G and G Productions LLC v. Rita Rusic , 902 F.3d 940 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
G AND G PRODUCTIONS LLC, a No. 16-56107
California Limited Liability
Corporation, D.C. No.
Plaintiff-Appellant, 2:15-cv-02796-
RGK-E
v.
RITA RUSIC, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 14, 2018
Pasadena, California
Filed August 29, 2018
Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and James Donato, * District
Judge.
Opinion by Judge McKeown;
Concurrence by Judge Donato
*
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
2 G&G PRODUCTIONS V. RUSIC
SUMMARY **
Statute of Limitations
The panel affirmed in part, and vacated in part, the
district court’s summary judgment that was entered in favor
of Rita Rusic in a diversity action brought by G&G
Productions, LLC, alleging various claims concerning
ownership of Wine of Babylon, a valuable oil painting by the
artist Jean-Michel Basquiat.
G&G alleged that Rusic stole the painting from her
former husband and G&G’s predecessor-in-interest, Vittorio
Cecchi Gori, an Academy Award-winning Italian film
producer.
The panel applied the substantive law of California,
which involved determining the accrual dates of G&G’s
various claims and assessing their timeliness under
California’s borrowing statute. The panel further held that
there was no dispute that all of G&G’s causes of action arose
in Italy. Finally, the panel held that if the Italian statute of
limitations would bar a claim, then the borrowing statute,
Cal. Civ. Proc. Code § 361, barred that claim in California.
Concerning the conversion claim, as a threshold matter,
the panel concluded that the district court was permitted to
determine accrual under Italian law, assuming the borrowing
statute authorized the court to do so. The panel further held
that under de Fontbrune v. Wofsy, 838 F.3d 992, 997 (9th
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
G&G PRODUCTIONS V. RUSIC 3
Cir. 2016), and Fed. R. Civ. P. 44.1, a party relying on
foreign law had an obligation to raise the specific legal issues
and to provide the district court with the information needed
to determine the meaning of the foreign law. The panel held
that in the district court, the parties did not raise explicitly
the issue of whether G&G’s claims accrued under Italian
law, and G&G failed to raise the issue whether its conversion
claim was exempt from an Italian statute of limitations.
Given the circumstances, the district court did not err in
applying California law to determine when the conversion
claim accrued. The panel affirmed the district court’s order
with respect to G&G’s conversion claim because the district
court properly determined that the claim accrued sometime
in 2000 and was time-barred under both the Italian and
California statutes of limitations.
The panel vacated and remanded to the district court with
respect to G&G’s replevin and unjust enrichment claims
because there was no indication that the district court
determined when those claims accrued.
The panel vacated and remanded the district court’s
order with respect to G&G’s claim for declaratory relief
because the disputed facts on the claim defeated summary
judgment in favor of Rusic.
District Judge Donato concurred because the conversion
claim was properly dismissed under Italy’s 10-year statute
of limitations whether the accrual was measured under
Italian law or California law. He noted that the approach of
in effect splitting the borrowing statute – by applying
California law to determine when a claim accrues and
foreign law to decide if the time to sue has lapsed – might
4 G&G PRODUCTIONS V. RUSIC
not be sound when the laws of California and the foreign
jurisdiction do not align so neatly.
COUNSEL
Brent Herbert Blakeley (argued), Blakeley Law Group,
Manhattan Beach, California, for Plaintiff-Appellant.
Scott S. Humphreys (argued), Burt M. Rublin, and Peter L.
Haviland, Ballard Spahr LLP, Los Angeles, California, for
Defendant-Appellee.
OPINION
McKEOWN, Circuit Judge:
What happens when you cross an Academy Award-
winning Italian film producer, a Croatian actress-turned-
producer, a bitter divorce, an oil painting worth millions of
dollars, and dozens of pages of untranslated Italian law in the
court of appeals? The answer, we conclude, is a procedural
morass and a remand to the district court.
G&G Productions, LLC (“G&G”), a California limited-
liability company, appeals the district court’s order granting
summary judgment in favor of Rita Rusic, a citizen of Italy,
in G&G’s suit asserting various state-law claims. G&G
alleges that sometime in 1999 or 2000, Rusic stole Wine of
Babylon—a large, valuable oil painting by the late American
artist Jean-Michel Basquiat—from Rusic’s former husband
and G&G’s predecessor-in-interest, Vittorio Cecchi Gori.
The district court held that G&G’s claims were barred by
California’s borrowing statute, Cal. Civ. Proc. Code § 361,
G&G PRODUCTIONS V. RUSIC 5
because the applicable ten-year Italian statute of limitations
would bar those claims in an Italian court.
We affirm the district court’s order with respect to
G&G’s conversion claim because the district court properly
determined that this claim accrued sometime in 2000 and
was time-barred under both the Italian and California
statutes of limitations. We vacate and remand the district
court’s order with respect to G&G’s replevin and unjust
enrichment claims, however, because there is no indication
that the district court determined when those claims accrued.
We also vacate and remand the district court’s order with
respect to G&G’s claim for declaratory relief because the
disputed facts on this claim defeat summary judgment in
favor of Rusic.
BACKGROUND
Vittorio Cecchi Gori is a well-known film producer and
former Italian politician. 1 In 1983, Gori married Rita Rusic,
a Croatian-born actress, singer, and film producer who is
now a citizen of Italy. At the time they married, Gori and
Rusic agreed to keep their assets separate under Italian law.
In June 1998 Gori purchased a large oil painting entitled
Wine of Babylon (1984) by the late American artist Jean-
Michel Basquiat from the Tony Shafrazi Gallery in New
York for $330,000. In late 1998 or early 1999, the Shafrazi
1
Gori’s best-known films include Life is Beautiful (1997), which
received the Academy Award for Best Foreign Language Film, and Il
Postino (1994), which received an Academy Award nomination for Best
Picture. Gori was a Senator for the Italian People’s Party from 1994 to
2001.
