BILL NUMBER: AB 2765 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 18, 2010
AMENDED IN SENATE JUNE 29, 2010
AMENDED IN ASSEMBLY APRIL 22, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Committee on Judiciary (Feuer (Chair), Brownley,
Evans, Jones, Lieu, and Monning)
FEBRUARY 25, 2010
An act to amend Section 338 of the Code of Civil Procedure,
relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
AB 2765, as amended, Committee on Judiciary. Civil actions:
statutes of limitation: theft.
Existing law provides that a civil action, in the case of a theft,
shall be commenced within 3 years. Existing law provides that in the
case of a theft of any article of historical, interpretive,
scientific, cultural, or artistic significance, a cause of action is
not deemed to have accrued until the discovery of the whereabouts of
the article by the aggrieved party, his or her agent, or a law
enforcement agency.
This bill would authorize a civil action against a museum,
gallery, auctioneer, or art dealer for the
recovery of works of fine art , antiquities, or
an article of historical, interpretive, scientific, cultural, or
artistic significance that were unlawfully taken or
stolen, including a taking or theft by means of fraud or duress,
to be commenced within 6 years of the actual discovery by the
aggrieved party claimant or his or her agent
of the identit y and whereabouts of the
article work of fine art and
of the facts constituting the cause of action
information or facts that are sufficient to indicate that
the claimant has a claim for a possessory interest in the work of
fine art . This bill would apply to pending and future
actions and would also authorize the revival of an
action, previously dismissed because of the expiration of a statute
of limitation deemed applicable at the time of the dismissal, if the
application of these provisions, at the time the action was
dismissed, would have resulted in a determination that the cause of
action had been timely filed commenced on or before
December 31, 2017, and would include any actions that were dismissed
based on the expiration of statutes of limitation in effect prior to
the date of the enactment of this bill if, prior to that date, the
judgment in the action was not final or the time for filing an appeal
from a decision on that action had not expired, provided that the
action concerns a work of fine art that was taken within 100 years
prior to the date this bill is enacted .
This bill contains the Legislature's findings and
declarations in support of a finding that this bill is in agreement
and conformity with a specified court decision.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares the following:
(1) California's interest in determining the rightful ownership of
personal property of historical, interpretive, scientific,
cultural, and artistic significance fine art is
a matter of traditional state competence, responsibility, and
concern.
(2) Because objects of historical, interpretive,
scientific, cultural, and artistic significance often circulate in an
underground economy for many years before surfacing in museums or
galleries, existing fine art often circulate in the
private marketplace for many years before entering the collections of
museums or galleries, existing statutes of limitation, which
are solely the creatures of the Legislature, often present an
inequitable procedural obstacle to recovery of these objects by
parties that claim to be their rightful owner.
(3) Decisions from California's intermediate appellate courts have
reached differing conclusions as to whether the statute of
limitation based upon the "discovery of the whereabouts of the
article by the aggrieved party" rule in subdivision (c) of Section
338 of the Code of Civil Procedure was intended to apply to property
stolen prior to 1982 1983 , when the
express discovery rule was enacted. In Naftzger v. American
Numismatic Society (1996) 42 Cal.App.4th 421, the court held that the
discovery rule applies to actions to recover property stolen prior
to 1982 1983 because there was a
discovery rule implicit in the prior version of that statute.
(b) The Legislature finds and declares that the court's decision
in Naftzger v. American Numismatic Society properly construed the
Legislature's intent, as to the applicability of the discovery rule
for thefts occurring before 1982 1983 ,
and the Legislature hereby abrogates any contrary holding.
(c) In enacting an "actual discovery" rule for actions against a
museum, gallery, auctioneer, or dealer to recover fine art, the
Legislature finds and declares that:
(1) Museums and galleries have played, and continue to play, an
important role in making information about their collections,
exhibitions, and acquisitions publicly available and have invested
significant resources in the care, conservation, study, and display
of art objects for the benefit of the public. Museums and galleries
have also increasingly and voluntarily made archives, databases, and
other resources more accessible to individuals and organizations
seeking information about the location and history of particular art
objects, thereby assisting the rightful owners of works of fine art
who may have a claim for the recovery of these works.
(2) The application of statutes of limitations and any affirmative
defenses to actions for the recovery of works of fine art should
recognize this public role taken by museums and galleries and should
provide incentives for research and publication of provenance
information about these art works, in order to encourage the prompt
and fair resolution of claims.
(3) In the establishment of an "actual discovery" rule for the
commencement of a statute of limitations for these actions, it is
appropriate to provide that, in addition to any legal defenses and
doctrines currently available to parties under California law, all
equitable affirmative defenses and doctrines are available to the
parties, including, without limitation, laches and unclean hands, in
order to permit the courts to take all equitable considerations in
either party's favor into account.
SEC. 2. Section 338 of the Code of Civil Procedure is amended to
read:
338. Within three years:
(a) An action upon a liability created by statute, other than a
penalty or forfeiture.
(b) An action for trespass upon or injury to real property.
(c) (1) An action for taking, detaining, or injuring any goods or
chattels, including actions for the specific recovery of personal
property.
(2) The cause of action in the case of theft, as defined
described in Section 484 of the Penal Code, of
any article of historical, interpretive, scientific, or artistic
significance is not deemed to have accrued until the discovery of the
whereabouts of the article by the aggrieved party, his or her agent,
or the law enforcement agency that originally investigated the
theft.
(3) (A) Notwithstanding paragraphs (1) and (2), an action for
the specific recovery of a work of fine art brought against a
museum, gallery, auctioneer, or dealer for specific recovery
of an article of historical, interpretive, scientific, cultural, or
artistic significance shall be commenced within six years of the
actual discovery by the aggrieved party of the whereabouts of the
article and of the facts constituting the cause of action.
