Appendix — Von Saher v. Norton Simon Museum of Art

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APPENDIX A — ORDER DATED JANUARY 14, 201

AMENDING OPINION DATED AUGUST 19, 2009, AN]

DENYING THE PETITIONS FOR REHEARING

AND FOR REHEARING EN BANC

AND AMENDED OPINION

NITED STATES COURT OF APP!

FOR THE NINTH CIRCUIT

RDER AMENDING OPINION AND DENYIN

THE PETITIONS FOR REHEARING AND F*‘

REHEARING EN BANC ANI

AMENDED OPINIOD

ranted the petition for panel rehearing filed by tl

appellee, Norton Simon Museum of Art at Pasader

ind has denied the petitions for rehearing and f

rehearing en bance filed by the appellant Marei V

« .— ‘ } LL. 7 1, ;

saher, and by amici the

rthrig!

rie [ i] i

published ~

majority opinion are deleted. The first of these

iragraphs begins “The museum contends that t}

rticles” and the last paragraph of the two paragraph

nds “dismissed without leave to amend.” The followi:

W paraprap! nserted

nse.

‘ il] 1

°O.6 ryghlo . t va . ’ } sth niit

reasonable notice, dismissal without

ay . " ; " . . ¢ q , ZY ,

amena Wa: LEU) | appropriate Se LIN 2772eF1

I I

4 j |

mend |

of reasonable notice

under California Cor

8 338, and remand thi

ot ¢ > + 3 +

)

lea FINY

posed

’

ition tor panel renea

rin

nt to the appellee’s

Udalil UW I

petitions for rehearing

Preps T

DENIED. Judge Pres

Viarel vol

Il Odi itl

D iint ings alleged to have been looted ! y the Na

during World War II. The paintings were purchased

or around 1971 by the Norton Simon Museum of Art

Pasadena, California (“the Museum”), and are now

display there. Saher brought this claim against tl

Museum under § 354.3 of the California Code of Ci

Procedure, which extends the statute of limitations un

2010 for actions for the recovery of Holocaust-e1

ra ar

The primary issue on appeal is whether § 354.3 infringe

on the national government’

powers. The district court |

ind affirm the d

reemptead

exclusive foreign affair

ield that it does. We apgrs

LitiOUl

actions to recov

Prope California ¢

tf Civil Procedure § 338. The district court granted

Museum’s Rule 12(b)(6) motion to dismi Sah,

complaint under that statute without leave 1 a

because it is pos: ible Saher might be able to amend |

omplaint to bring her action withii 3

e district court’s dis!

eee Vit

' rice ¥ sel ra

At iti Y¥YUOriq

ousands of artwor! rom museums and f

ollections throughout kurope, in what has been ter:

the “greatest displacement of art in human histo:

Michael J Baz ler. Holocaust Justice: The Battl

Litution in America

’ ix ryvcr TT} ‘ r LA ) ‘

. Ai) ‘ i Pp; ¥Y¥ | ¥¥a

ibarked on the task of returning the looted

ountry of origin. In July 1945, President Ti

iuthorized the return of ‘ readily identifiable” wor}!

rt from U.S. collecting points. See, e.g., President

Advisory Commission on Holocaust Assets in the |

tates, Plunder and Restitution nh

Holocaust Victims’ Assets SR-142 (De (y(t

hereinafter Plunder and Restitution). At the I

onference, President Truman formally adopted a poli

“external restitution,” under which the looted art

turned to the countries of origin not to the individ

wner American (Commission for the Protect

alvage of Artistic and Historic Mor

Cad hi D) ak

, ell

dare ( ( ‘ }

6, UOng! enacted t loca \

mission Act of 1998, Pul 105-186

ll (codified as amended at 22 | ( 1621). 7

tublished the Presidential Advi C‘ommissio?

locaust A eT which conducted rs eur, hon tne

Holocaust-era assets, and advised the Presid

iture policies concerning the recovery of these a

nat Same ve@ar, tne ota

ference with forty-four other nations te re

covery of} Holocau r-era 2 ' | i)

roceeding ol tne W iSningt (cont

a ,

— ‘

+ “

—

—_

+—

ms *

a oe

a on

7 +

wee .

~ =

—_—

ir. 2006); accord

c. v. Ford Motor Co., 189 F.

1999) (taking judicial notice “that the mar

f the information contained in

y the defendants.”). The

standards for admissibility set forth in Federal Rule

iy idence 201 b). Accordingly we take ju

{

— * 4h

3d 971, 981 n.1 18 (9th ¢

I ket was aware

ews articles submitte

se publications meet the

licial notice

. > AT % . aten ry hn ° : — + .

ly as an Indication of what info ition Ww

it the tin

onstitutionality

Affairs Doctrine

vlan. vor « Ye |} *y) 1° $otay

alidating a Calllornia statute

Presidential foreign policy); Cr

’ - <y ‘ | *s> *) 7.) ~y

lL 5380 U.S. 363, 373-74.

’

| | th | — . . " ‘hea’ Si ,

holding that the Litvinov Assignment, an e»

} | } }

rreement, preempted New York public pol

lecasionally, howevs r, in tne avsence OT any conth

e Court has declared state laws to be incompatib!

with the federal government’s foreign affairs power. Se

Zschernig, 389 U.S. at 4382, 88 8. Ct. 664 (strikir

: Lf

down an Oregon probate law, in the absence of an}

federal action, because it was an “intrusion by the Stat

into the field of foreign affairs which the Constituti

entrusts to the President and the Congress”); Ai

312 U.S. at 638, 61S. Ct. 399 (invalidating a Pennsylvan

immigration law because the field of immigrati

regulation was occupied exclusively by federal statute

- . ate S Le . » we Ae ved L ae “ 7 ‘

ind regulations): see also Deutsch 324 F.3d at TI

oneluding that § 354.6 infringed on the feder

rnment’s exclusive power to wage an é

Viuseul ll ro4 reel]

der either theory. Firs the Museu! eontend

354.3 conflicts with the Executive Branch’s poliey «

xternal restitution following World War

T ) ) ) Ss 2 j 1 \? ,

\lternatively, the Museum argues, § 504.5 1s preempt

, }

Cause al Iniriny OT Lhe 1 ¢ 1@Tdal CF Ve] mie!

Does § 354.3 Conflict With the Ex

Policy of External Restitution?

Federal law's “power” to preempt state law aris¢

e Supremacy Clause, which provides that “the Laws of

the United States” and “all Treaties. . . shall be the

supreme Law of the Land... any Thing in the Constitution

r Laws of any State to the Contrary notwithstanding.’

}.S. Const. art. VI, § 2. Under a traditional statutory

preemption analysis, conflict or obstacle preemption occur:

where the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Crosby v. Natl Foreign Trad

uncu, 530 U.S. 363, 373, 120 S. Ct. 2288, 147 L. Ed. 2d

LOH OA ;

<a>) ) s4+39 219 TY] ‘ da ‘© 4

302 (2000) (citing Hires, 312 U.S. at 67, 61 S. Ct. 399

ternal quotation mat mitted

’ |

rmxeeutive agreements Setting Claims wit re

T na nati } > lone heen ace “ded the . 4

ris allt mationais Llci VC iOont oOeen accordadet LIit Neale |

‘eemptive effect. Garamendi, 539 U.S. at 416, 12

Ct. 2374 (“[Vjalid executive agreements are fit t

preempt state law, just as treaties are[.}"); Dames & Moor

i 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed. 2d 918

Megan, 2)

1981); c/nated States v. Pink, 315 U.S. 203, 62 8. Ct. 552

Ed. 796 (1942); Belmont, 30

In Garamendi, the Supreme Court inva

. T

» I

California statutory scheme which facilitated litigation

Holoeaust-era insurance claims. Garamend?. 539 U.S

‘ >) ’ (‘4 mur x here ee ee } be

101. 125 S. Ct. 2574. Tne Court concluded that thi

bstaecle to the Germa

Calitornia scheme posed an ot

1} aAtA . y) ann . aT ae . , —

oundation Agreement and other expressions of E:xecuti

ei taval, Valheary: “ot orwiniT ry lin |

mranen Powey preferring nonyuaicecl I

t+ Af) "7 TYR | ¢

tiere, the Museum conte }

preempted by the Executive Brance!

_? | . - ‘

MS poOlcs or exte

‘estitution. This policy, the Museum argues,

" h

expressed in two main sources: first, the Lo

Declaration, and second, “Art Objects in U.S. Zone,”

S. policy statement approved by President Tru

during the Potsdam Conference in August of

aca ‘GS &.

London Declaratio

» United States 1S, o VW

ixteen other nations, were signatories to the Lond

Declaration of January 5, 1943. Forced Transfe

Property in Enemy-Controlled Territory, 1943, in 3 Dep't

of State, Treaties and Other International Agreement

of the United States of America 1776-1949, p. 754

Bevans comp. 1969) (hereinafter

Declaration served as a “formal warning

eoneerned, and in particular persons in neut!

countries,” that the Allies intended “to do their ut

to defeat the methods of dispossession practiced b

rovernments with which they | were

regardless of “whether such transfers or

taken the form of open looting or pl

}

transactions apparently legal in f

purport[ed] to be voluntari

Dec aration does not explicitly addres

repacations, but has been credited by

()

(] {

Art Objects in U.S. Zone

When the American forces entered Germany in thi

winter of 1944-45, they discovered large stashes of Nazi-

looted art, hidden in castles, banks, salt mines, and even

caves. Plunder and Restitution at SR-13, SR-&85. U.S

authorities established several central collection points

within the U.S. Zone to assemble the recovered artwork

“for proper care and study.” Report, Art Objects in U:S.

Zone, July 29, 1945, NACP, RG 338, USGCC HQ, ROUS

Army Command, Box 387, File: Fine Art [318574-575]

hereinafter “Art Objects in U.S. Zone”)

On July 29, 1945, at the Potsdam Conferences

President ‘Truman approved a policy statement setting

forth the standard operating procedures governing the

looted artwork found within the U.S. zone of occupation.

Art Objects in U.S. Zone; Roberts Commission Report

at 148. The governments of the formerly occupied

countries submitted consolidated lists of items taken by

the Germans, with information about the location and

circumstances of the theft. Plunder and Restitution at

SR-142. The U.S. authorities examined the lists, and

when artwork was identified, it was returned to the

country of origin. /d. Under this policy of “external

restitution,” the U.S. restituted the looted artwork to

countries, not individuals. Art Objects in U.S. Zone;

Plunder and Restitution at SR-139-SR-142. The newly

ed governments were responsible for restituting

tne art to the indlviaua! owners. Unce tne art w

returned to the country of origin, the U.S. played n

further role

A contemporaneous memorandum from the State

Department illuminates several! of the reasons the

federal government preferred the policy ot

externa}! restitution over individual restitution. U.S.

