reasonably be discovered through investigation
of sources open to her.” 44 Cal.3d 1103, 1109, 245 Cal. Rptr.
658, 751 P.2d 923 (1988). In other words, under the discovery
rule, a cause of action accrues when the plaintiff discovered
or reasonably could have discovered her claim to and the
whereabouts of her property. In assessing California law, we
conclude that it is highly unlikely that the California Supreme
Court would abandon the Jolly rule, much less adopt a new
rule that eschewed the concept of constructive notice.

Under Jolly, the latest possible accrual date of the Orkins’
cause of action was the date on which they first reasonably
could have discovered, through investigation of sources open
to them, their claim to and the whereabouts of the van Gogh

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Appendix A

painting. From the face of the Orkins’ complaint, it is
apparent that Taylor’s acquisition of the painting was
certainly discoverable at least by 1990, when she held it out
for sale in an international auction, and most probably as
early as 1963, when she acquired the painting in a highly
publicized international auction. In fact, the complaint
alleges-and demonstrates by attachment-that Taylor bought
the painting at a publicized auction in 1963, that Taylor was
listed as the owner of the painting in a publicly available
1970 catalogue raisonné, and that Taylor publicly offered
the painting for sale in 1990. Had the Orkins investigated
any of those publicly-available sources, they could have
discovered both their claim to the painting and the painting’s
whereabouts long before the 2002 internet rumor was posted.

We therefore affirm the district court’s conclusion that
the Orkins’ state-law claims are time-barred. Even under the
most generous possible rule for accrual of the causes of
action, the claims expired in or before 1993-three years after
the last public announcement of Taylor’s ownership. The
district court correctly held that the Orkins’ state law claims
were untimely filed.

IV

Congress did not create a private right of action in
passing the Holocaust Victims Redress Act, which merely
reflected the sense of Congress. The Orkins’ state law claims
are time-barred. The district court was entirely correct in
dismissing the complaint. We need not, and do not, reach
any of the other issues urged by the parties.

AFFIRMED.

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APPENDIX B — OPINION OF THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA DATED FEBRUARY 2, 2005

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

No. CV 04-8472-RGK(FMOX)
SARAH-ROSE JOSEPHA ADLER, et al.
v.

ELIZABETH TAYLOR
February 2, 2005
CIVIL MINUTES-GENERAL

Present: The Honorable
R. GARY KLAUSNER, U.S. DISTRICT JUDGE

Proceedings: (IN CHAMBERS)
DEFENDANT ELIZABETH TAYLOR’S
MOTION TO DISMISS (DE 5)

I. INTRODUCTION

The issue in this case is the rightful ownership to “Vue
de |’ Asile et de la Chapelle de Saint-Remy,” (“the painting”)
which Vincent Van Gogh painted while a patient of the
asylum at Saint-Remy. Plaintiffs are heirs and descendants
of an art collector who owned the painting in early twentieth-
century Germany. In 1963, Elizabeth Taylor (“Taylor”)

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Appendix B

bought the painting at an auction in England. Plaintiffs are
essentially suing for four claims: replevin, constructive trust,
restitution, and conversion. Plaintiffs complicate matters
by bringing these four claims in four alternate forms:
(1) generally, for “recovery of the painting” under an action
implied by federal law; (2) for these four claims individually
under an action implied by federal law; (3) for these four
claims as implied by the “findings and declarations of the
California legislature”; and (4) for these four claims in their
traditional form, under California law. Essentially, Plaintiffs
argue that the painting rightfully belongs to them because it
was stolen from their heir through Nazi persecution. Taylor
moves to dismiss for failure to state a claim. For the following
reasons, the Court grants Taylor’s motion.

For the purposes of this Motion, the Court must consider
all facts alleged in the First Amended Complaint to be true.
Plaintiffs’ are descendants and heirs of the late Margarete
Mauthner, who bought the painting in 1914 in Germany.
Mauthner owned the painting through the 1920s and 1930s.
Mauthner and her family fled Nazi Germany for South Africa
in 1939. The painting was lost to Nazi persecution. Mauthner
died in South Africa in 1947. She was eighty-four.