, in the case of an unlawful taking or theft, as
described in Section 484 of the Penal Code, of a work of fine art,
including a taking or theft by means of fraud or duress, shall be
commenced within six years of the actual discovery by the claimant or
his or her agent, of both of the following:
(i) The identity and the whereabouts of the work of fine art. In
the case where there is a possibility of misidentification of the
object of fine art in question, the identity can be satisfied by the
identification of facts sufficient to determine that the work of fine
art is likely to be the work of fine art that was unlawfully taken
or stolen.
(ii) Information or facts that are sufficient to indicate that the
claimant has a claim for a possessory interest in the work of fine
art that was unlawfully taken or stolen.
(B) The provisions of this paragraph shall apply to
property taken, by theft, prior to 1982 regardless of whether or not
an action would have been barred by an applicable statute of
limitation under any other provision of law in effect prior to 1982.
all pending and future actions commenced on or before
December 31, 2017, including any actions dismissed based on the
expiration of statutes of limitation in effect prior to the date of
enactment of this statute if the judgment in that action is not yet
final or if the time for filing an appeal from a decision on that
action has not expired, provided that the action concerns a work of
fine art that was taken within 100 years prior to the date of enactme
nt of this statute.
(C) For purposes of this paragraph:
(i) "Actual discovery" means that the party bringing the
action has express knowledge of the identity and the whereabouts of
the person or entity that possesses the article of historical,
interpretive, scientific, cultural, or artistic significance.
Notwithstanding Section 19 of the Civil Code, "actual discovery" does
not include any constructive knowledge imputed by law.
discovery," notwithstanding Section 19 of the Civil Code, does
not include any constructive knowledge imputed by law.
(ii) "Auctioneer" means any individual who is engaged in, or who
by advertising or otherwise holds himself or herself out as being
available to engage in, the calling for, the recognition of, and the
acceptance of, offers for the purchase of goods at an auction as
defined in subdivision (b) of Section 1812.601 of the Civil Code.
(iii) "Dealer" means a person who holds a valid seller's permit
and who is actively and principally engaged in, or conducting the
business of, selling works of fine art , antiquities, or
articles of historical, interpretive, scientific, cultural, or
artistic significance. .
(iv) "Duress" means a threat of force, violence, danger, or
retribution against an owner of the work of fine art in question, or
his or her family member, sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act that otherwise would not
have been performed or to acquiesce to an act to which he or she
would otherwise not have acquiesced.
(v) "Fine art" has the same meaning as defined in paragraph (1) of
subdivision (d) of Section 982 of the Civil Code.
(iv)
(vi) "Museum or gallery" shall include any public or
private organization or foundation operating as a museum or gallery.
(4) Section 361 shall not apply to an action brought pursuant to
paragraph (2) or (3).
(5) The provisions of paragraph (3) shall apply to pending
actions, including appeals from a prior dismissal of a cause of
action. Any cause of action, previously dismissed because the
dismissal of that action was based, in whole or in part, upon the
expiration of a statute of limitation deemed applicable at the time
of the dismissal, shall be revived, without prejudice, and must be
commenced within five years of the effective date of the act adding
this paragraph if the provisions of paragraph (3), if applied to that
cause of action at the time of the dismissal, would have resulted in
a determination that the cause of action had been timely filed.
(5) A party in an action to which paragraph (3) applies may raise
all equitable and legal affirmative defenses and doctrines,
including, without limitation, laches and unclean hands.
(d) An action for relief on the ground of fraud or mistake. The
cause of action in that case is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the
fraud or mistake.
(e) An action upon a bond of a public official except any cause of
action based on fraud or embezzlement is not deemed to have accrued
until the discovery, by the aggrieved party or his or her agent, of
the facts constituting the cause of action upon the bond.
(f) (1) An action against a notary public on his or her bond or in
his or her official capacity except that any cause of action based
on malfeasance or misfeasance is not deemed to have accrued until
discovery, by the aggrieved party or his or her agent, of the facts
constituting the cause of action.
(2) Notwithstanding paragraph (1), an action based on malfeasance
or misfeasance shall be commenced within one year from discovery, by
the aggrieved party or his or her agent, of the facts constituting
the cause of action or within three years from the performance of the
notarial act giving rise to the action, whichever is later.
(3) Notwithstanding paragraph (1), an action against a notary
public on his or her bond or in his or her official capacity shall be
commenced within six years.
(g) An action for slander of title to real property.
(h) An action commenced under Section 17536 of the Business and
Professions Code. The cause of action in that case shall not be
deemed to have accrued until the discovery by the aggrieved party,
the Attorney General, the district attorney, the county counsel, the
city prosecutor, or the city attorney of the facts constituting
grounds for commencing the action.
(i) An action commenced under the Porter-Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code). The cause of action in that case shall not be deemed to have
accrued until the discovery by the State Water Resources Control
Board or a regional water quality control board of the facts
constituting grounds for commencing actions under their jurisdiction.
(j) An action to recover for physical damage to private property
under Section 19 of Article I of the California Constitution.
(k) An action commenced under Division 26 (commencing with Section
39000) of the Health and Safety Code. These causes of action shall
not be deemed to have accrued until the discovery by the State Air
Resources Board or by a district, as defined in Section 39025 of the
Health and Safety Code, of the facts constituting grounds for
commencing the action under its jurisdiction.
(l) An action commenced under Section 1603.1, 1615, or 5650.1 of
the Fish and Game Code. These causes of action shall not be deemed to
have accrued until discovery by the agency bringing the action of
the facts constituting the grounds for commencing the action.
(m) An action challenging the validity of the levy upon a parcel
of a special tax levied by a local agency on a per parcel basis.
(n) An action commencing under Section 51.7 of the Civil Code.