Cassirer v. Thyssen-Bornemisza Collection Found.

• Decision Date: 04 June 2015
• Docket Number: CV 05–3459–JFW (Ex)
• Citation: 153 F.Supp.3d 1148
• Parties: David Cassirer v. Thyssen-Bornemisza Collection Foundation
• Court: U.S. District Court — Central District of California

153 F.Supp.3d 1148

David Cassirer

v.Thyssen-Bornemisza Collection Foundation

CV 05–3459–JFW (Ex)

United States District Court, C.D. California.

Signed June 4, 2015

Bert H. Deixler, George Emel Pence, IV, Laura W. Brill, Nicole Phillis, William Ames Jacobson, Kendall Brill and Kelly LLP, Andrew Ross Hall, Davis Wright Tremaine, Los Angeles, CA, John A. Reed, Davis Wright Tremaine, Seattle, WA, for David Cassirer.

Sarah E. Andre, Thaddeus J. Stauber, Irene Tatevosyan, Jason P. Gonzalez, Jessica N. Walker, Kelly L. Kress, Nixon Peabody LLP, Los Angeles, CA, for Thyssen-Bornemisza Collection Foundation.

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING THYSSEN–BORNEMISZA COLLECTION FOUNDATION'S MOTION FOR SUMMARY JUDGMENT [filed 3/23/2015; Docket No. 249];

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE: CHOICE OF CALIFORNIA LAW [filed 3/23/2015; Docket No. 251]

HONORABLE JOHN F. WALTER

, UNITED STATES DISTRICT JUDGE

On March 23, 2015, Defendant Thyssen–Bornemisza Collection Foundation (the “Foundation”) filed a Motion for Summary Judgment [Docket No. 249]. On April 20, 2015, Plaintiffs David Cassirer, Ava Cassirer, and United Jewish Federation of San Diego County (collectively, “Plaintiffs”) filed their Opposition [Docket No. 273]. On May 4, 2015, the Foundation filed a Reply [Docket No. 289].¹ On March 23, 2015, Plaintiffs filed a Motion for Summary Adjudication Re Choice of California Law [Docket No. 251]. On April 20, 2015, the Foundation filed an Opposition [Docket No. 271]. On May 4, 2014, Plaintiffs filed a Reply [Docket No. 288].

Pursuant to Rule 78 of the Federal Rules of Civil Procedure

and Local Rule 7–15, the Court found these matters appropriate for submission on the papers without oral argument. The matters were, therefore, removed from the Court's May 18, 2015 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:

I. FACTUAL AND PROCEDURAL BACKGROUND²

In this action, Plaintiffs seek to recover the painting, Rue St. Honoré, après midi, effet de pluie, by French impressionist Camille Pissarro (the “Painting”), that was wrongfully taken from their ancestor, Lilly Cassirer Neubauer (“Lilly”),³ by the Nazi regime.

Lilly inherited the Painting in 1926. As a Jew, she was subjected to increasing persecution in Germany after the Nazis seized power in 1933. In 1939, in order for Lilly and her husband Otto Neubauer to obtain exit visas to flee Germany, Lilly was forced to transfer the Painting to Jakob Scheidwimmer, a Nazi art appraiser. In “exchange,” Scheidwimmer transferred 900 Reichsmarks (around $360 at 1939 exchange rates), well below the actual value of the painting, into a blocked account that Lilly could never access. After the war, Lilly filed a timely restitution claim. Because the location of the Painting was unknown, Lilly ultimately settled her claim for monetary compensation with the German government, but did not waive her right to seek restitution or return of the Painting. See Order dated March 13, 2015 [Docket No. 245].

Without Lilly's knowledge, the Painting surfaced in the United States in 1951. In July 1951, the Painting was sold to collector Sydney Brody in Los Angeles, California through art dealers M. Knoedler & Co. in New York and Frank Perls Gallery in Beverly Hills, California. The Frank Perls Gallery earned a commission of $3,105 for arranging the sale of the Painting to Sydney Brody. Less than a year later, in May 1952, Sydney Schoenberg, an art collector in St. Louis, Missouri, purchased the Painting from M. Knoedler & Co., on consignment from the Frank Perls Gallery, for $16,500.⁴

More than twenty years later, on November 18, 1976, Baron Hans–Heinrich Thyssen–Bornemisza of Lugano, Switzerland (the “Baron”) purchased the Painting through New York art dealer Stephen Hahn for $275,000. The Painting was maintained as part of the Thyssen–Bornemisza Collection in Switzerland until 1992, except when on public display in exhibitions outside Switzerland.

