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Thyssen-Bornemisza Petition.Wpd APPENDIX i APPENDIX TABLE OF CONTENTS Appendix A Opinion in the United States Court of Appeals for the Ninth Circuit (July 10, 2017) ...............App. 1 Appendix BJudgment in the United States District Court Central District of California, Western Division (June 12, 2015) ..............App. 66 Appendix C Order Granting Thyssen-Bornemisza Collection Foundation’s Motion for Summary Judgment and Order Denying Plaintiffs’ Motion for Summary Adjudication Re: Choice of California Law in the United States District Court Central District of California (June 4, 2015) ...............App. 68 Appendix DOrder Denying Petition for Panel Rehearing and Petition for Rehearing En Banc in the United States Court of Appeals for the Ninth Circuit (December 5, 2017) .........App. 110 Appendix E Defendant-Appellee/Cross-Appellant’s Petition for Rehearing and Rehearing En Banc in the United States Court of Appeals for the Ninth Circuit (September 7, 2017) .........App. 112 ii Appendix F Brief of Amici Curiae The Kingdom of Spain in Support of Defendant- Appellee/Cross-Appellant’s Petition for Rehearing and Rehearing En Banc in the United States Court of Appeals for the Ninth Circuit (September 18, 2017) ........App. 132 Appendix G Application for Permission to File Brief of Amicus Curiae The Kingdom of Spain (Brief of Amicus Curiae Filed Concurrently Herewith) in the United States Court of Appeals for the Ninth Circuit (September 18, 2017) ........App. 184 Appendix H Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment in the United States District Court Central District of California, Western Division (April 20, 2015) ............App. 190 Appendix I Federal Rule of Civil Procedure 44.1 – Determining Foreign Law....App. 226 App. 1 APPENDIX A FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [Filed July 10, 2017] No. 15-55550 15-55977 D.C. No. 2:05-cv-03459-JFW-E ______________________________________ DAVID CASSIRER; AVA CASSIRER;UNITED ) JEWISH FEDERATION OF SAN DIEGO ) COUNTY, a California non-profit ) corporation, ) Plaintiffs-Appellees,) ) v. ) ) THYSSEN-BORNEMISZA COLLECTION ) FOUNDATION, an agency or ) instrumentality of the Kingdom of Spain, ) Defendant-Appellant. ) ______________________________________ ) No. 15-55951 D.C. No. 2:05-cv-03459-JFW-E ______________________________________ DAVID CASSIRER; AVA CASSIRER;) UNITED JEWISH FEDERATION OF ) SAN DIEGO COUNTY, a California ) App. 2 non-profit corporation, ) Plaintiffs-Appellants,) ) v. ) ) THYSSEN-BORNEMISZA ) COLLECTION FOUNDATION, ) an agency or instrumentality of the ) Kingdom of Spain, ) Defendant-Appellee. ) ______________________________________ ) OPINION Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Argued and Submitted December 5, 2016 Pasadena, California Filed July 10, 2017 Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Bea App. 3 SUMMARY* Foreign Sovereign Immunities Act / Holocaust Expropriated Art Recovery Act The panel reversed the district court’s grant of summary judgment, on remand, in favor of Thyssen- Bornemisza Collection Foundation, the defendant in an action under the Foreign Sovereign Immunities Act concerning a Camille Pissarro painting that was forcibly taken from the plaintiffs’ great-grandmother by an art dealer who had been appointed by the Nazi government to conduct an appraisal. The panel held that the Holocaust Expropriated Art Recovery Act of 2016 supplied the statute of limitations for the plaintiffs’ claims. The claims were timely because they were filed within six years of the date of the plaintiffs’ actual discovery of the artwork’s location. The panel held that when jurisdiction is based on the FSIA, federal common law, which follows the approach of the Restatement (Second) of Conflict of Laws, applies to the choice of law rule determination. Under the Second Restatement, Spain’s substantive law governed defendant TBC’s claim that it was the rightful owner of the painting. The panel held that the district court erred in deciding that, as a matter of law, TBC had acquired title to the painting through Article 1955 of the Spanish Civil Code. The panel held that there was a * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. App. 4 triable issue of fact whether TBC was an encubridor, or accessory, to the theft of the painting within the meaning of Civil Code Article 1956. In Section III.C.1 of its opinion, the panel considered the following Spanish rules of statutory interpretation: (i) proper meaning of wording; (ii) context; (iii) historical and legislative background, including (a) definition of encubridor in the 1870 Penal Code, and (b) the 1950 Law; and (iv) social reality at the time of enactment. The panel concluded that an encubridor within the meaning of Article 1956 could include someone who, with knowledge that the good had been stolen from the rightful owner, received stolen goods for his personal benefit. The panel concluded that TBC had not