David Cassirer v. Thyssen-Bornemisza Collection

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,
ORDER
v. CERTIFYING
QUESTION TO
THYSSEN-BORNEMISZA THE CALIFORNIA
COLLECTION FOUNDATION, SUPREME
Defendant-Appellee. COURT
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 May 22, 2023
Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra
S. Ikuta, Circuit Judges.
Order;
Dissent by Judge Bea
2 CASSIRER V. TBC
SUMMARY*
Certification of Question to State Supreme Court
In an action brought by the Cassirer family under the
Foreign Sovereign Immunities Act, seeking the return of a
Pissarro painting stolen by the Nazis and now in the
possession of Thyssen-Bornemisza Collection Foundation
(TBC), an entity created and controlled by the Kingdom of
Spain, the panel certified to the California Supreme Court
the following question concerning the third step in
California’s governmental interest choice-of-law test:
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.
Applying the first step of California’s governmental
interest test, the panel concluded that the issue in question
was a question of personal property law: whether TBC or the
Cassirers own the painting; and the relevant law of the two
jurisdictions of Spain and California was
different. Applying the second step of the test, the panel
concluded that a true conflict existed between Spanish and
California law, meaning that each jurisdiction had a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CASSIRER V. TBC 3
legitimate interest in the application of its law and
policy. The third step of the test required application of the
law of the jurisdiction whose interest would be the more
impaired if its law were not applied. The panel concluded
that it needed the California Supreme Court’s guidance on
how to apply the third step because the existing California
caselaw applying the comparative impairment analysis to
tortious, and typically physical, injuries did not provide
guidance in the context of property law, where it was
necessary to determine which jurisdiction’s interests would
be more impaired when the issue was one of allocating title
to stolen property.
The panel wrote that, in deciding to exercise its
discretion to invoke the certification process, it considered
that the case raised important, unresolved public policy
ramifications of broad application regarding the ownership
of stolen property, and that the issues were particularly
thorny and substantial, given that stolen property cases may
involve two innocent claimants to a specific piece of valued
property which must be awarded to one claimant or the
other. Further, in the spirit of comity and federalism, the
panel recognized that the California legislature has
expressed a particular policy interest in stolen art.
Dissenting from the certification order, Judge Bea wrote
that, in his view, application of California’s three-step
choice-of-law test to the facts of this case was
straightforward, and Spanish law applied. Judge Bea wrote
that improper certification harms state courts, strains the
comity between federal and state courts, harms federal
courts by encouraging forum shopping bids, and harms
litigants through delays.
4 CASSIRER V. TBC
COUNSEL
David Boies (argued), Boies Schiller Flexner LLP, Armonk,
New York; Stephen N. Zack, Andrew S. Brenner, Rossana
Baeza, Boies Schiller Flexner LLP, Miami, Florida; Scott E.
Gant, Boies Schiller Flexner LLP, Washington, D.C.; David
A. Barrett, Boies Schiller Flexner LLP, New York, New
York; Laura W. Brill and Nicholas Daum, Kendall Brill &
Kelly LLP, Los Angeles, California; Samuel J. Dubbin,
Dubbin & Kravetz LLP, Coral Gables, Florida; Devin
Freedman, Freedmand Normand Friedland LLP, Miami,
Florida; for Plaintiffs-Appellants.
Thaddeus J. Stauber (argued), Sarah Erickson André, Aaron
M. Brian, and Irene Scholl-Tatevosyan, Nixon Peabody
LLP, Los Angeles, California, for Defendant-Appellee.
Bernard M. Cremades Román and Patrick T. Byrne, B.
Cremades & Asociados, Madrid, Spain, for Amici Curiae
Comunidad Judía de Madrid and Federacíon de
Comunidades Judías de España.
Amelia L.B. Sargent and Kirby Hsu, Willenken LLP, Los
Angeles, California, for Amicus Curiae the Kingdom of
Spain.
Catherine Z. Ysrael and Ben Conway, 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 Amicus Curiae the States of California.
CASSIRER V. TBC 5
ORDER
We ask the California Supreme Court to resolve a
question of state law: how the comparative impairment
analysis, the third step in California’s choice-of-law test,
applies in a situation where, under the laws of California, 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), while under the conflicting laws of
Spain, a person may acquire title to a stolen item of personal
property by means of adverse possession. This question
requires the application of the “choice of law considerations
most relevant to property cases.” Cassirer v. Thyssen-
Bornemisza Collection Found., 862 F.3d 951, 962 (9th Cir.
2017) (Cassirer III).
While California has applied the comparative
impairment analysis in many cases involving California
residents who were physically injured by the conduct of out-
of-state defendants, we have found no California precedent
applying this analysis in a case involving the allocation of
title to stolen personal property, and the factors identified in
other choice-of-law cases are not readily applicable.
“We invoke the certification process only after careful
consideration and do not do so lightly.” Kremen v. Cohen,
325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether
to exercise our discretion, we consider: (1) whether the
question presents important public policy ramifications yet
unresolved by the state court; (2) whether the issue is new,
substantial, and of broad application; (3) the state court’s
caseload; and (4) the spirit of comity and federalism.”
Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1072 (9th Cir.
2019) (cleaned up). This case raises important, unresolved
6 CASSIRER V. TBC
public policy ramifications of broad application regarding
the ownership of stolen property, and the issues here are
particularly thorny and substantial, given that stolen
property cases may involve two innocent claimants to a
specific piece of valued property which must be awarded to
one claimant or the other. Further, in the spirit of comity and
federalism, we recognize that the California legislature has
expressed a particular policy interest in stolen art. See Von
Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 958, 964–65 (9th Cir. 2010), cert. denied, 564 U.S.
1037 (2011); see also Cal. Code Civ. Proc. § 338(c)(3)(A).
Therefore, after considering these factors, we exercise
our discretion to certify this question to the California
Supreme Court. Pursuant to Rule 8.548 of the California
Rules of Court, we provide the following information.
I
We first summarize the material facts and procedural
history.1 At issue in this case is the ownership of Camille
Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain
(the Painting). Paul Cassirer, a member of a prominent
German Jewish family, purchased the Painting in 1900.
Cassirer V, 142 S. Ct. at 1506. In 1939, “[a]fter the Nazis
came to power in Germany,” Lilly Cassirer, Paul Cassirer’s
successor-in-interest, surrendered the Painting “to obtain an
1
The facts are more fully set forth in four Ninth Circuit opinions,
Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010) (en banc),
cert. denied 564 U.S. 1037 (2011) (Cassirer I); Cassirer v. Thyssen-
Bornemisza Collection Found., 737 F.3d 613 (9th Cir. 2013) (Cassirer
II); Cassirer III, 862 F.3d 951; Cassirer v. Thyssen-Bornemisza
Collection Found., 824 F. App’x 452, 454–55 (9th Cir. 2020) (Cassirer
IV), and a Supreme Court opinion, Cassirer v. Thyssen-Bornemisza
Collection Found., 142 S. Ct. 1502 (2022) (Cassirer V).
CASSIRER V. TBC 7
exit visa.” Id. at 1506. The parties agree that the Painting
“was forcibly taken from Lilly.” Cassirer III, 862 F.3d at
955.2
After the Painting was confiscated, it was sold at a Nazi
government auction in Dusseldorf and then sold again at a
second auction in Berlin. Id. at 956. In 1951, a Beverly Hills
art gallery arranged to move the Painting to California. Id.From there, it was sold first to a California art collector, and
then to another collector in St. Louis, id., where it remained
from 1952 to 1976, Cassirer V, 142 S. Ct. at 1506. In 1976,
Baron Hans Heinrich Thyssen-Bornemisza purchased the
Painting through a gallery in New York, and kept the
Painting in his residence in Switzerland until 1992. Cassirer
V, 142 S. Ct. at 1506; Cassirer III, 861 F.3d at 974. In 1988,
the Baron agreed to loan his art collection, including the
Painting, to the Thyssen-Bornemisza Collection Foundation
(TBC), an entity created and controlled by the Kingdom of
Spain. Cassirer III, 862 F.3d at 957. In 1993, the Spanish
government bought the Baron’s collection. Id. “In addition
to financing the $300 million-plus purchase, the Spanish
Government provided [TBC] with a palace in Madrid to
serve as a museum for the collection.” Cassirer V, 142 S.
Ct. at 1506.
Before entering into the acquisition agreement with the
Baron, the Spanish government investigated title to the
work. Cassirer III, 862 F.3d at 957. As part of the
acquisition agreement, the Baron represented to TBC that an
entity he controlled was the legal owner of the artworks in
2
Although Lilly Cassirer later accepted a settlement agreement, we
previously concluded that as a matter of German law, she “did not waive
her right to physical restitution of the Painting” by doing so. Cassirer
III, 862 F.3d at 978. This issue is not on appeal.
8 CASSIRER V. TBC
the collection, and that TBC would become “the absolute
beneficial owner” of those artworks, including the Painting.
Cassirer v. Thyssen-Bornemisza Collection Found., 2019
WL 13240413, at *11 (C.D. Cal. Apr. 30, 2019); see also
Cassirer IV, 824 F. App’x at 457. At TBC’s request, the
Baron agreed to pledge $10 million for three years as
security for its performance of its agreement. Id.; see also
Cassirer IV, 824 F. App’x at 457. The purpose of this pledge
was to protect TBC and the Kingdom of Spain from the risk
that one or more paintings could have a title issue, and the
three-year term was intended to correspond to Spain’s three-
year good faith acquisitive prescription period as provided
in Article 1955 of the Spanish Civil Code. Id. In 1999,
Claude Cassirer, Lilly Cassirer’s grandson and successor-in-
interest and a California resident, became aware of the
Painting’s location after TBC’s museum in Madrid
published a catalogue of its holdings. Cassirer V, 142 S. Ct.
at 1506.
In 2005, Claude Cassirer sued TBC in district court in
California under the Foreign Sovereign Immunities Act
(FSIA), 28 U.S.C. § 1330. Cassirer I, 616 F.3d at 1023. In
2010, we held en banc that TBC was not immune from suit
under the FSIA, and the lawsuit could go forward. Id. at
1022. Claude Cassirer passed away shortly after our en banc
ruling, and his heirs (the Cassirers) were substituted as
plaintiffs. Cassirer V, 142 S. Ct. at 1507. The district court
then granted TBC’s motion to dismiss the Cassirers’
complaint as barred by the statute of limitations. The court
reasoned that Section 338(c)(3) of the California Code of
Civil Procedure, which retroactively extended the statute of
limitations for claims seeking the recovery of stolen fine art,
was preempted under the foreign affairs doctrine, and
therefore did not save the Cassirers’ claim. Cassirer v.
CASSIRER V. TBC 9
Thyssen-Bornemisza Collection Found., 2012 WL
12875771, at *2 (C.D. Cal. May 24, 2012). We reversed that
portion of the district court’s ruling and remanded for further
proceedings. Cassirer II, 737 F.3d at 621.
On remand, the Cassirers moved for an order declaring
that the law of California, not the law of Spain, governed the
merits of their action. The district court recognized that
before making this determination, it first had to determine
whether it should apply California or federal common law
choice-of-law rules. Cassirer v. Thyssen-Bornemisza
Collection Found., 153 F. Supp. 3d 1148, 1154 (C.D. Cal.
2015). The district court applied our then-current precedent,
which held that federal common law choice-of-law rules
governed a case arising under the FSIA. Id. (citing
Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d
777, 782 (9th Cir. 1991)). Applying federal choice-of-law
rules, the district court determined that Spanish law applied.
Id. at 1155. “[O]ut of an abundance of caution,” id. at 1154,
the district court also applied California choice-of-law rules,
and reached the same conclusion, id. at 1160. Applying
Spanish law, the district court ruled that TBC was the
rightful owner of the Painting, pursuant to Spain’s law of
acquisitive prescription, as stated in Article 1955 of the
Spanish Civil Code. Id. at 1160.
On appeal, we agreed that federal choice-of-law rules
applied, and declined to consider how California choice-of-
law rules would apply to this case. Cassirer III, 862 F.3d at961–62. Under the federal choice-of-law rules, we
recognized that California and Spain “have chosen different
rules for movable property.” Id. at 964. After resolving the
conflict between California’s rule (that “thieves cannot pass
good title to anyone,” id. at 960) and Spain’s rule (that title
to chattels may pass through extended possession), we
10 CASSIRER V. TBC
decided that Spanish law applied. Id. at 963. 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. As we explained, Article 1955 provides that
“[o]wnership of movable property prescribes by three years
of uninterrupted possession in good faith,” while
“[o]wnership of movable property also prescribes by six
years of uninterrupted possession, without any other
condition.” Id. at 965 (quoting Ministerio de Justicia, Spain
Civil Code 220 (2009) (English translation)). But we
determined that acquisitive prescription under Article 1955
is modified by Article 1956, which states: “Movable
property purloined or stolen may not prescribe in the
possession of those who purloined or stole it, or their
accomplices or accessories [encubridores], until the crime or
misdemeanor or its sentence, and the action to claim civil
liability arising therefrom, should have become barred by the
statute of limitations.” Id. at 966 (quoting Ministerio de
Justicia, Spain Civil Code 220 (2009) (English translation)).