Taylor bought the painting in 1963 at a Sotheby’s auction.
The Sotheby’s auction incorrectly stated that the painting had
passed to Paul Cassirer in 1928 (he had died in 1926). The
Sotheby’s auction also referred bidders to two catalogues
raisonné, which listed the history of the painting. This history
of ownership identified Mauthner as the owner of the painting
in tlie 1920s and 1930s, and included that she lived in Berlin.
It included other information inconsistent with the Sotheyby’s

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Appendix B

auction’s representations. Plaintiffs allege that Taylor ignored
these warning signs and bought the painting without properly
investigating its ownership history.

In the late 1990’s and early in this decade, Congress and
the California legislature both stated a strong public policy
favoring the return of property that the Nazi government had
stolen. Plaintiffs then became aware of the possibility that
Mauthner owned the painting and that it may have been stolen
from her. After some investigation, Plaintiffs brought the present
action.

Il. JURISDICTION
A. Diversity Jurisdiction

Diversity jurisdiction clearly exists in this case. Plaintiffs
are all foreign citizens, while Defendant is a California resident.
The painting is worth well over $75,000. Therefore, the Court
properly has jurisdiction over the case pursuant to 28 U.S.C.
§ 1332.

B. Federal Question Jurisdiction

Some of Plaintiffs’ claims are purportedly brought under
the 1998 Holocaust Victims Redress Act (“HVRA”), Pub.L.
No. 105-158, 112 Stat. 15 (1998), and its companion Nazi War
Crimes Disclosure Act (“Disclosure Act’), Pub.L. No. 105-567,
114 Stat. 2865 (1998). Plaintiffs ask the Court to find that these
grant the Court federal question jurisdiction. Such a
determination is unnecessary because the Court already has
jurisdiction pursuant to § 1332. Therefore, the Court need not
reach the question of whether federal question jurisdiction
applies to this case.

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Appendix B
lil. JUDICIAL STANDARD

In considering a motion to dismiss for failure to state a
claim pursuant to Federal Rules of Civil Procedure 12(b)(6),
the Court must assume the plaintiff's allegations are true,
and must construe the complaint in a light most favorable to
the plaintiff. See United States v. City of Redwood City, 640
F.2d 963, 967 (9th Cir.1981). The sole issue raised by such a
motion is whether the facts pleaded would, if established,
support a valid claim for relief. Thus, the facts alleged, no
matter how improbable, must be accepted as true for purposes
of the motion. See Neitzke v. Williams, 490 U.S. 319, 328-
329, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). However, a
court need not accept as true unreasonable inferences,
unwarranted deductions of fact, or conclusory legal
allegations cast in the form of factual allegations. See W.
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
Upon review of a complaint, a court may not dismiss pursuant
to Rule 12(b)(6) “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Russell v.
Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980). However,
dismissal is proper if a complaint is vague, conclusory, and
fails to set forth any material facts in support of the allegation.
See North Star Int’l v. Ariz. Corps. Comm’n, 720 F.2d 578,
583 (9th Cir.1983).

The court cannot consider material outside the complaint
unless it converts the Rule 12(b)(6) motion into a summary

judgment motion. Arpin v. Santa Clara Valley Transp.
Agency, 26] F.3d 912, 925 (9th Cir.2001). For purposes of a

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Appendix B

Rule 12(b)(6) motion, the court may consider material
properly submitted with the complaint. See Hal Roach
Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
1555 (9th Cir.1989). Furthermore, the court may also
consider matters that may be judicially noticed pursuant to
Federal Rule of Evidence 201. /d. at 1555.

If the court chooses to dismiss the complaint, it must
decide whether to grant leave to amend. Courts grant leave
to amend unless it is clear that amendment would be futile,
and “that the deficiencies of the complaint could not be cured
by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th
Cir. 1987).

IV. DISCUSSION
A. Plaintiffs’ Traditional Sate Law Claims

Before reaching Plaintiffs’ non-traditional claims (that
arise out of federal law or out of the California legislature’s
findings and declarations), the Court will first determine
whether the Complaint’s traditional claims can survive the
motion to dismiss. Taylor argues that these claims should be
dismissed because they are time-barred under California.
Plaintiffs argue that the discovery rule delayed the statute of
limitations from running until recently. For the following
reasons, the Court finds that Plaintiffs’ Complaint establishes
facts that show the statute of limitations began to run in 1963
and bars their claims.

21a

Appendix B

1. Plaintiffs’ First Amended Complaint States
a Prima Facie Case

Plaintiffs allege traditional state law claims for
conversion, replevin, constructive trust, and restitution.
Essentially, Plaintiffs allege (1) that they, through their heir,
are the rightful owner of the painting, (2) that the Nazi
government’s persecution resulted in their loss of the
painting, and (3) that Taylor wrongfully took possession of
the painting either knowing of its likely theft, or at least that
she failed to reasonably investigate its possible theft.