6 G&G PRODUCTIONS V. RUSIC
Gallery shipped the painting to Gori and Rusic’s residence
in Rome, Italy, where it hung with other artworks.
Mere months later, the marriage deteriorated. Rusic filed
for divorce from Gori in May 1999, accusing Gori of
physical abuse and infidelity. Around the time that Rusic
filed for divorce, Wine of Babylon vanished from the
couple’s home. Gori contends that Rusic smuggled the
painting out of the residence and stashed it elsewhere. Rusic
counters that she did not take—and, because of a head injury
allegedly caused by Gori, could not have taken—the
painting, which actually disappeared “when Mr. Gori caused
movers working for him to remove numerous items of
personal property from [the residence] in 1999 or possibly
2000.”
In the meantime, Basquiat’s works have continued to
appreciate in value. In 2017, for example, Basquiat’s 1982
oil-stick and spray-paint creation, Untitled, set a record for
any work by a U.S. artist sold at auction, fetching $110.5M
at Sotheby’s.
Gori has never wavered in his belief that Rusic took Wine
of Babylon. On several occasions, he initiated legal action
in Italy to recover the painting. On May 16, 2000, Gori’s
attorney sent Rusic a letter demanding the painting’s return.
Two months later, Gori’s attorney filed a brief in Italian
court in connection with the divorce proceedings, petitioning
for the painting’s return. The Italian court rejected Gori’s
petition in an August 2006 divorce decree, which found Gori
at fault for spousal abuse. 2 Undeterred, Gori’s attorneys sent
2
A few months later, in October 2006, Gori’s financial holding
company, Cecchi Gori Group Fin. Ma. Vi S.p.A. (“FINMAVI”),
collapsed in one of the largest bankruptcies in Italian history with over
G&G PRODUCTIONS V. RUSIC 7
another letter to Rusic on February 24, 2009 threatening to
initiate criminal proceedings if Rusic failed to return the
painting. Gori’s attorneys sent similar letters to Rusic later
in 2009 and in 2010.
When nothing came of the letters, Gori filed a criminal
complaint against Rusic in Italian court on March 22, 2010.
On February 13, 2014, the court ruled in Rusic’s favor and
acquitted her of the charges. The court first determined that
Rusic and Gori had not legally separated when Gori filed his
complaint, thus barring the criminal action under Italian law.
The court further determined that because Gori suspected
Rusic stole the painting as early as 2000, Rusic’s purported
crime was “subject to the Statute of Limitations” of seven
years and six months, which expired on January 10, 2008—
over two years before Gori initiated the criminal action.
On February 22, 2010—one month before Gori filed his
criminal complaint in Italy—Gori assigned any rights that he
held in Wine of Babylon to his long-standing Italian attorney,
Giovanni Nappi, to settle a €2M debt for unpaid legal fees.
Nappi then assigned his rights to the painting to G&G, in
exchange for a 50% ownership interest in the newly formed
limited-liability company. The remaining interest in G&G
is held by an Italian businessman and longtime friend of
Gori. G&G took title to the painting “subject to any running
statute of limitations.”
According to G&G, Wine of Babylon was most recently
observed in the Milan apartment of Canio Mazzaro, an
Italian businessman who is Rusic’s former boyfriend. G&G
cites the testimony of Paola Ruffolo, who purportedly saw
$927M in debt. Gori was later found guilty of criminal bankruptcy and
sentenced to seven years in prison in 2013.
8 G&G PRODUCTIONS V. RUSIC
the painting during a party at Mazzarro’s apartment in 2011.
Ruffolo supposedly conveyed that fact to Nappi sometime in
2014. Ruffolo testified that Mazzaro claimed he had
obtained the painting from Rusic in 2011 as part of the
settlement of Mazzaro’s lawsuit against Rusic for breaching
a profit-sharing agreement.
Rusic, however, submitted a declaration by Mazzaro
flatly denying Ruffolo’s allegations, each of which Mazzaro
dismissed as “a lie.” According to Mazzaro, he has never
met Ruffolo, has never lived in the apartment where Ruffolo
claimed to have seen the painting, has never had possession
of the painting, and has never claimed that he obtained the
painting from Rusic or from any other party.
PROCEDURAL HISTORY
I. DISTRICT COURT
In 2015, G&G filed suit against Rusic in the United
States District Court for the Central District of California,
asserting state-law tort claims of conversion, replevin, unjust
enrichment, and declaratory relief.
On cross-motions for summary judgment, the district
court ruled in Rusic’s favor. The court first determined that
California’s borrowing statute governed G&G’s claims, all
of which “arose” from Rusic’s alleged theft of the painting
in Italy. See Cal. Civ. Proc. Code § 361 (providing that
“[w]hen a cause of action has arisen” in a jurisdiction other
than California and is time-barred under the law of that
jurisdiction, the claim is also time-barred in California).
As a result, the district court proceeded to analyze
whether G&G’s claims were time-barred under Italian law.
On this question, Rusic offered the declaration of Carlo
G&G PRODUCTIONS V. RUSIC 9
Arnulfo, an experienced attorney who is licensed to practice
law in Italy. Arnulfo explained that Article 2946 of the
Italian Civil Code prescribes a generic, ten-year statute of
limitations for any cause of action that is not subject to a
shorter limitations period under a different statute. Arnulfo
stated that no other statute prescribes a shorter limitations
period for conversion or replevin claims, concluding that
G&G’s tort claims are subject to a ten-year limitations
period in Italy. Notably, Arnulfo supported his declaration
with exactly the sort of materials that a court would need to
decide an issue of foreign law, including relevant Italian
statutes and case law in translation (in this case, by a
bilingual attorney who is admitted to both the Italian and
California bars).
