Saher v. Norton Simon Museum

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MAREI VON SAHER,  No. 07-56691
Plaintiff-Appellant, D.C. No.
v. CV-07-02866-JFW
NORTON SIMON MUSEUM OF ART AT ORDER
PASADENA, Norton Simon Museum AMENDING
of Art at Pasadena; NORTON SIMON
ART FOUNDATION,  OPINION AND
DENYING THE
Defendants-Appellees. PETITIONS FOR
REHEARING AND
FOR REHEARING
EN BANC AND
AMENDED
 OPINION

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Argued and Submitted
December 8, 2008—Pasadena, California

Filed August 19, 2009
Amended January 14, 2010

Before: Harry Pregerson, Dorothy W. Nelson and
David R. Thompson, Circuit Judges.

Opinion by Judge Thompson;
Dissent by Judge Pregerson

1013
1016 VON SAHER v. NORTON SIMON MUSEUM OF ART

COUNSEL

Lawrence M. Kaye, New York, New York, for plaintiff-
appellant Marei Von Saher.

Fred Anthony Rowley, Jr., Los Angeles, California, for
defendants-appellees Norton Simon Museum of Art at Pasa-
dena and Norton Simon Art Foundation.

Frank Kaplan, Santa Monica, California, for amicus curiae
Bet Tzedek Legal Services, The Jewish Federation Council of
Greater Los Angeles, American Jewish Congress, American
Jewish Committee, Simon Wiesenthal Center and Commis-
sion for Art Recovery.

Edmund G. Brown, Jr., Attorney General of the State of Cali-
fornia by Antonette Benita Cordero, Los Angeles, California,
for amicus curiae State of California.

ORDER

The panel, with the following amendments, has granted the
petition for panel rehearing filed by the appellee, Norton
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1017
Simon Museum of Art at Pasadena, and has denied the peti-
tions for rehearing and for rehearing en banc filed by the
appellant Marei Von Saher, and by amici the State of Califor-
nia and Earthrights International.

The opinion filed August 19, 2009, slip op. 11333, and
published at 578 F.3d 1016 (9th Cir. 2009) is amended as fol-
lows:

At page 578 F.3d 1031 the last two paragraphs of the
majority opinion are deleted. The first of these two paragraphs
begins “The museum contends that the articles” and the last
paragraph of the two paragraphs ends “dismissed without
leave to amend.” The following new paragraph is inserted in
place of the two deleted paragraphs:

Because it is not clear that Saher’s complaint
could not be amended to show a lack of reasonable
notice, dismissal without leave to amend was not
appropriate. See Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). We, there-
fore, grant Saher leave to amend her complaint to
allege the lack of reasonable notice to establish dili-
gence under California Code of Civil Procedure
§ 338, and remand this case to the district court for
that purpose.

The full court was advised of the petitions for rehearing and
for rehearing en banc, and of the proposed amendments set
forth above. No judge requested rehearing en banc.

The opinion as amended above is filed simultaneously with
this order.

With the exception of the relief granted above pursuant to
the appellee’s petition for panel rehearing, the petitions for
rehearing and for rehearing en banc are DENIED. Judge Pre-
1018 VON SAHER v. NORTON SIMON MUSEUM OF ART
gerson voted to grant the petitions for rehearing and for
rehearing en banc.

No further petitions for rehearing or rehearing en banc may
be filed.

OPINION

THOMPSON, Senior Circuit Judge:

Marei von Saher (“Saher”) seeks the return of two paint-
ings alleged to have been looted by the Nazis during World
War II. The paintings were purchased in or around 1971 by
the Norton Simon Museum of Art in Pasadena, California
(“the Museum”), and are now on display there. Saher brought
this claim against the Museum under § 354.3 of the California
Code of Civil Procedure, which extends the statute of limita-
tions until 2010 for actions for the recovery of Holocaust-era
art. The primary issue on appeal is whether § 354.3 infringes
on the national government’s exclusive foreign affairs pow-
ers. The district court held that it does. We agree, and affirm
the district court’s holding that § 354.3 is preempted.

California also has a three-year statute of limitations for
actions to recover stolen property. California Code of Civil
Procedure § 338. The district court granted the Museum’s
Rule 12(b)(6) motion to dismiss Saher’s complaint under that
statute without leave to amend. Because it is possible Saher
might be able to amend her complaint to bring her action
within § 338, we reverse the district court’s dismissal without
leave to amend, and remand for further proceedings.

I. Background

A. Nazi Art Looting in WWII

During World War II, the Nazis stole hundreds of thou-
sands of artworks from museums and private collections
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1019
throughout Europe, in what has been termed the “greatest dis-
placement of art in human history.” Michael J. Bazyler, Holo-
caust Justice: The Battle for Restitution in America’s Courts
202 (NYU Press 2003).

Following the end of World War II, the Allied Forces
embarked on the task of returning the looted art to its country
of origin. In July 1945, President Truman authorized the
return of “readily identifiable” works of art from U.S. collect-
ing points. See, e.g., Presidential Advisory Commission on
Holocaust Assets in the United States, Plunder and Restitu-
tion: The U.S. and Holocaust Victims’ Assets SR-142 (Dec.
2000) (hereinafter Plunder and Restitution). At the Potsdam
Conference, President Truman formally adopted a policy of
“external restitution,” under which the looted art was returned
to the countries of origin—not to the individual owners.
American Commission for the Protection and Salvage of
Artistic and Historic Monuments in War Areas, Report, 148
(1946) (hereinafter Roberts Commission Report).

Despite these restitution efforts, many paintings stolen by
the Nazis were never returned to their rightful owners. See,
e.g., Bazyler at 204. Tracking the provenance of Nazi-looted
art is nearly impossible, since many changes of ownership
went undocumented, and most of the transactions took place
on the black market. Id. In recent years, a number of the
world’s most prominent museums have discovered their col-
lections include art stolen during World War II. Id. at 205-06.