Generally, Plaintiffs’ state law claims are valid and
supported by the Complaint. First, Plaintiffs can prove
conversion by showing (1) that Plaintiffs have ownership or
a right to possession of the painting; and (2) that Taylor
wrongfully appropriated or exercised dominion over the
painting. See Dodge v. Meyer, 61 Cal. 405, 406-07 (1882);
Oakdale Vill. Group v. Fong, 43 Cal.App.4th 539, 540-41,
50 Cal.Rptr.2d 810 (1996). Here, Plaintiffs’ alleged facts, if
proven, would demonstrate that Plaintiffs’ (through their heir)
had rightful ownership to the painting, and that Taylor took
exclusive control of the painting in 1963 either knowing that
it was stolen or negligently failing to investigate its ownership
history. Alternatively, Plaintiff’s alleged facts could establish
that they are the rightful owners and that Taylor, although
she lawfully purchased the painting, is liable for conversion
arising out of her refusal to return it. See Edwards v. Jenkins,
214 Cal. 713, 720, 7 P.2d 702 (1932). Plaintiffs’ allegations
sufficiently state a claim for conversion under California law.

22a

Appendix B

Second, replevin is a common law remedy that permits the
prevailing party to recover both personal property and incidental
damages from an unlawful possessor. See 66 Am.Jur.2d
Replevin § | (2004). In federal courts, replevin is a remedy
specifically approved by rule, as governed by the appropriate
state law. See Fed.R.Civ.P. 64; Granny Goose Foods, Inc. v.
B’hd of Teamsters and Auto Truck Drivers Local No. 70, 415
U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). In California,
courts allow for specific recovery of personal property and
incidental damages (but use the term “claim and delivery” rather
than “replevin’”). See Fran-Well Heater Co. v. Robinson, 182
Cal.App.2d 125, 5 Cal.Rptr. 900 (1960); Cal. Civ.Code § 3379;
Cal.Code Civ. P. § 511.010 et seg. For specific recovery,
Plaintiffs only need show (1) a right to possession of the property,
and (2) Taylor’s wrongful possession. /d. Stated more simply,
specific recovery is an available remedy for conversion. Because

the Complaint supports a conversion claim, it also supports a
specific recovery remedy.

Third, a constructive trust is an equitable remedy used to
compel a person holding property to transfer it to the person
entitled to possession. See Cal. Civ.Code §§ 2223, 2224; Haskel
Engineering & Supply Co. v. Hartford Acc. & Inc'2m. Co., 78
Cal.App.3d 371, 375, 144 Cal.Rptr. 189 (1978); B.E. Witkin,
Summary of California Law § 305 (9th ed. 1990 & Supp.2004).
For a court to create a constructive trust, the plaintiff only needs
to show that (1) the defendant wrongfully acquired the property,
and (2) that the defendant would be unjustly enriched if allowed
to keep the property. /d. Again, for the same reasons discussed
above, Plaintiffs’ Complaint alleges facts that support both
elements necessary for a constructive trust.

23a

Appendix B

Finally, Plaintiffs allege a claim for restitution. However,
in California, the restitution remedy is only applicable to
breach of contract claims. See Freedman v. St. Matthias
Parish, 37 Cal.2d 16, 230 P.2d 629 (1951). Here, Plaintiffs’
“restitution” claim is better termed a demand for specific
recovery and any incidental damages, which are already
properly alleged in the preceding three claims.

In summary, regardless of whether Plaintiff’s non-
traditional claims are valid, at the very least their First
Amended Complaint sufficiently alleges a claim for
conversion, and demands valid remedies of specific recovery
and a constructive trust.

2. California’s Statute of Limitations

Taylor alleges that the Complaint does not state a claim
because of California’s statute of limitations. Plaintiffs argue
that the statute did not begin tolling against them until
recently.