This meant that, “as to any principals, accomplices, or
accessories (encubridores) to a robbery or theft, Article 1956
extends the period of possession necessary to vest title to the
time prescribed by Article 1955 plus the statute of
limitations on the original crime and the action to claim civil
liability.” Id. “An encubridor within the meaning of Article
1956 can include someone who, with knowledge that the
goods had been stolen from the rightful owner, received
stolen goods for his personal benefit.” Id. at 981. We
concluded that “there is a genuine dispute of material fact
whether TBC knew the Painting had been stolen when TBC
acquired the Painting from the Baron,” and therefore there
was a genuine issue of material fact as to whether TBC was
CASSIRER V. TBC 11
an encubridor, as that term was used in Article 1956. Id. If
TBC were an encubridor, it would not have acquired title to
the Painting through acquisitive prescription until 2019, and
so the period for acquisitive prescription had not yet run
when the Cassirers brought their action against TBC. Id. at
966. Therefore, we reversed the district court and remanded
the action for further proceedings. Id. at 981.
On remand, the district court conducted an extensive
bench trial and concluded that TBC was not an encubridor
because it did not have actual knowledge that the Painting
was stolen when it purchased the Painting from the Baron in
1993. Cassirer v. Thyssen-Bornemisza Collection Found.,
2019 WL 13240413, at *20–22 (C.D. Cal. Apr. 30, 2019).
Therefore, the district court concluded, TBC had acquired
title to the Painting pursuant to Spain’s law of acquisitive
prescription before the Cassirers brought their action. Id. at
*22. We affirmed. Cassirer IV, 824 F. App’x at 454–55.
The Cassirers petitioned for certiorari on the question
whether a federal court hearing state-law claims brought
under the FSIA may apply federal common law to determine
what substantive law governs the claims at issue. Cassirer
V, 142 S. Ct. at 1507. 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.” Id. at
1508–09. Because we had applied the federal common law
rule, the Supreme Court vacated our judgment and remanded
for application of California’s “standard rule.” Id. at 1508,
1510.
On remand from the Supreme Court, we must apply
California’s choice-of-law rule to determine whether
Spanish or California law applies to this action.
12 CASSIRER V. TBC
II
The California Supreme Court has indicated that the
governmental interest test is “the appropriate general
methodology for resolving choice-of-law questions” in
California. McCann v. Foster Wheeler LLC, 48 Cal. 4th 68,
83 (2010). The parties agree that California’s governmental
interest test is the appropriate means for determining
whether Spanish or California law applies to the Cassirers’
action. The California Supreme Court has described the
governmental interest test as involving three steps. First, 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 v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107
(2006). Second, if the law is different, “the court 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. at 107–08. Finally, if
there is a true conflict, the court “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. at 108(citation and quotation marks omitted). After conducting
this comparative impairment analysis, the court “then
ultimately applies the law of the state whose interest would
be the more impaired if its law were not applied.” Id. We
have concluded that we need the California Supreme Court’s
guidance on how to apply the third step of this test to the case
before us, as explained below.
CASSIRER V. TBC 13
A
Applying the first step of this test, “the particular issue
in question” is a question of personal property law: whether
TBC or the Cassirers own the Painting, which was forcibly
taken from the Cassirers by the Nazis, but which has been
held in a Spanish museum by TBC since 1993 without actual
knowledge that the Painting was stolen when purchased.
The relevant Spanish law is set forth in Article 1955 of
the Spanish Civil Code, which provides that ownership in
personal property vests after three years of uninterrupted
good faith possession of that property or six years of
uninterrupted possession, even absent good faith. Cassirer
III, 862 F.3d at 965.3
By contrast, “[u]nder California law, thieves cannot pass
good title to anyone, including a good faith purchaser.” Id.
at 960. The California Supreme Court has stated that:
the seller of ordinary property can transfer to
the buyer no better title than he has himself,
and that if such property has been lost by the
true owner, or stolen from him, one who buys
from the finder or from the thief, though he
pays full value and buys in good faith,
without notice, obtains no title as against the
true owner.
Crocker Nat’l Bank of S.F. v. Byrne & McDonnell, 178 Cal.
329, 332 (1918); see also Suburban Motors, Inc. v. State
Farm Mut. Auto Ins. Co., 218 Cal. App. 3d 1354, 1359
3
Article 1956 of the Spanish Civil Code, which extends the period for
acquisitive prescription, is not applicable here. See supra 8–9.
14 CASSIRER V. TBC
(1990) (reaffirming and applying “the common law rule that
good title cannot pass from a thief”). In light of this
principle, California law “imposes a continuing affirmative
duty to restore stolen property to its rightful owner,” and
dictates that “[s]tolen property remains stolen property, no
matter how many years have transpired from the date of the
theft.” Naftzger v. Am. Numismatic Soc’y, 42 Cal. App. 4th
421, 432 (1996), as modified on denial of reh’g (Mar. 4,
1996); People v. Hernandez, 172 Cal. App. 4th 715, 722
(2009) (stating that because “a thief cannot pass title to
stolen property[,] . . . the true owner can reclaim the property
from whoever has possession”). This common law rule is
consistent with the California Commercial Code (the version
of the Uniform Commercial Code enacted in California),
which states that a purchaser can acquire only the “title
which his transferor had or had power to transfer,” and a
thief lacks any transferable title. Suburban Motors, 218 Cal.
App. 3d at 1359 (citing Cal. Com. Code § 2403(1)); see also
CRS Recovery, Inc. v. Laxton, 600 F.3d 1138, 1145 (9th Cir.
2010) (stating that, under Section 2403(1), a “purchaser
whose vendor obtained title by theft” cannot obtain good
title “because an involuntary transfer results in a void title”).
California has not adopted the Spanish rule “that title to
chattels may pass through qualified, extended possession.”
Cassirer III, 862 F.3d at 961 n.8. To the contrary, “no
California case has been cited in support of” applying
adverse possession law to personal property, Soc’y of Cal.
Pioneers v. Baker, 43 Cal. App. 4th 774, 785 n.13 (1996),
and the California Supreme Court has yet “to consider the
question” whether “a title of adverse possession or
CASSIRER V. TBC 15
prescription . . . should be applied to personal property,” S.F.
Credit Clearing House v. Wells, 196 Cal. 701, 707 (1925).4
As we previously determined, the rules adopted by Spain
and California on title to stolen property are in conflict. See
Cassirer III, 862 F.3d at 960. We noted that,
notwithstanding a Spanish Civil Code provision indicating
that a person can claim stolen personal property from its
possessor, “the Spanish Civil Code must be read in its
entirety, including those articles which provide that title to
chattels may pass through qualified, extended possession,
such as Article 1955.” Id. at 961 n.8. Because the Spanish
rules, taken as a whole, conflicted with California’s rule, we
4
Although California allows adverse possession of real property, Dissent
43–44 & 44 n.5, n.6, those laws are not relevant here, because real
property is fundamentally different from personal property, see Real Est.
Analytics, LLC v. Vallas, 160 Cal. App. 4th 463, 476 (2008), and the
considerations underlying the adverse possession of land are generally
inapplicable to chattels, see O’Keeffe v. Snyder, 416 A.2d 862, 871 (N.J.
1980); see also Steven A. Bibas, The Case Against Statutes of
Limitations for Stolen Art, 103 YALE L.J. 2437, 2438 (1994) (“Adverse
possession, a doctrine that works well for real estate, is not suited to the
very different realm of movable, concealable personal property.”). For
instance, an owner of real property “knows or should know where his
property is located and reasonably can be expected to be aware of open,
notorious, visible, hostile, continuous acts of possession on it.”
O’Keeffe, 416 A.2d at 873. By contrast, the doctrine of adverse
possession is a poor fit for “works of art,” which are “readily moved and
easily concealed” and may be enjoyed by owners “in the privacy of their
homes.” Id. in at 871; see also Patty Gerstenblith, The Adverse
Possession of Personal Property, 37 BUFF. L. REV. 119, 124 (1989)
(“The fundamental problem is that when dealing with personal property,
unlike real property, the adverse possessor can use the property as would
a true owner (that is, openly, notoriously, visibly), and yet the owner—
even the diligent owner—may never in fact receive notice of the adverse
claim.”).
16 CASSIRER V. TBC
concluded that it was necessary to resolve that conflict,
which we proceeded to do under the federal choice-of-law
rules. Id. at 960–64.5
The Supreme Court subsequently confirmed our
conclusion. In Cassirer V, the Court recognized that “the
substantive law differed” when, in one jurisdiction, “the
plaintiff would recover the art, and in the other not.” 142 S.
Ct. at 1508. Faced with the question “whose property law
(Spain’s? California’s?) should govern the suit, and thus
determine the [P]ainting’s rightful owner,” the Court found
it necessary to identify and apply the correct choice-of-law
rule. Id. at 1507. And other courts have repeatedly applied
choice-of-law principles to resolve a conflict between a
jurisdiction that applies adverse possession principles to
chattels and a competing jurisdiction that adheres to the rule
that a thief cannot pass good title. See, e.g.,
Kunstsammlungen Zu Weimar v. Elicofon, 536 F. Supp. 829,
846 (E.D.N.Y. 1981) (holding that the conflict between the
German law of adverse possession of chattels (“Ersitzung”)
and New York’s rule “that a purchaser cannot acquire good
title from a thief” required a choice-of-law analysis to
resolve dispute over ownership of paintings), aff’d 678 F.2d
1150 (2d Cir. 1982); see also Bakalar v. Vavra, 619 F.3d
136, 140–41, 143–44 (2d Cir. 2010) (holding that the
conflict between New York’s rule and Article 934 of the
Swiss Code, under which “a buyer acting in good faith will
acquire valid title to stolen property after a period of five
years,” required an analysis of “the appropriate choice of
5
The dissent’s argument that there is only a “false conflict” between the
laws of California and Spain regarding the ownership of stolen property,
Dissent 39–40, 52 n.12, is therefore contrary to the law of the case.
CASSIRER V. TBC 17
law” to achieve “the resolution of an ownership dispute in
the Drawing”) (emphasis omitted).6
Because Spanish law expressly recognizes “that title to
chattels may pass through qualified, extended possession,”
Cassirer III, 862 F.3d at 961 n.8, while no California judicial
decision or statute has ever authorized such a practice, and
California law has made clear that “[s]tolen property remains
stolen property, no matter how many years have transpired
from the date of the theft,” Naftzger, 42 Cal. App. 4th at 432,
the relevant laws of these jurisdictions are different “with
regard to the particular issue in question,” Kearney, 39 Cal.
4th at 107.
We recognize that the dissent’s opposition to certifying
this question is based on its deep-rooted conviction that
California’s rule (that a thief cannot pass good title) is not in
conflict with Spain’s rule (that a recipient of stolen property
can obtain good title when the time period for acquisitive
prescription has passed), and therefore there is only a “false
conflict” between California and Spanish law. Dissent 39–
40, 52 n.12. The dissent bases this conclusion on an
elaborate chain of reasoning, starting with a cryptic 1872
statute, Section 1007 of the California Civil Code, that has
6
Commentators have also recognized that, “[w]hen the owner (or his or
her descendants) tries to reclaim stolen art from a bona fide purchaser,
choice of law can make an enormous difference, because some states
give the bona fide purchaser strong rights (usually through the doctrine
of adverse possession) while others limit the operation of adverse
possession,” and that “[s]uch disputes are difficult” in light of states’
“widely divergent laws applicable to such situations.” Daniel M.
Klerman, Jurisdiction, Choice of Law and Property, Univ. of S. Cal. Law
School Legal Studies Working Paper Series, Paper 112 at 3, 11 (2016),
available at https://law.bepress.com/cgi/viewcontent.cgi?referer=&https
redir=1&article=1250&context=usclwps-lss.
18 CASSIRER V. TBC
never been applied to adverse possession of personal
property, Dissent 38, moving to a California court of appeal
case indicating that the question whether the doctrine of
adverse possession applies to personal property has not been
settled, Dissent 39, 47 n.8, 49 (citing Soc’y of Cal. Pioneers,
43 Cal. App. 4th at 785 n.13), and then attempting to
distinguish another California court of appeal case stating
that “[s]tolen property remains stolen property, no matter
how many years have transpired from the date of the theft.”
Dissent 45–48 & 45 n.7, 47 n.8 (citing Naftzger, 42 Cal.
App. 4th 421).7 The dissent’s attenuated analysis and
argumentation only underscore that this is an undecided area
of California law, and principles of comity and federalism
render it more appropriate to ask the California Supreme
Court to weigh in rather than for federal judges to engage in
competing interpretations of state law. See L.A. All. For
Survival v. City of Los Angeles, 22 Cal. 4th 352, 360–61
(2000) (stating that “the benefits of certification” include
“allow[ing] federal courts to avoid mischaracterizing state
law” and “strengthen[ing] the primacy of the state supreme
7
In making this argument, the dissent also relies on Blizzard Energy, Inc.
v. Schaefers, which held that there was no conflict between California
and Kansas law where California applied the doctrine of “reverse veil
piercing” (i.e., allowing a plaintiff injured by an individual to sue the
individual’s alter ego corporate entity) and Kansas had not addressed that
doctrine. Dissent 39–41 & 40 n.2, 41 n.3 (citing 71 Cal. App. 5th 832,
855–56 (2021), rev. denied (Feb. 16, 2022)). Blizzard Energy is
inapplicable here, however, because the parties did not argue that the
doctrine of reverse veil piercing was inconsistent with any other Kansas
doctrine, whereas here there is a conflict between California and Spanish
law regarding title to stolen property, and only the dissent asserts
otherwise.
