FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CASSIRER; THE ESTATE No. 19-55616
OF AVA CASSIRER; UNITED
JEWISH FEDERATION OF SAN D.C. No.
DIEGO COUNTY, a California non- 2:05-cv-03459-
profit corporation, JFW-E
Plaintiffs-Appellants,
OPINION
v.
THYSSEN-BORNEMISZA
COLLECTION FOUNDATION, an
agency or instrumentality of the
Kingdom of Spain,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted December 12, 2022
Pasadena, California
Filed January 9, 2024
2 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra
S. Ikuta, Circuit Judges.
Opinion by Judge Bea;
Concurrence by Judge Callahan
SUMMARY*
Foreign Sovereign Immunities Act
On remand from the United States Supreme Court, the
panel affirmed the district court’s judgment in favor of the
Thyssen-Bornemisza Collection, an instrumentality of the
Kingdom of Spain, in an action under the Foreign Sovereign
Immunities Act, seeking the return of a Pissarro painting
stolen by the Nazis in 1939 Germany.
The Supreme Court vacated the panel’s prior decision
and remanded with instructions to apply California’s choice-
of-law rules, rather than federal choice-of-law rules, to
determine whether California law or Spanish law governed
the disputed claim of title to the painting. Under California
law the plaintiffs would recover the art, while under Spanish
law they would not.
Applying California’s choice-of-law test, the three-step
“governmental interest analysis," the panel first reaffirmed
its prior decision, in which it determined, under Steps One
and Two of the test, that the applicable laws of California
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 3
and Spain differed and that a true conflict existed with
respect to each jurisdiction’s interests in applying its laws to
this case. Addressing Step Three of California’s test, the so-
called “comparative impairment” analysis, the panel
resolved the conflict by applying the law of the jurisdiction
whose governmental interests would be the more impaired
were its law not applied. The panel concluded that, under
the facts of this case, Spain’s governmental interests would
be more impaired by the application of California law than
would California’s governmental interests be impaired by
the application of Spanish law. Thus, Spanish law must
apply.
Applying Spanish law, the panel held that the Thyssen-
Bornemisza Collection had gained prescriptive title to the
painting pursuant to Article 1955 of the Spanish Civil Code.
The panel therefore affirmed the district court’s order
granting judgment in favor of the Thyssen-Bornemisza
Collection.
Concurring, Judge Callahan wrote that she agreed with
the result, but it was at odds with her moral compass, and
Spain should have voluntarily relinquished the painting.
4 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
COUNSEL
David Boies (argued), Boies Schiller Flexner LLP, Armonk,
New York; David A. Barrett, Boies Schiller Flexner LLP,
New York, New York; Stephen N. Zack, Andrew S.
Brenner, and Rossana Baeza, Bois Schiller Flexner LLP,
Miami, Florida; Laura W. Brill and Nicholas Daum, Kendall
Brill & Kelly LLP, Los Angeles, California; Samuel J.
Dubbin, Dubbin & Kravetz LLP, Coral Gables, Florida;
Devin Freedman, Freedman Normand Friedland, Miami,
Florida; for Plaintiffs-Appellants.
Thaddeus J. Stauber (argued), Sarah E. André, Aaron M.
Brian, and Irene Scholl-Tatevosyan, Nixon Peabody LLP,
Los Angeles, California, for Defendant-Appellee.
Patrick Byrne and Bernardo M. Cremades Roman, B.
Cremades & Asociados, Madrid, Spain, for Amici Curiae
Comunidad Judía de Madrid & Federación de Comunidades
Judías de España.
Amelia L.B. Sargent, Willenken LLP, Los Angeles,
California, for Amici Curiae Kingdom of Spain.
Benjamin Conway and Catherine Z. Ysrael, Deputy
Attorneys General; Srividya Panchalam, Supervising
Deputy Attorney General; Michael L. Newman, Senior
Assistant Attorney General; Rob Bonta, Attorney General of
California; Office of the California Attorney General, Los
Angeles, California; for Amici Curiae State of California.
Benjamin G. Shatz, Manatt Phelps & Phillips LLP, Los
Angeles, California, for Amici Curiae 1939 Society, Bet
Tzedek, Center for the Study of Law & Genocide, and
Loyola Genocide Justice Clinic.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 5
OPINION
BEA, Circuit Judge:
This case is before us after the United States Supreme
Court vacated our prior decision. The Court remanded with
instructions that we apply California’s choice-of-law rules,
rather than federal choice-of-law rules, to determine whether
California law or Spanish law governs a disputed claim of
title to a painting, the Rue Saint Honoré, après midi, effet de
pluie (the “Painting”), by French Impressionist Camille
Pissarro. Cassirer v. Thyssen-Bornemisza Collection
Found., 596 U.S. 107, 117 (2022) (“Cassirer V”).
In 1939 Germany, the Nazis stole the Painting from Lilly
Neubauer (“Lilly”), a Jew who was attempting to flee the
Nazi regime. After a series of transactions, the Painting is
now in the possession of the Thyssen-Bornemisza Collection
(“TBC”).1 TBC had purchased the Painting from the Baron
Hans Heinrich Thyssen-Bornemisza (the “Baron”) in 1993.
TBC has publicly displayed the Painting at the Museo
Nacional Thyssen-Bornemisza in Madrid, Spain, (the
“Museum”) ever since.
In 2000, Claude Cassirer, a California resident and
Lilly’s sole heir, learned that the Painting was on display at
the Museum in Spain. In 2001, Mr. Cassirer filed a petition
with TBC and Spain for the return of the Painting; that
petition was denied. In 2005, Mr. Cassirer brought this suit
under the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1330(a), in the United States District Court for the
1
TBC is an instrumentality of the Kingdom of Spain.
6 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
Central District of California, seeking the return of the
Painting from TBC.2
After nearly two decades of litigation, the disposition of
this case turns on one issue: whether, under California’s
choice-of-law test, Spanish law or California law applies to
determine ownership of the Painting. “[U]nder California
law as it currently stands, the plaintiff would recover the art
while under Spanish law, the plaintiff would not.”3 Cassirer
v. Thyssen-Bornemisza Collection Found., 69 F.4th 554, 564
(9th Cir. 2023) (“Cassirer VI”) (citation and internal
quotation omitted).
On remand from the United States Supreme Court, we
certified to the California Supreme Court the question
whether California’s choice-of-law test requires application
of Spain’s laws or California’s laws to this dispute. Id. at
571–72. The California Supreme Court declined to answer
our certified question. Thus, responsibility falls on us to
apply California’s choice-of-law test—the three-step
“governmental interest analysis”—to determine whether
2
Claude Cassirer died in 2010. David and Ava Cassirer, his children,
and the United Jewish Federation of San Diego County succeeded to his
claims. Ava later died, and her estate is now a substitute plaintiff.
Collectively, we refer to these plaintiffs as “the Cassirers.”
3
We discuss the relevant laws in detail below. In brief, under Article
1955 of the Spanish Civil Code, TBC has acquired prescriptive title to
the Painting because it possessed the Painting in good faith for over three
years before the Cassirers brought suit. In contrast, California has not
expressly recognized adverse possession of personal property, and as a
thief cannot pass title to anyone, including a good faith purchaser, if
California law applied, TBC would not have title to the Painting. The
Cassirers, as successors to Lilly Neubauer and Claude Cassirer, would
have title.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 7
Spanish law or California law governs. See Kearney v.
Salomon Smith Barney, Inc., 137 P.3d 913, 922 (Cal. 2006).
