BILL ANALYSIS
AB 2765
Page 1
ASSEMBLY THIRD READING
AB 2765 (Committee on Judiciary)
As Amended April 22, 2010
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Hagman, Jones, | | |
| |Knight, Monning, Nava, | | |
| |Skinner | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Clarifies application of the "discovery rule" for
purposes of recovering works of historic, artistic, and cultural
significance and extends by three years the statute of
limitations for recovery of works from a museum, gallery,
auctioneer, or dealer. Specifically, this bill :
1)Extends the statute of limitations for specific recovery of a
stolen article of historical, interpretive, scientific,
cultural, or artistic significance from three to six years if
the action for recovery is brought against a museum, gallery,
auctioneer, or dealer.
2)Clarifies, in response to differing appellate court rulings,
that the "discovery rule" for triggering the statute of
limitations for the recovery of articles of historical,
interpretive, scientific, cultural, or artistic significance
applies to property taken by theft prior to 1983, when the
discovery rule was first codified, and further clarifies that
"discovery" under the discovery rule means "actual" rather
than "constructive" discovery.
3)Defines "actual discovery" to mean 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, and specifies that actual discovery does not
include constructive knowledge imputed by law.
4)Specifies that the statute of limitation as set forth in this
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bill applies notwithstanding the state's "borrowing" statute
that permits application of another state's statute of
limitation under prescribed circumstances.
5)Specifies that the provisions of this bill relating to actions
against a museum, gallery, auctioneer, or dealer shall apply
to pending actions, as specified. Specifies that previously
dismissed actions may be revived without prejudice if the
action was dismissed on statute of limitation grounds but
would not have been dismissed if the provisions of this bill
had applied at the time of dismissal.
EXISTING LAW :
1)Provides, generally, that an action for taking, detaining, or
injury any goods or chattels, including actions for the
specific recovery of personal property, must be commenced
within three years.
2)Provides that a cause of action for recovery in the case of
theft 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.
FISCAL EFFECT : None
COMMENTS : This bill amends the statute of limitation (SOL) in
Code of Civil Procedure Section 338 (c) relating to the recovery
of stolen works of art or other objects of historical, artistic,
or cultural significance. Specifically, it will primarily do
three things: 1) it will clarify that the "discovery" rule
adopted in 1983 applies to works stolen before that date,
thereby clarifying disparate opinions of the California Courts
of Appeal on this point; 2) it will clarify that the discovery
rule adopted by the legislature was one of "actual" and not
"constructive" discovery; and, 3) it will extend to six years
the SOL for actions for specific recovery brought against a
museum, gallery, auctioneer, or dealer.
At one level, this bill seeks to clarify competing
interpretations of California's statute of limitations for the
specific recovery of personal property. As importantly, it
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seeks to address a vexing problem faced by theft victims who are
attempting to recover art and other valuable works that may have
been stolen several years ago, but where the victim only learns
the whereabouts of the work many years later. 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 long run its course. Courts in California and
elsewhere have long recognized that, given the nature of stolen
art, the proper trigger for the SOL should be the discovery by
the owner of the whereabouts of the work, not the time of theft
or even the time of the first public display of the work.
Appellate courts in California, however, have divided on two
critical questions: 1) whether the "discovery" rule that was
adopted by the Legislature in 1982 applies to works stolen
before 1983 (when the statute became effective); and, 2) whether
the "discovery" rule was intended to require "actual" or
"constructive" discovery. This bill would clarify these
questions for purposes of actions for brought to recover art, or
other works of historical or cultural significance, on display
in a museum or gallery. In short, this bill would adopt the
reasoning of courts that have interpreted California's discovery
rule to: 1) apply to works stolen before 1983; and, 2) require
"actual" discovery. In addition, this bill would extend the SOL
for recovering works from a gallery or museum from three to six
years.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0004139