CASSIRER V. TBC 19
court in interpreting state law by giving it the first
opportunity to conclusively decide an issue”).
For purposes of this order, we do not address the
question whether California courts would apply the
principles of adverse possession to personal property in
some future case. Nor, contrary to the dissent, do we assert
that “California law vests theft victims with eternal,
supercharged title that trumps any and all future civil law
claims to title.” Dissent 47. Rather, we simply follow the
Supreme Court in noting that, under California law as it
currently stands, “the plaintiff would recover the art” while
under Spanish law, the plaintiff would not. Cassirer V, 142
S. Ct. at 1508. The Supreme Court recognized that this
difference created a conflict that required the application of
the correct choice-of-law rule. Id. at 1507. We therefore
also recognize the conflict, and explain why we need the
California Supreme Court’s help to resolve it.
B
The second question is whether a true conflict exists
between Spanish and California law. A true conflict exists
when each jurisdiction has “a legitimate interest in the
application of its law and policy.” Hurtado v. Superior Ct.,
11 Cal. 3d 574, 580 (1974). “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.” Id.We have previously recognized that both Spain and
California have an interest in upholding their basic policies
underlying property law. In Cassirer III, we explained that
“[t]he property laws of both Spain and California seek to
create certainty of title, discourage theft, and encourage
owners of stolen property to seek return of their property in
20 CASSIRER V. TBC
a timely fashion,” and noted that, “[a]lthough these states
have chosen different rules for movable property, both sets
of rules further the basic polices underlying property law.”
862 F.3d at 964.
The California Supreme Court has recognized “that a
jurisdiction ordinarily has the predominant interest in
regulating conduct that occurs within its borders,” McCann,
48 Cal. 4th at 97–98 (citation and quotation marks omitted),
as well as “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,” id. at 98; see also Cooper v. Tokyo Elec. Power Co.
Holdings, Inc., 960 F.3d 549, 562 (9th Cir. 2020). In light
of this rule, both Spain and California have a legitimate
interest in applying their respective laws on ownership of
stolen personal property.
Spain has an interest in regulating conduct that occurs
within its borders, including applying its long-standing rule
governing acquisitive prescription of personal property,
which 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. The Kingdom of Spain
argues in an amicus brief that “[t]he hypothetical
enforcement of the laws of another state to determine the
validity of the title of ownership of a property purchased by
a Spanish person under a contract of sale entered in Spain,
on a property located in Spain, . . . would unduly infringe on
the interest of the Kingdom of Spain in legislating on the
ownership of property located in its territory.” In this case,
for instance, Spain relied on the principle of acquisitive
prescription in requiring a security pledge from the Baron
CASSIRER V. TBC 21
that extended only for the three-year acquisitive prescription
period set forth in Article 1955 of the Spanish Civil Code.
Cassirer IV, 824 F. App’x at 457.
California also has a legitimate interest in the application
of its law and policy in this case. Generally, California
residents have an expectation that a bona fide purchaser for
value of movable property under a “chain of title traceable
to the thief,” Suburban Motors, 218 Cal. App. 3d at 1357,
does not have title to that property, id. at 1359, “because a
thief cannot transfer valid title,” Naftzger, 42 Cal. App. 4th
at 428. More specific to this situation, California has twice
expressed its policy interest in personal property comprised
of fine art works stolen by the Nazis. In 2002, California
enacted Section 354.3 of the California Code Civil of
Procedure, which provided that any owner of “Holocaust-era
artwork” could bring an action to recover the art from a listed
entity in any state superior court, and extended the statute of
limitations for bringing such a suit. Von Saher, 592 F.3d at
958. We stated that “California’s real purpose was to create
a friendly forum for litigating Holocaust restitution claims,
open to anyone in the world to sue a museum or gallery
located within or without the state.” Id. at 965. Although
we struck down Section 354.3 as preempted under the
Executive Branch’s foreign affairs authority, id. at 968, we
acknowledged that “California certainly has a legitimate
interest in regulating the museums and galleries operating
within its borders, and preventing them from trading in and
displaying Nazi-looted art,” id. at 965. After we invalidated
Section 354.3 on field preemption grounds, California
immediately enacted Section 338(c)(3)(A) of the California
Code of Civil Procedure, which extended the statute of
limitations to bring an action to recover “a work of fine art”
in an action “brought against a museum, gallery, auctioneer,
22 CASSIRER V. TBC
or dealer, in the case of an unlawful taking or theft . . .
including a taking or theft by means of fraud or duress.” Cal.
Code Civ. Proc. § 338(c)(3)(A). Indeed, we previously
noted that California’s creation of “a specific statute of
limitations for cases involving an unlawful taking or theft of
fine art” was evidence of California’s “strong interest in
protecting the rightful owners of fine arts who are
dispossessed of their property.” Cassirer III, 862 F.3d at
963. Accordingly, California has shown it has an interest in
enabling residents to recover stolen personal property, even
when it is in the hands of good faith purchasers, and a
particular interest when that stolen property is Holocaust-era
art.8
Because both Spain and California have legitimate
interests in the application of their laws, we are faced with a
true conflict.
C
“Because the applicable laws of [Spain] and California
differ and each state has an interest in having its law applied
under the circumstances of the present case, we are faced
with a ‘true conflict,’” and therefore, “the so-called
‘comparative impairment’ approach” is applicable.
McCann, 48 Cal. 4th at 96.
8
Because California adheres to the rule that one who acquires personal
property under a “chain of title traceable to [a] thief” does not take good
title to that property, Suburban Motors, 218 Cal. App. 3d at 1357, the
dissent errs in arguing that “California cannot have a legitimate interest
in applying its absence of law regarding adverse possession of personal
property.” Dissent 49. Indeed, the same argument would apply to Spain,
which does not have a real interest in applying its absence of a law that
“stolen property remains stolen property, no matter how many years have
transpired from the date of the theft.” Naftzger, 42 Cal. App. 4th at 432.
CASSIRER V. TBC 23
A comparative impairment analysis requires courts to
“carefully evaluate and compare 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. at 96–97 (cleaned up). In conducting this
evaluation, a court’s task “is not to determine whether the
[foreign jurisdiction] rule or the California rule is the better
or worthier rule, but rather 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.” Id. at 97; see also Kearney, 39 Cal. 4th at 124(describing the comparative impairment process as “an
accommodation of conflicting state policies, attempting, to
the extent practicable, to achieve the maximum attainment
of underlying purpose by all governmental entities”)
(cleaned up).
In considering how California would apply the
comparative impairment analysis to allocate title to stolen
personal property, we are mindful of the distinction between
the issues raised by tort law and those raised by property law.
In Cassirer III, we considered this distinction and chose to
apply the “choice of law considerations most relevant to
property cases,” rather than tort cases. 862 F.3d at 962. We
explained that, “[i]n contrast to torts, protection of the
justified expectations of the parties is of considerable
importance in the field of property,” and noted that “the
courts of Spain would apply their own property laws to
adjudicate TBC’s claim that it owns the Painting because
Spain uses a law of the situs rule for movable property.” Id.
at 963 (alteration in original and citations omitted).
Therefore, Cassirer III relied on the Second Restatement of
24 CASSIRER V. TBC
the Conflict of Laws’s “specialized rule for a claim of
acquisition by adverse possession or prescription of an
interest in chattel,” which looked to the “local law of the
state where the chattel was at the time the transfer is claimed
to have taken place.” Id. (quoting Second Restatement §
246). Continuing this distinction between personal property
and tort law, we rejected the Cassirers’ objections to
application of Spain’s law of the situs rule because the cases
on which they relied were “cases in which courts have
abolished the law of the situs rule for tort actions,” as distinct
from the property dispute that was before us. Id. at 964
(emphasis in original). The Supreme Court subsequently
confirmed that this case involves “a property-law dispute.”
Cassirer V, 142 S. Ct. at 1510.
While federal common law provided guidance on how
its choice-of-law rules should be applied to property cases in
Cassirer III, 862 F.3d at 960–63, California’s choice-of-law
rules do not do so. This is because California’s application
of the comparative impairment analysis has been largely
limited to tort actions where a California resident, who has
suffered a physical injury due to the negligent conduct of a
defendant in a different jurisdiction, brings an action to
impose liability on that defendant. See, e.g., McCann, 48
Cal. 4th at 95; Castro v. Budget Rent-A-Car Sys., Inc., 154
Cal. App. 4th 1162, 1181–82 (2007). The parties (and the
dissent) do not cite, nor have we found, any California cases
applying the comparative impairment analysis to the
question at issue here—the allocation of title to stolen
property.
Our review of the comparative impairment cases in the
tort context shows they do not provide the “choice of law
considerations most relevant to property cases.” Cassirer
III, 862 F.3d at 962. In evaluating which state’s interest
CASSIRER V. TBC 25
would be more impaired in this context, California courts
have considered factors that are generally more applicable to
allocating liability in tort cases as opposed to in property
cases, including: (1) where the injurious conduct occurred;
(2) who exposed themselves to risk in the foreign
jurisdiction; (3) whether a law imposing liability for injury
is antique or progressive; and (4) whether the conflicting
interests of the jurisdictions in imposing liability can be
accommodated.
The most important factor in the tort context is the situs
where the tortious conduct and physical injury occurred. In
most cases, both occur in the same location. In McCann, the
California Supreme Court considered a choice-of-law issue
raised by a lawsuit filed in California by a worker injured
due to his exposure to asbestos-containing material in
Oklahoma. 48 Cal. 4th at 74. Applying the comparative
impairment analysis, the California Supreme Court
determined that because the defendant’s conduct occurred in
Oklahoma, and the plaintiff’s exposure to asbestos and
injury occurred in Oklahoma, Oklahoma’s interest would be
more impaired if its laws were not applied. Id. at 97. The
California Supreme Court reached this conclusion even
though the plaintiff “was a California resident when he was
first diagnosed with an asbestos-related disease and when he
incurred medical expenses in this state as a result of the
disease.” Id. at 101.
In the rare cases where the tortious conduct occurred
outside of California, but the physical injury to the California
resident occurred in California, California courts have
looked to the law of the place where the injury occurred. For
instance, when a California resident was injured on a
California highway by a driver who had become drunk while
drinking at a Nevada tavern, the California Supreme Court
26 CASSIRER V. TBC
determined that California law, which imposed civil liability
on tavern keepers, was applicable. Bernhard v. Harrah’s
Club, 16 Cal. 3d 313, 319–20, 322–23 (1976). Although
“each of the states involved ha[d] a legitimate but conflicting
interest in applying its own law in respect to the civil liability
of tavern keepers,” the California Supreme Court held that
California’s interest—“to prevent tavern keepers from
selling alcoholic beverages to obviously intoxicated persons
who are likely to act in California”—would be more
impaired if its policy were subordinated to Nevada’s. Id. at
320, 322.
California courts also consider whether an injured party
took the risk of exposure to another jurisdiction’s rules. In a
case involving a California resident who was injured in
Alabama, a California court of appeal held that Alabama’s
law applied, because “Alabama’s interest in allocating
liability and deterring negligent driving within its borders
would be more impaired by the application of California’s
permissive user statute than would California’s interests if
Alabama law is applied.” Castro, 154 Cal. App. 4th at 1182.
The court further explained that, “by entering and driving in
Alabama, [the California resident] voluntarily exposed
himself to the risks of that territory, and should not expect to
subject [the Alabama defendant] to a financial hazard that
Alabama law had not created.” Id. (internal quotation marks
omitted).
In considering which jurisdiction’s interest in imposing
liability for tortious conduct is more impaired by the
application of the other jurisdiction’s laws, California courts
also evaluate whether a law imposing liability for injury is
archaic and rarely enforced. For example, in Offshore
Rental Co. v. Cont’l Oil Co., a California statute gave an
employer a cause of action for negligent injury to a “key”
CASSIRER V. TBC 27
employee. 22 Cal. 3d 157, 160 (1978). A California
employer relied on that statute to sue a Louisiana company
for negligently injuring its employee on the defendant’s
premises in Louisiana. Id. In addition to noting that the
location of the employee’s injury was in Louisiana, the
California Supreme Court also considered that California’s
interests would not be significantly impaired, because the
California statute at issue was “antique.” Id. at 166.
Offshore Rental then explained that an antique statute “may
be infrequently enforced or interpreted even within its own
jurisdiction, and, as an anachronism in that sense, should
have a limited application in a conflicts case.” Id. Applying
this principle, the California Supreme Court stated that
“California has itself exhibited little concern in applying [the
law at issue] to the employer-employee relationship: despite
the provisions of the antique statute, no 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. at 167.