Dep’t of State, Memorandum from Interdivisional

Comm. on Rep., Rest., & Prop. Rights, Subcomm. 6,

Recommendations on Restitution, Apr. 10, 1944, 1,

NACP, RG 59, Lot 62D-4, Box 49, State/Notter

[320633-644] (hereinafter Recommendations on

Restitution). First, in view of the complexities of the sham

transactions through which the Nazis seized many of

the artworks, the State Department felt it best to allow

. the individual countries to handle restitution in

“whatever way they see fit.” Jd. at 2. Second, the State

Department observed, in some cases, it might “be

impossible to locate the original owners or their heirs

and the governments involved will have to decide what

should be done with the property or proceeds

therefrom.” /d. Finally, the State Department

recognized that the liberated countries themselves had

1 Stake in the restitution of art owned by their citizens

[1]n many, if not most, cases the local funds

iwith which the Nazis “purchased” the art

from the persecuted] were supplied originally

yy the local government or central bank a

occupation costs or through forced credits

]

foreed the loeal

he Germans in effect

VETNIMeN’ t Day LOr Ul r purcna

individual owner received recompense in lov

currency but the country as a whole receiv:

10 recompense for the transfer of propert

to foreign owners. These cases constitut

ooting just as much as the ec tr

eizure without re

autnoritit topped a

xternal restitution of looted artwork as of Septembe

15, 1948. Plunder and Restitution at SR-143. By th

beginning of 1949, close to three million pieces of Jew)

cultural property had been restituted to twelve differ

4 y

‘ountries by the U.S. authoritie

Had California enacted § 354.3 in 1945, it would hi:

lirectly conflicted with the federal government’s poli

of external restitution. If the statute had been enactes

in the immediate aftermath of the war, it would hav

presented a competing method of resolving restitution

claims, and a forum for individuals to seek the return «

their looted art—in clear contravention of the Executive

Branch policy. The California statute also would havi

presented a direct threat to several of the goa

} nA] er Lee

underlying the k:xecutive Brat

rehabilitation of Germat

. AL e.* ‘ | : 1 ¢ .°. + |

wever, ended in 1948. After September 15, 1948, t!

rnorit

f , ? ») :

iLuUt i i ALALIVI Q Mi iv

in fact, as Saher states in her complaint, the Cra

vere returned to the Netherlands through the |

xternal restitution program. Section 354.3

onflict with or stand

longe? bameha'

} KA

ne IViuSeumM a iry use OWeVe!]

deral government’s concerns leading to the exter!

restitution policy remain relevant today. For examp!

the Museum argues that claims under § 354.38

problematic, because they ask California court

review the restitution decisions of foreign governme

Kiven if true, there would still be no conflict becau

+} _ 4 1:

tated above Lne ¢ rernai re ition poh

effect

tif

in Sum, nad tne CWallrtol < ( LU Lf i i

mediately following WWII, it undoubtedly would |

ontlicted with the Executive Branch’s policy of exter)

esolution. The statute does not, however, conflict wit

, 1

nt foreign policy, noused

ny Curr

fn the Absence of Any Conflict With Federal |

or Foreign Policy, ts §$ 354.3 Nonethele:

\ —

Preempted Under the Foreign Affairs Doctrine

ign alt:

ct with a federal

Ct. 664:

Garamendi.

Statutol

relgn pol ‘y with no seriou

be addressing a _ traditional

ponsibility, field preemption might be tl

ippropriate doctrine, whether the Nation

rovernment had acted, and if it had, witnhou

eference to the degree of any conflict, tl

+ |

rinciple having been established that

onstitution entrust foreign poli

to the National

Daridowit2

| Kid 25 |

Ke Il tradalt lal

field preemption may occu

i. treaty or federal statute, |because

late the Constitution by establishing its own fore

olicy.” Deutsch, 324 F.3d at 709 (internal citation ar

juotations omitted). The central question, then, Is tl

n enacting § 394.5, has California addre

radition =! state responsibility, or has it infringed

oreign affairs power reserved | t } (SO!

] isl ‘

tations Tol king tne [ ’

ype rt\ I Opt ri Ol Course traditionall I Ul

Loe iLé Buf 5294 >CanNNOL De fuirl ( iLeyorl

rarden variety. property regulat ection 504.5 d

L apply to all claims of stolen art, o1 enall clan

t looted in war. Tt tatute adare nl ne el

| yr |

tal ) | ‘ rulate ire }| radi [

mpectene but vy ict iT] Lore n alla

rawvend 5 se WAS {) ‘

jeecting purpo! (I inte) l biatl

Irance pusine ind Dlue sky laws); Crosby, 530 |

L367,373 1.7, 120 5, Ob. 22388 (rejecting purported

terest in taxing and spendiny); ZAschernig v. Mill

PNT of rope ry ) be i] | 2A | dat

ditional State intet , r) ( ifory

yport of HVIRA, findin ead that the real pur}

¢ Late ls L! ¢ | | | (

usand Holos ISI 1 | i

iy f Maik’ j | :

‘

a ; i a

. 1 }

Tw.ryry y Tr ° i> ’ ? ) i | | T ‘ | ‘

bia and LOel?r ne ~ 4 LLP LIC ICT HK ISIALILY C t Val VY

which we are entirely sympathetic. In Garan

owever, the Supreme Court held that “California

‘oneern for the several thousand Holocaust survivor

said to be living in the state... does not displace gener

standards for evaluating a State’s claim to apply it

forum law to a particular controversy or transactio!

inder which the <tate’s claim is not a strong ons

(ln : =. T @ ; Or 9 199 . ‘ N97 ah

Garamendi, 539 U.S. at 426-27, 123 S. Ct. 2374. Tl

+ at ~~ + > i > , ,r\4 ay. ae / .

State S interest aione Was not Suiiicele In UWararrie

, i : by ]

» Save the statute (T)here being about 100,00

e417 y : samt? ] > i + 4" 4 >

rvilvors 1n he count VY, ONLY a small i1ractlo Ol Lne

AQ laitnem y + + } 4

ve in VCailltornia. As igalnstl ne respo!l sibility the

+a ’ y 1 +} ’ , .

nited States of America, the humanity underl\ ng tl

] } } ~

+ + > + . + ) & + +?

ite Statute could not give tne state tne benefit of a

ry\T ry) roc ] 1? y te mi i > > ft ,

‘ | AA ‘

‘ | .

s A a «4 e 4 .

r) IRA } .

i@~ting § 9594.5 tna ] ict r { elate

tatutes strucK daown 1n Le sci na Ga?

ri _ ora p —- j oe

ction 354.3 addresses e problem of N: eda

irrently hangin OT I A . 1 tne state Ss mus

} }] = , 4 7 T > >

nda gaiieries ASS¢é ( r l

4 4

nformation Workshes rA :

California certainly has a le gitimate interest

regulating the museums and galleries operating withi

its borders, and preventing them from trading in and

displaying Nazi-looted art. Indeed, it appears the

original goal of § 354.3 may have been to regulat

California museums and galleries . such a manner

Prior to its enactment, however, the bill was amended

The restriction limiting the scope of the statute to suits

against “museums and galleries in California” was

stricken. Assem. Amend. to Assem. Bill No. 1758 (2001

2002 Reg. Sess.); Sen. Jud. Com., Analysis of Assem

Bill No. 1758 (2001-2002 Reg. Sess.) Jun. 25, 2002, pp

»-6. As enacted, the statute allows suits against “any

museum or gallery that displays, exhibits, or sell

article of historical, interpretive, scientific

significance,” whether located in the state or not. Se

[ OL brit MALUTE aS CHACLECG

California’s purported interest in protecting it:

residents and regulating its art trade. The amended

version of § 354.3 suggests that California's real purpose

was to create a friendly forum for litigating Holocaust

restitution claims, open to anvone in the world to sue

museum or gallery located within or without th

A memorandum from the > Governor’ s office provides

further illustration of California’s intent. In it. California

is characterized as a pioneering leader in the quest f

. 1 ’ . ,

tice for |} \inepanet % Ta hae

AOI LUT TOLOCAaAUST VICTIN

lution

Ss reso

iment

rove

swap

CE O8osil

addr

Q ] uvdanp ( } ? T 1¢

Se Fe SCAG Pe Fi ec : I

i } r> +> ‘ + > ; '

CSDO ISIOMLUTLY, a ii ‘

7 ] TileTetantat 7 ’

Cid preempt M1

4% } |

1 <4 .

Woes the Calitornia Statute Intru

1 ¢ } rT

Eixpressly or Impliedly Reserved

Government by the Cionstitut}

re | 4 4 4

‘ tae pl! rere

, { ¥ f

reqael re | oe Se ]

+ +r3¢ l } ’

SLALULES VM ( i

‘ ’ t

4 <— }

vas found to infringe on the federal government's

xclusive power to make and resolve war. Sen. Rules

Com., Off. of Sen. Floor Anal) 1. reading rade

f Assem. Bill No. 175 (2( 001-2 102 Re fy. Sess. ) Aug. &,

2002. Like its sister statute inane down in De utscl

Ses. Bt

y 354.3 “creates a special rule that applies only to a newly

of plaintiffs. Jd. Like § 354.6, § 354.

defined class

creates a new cause of action “with the aim of ; ectifying

wartime wrongs committed i our enemies or by partie

operating under our enemies’ protection.” 324 F.3d at

iO8 This is significant because, as the Deutsch Court

ted, [a] state is generally more likely to exceed the

imits of its power when it seeks to alter or create rights

nd obligations chan when it seeks merely to further

enforcement of rl re iV exist ne] whts nda aut} DA

sd at 7OS

Sane! a VeVe li¢ i }

stinguishable from the statute at issue in Deuts

ecause it does not fT irget forme! Wartinie nem

Section 354.3 authorizes suits only against museums an

” 1

. y 1+ > 1} ? an X 7s

Vrongs committed DY oO les OF OY partie

r ,? mney mA } ) »* y ry ~ mT T T y : 2 y ; ? :

CrTatl uUnae (iu t { bPE CPA l [ft ‘ y t

verboten intent. Distinctions between the cla

eligible defendants are irrelevant in light of this fat

similarity.

Saher also contends that under Alperin v. Vatice

Bank, 410 F.3d 532 (9th Cir. 2005), claims for restitution

of “garden variety property” can be distinguished from

claims for reparation arising from wartime injury. In

Alperin we considered whether the claims for restitution

presented by a class of Holocaust survivors presented

a nonjusticiable political question. Saher places

particular reliance on the following quote: “Reparation

for stealing, even during wartime, is not a claim that

finds textual commitment in the Constitution.” Alperin,

410 F.3d at 551. This quote references the first Baker

test, Which requires courts to consider whether the casi

In question concerns an issue that has been textually

committed by the Constitution to another branch of

government. /d. at 544, 549-52 (citing baker v. Carr, 369

U.S. 186, 210-11, 82 8. Ct. 691, 7 L. Ed. 2d 663 (1962

Ultimately, in Alpe mn we concluded that despite th

political overtones inherent in cases brought b\

Holocaust survivors, the underlying property issues

presented in such cases were not political questio

constitutionally committed to the political bral

at dol

saner Ss 1 1T1Ce | isSvDpliaCed

olding that the judiciary has the power to adjudicat:

| bh + ’ of salary + cacy + wy. . y+ . 4

Holoecaust-era property ¢ laims does not mean that state:

have the power to provide legislative remedies for thes

2 : : } : —t ‘i. } ‘ . } .

ms. Here, the relevant question is whether the pe

| }

, 7

oO wage and resolve war, including the power to legislat«

restitution and reparation claims, is one that has been

exclusively reserved to the national government by the

Constitution. We conclude that it has.

Section 354.3, at its core, concerns restitution f

injuries inflicted by the Nazi regime during Word War

Il. Claims brought under this statute, including the

instant claim, would require California courts to review

acts of restitution made by foreign governments. For

example, in this case, the parties contest the provenance

f the Cranachs. In order to determine whether the

Museum has good title to the Cranachs, a California

court would necessarily have to review the restitution

decisions made by the Dutch government and courts

Mihie yar « ; ~t pe« : +9 QF 2 plain 2 1) )

This example illustrates that §$ 354.5 claims eannot be

separated from the Nazi transgressions from which the’

rise

Nneiuslal today D lLU! SSeqa

= TT re | e , ein od acy | " } s . >

cumented nistory oF reaeral actlor addressing tn

be : > y , 2 oe F m YL, e ] — —

subject of Nazi-looted art. The Art Looting and

Investigation Unit of the Office of Strategie Services

gathered a great deal of intelligence about looted art

through covert operations during and after the war

Plunder and Restitution at SR-92. Immediately following

& ie en Bh , cad ~ os : ’ ' ’

the war, the federal government impiemented the

program of external restitution, as discussed in more

detail above. It is beyond dispute that there was no rol

for individual states to play in the restitution of Nazi

ited assets during and immediately following the w

Recent Administrations and Congresses continue t

address problems facing Holocaust survivors and ehelr

heirs. See, e.g., Pub. L No. 105-186, June 23, 1998, 11

Stat. 611, codified at 22 U.S.C. § 1621 (establishing “we

Presidential Advisory Commission on Holocaust Asset:

in the United States); Plunder & Restitution, supra (th

final report of the Presidential Advisory Commission on

Holocaust Assets in the United States); U.S. Dep’t of

State, Washington Conference Principle s on Nazi

Confiscated Art (Dec. 3, 1998), http ://www.state.gov/p

eur/rt/hiest/23231.htm (hereinafter Washingto:

Principles). (adopted by the forty-four governments

participating in the Washington Conference o1

Holocaust nra Assets, hosted by the State Department

on December 3, 1998). This history of federal action is

SO Rc NN and pervas.:\ e as to leave no room for

state legislation. Cf English v. General Elec. Co., 496

U.S. 72, 79, 110 S. Ct. 2279, 110 L. Ed. 2d 65 (1990)