G&G’s submission was a different story. G&G
conceded that Article 2946 governed its claims in Italy, and
claimed only that Gori’s various attempts to recover the
painting from Rusic tolled the limitations period under
Italian law. The district court rejected this argument for
three reasons. First, G&G’s tolling argument was “entirely
unsupported” by any citations to Italian law. Second,
G&G’s only support was a declaration of Giovanni Nappi,
who concededly is not an expert in Italian law and owns 50%
of G&G. Third, even if the court had accepted Nappi’s claim
that Gori’s actions tolled the statute, Nappi failed to quantify
the duration of any tolling or the length of any suspension,
“rendering it impossible” for the district court to determine
whether G&G’s tort claims were timely filed.
Unsurprisingly, the court agreed with Rusic that G&G’s tort
claims expired in Italy ten years after those claims accrued.
According to the district court, G&G’s tort claims
accrued no later than May or July 2000, when Gori first sent
a demand letter to Rusic demonstrating that he “clearly knew
10 G&G PRODUCTIONS V. RUSIC
of his claim” and that he “was entitled to sue.” The court
explicitly made this determination under California law. 3
E.g., Deirmenjian v. Deutsche Bank, A.G., No. CV 06-
00774, 2006 WL 4749756, at *34 (C.D. Cal. Sept. 25, 2006)
(“[T]he applicability of California’s borrowing statute turns
on the time plaintiffs’ claims accrued.”); Dalkilic v. Titan
Corp., 516 F. Supp. 2d 1177, 1184 (S.D. Cal. 2007) (“To
determine where the cause of action accrued, a court must
look to the time when, and the place where, the act is
unlawfully committed or omitted.”) (internal quotation mark
and citations omitted); Deirmenjian v. Deutsche Bank, A.G.,
No. CV 06-00774, 2010 WL 3034060, at *14 (C.D. Cal. July
30, 2010) (“Under California law, a cause of action generally
accrues at the moment that the party who owns it is entitled
to file and prosecute an action.”). If the tort claims accrued
in 2000, of course, G&G would have had “to file [those]
claim[s] before July 10, 2010 at the latest” in Italian court.
Because G&G did not file suit until 2015, the district court
held that G&G’s tort claims were time-barred under the
Italian statute of limitations, and thus barred by California’s
borrowing statute. The court granted Rusic’s motion for
summary judgment on these claims.
3
As the district court noted, Rusic did provide the court with a
general rule of accrual under Italian law. The English translation of
Article 2935 of the Italian Civil Code provides that “[t]he statute of
limitations runs from the day on which the right can be exercised.” The
court noted that “[a]ccording to Italian case law, the limitations period
will not be tolled for the plaintiffs’ ignorance of the event from which
the right arises or the delay in acknowledging it due to lack of
communication by the other party.” The record does not indicate,
however, that Rusic’s expert explained how that rule applied in this case
or that the district court applied that rule to determine accrual under
Italian law.
G&G PRODUCTIONS V. RUSIC 11
Finally, the district court held that G&G’s declaratory
judgment claim was moot “because G&G . . . maintained in
its pleadings and at the summary judgment stage that
Mazzara [sic], not Rusic, now owns the Painting pursuant to
the alleged settlement agreement [with Mazzaro] in 2011.”
II. COURT OF APPEALS
On appeal, G&G’s strategy changed dramatically—and
often. For starters, G&G’s opening brief presented an
entirely new argument that G&G’s tort claims are not subject
to any statute of limitations under Italian law. According to
G&G, Article 2934 of the Italian Civil Code provides that
claims for “recovery” of property, as defined by Article 948,
are exempt from any statute of limitations. G&G argued that
because it sought a declaration as to the legal owner of the
painting, an Italian court would not consider this an action
for “restitution” under Article 2037, which is subject to the
ten-year statute of limitations. Rather, the court would
consider it an action for “recovery” of property under Article
2934, which is exempt.
Once again, the only support G&G provided for its
argument was a declaration, this time of Michele Nappi.
Although Michele Nappi can be considered an expert on
Italian law—he is a former “divisional President” of Italy’s
Court of Cassation and longtime “senior magistrate” with
more than forty years of experience—the family
resemblance is no coincidence: he is also Giovanni Nappi’s
father. While Michele Nappi’s declaration included some
excerpts of Italian law, none of them were translated. More
fatally, Nappi’s declaration spoke exclusively in terms of
whether G&G’s “action” is one for “restitution” or
“recovery” of property under Italian law. G&G’s complaint,
however, asserted four distinct causes of action. Three of
those claims do not seek to recover any “property” at all.
12 G&G PRODUCTIONS V. RUSIC
And there was more. Mere days before oral argument,
G&G filed a motion to admit pro hac vice an Italian
attorney—previously unheard of in the litigation—to
“discuss and otherwise answer any questions which [the]
Court may have regarding the interpretation of Italian law.”
Unsurprisingly, we denied the motion.
At no point, we stress, did G&G attempt to explain why
it could not have presented these experts, legal theories, and
citations to Italian law to the district court. 4 The reason is
simple: G&G could have. Instead, G&G attempts to use
Rule of Civil Procedure 44.1—which treats an issue of
foreign law as a question of law, see Fed. R. Civ. P. 44.1—
as a permission slip for unlimited do-overs. The rule does
not extend that far. We decline to consider G&G’s untimely
and undeveloped arguments.
ANALYSIS
Because our jurisdiction rests on the parties’ diversity of
citizenship, we apply substantive state law, including state
law regarding statutes of limitations and tolling. See Albano
v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir.
2011); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938).
Statutes of limitations are intended to “promote justice
by preventing surprises through the revival of claims that
have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared.”
Order of R.R. Telegraphers v. Ry. Express Agency, Inc.,
4
Rusic was considerably more diligent and supported her
interpretation of Italian law, in both the district court and this court, with
expert declarations and Italian legal authorities in translation.
