BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 2765 (Committee on Judiciary)
          As Amended April 22, 2010
          Hearing Date: June 22, 2010
          Fiscal: No
          Urgency: No
          TW:jd
                    

                                        SUBJECT
                                           
                   Civil Actions:  Statutes of Limitation:  Theft

                                      DESCRIPTION  

          This bill would extend the statute of limitations from three to  
          six years for actions against a museum, gallery, auctioneer, or  
          dealer for specific recovery of an article of historical,  
          interpretive, scientific, cultural, or artistic significance.   
          This bill would provide that the statute of limitations for  
          these types of actions begins to accrue at the time of the  
          actual discovery of the whereabouts of the article and the facts  
          constituting the cause of action.  This bill would apply these  
          provisions to actions based on property taken by theft prior to  
          1982, regardless of whether or not the action would otherwise  
          have been barred by an applicable statute of limitation under  
          any other provision of law in effect prior to 1982.  

          This bill would authorize the revival of actions, and would  
          apply to pending actions including an appeal from a prior  
          dismissed action, against a museum, gallery, auctioneer, or  
          dealer for specific recovery of an article of historical,  
          interpretive, scientific, cultural, or artistic significance  
          that would have satisfied a six-year statute of limitations  
          based on the actual discovery of the whereabouts of the article  
          and the facts constituting the cause of action.  The revival of  
          or application to such actions must have been dismissed in whole  
          or in part upon the expiration of the statute of limitations  
          existing at the time of the dismissal.   

                                      BACKGROUND  

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          Prior to 1983, the statute of limitations for recovery of art or  
          an artifact did not specify on which date the statute of  
          limitations would begin to run - the date the item was stolen or  
          the date of locating the whereabouts of the item.  AB 2296  
          (Baker, Chapter 340, Statutes of 1982) clarified the statute of  
          limitations for these causes of action and specified that the  
          statute would run upon the discovery of the whereabouts of the  
          article.  In 1989, the Legislature, at the request of museums  
          attempting to recover stolen art and artifacts, extended the  
          statute of limitations to apply to actions for the recovery of  
          any article of historical, interpretive, scientific, or artistic  
          significance.  (SB 1233 (Rogers, Ch. 467, Stats. 1989).)

          After 1983, courts wrestled with applying a discovery rule for  
          these types of actions.  Some courts imposed an actual notice  
          discovery rule whereby the statute of limitations did not begin  
          to run until the plaintiff discovered the whereabouts of the  
          article.  (See Naftzger v. American Numismatic Society (1996) 42  
          Cal.App.4th 421.)  Other courts applied a constructive discovery  
          rule under which the statute of limitations began to run at the  
          time the plaintiff discovered or should have discovered the  
          whereabouts of the article, based on the definition of  
          constructive notice provided in Jolly v. Eli Lilly & Co. (1988)  
          44 Cal.3d 1103.  (See Society of California Pioneers (1996) 43  
          Cal.App.4th 774; Orkin v. Taylor (2007) 487 F.3d 734; Von Saher  
          v. Norton Simon Museum of Art at Pasadena (2008) 592 F.3d 954.)

          This bill would clarify the discovery rule on actions for theft  
          of property prior to 1982.  This bill also would provide for an  
          actual discovery rule and a six-year statute of limitations of  
          actions against a museum, gallery, auctioneer, or dealer for the  
          specific recovery of articles of historical, interpretive,  
          scientific, cultural, or artistic significance from a museum,  
          gallery, auctioneer, or dealer.  This bill would revive  
          previously dismissed actions and apply to appeals of cases  
          dismissed for the expiration of the statute of limitations in  
          effect at the time of the dismissal.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides a statute of limitations of three years  
          for actions to recover stolen personal property.  (Code Civ.  
          Proc. Sec. 338(c).)

           Existing law  provides that the statute of limitations pertaining  
          to the recovery of stolen articles of historical, interpretive,  
                                                                      



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          scientific, or artistic significance begins to accrue upon the  
          plaintiff's discovery of the whereabouts of the stolen article.   
          (Code Civ. Proc. Sec. 338(c).)