Applying California’s choice-of-law test, we first
reaffirm our prior decision, in which we determined that the
applicable laws of California and Spain differ and that a true
conflict exists with respect to each jurisdiction’s interests in
applying its laws to this case. Cassirer VI, 69 F.4th at 563,
566. We then evaluate Step Three of California’s choice-of-
law test, the so-called “comparative impairment” analysis,
under which we resolve such a conflict by applying the law
of the jurisdiction whose governmental interests would be
the more impaired were its law not applied. See Kearney,
137 P.3d at 934. We conclude that, under the facts of this
case, Spain’s governmental interests would be more
impaired by the application of California law than would
California’s governmental interests be impaired by the
application of Spanish law. Thus, applying California’s
choice-of-law test, we hold that Spanish law must apply.
Applying Spanish law, TBC has gained prescriptive title
to the Painting pursuant to Article 1955 of the Spanish Civil
Code. Cassirer v. Thyssen-Bornemisza Collection Found.,
824 F. App’x 452, 456–57 (9th Cir. 2020) (“Cassirer IV”).
We therefore affirm the district court’s order which granted
judgment in favor of TBC.
I. FACTS AND PROCEDURAL HISTORY
We discuss only the facts and procedural history relevant
to our decision. A full account of this dispute is detailed in
8 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
the earlier decisions issued by the district court, this Circuit,
and the U.S. Supreme Court.4
A. Lilly’s Ownership of the Painting and The Theft of
the Painting
Paul Cassirer, a member of a prominent German Jewish
family, purchased the Painting in 1900. Lilly inherited the
Painting from Paul. Lilly displayed the Painting at her home
in Berlin, Germany, until 1939.
In 1939, Lilly was forced to “sell” the Painting to Jackob
Scheidwimmer (“Scheidwimmer”), a Berlin art dealer.
Scheidwimmer had been appointed by the Nazi government
to obtain the Painting, had refused to allow Lilly to take the
Painting with her out of Germany, and had demanded that
she sell the Painting to him for 900 Reichsmarks (around
$360 at then-prevailing exchange rates) to obtain an exit visa
to England. Lilly surrendered the Painting to Scheidwimmer
and the 900 Reichsmarks were deposited into a bank account
that Lilly was not allowed to access. There is no dispute that
the Nazis stole the Painting from Lilly.
After the Nazis forced Lilly to sell the Painting to
Scheidwimmer in 1939, Scheidwimmer then forced another
4
See Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en
banc) (“Cassirer I”); Cassirer v. Thyssen-Bornemisza Collection
Found., 737 F.3d 613 (9th Cir. 2013) (“Cassirer II”); Cassirer v.
Thyssen-Bornemisza Collection Found., 862 F.3d 951 (9th Cir. 2017)
(“Cassirer III”); Cassirer v. Thyssen-Bornemisza Collection Found., 824
F. App’x 452 (9th Cir. 2020) (“Cassirer IV”); Cassirer v. Thyssen-
Bornemisza Collection Found., 596 U.S. 107 (2022) (“Cassirer V”);
Cassirer v. Thyssen-Bornemisza Collection Found., 69 F.4th 554 (9th
Cir. 2023) (“Cassirer VI”); see also Cassirer v. Thyssen-Bornemisza
Collection Found., 153 F. Supp. 3d 1148 (C.D. Cal. 2015); Cassirer v.
Thyssen-Bornemisza Collection Found., 2019 WL 13240413 (C.D. Cal.
Apr. 30, 2019).
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 9
German Jewish collector, Julius Sulzbacher (“Sulzbacher”),
to exchange three German paintings for the Painting.
Sulzbacher was also seeking to escape Nazi Germany. After
the Sulzbacher family fled Germany, the Gestapo
confiscated the Painting. The exchange and the confiscation
took place in Germany.
After the war, the Allies established a process for
restoring property to the victims of Nazi looting, authorizing
victims to seek restitution of looted property. In 1948, Lilly
filed a timely claim against Scheidwimmer for restitution of,
or compensation for, the Painting. In 1954, the United States
Court of Restitution Appeals published a decision
confirming that Lilly owned the Painting.
Lilly, Sulzbacher, and Scheidwimmer believed the
Painting had been lost or destroyed during the war. In 1957,
after the German Federal Republic regained its sovereignty,
Germany enacted a law, the Brüg, which authorized claims
for Nazi-looted property. Lilly then dropped her restitution
claim against Scheidwimmer and initiated a claim against
Germany for compensation for the wrongful taking of the
Painting. In 1958, the parties reached a settlement
agreement, which provided, in relevant part, that Germany
would pay Lilly 120,000 Deutschmarks (the Painting’s
agreed value as of April 1, 1956), about $250,000 in today’s
dollars after adjusting for inflation. See Cassirer V, 596 U.S.
at 110.
B. The Painting’s Post-War History
After the Nazis confiscated the Painting, it allegedly was
sold at a Nazi government auction in Düsseldorf, Germany.
In 1943, the Painting was sold by an unknown consignor at
the Lange Auction in Berlin, Germany, to an unknown
purchaser for 95,000 Reichsmarks. In 1951, the Frank Perls
10 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
Gallery of Beverly Hills, California, arranged to move the
Painting out of Germany and into California to sell the
Painting to collector Sidney Brody for $14,850. In 1952,
Sydney Schoenberg, a St. Louis, Missouri, art collector,
purchased the Painting for $16,500. The Painting sat in a
private collection in St. Louis from 1952–1976. In 1976, the
Baron purchased the Painting through the Stephen Hahn
Gallery in New York for $275,000. The Baron kept the
Painting in Switzerland as part of his collection until 1992,
except when it was on public display in exhibitions outside
Switzerland.
In 1988, Favorita Trustees Limited (“Favorita”), an
entity controlled by the Baron, and Spain reached an
agreement with TBC that the Baron would loan his art
collection (the “Collection”), including the Painting, to
TBC, an entity created and controlled by the Kingdom of
Spain. Pursuant to this agreement, Spain created TBC to
maintain, conserve, publicly exhibit, and promote the
Collection’s artwork. Spain agreed to display the Collection
at the Villahermosa Palace in Madrid, Spain, and to restore
and redesign the palace as the Museum.
After the Villahermosa Palace had been restored and
redesigned as the Museum, pursuant to the loan agreement,
the Museum received a number of paintings from Favorita,
including the Painting, and in 1992, the Museum opened to
the public. Since October 10, 1992, the Painting has been on
public display at the Museum in Spain.
In 1993, the Spanish government passed Real Decreto-
Ley 11/1993, which authorized and funded the purchase of
the Collection. Spain bought the Collection by entering into
an acquisition agreement with Favorita. TBC paid Favorita
and the Baron $350 million for the Collection. TBC required
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 11
the Baron to provide a $10 million, three-year prenda5 of
certain paintings as a security device for the Baron’s
performance under the terms of his agreement with TBC.
C. Procedural History
Claude Cassirer, Lilly’s sole heir, moved to California in
1980 and resided there until his death in 2010. In 2000, Mr.
Cassirer learned that the Painting was in the Museum. On
May 3, 2001, Mr. Cassirer filed a petition in Spain with the
Kingdom of Spain and TBC, seeking the return of the
Painting. In 2005, after that petition was denied, Claude
Cassirer filed this action, under the Foreign Sovereign
Immunities Act (“FSIA”), 28 U.S.C. § 1330(a), in the United
States District Court for the Central District of California,
seeking the return of the Painting. The litigation noted in
footnote 4, above, proceeded.