G&G PRODUCTIONS V. RUSIC 13
321 U.S. 342, 348–349 (1944). Unless a statute provides
otherwise, the “statute of limitations begins to run at the time
when a complete cause or right of action accrues.” 54 C.J.S.
Limitations of Actions § 129 (2018). “In common parlance,”
a right is said to accrue “when it comes into existence.”
United States v. Lindsay, 346 U.S. 568, 569 (1954); see also
Wallace v. Kato, 549 U.S. 384, 388 (2007) (recognizing the
“standard rule” that a claim accrues “when the plaintiff has
a complete and present cause of action”) (internal quotation
marks omitted).
So-called borrowing statutes, whereby the forum state
“borrows” the applicable statute of limitations from the
jurisdiction in which the cause of action arose, have a further
justification. “[A]s a matter of policy, there is no sound
reason why an obligee should be entitled to recover in the
forum if his action has been fully barred by the law of the
state in which it arose.” John W. Ester, Borrowing Statues
of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 41
(1962). If the cause of action “has been extinguished,” that
is, such a “defense should accompany [the] defendant to
each jurisdiction in which he might subsequently reside.” Id.
at 42. For that reason, borrowing statutes necessarily
prevent “the possibility of perpetual liability for an
ambulatory defendant.” Id.
Here we apply the substantive law of California, which
involves determining the accrual dates of G&G’s various
claims and assessing their timeliness under California’s
borrowing statute:
When a cause of action has arisen in another
State, or in a foreign country, and by the laws
thereof an action thereon cannot there be
maintained against a person by reason of the
lapse of time, an action thereon shall not be
14 G&G PRODUCTIONS V. RUSIC
maintained against him in this State, except
in favor of one who has been a citizen of this
State, and who has held the cause of action
from the time it accrued.
Cal. Civ. Proc. Code § 361. Without doubt, there is no
dispute that all of G&G’s causes of action arose in Italy. If
the Italian statute of limitations would bar G&G’s claim,
§ 361 bars that claim in California. 5
The district court did not distinguish among G&G’s three
tort claims. The district court did determine, however, that
G&G’s conversion claim accrued in 2000 under California
law and so was untimely under the Italian (or the California)
statute of limitations. We affirm that judgment. But there is
no indication that the district court determined, rather than
assumed, that G&G’s replevin and unjust enrichment claims
also accrued in 2000. We thus vacate the district court’s
judgment with respect to those claims and remand for further
proceedings.
I. CONVERSION CLAIM
The district court determined under California law that
G&G’s conversion claim accrued sometime in 2000. The
court explained that under § 338 of California’s Civil
Procedure Code, a “cause of action in the case of theft . . . of
an article of historical, interpretive, scientific, or artistic
significance is not deemed to have accrued until the
discovery of the whereabouts of the article by the aggrieved
5
G&G does not claim to qualify for the exemption as a person “who
has been a citizen of [California], and who has held his cause of action
from the time it accrued.” Cal. Civ. Proc. Code § 361.
G&G PRODUCTIONS V. RUSIC 15
party.” Cal. Civ. Proc. Code § 338(c)(2). Applying
California law, the court explained that:
According to G&G, the [conversion] claim
against Rusic did not accrue until 2014, when
Nappi discovered that the Painting was
allegedly housed at Mazzaro’s Milan
residence. Therefore, G&G maintains the
limitations period did not commence until
2014. In making this argument, G&G
conveniently overlooks the fact that its
predecessor in interest, Gori, was aware of
Rusic’s alleged theft in May 2000 as
evidenced by the demand letter he sent
seeking the return of the Painting. While
Gori may not have been aware of the
Painting’s exact whereabouts back in 2000,
“the discovery rule, whenever it applies,
incorporates the principle of constructive
notice.” Orkin v. Taylor, 487 F.3d 734, 741
(9th Cir. 2007). In other words, the “cause of
action began to accrue when [Gori]
discovered or reasonably could have
discovered [his] claim to the [Painting], and
[its] whereabouts.” Von Saher v. Norton
Simon Museum of Art at Pasadena, 592 F.3d
954, 969 (9th Cir. 2010). Based on the
demand letter, it is clear that Gori was on
notice of his claim for conversion against
Rusic as early as May 2000. Accordingly, the
discovery rule does not result in a later
accrual date.
G&G did not file suit until 2015, years after both the
California and Italian limitations periods had expired. On
16 G&G PRODUCTIONS V. RUSIC
that basis, the district court granted Rusic’s motion for
summary judgment on G&G’s tort claims.
Although the issue of when G&G’s claims accrued for
purposes of the Italian statute of limitations may be a
question of Italian law, we affirm the district court’s
conclusion, under California law, that G&G’s conversion
claim accrued sometime in 2000. After all, both parties
relied overwhelmingly on California law to support their
arguments as to when G&G’s tort claims accrued, and
neither suggested that California and Italian law differ with
respect to accrual. Under those circumstances, as we explain
below, the district court properly applied the law of the
forum—California—to determine when G&G’s tort claims
accrued for purposes of the Italian statute of limitations.
A. Accrual under Italian Law
As a threshold matter, we conclude that the district court
was permitted to determine accrual under Italian law,
assuming the borrowing statute authorized the court to do
so. 6 Rule of Civil Procedure 44.1, after all, treats issues of
foreign law as “question[s] of law” for the court to decide,
Fed. R. Civ. P. 44.1, and contemplates that the “process of
ascertaining foreign law” will be “equivalent to the process
6
The California Supreme Court does not appear to have decided
whether, for purposes of the borrowing statute, accrual is a question of
California law or the law of the state or foreign country in which the
claim arose. We note, however, that California decisions applying the
borrowing statute have determined accrual under California law. See,
e.g., Cossman v. DaimlerChrysler Corp., 108 Cal. App. 4th 370, 376
(2003) (applying California law to determine date of claim accrual for
purposes of deciding timeliness under Indiana law). Because the district
court properly determined the accrual date of G&G’s conversion claim
under California law even if accrual was a question of Italian law, we
express no opinion on this question.