           This bill  would extend  the statute of limitations from three  
          years to six years for actions against a museum, gallery,  
          auctioneer, or dealer for specific recovery of an article of  
          historical, interpretive, scientific, cultural, or artistic  
          significance.  

           This bill  would provide that the statute of limitations for  
          actions against a museum, gallery, auctioneer, or dealer for  
          specific recovery of an article of historical, interpretive,  
          scientific, cultural, or artistic significance begins to accrue  
          at the time of the actual discovery of the whereabouts of the  
          article and the facts constituting the cause of action.  

           This bill  would apply a six-year statute of limitations and  
          actual discovery rule to actions for property taken by theft  
          prior to 1982 against a museum, gallery, auctioneer, or dealer  
          for specific recovery of an article of historical, interpretive,  
          scientific, cultural, or artistic significance, regardless of  
          whether or not the action would otherwise have been barred by an  
          applicable statute of limitation under any other provision of  
          law in effect prior to 1982.  

           This bill  would authorize the revival of actions, and would  
          apply to pending actions including an appeal from a prior  
          dismissed action, against a museum, gallery, auctioneer, or  
          dealer for specific recovery of an article of historical,  
          interpretive, scientific, cultural, or artistic significance  
          that would have satisfied a six-year statute of limitations  
          based on the actual discovery of the whereabouts of the article  
          and the facts constituting the cause of action.  The revival of  
          or application to such actions must have been dismissed in whole  
          or in part upon the expiration of the statute of limitations  
          existing at the time of the dismissal.   
          
                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            This bill addresses a problem faced by persons who are  
            attempting to recover art and other valuable objects that may  
                                                                      



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            have been stolen several years ago and are only more recently  
            on display at a museum or gallery.  It is in the very nature  
            of stolen art that it circulates underground for several years  
            before it appears in museums and galleries, and by that time  
            the SOL has passed.  Case law in California and elsewhere has  
            recognized that, given the nature of stolen art, the proper  
            trigger for the SOL is actual discovery.  Recent cases have  
            divided on the question of whether the "discovery" rule that  
            was adopted by the Legislature in 1982 applies to works stolen  
            before 1983 (when the statute became effective) and whether  
            the discovery intended was "actual" or "constructive."  This  
            amendment would clarify these questions for purposes of  
            actions brought to recover art on display in a museum or  
            gallery.  In addition to these state appellate cases, a recent  
            decision striking down a statute targeted solely at the  
            Nazi-looted art (on foreign policy preemption grounds) also  
            noted the confusion of the two appellate court rulings on  
            these questions.
           
          2.  Legislative history of protecting victims of artifact theft  

          In 1983, the Legislature provided for a statute of limitations  
          for actions based on theft of art or an artifact to accrue upon  
          the discovery of the whereabouts of the article.  (AB 2269  
          (Baker, Ch. 340, Stats. 1982).)  AB 2269 was enacted to address  
          the difficulty in locating stolen art which was transferred  
          underground for years after it was taken from the original  
          owner.  The statute of limitations was revised to accrue on the  
          date of the discovery of the whereabouts of the artifact rather  
          than on the date of the theft.  In 1989, the Legislature  
          replaced "art or artifact" with "any article of historical,  
          interpretive, scientific, or artistic significance."  (SB 1233  
          (Rogers, Ch. 467, Stats. 1989).)  This revision was made in  
          order to protect theft victims seeking to recover items of  
          significant historical or artistic value, but with very little  
          financial value.

          In 2002, the Legislature enacted a law which provided a  
          mechanism under which victims of Nazi oppression could recover  
          works of art.  (AB 1758 (Nakano, Ch. 332, Stats. 2002).)  This  
          law removed the statute of limitations requirements for these  
          types of actions and allowed plaintiffs to file their actions by  
          December 31, 2010.  (Code Civ. Proc. Sec. 354.3.).  A recent  
          Ninth Circuit appellate ruling in Von Saher v. Norton Simon  
          Museum of Art at Pasadena (2008) 592 F. 3d 954 held that this  
          statute was preempted by the federal government's powers over  
                                                                      



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          foreign affairs under the Supremacy Clause.   