In 2015, the Cassirers moved the district court for an
order declaring that the law of California, not the law of
Spain, governed the merits of their action.6 The district court
5
Prenda means “security, surety,” or “pledge” in Spanish. Oxford
Spanish Dictionary 661 (3d ed. 2003).
6
Under Article 1955 of the Spanish Civil Code, ownership in personal
property vests by prescription after either (1) three years of uninterrupted
possession of the property in good faith, (2) or six years of uninterrupted
possession, even absent good faith. However, the six-year prescriptive
period is tolled for the period during which a criminal or civil action can
be brought if the possessor is a principal, accomplice, or accessory
(encubridor) to the theft. See Cassirer III, 862 F.3d at 966. California, in
contrast, has not specifically endorsed adverse possession for personal
property, see Cassirer VI, 69 F.4th at 562, and allows a victim of fine art
theft to recover the stolen art from a museum or similar institution so
long as he brings suit to recover it within six years of his discovery of its
whereabouts, regardless whether the possessor took possession of the
12 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
recognized that before making this determination, it first had
to determine whether it should apply California or federal
common law choice-of-law rules. See Cassirer, 153 F. Supp.
3d at 1154. The district court held that federal choice-of-law
rules governed a case where jurisdiction is premised on the
FSIA.7 Id. Applying federal choice-of-law rules, the district
court concluded that Spanish law applied to determine the
ownership of the Painting. Id. at 1155.
Out of an abundance of caution, the district court also
applied California choice-of-law rules and reached the same
conclusion: that Spanish law applied. Id. at 1160. The court
reasoned that the Painting “was present in California for less
than a year,” whereas “for more than twenty years . . . the
Painting has been in the possession of an instrumentality of
the Kingdom of Spain in Madrid, Spain . . . and that
possession in Spain provides the basis for [TBC’s] claim of
ownership.” Id. at 1155. The court concluded Spain has a
“strong interest in regulating conduct that occurs within its
borders,” and in assuring individuals acting within its
property in good faith. Cal. Code Civ. Proc. § 338(c)(3)(A). Moreover,
under California law, thieves cannot pass good title to anyone, including
a good faith purchaser. Crocker Nat’l Bank v. Byrne & McDonnell, 173
P. 752, 754 (Cal. 1918).
7
The district court’s decision to apply federal-choice-of-law rules in a
case arising under the FSIA was based on then-binding Ninth Circuit
precedent. Cassirer, 153 F. Supp. 3d at 1154 (citing Schoenberg v.
Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 782 (9th Cir. 1991)).
The federal choice-of-law test draws from the Second Restatement.
Under that approach, a court must consider a set of factors to decide
which state has the “most significant relationship” to the case.
Restatement (Second) of Conflict of Laws §§ 6, 222. The Second
Restatement provides that, in cases of adverse possession of chattel, the
local law of the state where the chattel was located at the time of transfer
typically governs. Second Restatement, § 246.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 13
borders that “their title and ownership of . . . property [is]
certain,” whereas “California’s interest [in facilitating
recovery for one of its residents] is significantly less.” Id.
Applying Spanish law, the district court ruled that TBC
was the rightful owner of the Painting, pursuant to Spain’s
law of acquisitive prescription,8 as stated in Article 1955 of
the Spanish Civil Code. Id. at 1160. The district court
therefore entered summary judgment in favor of TBC. Id.
On appeal in this Court, consistent with our Circuit’s
precedent, we applied federal choice-of-law principles to
conclude that Spanish property law governed this dispute.9
Cassirer III, 862 F.3d at 961 (citing Schoenberg, 930 F.2d at
782).
Applying Spanish law, we considered whether TBC had
fulfilled the requirements for ownership of the Painting set
forth in Articles 1955 and 1956 of the Spanish Civil Code.
Id. at 964–76. We explained that acquisitive prescription
under Article 1955 is modified by Article 1956, which
extends the period of possession necessary to vest title when
the person who has possession was a principal, accomplice,
or accessory (encubridor), see Oxford Spanish Dictionary
323 (3d ed. 2003), to the robbery or theft of the property at
issue. Cassirer III, 862 F.3d at 966. We then held that there
was a genuine dispute of material fact as to whether TBC
knew the Painting had been stolen when TBC acquired the
Painting from the Baron, and therefore whether TBC was an
8
Acquisitive prescription is “a mode of acquiring ownership or other
legal rights through possession for a specified period of time.”
Acquisitive Prescription, Black’s Law Dictionary (11th ed. 2019). The
term is synonymous with adverse possession.
9
In so holding, we did not consider how California’s choice-of-law rules
applied. See Cassirer III, 862 F.3d at 961–64.
14 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
encubridor under Article 1956. Id. at 975. If TBC were an
encubridor, it would not have acquired title to the Painting
through acquisitive prescription until 2019—six years after
the criminal and civil limitations periods had run—long after
the Cassirers brought their action in 2005. Id. at 966.
Therefore, we reversed the district court’s order which
granted summary judgment in favor of TBC, and remanded
for that court to consider whether TBC knew the Painting
had been stolen when it acquired the Painting from the
Baron. Id. at 981.
On remand, the district court conducted an extensive
bench trial. The court concluded that TBC was not an
encubridor under Article 1956 of the Spanish Civil Code,
because TBC did not have actual knowledge that the
Painting was stolen when it purchased the Painting from the
Baron in 1993. Cassirer, 2019 WL 13240413, at *20–22.
Because TBC had possessed the Painting publicly, as an
owner, for over three years in good faith, the district court
held that TBC had fulfilled the requirements of Article 1955
of the Spanish Civil Code and had therefore acquired
prescriptive title to the Painting. Id. at *19. It thus entered
judgment in favor of TBC. We affirmed. Cassirer IV, 824 F.
App’x at 457.
The Cassirers petitioned the Supreme Court for certiorari
on the question whether a federal court hearing state-law
claims as to title of the Painting, brought under the FSIA,
may apply federal common law to determine what state’s
substantive law governs the claims at issue, or whether the
forum state’s choice-of-law provisions govern. The Supreme
Court granted the petition and held that the FSIA “requires
the use of California’s choice-of-law rule—because that is
the rule a court would use in comparable private litigation.”
Cassirer V, 596 U.S. at 115. Because we had applied federal
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 15
choice-of-law rules, the Supreme Court vacated our
judgment and remanded for us to apply California’s
“standard choice-of-law rule.” Id. at 117.
On remand, by majority vote of the panel, we certified
the following question to the California Supreme Court:
Whether, under a comparative impairment
analysis, California’s or Spain’s interest is
more impaired if California’s rule that a
person may not acquire title to a stolen item
of personal property (because a thief cannot
pass good title, and California has not
adopted the doctrine of adverse possession
for personal property), were subordinated to
Spain’s rule that a person may obtain title to
stolen property by adverse possession.
Cassirer VI, 69 F.4th at 571–72.10
On August 9, 2023, the California Supreme Court
declined to answer the certified question by a 6-1 vote. We
thus resumed jurisdiction over the case. We then allowed for
the filing of supplemental briefs and amici briefs. It is now
our responsibility to determine whether, under California’s
choice-of-law test, Spain’s laws or California’s laws apply
to determine title to the Painting.
10
As described below, California’s choice-of-law test involves three
steps. In our order which certified the question to the California Supreme
Court, we concluded that Step One and Step Two were satisfied.