(discussing traditional statutory field preemption)

l‘inally, the federal government, “representing

does the collective interests of the... states, 1

entrusted with full and exclusive responsibility for th

conduct of affairs with foreign sovereignties.” Han

312 U.S. at 68, 61S. Ct. 399. The recovery ot eee

era art affeets the international art market, as well a

foreign affairs. Many have ealled for the creation of an

nternational registration system, and a commission t

settle Nazi-looted art disputes. "See. é.g., Pollock, 43

Houston L. Rev. at 231. Only the federal governme

possesses th e power to negotiate and e STi \blis these o

other remedies with the internation: Immunity

discussions with other countries, which will hopefully

yield a comprehensive remedy for all Holocaust victims

and their heirs. See, e.g., Washington Conference

Report. No organization comparable to the

International Commission on Holocaust Era Insurance

Claims has been established yet to resolve Holocaust

era art claims. This does not, however, justify

California’s intrusion into a field occupied exclusively

by the federal government

discussed above, the federal government has initiated

]

[In sum, it is California’s lack of power to act which

ultimately fatal. In Deutsch, we held that “{i]n the

absence of some specific action that constitutes

authorization on the part of the federal government,

states are prohibited from exercising foreign affairs

powers, including modifying the federal government’s

resolution of war-related disputes.” Deutsch, 324 F.3d

at 714. California may not improve upon or add to the

resolution of the war. /d. The factual circumstances

surrounding this case the many years which have

passed since Goring stole the Cranachs from

Goudstikker, restitution of the paintings to the

Netherlands by the Allies, or the changes in ownershij

} . . S “en “ ae . ; ’ } )

ince then cannot save § 354.5 from this fatal fla’

a ¥

V. Did the District Court Err in Concluding that

Saher’s claim was Time-Barred Under California

Code of Civil Procedure § 338?

Though Saher cannot bring her claim under § 354.3,

she may be able to state a cause of action within the

three-year statute of limitations of § 388. The district

court held that Saher’s § 338 claim was time-barred,

because she did not inherit her interest in the Cranachs

until after the statute of limitations on the claim had

expired. The claim, however, might survive a Rule

12(b)(6) motion to dismiss depending upon how Saher

might be able to allege the notice element

1. Constructive Notice

\t the time the museum acquired the Cranachs,

around 1971, § 338 provided a strict three-year statute

of limitations. Cal. Civ. Proc. Code § 338(3).4 In 1982,

the section was amended to incorporate a discovery rule:

“(The cause of action in the case of theft, as defined in

$ 484 of the Penal Code, of any art or artifact is not

deemed to have accrued until the discovery of the

whereabouts of the article by the aggrieved party, his

or her agent, or the law enforcement agency that

riginally investigated the theft.”® Cal. Civ. Proc. Code

a a IYSS, 8 oS5(S) Was renumbered Tet:

equent references refer to subsectio1 i

LORS Cla] Legis Serv. 1186 (West

| | i 4

l LIOoU t i I rt I 4 \ V = oe | i

ticle of historic nterpretive entific r art

S 300(C); 1952 Cal. Legis. perv. 3401 (West). Saher dos

not claim that the 1982 amendments should be applied

to her case. Rather, she contends that the statute of

limitations on her claim did not begin to run until she

discovered that the Cranachs were in the possession o

the museum

Decisions from California’s intermediate appellat

court have reached differing conclusions as to when the

statute of limitations under § 338 begins to run fo1

property stolen prior to 1983. In Naftzger v. American

Numismatic Society, the court held that a cause of

action for the return of property stolen before the 1982

amendment “accrue[s} when the owner discovered the

identity of the person in possession of the stolen

property, and not when the theft occurred.” 42 Cal. App

4th 421, 49 Cal. Rptr. 2d 784, 786 (1996). The Naftzger

court concluded that “there was a discovery rule of

accrual implicit in the prior version of section 338.” 49

Cal. Rptr. 2d at 786. In Society of California Pioneer

v. Baker, however, the court held that prior to the 1982

amendments, “the statute of limitations began to run

anew aguinst a subsequent purchaser.” 43 Cal. App. 4t]

174, 50 Cal. R ptr. 2d 865, 869-70 (1996). The Pioneer

court specifically noted its disagreement with Naft

90 Cal. Rptr. 2d at 870 n.10

‘he ( alifornia N UpremMe Court na not adare

the issue, but “has. however, pecifically held that the

discovery rule, whenever it applie , Incorporate the

) ]

principle of constructive noti {

ti3d 734, 741 (9th Cir. 2007) (citing Jolly 2 Lyla Lilly 4

Co., 44 Cal. 3d. 1103, 1109, 245 Cal. Rptr. 658, 751 P2d

923 (1988)). Thus, in Orkin, we concluded that “unde

the discovery rule, a |[pre-1983] cause of action accruc

when the plaintiff discovered or reasonably could havi

discovered her claim to and the whereabouts of he

property ” Id. at 74]

Saher argues, however, that the Naftzge

adopted a discovery rule based on actual, ne

constructive, notice. As we pointed out in Orkin, such a

rule would be clearly inconsistent with California

Supreme Court precedent. /d. (citing Jolly, 44 Cal. 3d

t 1109, 245 Cal. Rptr. 658, 751 P2d 923)

saher urges that we certify the issu

Supreme Court of California for resolution. Thoug!

Saher contends that the Orkin court’s interpretation of

California state law is incorrect, “it is well established

that we may reconsider earlier Ninth Circuit precedent

only by en banc review or after an intervening Supreme

Court decision.” Class Plaintiffs v. City of Seattle, 95:

K'2d 1268, 1285 (9th Cir. 1992) (declining to revisit th

court's interpretation of New York state law unde

imilar circumstances). Under Orkin, we are bound

apply a constructive notice tandard

conelusion, sanet cause action |

CCI UC whet he qaiscovered or red onably ( uid I

discovered her claim to the Cranac! 1 ti

hereabouts. Orkin, 487 F:3d :

bh Reasonable Diligene (

(he Museum asserts that Saher is precluded as a

matter of law from making the required showing of

reasonable diligence, because the facts underlying he:

‘laim were publicly available. We disagree

A claim may be dismissed under Rule 12(b)(6) or

the ground that it is barred by the applicable statute of

limitations only when “the running of the statute |

apparent on the face of the complaint.” Huynh v. Chase

Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)

“[A] complaint cannot be dismissed unless it appear

beyond doubt that the plaintiff can prove no set of fact

that would establish the timeliness of the claim

Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th

Cir. 1995)

in Orkin, we concluded that the plaintifi claim

vere time-barred because the face of the complaint

established facts that foreclosed any showing ot!

reasonable diligence. Orkin, 487 F.3d at 742. The Orkin

complaint admitted that the defendant had purchased

the painting in question at a publicized auction, and that

he was listed as the owner in a publicly available

catalogue raisonné. /d. at 74\|-42. By contrast, there ars

io facts on the face of Saher’ complaint which foreclo

i howling of laek of rea nable notice a i matte

dismissal without leave to amend was nol appropriat

See kKminence Capital, LLC uv. Aspeon, Ine., 38160 bsd

1048, 1052 (9th Cir. 2008). We, therefore, grant Sahe

leave to amend her complaint to allege the lack «

reasonable notice to establish diligence under California

Code of Civil Procedure -) Sedo, and remand this cas

the district court for that purpo

Vi. Conclusion

ihe judgment ot tne cdi Lurid ‘ rt LI / iIRMED

n part and REVERSED in part. The case

REMANDED for further pro din tent. 1

Lnis opimio!

‘7 ¥

Lire ASUON

j ri} pani jirsyrTY) 7 Fr ) TY ’ 7% C t T) .

LR ULSOSEIIL LIUIITL Ct bila j¢ iy Ss LULTCIUS

California is acting outside the realm of traditional state

responsibility, and that field preemption applies. Where

a State acts within its “traditional competence,” the

Supreme Court has suggested that conflict preemption,

not field astra is the appropriate doctrine. An

Ass'n v. Garamendi, 539 U.S. 396, 420 n. 11, 123 S.

Ct. 2374, 156 L. Ed. 2d 376 (2003). Garamendi counsels

that field preemption would apply “ Ulf a State were

simply to take a position on a matter of foreign policy

with no serious claim to be addressing a traditional stat

bility... . Id. hat is not the case here

. \ <a

regulated by the State. The majority acknowle

has a legitimate interest in regu g

museums and galleries, and that California Code abacoe

Procedure § 354.3 “addresses the problem of Nazi-looted

art currently hanging on the walls of the cee

museums and galleries.” Maj. Op. at 964-65. However,

the majority goes on to he at because aca. 354

applies to any museum or gallery, “California has created

a world-wide forum for the resolution of Holocaust

ase te cl aims, and that the State is therefore acting

outside the seope of its traditional interests. Ma ()]

—

—— pea

(ams

——

—_

at G65.

ne mayorit reads ne Sta l ii

‘

> r > YY a r

ay SUlla ad = Oo! re 1tlus WIT) repairer \ 11a

f «th, : ‘o1,f erie > ><} ' let Pert L.

I tne state or Calliornia. Because Lalliiornla is

bicaa

“serious claim to be addressing a traditional stat:

“Anennncshilstt<y ee ee ° ~aKeADoONA "ANVIL 3

responsibility, it is clear that Garamendi requires us

] ; een cs - Ae . 7

to apply conflict preemption, not field preemption

The maioritv’s reliance on Deutech » TarnerCor

ime Majorivcy S reilance On L/e’Utsci VU. Lurner?r i

324 F.3d 692 (9th Cir. 2005) is misplaced. The statute in

Deutsch, California Code of Civil Procedure § 354.6,

allowed recovery for slave labor performed “between

1929 and 1945, [for] the Nazi regime, its allies and

sympathizers, or enterprises transacting business in an)

of the areas occupied by or under control of the Nazi

regime or its allies and sympathizers.” This court. held

that California impermissibly intruded upon the power

of the federal government to resolve war by enacting

the Deutsch statute “with the aim of rectifving wartime

wrongs committed bi renen

Aid J qf { C 4 l7¢€ ‘ . . [ De al iUA,

711(emphasis added)

lhe majority concludes that Section 354.3 suffers

from a “fatal similarity” to the Deutsch statute because

Section 354.3 applies to looted artwork. Maj. Op. at 966.

I do not agree. The majority overlooks significant

differences between the Deutsch statute and Section

304.3. First, as discussed above, here California has acted

~* |

within the scope of its traditiona] competence to regulate

property over which it has jurisdiction. Furthermore.

sie } : 1+ 33 — y ~sen ‘ saw YE 2 1A . +

unlike the statute in Deutsch, Section 354.3 does not

target enemies of the United States for wartime actions

Nor contrary To the majoriuvs ‘-haracter} ation 1

As Ara ALY . ‘

‘

; . < . , . ‘ “ . . +? 7 _

SECLION OO. provide IOr War reparallons Vila}. Up.

966-67. Here, Appellee, a museum located in California,

. ] } a2 eae A I 77 Nise : — a

acquired stolen property in 1971. Appellant now seeks

‘ ee 7 ia

; oO en hens ‘ «4 2 ~ } = . ) “1149

o recover tnat property. 1 fail to see now a Caliiornia

; a ,

. ee => 7? 7 tT RP - veh

tatute allowing such recovery intrudes on the federa

‘ : ,

vernment s wer ft make and resolve Wal

} a. Oe eas ae ae : : Ree nee le

lL wouid reverse tne district court. As the majyoritvy

x :

] } ] \ - Oc “) ] ~ > . “l; . =

rrectiv nolas, section o 94.5 does not conflict with

federal policv. However. California has acted within its

— - yr) >> >> 1D - Oorryt r) bs , +n +

LOTUS ai Competence, a d field pré OL Snoule [

: 5 ‘ — :

TY \ "AINA Viac iT 17 7 yr

[ (

TI _ I ny Va

amlaves ro! I rha ai < iva I YS

+ = + o| 4 ‘

r ) “ = es. >

APPENDIX B OPINION OF THE UNITE!