The federal government has continued to take action to
address the recovery of Holocaust-era art. In 1998, Congress
enacted the U.S. Holocaust Assets Commission Act of 1998,
Pub. L. No. 105-186, 112 Stat. 611 (codified as amended at
22 U.S.C. § 1621). This Act established the Presidential Advi-
sory Commission on Holocaust Assets, which conducted
research on the fate of Holocaust-era assets, and advised the
President on future policies concerning the recovery of these
assets. Id. That same year, the State Department convened a
1020 VON SAHER v. NORTON SIMON MUSEUM OF ART
conference with forty-four other nations to address the recov-
ery of Holocaust-era assets. U.S. Dep’t of State, Proceedings
of the Washington Conference on Nazi-Confiscated Art (Dec.
3, 1998), http://www.state.gov/p/eur/rt/hlcst/23231.htm (here-
inafter Washington Conference Proceedings). In the mean-
time, numerous Holocaust victims and their heirs have turned
to the courts to recover their looted art. See, e.g., Republic of
Austria v. Altmann, 541 U.S. 677 (2004).

B. Section 354.3

Many obstacles face those who attempt to recover
Holocaust-era art through lawsuits. The challenges range from
procedural hurdles such as statutes of limitations, to pruden-
tial standing doctrines. See, e.g., Benjamin E. Pollock, Out of
the Night and Fog: Permitting Litigation to Prompt an Inter-
national Resolution to Nazi-Looted Art Claims, 43 Houston L.
Rev. 193, 213-28 (2006); Lawrence M. Kaye, Avoidance and
Resolution of Cultural Heritage Disputes: Recovery of Art
Looted During the Holocaust, 14 Williamette J. Int’l L. &
Disp. Resol. 243, 252-58 (2006). In 2002, California
responded to these difficulties by enacting California Code of
Civil Procedure § 354.3.1 Section 354.3 provides:

Notwithstanding any other provision of law, any
owner, or heir or beneficiary of an owner, of
Holocaust-era artwork, may bring an action to
recover Holocaust-era artwork from any entity
described in paragraph (1) of subdivision (a). Subject
to Section 410.10, that action may be brought in a
superior court of this state, which court shall have
jurisdiction over that action until its completion or
resolution.
1
All subsequent references are to the California Code of Civil Proce-
dure, unless otherwise stated.
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1021
Section 354.3(b). The California statute allows suits against
“any museum or gallery that displays, exhibits, or sells any
article of historical, interpretive, scientific, or artistic signifi-
cance.” Section 354(a)(1). The statute also extends the statute
of limitations for § 354.3 claims until December 31, 2010.
Section 354.3(c).

California has enacted several other laws extending the
statute of limitations for claims relating to the Holocaust. See,
e.g., Section 354.5 (extending statute of limitations for insur-
ance policy claims by Holocaust victims or their heirs); Sec-
tion 354.6 (creating a cause of action and extending the
statute of limitations for slave labor claims arising out of
WWII). Both of these sister statutes have been found uncon-
stitutional under the foreign affairs doctrine. Steinberg v. Int’l
Comm’n on Holocaust Era Ins. Claims, 34 Cal. Rptr. 3d 944,
953 (Cal.Ct. App. 2005) (finding § 354.5 unconstitutional);
Deustch v. Turner, 324 F.3d 692, 716 (9th Cir. 2003) (finding
§ 354.6 unconstitutional).

C. The Cranachs

Saher, the only surviving heir of Jacques Goudstikker, a
deceased art dealer, filed this suit in 2007 against the Museum
under § 354.3 and California Penal Code § 496, seeking the
return of a diptych entitled “Adam and Eve.” The diptych, a
pair of oil paintings by sixteenth-century artist Lucas Cranach
the Elder (hereinafter the “Cranachs”), is currently on public
display at the Museum.

Goudstikker bought the Cranachs at an art auction in Berlin
in or about May 1931.2 Goudstikker was a prominent art
dealer in the Netherlands; he specialized in Old Master paint-
2
The facts in this section are alleged in Saher’s complaint; some are dis-
puted by the Museum. Given the procedural posture of the case, we accept
these factual allegations as true, and construe them in the light most favor-
able to Saher.
1022 VON SAHER v. NORTON SIMON MUSEUM OF ART
ings. Goudstikker’s collection contained more than 1,200 art-
works, including Rembrandts, Steens, Ruisdaels, and van
Goghs.

When the Nazis invaded the Netherlands in May 1940,
Goudstikker and his family fled the country. The family left
their assets behind, including the Gallery. Goudstikker
brought with him a black notebook containing a list of over
1,000 of the artworks he had left behind in his collection (the
“Blackbook”). The Blackbook lists the Cranachs as Numbers
2721 and 2722, and states that they were purchased at the
Lepke Auction House and were previously owned by the
Church of the Holy Trinity in Kiev.

After the Goudstikkers escaped, the Nazis looted Goudstik-
ker’s gallery. Herman Göring, Reischsmarschall of the Third
Reich, seized the Cranachs and hundreds of other pieces from
the gallery. Göring sent the artwork to Carinhall, his country
estate near Berlin, where the collection remained until
approximately May 1945 when the Allied Forces discovered
it. The recovered artwork was then sent to the Munich Central
Collection Point, where the works from the Goudstikker col-
lection were identified. In or about 1946, the Allied Forces
returned the Goudstikker artworks to the Netherlands.

The Cranachs were never restituted to the Goudstikker fam-
ily. Instead, after restitution proceedings in the Netherlands,
the Dutch government delivered the two paintings to George
Stroganoff, one of the claimants, and he sold them, through
an art dealer, to the Museum.

The Museum filed a Rule 12(b)(6) motion to dismiss
Saher’s complaint filed in this case for the return of the paint-
ings. The district court granted the motion and dismissed
Saher’s claim with prejudice. The district court held that
§ 354.3’s extension of the statute of limitations was unconsti-
tutional on its face, because it violated the foreign affairs doc-
trine, as interpreted and applied by the Ninth Circuit in
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1023
Deustch, 324 F.3d 692. The district court concluded that by
seeking to redress wrongs committed in the course of World
War II, the California statute intruded on the federal govern-
ment’s exclusive power to make and resolve war, including
the procedure for resolving war claims. The court then dis-
missed Saher’s complaint because it had not been filed within
the three-year period of California’s statute of limitations,
California Code of Civil Procedure § 338. This appeal fol-
lowed.