Accordingly, Offshore Rental concluded that a law that is
“archaic and isolated . . . may not unreasonably have to yield
to []a more prevalent and progressive law.” Id. at 165.
Finally, the California Supreme Court has made efforts
to accommodate the conflicting interests of the jurisdictions
in protecting their respective residents from liability for a
personal injury. For instance, in Kearney, California
plaintiffs brought suit against a Georgia-based company that
secretly recorded their telephone calls. 39 Cal. 4th at 99.
The plaintiffs alleged that the recording caused an injury by
violating their rights under a California privacy statute. Id.at 106–08. The California Supreme Court, conducting a
comparative impairment analysis, stated that the failure to
apply California law would impair California’s interest more
28 CASSIRER V. TBC
severely, because it would not affect any Georgia privacy
interest, and Georgia companies could readily comply with
California requirements. Id. at 126–28. Nevertheless, in
order “to maximize each affected state’s interest to the extent
feasible in the present context,” the California Supreme
Court decided “to restrain the application of California law
with regard to the imposition of liability for acts that have
occurred in the past, in order to accommodate Georgia’s
interest in protecting persons who acted in Georgia in
reasonable reliance on Georgia law from being subjected to
liability on the basis of such action.” Id. at 128. Therefore,
the California plaintiff could seek only “injunctive relief to
require [the Georgia company] to comply with California
law in the future,” while Georgia law would apply with
respect to the Georgia company’s “potential monetary
liability for its past conduct.” Id. at 130.
The comparative impairment factors considered in these
cases involving physical injuries to California residents are
not readily applicable to cases involving disputes over who
holds title to stolen property. First, the primary factors in
California’s comparative impairment analysis in tort cases
involving an injured plaintiff—the situs where the tortious
conduct occurred and the situs where the physical injury
occurred—provide little guidance in a case like this one. If
TBC is entitled to “a claim of acquisition by adverse
possession or prescription of an interest in chattel,” Cassirer
III, 862 F.3d at 963, then TBC did not engage in any tortious
conduct in Spain or elsewhere. The question, as we
recognized in Cassirer III, is one of title to personal
property, not one of physical injury to person. Id. And the
Cassirers did not suffer any physical injury, although the
Cassirers may feel the impact of the deprivation of the
Painting in California. For the same reason, considerations
CASSIRER V. TBC 29
regarding whether the parties exposed themselves to the
risks of the foreign jurisdiction, which make sense in a
physical injury case, are not applicable here: the Cassirers
did not expose themselves to the risk of having stolen
property in Spain, and Spain did not expose itself to the risk
that a person victimized by the theft of that property would
reside in California. Cf. McCann, 48 Cal. 4th at 100 (citing
Castro, 154 Cal. App. 4th at 1182).
And even though the question whether the law at issue is
antique or progressive may be applicable in the property
context, this factor is not helpful here. The Cassirers argue
that Spain’s acquisitive prescription statute should yield to
Section 338(c)(3)(A), which was enacted in 2010 and was
specifically aimed at assisting in the recovery of art stolen
by the Nazis. But the California law relevant to the
comparative impairment analysis is not Section
338(c)(3)(A), which merely extends the time in which a
victim of theft can bring a lawsuit, but rather the rule that
thieves cannot pass good title, and that even an innocent
purchaser who acquired a chattel under a “chain of title
traceable to the thief” does not have title to that property.
Suburban Motors, 218 Cal. App. 3d at 1357. Both Spain’s
acquisitive prescription law (which was enacted in 1889 and
has not been amended since), see Cassirer III, 862 F.3d at
967, and California’s common law rule, see Crocker Nat’l
Bank, 178 Cal. at 332 (decided in 1918), are equally
“antique,” Offshore Rental, 22 Cal. 3d at 166. Yet neither
jurisdiction has shown any lack of interest in seeing its own
law applied. To the contrary, both California and the
Kingdom of Spain filed amicus briefs expressing their strong
interests in the application of their respective laws to this
30 CASSIRER V. TBC
dispute.9 See Wash. Mut. Bank, FA v. Superior Ct., 24 Cal.
4th 906, 920 (2001) (stating that courts should consider “the
relative commitment of the respective states to the laws
involved” in conducting a comparative impairment
analysis).
Finally, there is no obvious way to accommodate the
conflicting interests of the jurisdictions in this context,
because California’s interest in protecting its residents
whose property was stolen is irreconcilable with Spain’s
interest in protecting its residents who acquire title to
property via acquisitive prescription. For instance, the
decision to apply California’s law prospectively only, the
choice-of-law solution adopted by the California Supreme
Court in Kearney, 39 Cal. 4th at 130, is not viable here:
regardless which law applies, one party with an ownership
interest in property will be deprived of that interest, under
any scenario.
D
In short, the existing California caselaw applying the
comparative impairment analysis to tortious, and typically
physical, injuries does not provide guidance in the context of
property law, where it is necessary to determine which
jurisdiction’s interests will be more impaired when the issue
is one of allocating title to stolen personal property.10
9
California “asserted its strong interest in seeking justice for art theft
victims,” while the Kingdom of Spain has also expressed a germane
policy “interest . . . in legislating on the ownership of property located in
its territory.”
10
Our decisions applying California law are likewise silent on this issue.
We have applied California’s governmental interest test to property
CASSIRER V. TBC 31
Neither the parties nor we have found any California
Supreme Court or state court of appeal case applying the
governmental interest test to disputes involving the
ownership of stolen personal property or the application of
adverse possession law to determine ownership. There is no
controlling precedent explaining how a court should
determine which state’s interest would be more impaired if
its policy were subordinated to the policy of the other state
regarding the ownership of stolen property. The factors
previously considered by California courts provide
insufficient guidance in determining whether California’s
interest in protecting the right of California residents to
obtain the return of property that has been stolen, or Spain’s
interest in protecting the expectations of its residents that
they obtain title by adverse possession after sufficient time
has passed, would be more impaired by the application of the
other jurisdiction’s law. Nor is there any obvious way to
accommodate the interests of both jurisdictions.
Although California has codified a choice-of-law
provision relating to personal property, see Cal. Civ. Code
§ 946, this likewise sheds no light on the dispute before us.11
Section 946 of the California Civil Code states that, “[i]f
disputes, but have not addressed the comparative impairment analysis.
See, e.g., CRS Recovery, 600 F.3d at 1142–43 (concluding, in case
involving an action for theft and conversion of internet domain names,
that there was no conflict between California and Virginia law as to
whether domain names are intangible property subject to conversion
claims); Love v. Associated Newspapers, Ltd., 611 F.3d 601, 610 (9th
Cir. 2010) (holding that there was no conflict between the law of
California and England because “[n]one of the parties remaining in this
suit is a citizen of California” and the injurious conduct in the suit
“occurred almost exclusively in the United Kingdom and Ireland”).
11
The parties have not addressed Section 946 on appeal.
32 CASSIRER V. TBC
there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.” Cal.
Civ. Code § 946. On its face, this section does not provide
applicable guidance, because both the Cassirers and TBC
claim a valid ownership interest in the Painting. Nor have
California courts addressed how Section 946 interacts with
the governmental interest test, or how it might apply to a
dispute over ownership of stolen property. The California
Supreme Court cases that mention Section 946 almost
uniformly involve matters of family law, such as probate and
succession, see Est. of Griswold, 25 Cal. 4th 904, 920 n.8
(2001), In re Burnison’s Est., 33 Cal. 2d 638, 640 (1949),
and divorce, see Smith v. Smith, 45 Cal. 2d 235, 242 (1955).
III
In light of the foregoing discussion, and because the
answer to this question “could determine the outcome of a
matter pending in [this] court,” Cal. R. Ct. 8.548(a), we
respectfully certify to the California Supreme Court the
following question:
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 V. TBC 33
We do not intend our framing of this question to restrict
the California Supreme Court’s consideration of any issues
that it determines are relevant. If the California Supreme
Court decides to consider the certified question, it may in its
discretion reformulate the question. Broad v. Mannesmann
Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999). The
answer to this question will resolve the appeal before us,
because if California law applies, the Cassirers would have
a superior ownership interest in the stolen Paining, while if
Spanish law applies, TBC would have acquired ownership
of the Painting through acquisitive prescription before the
Cassirers brought their lawsuit. We agree to accept and
follow the California Supreme Court’s decision on this
question. See Cal. R. Ct. 8.548(b)(2).
We are perplexed by the dissent’s repeated accusations
that certifying a question to the California Supreme Court is
“improper,” Dissent 52, 63, would “deplete our reservoir of
comity,” Dissent 64, and encourage forum shopping.
Dissent 65. We recognize, as we must, that the United States
Supreme Court has directed us to apply California’s choice-
of-law rule, and has stated that doing so might “lead to the
application of California property law.” Cassirer V, 142 S.
Ct. at 1509. We are thus bound to apply California’s choice-
of-law rule, and for the reasons explained above, we are
uncertain as to what rule of decision that application would
produce in this context. Under such circumstances,
considerations of comity and federalism compel us not to
substitute our judgment for that of the state’s highest court
on an unsettled issue of state law, but rather to “seek
guidance from the California Supreme Court, which remains
the primary expositor of California law.” Allied Premier Ins.
v. United Fin. Cas. Co., 991 F.3d 1070, 1076 (9th Cir. 2021)
(cleaned up). The dissent’s concern that we should not
34 CASSIRER V. TBC
certify a legal question because the “Cassirers’ counsel
candidly told us: ‘We want you to certify because we are
pretty confident [about] what the California Supreme Court
is going to do’” is misplaced. Dissent 65. Our task is to
ensure the correct application of California law, whether or
not the California Supreme Court issues a ruling favorable
to the Cassirers.
If the California Supreme Court accepts review of the
certified question, we designate Appellants David Cassirer,
the Estate of Ava Cassirer, and the United Jewish Federation
of San Diego County as the petitioners pursuant to California
Rule of Court 8.548(b)(1).
The clerk of our court is hereby ordered to transmit
forthwith to the California Supreme Court, under official
seal of the United States Court of Appeals for the Ninth
Circuit, a copy of this order and all relevant briefs and
excerpts of record, along with a certificate of service on the
parties. Cal. R. Ct. 8.548(c), (d).
Further proceedings in our court are stayed pending the
California Supreme Court’s decision on whether it will
accept review, and if so, receipt of the answer to the certified
question. This case is withdrawn from submission until
further order from this court. The Clerk is directed to
administratively close this docket, pending further order.
The panel will resume control and jurisdiction on the
certified question upon receiving an answer to the certified
question or upon the California Supreme Court’s decision to
decline to answer the certified question. Within 14 days
after the California Supreme Court decides whether or not to
accept the certified question, each party shall file a report
informing this court of the decision. If the California
Supreme Court accepts the certified question, each party
CASSIRER V. TBC 35
shall file a status report every six months after the date of the
acceptance, or more frequently if circumstances warrant.
It is so ORDERED.
BEA, Circuit Judge, dissenting:
In 1939, the Nazis stole the Rue St. Honoré, après midi,
effet de pluie (“Painting”) from the Cassirer family. Through
a series of transactions, the Painting wound up in the
possession of Baron Hans Heinrich Thyssen-Bornemisza
(“Baron”). The Baron, in turn, sold the Painting to the
Thyssen-Bornemisza Collection Foundation (“TBC”) in
1993. TBC publicly displayed the Painting in its museum in
Madrid, Spain, where it remains today. The Cassirers
learned of the Painting’s location in 2000, filed an
unsuccessful petition for its return in Spain in 2001, and filed
the instant suit against TBC in the United States District
Court for the Central District of California in 2005.
Twelve years later, consistent with our Circuit’s
precedent, we applied federal choice of law principles to
conclude that Spanish property law governs this dispute.
Cassirer v. Thyssen-Bornemisza Collection Found.
(Cassirer III), 862 F.3d 951 (9th Cir. 2017). After we
remanded for a bench trial, the district court found that the
Baron did not possess the Painting in good faith and thus did
not pass title to TBC. Cassirer v. Thyssen-Bornemisza
Collection Found., No. CV-05-3459, 2019 WL 13240413, at
*15 (C.D. Cal. Apr. 30, 2019). But it further found that TBC
had no knowledge of the theft and therefore obtained new
prescriptive title by satisfying the requirements for adverse
36 CASSIRER V. TBC
possession under Spanish law. Id. at *19–24. We affirmed
the district court’s factual findings. Cassirer v. Thyssen-
Bornemisza Collection Found. (Cassirer IV), 824 F. App’x
452 (9th Cir. 2020). Thus, the sole theory under which TBC
may now claim title to the Painting is through prescriptive
title, gained by adverse possession. TBC no longer claims
that title passed to it from the Baron, nor through any of the
Baron’s predecessors in title, including the Nazi thieves.1
Recently, the Supreme Court remanded this case for us
to apply California, rather than Federal, choice of law
principles. Cassirer v. Thyssen-Bornemisza Collection
Foundation (Cassirer V), 142 S. Ct. 1502 (2022).