Cassirer VI, 69 F.4th at 563, 566. Thus, our certified question to the
California Supreme Court involved only Step Three. Id. at 561.
16 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
II. JURISDICTION AND STANDARD OF REVIEW
The FSIA, 28 U.S.C. § 1330(a), gave the district court
original jurisdiction. We have appellate jurisdiction under 28
U.S.C. § 1291.
We review the district court’s factual findings for clear
error and its conclusions of law de novo. Kohler v. Presidio
Int’l, Inc., 782 F.3d 1064, 1068 (9th Cir. 2015).
III. ANALYSIS
California applies the “governmental interest approach”
to resolve conflict-of-law disputes. See McCann v. Foster
Wheeler, 225 P.3d 516, 527 (Cal. 2010). That test proceeds
in three steps. At Step One, a court must determine “whether
the relevant law of each of the potentially affected
jurisdictions with regard to the particular issue in question is
the same or different.” Kearney, 225 P.3d at 922. If the
relevant laws are different, the court then moves to Step
Two, under which it “examines each jurisdiction’s interest
in the application of its own law under the circumstances of
the particular case to determine whether a true conflict
exists.” Id. Finally, if there is a true conflict, the court at Step
Three “carefully evaluates and compares the nature and
strength of the interest of each jurisdiction in the application
of its own law to determine which state’s interest would be
more impaired if its policy were subordinated to the policy
of the other state.” Id. (quoting Bernhard v. Harrah’s Club,
546 P.2d 719, 723 (Cal. 1976)). After conducting this
analysis, the court “ultimately applies the law of the state
whose interest would be the more impaired if its law were
not applied.” Id.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 17
A. Spain’s laws and California’s laws differ with respect
to the ownership of stolen property.
All agree that the relevant Spanish law here is Article
1955 of the Spanish Civil Code. Under that provision, title
to movable goods (chattels) prescribes (is granted) to a
possessor by either (1) “three years of uninterrupted
possession in good faith,” or (2) “six years of uninterrupted
possession, without any other condition.” Spanish Civil
Code Art. 1955 (English translation). As we have explained,
the six-year prescriptive period is modified and extended by
Article 1956. See Cassirer III, 862 F.3d at 966. Applying
Article 1955 of the Spanish Civil Code to this dispute, we
have already held that TBC gained prescriptive title to the
Painting that is superior to the Cassirers’ claim of title to the
Painting under Spanish law. See Cassirer IV, 824 F. App’x
at 455–57.
Meanwhile, three California laws are relevant to this
case. First, unlike Spain, California has not expressly
adopted a doctrine of adverse possession for personal
property. Cassirer VI, 69 F.4th at 557, 562 (noting that
California “has not adopted the Spanish rule ‘that title to
chattels may pass through qualified, extended possession’”);
see S.F. Credit Clearing House v. Wells, 239 P. 319, 322
(Cal. 1925) (declining to consider whether adverse
possession “should be applied to personal property”).11
Second, California employs the common law rule that
11
On the other hand, one scholarly opinion suggests that California law
does allow a possessor to take title to personal property by prescription.
See 13 C. Witkin, Summary of California Law, Personal Property § 133
(11th ed. 2022) (explaining that California Civil Code Sections 1000 and
1007 “seem to establish the right to acquire title to personal property by
adverse possession . . . .”).
18 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
“thieves cannot pass good title to anyone, including a good
faith purchaser.” Cassirer VI, 69 F.4th at 561 (citing Crocker
Nat’l Bank of S.F., 173 P. at 754). Third, § 338(c)(3)(A) of
the California Code of Civil Procedure extends the statute of
limitations under which a plaintiff can bring an action to
recover “a work of fine art . . . against a museum, gallery,
auctioneer, or dealer, in the case of an unlawful taking or
theft.” Although the general statute of limitations for claims
involving the return of stolen property in California is three
years, § 338(c)(3)(A) provides that an action must be
commenced “within six years of the actual discovery” of the
identity and whereabouts of the work of stolen fine art in
which the claimant asserts an interest. Cal. Code of Civ.
Proc. § 338(c)(3)(A).
In turn, the laws of Spain and California differ regarding
the particular issue in question: the ownership of stolen art.
See Cassirer VI, 69 F.4th at 562. Under Spanish law, a
possessor of stolen property can acquire prescriptive title
that is superior to the original owner’s title. In contrast, under
California law as it stands today, a possessor of stolen
property does not acquire possessory rights to stolen
property that are superior to the rights of the true owner until
the statute of limitations expires. Moreover, under Cal. Code
of Civ. Proc. § 338(c)(3)(A), the Cassirers would have a
forum to bring their claim because Claude Cassirer brought
suit in 2005, only five years after he discovered the
whereabouts of the Painting in 2000. Thus, although TBC
has acquired superior title to the Painting under Spanish law,
it has not acquired superior possession rights to the Painting
under California law. The laws of Spain and California as
applied to this case, therefore, differ.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 19
B. There is a true conflict between Spanish law and
California law.
A true conflict exists where each jurisdiction has a “real
and legitimate interest in having its [laws] applied under the
circumstances presented here.” McCann, 225 P.3d at 531–
32. If a jurisdiction’s interests in its laws would not be served
were its law applied, the court should apply the law of the
jurisdiction that has a real interest in the dispute. See, e.g.,
Reich v. Purcell, 432 P.2d 727, 730–31 (Cal. 1967) (holding
Missouri did not have a real interest in applying its law
regarding damages limitation with respect to an accident that
occurred in Missouri, because the defendant was a resident
of Ohio and Missouri’s interest was to shield Missouri
residents from liability). “Although the two potentially
concerned states have different laws, there is still no problem
in choosing the applicable rule of law where only one of the
states has an interest in having its law applied.” Hurtado v.
Superior Ct., 522 P.2d 666, 670 (Cal. 1974).
We have already concluded that a true conflict exists
between Spain’s and California’s interests in having their
laws applied to this case. Cassirer VI, 69 F.4th at 564.
“[B]oth Spain and California have a legitimate interest in
applying their respective laws on ownership of stolen
personal property.” Id. The property laws of Spain and
California serve each jurisdiction’s real and legitimate
governmental interests, both of which seek to “create
certainty of title, discourage theft, and encourage owners of
stolen property to seek return of their property in a timely
fashion.” Cassirer III, 862 F.3d at 964. Spanish law, for its
part, “assures Spanish residents that their title to personal
property is protected after they have possessed the property
in good faith for a set period of time,” whereas California
law seeks to deter theft, facilitate recovery for victims of
20 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
theft, and create “an expectation that a bona fide purchaser
for value of movable property under a ‘chain of title
traceable to the thief,’ . . . does not have title to that
property.” Cassirer VI, 69 F.4th at 565 (citing Suburban
Motors, Inc. v. State Farm Mut, Auto. Ins. Co., 218 Cal. App.
3d 1354, 1259 (1990)).
Moreover, California’s 2010 enactment of §
338(c)(3)(A) evinces its “strong interest in protecting the
rightful owners of fine arts who are dispossessed of their
property.” Cassirer III, 862 F.3d at 963. California has
demonstrated a real interest in returning stolen art to victims
of theft, such as the Cassirers.
Thus, we encounter a true conflict between the laws of
Spain and California as both Spain and California have a
“real and legitimate interest[]” in applying their respective
laws to this dispute. See McCann, 225 P.3d at 531–32.
C. Spain’s governmental interests would be more
impaired by the application of California law than
would California’s interests be impaired by the
application of Spanish law.