California limits causes of action to recover Holocaust-
era artwork from individuals. California passed a law giving
heirs the right to sue galleries and museums for the return of
such artwork until 2010, free from any statute of limitations.
See Cal.Civ.Proc.Code § 354.3. However, this exception does
not apply to suits against individuals. In “[a]n action for
taking, detaining, or injuring any goods or chattels, including
actions for the specific recovery of personal property,” a
plaintiff must sue within three years. Cal.Civ.Proc.Code
§ 338(c). A newer version of the California law includes an
explicit “discovery rule,” which states that the statute begins

24a

Appendix B

to run when the plaintiff was on notice of the property’s
whereabouts. However, the older version of the California
law did not include a “discovery rule.” The parties dispute
whether a discovery rule applies to this case, though both
agree that the Court should apply the old law given that Taylor
bought the painting in 1963.

a. The Discovery Rule Does Not Apply to
this Case

In Naftzger v. American Numismatic Society, one
California Court of Appeal held that there was an implied
discovery rule in the old statute. 42 Cal.App.4th 421, 49
Cal.Rptr.2d 784 (1996). However, in Society of California
Pioneers v. Baker another Court of Appeal disagreed.
43 Cal.App.4th 774, 783, 50 Cal.Rptr.2d 865 (1996). The
California Supreme Court has not resolved the conflict.

As the California Pioneers Court notes, the Naftzger
Court failed to address California precedent that rejected the
application of a discovery rule. California Pioneers, 43
Cal.App.4th at 780-83, 50 Cal.Rptr.2d 865. This precedent
establishes that the statute of limitations begins to run against
a subsequent purchaser of stolen property at the time the
subsequent purchaser obtains the property. /d. Thus, in this
case, the statute of limitations began to run in 1963. It has
long since expired.

b. Application of the Discovery Rule

Even if the California courts would apply a discovery
rule to this case, Plaintiffs’ Complaint does not state facts

25a

Appendix B

sufficient to survive the motion to dismiss. “The discovery
rule provides that, in an appropriate case, a cause of action
will not accrue until the injured party discovers, or by exercise
of reasonable diligence and intelligence should have
discovered, facts which form the basis of a cause of action.”
O’ Keefe v. Snyder, 83 N.J. 478, 491, 416 A.2d 862 (1980).

Plaintiffs’ own Complaint establishes several key facts:
(1) the world knew of Mauthner’s prior ownership of the
painting for years; (2) Mauthner was aware that the painting
was lost or stolen; and (3) Taylor’s purchase and ownership
of the painting was common knowledge and easily
discoverable. The facts establish that Plaintiffs, “by exercise
of reasonable diligence,” should have discovered Taylor’s
ownership in 1963. O'Keefe, 83 N.J. at 491, 416 A.2d 862.

The Complaint fails to allege any diligence on Plaintiffs part,
much less any reasonable diligence. Thus, even if the
discovery rule applied to this case, Plaintiffs have still failed
to state a claim.

Therefore, the Court dismisses Plaintiffs’ claims,
numbered nine through thirteen, for claims of conversion,
replevin, constructive trust, and restitution, as barred by the
California statute of limitations.

3. English Law

Taylor asserts that the California courts would apply
1963 English law to this case because the painting was bought
in England. Under that law, Taylor claims that Plaintiffs’ suit
is time-barred.

26a

Appendix B

The Court need not reach the merits of Taylor’s choice-
of-law argument at this time. Taylor relies on declaration
evidence that may or may not be contested to establish what
the result would be in this case under English law. However,
a motion to dismiss for failure to state a claim is judged on
the pleadings, not declarations such as Taylor has provided
to the Court. Moreover, the California statute of limitations
bars Plaintiffs’ claims.

B. Plaintiffs’ Non-Traditional Causes of Action

Plaintiffs have stated several non-traditional causes of
action. No court has ever found valid the causes of action
that Plaintiffs claim in their Complaint. For the following
reasons, the Court finds that Plaintiffs’ non-traditional claims
are invalid.

1. Claims Arising Out of Federal Law

Federal courts are reluctant to create a new cause of
action that Congress did not explicitly create through
legislative action. See United States v. Gilman, 347 U.S. 507,
74 S.Ct. 695, 98 L.Ed. 898 (1954); Wheeldin v. Wheeler, 373
U.S. 647, 651, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963). The
courts will only create a new cause of action where absolutely
necessary in order to effectuate Congress’s intent. See, e.g.,
Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct.
1946, 60 L.Ed.2d 560 (1979); J.I. Case Co. v. Borak, 377
U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).