STATES COURT OF APPEALS FOR THE

CIRCUIT FILED AUGUST 19, 200:

STATES COURT QO}

NINTH CIRCUIT

LU! ARI

N ART FOUNDATI

NORTON SIMON MUSE

LSA DENA: NORTON SIMO

OPINIO

during World War [l. The paintings were pu rchased i

yr around 1971 by the Norton Simon Museum of Art

asadena ‘odo (“the Museum”), and are now on

Wil

display saa. Saher brought this claim against the

\ . , + » . YF a x } . =—- ‘ y RG a

Vuseum under § 354.3 of the California Code of Civil

Procedure, which extends the statute of limitations until

) 5 . — . 2 > e > a° eur ‘y Ta ° ra¢ =< art

110 for actions for the recovery of Holocaust-era art

rhe primary issue on appeal is whether $ 354.3 infringes

on the natlonai governments exclusive foreign alfa

. : : — ‘ :

MOUTaAPrS 1a mie 10FT rHViIrT Hp tna if 1< \\ > f

DOWeTS. The qistrict court ne.id [nat it qaoes t

and affir Y) tho Ay ~$ 7} \ . a 1, } — w th oné ~ +) A >

ind attirm Lit qistrict ¢ il s Titeitl > it N Ye MELD

reempted

: q ‘ - ‘ f ae

La oTrnia > isa ( Car StLALTUTE mM ( .

<2. esa : '

: tinne ft . Fat! . ien nronear ny tTorni: | re:

or actions to recover stolen property C alltornia Code

ee Dan lyyrD IVIO “hh } -< ith

ot Civil Proeedure § 33S. The district court granted the

‘ oe ’ oat 1 . aa eee JP ss

Museum's Rule 12(b)(6) motion to dismiss Saher'’s

complaint under that statute without leave to amend

‘ 4

1? > , Y yi hy] wer te >P* TY) + by hho bh] >f ry) he —

YPCAaAUSe ILIS DOSS e eaner mien CP ADE ( end

- . : + } = " aunt m S259 e _—

noliaint to oring ner ; 1 VITNIN & BOS, We reverse

C} Tf 7 ? MITT “ disn ~ WiC hnout . 7 \ }

, for further proceedings

Background

1. Nazi Art Looting in WWII

During World War IT, the Nazis stole hundreds o

thousands of artworks from museums and privat:

collections throughout Europe, in what has been termed

the “greatest displacement of art in human history.”

Michael .J. Bazvler, Holocaust Justice: The Battle for

Restitution in America’s Courts 202 (N.Y.U Press 2003

Following the end of Worid War II, the Allied Forces

embarked on the task of returning the looted art to its

country of origin. In July 1945, President Truman

authorized the return of “readily identifiable” works of

art from U.S. collecting points. See, e.g.. Presidential

Advisory Commission on Holocaust Assets in the United

States, Plunder and Restitution: The U.S. and

Holocaust Victims’ Assets SR-142 (Dec. 2000)

(hereinafter Plunder and Restitution). At the Potsdam

Conference, President Truman formally adopted a policy

of “external restitution,” under which the looted art was

returned to the countries of origin—not to the individual

owners. American Commission for the Protection and

Salvage of Artistic and Historie Monuments in War

Areas, Report, 148 (1946) (hereinafter Roberts

Commission Report

‘

Despite these restitution ellorts, many paintings

Stoien bY the Nazis were never returned to their ri

owners. See, e.g., Bazvier at 204. Tracking the

rovenanee af N i-looted art is nearly impossible. si

provenance QI INaZl-ldaved al Is NeaflvV LMPOSSTOLE, SINC

many changes of ownership went undocumented, and

most of the transactions took place on the black market.

Id. In recent years, a number of the world’s most

prominent museums have discovered their collections

include art stolen during World War II. /d. at 205-06.

The federal government has continued to take

action to address the recovery of Holocaust-era art. In

1998, Congress enacted the U.S. Holocaust Assets

Commission Act of 1998, Pub. L. No. 105-186, 112 Stat

611 (eodified as amended at 22 U.S.C. § 1621). This Act

established the Presidential Advisory Commission on

Holocaust Assets, which conducted research on the fate

of Holocaust-era assets, and advised the President on

future policies concerning the recovery of these assets.

Id. That same year, the State Department convened a

conference with forty-four other nations to address the

recovery of Holocaust-era assets. U.S. Dep't of State,

Proceedings of the Washington Conference on Nazi

Confiscated Art (Dec. 3, 1998), http://www.state.gov/p

eur/rt/hlest/23231.htm (hereinafter Washington

Conference Proceedings). In the meantime, numerous

Holocaust victims and their heirs have turned to the

courts to recover their looted art. See, e.g., Republic of

Austria v. Altmann, 541 U.S. 677, 124 8. Ct. 2240, 159

L. Ed. 2d 1 (2004)

B. Section 354.3

‘ (

limitations, to prudential standing doctrine |

Pollock. Out of thre Night {I 2a. oc

Benjamin E.

Internationa

Permitting Litigation to Prompt a

Resolution to Nazi-Looted Art Claims, 48 Houston |

Rev. 193, 213-28 (2006); Lawrence M. Kaye, Avoidance

and Resolution of Cultural Heritage Disputes

Recovery of Art Looted Du ring the Holocaust, 14

Williamette J. Int’] L. & Disp. Resol. 243, 252-58 (2006)

In 2002, California responded to these difficulties by

enacting California Code of Civil Procedure § 354.3

Section 354.3 provides:

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 artwork from an\

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 jurisdictio

over that action until it nipletior

resolution

section 394.3(b : Ihe Cal fornia Statute allows SUIS

against “any museum or gallery that displays, exhibits

or sells any article of historical, interpretive, scientific,

or artistic significance.” Section 354.3(a)(1). The statute

also extends the statute of limitations for § 354.3 elain

until December 81, 2010. Section 354.3(c¢)

California has enacted several other laws extending

the statute of limitations for claims relating to the

Holocaust. See, e.g., Section 354.5 (extending statute of

limitations for insurance policy claims by Holocaust

victims or their heirs); Section 354.6 (creating a cause

of action and extending the statute of limitations for

slave labor claims arising out of WWII). Both of these

sister statutes have been found unconstitutional under

the foreign affairs doctrine. Steinberg v. Int'l Comm'n

on Holocaust Fra Ins. Claims, 1383 Cal. App. 4th 689,

34 Cal. Rptr. 3d 944, 953 (2005) (finding § 354.5

unconstitutional); Deustch v. Turner, 324 F.3d 692, 716

(9th Cir. 2003) (finding § 354.6 unconstitutional)

C. The Cranachs

Saher, the only surviving heir of Jacques

Goudstikker, a deceased art dealer, filed this suit in 2007

against the Museum under § 354.3 and California Penal

Code § 496, seeking the return of a diptych entitled

“Adam and Eve.” The diptych, a pair of oil paintings by

sixteenth-century artist Lucas Cranach the Elder

(hereinafter the “Cranachs”), is currently on public

display at the Museum

Goudstikker bought the Cranachs at an art auction

Berlin in or about May 1931.* Goudstikker was

2. The facts in this section are alleged in Saher's complaint;

some are disputed by the Museum. Given the procedural postur

of the case, we accept these factual alfegations as true, and

construe them in the light most favorable to Sahe1

prominent art dealer in the Netherlands; he specialized

in Old Master paintings. Goudstikker’s collection

contained more than 1,200 artworks, including

Rembrandts, Steens, Ruisdaels, and van Goghs.

When the Nazis invaded the Netherlands in

May 1940, Goudstikker and his family fled the country.

The family left their assets behind, including the Gallery.

Goudstikker brought with him a black notebook

containing a list of over 1,000 of the artworks he had

left behind in his collection (the “Blaeckbook”). The

Blackbook lists the Cranachs as Numbers 2721 and 2722,

and states that they were purchased at the Lepke

Auction House and were previously owned by the

Church of the Holy Trinity in Kies

After the roudstikkers escaped, the Nazis

looted So ee s gallery. Herman Goring,

Reischsmarschall of the Third Reich, seized the

Cranachs and hundreds of other pieces from the gallery.

Goring sent the artwork to Carinhall, his country estate

near Berlin, where the collection remained until

approximately May 1945 when the Allied Forces

discovered it. The recovered artwork was then sent to

the Munich Central Collection Point, where the works

from the Goudstikker collection were identified. In or

about 1946, the Allied Forces returned the Goudstikker

artworks to the Netherlands

The Cranachs were never restituted to the

]

Goudstikker family. Instead, after restitution

proceedings in the Netherlands, the Dutch government

delivered the two paintings to George Stroganoff, one

of the cjaimants, and he sold them, through an art dealer.

to the Museum.

The Museum filed a Rule 12(b)(6) motion to dismis:

Saher’s complaint filed in this case for the return of the

paintings. The district court granted the motion and

dismissed Saher’s claim with prejudice. The district

court held that § 354.3’s extension of the statute of

limitations was unconstitutional on its face, because it

violated the foreign affairs doctrine, as interpreted and

applied by the Ninth Circuit in Deustch, 324 F.3d 692.

The district court concluded that by seeking to redres:

wrongs committed in the course of World War II, the

California statute intruded on the federal government's

exclusive power to make and resolve war, including the

procedure for resolving war claims. The court. then

dismissed Saher’s complaint because it had not been

filed within the three-year period of California’s statute

of limitations, California Code of Civil Procedure § 338

This appeal followed

Il. Standard of Review

We review de novo the district court’s decision

dismissing Saher’s complaint under Rule 12(b)(6).

Edwards v. Marin Park, Inc., 356 E-.3d 1058, 1061 (9th

Cir. 2004). We accept all well-pleaded factual allegations

as true, and construe them in the light most favorable

to Saher. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

1278. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007); Johnson

v. Riverside Healthcare Sys., 634 F.3d 1116, 1122 (9th

Cir. 2008)

ippendix B

Ill. Motion for Judicial Notice

The Museum moves for judicial notice of two

Presidential Commission reports, a military order

approved by President Truman and enacted under the

command of Genera! Eisenhower, and a memorandum

prepared by a State Department committee. Judicial

notice of legislative facts such as these is unnecessary.

Fed. R. Evid. 201(a), advisory comm. note to 1972

amendments. See, e.g., Toth v. Grand Trunk R.R., 306

3d 385, 349 (6th Cir. 2002) (“| J judicial notice is

generally not the appropriate méans to establish the

legal principles governing the caseé.”

The Museum also moves for judicial notice of the

fact that various newspapers, magazines, and books

have published information about the Qfanachs. Courts

may take judicial notice of publications introduced to

“indicate what was in the public realm at the time, not

whether the contents of those articles were in fact true.”

Premier Growth Fund v. Alliance Capital Mgmt., 435

F.3d 396, 401 n.15 (8d Cir. 2006); accord Helrotrope Gen

Ine. v. Ford Motor Co., 189 F.3d 971, 981 n.118 (9th Cir

1999) (taking judicial notice “that the market was aware

of the information contained in news articles submitted

by the defendants.”). These publications meet the

standards for admissibility set forth in Federal Rule of

Kvidence 201(b). Accordingly, we take judicial notice of

them solely as an indication of what information was in

the public realm at the time

45a

{ppendi xr Bb

IV. Constitutionality of § 354.4 Under the Foreign

Affairs Doctrine

The Supreme Court has characterized the power to

deal with foreign affairs as a primarily, if not exclusively,

federal power. See, e.g., Am. Ins. Assoc. v. Garamendi,

539 U.S. 396, 413-14, 128 S. Ct. 2374, 156 L. Ed. 2d 376

(2003); Zschernig v. Miller, 389 U.S. 429, 432, 88 S. Ct.