Because such a true conflict exists, we must resolve that
conflict at Step Three of California’s choice-of-law test: the
comparative impairment analysis. Under that analysis, we
determine which jurisdiction’s interest “would be more
impaired if its policy were subordinated to the policy of the
other state.” Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d
721, 726 (Cal. 1978). We then apply the law of the state
“whose interest would be the more impaired were its law not
applied.” Id.
As the California Supreme Court has instructed, our task
in applying the comparative impairment analysis “is not to
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 21
determine whether the [Spanish] rule or the California rule
is the better or worthier rule.” See McCann, 225 P.3d at 534;
Bernhard, 546 P.2d at 724 (cleaned up) (“Emphasis is placed
on the appropriate scope of conflicting state policies rather
than on the quality of those policies.”). Instead, our task is to
decide, “in light of the legal question at issue and the relevant
state interests at stake—which jurisdiction should be
allocated the predominating lawmaking power under the
circumstances of the present case.” McCann, 225 P.3d at
534.
In making this determination, we are directed to measure
the interests of each jurisdiction based on “the circumstances
of the present case”—the facts of this particular dispute—
not the jurisdiction’s general policy goals expressed in the
laws implicated. See id. And we do not look only to the
jurisdiction’s “single subject or rule of law”; rather, we must
“identify the distinct state interests that may underlie
separate aspects of the issue in question.” Kearney, 137 P.3d
at 924; see, e.g., Hurtado, 522 P.2d at 672 (explaining that
where a state limits damages for wrongful death actions,
three distinct state interests should be evaluated under
California’s choice-of-law test: compensation for survivors,
deterrence of conduct, and limitation, or lack thereof, upon
the damages recoverable). Based on the magnitude of the
distinct state interests, as derived from the facts of the
present dispute, we can then compare the extent to which
each jurisdiction’s interests would be impaired were its law
not applied. See Kearney, 137 P.3d at 924.
In sum, our task is to compare, under the facts of this
case, (1) the extent to which Spain’s interests in providing
certainty of title to entities like TBC would be impaired by
the application of California law, and (2) the extent to which
California’s interest in deterring theft and facilitating
22 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
recovery for victims of stolen art, like the Cassirers, would
be impaired by the application of Spanish law.
The California Supreme Court has identified several
factors to evaluate in analyzing the scope of “the distinct . . .
interests” a jurisdiction has in applying its laws to a specific
case. See id. Those factors include the “current status of a
statute,” see Offshore Rental, 583 P.2d at 726–27; the
location of the relevant transactions and conduct, see
McCann, 225 P.3d at 535–37; Offshore Rental, 583 P.2d at
728–29; Kearney, 137 P.3d at 937–38; and the extent to
which one jurisdiction’s laws either impose similar duties to
the other jurisdiction’s laws, or are accommodated by the
other jurisdiction’s laws, such that the application of the
other jurisdiction’s laws would only partially—rather than
totally—impair the interests of the state whose law is not
applied, see Bernhard, 546 P.2d at 725–26. We evaluate
each factor in turn.
1.
First, we analyze whether the policy underlying a state’s
law “is one that was much more strongly held in the past than
it is now.” Offshore Rental, 583 P.2d at 726 (citation
omitted). “[T]he current status of a statute is an important
factor to be considered in a determination of comparative
impairment.” Id. If a particular statute is “infrequently
enforced or interpreted even within its own jurisdiction,” it
has limited application in a conflict-of-laws case. Id.12
12
For example, in Offshore Rental, the California Supreme Court
considered a California cause of action for “negligent injury to a key
employee” brought by a California employer against a Delaware
corporation for an injury to an employee that occurred on the defendant’s
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 23
The Cassirers argue that Spain’s acquisitive prescription
law is archaic, and therefore should be afforded little weight,
because (1) it is out of step with international consensus
supporting the return of Nazi-looted art, including
agreements to which Spain is a party, and (2) Spain’s six-
year acquisitive prescription law for property obtained in bad
faith is an outlier compared to other countries. That
argument fails.
First, TBC does not claim to have taken prescriptive title
under Spain’s six-year acquisitive prescription law, which
vests title after six years regardless whether the possessor
acted in good faith. Cassirer III, 862 F.3d at 966. Were that
law applied, we previously held that, pursuant to Article
1956 of the Spanish Civil Code, TBC would not have
acquired title to the Painting until 2019—six years after the
criminal and civil limitations period had run—and so the
Cassirers would have been entitled to the return of the
Painting. Id. Thus, we find irrelevant the Cassirers’
argument that Spain’s six-year acquisitive prescription for
premises in Louisiana. 583 P.2d at 722. It was unclear whether § 49 of
the California Civil Code recognized such an action. Id. at 724. The court
assumed that California did recognize the action, which it reasoned
“expresse[d] [California’s] interest in protecting California employers
from economic harm.” Id. But in applying the comparative impairment
analysis, the court discounted California’s interest because it had
“exhibited little concern” in applying the law. Id. at 728. “[N]o
California court has heretofore squarely held that California law provides
an action for harm to business employees, and no California court has
recently considered the issue at all.” Id. The court also reasoned that the
law was “archaic and isolated in the context of the laws of the federal
union.” Id (citation and quotation marks omitted). The court thus
discounted California’s interest “in the application of its unusual and
outmoded statute,” as compared to Louisiana’s more “prevalent and
progressive law” that did not recognize the cause of action. Id.
24 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
stolen property is an “outlier compared to all of the other
jurisdictions that had contact with the Painting.” That
provision of the law is not applicable in the “present case.”
See McCann, 225 P.3d at 534. The three-year period of
Article 1955 is the basis for TBC’s claim.
Second, we reiterate the California Supreme Court’s
directive that a court’s task “is not to determine whether the
[foreign jurisdiction] rule or the California rule is the better
or worthier rule.” Id. Rather, the inquiry rests on the “relative
commitment of the respective states to the laws involved.”
Offshore Rental, 583 P.3d at 727. The Cassirers’ argument
strikes at the social worthiness of Article 1955 of the Spanish
Civil Code—an invalid basis upon which to weigh the scope
of Spain’s interests. See id.
As we have recognized, “neither jurisdiction has shown
any lack of interest in seeing its own law applied.” Cassirer
VI, 69 F.4th at 569. Spain has demonstrated a commitment
to enforcing its acquisitive prescription laws and to
legislating on the ownership of property located in its
territory. Id. And California has asserted its strong interest in
seeking justice for victims of art theft. Id. at 569 n.9. Both
California and the Kingdom of Spain filed amicus briefs
expressing their strong interests in the application of their
respective laws to this dispute.
Therefore, the relative commitment of the jurisdictions
to their laws as applied to this dispute does not favor or
disfavor the application of either jurisdiction’s laws under
the comparative impairment approach.
2.
The California Supreme Court has reasoned that the
place where the relevant conduct occurs receives significant
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 25
weight in measuring the interests involved in the
comparative impairment analysis. Indeed, a jurisdiction
“ordinarily has the predominant interest in regulating
conduct that occurs within its borders and in being able to
assure individuals and commercial entities operating within
its territory that applicable limitations on liability set forth in
the jurisdiction’s law will be available to those individuals
and businesses in the event they are faced with litigation in
the future.” McCann, 225 P.3d at 534 (cleaned up). In such
a case, the jurisdiction has a strong interest in “establishing
a reliable rule of law” to promote predictability, to allow
actors operating within the jurisdiction’s borders reasonably
to rely on the jurisdiction’s law, and to facilitate investment
by entities operating within the jurisdiction. Id.; Offshore
Rental, 583 P.2d at 728; Kearney, 137 P.3d at 936–37.