          Von Saher is currently before the U.S. Supreme Court for a  
          decision regarding this preemption; the appeal does not,  
          however, deal directly with the statute of limitations changes  
          proposed by this bill.  The Ninth Circuit advised the plaintiff  
          that she could amend her complaint alleging satisfaction of the  
          three-year statute of limitations for the recovery of stolen  
          articles of artistic significance under Code of Civil Procedure  
          Section 338(c).  It is not clear whether this plaintiff will be  
          able to meet this burden.  

          3.  Due diligence by plaintiff
           
          This bill would extend the statute of limitations from three to  
          six years for actions against museums, galleries, auctioneers,  
          and dealers for specific recovery of articles of historical,  
          interpretive, scientific, cultural, or artistic significance.   
          Generally, statutes of limitations are deadlines created for  
          consistency for both plaintiffs and defendants.  Plaintiffs must  
          utilize due diligence in discovering facts giving rise to their  
          claims and thereafter file actions on these claims within the  
          time specified by statute.  This bill would extend the time  
          within which plaintiffs must diligently discover their claim and  
          file suit against specified defendants.  This extension is  
          appropriate because U.S. law favors the theft victim.  However,  
          a reasonable cap, in this case six years, on the timeframe  
          within which to bring an action for the recovery of a stolen  
          item then protects the subsequent good faith purchaser of the  
          item.   

          4.   Due process for good faith purchaser  

          This bill seeks to revive dismissed actions and affect pending  
          appeals thereon with respect to its provisions for the six-year  
          statute of limitations as applied to actions against museums,  
          galleries, auctioneers, and dealers.  As explained below, this  
          provision is not contrary to due process protections.  

          The court in Naftzger v. American Numismatic Society, supra, 42  
          Cal.App.4th 421 noted that a thief cannot transfer good title.   
          (Id. at 428.)  Therefore, the subsequent good faith purchaser  
          has no claim to good title during the accrual of the statute of  
          limitations.  Upon the expiration of the statute of limitations,  
          however, courts have found that title to real or personal  
          property may have perfected itself, and legislative acts that  
                                                                      



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          remove from the defendant title to the property effectively  
          deprives the defendant of due process.  "The reason is, that, by  
          the law in existence before the repealing act, the property has  
          become the defendant's.  Both the legal title and the real  
          ownership had become vested in him, and to give the effect of  
          transferring this title to plaintiff, would be to deprive [the  
          defendant] of his property without due process of law."   
          (Campbell v. Holt (1885) 115 U.S. 620, 623.)  

          However, in Chase Securities Corp. v. Donaldson, et al. (1945)  
          325 U.S. 304, the court clarified the holding in Campbell and  
          reasoned that "it cannot be said that lifting the bar of a  
          statute of limitation so as to restore a remedy lost through  
          mere lapse of time is per se an offense against the Fourteenth  
          Amendment."  (Id. at 315.)  The Chase Securities court stated  
          that retroactive statutes could create a hardship or oppression  
          as applied to the defendant, who could have relied on the  
          expiration of the statute to his substantial detriment.  The  
          revival provision of this bill, however, can be distinguished  
          from instances which unduly burden the defendant.  This bill  
          seeks to provide a remedy for plaintiffs who lost artifacts  
          through no fault of their own.  For many of these plaintiffs,  
          the artifacts that were taken were done so through looting,  
          oppression, duress, and theft.  Many of these items move  
          underground through various channels and transfer to owners  
          until the items resurface at some later point, and it is  
          difficult for these plaintiffs to trace the items to the current  
          owners.  