California’s choice of law test, sometimes called the
“governmental interest analysis,” proceeds in three steps.
Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 922
(Cal. 2006).
First, the court determines whether the
relevant law of each of the potentially
affected jurisdictions with regard to the
particular issue in question is the same or
different. Second, if there is a difference, the
court 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.
Third, if the court finds that there is a true
conflict, it carefully evaluates and compares
the nature and strength of the interest of each
1
TBC repeatedly concedes that “Spain does not have an interest in
protecting receivers of stolen property” in its briefing. Dkt. No. 88 at 2,
10.
CASSIRER V. TBC 37
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, and then
ultimately applies the law of the state whose
interest would be the more impaired if its law
were not applied.
Id. (emphasis added) (cleaned up).
Rather than apply this analysis itself, the majority asks
the California Supreme Court to do so. I must respectfully
dissent from the majority’s certification order because, in my
view, application of this legal test to the facts of this case is
straightforward. I first explain why that is so and then turn
to the majority’s errors in reaching a contrary conclusion.
I.
We must analyze only the “relevant law” of each
jurisdiction “under the circumstances of the particular case
to determine whether a true conflict exists.” Kearney, 137
P.3d at 922. Here, we have already affirmed the district
court’s finding that TBC did not obtain title to the Painting
through its 1993 purchase from the Baron. Our task is
therefore quite simple: We must apply the governmental
interest analysis to determine whether the laws of Spain or
California regarding the creation and vesting of prescriptive
title through adverse possession of personal property govern
this dispute.
Spanish law regarding acquisition of title through
adverse possession of personal property is easy to discern.
See Cassirer III, 862 F.3d at 965. Spanish Civil Code Article
1955 (“Article 1955”) provides: “Ownership of movable
property prescribes by three years of uninterrupted
38 CASSIRER V. TBC
possession in good faith. Ownership of movable property
also prescribes by six years of uninterrupted possession,
without any other condition.” Id. (citation omitted). As we
previously held in Cassirer III and Cassirer IV, application
of Article 1955 to the facts found by the district court clearly
results in TBC being vested with title to the Painting.
But whether California law would produce a similar
result has been an open question for the past century.
Adopted in 1872, the California Civil Code provides five
means by which title to real or personal property may be
acquired: (1) occupancy; (2) accession; (3) transfer; (4) will;
and (5) succession. Cal. Civ. Code § 1000. The word
“occupancy” is a term of art that means “by prescription.”
See Hansen v. Sandridge Partners, L.P., 232 Cal. Rptr. 3d
247, 255–56 (2018) (“When title is acquired by occupancy,
it is called title by ‘prescription.’” (citing Cal. Civ. Code, §
1007)). The word “occupancy” is not limited to the
“occupancy” of real property; it also refers to possession of
personal property. See 51 Cal. Jur. 3d Property § 32
(explaining that title to personal property, as in “property,
generally, may be acquired by occupancy, accession,
transfer, will, or succession.”). This is important because
California Civil Code § 1007 provides: “Occupancy for the
period prescribed by the Code of Civil Procedure as
sufficient to bar any action for the recovery of the property
confers a title thereto, denominated a title by prescription,
which is sufficient against all . . . .” (emphasis added).
By their plain terms, these provisions “would seem to
establish the right to acquire title to personal property by
adverse possession . . . .” 13 C. Witkin, Summary of
California Law, Personal Property § 133 (11th ed. 2022). But
beginning in 1925, California cases began to “cast some
doubt upon this conclusion.” Id. In San Francisco Credit
CASSIRER V. TBC 39
Clearing House v. Wells (Wells), the California Supreme
Court was asked to determine whether section 1007 applies
to personal property. 239 P. 319, 322 (Cal. 1925). It declined
to answer. “The evidence . . . being obviously insufficient to
support a title of adverse possession or prescription,
render[ed] it unnecessary to consider” the question. Id. And
unresolved that question has remained. California courts
have declined to answer this question ever since. See Soc’y
of Cal. Pioneers v. Baker (Baker), 50 Cal. Rptr. 2d 865, 872
n.13 (Cal. Ct. App. 1996) (declining to resolve this
question); Bufano v. City & Cnty. of San Francisco, 43 Cal.
Rptr. 223, 230 (Cal. Ct. App. 1965) (same). Thus, whether
“personal property may be the subject of adverse
possession . . . has never been squarely answered” in
California, 54A Cal. Jur. 3d Real Estate § 764, and is an
issue that “does not appear to be settled.” Baker, 50 Cal.
Rptr. 2d at 872 n.13. This backdrop renders our application
of the governmental interest test relatively straightforward.
Where one jurisdiction (Spain) has taken a clear stance
on the applicability of a doctrine—here, acquisition of
prescriptive title to personal property by adverse
possession—but the other has not (California), there is a
“false conflict.” See Blizzard Energy, Inc. v. Schaefers, 286
Cal. Rptr. 3d 658 (Cal. Ct. App. 2021), rev. denied (Feb. 16,
2022). False conflicts are easy to resolve. “When one of two
states related to a case has a legitimate interest in the
application of its law and policy and the other has none, there
is no real problem; clearly the law of the interested state
should be applied.” Hurtado v. Superior Ct., 522 P.2d 666,
670 (Cal. 1974).
For instance, in Blizzard Energy, a judgment was entered
against Bernd Schaefers in his individual capacity in a
Kansas court. 286 Cal. Rptr. 3d at 665–66. Schaefers and his
40 CASSIRER V. TBC
wife owned a limited liability company, “BKS Cambria,”
but neither Schaefers’s wife nor BKS Cambria were parties
to the Kansas action. Id. at 665. The plaintiff entered the
Kansas judgment in California, where it was amended to
include BKS Cambria under California’s “outside reverse
veil piercing doctrine.” Id. (cleaned up).2 Defendants
appealed, arguing that the California court should have
applied Kansas law, which they contended “does not
recognize the outside reverse veil piercing doctrine.” Id. at
677. In support, they cited only one case. Id. That case had
declined to determine whether Kansas would recognize that
doctrine because Kansas courts had articulated no “clear
statement” rejecting or adopting it. Id. (citing Floyd v. I.R.S.
U.S., 151 F.3d 1295 (10th Cir. 1998)). Since Kansas had
neither accepted nor rejected the doctrine of outside reverse
veil piercing, the California Court of Appeal in Blizzard
Energy concluded that Kansas had no legitimate interest
regarding the application of that doctrine. Id. It thus found a
“false conflict” and applied the law of the only state to
articulate a clear position on outside reverse veil
piercing—California. Id.So too here. Spain expressly recognizes that adverse
possession creates and vests title to personal property under
Article 1955, Cassirer III, 862 F.3d at 958, 966, and Spain
has an obvious interest in applying Article 1955 to regulate
the possession and ownership of personal property within
its borders, see McCann v. Foster Wheeler LLC, 225 P.3d
2Unlike the traditional veil-piercing doctrine (which allows a plaintiff to
recover from an individual owner of a defendant legal entity), the
“outside reverse veil piercing” doctrine allows a plaintiff to recover from
a legal entity of which an individual defendant is an insider. Blizzard
Energy, 286 Cal. Rptr. 3d at 840.
CASSIRER V. TBC 41
516, 534 (Cal. 2010) (“A jurisdiction ordinarily has the
predominant interest in regulating conduct that occurs within
its borders.”). But California has repeatedly declined to
address the issue of the creation of prescriptive title to
personal property acquired through adverse possession for
the past century, see Wells, 239 P. at 322, and thus does not
have a legitimate interest in applying its absence of law on
this topic, see Blizzard Energy, 286 Cal. Rptr at 677. Spain
is the only interested jurisdiction and therefore its law
applies. This is a simple, straightforward analysis that
requires no certification to the California Supreme Court.3
II.
The majority makes a number of unfounded and puzzling
assumptions to evade this commonsense conclusion.
A.
On step one, the majority obfuscates what or which
California “law” it believes conflicts with Article 1955.
It begins by claiming that California has clear law in this
area: “[U]nder the laws of California, a person may not
acquire title to a stolen item of personal property . . . .” Order
at 5 (emphasis added). Yet when confronted with
California’s noncommittal caselaw as to prescriptive
acquisition of title to chattels through adverse possession,
the majority concedes “that this is an undecided area of
3
What the majority order lacks in legal reasoning, it makes up for in
adjectival deprecation. It characterizes this analysis as “elaborate,”
“cryptic,” and “attenuated.” Order at 17–18. My analysis is actually quite
simple: Spain has stated a position on the determinative issue here, but
California has not; therefore, under Blizzard Energy, Spain has an
interest in applying its law and California does not. Is that truly so
complicated?
42 CASSIRER V. TBC
California law” that supposedly requires us “to ask the
California Supreme Court to weigh in . . . .” Order at 18. The
careful reader will notice that the majority tries to get it both
ways: California law regarding adverse possession of
personal property is clear when the majority is defining the
scope of the conflict (so that the majority can reach a true
conflict under the governmental interest test), but that same
area of California law is suddenly “undecided” when the
majority is pressed on its reasoning (so that the majority can
further justify its certification order). The majority cannot
have it both ways. Either California does or does not have a
clearly stated policy interest regarding the creation of
prescriptive title to personal property through adverse
possession.
The majority sub silentio concludes that it does. Contrary
to the majority’s acknowledgment that this an “undecided
area of California law,” Order at 18, and contrary to its self-
proclaimed reticence to “substitute [its] independent
judgment for that of the state’s highest court,” Order at 33,
the majority takes upon itself to resolve this century-old
question on California’s behalf.4 It argues that the doctrine
of adverse possession is fundamentally inconsistent with
California’s rule that thieves “obtain[] no title as against the
true owner,” Order at 13 (citation omitted), which I shall call
the “no-title-passes-through-theft rule.” That won’t work.
The no-title-passes-through-theft rule simply means that
“good title cannot pass from a thief,” Suburban Motors, Inc.
4
The majority justifies its assumptions about California law by citing
policy concerns articulated in a New Jersey case and in law review
articles. Order at 15 n.4. But the weighing of various policy concerns
regarding property rights is the province of the California Legislature
and California state courts, not a federal court.
CASSIRER V. TBC 43
v. State Farm Mut. Auto. Ins. Co., 218 Cal. App. 3d 1354,
1359 (Ct. App. 1990), because “no one gives what he does
not have.” Cassirer III, 862 F.3d at 961 n.8. It means that
one is not divested of title to property “by the theft thereof,”
and that the “mere possession, unaccompanied by other
circumstances giving it a specific character, is not such
evidence of ownership as to prevail against the true
owner . . . .” 51 Cal. Jur. 3d Property § 15 (emphasis added).
It means nothing more. This rule is not the “relevant law” of
California, see Kearney, 137 P.3d at 922, because it does not
conflict with Article 1955. TBC’s claim to the Painting is
through new prescriptive title created by operation of law by
adverse possession, not through chain of title tracing back to
the Nazi thieves.
Indeed, Spain has a similar rule to California’s “no-title-
passes-through theft” rule. Spain allows “any person who
has lost movable property or has been deprived of it illegally
[to] claim it from its possessor.” Cassirer III, 862 F.3d at 961
n.8. We have already said this rule is “similar” to the no-
title-passes-through-theft rule. Id. And, practically speaking,
both have already been applied to this case because no one
claims passage of title through a thief or a thief’s successors
in interest. Application of these rules simply means that TBC
did not obtain title from the Baron, which is precisely what
the district court has already found as a factual matter. That
finding is not challenged now.
Moreover, under either Spanish or California law, the
fact that thieves cannot pass title says nothing about whether
new prescriptive title can be created by operation of law
through the mechanism of adverse possession.
Notwithstanding Spain’s rule precluding thieves from
passing title, we held that TBC’s satisfaction of the elements
listed in Article 1955 could create new prescriptive title in a
44 CASSIRER V. TBC
mere possessor by operation of Spanish law. Cassirer III,
862 F.3d at 958, 966. Similarly, under California real estate
law, adverse possession terminates the prior owner’s title
and establishes new title in the adverse possessor by
operation of law.5 Adverse possession creates and vests new
prescriptive title to realty in a qualified possessor even
though title never legitimately passed from a previous
owner.6 That is the entire point of adverse possession. Thus,
the fact that California law does not allow title to pass from
thieves is irrelevant to the choice of law question before us.
TBC no longer contends that title to the Painting passed from
5
See, e.g., City & Cnty. of San Francisco v. Fulde, 37 Cal. 349, 352
(1869) (“[A]dverse possession is the means by which the former title is
extinguished, and a new one created.”); Marriage v. Keener, 31 Cal.
Rptr. 2d 511, 514 (Cal. Ct. App. 1994) (“Fee simple title vests in the
adverse possessor by operation of law at the moment the requisite
conditions for adverse possession have been established for the statutory
period.” (emphasis added) (citation omitted).