In 1988, the Baron and Spain agreed that the Baron (through one of his entities, Favorita Trustees Limited) would loan his art collection (the “Collection”), including the Painting, to the Kingdom of Spain. Pursuant to the 1988 Loan Agreement, Spain established the Foundation, a non-profit, private cultural foundation to maintain, conserve, publicly exhibit, and promote artwork from the Collection. The Spanish government agreed to display the Collection at the Villahermosa Palace in Madrid, Spain, which would be restored and redesigned for its new purpose as the Thyssen–Bornemisza Museum (the “Museum”).

On June 22, 1992, the Museum received the Painting, and, on October 10, 1992, opened to the public with the Painting on display.

Spain later sought to purchase the Collection. On June 18, 1993, the Spanish cabinet passed Real Decreto–Ley 11/1993, authorizing the government to sign a contract allowing the Foundation to purchase the 775 artworks that comprised the Collection. In accordance with Real Decreto–Ley 11/1993, on June 21, 1993, the Kingdom of Spain, the Foundation, and Favorita Trustees Limited entered into an Acquisition Agreement, by which Favorita Trustees Limited sold the Collection to the Foundation.⁵ The Foundation's purchase of the Collection for $338 million was entirely funded by Spain.

The Painting has been on public display at the Foundation's Museum in Madrid, Spain since the Museum's opening on October 10, 1992, except when on public display in a 1996 exhibition outside of Spain and while on loan at the Caixa Forum in Barcelona, Spain from October 2013 to January 2014. Since the Foundation purchased the Painting in 1993, the Painting's location and the Foundation's “ownership” have been identified in several publications including: (1) Wivel, Mikael: Ordrupgaard. Selected Works. Copenhague, Ordrupgaard, 1993, p. 44; (2) Rosenblum, Robert: “Impressionism. The City and Modern Life”. En Impressionists in Town. [Cat. Exp.]. Copenhague, Ordrupgaard, 1996, n. 17, pp. 16–17, il. 61.; (3) Llorens, Tomas; Borobia, Mar y Alarcó, Paloma: Obras Maestras. Museo Thyssen–Bornemisza. Madrid, Fundación Collectión Thyssen–Bornemisza, 2000, p. 156, il. p. 157; and (4) Perez–Jofre, T.: Grandes obras de arte. Museo Thyssen–Bornemisza. Colonia, Tascnen, 2001, p. 540, il. p. 541. Declaration of Evelio Acevedo Carrero [Docket No. 249–2] at ¶ 18.

Neither Lilly nor any of her heirs attempted to locate the Painting between 1958 and late 1999, and Claude Cassirer, Lilly's heir, did not discover that the Painting was on display at the Museum until sometime in 2000. On May 3, 2001, he filed a Petition with the Kingdom of Spain and the Foundation, seeking return of the Painting. On May 10, 2005, after his Petition to return the Painting was rejected, Claude Cassirer filed this action against the Kingdom of Spain and the Foundation,⁶ seeking the return of the Painting, or an award of damages in the event the Court is unable to order the return of the Painting. From 1980 to the time of his death on September 25, 2010, Claude Cassirer lived in California.

After extensive motion practice, including two appeals to the Ninth Circuit, the Foundation now moves for summary judgment on the grounds that: (1) under Swiss or Spanish law, the Foundation is the owner of the Painting; (2) California Code of Civil Procedure § 338(c)

, as amended in 2010, violates the Foundation's due process rights by retroactively depriving the Foundation of its vested property rights; and (3) Plaintiffs' claims are barred by laches. Plaintiffs move for summary adjudication, seeking an order declaring that the substantive law of the State of California governs, and that the law of Spain does not govern, the merits of this dispute.

II. LEGAL STANDARD

Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)

. The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party meets its burden, a party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250, 106 S.Ct. 2505 ; Fed.R.Civ.P. 56(c), (e) ; see also

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.”). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “An issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a dispute capable of affecting the outcome of the case.” American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir.1991) (Kozinski, dissenting).

An issue is genuine if evidence is produced that would allow a rational trier of fact to reach a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505

. “This requires evidence, not speculation.” Meade v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir.1999). The Court must assume the truth of direct evidence set forth by the opposing party. See

Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir.1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See

Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 ; T

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