G&G PRODUCTIONS V. RUSIC 17
for determining domestic law, insofar as possible.” de
Fontbrune v. Wofsy, 838 F.3d 992, 997 (9th Cir. 2016). This
approach accords with the Supreme Court’s decision in
Animal Science Products, Inc. v. Hebei Welcome
Pharmaceutical Co., 138 S. Ct. 1865, 1873 (2018) (noting
that “the ‘obvious’ purpose of the changes Rule 44.1 ordered
was ‘to make the process of determining alien law identical
with the method of ascertaining domestic law to the extent
that it is possible to do so.’”) (citation omitted)). As we
explained in de Fontbrune, Rule 44.1 “unshackles” courts—
and to a lesser extent, litigants—“from the evidentiary and
procedural requirements that apply to factual
determinations.” 838 F.3d at 997; see also id. (explaining
that the purpose of Rule 44.1 was “to lay to rest [an]
antiquated conception of foreign law as a question of fact
that must be proved at trial and reviewed on appeal only for
clear error”). In deciding issues of foreign law, therefore, a
court may consider “any relevant material, including
testimony, without regard to its admissibility,” and even
engage “in its own research and consider any relevant
material thus found” without giving formal notice to the
parties of its intent to do so. Fed. R. Civ. P. 44.1 (advisory
committee’s note).
In de Fontbrune, we thus counseled that “it would be
antithetical to the language and purpose of Rule 44.1 to
prohibit courts from considering relevant materials beyond
the pleadings” in ruling on a motion to dismiss “when the
claim depends on a determination of foreign law.” 838 F.3d
at 998 (emphasis added). We explained that “independent
judicial research does not implicate the judicial notice and
ex parte issues spawned by independent factual research
undertaken by a court,” id. at 999, and observed that some of
our prior decisions “have likewise stressed the district
court’s independent obligation to adequately ascertain
18 G&G PRODUCTIONS V. RUSIC
relevant foreign law” under Rule 44.1, “even if the parties’
submissions are lacking,” id. at 997 (citing Universe Sales
Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036, 1039 (9th Cir.
1999)).
But de Fontbrune should not be read as imposing an
“independent obligation” on the district court to determine
whether G&G’s claims accrued under Italian law, or were
exempt from the Italian statute of limitations, irrespective of
whether the parties briefed—or indeed, even raised—those
issues. As one commentator has suggested, de Fontbrune’s
reference to the district court’s “independent obligation,” see
id., may potentially mislead litigants into believing that “the
‘burden’ of determining [foreign] law is on the judges, not
on any party.” Steven S. Gensler, 1 Fed. R. of Civ. P. Rules
and Commentary, Rule 44.1 (2018 ed.); see also id.
(cautioning that de Fontbrune may have “led some trial
courts to misperceive their role”).
G&G enthusiastically assumed that very position to
justify its presentation of entirely new legal theories, new
foreign law (albeit not in translation), and new legal
experts—all of which G&G easily could have presented to
the district court at the summary judgment stage. In fact,
G&G went so far as to claim that in this case “the District
Court simply got it wrong” for failing to realize that “G&G’s
claims against Rusic are not barred by the Italian statute of
limitations”—a curious assertion, considering that G&G
raised that argument for the first time on appeal.
G&G PRODUCTIONS V. RUSIC 19
Nevertheless, G&G insisted that “in the final analysis it is
the court, not the litigants, which must get it right.” 7
Not exactly so. More accurately, when presented with a
question of law, the court must make the appropriate legal
determination. For the court to do so, however, the litigants
must raise the question in the first instance. The appropriate
reading of de Fontbrune, and of Rule 44.1, therefore, is that
a party relying on foreign law has an obligation to raise the
specific legal issues and to provide the district court with the
information needed to determine the meaning of the foreign
law. After all:
Even in the internet age, it would put an
extraordinary burden on the court if parties
could nakedly invoke foreign law and then
delegate the job of figuring it out to the judge
and her clerks. By making clear that the
information burden remains at all times on
the party invoking foreign law, the scheme
effectively instructs parties that they waive
the right to rely on foreign law if they don’t
supply the information needed to determine
it. The party may get saved by the court’s
own research efforts, but if the task is too
great the court may fall back on some other
law (usually forum law) as presumptively
controlling.
Id. (emphasis added).
7
Presumably, G&G’s reading of de Fontbrune also underlies its
belief that parties are not required to provide courts with translations of
their foreign legal authorities.
20 G&G PRODUCTIONS V. RUSIC
Our reading of Rule 44.1, which emphasizes the parties’
informational duty to the court, is most consistent with the
text and purposes of the Rule itself. With respect to courts,
Rule 44.1 speaks exclusively in terms of permission, not
prescription. See Fed. R. Civ. P. 44.1 (“In determining
foreign law, the court may consider any relevant material or
source, including testimony, whether or not submitted by a
party or admissible under the Federal Rules of Evidence.”)
(emphasis added). The advisory committee’s 1966 notes
make this unmistakably clear. See, e.g., id. (advisory
committee’s note) (“The second sentence of the new rule
describes the materials to which the court may resort in
determining an issue of foreign law.”) (second emphasis
added); id. (“The new rule permits consideration by the court
of any relevant material . . . .”) (emphasis added); id. (“[T]he
new rule provides that in determining this law the court is
not limited by material presented by the parties; it may
engage in its own research and consider any relevant
material thus found.”) (emphases added).
Further, Rule 44.1’s requirements are intended to be
“flexible and informal” so as to “encourage the court and
counsel to regard the determination of foreign law as a
cooperative venture requiring an open and unstructured
dialogue among all concerned.” 9A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2444
(3d ed. 2008). There is nothing “cooperative” about simply
invoking foreign law and expecting a court to decide every
legal permutation, including ones that the parties failed to
raise.