6
More specifically, California recognizes adverse possession “under
either color of title or claim of right.” Dimmick v. Dimmick, 374 P.2d
824, 826 (Cal. 1962) (In Bank). “There is no good faith requirement for
adverse possession based on a claim of right.” Aguayo v. Amaro, 153
Cal. Rptr. 3d 52, 59 (Cal. Ct. App. 2013). Under claim of right theory,
occupancy can be satisfied through “deliberate trespass,” id. which
means that a “usurper” can create and vest prescriptive title in himself
“by bow and spear without color of title.” Kimball v. Lohmas, 31 Cal.
154, 159 (1866). “The title conferred by occupancy is not factually
inconsistent with the crime of trespass” because “an adverse possessor is
merely a trespasser, i.e., a person who enters on the land of another with
the specific intent of injuring, interfering with or obstructing that other
person’s property rights.” People v. Lapchesk, 86 Cal. Rptr. 2d 565, 567–
68 (Cal. Ct. App. 1999). Thus, the fact that an adverse possessor engages
in criminal conduct means only that title did not pass from the rightful
owner. It has no bearing on whether new prescriptive title has been
created by operation of law through adverse possession, which is the
question before us here.
CASSIRER V. TBC 45
the Baron. It argues that new prescriptive title was created
by operation of law through adverse possession. For the
purposes of this case, Article 1955 and California’s no-title-
through-theft rule are ships passing in the night—they
simply do not conflict.
The majority creatively, but without authority, enlarges
the scope of the no-title-through-theft rule to conclude
otherwise. It cites dicta from Naftzger v. American
Numismatic Society, which states that California “law
imposes a continuing affirmative duty to restore stolen
property to its rightful owner” and that “[s]tolen property
remains stolen property, no matter how many years have
transpired from the date of the theft.” 49 Cal. Rptr. 2d 784,
791 (Cal. Ct. App. 1996), as modified on denial of reh’g
(Mar. 4, 1996). The majority interprets this language to mean
that California law vests victims of theft with indefeasible
title that trumps any and all future claims to title, no matter
the circumstances. See Order at 5, 22 n.8, 32. That is a
remarkable misreading of Naftzger.7
7
In Naftzger, a thief stole coins from a museum sometime before 1970,
swapping them with fakes. 49 Cal. Rptr. 2d at 787. In December 1990,
the museum learned that the thief had sold the coins to Roy Naftzger, an
innocent purchaser. Id. at 787–88. The museum sued Naftzger in May
1993, but the superior court sustained Naftzger’s demurrer, reasoning
that the three-year statute of limitations commenced on the date of the
theft. Id. The sole question on appeal was whether the limitations period
under California’s pre-1983 statute commenced when the coins were
stolen or when the museum discovered Naftzger’s identity. Id. at 786.
The Court of Appeal held that the date of discovery commenced the
running of the statute of limitations. Id. at 793. Although the date of
injury generally commences the statute of limitations, “fraudulent
concealment,” such as swapping coins with fakes, “provides an
exception to” that rule. Id. at 788–89. Id. And because one has little
46 CASSIRER V. TBC
The snippet of Naftzger quoted by the majority discusses
California’s ability to prosecute, under criminal law, acts of
knowingly concealing, withholding, or reselling stolen
property. See supra note 7. If an individual knowingly
conceals, withholds, or resells stolen property instead of
returning it to the rightful owner, “no matter how many years
have transpired from the date of the theft,” California may
prosecute that individual because each subsequent criminal
act carries a “separate limitations period[].” 42 Cal. Rptr. 2d
at 791. I fail to see the relevance of Naftzger’s criminal law
dicta to this civil action. For aught that appears, California is
not pursuing criminal charges against TBC.
reason to sue “if he knows nothing of the identity of the wrongdoer,” the
court concluded that the date of discovery applies. Id. at 791.
The court further explained that California’s criminal statute of
limitations regarding stolen property “lends support” to that
conclusion—and this is where the majority’s favored dicta comes in. Id.
at 791. Each act of concealing, withholding, or reselling stolen property
carries a “separate limitations period[]” under California’s criminal
statutes because those criminal statutes impose “a continuing affirmative
duty to restore stolen property to its rightful owner.” Id. (citing Williams
v. Superior Ct., 146 Cal. Rptr. 311 (Cal. Ct. App. 1978) (involving a
criminal prosecution for receiving and concealing stolen property);
People v. Johnson, 35 Cal. Rptr. 883, 884 (Cal. Ct. App. 1963) (same));
see also People v. Hernandez, 91 Cal. Rptr 3d 604, 608 (Cal. Ct. App.
2009) (same). The court noted that, under California criminal law,
“[s]tolen property remains stolen property, no matter how many years
have transpired from the date of the theft.” Naftzger, 49 Cal. Rptr. 2d at
791. Because California may prosecute persons for subsequent acts of
knowingly concealing, withholding, or reselling stolen property well
beyond three years of the original theft, the court thought it reasonable
to imply a discovery rule for civil actions under California’s pre-1983
statute. Id.CASSIRER V. TBC 47
The fact that stolen property retains its character as
stolen property for the purpose of criminal prosecutions says
nothing about whether title to that property, for the purposes
of civil actions, may be created and vested by it being
adversely possessed. Naftzger stated just that: The court
noted the incongruence between California’s ability to
prosecute criminal acts regarding stolen property and the
victim’s ability to recover that property in civil actions. Id.
at 792. It expressly declined to resolve that incongruence,
noting that there were “numerous troubling questions
inherent in the possible myriad circumstances surrounding
the recovery of stolen property,” including the question
whether “a thief’s void title [is] placed beyond the reach of
the owner’s civil lawsuit” in situations where the owner fails
timely to sue but where the possessor remains subject to
criminal penalties. Id. Clearly, then, Naftzger does not
support the majority’s theory that California law vests theft
victims with eternal, supercharged title that trumps any and
all future civil law claims to title, such as that created and
vested by operation of law through adverse possession.8
In addition to being unsupported by caselaw, the
majority’s theory is simply illogical. To illustrate why that is
so, consider two hypotheticals.
8
Even if Naftzger could be read for such a creative proposition, the
majority omits the fact that another panel expressly disagreed with
Naftzger’s analysis. See Baker, 43 Cal. App. 4th at 783 n.10 (disagreeing
with Naftzger because it failed to consider Wells, 239 P. at 322 (declining
to address whether California recognizes adverse possession as to
chattels)). To the extent this disagreement represents an intra-California
split, that split further cements my conclusion that California has no
coherent policy regarding whether adverse possession can create and
vest prescriptive title to personal property.
48 CASSIRER V. TBC
First, what happens when a victim fails to file an action
to recover the personal property or damages for its
conversion within the period allowed by the statute of
limitations? Naftzger itself suggests an answer. It cites with
approval New York law, which “acknowledges that the
effect of the expiration of the statute of limitations is to vest
title in the possessor.” 42 Cal. Rptr. 2d at 792 (citation
omitted). How can one read Naftzger as stating that victims
are vested with eternal, supercharged title, exempt from title
passing through prescription, when Naftzger itself states that
title is vested in the possessor upon expiration of the statute
of limitations?
Second, consider eminent domain. Assume that a chattel
is stolen and resold. Then, a California governmental entity
exercises its eminent domain powers to take ownership of
the chattel from the purchaser.9 Certainly, the theft-victim
might obtain some form of equitable restitution from the
purchaser. But would he still have title to the chattel
notwithstanding the sovereign’s exercise of eminent
domain? The majority would be forced to answer “yes”
because its theory is that California’s no-title-passes-
through-theft rule precludes title from ever vesting in anyone
else under any circumstances after an act of theft. Order at
5, 22 n.8, 32. That is a rather novel and bizarre theory of
property rights, and it finds no support in California
precedent. Certainly, the majority cites none.
Because the majority’s assumption about the extent of
the no-title-passes-through-theft rule is illogical and
9
See City of Oakland v. Oakland Raiders, 646 P.2d 835, 839 (Cal. 1982)
(In Bank) (“Personal property is subject to the exercise of the power of
eminent domain . . . .”).
CASSIRER V. TBC 49
unsupported by precedent, I must respectfully disagree
regarding the scope of the conflict here. Instead, I take
California precedent at its word: Whether or not acquisition
of prescriptive title through adverse possession applies to
personal property in California is an “issue [that] does not
appear to be settled.” Baker, 50 Cal. Rptr. 2d at 872 n.13
(emphasis added). I thus reiterate that the entire conflict here
is that Spain recognizes the creation and vesting of title to
personal property through adverse possession, but California
might not.
B.
With the majority’s error on the first step of the
governmental interest analysis revealed, the rest of its
analysis falls apart. Obviously, California cannot have a
legitimate interest in applying its absence of law regarding
adverse possession of personal property. See Blizzard
Energy, 286 Cal. Rptr. 3d at 665–66. Perhaps realizing this
shortcoming, the majority half-heartedly points to another
rule that California may have an interest applying to this
case—the extended statute of limitations in Section
338(c)(3)(A) of the California Code of Civil Procedure.
Order at 21–22. But even the majority doesn’t adopt this
theory. It later concedes that section 338(c)(3)(A) is not
“relevant to the comparative impairment analysis” here.
Order at 29. It does seem difficult to argue that California
could have a legitimate interest in applying law that the
majority tabs irrelevant.10
10
The majority is correct to find section 338(c)(3) irrelevant. This statute
does not conflict with Article 1955 as a matter of the law of the case and
binding precedent. The Cassirers urged us to consider section 338(c)(3)
50 CASSIRER V. TBC
and the Holocaust Expropriated Art Recovery Act (“HEAR”), see Pub.
L. 114–308, 130 Stat. 1524, as relevant California law that we must
compare to Article 1955. Section 338(c)(3)(A) creates an exception for
California’s general three-year statute of limitations for commencement
of actions seeking recovery of personal property. Cal. Civ. Proc. Code §
338(c)(3). It applies a six-year statute of limitations for actions seeking
recovery of works of fine art against museums, galleries, auctioneers,
and dealers. Id. at § 338(c)(3)(A), rather than the general three-year
period which applies to other possessors of chattels. HEAR states
something similar. Subject to some nuances not relevant here, it provides
that, “[n]otwithstanding . . . any defense at law relating to the passage of
time,” claimants may commence an action to recover Nazi-looted art
within six years of actual discovery of the location of the art. Pub. L.
114–308, 130 Stat. 1524.
In 2017, we held that HEAR and Article 1955 do not conflict.
“HEAR addresses when a suit may be commenced and creates a statute
of limitations. . . . However, TBC’s Article 1955 defense is a defense on
the merits: that TBC has acquired title to the Painting based on Spain’s
property laws.” Cassirer III, 862 F.3d at 965 (original emphasis deleted,
new emphasis added). We held that HEAR applied to Plaintiffs’ claims
and that they were timely made under that statute. Id. at 959–60.
Notwithstanding the application of HEAR, we held that Article 1955
could provide a defense on the merits. Id. at 965. In 2020, the Cassirers
asked us to revisit these conclusions. We declined, explaining that
Cassirer III was the “law of the case and binding precedent that we must
follow.” Cassirer IV, 824 F. App’x at 457.
Because HEAR does not conflict with Article 1955, neither can
section 338(c)(3). The Cassirers concede that section 338(c)(3) simply
“parallel[s]” HEAR. Dkt. No. 87 at 8. Contrary to the majority’s
suggestion, then, section 338(c)(3) cannot be considered conflicting law
as a matter of binding precedent and the law of the case doctrine. The
California Supreme Court will be similarly bound by these principles.
When a case ends up in California state court after a federal appellate
ruling has been issued, California courts recognize that the federal ruling
is binding under the law of the case doctrine. See Adams v. Pac. Bell
Directory, 111 Cal. App. 4th 93, 97–101, 3 Cal. Rptr. 3d 365, 367–70
CASSIRER V. TBC 51
Instead of identifying any actual law that California has
an interest in applying here, the majority appears to conclude
that California has an interest in applying some free-floating
interest, not established by either statute or caselaw, in
generally protecting its residents against theft. Order at 19–
22. But, again, the governmental interest test requires the
majority to identify an actual California law that conflicts
with Article 1955 under the “particular circumstances” of
this case. Bernhard v. Harrah’s Club, 546 P.2d 719, 723
(Cal. 1976); see also Kearney, 137 P.3d at 922. Aside from
California’s equivocation over whether to recognize that
adverse possession creates and vests title to personal
property, the majority cannot identify any such law. Thus,
properly framed, the governmental interest test requires us
to consider whether California has an interest in applying its
lack of statute or judicial precedent on this topic.11 As
(2003); see also Mendoza v. Fonseca McElroy Grinding Co., 492 P.3d
993, 1010 (Cal. 2021) (“While this court may restate the certified
question . . . , we lack the power to reshape the federal litigation that
gave rise to the question in the first instance.”); Peacock v. Cnty. of
Orange, No. G040617, 2009 WL 3184564, at *5 (Cal. Ct. App. Oct. 6,
2009) (unpublished) (“Thus, a federal appellate decision may establish
the law of the case in subsequent state court proceedings in the same
case.”).