II. Standard of Review

We review de novo the district court’s decision dismissing
Saher’s complaint under Rule 12(b)(6). Edwards v. Marin
Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). We accept
all well-pleaded factual allegations as true, and construe them
in the light most favorable to Saher. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, ___, 127 S. Ct. 1955, 1965 (2007);
Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122
(9th Cir. 2008).

III. Motion for Judicial Notice

The Museum moves for judicial notice of two Presidential
Commission reports, a military order approved by President
Truman and enacted under the command of General Eisen-
hower, and a memorandum prepared by a State Department
committee. Judicial notice of legislative facts such as these is
unnecessary. Fed. R. Evid. 201(a), advisory comm. note to
1972 amendments. See, e.g., Toth v. Grand Trunk R.R., 306
F.3d 335, 349 (6th Cir. 2002) (“[J]udicial notice is generally
not the appropriate means to establish the legal principles
governing the case.”).

The Museum also moves for judicial notice of the fact that
various newspapers, magazines, and books have published
information about the Cranachs. Courts may take judicial
notice of publications introduced to “indicate what was in the
1024 VON SAHER v. NORTON SIMON MUSEUM OF ART
public realm at the time, not whether the contents of those
articles were in fact true.” Premier Growth Fund v. Alliance
Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2001); accord
Heliotrope Gen. Inc. v. Ford Motor Co., 189 F.3d 971, 981
n.118 (9th Cir. 1999) (taking judicial notice “that the market
was aware of the information contained in news articles sub-
mitted by the defendants.”). These publications meet the stan-
dards for admissibility set forth in Federal Rule of Evidence
201(b). Accordingly, we take judicial notice of them solely as
an indication of what information was in the public realm at
the time.

IV. Constitutionality of § 354.4 Under the Foreign
Affairs Doctrine

The Supreme Court has characterized the power to deal
with foreign affairs as a primarily, if not exclusively, federal
power. See, e.g., Am. Ins. Assoc. v. Garamendi, 539 U.S. 396,
413-14 (2003); Zschernig v. Miller, 389 U.S. 429, 432 (1968);
Hines v. Davidowitz, 312 U.S. 52, 63 (1941). The Supreme
Court has declared state laws unconstitutional under the for-
eign affairs doctrine when the state law conflicts with a fed-
eral action such as a treaty, federal statute, or express
executive branch policy. See, e.g., Garamendi, 539 U.S. at
421-22 (invalidating a California statute which conflicted
with Presidential foreign policy); Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 373-74 (2000) (invalidating a
Massachusetts statute which stood as an obstacle to a Con-
gressional act imposing sanctions on Burma); U.S. v. Belmont,
301 U.S. 324, 327 (1937) (holding that the Litvinov Assign-
ment, an executive agreement, preempted New York public
policy).

Occasionally, however, in the absence of any conflict, the
Court has declared state laws to be incompatible with the fed-
eral government’s foreign affairs power. See, e.g., Zschernig,
389 U.S. at 432 (striking down an Oregon probate law, in the
absence of any federal action, because it was an “intrusion by
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1025
the State into the field of foreign affairs which the Constitu-
tion entrusts to the President and the Congress”); Hines, 312
U.S. at 63 (invalidating a Pennsylvania immigration law
because the field of immigration regulation was occupied
exclusively by federal statutes and regulations); see also
Deutsch, 324 F.3d at 712 (concluding that § 354.6 infringed
on the federal government’s exclusive power to wage and
resolve war).

The Museum argues that § 354.3 is preempted under either
theory. First, the Museum contends, § 354.3 conflicts with the
Executive Branch’s policy of external restitution following
World War II. Alternatively, the Museum argues, § 354.3 is
preempted because it infringes on the federal government’s
exclusive power to conduct foreign affairs, and specifically,
the power to redress injuries arising from war. We address
each argument in turn.

A. Does § 354.3 Conflict With the Executive Branch’s
Policy of External Restitution?

[1] Federal law’s “power” to preempt state law arises from
the Supremacy Clause, which provides that “the Laws of the
United States” and “all Treaties . . . shall be the supreme Law
of the Land . . . any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” U.S. Const. art. VI,
§ 2. Under a traditional statutory preemption analysis, conflict
or obstacle preemption occurs where the state law “stands as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Crosby v. Nat’l For-
eign Trade Council, 530 U.S. 363, 373 (2000) (citing Hines,
312 U.S. at 67) (internal quotation marks omitted).

[2] Executive agreements settling claims with foreign
nations and nationals have long been accorded the same pre-
emptive effect. Garamendi, 539 U.S. at 416 (“[V]alid execu-
tive agreements are fit to preempt state law, just as treaties
are[.]”); Dames & Moore v. Regan, 453 U.S. 654 (1981);
1026 VON SAHER v. NORTON SIMON MUSEUM OF ART
United States v. Pink, 315 U.S. 203 (1941); Belmont, 301 U.S.
at 324. In Garamendi, the Supreme Court invalidated a Cali-
fornia statutory scheme which facilitated litigation of
Holocaust-era insurance claims. Garamendi, 539 U.S. at 401.
The Court concluded that the California scheme posed an
obstacle to the German Foundation Agreement and other
expressions of Executive Branch policy preferring non-
judicial resolution of such claims. Id. at 405-07.

Here, the Museum contends that § 354.3 is preempted by
the Executive Branch’s policy of external restitution. This
policy, the Museum argues, was expressed in two main
sources: first, the London Declaration, and second, “Art
Objects in US Zone,” a U.S. policy statement approved by
President Truman during the Potsdam Conference in August
of 1945.