664, 19 L. Ed. 2d 683 (1968); Flines v. Dawideiiie 312

U.S. 52, 63, 61 S. Ct. 399, 85 L. Ed. 581 (1941). The

Supreme Court has declared state laws unconstitutional

under the foreign affairs doctrine when the state law

conflicts with a federal action such as a treaty, federal

statute, or express executive branch policy. See, @.g.,

Garamendi, 539 U.S. at 421-22, 123 S. Ct. 2374

(invalidating a California statute which conflicted with

Presidential foreign ree Crosby v. Nat'l Foreign

Trade Council, 580 U.S. 368, 373-74, 120 S. Ct. 2288,

17 L. Ed. 2d 352 2000) | (invalidating a Massachusetts

statute which stood as an obstacle to a Congressional

act imposing sanctions on Burma); U.S. v. Belmont, 301

U.S. 324, 327, 57 S. Ct. 758, 81 L. Ed. 1134 (1937)

(holding that the Litvinov Assignment, an executive

agreement, preempted New York public policy)

Occasionally, however, in the absence of any conflict,

the Court has declared state laws to be incompatible

with the federal government’s foreign affairs power

See, e.g., Zschernig, 389 U.S. at 482, 88 S. Ct. 664

(striking down an Oregon probate law, in the absence of

any federal action, because it was an “intrusion by the

State into the field of foreign affairs which the

Appendix B

Constitution entrusts to the President and the

Congress”); Hines, 312 U.S. at 63, 61S. Ct. 399

(invalidating a Pennsylvania immigration law because

the field of immigration regulation was occupied

exclusively by federal statutes and regulations); see also

Deutsch, 324 F.3d at 712 (concluding that § 354.6

infringed on the federal government’s exclusive power

to wage and resolve war).

The Museum argues that § 354.3 is preempted under

either theory. First, the Museum contends, § 354.38

conflicts with the Executive Branch’s policy of external

restitution following World War II. Alternatively, the

Museum argues, § 354.3 is preempted because it

infringes on the federal government’s exclusive power

to conduct foreign affairs, and specifically, the power to

redress injuries arising from war. We address each

argument in turn.

A, Does § 354.3 Conflict With the Executive

Branch’s Policy of External Restitution?

Federal law’s “powcr” to preempt state law arise

from the Sepremacy Clause, which provides that “the

Laws of the United States” and “all Treaties . . . shall

be the supreme Law of the Land... any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, § 2. Under a

traditional statutory preemption analysis, conflict or

obstacle preemption occurs where the state law “stands

as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” Crosby

v. Nat'l Foreign Trade Council, 5380 U.S. 363, 373, 120

Ss. Ct. 2288, 147 L. Ed. 2d 352 (2000) (citing Hines, 312

SOa

Appendix B

U.S. at 67, 61.5. Ct. 399) (internal quotation marks

omitted).

Ki xecutive agreements settling claims with forcign

nations and nationals have long been accorded the same

preemptive effect. Garamendi, 5389 U.S. at 416, 123

S. Ct. 2374 (“[VJalid executive agreements are fit to

preempt state law, just as treaties are|.|”); Dames &

Moore v. Regan, 453 U.S. 654, 101 S. Ct. 2972, 69 L. Ed.

2d 918 (1981); United States v. Pink, 815 U.S. 208, 62 S.

Ct. 562, 86 L. Ed. 796 (1942); Belmont, 801 U.S. at 324.

In Garamendi, the Supreme Court invalidated a

California statutory scheme which facilitated litigation

of Holocaust-era insurance claims. Garamendz1, 5389 U.S.

at 401 123 8. Ct. 2374. The Court concluded that the

California scheme posed an obstacle to the German

Foundation Agreement and other expressions of

ixecutive Branch policy preferring non-judicial

resolution of such claims. /d. at 405-07, 123 S. Ct. 2374.

Here, the Museum contends that § 354.3 is

preempted by the Executive Branch’s policy of external

restitution. This policy, the Museum argues, was

expressed in two main sources: first, the London

Declaration, and second, “Art Objects in U.S. Zone,” a

U.S. policy statement approved by President Truman

during the Potsdam Conference in August of 1945.

[London Declaration

The United States and the Netherlands, along with

sixteen other nations, were signatories to the London

Declaration of January 5, 1943. Forced ‘Transfers of

Sla

Appendix B

Property in Enemy Controlled Territory, 1948, in 3 Dep't

of State, Treaties and Other International Agreements

of the United States of America 1776-1949, p. 754

(C. Bevans comp. 1969) (hereinafter Bevans). The

Declaration served as a “formal warning to all

concerned, and in particular persons in neutral

countries,” that the Allies intended “to do their utmost

to defeat the methods of dispossession practiced by the

governments with which they [were] at war|.]” /d.

In the Declaration, the Allies explicitly reserved the

right to invalidate wartime transfers of property,

regardless of “whether such transfers or dealings [had]

taken the form of open looting or plunder, or of

transactions apparently legal in form, even when they

purport[ed] to be veluntarily effected.” /d. The

Declaration does not explicitly address restitution or

reparations, but has been credited by some with laying

the foundation for the United States’s postwar

restitution policy. See, e.g., Plunder and Restitution at

SR-139.

Art Objects in U.S. Zones

When the American forees entered Germany in the

winter of 1944-45, they discovered large stashes of Nazi-

looted art, hidden in castles, banks, salt mines, and even

eaves. Plunder and Restitution at SR-13, SR-S5. U.S.

authorities established several central collection points

within the U.S. Zone to assemble the recovered artwork

“for proper care and study.” Report, Art Objects in U.S.

Zone, July 29, 1945, NACP. RG 338, USGCC HQ, ROUS

Appendix B

Army Command, Box 37, File: ine Art [38138574-575]

(hereinafter “Art Objeets in U.S. Zone”).

On July 29, 1945, at the Potsdam Conference,

President Truman approved a policy statement setting

forth the standard operating procedures governing the

looted artwork found within the U.S. zone of occupation.

Art Objects in U.S. Zone; Roberts Commission Report

at 148. The governments of the formerly occupied

countries submitted consolidated lists of items taken by

the Germans, with information about the location and

circumstances of the theft. Plunder and Restitution at

SR-142. The U.S. authorities examined the lists, and

when artwork was identified, it was returned to the

country of origin. 7d. Under this policy of “external

restitution,” the U.S. restituted the looted artwork to

countries, not individuals. Art Objects in U.S. Zone;

Plunder and Restitution at SR-139-SR 142. The newly

liberated governments were responsible for restituting

the art to the individual owners. Once the art was

returned to the country of origin, the U.S. played no

further role.

A contemporaneous memorandum from the State

Department illuminates several of the reasons the

federal government preferred the policy of external

restitution over individual restitution. U.S. Dep't of

State, Memorandum from Interdivisional Comm. on

Rep., Rest., & Prop. Rights, Subcomm. 6,

Recommendations on Restitution, Apr. 10, 1944, 1,

NACP. RG 59, Lot 62D-4, Box 49, State/Notter,

1320633644] (hereinafter Recommendations on

Sta

(ppendix B

Restitution). First, in view of the complexities of the sham

transactions through which the Nazis seized many of

the artworks, the State Department felt it best to allow

the individual countries to handle restitution in

“whatever way they see fit.” /d. at 2. Second, the State

Department observed, in some cases, it might “be

impossible to locate the original owners or their heirs

and the governments involved will have to decide what

should be done with the property or proceeds

therefrom.” /d. Finally, the State Department

recognized that the liberated countries themselves had

a stake in the restitution of art owned by their citizens:

[LJn many, if not most, eases the loeal funds

[with which the Nazis “purchased” the art

from the persecuted] were supplied originally

by the local government or central bank as

occupation costs or through foreed credits.

The Germans in effect forced the loea]

government to pay for their purchases. The

individual owner received recompense in local

currency but the country as a whole received

no recompense for the transfer of property

to foreign owners. These cases constitute

looting just as much as the cases of outright

seizure without recompense.

Id. at 2-3.

The U.S. authorities stopped accepting claims for

external restitution of looted artwork as of Septemlhx

15, 1948. Plunder and Restitution at SK-143. By the

S4a

ppendix B

bepimning of 1949, close to three million pieces of Jewish

cultural property had been restituted to twelve different

countries by the U.S. authorities. /d.

Had California enacted § 354.3 in 1945, it would have

directly conflicted with the federal government’s policy

of external restitution. If the statute had been enacted

in the immediate aftermath of the war, it would have

presented a competing method of resolving restitution

claims, and a forum for individuals to seek the return of

their looted art—in clear contravention of the Executive

Branch policy. The California statute also would have

presented a direct threat to several of the goals

underlying the Executive Branch’s policy, including the

rehabilitation of Germany.

The United States’s policy of external restitution,

however, ended in 1948. After September 15, 1948, the

U.S. authorities refused to accept any more claims for

external restitution. Plunder and Restitution at SR-148.

In fact, as Saher states in her complaint, the Cranachs

were returned to the Netherlands through the U.S.

external restitution program. Section 354.8 eannot

conflict with or stand as an obstacle to a policy that. is

no longer in effect

‘The Museum also argues, however, that many of the

federal government’s concerns leading to the external

restitution policy remain relevant today. kor example,

the Museum argues that claims under § 354.3 are

problematic, because they ask California courts to

4{ppendix B

review the restitution decisions of foreign governments.*

even if true, there would still be no conflict because, as

stated above, the external restitution policy is no longer

in effect.

[n sum, had the California statute been enacted

immediately following WWII, it undoubtedly would have

conflicted with the Executive Branch’s policy of external

resolution. The statute does not, however, conflict with

any current foreign policy espoused by the Fk xecutive

Branch.

B. Inthe Absence of Any Conflict With Federal

Law or Foreign Policy, is § 354.3 Nonetheless

Preempted Under the Foreign Affairs

Doctrine?

At times, albeit seldomly, the Supreme Court has

found a state law to be preempted because it infringes

upon the federal government’s exclusive power to

conduct foreign affairs, even though the law does not

conflict with a federal law or policy. Zschernig, 389 U.S.

at 432, 88 S. Ct. 664; Hines, 312 U.S. at 63, 61 S. Ct.

399. In Garamendi, the Court suggested that a

traditional statutory “field” preemption analysis should

be employed in such eases:

If a State were simply to take a position on a

matter of foreign poliey with no serious claim

to be addressing a _ traditional state

’

3. These and other related concerns are addressed more

fully in the section below dealing with field preemption

56a

Appendix B

responsibility, field preemption might be the

appropriate doctrine, whether the National

Government had acted, and if it had, without

reference to the degree of any conflict, the

principle having been established that the

Constitution entrusts foreign policy

exclusively to the National Government.

See, e.g., Hines v. Davidowitz, 312 U.S. 52,

63, 61 S. Ct. 399, 85 L. Ed. 581 (1941).

Garamendt, 5389 U.S. at 420 n.11, 123 S. Ct. 2374.

Unlike its traditional statutory counterpart, foreign

affairs field preemption may occur “even in [the] absence

of a treaty or federal statute, [because] a state may

violate the Constitution by establishing its own foreign

policy.” Deutsch, 324 F.3d at 709 (internal citation and

quotations omitted). The central question, then, is this:

in enacting § 354.38, has California addressed a

traditional state responsibility, or has it infringed on a

foreign affairs power reserved by the Constitution

exclusively to the national government?

l. Does § 354.3 Conecerna Traditional State

Responsibility?

Saher contends § 354.3 concerns a quintessential

state function: the establishment of a statute of

limitations for actions seeking the return of stolen

property. Property, of course, is traditionally regulated

by the state. But § 354.3 cannot be fairly eategorized as

a garden variety property regulation. Section 354.3 does

S7a

Appendix B

not apply to all claims of stolen art, or even all claims of

art looted in war. The statute addresses only the claims

of Holocaust victims and their heirs. Section 354.3(b).

Courts have consistently struck down state laws

which purport to regulate an area of traditional state

competence, but in fact, affect foreign affairs. See, e.g.,

Garamendi, 5389 U.S. at 425-26, 123 S. Ct. 2374

(rejecting purported state interest in regulating

insurance business and blue sky laws); Crosby, 530 U.S.

at 367, 373 n.7, 1208S. Ct. 2288 (rejecting purported state

interest in taxing and spending); Zschernig v. Miller,

389 U.S. 429, 437-38, 88 S. Ct. 664, 19 L. Ed. 2d 683

(1968) (rejecting purported state interest in regulating

descent of property); Deutsch, 324 F.3d at 707 (rejecting

purported state interest in procedural rules).

The Garamendi Court in dicta rejected the

“traditional state interests” advanced by California in

support of HVIRA, finding instead that the real purpose

of the state law was the “concern for the several

thousand Holocaust survivors said to be living in the

state.” Garamendi, 539 U.S. at 426, 123 S. Ct. 2374.