11
In the majority’s view, the question could just as easily be whether
Spain has a legitimate interest in applying its “absence of a law” that
mirrors the dicta in Naftzger. See Order at 22 n.8 (citing 49 Cal. Rptr. 2d
at 791). But Spain’s interest is clearly in applying Article 1955 to the
Painting, not its alleged “absence of” a criminal statute of limitations for
concealing, withholding, or reselling stolen property. Moreover, Spain
does have a criminal statute of limitations for property theft. See Cassirer
III, 862 F.3d at 966. Again, that statute of limitations is irrelevant to the
particular facts of this case because TBC is not being criminally
prosecuted. What is more, we have already affirmed the district court’s
52 CASSIRER V. TBC
explained, California does not have such an interest and
Spain manifestly does have an interest; therefore, Spanish
law applies on step two of the governmental interest test.
We thus should not reach the comparative impairment
analysis of the third step. By certifying a question that
requires that analysis, the majority asks the California
Supreme Court a question that is purely hypothetical, for it
is based on a false premise: that California has an expressed
interest in precluding the acquisition of prescriptive title to
chattels through possession. But even were a true conflict
somehow to exist, the majority’s certification order would
still be improper.12
decision that TBC is not an encubridor (an accessory after the fact),
Cassirer IV, 824 F. App’x at 457, a conclusion that further diminishes
the relevance of any criminal statute of limitations to the facts of this
case.
12
I am puzzled by the majority’s contention that Cassirer III and
Cassirer V demand the conclusion that a true conflict exists. Order at 15–
16, 16 n.5.
In Cassirer III, we did not decide whether there was a true conflict
under California choice of law principles. We merely concluded that
there was a conflict under Second Restatement principles. See 862 F.3d
at 960–64. That simply means that the laws of California and Spain are
different, which I do not dispute. Spain has a system of prescriptive
ownership of personal property, but California lacks any decisional law
on the subject. That’s a difference, but not a conflict. See Blizzard
Energy, 286 Cal. Rptr at 677.
In Cassirer V, the Supreme Court concluded that the choice-of-law
principles of the forum state must be applied in suits brought under the
Foreign Sovereign Immunities Act, in part because of 28 U.S.C. § 1606,
which states that “the foreign state shall be liable in the same manner and
to the same extent as a private individual under like circumstances . . . .”
CASSIRER V. TBC 53
142 S. Ct. at 1508. In support of that holding, the Supreme Court offered
the following hypothetical:
Consider two suits seeking recovery of a painting—
one suit against a foreign-state-controlled museum (as
here), the other against a private museum. If the
choice-of-law rules in the two suits differed, so might
the substantive law in fact chosen. And if the
substantive law differed, so might the suits’ outcomes.
In one case, say, the plaintiff would recover the art,
and in the other not. Contrary to Section 1606, the two
museums would not be “liable in the same manner and
to the same extent.”
Id. (emphasis added) (quoting 28 U.S.C. § 1606).
The majority quotes one third of the sentence emphasized above to
argue that the Supreme Court has already held that “under California law
as it currently stands, ‘the plaintiff would recover the art’ while under
Spanish law, the plaintiff would not.” Order at 16, 19 (quoting Cassirer
V, 142 S. Ct. at 1508). But as clearly shown above, the Supreme Court
merely assumed for purposes of illustration that, “if the substantive law”
applied in two hypothetical lawsuits “differed, so might the
[hypothetical] suits’ outcomes.” Cassirer V, 142 S. Ct. at 1508 (emphasis
added). Indeed, the Supreme Court expressly stated that it was not
resolving the question before us today. Id. at 1509 (“The Cassirer
plaintiffs contend that the California rule would lead to the application
of California property law. And they argue that under California property
law, even a good-faith purchaser of stolen property cannot prevail
against the rightful pre-theft owner. We do not today decide those
questions; they remain in the hands of the lower courts.” (internal
citations omitted) (emphasis added)). Because neither Cassirer III nor
Cassirer V addressed this issue, I am confused by the majority’s
argument that I violate the law of the case doctrine by concluding that a
false conflict exists under California law. The hypothetical’s very
language posits a case different from ours. Taking a snippet of language
from an inapposite hypothetical is hardly a basis for claiming that the
54 CASSIRER V. TBC
C.
Even were the majority correct that this case presented a
true conflict, it would have an obligation at least to attempt
to apply the comparative impairment analysis. Cf. Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938). Alas, the majority
avoids that obligation because it worries that there is a
distinction between “issues raised by tort law and those
raised by property law,” Order at 23–24, pointing out that we
Supreme Court has already recognized there is a true conflict of laws in
this case.
Also puzzling to me is the majority’s decision to bolster its argument
with citations to cases “appl[ying] choice-of-law principles” in this
situation. Order at 16–17. That is what I am doing. The majority
apparently fails to understand that, under California’s choice of law
principles, a mere difference in law does not create a true conflict. See,
e.g., Reich, 432 P.2d at 730–31 (holding that, although California law
differed from Ohio law, no true conflict existed because California had
no interest in applying its law to the facts of the case); Hurtado, 522 P.2d
at 670 (same with false conflict between California and Mexico law);
Blizzard Energy, 286 Cal. Rptr. 3d at 677 (same with false conflict
between California and Kansas law).
Finally, the majority is wrong to suggest that we must consider the
interests of Spain and California in applying their bodies of law, “taken
as a whole . . . .” Order at 15–16. Even if we previously concluded,
applying Federal choice of law considerations, that the Second
Restatement test required such a “taken as a whole” approach in Cassirer
III, California’s test expressly says otherwise. Again, California choice
of law principles require us to examine “the relevant law of each of the
potentially affected jurisdictions with regard to the particular issue in
question,” and to “examine[] 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.” Kearney, 137 P.3d at 922(emphases added); see also Bernhard, 546 P.2d at 723.
CASSIRER V. TBC 55
placed importance on that distinction in Cassirer III, 862
F.3d at 963.
But we drew that distinction only because the Second
Restatement provides different rules for physical injury
cases and personal property cases. Id. at 962–63 (“[T]he
commentary to § 222 clarifies that in contrast to torts,
protection of the justified expectations of the parties is of
considerable importance in the field of property.” (cleaned
up)). Specifically, we put near-determinative weight on the
Second Restatement’s “specialized rule for a claim of
acquisition by adverse possession or prescription of an
interest in chattel.” Id. at 963. Clearly, the precise nature of
the claim is critical to a Second Restatement choice of law
analysis.
Unlike the Second Restatement, however, California
applies its general three-step governmental interest test to all
cases unless specifically displaced by statute. McCann, 225
P.3d at 526–27. Neither party argues that a statue applies
here.13 Thus, there is no question that California would apply
its “generally applicable choice-of-law principles” to this
personal property dispute. Id. The majority’s quibble is that
the California Supreme Court has not yet applied those
13
The majority suggests that Section 946 of the California Civil Code
does not apply, even though the parties failed to address this issue in their
briefing. Order at 31–32. On that much, at least, we can agree. That
statute reads: “If there is no law to the contrary, in the place where
personal property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.” Cal. Civ. Code §
946. Because the Painting is situated in Spain, and because Spain rejects
“the law of the domicile” rule, Cassirer III, 862 F.3d at 963, section 946
does not mandate application of the law of the domicile. Under these
circumstances, McCann requires us to apply the governmental interest
test. See 225 P.3d at 526–27.
56 CASSIRER V. TBC
principles to the precise facts of this case. That is not a proper
basis for certification.14
True, California’s comparative impairment analysis
might be difficult to apply as a general matter. That is true
for all applications of that test. See Arno v. Club Med Inc.,
22 F.3d 1464, 1467 (9th Cir. 1994) (describing the test as
“amorphous”). That a state-law test is “difficult” to apply is
insufficient to warrant certification. Kremen v. Cohen, 325
F.3d 1035, 1037 (9th Cir. 2003). That is because “[t]here is
always a chance that a state supreme court, if it had the same
case before it, might decide the case differently. This ever-
present possibility is not sufficient to warrant certification.”
State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672
(7th Cir. 2001).15 Indeed, speculation that the California
Supreme Court might decide this case differently cautions
against certification. See Metz v. BAE Sys. Tech. Sols. &
Servs. Inc., 774 F.3d 18, 24–25 (D.C. Cir. 2014) (denying
motion to certify because of forum-shopping concerns). In
sum, if existing precedent is sufficient to “illuminate[] a
clear path” for our analysis, Plastics Eng’g Co. v. Liberty
Mut. Ins. Co., 514 F.3d 651, 659 (7th Cir. 2008), such that
14
The majority contends that this case is also distinguishable from prior
California Supreme Court cases because most of those cases involved
situations where “the tortious conduct and physical injury
occurred . . . . in the same location.” Order at 25. But this situation is far
from unique and has repeatedly been addressed in California Supreme
Court cases. See, e.g., Kearney, 137 P.3d at 917 (applying choice of law
principles to case in which Georgia telephone calls caused injury in
California); McCann, 25 P.2d at 520–29 (same in case where Oklahoma
asbestos use caused mesothelioma that manifested in California).
15
This is precisely the spoken hope of the Cassirers here. Their counsel
told us: “We want you to certify because we are pretty confident [about]
what the California Supreme Court is going to do.” Oral Arg. at 20:10.
CASSIRER V. TBC 57
we can “predict” the correct answer, U.S. Bank, N.A., v.
White Horse Ests. Homeowners Ass’n, 987 F.3d 858, 867
(9th Cir. 2021), certification should not be used.
Here, current California Supreme Court precedent
sufficiently illuminates a path for our analysis, allowing us
to predict the correct answer. It explains that we must
“carefully evaluate[] and compare[] 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, and then ultimately applies the law of the state
whose interest would be the more impaired if its law were
not applied.” Kearney, 137 P.2d. at 922 (cleaned up). In
particular, the California Supreme Court has articulated two
considerations that provide substantial guidance here.
1.
First, we must determine whether application of one law
results in the “maximum attainment of underlying purpose
by all governmental entities.” Offshore Rental v. Continental
Oil, 583 P.2d 721, 726 (Cal. 1978). Applying Article 1955
to this dispute does so.
Applying Article 1955, California would still have
attained its interest in providing a friendly forum in
California to litigate this dispute. As explained supra note
10, we previously held that the Cassirers’ claims were
subject to, and timely made under, the statute of limitations
in HEAR. Cassirer III, 862 F.3d at 960. It is the law of the
case that HEAR does not conflict with Article 1955,
Cassirer IV, 824 F. App’x at, 455, and the Cassirers concede
that section 338(c)(3) simply “parallel[s]” HEAR. Dkt. No.
87 at 8. Thus, even were section 338(c)(3) relevant here to
define California’s interests in safeguarding its residents’
58 CASSIRER V. TBC
property,16 HEAR’s application to this case underscores that
California’s interest in creating a forum in which to litigate
personal property disputes regarding Nazi-looted art has
been “attain[ed].” Kearney, 137 P.3d at 934. The majority
acknowledges that the “real purpose” of section 338(c)(3)’s
predecessor “was to create a friendly forum for litigating
holocaust restitution claims.” Order at 21 (citation omitted).
That is precisely what the Cassirers received here.
Also consider California’s no-title-passes-through-theft
rule. Again, this rule does not conflict with Article 1955. See
supra pages 9–16. But even were it relevant here, whatever
interest California has in applying that rule has been
protected. Nobody was allowed to claim passage of title
through a thief. Moreover, Spanish law makes it more
difficult for title to vest in an “encubridor,” which means one
who covers over, “an accessory after the fact,” see Oxford
Spanish Dictionary 323 (3d ed. 2003), or as we have
previously explained, someone who “knowingly receives
and benefits from stolen property.” Cassirer III, 862 F.3d at
968. If the possessor is proven to be an encubridor, Spanish
law extends the period of time in which the property need be
possessed before new prescriptive title is created. Id. But
after “an extensive bench trial,” Order at 11, the district court
concluded that TBC was not an encubridor because it did
not have actual knowledge that the Painting was stolen.
Cassirer, 2019 WL 13240413, at *20–21. We affirmed that
finding. Cassirer IV, 824 F. App’x at 457. California’s
interest in deterring passage of title through theft has been
protected.
16
Again, the majority agrees that § 338(c)(3) is irrelevant. Order at 29.
CASSIRER V. TBC 59
The majority balks at this conclusion, claiming that
“there is no obvious way to accommodate the conflicting
interests of the jurisdictions in this context[] because
California’s interest in protecting its residents whose
property was stolen is irreconcilable with Spain’s interest in
protecting its residents who acquire title to property via
acquisitive prescription.” Order at 30. Notably, the majority
cites no California law that protects California residents’
“property [that] was stolen” under the particular
circumstances of this case. As already explained, for
purposes of its choice-of-law rules, California cannot assert
some free-floating hypothetical interest in generally
protecting its residents’ property against theft. That interest
must be tied to the application of some actual law that
conflicts with Spanish law under these particular
circumstances. Bernhard, 546 P.2d at 723. The truth that the
majority strives to avoid is that declining to apply Article
1955 would result solely in the protection of California’s
interests, even though California’s factual connection to the
Painting is indisputably more attenuated than is Spain’s.
Applying Article 1955 reflects the maximum attainment of
purpose of both California and Spain. And it is disappointing
that the majority does not attempt this analysis.
2.