London Declaration

The United States and the Netherlands, along with sixteen
other nations, were signatories to the London Declaration of
January 5, 1943. Forced Transfers of Property in Enemy-
Controlled Territory, 1943, in 3 Dep’t of State, Treaties and
Other International Agreements of the United States of Amer-
ica 1776-1949, p. 754 (C. Bevans comp. 1969) (hereinafter
Bevans). The Declaration served as a “formal warning to all
concerned, and in particular persons in neutral countries,” that
the Allies intended “to do their utmost to defeat the methods
of dispossession practiced by the governments with which
they [were] at war[.]” Id.

In the Declaration, the Allies explicitly reserved the right
to invalidate wartime transfers of property, regardless of
“whether such transfers or dealings [had] taken the form of
open looting or plunder, or of transactions apparently legal in
form, even when they purport[ed] to be voluntarily effected.”
Id. The Declaration does not explicitly address restitution or
reparations, but has been credited by some with laying the
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1027
foundation for the United States’s postwar restitution policy.
See, e.g., Plunder and Restitution at SR-139.

Art Objects in U.S. Zones

When the American forces entered Germany in the winter
of 1944-45, they discovered large stashes of Nazi-looted art,
hidden in castles, banks, salt mines, and even caves. Plunder
and Restitution at SR-13, SR-85. U.S. authorities established
several central collection points within the U.S. Zone to
assemble the recovered artwork “for proper care and study.”
Report, Art Objects in US Zone, July 29, 1945, NACP, RG
338, USGCC HQ, ROUS Army Command, Box 37, File: Fine
Art [313574-575] (hereinafter “Art Objects in U.S. Zone”).

On July 29, 1945, at the Potsdam Conference, President
Truman approved a policy statement setting forth the standard
operating procedures governing the looted artwork found
within the U.S. zone of occupation. Art Objects in US Zone;
Roberts Commission Report at 148. The governments of the
formerly occupied countries submitted consolidated lists of
items taken by the Germans, with information about the loca-
tion and circumstances of the theft. Plunder and Restitution at
SR-142. The U.S. authorities examined the lists, and when
artwork was identified, it was returned to the country of ori-
gin. Id. Under this policy of “external restitution,” the U.S.
restituted the looted artwork to countries, not individuals. Art
Objects in US Zone; Plunder and Restitution at SR-139-SR-
142. The newly liberated governments were responsible for
restituting the art to the individual owners. Once the art was
returned to the country of origin, the U.S. played no further
role.

A contemporaneous memorandum from the State Depart-
ment illuminates several of the reasons the federal govern-
ment preferred the policy of external restitution over
individual restitution. U.S. Dep’t of State, Memorandum from
Interdivisional Comm. on Rep., Rest., & Prop. Rights, Sub-
1028 VON SAHER v. NORTON SIMON MUSEUM OF ART
comm. 6, Recommendations on Restitution, Apr. 10, 1944, 1,
NACP, RG 59, Lot 62D-4, Box 49, State/Notter, [320633-
644] (hereinafter Recommendations on Restitution). First, in
view of the complexities of the sham transactions through
which the Nazis seized many of the artworks, the State
Department felt it best to allow the individual countries to
handle restitution in “whatever way they see fit.” Id. at 2. Sec-
ond, the State Department observed, in some cases, it might
“be impossible to locate the original owners or their heirs and
the governments involved will have to decide what should be
done with the property or proceeds therefrom.” Id. Finally, the
State Department recognized that the liberated countries
themselves had a stake in the restitution of art owned by their
citizens:

[I]n many, if not most, cases the local funds [with
which the Nazis “purchased” the art from the perse-
cuted] were supplied originally by the local govern-
ment or central bank as occupation costs or through
forced credits. The Germans in effect forced the
local government to pay for their purchases. The
individual owner received recompense in local cur-
rency but the country as a whole received no recom-
pense for the transfer of property to foreign owners.
These cases constitute looting just as much as the
cases of outright seizure without recompense.

Id. at 2-3.

The U.S. authorities stopped accepting claims for external
restitution of looted artwork as of September 15, 1948. Plun-
der and Restitution at SR-143. By the beginning of 1949,
close to three million pieces of Jewish cultural property had
been restituted to twelve different countries by the U.S.
authorities. Id.

Had California enacted § 354.3 in 1945, it would have
directly conflicted with the federal government’s policy of
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1029
external restitution. If the statute had been enacted in the
immediate aftermath of the war, it would have presented a
competing method of resolving restitution claims, and a
forum for individuals to seek the return of their looted art—in
clear contravention of the Executive Branch policy. The Cali-
fornia statute also would have presented a direct threat to sev-
eral of the goals underlying the Executive Branch’s policy,
including the rehabilitation of Germany.

[3] The United States’s policy of external restitution, how-
ever, ended in 1948. After September 15, 1948, the U.S.
authorities refused to accept any more claims for external res-
titution. Plunder and Restitution at SR-143. In fact, as Saher
states in her complaint, the Cranachs were returned to the
Netherlands through the U.S. external restitution program.
Section 354.3 cannot conflict with or stand as an obstacle to
a policy that is no longer in effect.

The Museum also argues, however, that many of the fed-
eral government’s concerns leading to the external restitution
policy remain relevant today. For example, the Museum
argues that claims under § 354.3 are problematic, because
they ask California courts to review the restitution decisions
of foreign governments.3 Even if true, there would still be no
conflict because, as stated above, the external restitution pol-
icy is no longer in effect.

[4] In sum, had the California statute been enacted immedi-
ately following WWII, it undoubtedly would have conflicted
with the Executive Branch’s policy of external resolution. The
statute does not, however, conflict with any current foreign
policy espoused by the Executive Branch.
3
These and other related concerns are addressed more fully in the sec-
tion below dealing with field preemption.
1030 VON SAHER v. NORTON SIMON MUSEUM OF ART
B. In the Absence of Any Conflict With Federal Law or
Foreign Policy, is § 354.3 Nonetheless Preempted Under
the Foreign Affairs Doctrine?