Though § 354.3 purports to regulate property, an area

traditionally left to the states, like HVIRA, § 354.3’s real

purpose is to provide relief to Holocaust victims and their

heirs.

California’s desire to help its resident Holocaust

victims and their heirs is a noble legislative goal, with

which we are entirely sympathetic. In Garamendi,

however, the Supreme Court held that “California’s

concern for the several thousand Holucaust survivors

S8a

Appendix B

said to be living in the state... does not displace general

standards for evaluating a State’s claim to apply its

forum law to a particular controversy or transaction,

under which the State’s claim is not a strong one.”

Garamendi, 539 U.S. at 426-27, 123 S. Ct. 2374. The

State’s interest alone was not sufficient in Garamendi

to save the statute: “[T]here being about 100,000

survivors in the country, only a small fraction of them

live in California. As against the responsibility of the

United States of America, the humanity underlying the

state statute could not give the State the benefit of any

doubt in resolving the conflict with national policy.” Jd.

California arguably has a stronger interest in

enacting § 354.3 than it did in enacting the related

statutes struck down in Deutsch and Garamendi.

Section 354.3 addresses the problem of Nazi-looted art

currently hanging on the walls of the state’s museums

and galleries. Assem. Jud. Com., Background

Information Worksheet for Assem. Bill No. 1758 (2001-

2002 Reg. Sess.) Jan. 30, 2002.

California certainly has a legitimate interest in

regulating the museums and galleries operating within

its borders, and preventing them from trading in and

displaying Nazi-looted art. Indeed, it appears the

original goal of § 354.3 may have been to regulate

California museums and galleries in such a manner.

Prior to its enactment, however, the bill was amended.

The restriction limiting the scope of the statute to suits

against “museums and galleries in California” was

stricken. Assem. Amend. to Assem. Bill No. 1758 (2001-

59a

Appendix B

2002 Reg. Sess.); Sen. Jud. Com., Analysis of Assem.

Bill No. 1758 (2001-2002 Reg. Sess.) Jun. 25, 2002, pp.

5-6. As enacted, the statute allows suits against “any

museum or gallery that displays, exhibits, or sells any

article of historical, interpretive, scientific, or artistic

significance,” whether located in the state or not. Section

304.3(a)(1).

The scope of the statute as enacted belies

California’s purported interest in protecting its

residents and regulating its art trade. The amended

version of § 354.3 suggests that California’s real purpose

was to create a friendly forum for litigating Holocaust

restitution claims, open to anyone in the world to sue a

museum or gallery located within or without the state.

A memorandum from the Governor’s office provides

further illustration of California’s intent. In it, California

is characterized as a pioneering leader in the quest for

justice for Holocaust victims:

In the past decade, it has come to the public’s

attention that spoils gained by the Nazi

Holocaust were enjoyed not just by the Nazis.

California has been a leader 1n exposing

those entities who benefitted financially from

the plunder or exploited the unusual

circumstances of the Holocaust, who have

been less than fortheoming in their business

dealings.

Governor’s Office of Planning & Research, Enrolled Bill

Report on Assem. Bill No. 1758 (2001-2002) Reg. Sess.)

Aug. 1, 2002 (emphasis added).

60a

Appendix B

By opening its doors as a forum to all Holocaust

victims and their heirs to bring Holocaust claims in

California against “any museum or gallery” whether

located in the state or not, California has expressed its

dissatisfaction with the federal government’s resolution

(or lack thereof) of restitution claims arising out of Word

War II. In so doing, California can make “no serious

claim to be addressing a traditional state responsibility.”

Garamendi, 539 U.S. at 419 n.11, 123 S. Ct. 2374;

see also Deutsch, 324 F.3d at 712 (rejecting California’s

interest in “redress[ing] wrongs committed in the

course of the Second World War”). California cannot have

a “distinct juristic personality” from that of the United

States when it comes to matters of foreign affairs. Pink,

315 U.S. at 232, 62 S. Ct. 552. When it comes to dealings

with foreign nations, “state lines disappear.” Belmont,

301 U.S. at 331, 57S. Ct. 758.

In sum, the scope of § 354.3 belies any purported

state interest in regulating stolen property or museums

or galleries within the State. By enacting § 354.3,

California has created a world-wide forum for the

resolution of Holocaust restitution claims. While this may

be a laudable goal, it is not an area of “traditional state

responsibility,” and the statute is therefore subject to a

field preemption analysis. See Garamendi, 539 U.S. at

419 n.11, 123 S. Ct. 2374.

6la

Appendix B

Does the California Statute Intrude on

a Power Expressly or Impliedly Reserved

to the Federal Government by the

Constitution?

The District Court held that § 354.3 intrudes on the

power to make and resolve war, a power reserved

exclusively to the federal government by the

Constitution. We agree.

The Constitution divides the war power between the

Executive, who is the Commander-in-Chief of the Armed

Forces, and the Congress, who has the power to declare

war. U.S. Const. art. II, § 2; 7d. at art. I, § 8. Deutsch

clearly provides that “[mJatters related to war are for

the federal government alone to address,” and state

statutes which infringe on this power will be preempted.

Deutsch, 324 F.3d at 712.

Section 354.3 establishes a remedy for wartime

injuries. The legislative findings accompanying the

statute repeatedly reference the “Nazi regime,”

“Nazi persecution,” and “the many atrocities” the Nazis

committed. 2002 Cal. Legis. Serv. 332 (West 2002).

By enacting § 354.3, California “seeks to redress wrongs

committed in the course of the Second World War” — a

motive that was fatal to § 354.6. Deutsch, 324 F.3d

at 712.

Section 354.3 was closely modeled on § 354.6, which

was found to infringe on the federal government’s

exclusive power to make and resolve war. Sen. Rules

62a

Appendix B

Com., Off. of Sen. Floor Analyses, 3d. reading analysis

of Assem. Bill No. 1758 (2001-2002 Reg. Sess.) Aug. 8,

2002. Like its sister statute struck down in Deutsch,

§ 354.3 “creates a special rule that applies only to a newly

defined class” of plaintiffs. Jd. Like § 354.6, § 354.3

creates a new cause of action “with the aim of rectifying

wartime wrongs committed by our enemies or by parties

operating under our enemies’ protection.” 324 F.3d at

708. This is significant because, as the Deutsch Court

noted, “[a] state is generally more likely to exceed the

limits of its power when it seeks to alter or create rights

and obligations than when it seeks merely to further

enforcement of already existing rights and duties.”

324 F\3d at 708.

Saher, however, argues that § 354.3 is

distinguishable from the statute at issue in Deutsch,

because it does not target former wartime enemies.

Section 354.3 authorizes suits only against museums and

galleries, but the actionable injury at the heart of the

statute is the Nazi theft of art. The California legislature

enacted § 354.6 “with the aim of rectifying wartime

wrongs committed by our enemies or by parties

operating under our enemies’ protection.” Deutsch, 324

I'3d at 708. California enacted § 354.3 with the same

verboten intent. Distinctions between the class of

eligible defendants are irrelevant in light of this fatal

similarity.

Saher also contends that under Alperin v. Vatican

Bank, 410 F.3d 532 (9th Cir. 2005), claims for restitution

of “garden variety property” can be distinguished from

63a

Appendix B

claims for reparation arising from wartime injury. In

Alperin we considered whether the claims for restitution

presented by a class of Holocaust survivors presented

a nonjusticiable political question. Saher places

particular reliance on the following quote: “Reparation

for stealing, even during wartime, is not a claim that

finds textual commitment in the Constitution.” Alperin,

410 F'3d at 551. This quote references the first Baker

test, which requires courts to consider whether the case

in question concerns an issue that has been textually

committed by the Constitution to another branch of

government. /d. at 544, 549-52 (citing Baker v. Carr, 369

U.S. 186, 210-11, 82 S. Ct. 691, 7 L. Ed. 2d 6638 (1962)).

Ultimately, in Alperrn we concluded that despite the

political overtones inherent in cases brought by

Holocaust survivors, the underlying property issues

presented in such cases were not political questions

constitutionally committed to the political branches.

Td. at 551.

Saher’s reliance on Alperin is misplaced. Our

holding that the judiciary has the power to adjudicate

Holocaust-era property claims does not mean that states

have the power to provide legislative remedies for these

claims. Here, the relevant question is whether the power

to wage and resolve war, including the power to legislate

restitution and reparation claims, is one that has been

exclusively reserved to the national government by the

Constitution. We conclude that it has.

Section 354.3, at its core, concerns restitution

for injuries inflicted by the Nazi regime during’ Word

O4a

Appendix B

War II. Claims brought under this statute, including the

instant claim, would require California courts to review

acts of restitution made by foreign governments. For

example, in this case, the parties contest the provenance

of the Cranachs. In order to determine whether the

Museum has good title to the Cranachs, a California

court would necessarily have to review the restitution

decisions made by the Dutch government and courts.

This example illustrates that § 354.3 claims cannot be

separated from the Nazi transgressions from which they

arise.

Our conclusion today is buttressed by the

documented history of federal action addressing the

subject of Nazi-looted art. The Art Looting and

Investigation Unit of the Office of Strategie Services

gathered a preat deal of intelligence about looted art.

through covert operations during and after the war.

Plunder and Restitution at SR-92. Immediately following

the war, the federal government implemented the

program of external restitution, as discussed in more

detail above. It is beyond dispute that there was no role

for individual states to play in the restitution of Nazi-

looted assets during and immediately following the war.

Recent Administrations and Congresses continue to

address problems facing Holocaust survivors and their

heirs. See, e.g., Pub. I.. No. 105-186, June 23, 1998, 112

Stat. 611, codified at 22 U.S.C. § 1621 (establishing the

Presidential Advisory Commission on Holocaust Assets

in the United States); Plunder & Restitution, supra (the

final report of the Presidential Advisory Commission on

65a

Appendix B

Holocaust Assets in the United States); U.S. Dep’t of

State, Washington Conference Principles on Nazi-

Confiseated Art (Dec. 3, 1998), http://www.state.pov/p/

eur/rt/hlest/23231.htm (hereinafter Washington

Principles). (adopted by the forty-four governments

participating in the Washington Conference on

Holocaust-lMra Assets, hosted by the State Department

on December 3, 1998). This history of federal action is

so comprehensive and pervasive as to leave no room for

state legislation. Cf English v. General Elec. Co., 496

U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990)

(discussing traditional statutory field preemption).

Finally, the federal government, “representing as

it does the collective interests of the ... states, is

entrusted with full and exclusive responsibility for the

conduct of affairs with foreign sovercignties.” Hines,

312 U.S. at 68, 61S. Ct. 899. The recovery of Holocaust-

era art affects the international art market, as well as

foreign affairs. Many have ealled for the creation of an

international registration system, and a commission to

settle Nazi-looted art disputes. See, e.g., Pollock, 43

Houston L. Rev. at 231. Only the federal government

possesses the power to negotiate and establish these or

other remedies with the international community. As

discussed above, the federal government has initiated

discussions with other countries, which will hopefully

yield a comprehensive remedy for all Holocaust vietims

and their heirs. See, e.g., Washington Conference

Report. No organization comparable to the

International Commission on Holocaust Era Insurance

Claims has been established yet to resolve Holocaust

era art claims. This does not, however, justify

66a

Appendix B

California’s intrusion into a field occupied exclusively

by the federal government.

In sum, it is California’s lack of power to act which

is ultimately fatal. In Deutsch, we held that “lijn the

absenee of some speeifie action that constitutes

authorization on the part of the federal government,

states are prohibited from exercising foreign affairs

powers, including modifying the federal government’s

resolution of war-related disputes.” Deutsch, 324 F.3d

at 714. California may not improve upon or add to the

resolution of the war. /d. The faetual circumstances

surrounding: this case — the many years which have

passed since Gdring stole the Cranachs from

Goudstikker, restitution of the paintings to the

Netherlands by the Allies, or the changes in ownership

since then — cannot save § 354.3 from this fatal flaw.

V. Did the District Court Err in Concluding that

Saher’s claim was Time-Barred Under California

Code of Civil Procedure § 338?

Though Saher cannot bring her claim under § 354.3,

she may be able to state a cause of action within the

three-year statute of limitations of § 338. The district

eourt held that Saher’s § 338 claim was time-barred,

beeause she did not inherit her interest in the Cranachs

until after the statute of limitations on the claim had

expired. The claim, however, might survive a Rule

12(b)(6) motion to dismiss depending upon how Saher

might be able to allege the notice element.