          Further, the defendants who would be affected by the revival  
          provisions of the bill (museums, galleries, auctioneers, and  
          dealers) are those who are sophisticated in the types of  
          artifacts at issue, have access to methods of tracing artifact  
          provenance, and could be seen as merely good faith purchasers  
          rather than bona fide purchasers.  "Bona fide purchaser"  
          includes in its definition the taking of property without any  
          knowledge of an adverse claim.  In San Francisco Credit Clearing  
          House v. C.B. Wells (1925) 196 Cal. 701, the court held that a  
          person who purchases from one who has no right to sell cannot be  
          considered a bona fide purchaser of goods.  Pursuant to the rule  
          of caveat emptor, the law imputes notice to the good faith  
          purchaser; "he is conclusively presumed to have ascertained the  
          true ownership of the property before purchasing it."  (Id. at  
          706-707.) 

          Many times, lost artifacts have a break in the chain of title.   
                                                                      



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          For this reason, these museums, galleries, auctioneers, and  
          dealers should be considered on notice that provenance to the  
          artifact has not been thoroughly established and should expect  
          an adverse claim by owners and their heirs staking claims  
          originating during the missing time period.  It is important to  
          note that the provisions of this bill do not relate to the  
          merits of the plaintiff's case; rather, this bill simply extends  
          the deadline by which the plaintiff may file an action. 

          The Legislature has numerous times before revived claims and  
          made statute of limitations changes retroactive: AB 600 (Knox,  
          Ch. 827, Stats. 1999, insurance claims of Holocaust victims); SB  
          1245 (Hayden, Ch. 216, Stats. 1999, World War II slave labor);  
          SB 1899 (Burton, Ch. 1090, Stats. 2000, Northridge earthquake  
          claimants); SB 1915 (Poochigian, Ch. 543, Stats. 2000, Armenian  
          genocide victims); AB 1758 (Nakano, Ch. 332, Stats. 2002,  
          Holocaust-era artwork); AB 2913 (Firebaugh, Ch. 1070, Stats.  
          2002, Bracero workers); SB 688 (Burton, Ch. 688, Stats. 2002,  
          9/11 victims); SB 1779 (Burton, Ch. 332, Stats. 2002, childhood  
          sexual abuse); and SB 1678 (Dunn, Ch. 741, Stats. 2004, sexual  
          abuse of minors).  These are sympathetic cases whereby the  
          importance of protecting the victims' rights supersedes the  
          hardship of defending a potentially stale action by the  
          defendants.

          Similarly, this bill would help to provide protection for  
          victims that the Legislature has already intended to protect.   
          AB 1758 removed the statute of limitations requirements for  
          these actions and allowed plaintiffs to file their actions by  
          December 31, 2010.  (Code Civ. Proc. Sec. 354.3.)  However, a  
          subsequent Ninth Circuit appellate ruling in Von Saher v. Norton  
          Simon Museum of Art at Pasadena, supra,  592 F. 3d 954 held that  
          this statute was preempted by federal powers over foreign  
          affairs under the Supremacy Clause.  Victims who relied upon the  
          provisions of Code of Civil Procedure Section 354.3 and failed  
          to file their claim based on a different statute of limitations  
          are now prejudiced in bringing their actions.  This bill would  
          provide the necessary remedy for these victims and other victims  
          of historical art theft by allowing them to file their actions  
          based upon the statute of limitations created by this bill.    
          Since the revival provisions of this bill affect only actions  
          for specific recovery under a statute of limitations, the issue  
          of laches is inapplicable.  