At times, albeit seldomly, the Supreme Court has found a
state law to be preempted because it infringes upon the federal
government’s exclusive power to conduct foreign affairs,
even though the law does not conflict with a federal law or
policy. Zschernig, 389 U.S. at 432; Hines, 312 U.S. at 63. In
Garamendi, the Court suggested that a traditional statutory
“field” preemption analysis should be employed in such
cases:

If a State were simply to take a position on a matter
of foreign policy with no serious claim to be
addressing a traditional state responsibility, field pre-
emption might be the appropriate doctrine, whether
the National Government had acted, and if it had,
without reference to the degree of any conflict, the
principle having been established that the Constitu-
tion entrusts foreign policy exclusively to the
National Government. See, e.g., Hines v. David-
owitz, 312 U.S. 52, 63 (1941).

Garamendi, 539 U.S. at 420 n.11.

[5] Unlike its traditional statutory counterpart, foreign
affairs field preemption may occur “even in [the] absence of
a treaty or federal statute, [because] a state may violate the
Constitution by establishing its own foreign policy.” Deutsch,
424 F.3d at 709 (internal citation and quotations omitted). The
central question, then, is this: in enacting § 354.3, has Califor-
nia addressed a traditional state responsibility, or has it
infringed on a foreign affairs power reserved by the Constitu-
tion exclusively to the national government?
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1031
1. Does § 354.3 Concern a Traditional State Responsibil-
ity?

Saher contends § 354.3 concerns a quintessential state
function: the establishment of a statute of limitations for
actions seeking the return of stolen property. Property, of
course, is traditionally regulated by the state. But § 354.3 can-
not be fairly categorized as a garden variety property regula-
tion. Section 354.3 does not apply to all claims of stolen art,
or even all claims of art looted in war. The statute addresses
only the claims of Holocaust victims and their heirs. Section
354.3(b).

[6] Courts have consistently struck down state laws which
purport to regulate an area of traditional state competence, but
in fact, affect foreign affairs. See, e.g., Garamendi, 539 U.S.
at 425-26 (rejecting purported state interest in regulating
insurance business and blue sky laws); Crosby, 530 U.S. at
367, 373 n.7 (rejecting purported state interest in taxing and
spending); Zschernig v. Miller, 389 U.S. 429, 437-38 (1968)
(rejecting purported state interest in regulating descent of
property); Deutsch, 324 F.3d at 707 (rejecting purported state
interest in procedural rules).

The Garamendi Court in dicta rejected the “traditional state
interests” advanced by California in support of HVIRA, find-
ing instead that the real purpose of the state law was the “con-
cern for the several thousand Holocaust survivors said to be
living in the state.” Garamendi, 539 U.S. at 426. Though
§ 354.3 purports to regulate property, an area traditionally left
to the states, like HVIRA, § 354.3’s real purpose is to provide
relief to Holocaust victims and their heirs.

California’s desire to help its resident Holocaust victims
and their heirs is a noble legislative goal, with which we are
entirely sympathetic. In Garamendi, however, the Supreme
Court held that “California’s concern for the several thousand
Holocaust survivors said to be living in the state . . . does not
1032 VON SAHER v. NORTON SIMON MUSEUM OF ART
displace general standards for evaluating a State’s claim to
apply its forum law to a particular controversy or transaction,
under which the State’s claim is not a strong one.” Gara-
mendi, 539 U.S. at 426-27. The State’s interest alone was not
sufficient in Garamendi to save the statute: “[T]here being
about 100,000 survivors in the country, only a small fraction
of them live in California. As against the responsibility of the
United States of America, the humanity underlying the state
statute could not give the State the benefit of any doubt in
resolving the conflict with national policy.” Id.

California arguably has a stronger interest in enacting
§ 354.3 than it did in enacting the related statutes struck down
in Deutsch and Garamendi. Section 354.3 addresses the prob-
lem of Nazi-looted art currently hanging on the walls of the
state’s museums and galleries. Assem. Jud. Com., Back-
ground Information Worksheet for Assem. Bill No. 1758
(2001-2002 Reg. Sess.) Jan. 30, 2002.

California certainly has a legitimate interest in regulating
the museums and galleries operating within its borders, and
preventing them from trading in and displaying Nazi-looted
art. Indeed, it appears the original goal of § 354.3 may have
been to regulate California museums and galleries in such a
manner. Prior to its enactment, however, the bill was
amended. The restriction limiting the scope of the statute to
suits against “museums and galleries in California” was
stricken. Assem. Amend. to Assem. Bill No. 1758 (2001-2002
Reg. Sess.); Sen. Jud. Com., Analysis of Assem. Bill No.
1758 (2001-2002 Reg. Sess.) Jun. 25, 2002, pp. 5-6. As
enacted, the statute allows suits against “any museum or gal-
lery that displays, exhibits, or sells any article of historical,
interpretive, scientific, or artistic significance,” whether
located in the state or not. Section 354.3(a)(1).

The scope of the statute as enacted belies California’s pur-
ported interest in protecting its residents and regulating its art
trade. The amended version of § 354.3 suggests that Califor-
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1033
nia’s real purpose was to create a friendly forum for litigating
Holocaust restitution claims, open to anyone in the world to
sue a museum or gallery located within or without the state.
A memorandum from the Governor’s office provides further
illustration of California’s intent. In it, California is character-
ized as a pioneering leader in the quest for justice for Holo-
caust victims:

In the past decade, it has come to the public’s atten-
tion that spoils gained by the Nazi Holocaust were
enjoyed not just by the Nazis. California has been a
leader in exposing those entities who benefitted
financially from the plunder or exploited the unusual
circumstances of the Holocaust, who have been less
than forthcoming in their business dealings.

Governor’s Office of Planning & Research, Enrolled Bill
Report on Assem. Bill No. 1758 (2001-2002) Reg. Sess.)
Aug. 1, 2002 (emphasis added).