In turn, failing to apply a jurisdiction’s laws that limit
liability with respect to conduct that occurs within its borders
will, typically, significantly impair a jurisdiction’s real and
legitimate interests in promoting reliance on its laws. See
McCann, 225 P.3d at 534–35; Kearney, 137 P.3d at 936–37.
This is particularly so when the failure to apply the
jurisdiction’s law to conduct within its borders is based
solely on the fortuity of the residence or choice of tribunal
of an adverse party. See McCann, 225 P.3d at 534–35.
In contrast, where none of the relevant conduct occurs in
California, a “restrained view of California’s interest” in
facilitating recovery for one of its residents is warranted. Id.
at 535. “[P]ast California choice-of-law decisions generally
hold that when the law of the other state limits or denies
liability for the conduct engaged in by the defendant in its
territory, that state’s interest is predominant, and
California’s legitimate interest in providing a remedy for, or
in facilitating recovery by, a current California resident
26 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
properly must be subordinated because of this state’s
diminished authority over activity that occurs in another
state.” Id. at 536; see also Cooper v. Tokyo Elec. Power Co.
Holdings, Inc., 960 F.3d 549, 560 (9th Cir. 2020)
(“California’s courts have frequently applied foreign laws
that serve to protect businesses by limiting liability, even
when applying that law precludes recovery by injured
California residents.”).
We find McCann particularly instructive here. There, a
former Oklahoma resident was exposed to friable asbestos at
his workplace in Oklahoma. 225 P.3d at 518. The plaintiff
later moved to California and developed mesothelioma
there. Id. Breathing in friable asbestos is a known—perhaps
the only known—cause of mesothelioma. He then sued his
former employer in California state court. Id. Oklahoma’s
statute of repose would have barred the suit, but California’s
statute of limitations would not have barred the suit. Id.
Thus, a “true conflict” existed between California law and
Oklahoma law. Id. at 533.
Applying the comparative impairment analysis of
California’s choice-of-law test, the California Supreme
Court held that Oklahoma law applied and barred the
plaintiff’s suit. Id. at 537. The court concluded that “a failure
to apply Oklahoma law would significantly impair
Oklahoma’s interest,” because all relevant conduct—the
exposure to the asbestos—“occurred in Oklahoma.” Id. at
534. In so reasoning, the court stressed that a jurisdiction
“ordinarily has the predominant interest in regulating
conduct that occurs within its borders.” Id.; see also Castro
v. Budget Rent-A-Car System, Inc., 154 Cal. App. 4th 1162,
1180 (Cal. Ct. App. 2007) (reasoning that a state has a
“presumptive interest in controlling the conduct of those
persons” who engage in relevant conduct in the state and that
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 27
a state has an interest in “not subjecting its residents and
businesses to the laws of other states that expand liability”).
Thus, applying California law would have significantly
impaired Oklahoma’s governmental interests in regulating
conduct within its borders, because doing so “would rest
solely upon the circumstance that after defendant engaged in
the allegedly tortious conduct in Oklahoma, plaintiff
happened to move to a jurisdiction whose law provides more
favorable treatment to plaintiff than that available under
Oklahoma law.” McCann, 225 P.3d at 534. The court
reasoned:
[T]he displacement of Oklahoma law
limiting liability for conduct engaged in
within Oklahoma, in favor of the law of a
jurisdiction to which a plaintiff subsequently
moved, would—notwithstanding the
innocent motivation of the move—
nonetheless significantly impair the interest
of Oklahoma served by the statute of repose.
If Oklahoma’s statute were not to be applied
because plaintiff had moved to a state with a
different and less “business-friendly” law,
Oklahoma could not provide any reasonable
assurance—either to out-of-state companies
or to Oklahoma businesses—that the time
limitation embodied in its statute would
operate to protect such businesses in the
future. Because a commercial entity
protected by the Oklahoma statute of repose
has no way of knowing or controlling where
a potential plaintiff may move in the future,
subjecting such a defendant to a different rule
28 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
of law based upon the law of a state to which
a potential plaintiff ultimately may move
would significantly undermine Oklahoma’s
interest in establishing a reliable rule of law
governing a business’s potential liability for
conduct undertaken in Oklahoma.
Id. at 534–35 (emphases added); see also Kearney, 137 P.3d
at 937 (explaining that “Georgia has a legitimate interest in
ensuring that individuals and businesses who act in Georgia
with the reasonable expectation that Georgia law applies to
their conduct are not thereafter unexpectedly and
unforeseeably subjected to liability for such action” and
holding that “restrain[ing] the application of California law
with regard to the imposition of liability for acts that have
occurred in the past” was necessary “to accommodate
Georgia’s interest in protecting persons who acted in
Georgia in reasonable reliance on Georgia law”).
In contrast, the failure to apply California’s statute of
limitations would create “a far less significant impairment of
California’s interest,” because none of the relevant conduct
occurred in California. McCann, 225 P.3d at 535. Although
California would not be able to “extend its liberal statute of
limitations for asbestos-related injuries or illnesses to some
potential plaintiffs,” “California’s interest in applying its
laws providing a remedy to, or facilitating recovery by, a
potential plaintiff in a case in which the defendant’s
allegedly tortious conduct occurred in another state is less
than its interest when the defendant’s conduct occurred in
California.” Id. In turn, “a restrained view of California’s
interest in facilitating recovery by a current California
resident is warranted in evaluating the relative impairment
of California’s interest that would result from the failure to
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 29
apply California law.” Id.; see also Castro, 154 Cal. App.
4th at 444 (reasoning that a California plaintiff’s “individual
financial circumstance and the possible cost to California
taxpayers and businesses [of an uncompensated loss] are . . .
not sufficient to reallocate” lawmaking power from the
jurisdiction where the conduct occurred to California).
Thus, because all relevant conduct occurred in
Oklahoma—and California’s only connection to the dispute
was the fortuitous residence of the plaintiff in California—
Oklahoma law applied under the comparative impairment
analysis. McCann, 225 P.3d at 537.
Similarly, in Offshore Rental, the California Supreme
Court—applying the comparative impairment approach—
applied Louisiana law over California law to bar a claim by
a California plaintiff relating to a physical injury that
occurred in Louisiana. 583 P.3d at 728–29. There, the
plaintiff, a California corporation, brought a negligence
action against the defendant out-of-state corporation,
seeking to recover damages that the plaintiff corporation
allegedly sustained as a result of an injury that an officer of
the corporation suffered while the officer was on the
defendant’s premises in Louisiana. Id. at 722. The California
plaintiff (the employer) sued for the value of its lost services
under a theory of “negligent injury to a key employee.” Id.
It was unclear whether California law recognized such a
claim, but Louisiana law foreclosed such a claim. Id. at 724.
The California Supreme Court held that Louisiana law
applied and barred the California plaintiff’s suit, in part
because the relevant conduct (the employee’s injury at the
defendant’s workplace) occurred in Louisiana. Id. at 728–
30 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
29. The court affirmed the trial court’s order that had
dismissed the plaintiff’s claim, reasoning:
The accident in question occurred within
Louisiana’s borders; although the law of the
place of the wrong is not necessarily the
applicable law for all tort actions, the situs of
the injury remains a relevant consideration.