The Supreme Court’s methodology on how to best
determine a Congressional intent to create a cause of action

27a

Appendix B

has shifted over the past thirty years, with a trend against
finding new causes of. action. See Erwin Chemerinsky,
Federal Jurisdiction § 6.3.3 (4th ed.2003). Under the older
approach, the Supreme Court looked to four factors: whether
the Plaintiff is a member of a class envisioned by Congress,
whether there is any indication of Congressional intent,
whether implying a cause of action is consistent with the
overall statutory scheme, and whether the cause of action is
one traditionally left to state law. Cort v. Ash, 422 US. 66,
78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

Under the current approach, the courts create a private
right of action “only if there is affirmative evidence of
Congress’s intent to create a private right of action.”
Chemerinsky at 385 (citing Touche Ross & Co. v. Redington,
442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)). The
courts also presume that Congress is well aware of this
philosophy of judicial restraint, and therefore would clearly
enunciate an intent to create a private right of action when
that desire exists. See Karahalios v. Nat’l Federation of
Federal Employees, 489 U.S. 527, 109 S.Ct. 1282, 103
L.Ed.2d 539 (1989).

Here, under any Supreme Court methodology, the
Congressional Record does not indicate an intent to create a
private cause of action. Rather, it indicates a Congressional
intent to encourage governments to aid in the restitution of
property through currently existing laws. Plaintiffs
completely fail to address the fourth Cort factor. This factor
makes it clear that courts should not create a new federal
law where a state law already exists. Here, California law
already provides for conversion and specific recovery.

28a

Appendix B

Therefore, the Court finds that Plaintiffs claims, numbered
one through five, for causes of action arising out of federal
law, are invalid and are dismissed.

2. Claims Arising Out of the California
Legislature’s Findings and Declarations

Plaintiffs also ask the Court to create a new California
claim that arises out of the California legislatures findings
and declarations. No California court has created a special
claim for the conversion of property in the maiuner proposed
by Plaintiffs. As a federal court of limited jurisdiction, this
Court is particularly reluctant to create a new California state
cause of action, particularly one that would contradict the
established California statute of limitations.

Therefore, the Court dismisses Plaintiffs’ claims,

numbered six through nine, for causes of action arising out
of the findings and declarations of the California legislature.

V. CONCLUSION

In light of the foregoing, Taylor’s motion to dismiss is
granted in its entirety.

IT IS SO ORDERED.

29a

APPENDIX C — HOLOCAUST VICTIMS
REDRESS ACT

PL 105-158, February 13, 1998, 112 Stat 15
HOLOCAUST VICTIMS REDRESS ACT
TITLE II—WORKS OF ART

Sec. 201. FINDINGS.

Congress finds as follows:

(1) Established pre-World War II principles of international
law, as enunciated in Articles 47 and 56 of the Regulations
annexed to the 1907 Hague Convention (IV) Respecting the
Laws and Customs of War on Land, prohibited pillage and
the seizure of works of art.

(2) In the years since World War II, international sanctions
against confiscation of works of art have been amplified
through such conventions as the 1970 Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property, which
forbids the illegal export of art work and calls for its earliest
possible restitution to its rightful owner.

(3) In defiance of the 1907 Hague Convention, the Nazis
extorted and looted art from individuals and institutions in
countries it occupied during World War II and used such
booty to help finance their war of aggression.

(4) The Nazis’ policy of looting art was a critical element
and incentive in their campaign of genocide against

30a

Appendix C

individuals of Jewish and other religious and cultural heritage
and, in this context, the Holocaust, while standing as a civil
war against defined individuals and civilized values, must
be considered a fundamental aspect of the world war
unleashed on the continent.

(5) Hence, the same international legal principles applied
among states should be applied to art and other assets stolen
from victims of the Holocaust.

(6) In the aftermath of the war, art and other assets were
transferred from territory previously controlled by the Nazis
to the Union of Soviet Socialist Republics, much of which
has not been returned to rightful owners.

Sec. 202. SENSE OF THE CONGRESS REGARDING
RESTITUTION OF PRIVATE PROPERTY, SUCH AS
WORKS OF ART.

It is the sense of the Congress that consistent with the 1907
Hague Convention, 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.

3la

Appendix C

U.S. HOLOCAUST ASSETS COMMISSION ACT OF 1998

An Act to establish a commission to examine issues
pertaining to the disposition of Holocaust-era assets in the
United States before, during, and after World War II, and to
make recommendations to the President on further action,
and for other purposes.

(a) ESTABLISHMENT.—There is established a Presidential
Commission, to be known as the “Presidential Advisory
Commission on Holocaust Assets in the United States”
(hereafter in this Act referred to as the “Commission’).