By opening its doors as a forum to all Holocaust victims
and their heirs to bring Holocaust claims in California against
“any museum or gallery” whether located in the state or not,
California has expressed its dissatisfaction with the federal
government’s resolution (or lack thereof) of restitution claims
arising out of Word War II. In so doing, California can make
“no serious claim to be addressing a traditional state responsi-
bility.” Garamendi, 539 U.S. at 419 n.11; see also Deutsch,
324 F.3d at 712 (rejecting California’s interest in “redress-
[ing] wrongs committed in the course of the Second World
War”). California cannot have a “distinct juristic personality”
from that of the United States when it comes to matters of for-
eign affairs. Pink, 315 U.S. at 232. When it comes to dealings
with foreign nations, “state lines disappear.” Belmont, 301
U.S. at 331.

[7] In sum, the scope of § 354.3 belies any purported state
interest in regulating stolen property or museums or galleries
1034 VON SAHER v. NORTON SIMON MUSEUM OF ART
within the State. By enacting § 354.3, California has created
a world-wide forum for the resolution of Holocaust restitution
claims. While this may be a laudable goal, it is not an area of
“traditional state responsibility,” and the statute is therefore
subject to a field preemption analysis. See Garamendi, 539
U.S. at 419 n.11.

2. Does the California Statute Intrude on a Power
Expressly or Impliedly Reserved to the Federal Govern-
ment by the Constitution?

The District Court held that § 354.3 intrudes on the power
to make and resolve war, a power reserved exclusively to the
federal government by the Constitution. We agree.

The Constitution divides the war power between the Execu-
tive, who is the Commander-in-Chief of the Armed Forces,
and the Congress, who has the power to declare war. U.S.
Const. art. II, § 2; Id. at art. I, § 8. Deutsch clearly provides
that “[m]atters related to war are for the federal government
alone to address,” and state statutes which infringe on this
power will be preempted. Deutsch, 324 F.3d at 712.

Section 354.3 establishes a remedy for wartime injuries.
The legislative findings accompanying the statute repeatedly
reference the “Nazi regime,” “Nazi persecution,” and “the
many atrocities” the Nazis committed. 2002 Cal. Legis. Serv.
332 (West 2002). By enacting § 354.3, California “seeks to
redress wrongs committed in the course of the Second World
War” — a motive that was fatal to § 354.6. Deutsch, 354 F.3d
at 712.

Section 354.3 was closely modeled on § 354.6, which was
found to infringe on the federal government’s exclusive
power to make and resolve war. Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d. reading analysis of Assem. Bill No. 1758
(2001-2002 Reg. Sess.) Aug. 8, 2002. Like its sister statute
struck down in Deutsch, § 354.3 “creates a special rule that
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1035
applies only to a newly defined class” of plaintiffs. Id. Like
§ 354.6, § 354.3 creates a new cause of action “with the aim
of rectifying wartime wrongs committed by our enemies or by
parties operating under our enemies’ protection.” 324 F.3d at
708. This is significant because, as the Deutsch Court noted,
“[a] state is generally more likely to exceed the limits of its
power when it seeks to alter or create rights and obligations
than when it seeks merely to further enforcement of already
existing rights and duties.” 324 F.3d at 708.

Saher, however, argues that § 354.3 is distinguishable from
the statute at issue in Deutsch, because it does not target for-
mer wartime enemies. Section 354.3 authorizes suits only
against museums and galleries, but the actionable injury at the
heart of the statute is the Nazi theft of art. The California leg-
islature enacted § 354.6 “with the aim of rectifying wartime
wrongs committed by our enemies or by parties operating
under our enemies’ protection.” Deutsch, 324 F.3d at 708.
California enacted § 354.3 with the same verboten intent. Dis-
tinctions between the class of eligible defendants are irrele-
vant in light of this fatal similarity.

Saher also contends that under Alperin v. Vatican Bank,
410 F.3d 532 (9th Cir. 2005), claims for restitution of “garden
variety property” can be distinguished from claims for repara-
tion arising from wartime injury. In Alperin we considered
whether the claims for restitution presented by a class of
Holocaust survivors presented a nonjusticiable political ques-
tion. Saher places particular reliance on the following quote:
“Reparation for stealing, even during wartime, is not a claim
that finds textual commitment in the Constitution.” Alperin,
410 F.3d at 551. This quote references the first Baker test,
which requires courts to consider whether the case in question
concerns an issue that has been textually committed by the
Constitution to another branch of government. Id. at 544, 549-
52 (citing Baker v. Carr, 369 U.S. 186, 210-11 (1962)). Ulti-
mately, in Alperin we concluded that despite the political
overtones inherent in cases brought by Holocaust survivors,
1036 VON SAHER v. NORTON SIMON MUSEUM OF ART
the underlying property issues presented in such cases were
not political questions constitutionally committed to the polit-
ical branches. Id. at 551.

Saher’s reliance on Alperin is misplaced. Our holding that
the judiciary has the power to adjudicate Holocaust-era prop-
erty claims does not mean that states have the power to pro-
vide legislative remedies for these claims. Here, the relevant
question is whether the power to wage and resolve war,
including the power to legislate restitution and reparation
claims, is one that has been exclusively reserved to the
national government by the Constitution. We conclude that it
has.

[8] Section 354.3, at its core, concerns restitution for inju-
ries inflicted by the Nazi regime during Word War II. Claims
brought under this statute, including the instant claim, would
require California courts to review acts of restitution made by
foreign governments. For example, in this case, the parties
contest the provenance of the Cranachs. In order to determine
whether the Museum has good title to the Cranachs, a Califor-
nia court would necessarily have to review the restitution
decisions made by the Dutch government and courts. This
example illustrates that § 354.3 claims cannot be separated
from the Nazi transgressions from which they arise.