At the heart of Louisiana’s denial of liability
lies the vital interest in promoting freedom of
investment and enterprise within Louisiana’s
borders, among investors incorporated both
in Louisiana and elsewhere. The imposition
of liability on defendant, therefore, would
strike at the essence of a compelling
Louisiana law.
Id. at 728.
Based in part on the fact that the relevant conduct
occurred in Louisiana, the California Supreme Court
concluded that Louisiana’s interests would be the more
impaired if its law were not applied and, therefore, held that
Louisiana law applied. Id. at 728–29.13
In sum, California Supreme Court precedent teaches that
the place in which the relevant conduct occurs in the
particular case is a crucial factor in measuring the
jurisdictions’ relative interests under the comparative
13
As explained above, supra note 12, the California Supreme Court also
discounted California’s interest because California had “exhibited little
concern” for applying its outdated law. Id. at 728. But the fact that the
accident occurred within Louisiana’s borders, and not California’s
borders, “provide[d] additional support for our limitation of the reach of
California law in the present case.” Id.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 31
interest analysis. This is because a jurisdiction has a strong
interest in “establishing a reliable rule of law”—especially
one that may limit future liability—with respect to conduct
that occurs within its borders. See McCann, 225 P.3d at 535.
Furthermore, when California’s sole contact to the dispute
was the happenstance of the plaintiff’s residence there,
California’s interest in facilitating recovery for that resident
was minimal and the extraterritorial reach of its laws was
restrained. See id.
Here, as in McCann, California’s governmental interest
rests solely on the fortuity that Claude Cassirer moved to
California in 1980, at a time when the Cassirer family
believed the Painting had been lost or destroyed. See
McCann, 225 P.3d at 535. Like McCann, none of the
relevant conduct involving the Painting occurred in
California.14 See id. Moreover, although California has
evinced a strong interest in returning stolen art to victims of
theft, see Cal. Code Civ. Proc. § 338(c)(3)(A), a “restrained
view of California’s interest in facilitating recovery by a
current California resident” is warranted. See McCann, 225
P.3d at 535 (“California’s interest in applying its laws
providing a remedy to, or facilitating recovery by, a potential
plaintiff in a case in which the defendant’s allegedly tortious
conduct occurred in another state is less than its interest
when the defendant’s conduct occurred in California.”). In
sum, because no relevant conduct with respect of the
Painting occurred in California, the impairment of
California’s interest that would result from applying Spanish
14
The only conduct connected to the Painting that occurred in California
involved the sale of the Painting there in the early 1950s, when the
Painting was in California for around a year before its sale to a St. Louis
art dealer. But the parties do not claim this sale is in any manner relevant.
32 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
law would be minimal. See id. Claude Cassirer’s decision to
move to California—a move that was unrelated to his claim
for the Painting—is “not sufficient to reallocate” lawmaking
power from Spain to California. See Castro, 154 Cal. App.
4th at 444; McGhee v. Arabian Am. Oil Co., 871 F.2d 1412,
1424 (9th Cir. 1989) (“California courts have rejected
arguments that a party’s contacts with California, unrelated
to the cause of action at hand, create a basis for extending
the reach of California’s law.”).
In contrast, applying California law would significantly
impair Spain’s interest in applying Article 1955 of the
Spanish Civil Code. For one, because the relevant conduct
(TBC’s purchase of the Painting and its display in the
museum) occurred in Spain—or at least not in California15—
McCann teaches that Spain has the “predominant interest”
in applying its laws to that conduct. See 226 P.3d at 534. As
McCann and Offshore Rental both make clear, when the
relevant conduct occurs within a jurisdiction’s borders, that
jurisdiction has a strong “interest in establishing a reliable
rule of law governing a business’s potential liability for
conduct undertaken” there. See id. at 535; Offshore Rental,
583 P.2d at 728–29 (reasoning that a jurisdiction has a “vital
interest in promoting freedom of investment and enterprise
within [its] borders”); Arno v. Club Med Inc., 22 F.3d 1464,
1469 (9th Cir. 1994) (applying French law to a vicarious-
15
Certainly, some of the Painting’s history involves jurisdictions other
than Spain: (1) the Nazis’ theft of the Painting in 1939, in Germany, (2)
the movement of the Painting into California and its sale in 1951, (3) the
sale of the painting to a St. Louis, Missouri art collector in 1952, (3) the
sale of the Painting to the Baron in New York in 1976, and (4) the
Painting’s possession and display by the Baron from 1976-1992 in
Switzerland. But no one claims that Germany, Missouri, New York, or
Switzerland has an interest in applying its laws here.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 33
liability claim because Guadeloupe’s interest in
“encouraging local industry . . . and reliably defining the
duties and scope of liability of an employer doing business
within its borders” would be more impaired than California’s
interest in “providing compensation to its residents” would
be impaired were its law not applied).
Moreover, applying California law based only on the
Cassirers’ choice of residence would mean that Spain could
not provide any “reasonable assurance[s]” to persons who
possess property within Spain’s borders that Article 1955
would ever protect them from replevin or damages actions
by California claimants. See McCann, 225 P.3d at 534.
Rather, applying California law would mean that Spain’s
law would not apply to property possessed within Spain’s
borders, so long as the initial owner (1) happened to be a
California resident (a fact over which, as in McCann, the
defendant has “no way of knowing or controlling,” see id. at
535), and (2) the California resident did not know where the
property is located and who possessed it—contrary to Article
1955 of the Spanish Civil Code. Applying California law
based only on Claude Cassirer’s decision to move to
California would “strike at the essence of a compelling
[Spanish] law.” See Offshore Rental, 583 P.2d at 728. And it
would contradict the principles from McCann and Offshore
Rental, which recognize the strong interest that Spain has in
ensuring its laws will predictably regulate conduct that
occurs within its borders. See McCann, 225 P.3d at 535
(“[S]ubjecting such a defendant to a different rule of law
based upon the law of a state to which a potential plaintiff
34 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
ultimately may move would significantly undermine
Oklahoma’s interest.”).16
Finally, Spain’s interests in promoting reliance,
predictability, and investment are especially relevant under
the facts of this case, as shown by TBC requiring the Baron
to provide a three-year prenda specifically to align with
Article 1955’s prescriptive acquisition period. Applying
California law to this case would leave entities in Spain, like
TBC, unable to structure and plan their conduct in Spain in
reliance on Spain’s laws. McCann and Offshore Rental
dictate that such an outcome would significantly impair
Spain’s governmental interests.
In sum, applying California law to this dispute would
significantly impair Spain’s interests, whereas applying
Spanish law would relatively minimally impair California’s
interests.
3.
Finally, the California Supreme Court has directed that a
court applying the comparative impairment analysis should
strive for the “maximum attainment of underlying purpose
by all governmental entities.” Offshore Rental, 583 P.2d at
728 (reasoning that a court should look to “the function and
purpose of th[e] laws”). Thus, the court should look to
whether one jurisdiction’s laws accommodate the other
jurisdiction’s interests or imposes duties the other
16
We recognize that McCann and Offshore Rental involved causes of
action involving bodily injury, whereas this case involves an injury that
relates to property. See Cassirer VI, 69 F.4th at 561–62. But as in
McCann and Offshore Rental, which involved tort causes of action, the
Cassirers’ legal interests were also invaded by tortious conduct:
conversion of the Painting by the Nazis in Germany. The principles from
McCann and Offshore Rental are therefore applicable here.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 35
jurisdiction already imposes. See, e.g., Bernhard, 546 P.2d
at 724–26. A state’s laws can more readily be discarded if
the failure to apply its laws would only partially—rather than
totally—impair the policy interests of the jurisdiction whose
law is not applied. See Offshore Rental, 583 P.2d at 726–27.
