69 F.4th 554
9th Cir.2023Background
- A Pissarro painting stolen by the Nazis from the Cassirer family ultimately was sold to Baron Thyssen‑Bornemisza and in 1993 transferred to the Thyssen‑Bornemisza Collection Foundation (TBC), an entity controlled by Spain, and publicly displayed in Madrid.
- Plaintiffs (the Cassirers) sued in California under the FSIA seeking return; after extensive litigation the Ninth Circuit (applying federal choice rules) held Spanish acquisitive‑prescription law could vest title in TBC unless TBC was an encubridor; on remand the district court found TBC not an encubridor and that TBC acquired prescriptive title; the Ninth affirmed on facts.
- The U.S. Supreme Court held that FSIA cases must use the forum state’s (California’s) choice‑of‑law rules, vacated and remanded to apply California law.
- On remand the Ninth Circuit panel confronted a choice‑of‑law conflict: California’s longstanding rule that a thief cannot pass good title (and absence of clear authority applying adverse possession to chattels) versus Spain’s Civil Code (Article 1955) allowing acquisitive prescription for movables.
- The Ninth concluded a true conflict exists and that California precedent gives inadequate guidance on applying the third step (comparative impairment) of California’s governmental‑interest test in property/adverse‑possession contexts, so it certified to the California Supreme Court the question whether California’s or Spain’s interest would be more impaired if subordinated.
- Judge Bea dissented from certification, arguing the conflict is actually false because California has no settled adverse‑possession rule for chattels and Spain is the only interested state, so Spanish law should govern and certification was unnecessary and harmful.
Issues
| Issue | Plaintiff's Argument (Cassirer) | Defendant's Argument (TBC / Spain) | Held |
|---|---|---|---|
| Whether a true conflict exists between California and Spanish law on title to stolen chattels | California rule (thief cannot pass title) would let Cassirers recover; California has strong interest in protecting owners (esp. Holocaust‑era art) | Spain’s acquisitive‑prescription law vests title after statutory possession periods; Spain has territorial interest | Panel: a true conflict exists because the two jurisdictions’ rules differ and each has a legitimate interest |
| Whether California’s comparative‑impairment (step 3) analysis yields a clear choice in this property dispute | California’s policy favoring recovery by theft victims should prevail; subordinating it would impair CA interests | Spain’s interest in protecting prescriptive title and predictable property expectations should prevail | Panel: existing California caselaw (mostly tort contexts) does not supply guidance for this property dispute; certified question to CA Supreme Court |
| Whether California has recognized/adopted adverse possession (acquisitive prescription) for personal property | Cassirers: California adheres to the rule that thieves cannot pass title and has no recognized adverse‑possession doctrine for chattels | TBC/Spain: Spain clearly recognizes acquisitive prescription for movables; TBC relied on Spanish law in acquisition | Panel: unsettled under California law; question certified for state court clarification |
| Whether certification to the California Supreme Court was proper | Cassirers/supporters: important, broad, unresolved state‑law issue with federalism/comity reasons to certify | Judge Bea/dissent: certification improper because California law is sufficiently clear (false conflict) and certification imposes delay and forum‑shopping risks | Panel: exercised discretion to certify the comparative‑impairment question to California Supreme Court; dissent would decide Spanish law applies without certification |
Key Cases Cited
- Cassirer v. Thyssen‑Bornemisza Collection Found., 862 F.3d 951 (9th Cir. 2017) (en banc) (applied federal choice‑of‑law analysis; analyzed Spanish acquisitive prescription and encubridor concept)
- Cassirer v. Thyssen‑Bornemisza Collection Found., 142 S. Ct. 1502 (U.S. 2022) (Supreme Court: FSIA requires use of forum choice‑of‑law rules)
- Kearney v. Salomon Smith Barney, 39 Cal.4th 95 (Cal. 2006) (adopts three‑step governmental‑interest choice‑of‑law test)
- McCann v. Foster Wheeler LLC, 48 Cal.4th 68 (Cal. 2010) (explains and applies comparative‑impairment analysis)
- Naftzger v. Am. Numismatic Soc'y, 42 Cal. App.4th 421 (Cal. Ct. App. 1996) (discusses stolen property, discovery rule, and dicta regarding stolen property retention)
- Crocker Nat'l Bank v. Byrne & McDonnell, 178 Cal. 329 (Cal. 1918) (articulates that a thief cannot pass good title)
- Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157 (Cal. 1978) (comparative‑impairment considerations; treatment of ‘‘antique’’ statutes)