Our conclusion today is buttressed by the documented his-
tory of federal action addressing the subject of Nazi-looted
art. The Art Looting and Investigation Unit of the Office of
Strategic Services gathered a great deal of intelligence about
looted art through covert operations during and after the war.
Plunder and Restitution at SR-92. Immediately following the
war, the federal government implemented the program of
external restitution, as discussed in more detail above. It is
beyond dispute that there was no role for individual states to
play in the restitution of Nazi-looted assets during and imme-
diately following the war.
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1037
Recent Administrations and Congresses continue to address
problems facing Holocaust survivors and their heirs. See, e.g.,
Pub. L. No. 105-186, June 23, 1998, 112 Stat. 611, codified
at 22 U.S.C. § 1621 (establishing the Presidential Advisory
Commission on Holocaust Assets in the United States); Plun-
der & Restitution, supra (the final report of the Presidential
Advisory Commission on Holocaust Assets in the United
States); U.S. Dep’t of State, Washington Conference Princi-
ples on Nazi-Confiscated Art (Dec. 3, 1998),
http://www.state.gov/p/eur/rt/hlcst/23231.htm (hereinafter
Washington Principles). (adopted by the forty-four govern-
ments participating in the Washington Conference on
Holocaust-Era Assets, hosted by the State Department on
December 3, 1998). This history of federal action is so com-
prehensive and pervasive as to leave no room for state legisla-
tion. Cf. English v. General Elec. Co., 496 U.S. 72, 79 (1990)
(discussing traditional statutory field preemption).

[9] Finally, the federal government, “representing as it does
the collective interests of the . . . states, is entrusted with full
and exclusive responsibility for the conduct of affairs with
foreign sovereignties.” Hines, 312 U.S. at 63. The recovery of
Holocaust-era art affects the international art market, as well
as foreign affairs. Many have called for the creation of an
international registration system, and a commission to settle
Nazi-looted art disputes. See, e.g., Pollock, 43 Houston L.
Rev. at 231. Only the federal government possesses the power
to negotiate and establish these or other remedies with the
international community. As discussed above, the federal
government has initiated discussions with other countries,
which will hopefully yield a comprehensive remedy for all
Holocaust victims and their heirs. See, e.g., Washington Con-
ference Report. No organization comparable to the Interna-
tional Commission on Holocaust Era Insurance Claims has
been established yet to resolve Holocaust-era art claims. This
does not, however, justify California’s intrusion into a field
occupied exclusively by the federal government.
1038 VON SAHER v. NORTON SIMON MUSEUM OF ART
[10] In sum, it is California’s lack of power to act which
is ultimately fatal. In Deutsch, we held that “[i]n the absence
of some specific action that constitutes authorization on the
part of the federal government, states are prohibited from
exercising foreign affairs powers, including modifying the
federal government’s resolution of war-related disputes.”
Deutsch, 324 F.3d at 714. California may not improve upon
or add to the resolution of the war. Id. The factual circum-
stances surrounding this case — the many years which have
passed since Göring stole the Cranachs from Goudstikker,
restitution of the paintings to the Netherlands by the Allies, or
the changes in ownership since then — cannot save § 354.3
from this fatal flaw.

V. Did the District Court Err in Concluding that Saher’s
claim was Time-Barred Under California Code of Civil
Procedure § 338?

[11] Though Saher cannot bring her claim under § 354.3,
she may be able to state a cause of action within the three-
year statute of limitations of § 338. The district court held that
Saher’s § 338 claim was time-barred, because she did not
inherit her interest in the Cranachs until after the statute of
limitations on the claim had expired. The claim, however,
might survive a Rule 12(b)(6) motion to dismiss depending
upon how Saher might be able to allege the notice element.

A. Constructive Notice

At the time the museum acquired the Cranachs, around
1971, § 338 provided a strict three-year statute of limitations.
Cal. Civ. Proc. Code § 338(3).4 In 1982, the section was
amended to incorporate a discovery rule: “[T]he cause of
action in the case of theft, as defined in § 484 of the Penal
4
In 1988, § 383(3) was renumbered § 383(c); all subsequent references
refer to subsection (c) for simplicity’s sake. 1988 Cal. Legis. Serv. 1186
(West).
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1039
Code, of any art or artifact 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.”5 Cal. Civ. Proc.
Code § 338(c); 1982 Cal. Legis. Serv. 3401 (West). Saher
does not claim that the 1982 amendments should be applied
to her case. Rather, she contends that the statute of limitations
on her claim did not begin to run until she discovered that the
Cranachs were in the possession of the museum.

Decisions from California’s intermediate appellate court
have reached differing conclusions as to when the statute of
limitations under § 338 begins to run for property stolen prior
to 1983. In Naftzger v. American Numismatic Society, the
court held that a cause of action for the return of property
stolen before the 1982 amendment “accrue[s] when the owner
discovered the identity of the person in possession of the
stolen property, and not when the theft occurred.” 49 Cal.
Rptr. 2d 784, 786 (Cal. Ct. App. 1996). The Naftzger court
concluded that “there was a discovery rule of accrual implicit
in the prior version of section 338.” 49 Cal. Rptr. 2d at 786.
In Society of California Pioneers v. Baker, however, the court
held that prior to the 1982 amendments, “the statute of limita-
tions began to run anew against a subsequent purchaser.” 50
Cal. Rptr. 2d 865, 869-70 (Cal. Ct. App. 1996). The Pioneers
court specifically noted its disagreement with Naftzger. 50
Cal. Rptr. 2d at 870 n.10.

The California Supreme Court has not addressed the issue,
but “has, however, specifically held that the discovery rule,
whenever it applies, incorporates the principle of constructive
notice.” Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007)
(citing Jolly v. Eli Lilly & Co., 44 Cal. 3d. 1103, 1109
(1988)). Thus, in Orkin, we concluded that “under the discov-
5
In 1989, the phrase “art or artifact” was replaced with “article of histor-
ical, interpretive, scientific, or artistic significance.” Cal. Civ. Proc. Code
§ 338(c) (West 1989).
1040 VON SAHER v. NORTON SIMON MUSEUM OF ART
ery rule, a [pre-1983] cause of action accrues when the plain-
tiff discovered or reasonably could have discovered her claim
to and the whereabouts of her property.” Id. at 471.

Saher argues, however, that the Naftzger court adopted a
discovery rule based on actual, not constructive, notice. As we
pointed out in Orkin, such a rule would be clearly inconsistent
with California Supreme Court precedent. Id. (citing Jolly, 44
Cal. 3d at 1109).