SEC. 3. DUTIES OF THE COMMISSION.
(a) ORIGINAL RESEARCH.—

(1) IN GENERAL.—Except as otherwise provided in
paragraph (3), the Commission shall conduct a thorough
study and develop a historical record of the collection and
disposition of the assets described in paragraph (2), if such
assets came into the possession or control of the Federal
Government, including the Board of Governors of the Federal
Reserve System and any Federal reserve bank, at any time
after January 30, 1933—

(A) after having been obtained from victims of the Holocaust
by, on behalf of, or under authority of a government referred
to in subsection (c);

(B) because such assets were left unclaimed as the result of
actions taken by, on behalf of, or under authority of a
government referred to in subsection (c); or

32a

Appendix C

(C) in the case of assets consisting of gold bullion, monetary
gold, or similar assets, after such assets had been obtained
by the Nazi government of Germany from governmental
institutions in any area occupied by the military forces of
the Nazi government of Germany.

(2) 1 YPES OF ASSETS.—Assets described in this
paragraph include—

(G) works of art; and

(H) books, manuscripts, and religious objects.

* * *

(3) COORDINATION OF ACTIVITIES.—In carrying out
its duties under paragraph (1), the Commission shall, to the
maximum extent practicable, coordinate its activities with,
and not duplicate similar activities already being undertaken
by, private individuals, private entities, or government
entities, whether demestic or foreign.

* * *

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated not more than
$3,500,000, in total, for the interagency funding of activities
of the Commission under this Act for fiscal years 1998, 1999,
and 2000, of which, notwithstanding section 1346 of title

33a

Appendix C

31, United States Code, and section 611 of the Treasury and
General Government Appropriations Act, 1998, $537,000
shall be made available in equal amounts from funds made
available for fiscal year 1998 to the Departments of Justice,
State, and the Army that are otherwise unobligated. Funds
made available to the Commission pursuant to this section
shall remain available for obligation until December 31,
1999.

NAZI WAR CRIMES DISCLOSURE ACT

SEC. 3. REQUIREMENT OF DISCLOSURE OF
RECORDS REGARDING PERSONS WHO COMMITTED
NAZI WAR CRIMES.

(a) NAZI WAR CRIMINAL RECORDS.—For purposes of
this Act, the term “Nazi war criminal records” means
classified records or portions of records that—

(1) pertain to any person with respect to whom the United
States Government, in its sole discretion, has grounds to
believe ordered, incited, assisted, or otherwise participated
in the persecution of any person because of race, religion,
national origin, or political opinion, during the period
beginning on March 23, 1933, and ending on May 8, 1945,
under the direction of, or in association with—

34a

Appendix C

(A) the Nazi government of Germany;

(B) any government in any area occupied by the military
forces of the Nazi government of Germany;

(C) any government esteblished with the assistance or
cooperation of the Nazi government of Germany; or

(D) any government which was an ally of the Nazi
government of Germany; or

(2) pertain to any transaction as to which the United States
Government, in its sole discretion, has grounds to believe—

(A) involved assets taken from persecuted persons during
the period beginning on March 23, 1933, and ending on May
8, 1945, by, under the direction of, on behalf of, or under
authority granted by the Nazi government of Germany or
any nation then allied with that government; and

(B) such transaction was completed without the assent of
the owners of those assets or their heirs or assigns or other
legitimate representatives.

’

(b) RELEASE OF RECORDS.—

(1) INGENERAL.—Subject to paragraphs (2), (3), and (4),
the Nazi War Criminal Records Interagency Working Group
shall release in their entirety Nazi war criminal records that
are described in subsection (a).

35a

Appendix C

SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS
FOR NAZI WAR CRIMINAL RECORDS.

(a) EXPEDITED PROCESSING.—For purposes of
expedited processing under section 552(a)(6)(E) of title 5,
United States Code, any requester of a Nazi war criminal
record shall be deemed to have a compelling need for such
record.

(b) REQUESTER.—For purposes of this section, the term
“requester” means any person who was persecuted in the
manner described under section 3(a)(1) of this Act who
requests a Nazi war criminal record.

CALIFORNIA CIVIL PROCEDURE CODE 338(c)
335. The periods prescribed for the commencement of

actions other than for the recovery of real property, are as
follows:

338. Within three years:

(c) An action for taking, detaining, or injuring any goods
or chattels, including actions for the specific recovery of
personal property. The cause of action in the case of theft, as
defined in Section 484 of the Penal Code, of any article of
historical, interpretive, scientific, or artistic significance is
not deemed to have accrued until the discovery of the

36a

Appendix C

whereabouts of the article by the aggrieved party, his or her
agent, or the law enforcement agency that originally
investigated the theft.