A. Constructive Notice

At the time the museum acquired the Cranachs,

around 1971, § 338 provided a strict three-year statute

of limitations. Cal. Civ. Proc. Code § 338(3).4 In 1982,

the section was amended to incorporate a discovery rule:

“| T]he cause of action in the case of theft, as defined in

§ 484 of the Penal Code, of any art or artifact is not

deemed to have accrued until the discovery of the

whereabouts of the article by the aggrieved party, his

or her agent, or the law enforcement agency that

originally investigated the theft.”° Cal. Civ. Proce. Code

§ 3388(c); 1982 Cal. Legis. Serv. 3401 (West). Saher does

not claim that the 1982 amendments should be applied

to her case. Rather, she contends that the statute of

limitations on her claim did not begin to run until she

discovered that the Cranachs were in the possession of

the museum.

Decisions from California’s intermediate appellate

court have reached differing conclusions as to when the

statute of limitations under § 338 begins to run for

property stolen prior to 1983. In Naftzger v. American

Numismatic Society, the court held that a cause of

action for the return of property stolen before the 1982

4. In 1988, § 383(3) was renumbered § 383(c); all

subsequent. referenees refer to subseetion (¢) for simplicity’s

sake. 1988 Cal. Leyis. Serv. 1186 (West).

>. In 1989, the phrase “art or artifact” was replaced with

“article of historical, interpretive, scientific, or artistic

significance.” Cal. Civ. Proe. Code § 338(c) (West 1989).

68a

Appendix B

amendment “accrue[s] when the owner discovered the

identity of the person in possession of the stolen

property, and not when the theft occurred.” 42 Cal. App.

4th 421, 49 Cal. Rptr. 2d 784, 786 (1996). The Na/tzger

court concluded that “there was a discovery rule of

accrual implicit in the prior version of section 338.” 49

Cal. Rptr. 2d at 786. In Society of California Pioneers

vu. Baker, however, the court held that prior to the 1982

amendments, “the statute of limitations began to run

anew apainst a subsequent purchaser.” 43 Cal. App. 4th

774, 50 Cal. Rptr. 2d 865, 869-70 (1996). The Proneers

court specifically noted its disagreement with Na/ftzger.

50 Cal. Rptr. 2d at 870 n.10.

The California Supreme Court has not addressed

the issue, but “has, however, specifically held that the

discovery rule, whenever it applies, incorporates the

principle of constructive notice.” Orkin v. Taylor, 487

F.3d 734, 741 (9th Cir. 2007) (citing Jolly v. Eli Lilly &

Co., 44 Cal. 3d 1103, 1109, 245 Cal. Rptr. 658, 751 P2d

923 (1988)). Thus, in Orkin, we concluded that “under

the discovery rule, a [pre-1983] cause of action accrues

when the plaintiff discovered or reasonably could have

discovered her claim to and the whereabouts of her

property.” /d. at 471.

Saher argues, however, that the Naftzger court

adopted a discovery rule based on actual, not

constructive, notice. As we pointed out in Orkin, such a

rule would be clearly inconsistent with California

Supreme Court precedent. /d. (eiting Jolly, 44 Cal. 3d

at 1109, 245 Cal. Rptr. 658, 751 P2d 923).

69a

Appendix B

Saher urges that we certify the issue to the

Supreme Court of California for resolution. Though

Saher contends that the Orkin court’s interpretation of

California state law is incorrect, “it is well established

that we may reconsider earlier Ninth Circuit precedent

only by en bance review or after an intervening Supreme

Court decision.” Class Plaintiffs v. City of Seattle, 955

F2d 1268, 1285 (9th Cir. 1992) (declining to revisit the

court’s interpretation of New York state law under

similar cireumstanees). Under Orkin, we are bound to

apply a constructive notice standard.

In conclusion, Saher’s cause of action began to

accrue when she discovered or reasonably could have

discovered her claim to the Cranachs, and their

whereabouts. Orkin, 487 F.3d at 741.

B. Reasonable Diligence

The Museum asserts that Saher is precluded as a

matter of law from making the required showing of

reasonable diligence, because the facts underlying her

claim were publicly available. We disagree.

A claim may be dismissed under Rule 12(b)(6) on

the ground that it is barred by the applicable statute of

limitations only when “the running of the statute is

apparent on the face of the complaint.” Hauynk v. Chase

Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006).

“{A] complaint cannot be dismissed unless it appears

beyond doubt that the plaintiff can prove no set of facts

that would establish the timeliness of the elaim.”

Appendix B

Supermatl Cargo, lnc. v. U.S., 68 F.8d 1204, 1206 (9th

Cir. 1995).

In Orkin, we concluded that the plaintiffs’ claims

were time-barred because the face of the complaint

established facts that foreclosed any showing of

reasonable diligence. Orkin, 487 F.3d at 742. The Orkins’

complaint admitted that the defendant had purchased

the painting in question at a publicized auction, and that

she was listed as the owner in a publicly available

catalogue raisonné. /d. at 741-42. By contrast, there are

no facts on the face of Saher’s complaint which foreclose

a showing of lack of reasonable notice as a matter of

law.

The Museum contends that the articles submitted

for judicial notice conclusively establish that Saher is

foreclosed from demonstrating reasonable diligence.

Yet the Museum fails to point to any authority which

holds that a motion to dismiss based on a statute of

limitations may be granted on the basis of facts judicially

noticed, rather than facts apparent on the face of the

complaint.

Krom the face of Saher’s complaint, it is not clear

that the statute of limitations has expired. Unless it is

clear that the complaint could not be saved by

amendment, dismissal with prejudice and without leave

to amend is not appropriate. Eminence Capital, LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

Appendix B

Accordingly, Saher’s complaint should not have been

dismissed without leave to amend.

VI. Conclusion

The judgment of the district court is AFFIRMED

in part and REVERSED in part. The case is

REMANDED for further proceedings consistent with

this opinion.

72a

Appendix B

PREGERSON, Circuit Judge, dissenting in part:

I dissent from the majority’s conclusion that

California is acting outside the realm of traditional state

responsibility, and that field preemption applies. Where

a State acts within its “traditional competence,” the

Supreme Court has suggested that conflict preemption,

not field preemption, is the appropriate doctrine.

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 420 n.11,

123 S. Ct. 23874, 156 L. Ed. 2d 376 (2003). Garamendi

counsels that field preemption would apply “[iJf a State

were simply to take a position on a matter of foreign

policy with no serious claim to be addressing a

traditional state responsibility. ...” Jd. That is not the

case here.

It is undisputed that property is traditionally

regulated by the State. The majority acknowledges that

California has a legitimate interest in regulating

museums and galleries, and that California Code of Civil

Procedure § 354.8 “addresses the problem of Nazi-looted

art currently hanging on the walls of the state’s

museums and galleries.” Maj. Op. at 1026. However, the

majority goes on to hold that because Section 354.3

applies to any museum or gallery, “California has created

a world-wide forum for the resolution of Holocaust

restitution claims,” and that the State is therefore acting

outside the scope of its traditional interests. Maj. Op.

at 1027.

The majority reads the statute far too broadly.

A reasonable reading of “any museum or gallery” would

ce]

I3a

Appendix B

limit Section 354.3 to entities subject to the jurisdiction

of the State of California. Because California has a

“serious claim to be addressing a traditional state

responsibility,” it is clear that Garamendi requires us

to apply conflict preemption, not field preemption.

The majority’s reliance on Deutsch v. Turner, 324

3d 692 (9th Cir. 2003) is misplaced. The statute in

Deutsch, California Code of Civil Procedure § 354.6,

allowed recovery for slave labor performed “between

1929 and 1945, [for] the Nazi regime, its allies and

sympathizers, or enterprises transacting business in any

of the areas occupied by or under control of the Nazi

regime or its allies and sympathizers.” This court held

that California impermissibly intruded upon the power

of the federal government to resolve war by enacting

the Deutsch statute “with the aim of rectifying wartime

wrongs committed by owr enemies... .” Id. at 708,

711(emphasis added).

The majority concludes that Section 354.3 suffers

from a “fatal similarity” to the Deutsch statute because

Section 354.3 applies to looted artwork. Maj. Op. at 1027.

I do not agree. The majority overlooks significant

differences between the Deutsch statute and Section

354.3. First, as discussed above, here California has acted

within the scope of its traditional competence to regulate

property over which it has jurisdiction. Furthermore,

unlike the statute in Deutsch, Section 354.3 does not

target enemies of the United States for wartime actions.

Nor, contrary to the majority’s characterization, does

/4a

Appendix B

Section 354.3 provide for war reparations.' Maj. Op. at

1028. Here, Appellee, a museum located in California,

acquired stolen property in 1971. Appellant now seeks

to recover that property. I fail to see how a California

statute allowing such recovery intrudes on the federal

government’s power to make and resolve war.

I would reverse the district court. As the majority

correctly holds, Section 354.3 does not conflict with

federal policy. However, California has acted within its

traditional competence, and field preemption should not

apply. Accordingly, I dissent in part.

1. Black’s Law Dictionary defines reparation as

“[c]ompensation for an injury or wrong, esp. for wartime

damages or breach of an international) obligation.” Black’s Law

Dictionary 1325 (8th ed. 2004). Section 354.3 allows only for the

recovery of stolen art

75a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA DATED OCTOBER 138, 2007

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 07-2866-JEFW (JTLx)

MAREI VON SAHER

NORTON SIMON MUSEUM OF ART AT

PASADENA, et al.

Oct. 18, 2007

ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

FOR FAILURE TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED

[filed 7/9/07; Docket No. 20]

ORDER VACATING SCHEDULING CONFERENCE

JOHN F. WALTER, District Judge.

On July 9, 2007, Defendants Norton Simon Museum

of Art at Pasadena, Norton Simon Art Foundation, and

Norton Simon Foundation (collectively “Defendants”)

filed a Motion to Dismiss Pursuant to Fed. R. Civ. P

12(b)(6) for Failure to State a Claim Upon Which Relief

Can Be Granted. On August 20, 2007, Plaintiff Marei

76a

Appendix C

von Saher (“Plaintiff”) filed her Opposition. On August

20, 2007, the Court granted the Application of Bet

Tzedek Legal Services, the Jewish Federation Council

of Greater Los Angeles, and the American Jewish

Congress for Leave to File Memorandum as Amici

Curiae. On September 17, 2007, Defendants filed a

Reply. Pursuant to Rule 78 of the Federal Rules of Civil

Procedure and Local Rule 7-15, the Court finds that this

matter is appropriate for decision without oral

argument. The hearing calendared for October 22, 2007

is hereby vacated and the matter taken off calendar.

After considering the moving, opposing, and reply

papers and the arguments therein, the Court rules as

follows:

Adam and ve, two sixteenth century oil paintings

on wood panels by Lucas Cranach the Elder, (the

“Cranachs”) are currently on display at Defendant

Norton Simon Museum of Art at Pasadena. The

Cranachs were acquired by Defendants Norton Simon

Foundation and Norton Simon Art Foundation from

George Stroganoff-Scherbatoff in 1971 and have been

continuously on display at the Museum since 1979.

On May 1, 2007, Plaintiff filed a Complaint against

Defendants in which she alleges that “|t]he Cranachs

were looted by the Nazis from a noted Jewish [art]

collector and dealer|, Jacques Goudstikker,] during their

1 1. Plaintiff claims that as the “sole living heir” of

Mr. Goudstikker, she is “the rightful owner, and is thus

entitled to recover sole possession, of the Cranachs.”

TTa

Appendix C

Id. at 4% 2, 41, 46. Plaintiff brings this action under

yalifornia Code of Civil Procedure § 354.3 and allezes

the following claims for relief: (1) Replevin; (2)

Conversion; (3) Damages under California Penal Code

§ 496; (4) Quict title; and (5) Declaratory relief.

Defendants move to dismiss each of Plaintiff’s claims

on the grounds that: (1) they are barred by California’s

three years statute of limitations in California Code of

Civil Procedure § 338 and cannot be revived by Section

354.3 because Section 354.3 is unconstitutional on its

face and as applied; (2) Piaintiff cannot establish

“plausible grounds” for challenging Defendant Norton

Simon Art Foundation’s ownership of the Cranachs; and

(3) Plaintiff has not and cannot plead sufficient facts to

establish a violation of California Penal Code § 496.