Here, the failure to apply California’s laws would only
partially undermine California’s interests in deterring theft
and returning stolen art to victims of theft, which provides
further support for limiting the extraterritorial reach of
California’s laws to this dispute.
An example comes from Bernhard. There, a patron
became intoxicated at Harrah’s Club, a Nevada tavern
located near the California border, and thereafter was
involved in a car accident in California with a California
resident. 546 P.2d at 720. Harrah’s had advertised in
California and solicited customers in California to patronize
its business. Id. The plaintiff sued Harrah’s in California
state court for negligently serving alcohol to the patron. Id.
Nevada had a law which immunized tavern keepers from
civil liability for the negligent actions of their patrons,
whereas California did not have a law so protecting tavern
keepers. Id. Nevada law, however, imposed criminal liability
on tavern owners who served alcohol to obviously
intoxicated patrons. Id. at 725.
The California Supreme Court, applying the comparative
impairment analysis, held that California law applied, in part
because the failure to apply Nevada law would only partially
undermine Nevada’s interests, whereas the failure to apply
California’s law would significantly impede California from
effectuating its policy interests in protecting against the risks
of drunk driving. Id. at 724–26. Although the court
recognized that application of California law would result in
“an increased economic exposure” for Nevada tavern
36 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
keepers, it explained that “Nevada’s interest in protecting its
tavern keepers from civil liability of a boundless and
unrestricted nature will not be significantly impaired when
as in the instant case liability is imposed only on those tavern
keepers who actively solicit California business.” Id. at 725.
Moreover, the California Supreme Court noted that,
since the “act of selling alcoholic beverages to obviously
intoxicated persons is already proscribed in Nevada” by
criminal law, application of California’s rule would not
impose “an entirely new duty” on Nevada tavern keepers. Id.
Because Nevada law already contemplated that tavern
keepers could be punished—albeit criminally—for serving
intoxicated persons, exposing those businesses to civil
liability would only partially undermine Nevada’s interests.
Id. Accordingly, the court concluded that California law
should be applied. Id. at 725–26.
Here too, applying Spanish law would only partially
undermine California’s interests in facilitating recovery of
stolen art for California residents. California law already
contemplates that a person whose art—or other personal
property—is stolen may eventually lose the ability to reclaim
possession: namely, if the person fails to bring a lawsuit
within six years after he discovers the whereabouts of the art.
See Cal. Code Civ. Proc. § 338(c)(3)(A). If the victim fails
to bring a lawsuit within that time, the victim loses the right
of possession because he can no longer use the judicial
process to enforce his ownership interest. See, e.g.,
Harpending v. Meyer, 55 Cal. 555, 561 (1880) (holding that
a plaintiff whose jewelry had been stolen could not recover
from a third party because the statute of limitations had
expired). And in such a case, as in Spain, the possessor
retains possession rights as against all third parties, even if
the property is stolen. See Rosenthal v. McMann, 29 P. 121,
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 37
121–22 (Cal. 1892) (explaining that “one having the
possession, merely, is the owner as against a wrongdoer,”
and that possession “is presumed lawful, and as against a
trespasser, even one who obtained possession wrongfully
was deemed to have been lawfully possessed”); Nat’l Bank
of New Zealand, Ltd. v. Finn, 253 P. 757, 769 (Cal. Dist. Ct.
App. 1927) (noting the “general rule” is that “[a]ctual
possession of a chattel at the time of its conversion will
sustain trover, except as to the true owner or one claiming
under him, even though the title be conceded to be in a third
person” (quoting 24 Cal. Jur. § 19)); Armory v. Delamirie,
93 Eng. Rep. 664 (K.B. 1722) (holding that the finder and
possessor of property has rights superior against all but the
rightful owner).
Even under the most generous interpretation of
California’s no-title-passes-through-theft rule, then, certain
victims of theft (i.e., those who do not bring suit to recover
the chattel before the statute of limitations expires) will not
prevail against subsequent possessors of the chattel. As with
the risk of criminal liability for a tavern keeper under Nevada
law in Bernhard, California law already contemplates the
risk that certain victims of art theft will lose the right to
reclaim property. See Bernhard, 546 P.2d at 725. Thus,
failure to apply California’s laws will not absolutely
undermine California’s interest in returning stolen art to
victims of theft because California law protects the victim
only if a timely suit is filed.
Similarly, Article 1955 of the Spanish Civil Code
accommodates California’s interest in deterring theft. As we
have explained, Spanish law makes it more difficult for title
to vest in an “encubridor,” which includes, “an accessory
after the fact,” or someone who “knowingly receives and
benefits from stolen property.” Cassirer III, 862 F.3d at 968.
38 CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND.
If the possessor is proven to be an encubridor, Spanish law
extends the period in which the property must be possessed
before new prescriptive title is created. Id. Here, had TBC
been an encubridor, the Cassirers would have prevailed in
this action because TBC would not have gained prescriptive
title by the time the Cassirers brought their claim. See
Cassirer III, 862 F.3d at 966 (“[I]f Article 1956 applies,
TBC has not acquired prescriptive title to the Painting.”).
California’s interest in deterring passage of title through
theft has, at least in part, been protected.
In sum, applying Spain’s laws here would only partially
undermine California’s interests in deterring theft and in
returning stolen art to victims of theft.
IV. CONCLUSION
We conclude that the application of California’s laws
would significantly impair Spain’s governmental interests,
whereas the application of Spain’s laws would only
relatively minimally impair California’s governmental
interests. As a result, Spain’s interests would be more
impaired by the application of California law than would
California’s interests be impaired by the application of
Spanish law. Under California’s choice-of-law test, then, we
hold that Spanish law applies to determine ownership of the
Painting. And pursuant to Article 1955 of the Spanish Civil
Code, TBC has acquired prescriptive title to the Painting.
See Cassirer IV, 824 F. App’x at 457.
We therefore affirm the district court’s order which
granted judgment in favor of TBC.
AFFIRMED.
CASSIRER V. THYSSEN-BORNEMISZA COLLECTION FOUND. 39
CALLAHAN, Circuit Judge, concurring:
Sometimes our oaths of office and an appreciation of our
proper roles as appellate judges require that we concur in a
result at odds with our moral compass. For me, this is such
a situation. As we have previously held, the district court’s
“finding that the Baron lacked actual knowledge that the
Painting was stolen was not clearly erroneous,” and thus,
“even if the Baron’s knowledge could be imputed to TBC, it
does not cause TBC to have actual knowledge.” Cassirer v.
Thyssen-Bornemisza Collection Foundation, 824 F. App’x.
452, 456-57 (2020). Furthermore, I fully agree with the
opinion’s application of California law to the facts in this
litigation and the determination that Spain’s interests would
be more impaired if California law were applied than
California’s interests would be impaired by applying
Spanish law.
Nonetheless, I reaffirm the point we made in footnote
three of our opinion in Cassirer, 824 F. App’x. at 457.
Spain, having reaffirmed its commitment to the Washington
Principles on Nazi-Confiscate Art when it signed the Terezin
Declaration on Holocaust Era Assets and Related Issues,
should have voluntarily relinquished the Painting. However,
as we previously held, “we cannot order compliance with the
Washington Principles or the Terezin Declaration.” Id. Our
opinion is compelled by the district court’s findings of fact
and the applicable law, but I wish that it were otherwise.