          To provide defendants with some amount of consistency in the  
          law, the committee may wish to consider whether to amend the  
                                                                      



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          bill to include a five-year cut off date for the revival of  
          actions.  The following amendment would accomplish this:

             Suggested amendment  

            Page 4 line 13 after "prejudice," add "and must be commenced  
            within five years of the effective date of this section,"

          5.  Actual notice v. constructive notice  

          This bill would declare an actual notice discovery rule for  
          actions against a museum, gallery, auctioneer, or dealer for  
          specific recovery of an article of historical, interpretive,  
          scientific, cultural, or artistic significance.  The statute of  
          limitations would begin to run upon the discovery of the  
          whereabouts of the article and the facts constituting the cause  
          of action.  The author cites the case in Naftger v. American  
          Numismatic Society (1996) 42 Cal.App.4th 421, wherein the court  
          held that an actual discovery rule applied to an action of a  
          museum against an ex-employee for the return of stolen coins.   
          The court reached this decision while pondering the application  
          of the pre-1983 statute of limitations, which did not specify  
          when the statute of limitations began to run - at the moment the  
          coins were stolen or at the moment the museum realized the  
          whereabouts of the coins.  The court applied an actual discovery  
          rule because the museum could not have known the exact  
          whereabouts of the article until the defendant came forward with  
          this information.

          This bill, though silent on this provision, applies a  
          constructive discovery rule for actions brought against an  
          individual, which conforms to more recent holdings regarding  
          California's statute of limitations on stolen art work.  (See  
          Society of California Pioneers (1996) 43 Cal.App.4th 774; Orkin  
          v. Taylor (2007) 487 F.3d 734; Von Saher v. Norton Simon Museum  
          of Art at Pasadena (2008) 592 F.3d 954.)  Concern has been  
          raised that plaintiffs suing individuals for the recovery of  
          stolen art work would not have the benefit of actual discovery,  
          but would have to defend what they knew or should have known  
          about the whereabouts and claim to ownership.  The author argues  
          that this discovery rule is adequate to protect plaintiffs since  
          individual defendants are less sophisticated than museums,  
          galleries, auctioneers, and dealers and have less ability to  
          fully research the provenance of the article at issue.

          Additionally, this bill separates actions for taking, detaining,  
                                                                      



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          or injuring any goods or chattel, including actions for specific  
          recovery of personal property, into a separate section and does  
          not provide any discovery rule for these actions.  Carla  
          Shapreau, Esq., a supporter of this bill with extensive  
          expertise on claims for the recovery of historic artifacts,  
          suggests amending the bill to provide a constructive discovery  
          rule for these types of actions.  Ms. Shapreau argues that  
          failing to provide any discovery rule for these actions  
          "arguably cuts back on the current protection theft victims now  
          enjoy under Naftger v. The American Numismatic Society and  
          appears to undermine advancements in California law as  
          California courts have repeatedly adopted a discovery accrual  
          rule as a fair means of limitations administration."  (Citations  
          omitted.)  

          6.  Definition of "dealer"  

          This bill would define "dealer" as a person principally engaged  
          in selling "works of fine art or antiquities."  Ms. Shapreau  
          raised the concern that this definition was too limited and does  
          not comport with the rest of the provisions of the bill.  This  
          bill would provide specific actions against dealers relating to  
          articles of historical, interpretive, scientific, cultural, or  
          artistic significance.  Yet, articles of historic or scientific  
          value would not be included within "works of fine art or  
          antiquities."  To address this concern, the author agreed to  
          accept the following clarifying amendment:

             Suggested amendment  :

            On page 3, line 37 after "art" delete "or antiquities" and  
            insert ", antiquities, or articles of historical,  
            interpretive, cultural, or artistic significance."

          7.  Application to property taken prior to 1982  

          This bill would clarify existing law that the statute of  
          limitations for actions based on property taken by theft prior  
          to 1982 would begin to accrue at the time of the discovery of  
          the whereabouts of the article.  The author states that one of  
          the goals of this bill is to clarify the discovery rule that  
          courts have wrestled with for many years.  As decided in  
          Naftger, the whereabouts of the property is the date that starts  
          the running of the statute of limitations.   


                                                                      



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           Support  :  Two Individuals

           Opposition  :  None Known

                                        HISTORY
                                                                                         
           Source  :  Author

           Related Pending Legislation :  None Known

           Prior Legislation  :  See Background; Comment 2.

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Floor (Ayes 74, Noes 0) 

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