This approach to Rule 44.1 hews to our precedent. First,
it reinforces our admonition that we judges are not “like pigs
. . . hunting for truffles.” Guatay Christian Fellowship v.
Cty.of San Diego, 670 F.3d 957, 987 (9th Cir. 2011) (quoting
G&G PRODUCTIONS V. RUSIC 21
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
We have held that “[a]bsent exceptional circumstances, we
generally will not consider arguments raised for the first time
on appeal, although we have discretion to do so.” See, e.g.,
In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir.
2000). A party’s unexplained failure to raise an argument
that was indisputably available below is perhaps the least
“exceptional” circumstance warranting our exercise of this
discretion. After all, we have emphasized that it “is the duty
of counsel to assist the court, as well as the client.” United
States v. Wright, 568 F.2d 142, 143 (9th Cir. 1978)
(emphasis added); see also Model Rules of Prof’l Conduct
Preamble (2018) (reinforcing that a lawyer is “an officer of
the legal system” with a “special responsibility for the
quality of justice”). Since Rule 44.1 makes the meaning of
foreign law a “question of law,” this duty extends to matters
of foreign law as well. Submission of reams of untranslated
foreign law and cases can hardly be a basis for criticizing the
district court’s ruling on a question of foreign law.
Our reading of Rule 44.1 is also consistent with this
court’s default choice of forum law in cases where a party’s
reliance on foreign law is merely superficial. See, e.g.,
United States v. Westinghouse Elec. Corp., 648 F.2d 642,
647 n.1 (9th Cir. 1981) (“Absent a showing to the contrary,
it is presumed that foreign law is the same as the law of the
forum.”). Where the parties present no authority, or
insufficient authority, regarding the meaning of foreign law,
we permit a court to “conclude that the parties have
acquiesced in the application of the law of the forum.”
Interpool Ltd. v. Char Yigh Marine (Panama) S.A., 890 F.2d
1453, 1458 (9th Cir. 1989). This default presumption
permits the court to “best do justice to the parties” by relying
on a body of law with which the court is most familiar. See
Restatement (Second) of Conflict of Laws § 136, cmt. h
22 G&G PRODUCTIONS V. RUSIC
(1971); id. (“In the absence of adequate information as to the
content of the otherwise applicable law, some courts have
applied the local law of the forum on the theory that there is
no other law before the court.”) (citing Bartsch v. M.G.M.,
Inc., 391 F.2d 150 (2d Cir. 1968) (neither party suggested
that applicable law differed from forum law), cert. denied,
393 U.S. 826 (1968)).
Finally, this view of Rule 44.1 is most consistent with
the cases on which de Fontbrune itself relied. In Universe
Sales, for example, we reversed the district court’s
determination of foreign law because the court ignored the
only submission of expert testimony in that case on the
meaning of foreign law. We noted that it is “neither novel
nor remarkable for a court to accept the uncontradicted
testimony of an expert to establish the relevant foreign law.”
182 F.3d at 1039; see also de Fontbrune, 838 F.3d at 997
(citing Universe Sales, 182 F.3d at 1039). In this case, that
is precisely what the district court did. After determining
that G&G’s “conclusion as to the tolling effect of Italian
court proceedings and demand letters [was] entirely
unsupported,” the district court adopted Rusic’s
interpretation of Italian law, which was well-supported by
both English translations of Italian authorities and expert
declarations.
In Twohy v. First National Bank of Chicago, 758 F.2d
1185 (1985), the Seventh Circuit noted that “[n]othing in
Rule 44.1 strictly requires a district judge to engage in
private research,” but the court noted that “[u]nder [the]
circumstances, . . . it would have been appropriate for the
[district] court to demand a more complete presentation by
counsel on the issue.” Id. at 1193 (emphasis added) (citation
and internal quotation marks omitted); see also de
Fontbrune, 838 F.3d at 997 (citing Twohy, 758 F.2d at
G&G PRODUCTIONS V. RUSIC 23
1193). Given Rusic’s uncontradicted and well-supported
submissions and arguments on the meaning of Italian law in
the district court, we cannot conclude that “it would have
been appropriate” for the court to demand more, or to engage
in further research on issues G&G failed to develop.
In short, in the district court, the parties did not raise
explicitly the issue of whether G&G’s claims accrued under
Italian law, and G&G failed to raise the issue of whether its
conversion claim is exempt from an Italian statute of
limitations. Under the circumstances, the district court did
not err in applying California law to determine when G&G’s
conversion claim accrued and that the claim is subject to a
ten-year statute of limitations in Italy.
B. Accrual under California Law
In California, three elements comprise a cause of action
for conversion. First, the plaintiff owned, possessed, or had
the right to possess an item of personal property. Second,
the defendant intentionally took wrongful possession of,
disposed of, and/or prevented the plaintiff from having
access to the property for a significant period of time. Third,
the plaintiff was harmed by the defendant’s actions. Mindys
Cosmetics, Inc. v. Dakar, 611 F.3d 590, 601 (9th Cir. 2010)
(citing Oakdale Vill. Group v. Fong, 43 Cal. App. 4th 539,
543–44 (1996)).
All three of these elements were plainly present as early
as 2000, when Gori first sent Rusic letters demanding the
painting’s return. At that point, Gori was aware of his
claimed ownership of the painting, of Rusic’s alleged taking
of the painting, and of any harm Gori suffered. Nothing
more was needed to enable Gori to file the same claim for
conversion that G&G now asserts against Rusic.
24 G&G PRODUCTIONS V. RUSIC
Section 338(c)(2) of the California Civil Procedure Code
provides that the “cause of action in the case of theft, as
described in Section 484 of the Penal Code, of an article of
historical, interpretive, scientific, or artistic significance is
not deemed to have accrued until the discovery of the
whereabouts of the article by the aggrieved party.” Cal. Civ.