Saher urges that we certify the issue to the Supreme Court
of California for resolution. Though Saher contends that the
Orkin court’s interpretation of California state law is incor-
rect, “it is well established that we may reconsider earlier
Ninth Circuit precedent only by en banc review or after an
intervening Supreme Court decision.” Class Plaintiffs v. City
of Seattle, 955 F.2d 1268, 1285 (9th Cir. 1992) (declining to
revisit the court’s interpretation of New York state law under
similar circumstances). Under Orkin, we are bound to apply
a constructive notice standard.

[12] In conclusion, Saher’s cause of action began to accrue
when she discovered or reasonably could have discovered her
claim to the Cranachs, and their whereabouts. Orkin, 487 F.3d
at 741.

B. Reasonable Diligence

The Museum asserts that Saher is precluded as a matter of
law from making the required showing of reasonable dili-
gence, because the facts underlying her claim were publicly
available. We disagree.

A claim may be dismissed under Rule 12(b)(6) on the
ground that it is barred by the applicable statute of limitations
only when “the running of the statute is apparent on the face
of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d
992, 997 (9th Cir. 2006). “[A] complaint cannot be dismissed
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1041
unless it appears beyond doubt that the plaintiff can prove no
set of facts that would establish the timeliness of the claim.”
Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.
1995).

In Orkin, we concluded that the plaintiffs’ claims were
time-barred because the face of the complaint established
facts that foreclosed any showing of reasonable diligence.
Orkin, 487 F.3d at 742. The Orkins’ complaint admitted that
the defendant had purchased the painting in question at a pub-
licized auction, and that she was listed as the owner in a pub-
licly available catalogue raisonné. Id. at 741-42. By contrast,
there are no facts on the face of Saher’s complaint which fore-
close a showing of lack of reasonable notice as a matter of
law.

[13] Because it is not clear that Saher’s complaint could not
be amended to show a lack of reasonable notice, dismissal
without leave to amend was not appropriate. See Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003). We, therefore, grant Saher leave to amend her com-
plaint to allege the lack of reasonable notice to establish dili-
gence under California Code of Civil Procedure § 338, and
remand this case to the district court for that purpose.

VI. Conclusion

The judgment of the district court is AFFIRMED in part
and REVERSED in part. The case is REMANDED for fur-
ther proceedings consistent with this opinion.

PREGERSON, Circuit Judge, dissenting in part:

I dissent from the majority’s conclusion that California is
acting outside the realm of traditional state responsibility, and
that field preemption applies. Where a State acts within its
1042 VON SAHER v. NORTON SIMON MUSEUM OF ART
“traditional competence,” the Supreme Court has suggested
that conflict preemption, not field preemption, is the appropri-
ate doctrine. Am. Ins. Ass’n v. Garamendi, 539 U.S. 395, 420
n.11 (2003). Garamendi counsels that field preemption would
apply “[i]f a State were simply to take a position on a matter
of foreign policy with no serious claim to be addressing a tra-
ditional state responsibility. . . .” Id. That is not the case here.

It is undisputed that property is traditionally regulated by
the State. The majority acknowledges that California has a
legitimate interest in regulating museums and galleries, and
that California Code of Civil Procedure § 354.3 “addresses
the problem of Nazi-looted art currently hanging on the walls
of the state’s museums and galleries.” Maj. Op. at 1032. How-
ever, the majority goes on to hold that because Section 354.3
applies to any museum or gallery, “California has created a
world-wide forum for the resolution of Holocaust restitution
claims,” and that the State is therefore acting outside the
scope of its traditional interests. Maj. Op. at 1034.

The majority reads the statute far too broadly. A reasonable
reading of “any museum or gallery” would limit Section
354.3 to entities subject to the jurisdiction of the State of Cali-
fornia. Because California has a “serious claim to be address-
ing a traditional state responsibility,” it is clear that
Garamendi requires us to apply conflict preemption, not field
preemption.

The majority’s reliance on Deutsch v. Turner, 324 F.3d
692, (9th Cir. 2005) is misplaced. The statute in Deutsch, Cal-
ifornia Code of Civil Procedure § 354.6, allowed recovery for
slave labor performed “between 1929 and 1945, [for] the Nazi
regime, its allies and sympathizers, or enterprises transacting
business in any of the areas occupied by or under control of
the Nazi regime or its allies and sympathizers.” This court
held that California impermissibly intruded upon the power of
the federal government to resolve war by enacting the
Deutsch statute “with the aim of rectifying wartime wrongs
 VON SAHER v. NORTON SIMON MUSEUM OF ART 1043
committed by our enemies . . . .” Id. at 708, 711(emphasis
added).

The majority concludes that Section 354.3 suffers from a
“fatal similarity” to the Deutsch statute because Section 354.3
applies to looted artwork. Maj. Op. at 1035. I do not agree.
The majority overlooks significant differences between the
Deutsch statute and Section 354.3. First, as discussed above,
here California has acted within the scope of its traditional
competence to regulate property over which it has jurisdic-
tion. Furthermore, unlike the statute in Deutsch, Section 354.3
does not target enemies of the United States for wartime
actions. Nor, contrary to the majority’s characterization, does
Section 354.3 provide for war reparations.1 Maj. Op. at 1036.
Here, Appellee, a museum located in California, acquired
stolen property in 1971. Appellant now seeks to recover that
property. I fail to see how a California statute allowing such
recovery intrudes on the federal government’s power to make
and resolve war.

I would reverse the district court. As the majority correctly
holds, Section 354.3 does not conflict with federal policy.
However, California has acted within its traditional compe-
tence, and field preemption should not apply. Accordingly, I
dissent in part.

1
Black’s Law Dictionary defines reparation as “[c]ompensation for an
injury or wrong, esp. for wartime damages or breach of an international
obligation.” Black’s Law Dictionary 1325 (8th ed. 2004). Section 354.3
allows only for the recovery of stolen art.