JANUARY 7, 2002

An act to add Section 354.3 to the Code of Civil
Procedure, relating to limitation of actions.

LEGISLATIVE COUNSEL’S DIGEST

AB 1758, Nakano. Limitation of actions: Holocaust-
era artwork.

Existing law authorizes actions for the taking, detaining,

or injuring of any good or chattel, or for the specific recovery
of personal property to be commenced within 3 years.
Existing law authorizes actions for the theft of any article of
historical, interpretive, scientific, or artistic significance to
be commenced within 3 years of the discovery of the article
by various entities, as defined.

This bill would authorize any owner, or 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. This bill would provide
that any action brought under these provisions may not be
dismissed for failure to comply with the applicable statute
of limitation, provided the action is commenced on or before
December 31, 2010.

37a

Appendix C

SECTION 1. The Legislature finds and declares the
following:

(a) In addition to the many atrocities that befell the
victims of the Nazi regime, treasured pieces of artwork were
wrongfully taken.

(b) Thousands of victims of Nazi persecution, and the
heirs of victims of Nazi persecution, are residents of the State
of California. Many of these victims and descendants are
investigating the whereabouts of artwork that rightfully
belonged to their families.

(c) California has a moral and public policy interest in
assuring that its residents and citizens are given a reasonable
opportunity to commence an action in court for those pieces
of artwork now located in museums and galleries.

(d) Museums are committed to resolving claims for
Holocaust-era artwork in an amicable and timely manner,
and to undertaking every effort to conduct thorough
provenance research to identify artwork that may have been
stolen during the Holocaust Era.

(e) Currently, an individual has three years, after
discovering the whereabouts of the artwork, to commence
an action in court.

(f) Due to the unique circumstances surrounding the theft
of Holocaust-era artwork, commencement of an action
requires detailed investigation in several countries, involving
numerous historical documents and the input of experts.

38a
Appendix C

(g) In order to obtain all necessary data, investigating a
prospective action may take several years.

(h) The current three-year statute of limitation, after
discovery of the whereabouts of the artwork, is an insufficient
amount of time to finance, investigate, and commence an
action.

(1) To the extent that the enactment of this act will extend
the statute of limitation, that extension of the limitation
period is intended to be applied retroactively, irrespective of
whether the claims were barred by any applicable statute of
limitation under any other provision of law prior to the
enactment of this act.

SEC. 2. Section 354.3 is added to the Code of Civil
Procedure, to read:

354.3. (a) The following definitions govern the
construction of this section:

(1) “Entity” means any museum or gallery that displays,
exhibits, or sells any article of historical, interpretive,
scientific, or artistic significance.

(2) “Holocaust-era artwork” means any article of artistic
significance taken as a result of Nazi persecution during the
period of 1929 to 1945, inclusive.

(b) Notwithstanding any other provision of law, any
owner, or heir or beneficiary of an owner, of Holocaust-era
artwork, may bring an action to recover Holocaust-era

39a

Appendix C

artwork from any entity described in paragraph (1) of
subdivision (a). Subject to Section 410.10, that action may
be brought in a superior court of this state, which court shall
have jurisdiction over that action until its completion or
resolution. Section 361 does not apply to this section.

(c) Any action brought under this section shall not be
dismissed for failure to comply with the applicable statute
of limitation, if the action is commenced on or before
December 31, 2010.

40a

APPENDIX D — LAW NO. 59 RESTITUTION OF
IDENTIFIABLE PROPERTY

MILITARY GOVERNMENT — GERMANY
UNITED STATES AREA OF CONTROL

LAW NO. 59
RESTITUTION
OF IDENTIFIABLE PROPERTY

PART I
GENERAL PROVISIONS
ARTICLE 1

Basic Principles

1. It shall be the purpose of this Law to effect to the

largest extent possible the speedy restitution of identifiable
property (tangible and intangible property and aggregates of
tangible and intangible property) to persons who were
wrongfully deprived of such property within the period from
30 January 1933 to 8 May 1945 for reasons of race, religion,
nationality, ideology or political opposition to National
Socialism. For the purpose of this Law deprivation of
property for reasons of nationality shall not include measures
which under recognized rules of international law are usually
permissible against property of nationals of enemy countries.