Proc. Code § 338(c)(2). 8 We are not persuaded that
§ 338(c)(2) governs G&G’s conversion claim, because the
statute is one of several provisions concerned with “actions
for the specific recovery of personal property.” Id.
§ 338(c)(1) (emphasis added); id. § 338(c)(3)(A) (action for
“specific recovery” of a work of fine art from a “museum,
gallery, auctioneer, or dealer”); see California Mfrs. Ass’n v.
Pub. Utils. Comm’n, 24 Cal. 3d 836, 844 (1979) (“Words
must be construed in context, and statutes must be
harmonized both internally and with each other, to the extent
8
Section 484 of the Penal Code provides:
Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another,
or who shall fraudulently appropriate property which
has been entrusted to him or her, or who shall
knowingly and designedly, by any false or fraudulent
representation or pretense, defraud any other person of
money, labor or real or personal property, or who
causes or procures others to report falsely of his or her
wealth or mercantile character and by thus imposing
upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is
guilty of theft.
Cal. Penal Code § 484.
G&G PRODUCTIONS V. RUSIC 25
possible.”). G&G’s conversion claim, of course, is a cause
of action for damages.
But even if § 338(c)(2) does govern here, it does not aid
G&G. Section 338(c)(2)’s “discovery rule, whenever it
applies, incorporates the principle of constructive notice.”
Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007); cf. Cal.
Civ. Proc. Code § 338(c)(3)(A)(i) (action against a museum,
auctioneer, gallery, or dealer accrues upon “actual
discovery” of “[t]he identity and whereabouts of the work of
fine art”) (emphasis added). Gori has always maintained that
the painting disappeared from the residence that he shared
with Rusic and their children after the couple separated, and
Gori moved out, in 2000. Indeed, Gori’s position has always
been that Rusic was the only person who could have taken
the painting. Thus, Gori had constructive knowledge that the
painting was in Rusic’s possession as early as 2000.
Knowledge of the exact whereabouts of the painting was
unnecessary for Gori to file a conversion claim. 9
The cases on which G&G relies, requiring knowledge of
the specific “whereabouts” of the work of art, are
distinguishable. In each of those cases, the plaintiff was
suing a subsequent purchaser or donee of the work, not the
original thief, and the defendant was unknown to the
plaintiff until the plaintiff discovered the “whereabouts” of
the stolen work or works. Only then did the plaintiff have a
“complete and present cause of action,” Wallace, 549 U.S.
at 388. See, e.g., Von Saher, 592 F.3d at 969 (action against
9
Rusic’s repeated denials that she stole the painting have no bearing
on the accrual of G&G’s conversion claim. To hold otherwise would
effectively require the defendant in an action for conversion to admit
liability as a condition of accrual—a result that finds no support in either
common sense or the case law.
26 G&G PRODUCTIONS V. RUSIC
a museum for recovery of a painting originally
misappropriated by Nazi officials); Orkin, 487 F.3d at 741–
42 (action against a private purchaser for recovery of a
painting originally misappropriated by Nazi officials); Soc.
of Cal. Pioneers v. Baker, 43 Cal. App. 4th 774, 777–80
(1996) (action against a private purchaser for recovery of a
cane handle originally stolen by an employee of an antiques
dealer); Charash v. Oberlin College, 14 F.3d 291, 293–94
(6th Cir. 1994) (action against a private donee for recovery
of drawings originally misappropriated by an art dealer).
Because Gori had constructive knowledge that the
painting was in Rusic’s possession as early as 2000, his
cause of action accrued at that time for purposes of the Italian
and California statutes of limitations. Accordingly, Gori’s
claim expired at the latest in 2003 under California law and
at the latest in 2010 under Italian law. Because G&G did not
file the conversion claim until 2015, that claim is time-
barred. We affirm summary judgment in favor of Rusic on
G&G’s conversion claim.
II. REPLEVIN AND UNJUST ENRICHMENT CLAIMS
In contrast to G&G’s conversion claim, the district court
did not explicitly determine—under either Italian law or
California law—whether or when G&G’s claims for
replevin and unjust enrichment accrued. Neither the parties
nor the district court indicated whether the same California
“discovery rule” (including principles of “constructive
notice”) governing G&G’s conversion claim in California
would apply, or apply in the same way, to G&G’s claims for
replevin and unjust enrichment.
For example, G&G’s replevin claim seeks the specific
return of the painting. But the parties cannot even agree if
Rusic was ever in possession of the painting or who currently
G&G PRODUCTIONS V. RUSIC 27
has it. See Law v. Heiniger, 282 P.2d 607, 608–09 (Cal. Ct.
App. 1955) (noting that “an action to recover possession of
personal property will not lie unless at the time the action is
commenced defendant has the possession of the property or
the power to deliver it in satisfaction of a judgment for its
possession,” but “[a]n exception to the rule” is made “in
those cases (detinue) where possession had been in the
defendant but was wrongfully given to another”); see also
O’Keefe v. Snyder, 416 A.2d 862, 870 (N.J. 1980) (holding
that artist’s replevin action for paintings stolen thirty years
prior did not accrue until she discovered, or through the
exercise of reasonable diligence could have discovered, “the
identity of the possessor of the paintings”).
Indeed, the question of when a claim accrues can often
be a fact-intensive inquiry. Hells Canyon Pres. Council v.
U.S. Forest Serv., 403 F.3d 683, 691 (9th Cir. 2005). Here,
the potentially relevant facts are hotly disputed. G&G and
Rusic disagree, for example, about the original legal owner
of the painting, the current whereabouts of the painting, and
whether the painting was conveyed to a third party. With no
briefing or discussion by the district court on the appropriate
test—or tests—governing the accrual of each of G&G’s
claims under either Italian or California law, we cannot
determine with any confidence whether the resolution of
disputed facts is necessary to decide when the Italian statute
of limitations began to run on the remaining claims. We
therefore vacate the judgment of the district court with
respect to G&G’s replevin and unjust enrichment claims and
remand for answers to these questions.