A motion to dismiss brought pursuant to Federal

Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the claims asserted in the complaint.

Accordingly, “|a] Rule 12(b)(6) dismissal is proper only

where there is either a ‘lack of a cognizable legal theory’

or ‘the absence of sufficient facts alleged under a

cognizable legal theory.”’ Summit Technology, Inc. v.

High-Line Medical Instruments Co., Inc., 922 F. Supp.

299, 304 (C.D. Cal. 1996) (quoting Balistrert v. Pacifica

Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)). In deciding

a motion to dismiss, a court must accept as true the

allegations of the complaint and must construe those

allegations in the light most favorable to the nonmoving

party. See, e.g., Wyler Summit Partnership v. Turner

Broadcasting System, Inc., 1385 F.8d 658, 661 (9th Cir.

78a

Appendix C

1998). “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.” Summit Technology, 922 F. Supp.

at 304 (crteng Western Mining Council v. Watt, 643 I°2d

618, 624 (9th Cir. 1981) cert. denied, 454 U.S. 1031, 102

S. Ct. 567, 70 L. Ed. 2d 474 (1981)).

“Generally, a district court may not consider any

material beyond the pleadings in ruling on a Rule

12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard

Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990)

(citations omitted). However, a court may consider

material which is properly submitted as part of the

complaint and matters which may be judicially noticed

pursuant to FRE 201 without converting the motion to

dismiss into a motion for summary judgment. See zd.;

Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994). Where

a motion to dismiss is granted, a district court should

provide leave to amend unless it is clear that the

complaint could not be saved by any amendment. See

Chang v. Chen, 80 F.3d 1298, 1296 (9th Cir. 1996).

In their motion, Defendants argue that Section 354.3

is unconstitutional on its face on the grounds that it “has

the purpose and effect of inserting California into the

business of remedying war injuries, a matter of exclusive

federal competence.” Motion at 12. Section 354.3, which

became effective on January 1, 2003, provides:

(a) The following definitions govern the

construction of this section:

79a

Appendix C

(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 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.

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.

Cal. Code Civ. P. § 354.3.

80a

Appendix C

Shortly after Section 354.3 became effective, the

Ninth Cireuit addressed the constitutionality of a

substantially similar or “sister” statute, Section 354.6,

in Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003).

Section 354.6 was “[a] California statute passed in 1999

[which] create[d] a cause of action .. . for claims

involving Second World War slave labor.” Deutsch, 324

F.3d at 703. Like Section 354.3, under Section 354.6,

certain claims were not time-barred if an action was

commenced on or before December 31, 2010. See Cal.

Code Civ. P. § 354.6. In Deutsch, the Ninth Circuit found

Section 354.6 unconstitutional on its face on the grounds

that it violated the foreign affairs doctrine. Specifically,

the Ninth Circuit explained that “the Constitution

allocates the power over foreign affairs to the federal

government exclusively, and the power to make and

resolve war, including the authority to resolve war

claims, is central to the foreign affairs power in the

constitutional design. In the absence of some specific

action that constitutes authorization on the part of the

federal government, states are prohibited from

exercising foreign affairs powers, including modifying

the federal government’s resolution of war-related

disputes” Deutsch, 324 F.3d at 714-15. The Ninth Circuit

found that by enacting Section 354.6, “California has

sought to create its own resolution to a major issue

arising out of the war — a remedy for wartime acts that

California’s legislature believed had never fairly been

resolved.” /d. at 712. As a result, the Ninth Circuit held

that “Section 354.6 runs afoul of the restriction on the

exercise of foreign affairs powers by the states. Because

California lacks the power to create a right. of action —

Sila

Appendix C

or, alternatively, to resurrect time-barred claims — in

order to provide its own remedy for war-related injuries

inflicted by our former enemies and those who operated

in their territories, we hold that section 354.6 is

unconstitutional.” 7d. at 716.

As with Section 354.6, by enacting Section 354.3,

“California seeks to redress wrongs committed in the

course of the Second World War” — a legislative act

which “intrudes on the federal government’s exclusive

power to make and resolve war, including the procedure

for resolving war claims.” /d. at 712. There can be no

doubt that, as Judge Reinhardt stated in Deutsch, the

Holocaust was “the most atrocious act ever perpetrated

by a civilized (or uncivilized) people” and “represents

the worst historic manifestation of the perpetual human

condition known as antisemitism.” There are no words

which can adequately describe the atrocities suffered

by the victims of the Holocaust, and the harms suffered

continue to have an effect on the victims and their

descendants. For that reason, the Court shares the

Ninth Circuit’s reluctance in finding unconstitutional a

statute which attempts to provide at least some measure

of redress to those victims and their families. However,

the Court is not only compelled to apply the foreign

affairs doctrine, it is bound by the interpretation of that

doctrine as set forth by the Ninth Cireuit in Deutsch.

See, e.g., Hart v. Massanari, 266 F.3d 1155, 1170 (9th

Cir. 2001). Accordingly, in light of and based upon the

82a

Appendix C

Ninth Cireuit’s decision in Deutsch, the Court finds

Section 354.3 facially, unconstitutional.'

In her Complaint, Plaintiff admits that “one or more

of the Defendants acquired the Cranachs” in 1971 and

claims that “Defendants have wrongfully continued to

retain possession of the Cranachs since that time.”

Complaint at 7 32. Under the version of California Code

of Civil Procedure § 338 in effect at the time Defendants

acquired the Cranachs, Plaintiff’s predecessor-in-

interest had three years to bring “[a]n action for taking,

detaining, or injuring any goods or chattels, including

actions for the specifie recovery of personal property.”

See Cal. Code Civ. P § 338. According to her Complaint,

Plaintiff did not inherit her alleged claim to the Cranachs

until July 21, 1996 — long after the applicable statute

of limitations on that claim would have expired. See

Complaint at 135. As a result, in the absence of Section

354.3, it is apparent from the allegations of Plaintiff’s

Complaint that each of Plaintiff's underlying claims for

relief is time-barred.? See Cal. Code Civ. P. § 338.

1. Inlight of the Court’s finding that dismissal of Plaintiff's

Complaint is appropriate because the statute under which

Plaintiff’s action is brought ts unconstitutional, the Court need

not address Defendants’ remaining arguments in support of

their Motion to Dismiss.

2. Plaintiff alleges that she did not “discover” that the

Cranachs were in Defendants’ possession until November of

2000. See Complaint at 136. However, her alleged “discovery”

of the whereabouts of the Cranachs would not revive the statute

of limitation governing her claims which had expired many

years prior.

Appendix (

For all of the foregoing reasons, Defendants’ Motion

to Dismiss is GRANTED. Plaintiff’s Complaint is

DISMISSED with prejudice.

The Scheduling Conference, currently on calendar

for October 22, 2007, is VACATED.

[TIS SO ORDERED.

The Clerk shall serve a copy of this Minute Order

on all parties to this action.

S4a

APPENDIX D — RELEVANT CONSTITUTIONAL

PROVISIONS

Article. I.

Section. 8.

The Congress shall have Power To lay and collect

Taxes, Duties, Impests and Excises, to pay the

Debts and provide for the common Defence and

general Welfare of the United States; but all

Duties, Imposts and Excises shall be uniform

throughout the United States;

To borrow Money on the credit of the United

States;

To regulate Commerce with foreign Nations,

and among the several States, and with the

Indian Tribes;

To establish an uniform Rule of Naturalization,

and uniform Laws on the subject of

Bankruptcies throughout the United States; |

To coin Money, regulate the Value thereof, and

of foreign Coin, and fix the Standard of Weights

and Measures;

To provide for the Punishment of counterfeiting

the Securities and current Coin of the United

States;

SSa

Appendix D

To establish Post Offices and post Roads;

To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors

and Inventors the exclusive Right to their

respective Writings and Discoveries;

To constitute Tribunals inferior to the

supreme Court;

To define and punish Piracies and Felonies

committed on the high Seas, and Offences

against the Law of Nations;

To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning

Captures on Land and Water;

To raise and support Armies, but no

Appropriation of Money to that Use shall be

for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and

Regulation of the land and naval Forces;

To provide for ealling forth the Militia to

execute the Laws of the Union, suppress

Insurrections and repel Invasions;

86a

Appendix D

To provide for organizing, arming, and

disciplining, the Militia, and for governing

such Part of them as may be employed in the

Service of the United States, reserving to the

States respectively, the Appointment of the

Officers, and the Authority of training the

Militia according to the discipline prescribed

by Congress;

To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding

ten Miles square) as may, by Cession of

particular States, and the Acceptance of

Congress, become the Seat of the Government

of the United States, and to exercise like

Authority over all Places purchased by the

Consent of the Legislature of the State in

which the Same shall be, for the Erection of

Forts, Magazines, Arsenals, dock-Yards, and

other needful Buildings; — And

To make all Laws which shall be necessary and

proper for carrying into Execution the

foregoing Powers, and all other Powers vested

by this Constitution in the Government of the

United States, or in any Department or

Officer thereof.

87a

Appendix D

Section. 10.

No State shall enter into any Treaty, Alliance,

or Confederation; grant Letters of Marque

and Reprisal; coin Money; emit Bills of Credit;

make any Thing but gold and silver Coin a

Tender in Payment of Debts; pass any Bill of

Attainder, ex post facto Law, or Law impairing

the Obligation of Contracts, or grant any Title

of Nobility.

No State shall, without the Consent of the

Congress, lay any Imposts or Duties on

Imports or Exports, except what may be

absolutely necessary for executing it’s

inspection Laws: and the net Produce of all

Duties and Imposts, laid by any State on

Imports or Exports, shall be for the Use of

the Treasury of the United States; and all

such Laws shall be subject to the Revision and

Controul of the Congress.

No State shall, without the Consent of

Congress, lay any Duty of Tonnage, keep

Troops, or Ships of War in time of Peace, enter

into any Agreement or Compact with another

State, or with a foreign Power, or engage in

War, unless actually invaded, or in such

imminent Danger as will not admit of delay.

88a

Appendix D

Article. IT.

Section. 2.

The President shall be Commander in Chief

of the Army and Navy of the United States,

and of the Militia of the several States, when

called into the actual Service of the United

States; he may require the Opinion, in writing,

of the principal Officer in each of the executive

Departments, upon any Subject relating to

the Duties of their respective Offices, and he

shall have Power to grant Reprieves and

Pardons for Offences against the United

States, except in Cases of Impeachment.

He shall have Power, by and with the Advice

and Consent of the Senate, to make Treaties,

provided two thirds of the Senators present

concur; and he shall nominate, and by and

with the Advice and Consent of the Senate,

shall appoint Ambassadors, other public

Ministers and Consuls, Judges of the supreme

Court, and all other Officers of the United

States, whose Appointments are not herein

otherwise provided for, and which shall be

established by Law: but the Congress may by

Law vest the Appointment of such inferior

Officers, as they think proper, in the President

alone, in the Courts of Law, or in the Heads of

Departments.

89a

Appendix D

The President shall have Power to fill up all

Vacancies that may happen during the Recess

of the Senate, by granting Commissions which

shall expire at the End of their next Session.

* * * +

Article. VI.

All Debts contracted and Engagements

entered into, before the Adoption of this

Constitution, shall be as valid against the

United States under this Constitution, as

under the Confederation.

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

The Senators and Representatives before

mentioned, and the Members of the several

State Legislatures, and all executive and

judicial Officers, both of the United States and

of the several States, shall be bound by Oath

or Affirmation, to support this Constitution;

but no religious Test shall ever be required

as a Qualification to any Office or publie Trust

under the United States.

Amendment

ihe powers not delegated to the Unite

States by the Constitution, nor prohibited b

it to the States, are reserved to the Stat

re spectively, or to the peopl

Yia

APPENDIX E — RELEVANT STATUTE

California Code of Civil Procedure

§ 354.3. Recovery of Holocaust-era artwork from

enumerated entities

(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) “Holoecaust-ecra 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-er artwork, may bring an action to

recover Holocaust-era 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.

not be dismissed for failure to comply with the

applicable statute of limitation, if the action is

commenced on or before December 51, 2010

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.