established, as a matter of law, that it lacked actual knowledge that the painting was stolen property. The district court therefore erred in granting summary judgment on the grounds that, as a matter of law, TBC acquired the painting through acquisitive prescription. The panel rejected TBC’s other arguments for affirming the grant of summary judgment. First, the panel held that TBC was not entitled to summary judgment based on its claim that Baron Hans Heinrich Thyssen-Bornemisza, from whom it bought the painting, had lawful title under Swiss law. The panel concluded that there was a triable issue of fact as to the Baron’s good faith in his possession of the painting. Second, the panel held that TBC was not entitled to summary judgment based on a laches defense under California law. Third, the panel held that the plaintiffs’ claims were not foreclosed by their great-grandmother’s acceptance of a 1958 settlement agreement with the Nazi art appraiser, the heir of another Jewish victim, and the German government. App. 5 The panel also concluded that the plaintiffs’ other arguments against applying Article 1955 were without merit. The panel held that Spain’s Historical Heritage Law did not prevent TBC from acquiring prescriptive title to the painting. The panel also affirmed the district court’s conclusion that the application of Article 1955 to vest TBC with title to the painting would not violate the European Convention on Human Rights. The panel reversed the district court’s judgment and remanded the case to the district court for further proceedings. COUNSEL David Boies (argued), Boies Schiller & Flexner LLP, Armonk, New York; Devin Velvel Freedman and Stephen N. Zack, Boies Schiller & Flexner LLP, Miami, Florida; for Plaintiffs-Appellants/Cross-Appellees. Thaddeus H. Stauber (argued), Jessica N. Walker, and Sarah Erickson André, Nixon Peabody LLP, Los Angeles, California, for Defendant-Appellee/Cross- Appellant. Martin M. Ellison and Mary-Christine Sungaila, Haynes and Boone LLP, Costa Mesa, California, for Amicus Curiae Bet Tzedek Legal Services. Kathleen Vermazen Radez, Associate Deputy Solicitor General; Joshua A. Klein, Deputy Solicitor General; Edward C. DuMont, Solicitor General; Office of the Attorney General, San Francisco, California; for Amicus Curiae State of California. Sarah E. Gettings, Connie Lam, Christie P. Bahna, Benjamin G. Schatz, and Stanley W. Levy, Manatt App. 6 Phelps & Phillips LLP, Los Angeles, California; Michael Bazyler, Dale E. Fowler School of Law, Chapman University, Orange, California; for Amicus Curiae The 1939 Society. Daragh M. Brehony and Bernardo M. Cremades Román, B. Cremades & Asociados, Madrid, Spain, for Amici Curiae Comunidad Judía de Madrid and Federación de Comunidades Judías de España. Kelly L. Perigoe and Jeanne A. Fugate, Caldwell Leslie & Proctor PC, Los Angeles, California, for Amicus Curiae José Luis de Castro. Jackson Herndon, Kelly A. Bonner, and Owen C. Pell, White & Case LLP, New York, New York; Agnes Peresztegi, Soffer Avocats, Paris, France; for Amicus Curiae Commission for Art Recovery. OPINION BEA, Circuit Judge, with whom Judge Callahan concurs. Judge Ikuta concurs except as to Sections III.C.1.iii.b and III.C.1.iv: In 1939 Germany, as part of the “Aryanization” of the property of German Jews, Lilly Neubauer (“Lilly”)1 was forced to “sell” a painting by Camille Pissarro (the “Painting”), a French Impressionist, to Jackob Scheidwimmer (“Scheidwimmer”), a Berlin art dealer. 1 In our two prior opinions, this Court has referred to Lilly Neubauer, the great-grandmother of Plaintiffs David Cassirer and Ava Cassirer, as “Lilly.” See Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en banc); Cassirer v. Thyssen- Bornemisza Collection Foundation, 737 F.3d 613 (9th Cir. 2013). App. 7 We use quotation marks around “sell” to distinguish the act from a true sale because Scheidwimmer had been appointed to appraise the Painting by the Nazi government, had refused to allow Lilly to take the Painting with her out of Germany, and had demanded that she sell it to him for all of $360 in Reichsmarks, which were to be deposited in a blocked account. Lilly justifiably feared that unless she sold the Painting to Scheidwimmer she would not be allowed to leave Germany. The district court found, and the parties agree, that the Painting was forcibly taken from Lilly. The history of how the Cassirer family came to own the Painting, as well as the application of the Foreign Sovereign Immunity Act (“FSIA”) which resulted in recognition of our jurisdiction to deal with the claims to the Painting, are detailed in our earlier en banc opinion2 What primarily concerns us now is the sale of the Painting by the Baron Hans Heinrich Thyssen- Bornemisza (the “Baron”) to the Thyssen-Bornemisza Collection (“TBC”) in 1993, its display at TBC’s museum in Madrid ever since, and what effect, if any, that possession has had on the claims of title by the parties to this action.
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