Second, California precedent requires us to examine the
reliance interests the parties could have placed on the laws
of the respective jurisdictions, starting from the premise that
a jurisdiction has the “predominant interest in regulating
conduct that occurs within its borders.” McCann, 225 P.3d
at 534; see also Offshore Rental, 583 P.2d at 726; Reich, 432
P.2d 727.
60 CASSIRER V. TBC
In Reich, the court noted that “Missouri is concerned
with conduct within her borders and as to such conduct she
has the predominant interest of the states involved.” 432
P.2d at 730. But Reich went on to explain that Missouri’s
interest was diminished under the facts of that case because
the law to be applied was merely a damages limitation that
did nothing to change the way people “behave” within
Missouri’s borders. Id. at 731.
In Offshore Rental, the court noted that Louisiana had a
“vital interest in promoting freedom of investment and
enterprise [w]ithin Louisiana’s borders, among investors
incorporated both in Louisiana and elsewhere.” 583 P.2d at
728 (holding that Louisiana law governed a negligence
action by a California corporation against a Louisiana
corporation, alleging loss caused by injury to plaintiff’s
employee, a loss that is cognizable under California law but
not under Louisiana law). Offshore Rental considered
whether that interest could “easily be satisfied by some
means other than enforcement of the statute itself”—such as
by purchasing insurance. Id. at 726. But it explained that the
Louisiana defendant reasonably relied on the law of its own
jurisdiction to conclude that insurance was unnecessary;
instead, the court placed the insurance obligation on the
California plaintiff who made deliberate contacts with
Louisiana. Id.
In McCann, the court echoed Offshore Rentals’
emphasis on the importance of a state law that creates
incentives for businesses to operate in its borders. 225 P.3d
at 530–34.17 It further echoed Reich’s admonition that a
17
In McCann, plaintiff California resident sued defendant corporation
(organized in Delaware, located in New York), alleging exposure to
CASSIRER V. TBC 61
asbestos that occurred in Oklahoma. 225 P.3d at 520. The exposure
occurred when plaintiff was an Oklahoma resident, but he developed
symptoms only after moving to California. Id. Oklahoma’s statute of
repose would have barred plaintiff’s suit, but California’s statute would
not. Id. at 527–29. McCann found a “true conflict.” Id. at 533. Oklahoma
was interested in applying its statute of repose in favor of the non-
Oklahoma defendant for two reasons: First, it had “a legitimate interest
in attracting out-of-state companies to do business within its state, both
to obtain tax and other revenue . . . and to advance the opportunity of
state residents to obtain employment and the products and services
offered by out-of-state companies.” Id. at 530. In support, McCann relied
on Offshore Rental’s observation that a state has a legitimate interest in
attracting “investors incorporated both [in-state] and elsewhere.” Id.
(cleaned up). But California also had a legitimate interest because it had
a specific statute extending the time to bring suit for “an action for injury
or illness based upon exposure to asbestos.” Id. McCann clarified “that
California has a legitimate interest in having a statutory provision that
affords a remedy for or a benefit to an injured person or business applied
when, as here, the injured person or business is a California business or
resident, even when the injury-producing conduct occurs outside
California.” Id.
To resolve the conflict, McCann leaned heavily on the premise that,
although California no longer applied the law of the place of the wrong,
“California choice-of-law cases nonetheless continue to recognize that 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 jurisdictions law will be
available.” Id. at 534. Although it concluded that plaintiff did not engage
in “forum shopping,” McCann found crucial that, if defendant were
subjected to liability, Oklahoma’s interest would be subordinated to that
of California’s “solely” because “plaintiff happened to move to a
jurisdiction whose law provides more favorable treatment” “after
defendant engaged in the allegedly tortious conduct in Oklahoma.” Id.
And even though California would be unable to “extend its liberal statute
of limitations” to this case, its interest was less significantly impaired
because California takes “a restrained view of the scope or reach of
62 CASSIRER V. TBC
jurisdiction has the “predominant interest in regulating
conduct that occurs within its borders.” Id. at 534.
Here, neither the majority nor the parties claim that either
the Cassirers or TBC relied on California’s absence of
precedent regarding whether adverse possession can create
and vest prescriptive title to personal property. Prior to its
purchase of the Painting, TBC did not learn that the Painting
had ever passed through California and thus was not on
notice as to the potential application of California law to the
Painting. Order at 28–29; see also Cassirer, 2019 WL
13240413, at *7–10.
Conversely, the majority concedes, as it must, that TBC
relied on Spanish law. TBC specifically relied on Article
1955 by requiring the Baron to provide a three-year prenda
for certain paintings. Order at 8, 20. Prenda means “security,
surety,” or “pledge” in Spanish. Oxford Spanish Dictionary
661 (3d ed. 2003). The $10 million prenda operated as a
security device for the Baron’s performance under the terms
of his agreement with TBC. Cassirer, 2019 WL 13240413,
at *11. Namely, TBC and Spain “requested this pledge, in
part, in order to protect themselves against the risk that there
might be a painting or small group of paintings that could
have a title issue.” Id. The district court found that the three-
year term of the prenda “intentionally corresponded to
Spain’s three-year good faith acquisitive prescription period
as provided in Article 1955 of Spain’s Civil Code.” Id.Because TBC did not learn that the Painting had passed
through California until this action, TBC could not
California law with regard to the imposition of liability for conduct that
occurs in another jurisdiction and that would not subject the defendant
to liability under the law of the other jurisdiction.” Id. at 535. Oklahoma
law thus applied.
CASSIRER V. TBC 63
reasonably “have anticipated a need for” a pledge or
insurance coverage extending beyond a three-year period.
Offshore Rental, 583 P.2d at 729. Thus, only Spanish law
has been relied upon here.
D.
In sum, even assuming the existence of a true conflict in
step two of the conflict of laws analysis, the comparative
impairment analysis in step three clearly favors the choice of
Spanish law. Spain “has the predominant interest in
regulating conduct that occurs within its borders.” McCann,
225 P.3d at 534. Article 1955 is “an incentive for businesses”
to operate in Spain because it provides predictability and
certainty to businesses’ property interests. 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.” Id. at 562. Each and every relevant
factor favors Spanish law. The majority has not identified a
single factor that goes the other way.18 Spanish law applies.
III.
The above analysis is clearly mapped out by decades of
California Supreme Court precedent. There is nothing novel
about this case that obfuscates this result. Yet the majority
does not attempt to apply this analysis; instead, it ignores the
relevance of California caselaw and then complains that that
18
The majority correctly rejects the Cassirers’ argument that Article
1955 is more “antique” than California law. Order at 29. This argument
is simply a subjective attack on the social worthiness of Spain’s policy,
which attacks are not considered by California Courts in the comparative
impairment analysis. Kearny, 137 P.3d at 925.
64 CASSIRER V. TBC
caselaw provides insufficient guidance. The majority’s
“anybody-but-us approach”19 to certification imposes
significant costs to state courts, federal courts, and
litigants.20
Improper certification harms state courts for obvious
reasons. Even if the California Supreme Court declines the
certified question (which it should), it will do so only after
investing precious judicial resources into evaluating the
majority’s request. Imagine the hours the California
Supreme Court (and its staff) will spend familiarizing itself
with the facts of this case in particular. The Cassirers filed
their complaint almost two decades ago. In that time, there
have been numerous important district court rulings, four
Ninth Circuit decisions and one Supreme Court opinion. The
excerpts of record for this appeal alone are over 2000 pages
long. And all that effort will be for naught. The certified
question clearly does not merit review.
The majority’s unnecessary certification order strains the
comity that we strive to maintain with our colleagues in state
courts. Comity must play a special role in our decision to
certify because certification is intended to denote “respect
for the place of the States in our federal system.” Arizonans
for Off. Eng. v. Arizona, 520 U.S. 43, 75 (1997); see also
Lehman Bros. v. Schein, 416 U.S. 386, 393–94 (1974)
19
See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 751, 758 n.5
(2005) (criticizing the dissent for urging certification of a question of
state law in a case with “horrible facts,” noting the dissent was adopting
an “anyone-but-us approach”).
20
The majority claims to be “perplexed” by these observations. Order at
33. I doubt it. The majority would likely agree that it is improper to ask
the California Supreme Court what is its favorite color. The question
certified by the majority is equally hypothetical.
CASSIRER V. TBC 65
(Rehnquist, J., concurring). In this context, comity must be
drawn upon with care because certification goes only one
way. See Jason A. Cantone & Carly Giffin, Certified
Questions of State Law: An Empirical Examination of Use
in Three U.S. Courts of Appeals, 53 U. Tol. L. Rev. 1, 20
(2021). While federal courts may burden state courts with
questions of state law, no comparable process exists for state
courts similarly to burden federal courts. And “burden” is
the right word. When we certify non-determinative, non-
novel questions like the majority does today, we deplete our
reservoir of comity by wasting the California Supreme
Court’s time and resources. That is contrary to the entire
purpose of certification.
The California Supreme Court is not the only victim of
today’s order. Ill-considered certification harms federal
courts as well because it encourages forum shopping bids.
See Rebecca A. Cochran, Federal Court Certification of
Questions of State Law to State Courts: A Theoretical and
Empirical Study, 29 J. Legislation 157, 204–07 (2013); Metz,
774 F.3d at 24–25. Consider, for instance, the “leapfrogging
diversity plaintiff” who files his state-law claim in federal
court and then, after receiving adverse decisions there, asks
for certification. Cochran, supra at 204. Here, the Cassirers
have lately received adverse decisions at both the trial and
appellate levels in the Ninth Circuit.21 In particular, the
district court has already applied California’s choice of law
test to conclude that Spanish law applied. Cassirer v.
Thyssen-Bornemisza Collection Found., 153 F. Supp. 3d
1148, 1155–60 (C.D. Cal. 2015). It therefore comes as no
21
Although the Cassirers did receive a favorable decision in Cassirer III,
where we held that their claims were timely under HEAR. 862 F.3d at959–64.
66 CASSIRER V. TBC
surprise that the Cassirers’ counsel candidly told us, as
earlier noted: “We want you to certify because we are pretty
confident [about] what the California Supreme Court is
going to do.” Oral Arg. at 20:10. Allowing this forum-
shopping undermines our legitimacy and hinders the
administration of justice. Cf. Org. for Advancement of
Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp.
2d 1120, 1131 (S.D. Cal. 2005) (“[D]iscouraging forum-
shopping is a legitimate goal for the federal courts.”). Other
circuits take this factor into account when considering
whether to certify. See Metz, 774 F.3d 18; United States v.
Defreitas, 29 F.4th 135, 142 (3d Cir. 2022). So should we.
Finally, improper certification harms litigants through
delays. On average, roughly 500 days elapse between
certification from our court and a corresponding decision
from the state court.22 The impact of such a delay is palpable
22
Between 1998 and 2002, an average of 602 days elapsed between
certification orders from our Circuit the corresponding state-court
decisions. Kremen, 325 F.3d at 1052 (Kozinski J., dissenting). Between
2010 and 2018, that time has diminished to a still-significant 509 days.
See Jason A. Cantone & Carly Giffin, Certified Questions of State Law:
An Empirical Examination of Use in Three U.S. Courts of Appeals, 53
U. Tol. L. Rev. 1, 38 (2021). This delay is made all the more concerning
by the increasing frequency with which our Circuit has used certification.
From 2015 to 2020, we “certified eighty-four questions in fifty-five
cases compared to twenty-three questions between 1990 and 1994.” Hon.
Kenneth F. Ripple & Kari Anne Gallagher, Certification Comes of Age:
Reflections of the Past, Present, and Future of Cooperative Judicial
Federalism, 95 Notre Dame L. Rev. 1927, 1931 n.32. (May 2020). The
increase from 23 to 84 certifications from our Circuit presented “[t]he
most dramatic shift” of any other circuit. Cantone & Giffin, supra at 29.
In a study comparing the Third, Sixth, and Ninth Circuits from 2010
through 2018, researchers concluded that “[t]he Ninth Circuit was much
CASSIRER V. TBC 67
in this case. If this case were a person, it would be almost old
enough to vote. This delay is needless. The answer is
obvious; California choice-of-law principles require
application of Spanish law.
I respectfully dissent from the majority’s order.
more likely to certify a question than the Third or Sixth Circuit.” Id. at
6, 44.
These data suggest that we have grown increasingly reliant on
certification, and they further suggest that we are outpacing other
Circuits in doing so. Our overreliance on certification creates
unnecessary delay in what is already the one of the slowest circuit courts
in the country. See U.S. Court of Appeals, Judicial Caseload Profile,
Ninth Circuit (2022), available at https://www.uscourts.gov/sites/default
/files/fcms_na_appprofile0630.2022_0.pdf (last visited May 15, 2023)
(providing the median times that elapse between an appellant’s filing of
a notice of appeal and the disposition of the appeal). These data caution
us to revisit our certification practices. Currently, four circuits have
formal rules regarding certification. Ripple & Gallagher, supra at 1932
n.35. Our Circuit is not one of them. Perhaps it is time for us to
promulgate a formal rule that cabins the excesses of panel-by-panel
discretion.