2. Property shall be restored to its former owner or to
his successor in interest in accordance with the provisions
of this Law even though the interests of other persons who
had no knowledge of the wrongful taking must be
subordinated. Provisions of law for the protection of
purchasers in good faith, which would defeat restitution, shall
be disregarded except where this Law provides otherwise.

4la

Appendix D
ARTICLE 3

Presumption of Confiscation

1. It shall be presumed in favor of any claimant that the
following transactions entered into between 30 January 1933
and 8 May 1945 constitute acts of confiscation within the
meaning of Article 2:

a) Any transfer of relinquishment of property made
during a period of persecution by any person who
was directly exposed to persecutory measures on
any of the grounds set forth in Article 1;

we
Any transfer or relinquishment of property made
by a person who belonged to a class of persons
which on any of the grounds set forth in Article 1
was to be eliminated in its entirety from the cultural
and economic life of Germany by measures taken
by the State or the NSDAP.

2. In the absence of other factors proving an act of
confiscation within the meaning of Article 2, the
presumptions set forth in paragraph | may be rebutted by
showing that the transferor was paid a fair purchase price.
Such evidence by itself shall not, however, rebut the
presumptions if the transferor was denied the free right of
disposal of the purchase price on any of the grounds set forth
in Article 1.

5. A fair purchase price within the meaning of this
Article shail mean the amount of money which a willing
buyer would pay and a willing seller would take, taking into

42a

Appendix D

consideration, in the case of a commercial enterprise, the
normal good will which such enterprise would have in the
hands of a person not subject to persecutory measures referred
to in Article 1.

ARTICLE 4

Power of Avoidance

1. Any transaction entered into by a person belonging
to aclass referred to in Paragraph | b) of Article 3 within the
period from 15 September 1935 (the date of the first
Nuremberg laws) to 8 May 1945 may, because of the duress
imposed on such class, be avoided by a claimant where such
transaction involved the transfer or relinquishment of any
property unless:

a) The transaction as such and with its essential terms
would have taken place even in the absence of
National Socialism, or

b) The transferee protected the property interests of
the claimant (Article 7) or his predecessor in interest
in an unusual manner and with substantial success,
for example, by helping him in transferring his
assets abroad or through similar assistance.

2. In determining under paragraph | a) whether the
transaction would have taken place even in the absence of
National Socialism, the fact that

the transferor himself offered to sell the property to the
transferee, or

43a

Appendix D

the transferor received a fair purchase price (see Article
3, paragraph 3) the free right of disposal of which was
not denied him on any of the grounds set forth in
Article 1,

shall be considered by the Restitution Authority together with
all other facts, but neither fact, either singly or in conjunction
with the other, shall be sufficient to show that the transaction
would have taken place even in the absence of National
Socialism.

3. Similarly neither of these facts, either singly or in
conjunction with the other, shall be sufficient to .show that
the claimant is estopped from exercising the power of

avoidance by reason of his own previous conduct or that of
his predecessor in interest.

4. The term “claim for restitution” as used in this Law
shall be deemed to include all claims based on the right to
exercise the power of avoidance. The exercise of the power
of avoidance shall have the effect that the property transferred
or relinquished pursuant to the voided transaction shall for
the purposes of this Law be deemed to be confiscated

property.

5. The filing of a claim for restitution shall, whether or
not it is specifically stated, be deemed to be an exercise of
the right of avoidance on behalf of the person entitled to
exercise such right.

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Appendix D
ARTICLE 14

Persons Liable to Make Restitution

The person liable to make restitution (hereinafter referred
to as restitutor), within the meaning of this Law, is the present
possessor of confiscated tangible property or the present
holder of a confiscated intangible interest, or of an aggregate
of tangible and intangible property.

ARTICLE 19

Protection of Ordinary and
Usual Business Transactions

Except as provided in Articles 20 and 21, tangible
personal property shall not be subject to restitution if the
present owner or his predecessor in interest acquired it in
the course of an ordinary and usual business transaction in
an establishment normally dealing in that type of property.
However, the provisions of this Article shall not apply to
religious objects or to property which has been acquired from
private ownership if such property is an object of unusual
artistic, scientific, or sentimental personal value, or was
acquired at an auction, or at a private sale in an establishment
engaged to a considerable extent in the business of disposing
of confiscated property. |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1337%3A2. Public record. Not legal advice.