III. DECLARATORY RELIEF
Finally, we vacate and remand the judgment of the
district court with respect to G&G’s claim for declaratory
relief. The district court held that “G&G’s request for a
28 G&G PRODUCTIONS V. RUSIC
declaration of the Painting’s ownership against Rusic is
moot because G&G has maintained in its pleadings and at
the summary judgment stage that Mazzara [sic], not Rusic,
now owns the Painting pursuant to the alleged settlement
agreement in 2011.” In doing so, the district court ignored
that the parties disagree as to the original owner of the
painting, meaning that even if Mazzaro acquired the painting
from Rusic as part of a settlement agreement, Rusic may
have lacked the authority to convey the painting to him in
the first place. Additionally, Mazzaro flatly denied
Ruffolo’s allegations that he currently has the painting,
which he dismissed as “a lie.” According to Mazzaro, he has
never met Ruffolo, has never lived in the apartment where
Ruffolo claimed to have seen the painting, has never had
possession of the painting, and has never claimed that he
obtained the painting from Rusic or any other party.
For this reason alone, it was improper to grant summary
judgment on G&G’s claim for declaratory relief. See Tolan
v. Colton, 134 S. Ct. 1861, 1866 (2014) (per curiam)
(“[C]ourts may not resolve genuine disputes of fact in favor
of the party seeking summary judgment.”). Therefore, we
need not address Rusic’s argument that G&G’s claim for
declaratory relief is constitutionally unripe for adjudication.
Rusic is free to make that argument on remand.
CONCLUSION
Frequently associated with the Neo-Expressionist
school, Jean-Michel Basquiat’s works have been described
by historians as “dodging the full impact of clarity like a
matador” and [k]eeping us in [a] state of half-knowing, of
mystery-within-familiarity” such that “we cannot quite
fathom the point they belabor.” Marc Mayer, Basquiat in
History, in Basquiat 50 (M. Mayer ed., 2005). In a fitting
G&G PRODUCTIONS V. RUSIC 29
example of life imitating art, clarity has not been a hallmark
of this litigation.
On remand, G&G and Rusic must heed our instruction
to properly brief the district court on the meaning of any
Italian law used to support their legal arguments. This
means providing the court with copies of Italian legal
authorities and English translations, and as appropriate,
scholarly treatises, declarations by qualified experts (if
desired by the court or parties), 10 or other relevant materials.
AFFIRMED in part, VACATED in part, and
REMANDED.
Each party shall bear its own costs on appeal.
DONATO, District Judge, concurring:
We have accepted without further opinion the decisions
that have, in effect, split the borrowing statute to apply
California law to determine when a claim accrues, and
foreign law to decide if the time to sue has lapsed. See, e.g.,
Cossman v. DaimlerChrysler Corp., 108 Cal. App. 4th 370,
376 (2003); Deirmenjian v. Deutsche Bank, No. CV 06-
00774 MMM (CWx), 2006 WL 4749756, at *32 n.163 (C.D.
Cal. Sept. 25, 2006) (“In Cossman, the California Court of
Appeal looked to Indiana law to determine whether a cause
10
Compare Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624,
628–31 (7th Cir. 2010), and id. at 631–38 (Posner, J., concurring)
(criticizing reliance on expert testimony in determining foreign law in
certain circumstances), with id. at 638–40 (Wood, J., concurring)
(disagreeing that “expert testimony is categorically inferior to published,
English-language materials”).
30 G&G PRODUCTIONS V. RUSIC
of action was time-barred. It applied California law,
however, to determine when the claim accrued.”).
There are several reasons why this approach may not be
sound. As a matter of statutory construction, it is arguably
at odds with the plain text of Section 361, which speaks in
terms of a cause of action that “has arisen in another state”
and “by the laws thereof” is time-barred. Cal. Civ. Pro. Code
§ 361. This language indicates that the question of accrual
should be determined under the law of the foreign
jurisdiction, just as the limitations period is so determined.
That is wholly consonant with the purpose of Section 361,
which is to prevent “residents of other states with claims that
are barred in the jurisdiction in which they arose” from
reviving an untimely claim in a California court. Cossman,
108 Cal. App. 4th at 376. It makes little sense to decide
whether a claim that arose in Arkansas is untimely by using
California law to fix the date of accrual. That would not be
a determination of whether a claim were stale “by the laws”
of Arkansas.
Another concern is that mixing and matching
jurisdictions in applying Section 361 is bound to lead to
unpalatable results. Let’s say a plaintiff sued in California
in 2015 on a claim that arose in Italy and accrued, when
measured under California law, in 2010. Let’s also say the
applicable Italian statute of limitations is 5 years. Under the
current case law, that claim would not be barred by the
borrowing statute. But what if under Italian law the claim
accrued in Italy in 2005 and so would have been barred
there? In that situation, the plaintiff would get away with
exactly what Section 361 is intended to prevent—suing in
California on a claim that would have been time-barred in
Italy.
G&G PRODUCTIONS V. RUSIC 31
Fortunately, that is not what happened here. In my view,
the district court made sure to analyze accrual under the laws
of both California and Italy, which turned out to be the same
and yielded the same accrual period of May or July 2000.
Rusic’s conversion claim was properly dismissed under
Italy’s 10-year statute of limitations whether the accrual was
measured under Italian law or California’s.
But the day will come when the laws of California and
the foreign jurisdiction do not align so neatly. In my view,
the date of accrual for Section 361 purposes should be
determined by the foreign jurisdiction at issue, rather than
California law. With these additional observations, I concur.