BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2765|
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THIRD READING
Bill No: AB 2765
Author: Assembly Judiciary Committee
Amended: 8/18/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/22/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 74-0, 5/6/10 - See last page for vote
SUBJECT : Civil actions: statutes of limitation: theft
SOURCE : Author
DIGEST : This bill extends the statute of limitations
(SOL) 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 provides 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 applies these provisions to
actions based on property taken by theft prior to 1983.
Senate Floor Amendments of 8/18/10 provide additional
restrictions on the statute of limitations for actions
against museums for the specific recovery of fine art, as
defined. These amendments also provide a sunset of
CONTINUED
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December 31, 2017 for actions brought under the provisions
of this bill, restrict application of the bill to pending
and future actions, provide clarifying definitions of
various key terms, and provide defendants of these actions
with equitable and legal affirmative defenses and
doctrines.
ANALYSIS : Existing law provides that a civil action, in
the case of a theft, shall be commenced within three 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 authorizes a civil action against a museum,
gallery, auctioneer, or dealer for the recovery of works of
fine art that were unlawfully taken or stolen, including a
taking or theft by means of fraud or duress, to be
commenced within six years of the actual discovery by the
claimant or his or her agent of the identity and
whereabouts of the work of fine art and 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 applies to pending and future actions 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 following legislative findings and
declarations:
1. California's interest in determining the rightful
ownership of fine art is a matter of traditional state
competence, responsibility, and concern.
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2. Because objects of 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 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 1983 because there was a discovery rule
implicit in the prior version of that statute.
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 1983, and the Legislature hereby abrogates any
contrary holding.
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
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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.
According to the author's office:
This bill addresses a problem faced by persons who are
attempting to recover art and other valuable objects
that may 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
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confusion of the two appellate court rulings on these
questions.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De
Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
Garrick, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,
Bonnie Lowenthal, Ma, Miller, Monning, Nava, Nestande,
Niello, Nielsen, Norby, V. Manuel Perez, Portantino,
Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, John A. Perez
NO VOTE RECORDED: Bass, Block, De La Torre, Gilmore,
Mendoza
RJG:nl 8/19/10 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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