APRIL 16, 2004 | APPELLATE PRACTICE Print | Email
Justices Reject Case of Nazi-Looted Art
Panel Finds Lack of Juristiction Despite Work's Months in State
By Stefanie Knapp
Daily Journal Staff Writer LOS ANGELES - A state appellate court
Thursday threw out a closely watched lawsuit filed by a Boalt Hall student
to recover a $10 million Picasso painting the Nazis looted from his German
grandmother during World War II.
The 2nd District Court of Appeal found that a brief appearance by
the painting, "Femme En Blanc", in Los Angeles was not enough to establish
jurisdiction in California courts. Bennigson v. Alsdorf B168200 (Cal. App.
2nd Dist. April 15, 2004).
Student Thomas Bennigson sued after the current owner of the
painting, Marilynn Alsdorf of Chicago, put it up for sale in 2002 through
Los Angeles dealer David Tunkl. The painting was here for eight months
before Alsdorf, learning of Bennigson's suit, ordered it sent back to
Polly Towill, who represented Alsdorf, said she was pleased with the
"We think it was the right result," said Towill, of Los Angeles'
Sheppard, Mullin, Richter & Hampton.
Towill referred all further questions to Alsdorf's other lawyer,
Richard Chapman of Chicago's FagelHarber. Chapman could not be reached for
comment after hours.
Bennigson's attorney, Randol Schoenberg, called the opinion
"It means the people who have stolen paintings stored in California
can simply send them out of the state when they're sued," Schoenberg of Los
Angeles' Burris & Schoenberg said Thursday.
"The painting was here, where else are we supposed to file to
recover a painting?," Schoenberg asked.
Owen C. Pell, a partner at White & Case in New York who has
litigated a number of World War II-era claims, says the jurisdictional
problem frequently bedevils Nazi-looting cases.
"Obviously, the victim of the theft may feel it unfair that since
they had no control over the loss of their property or where their property
ended up, it's very frustrating to them when the property comes into a place
where they are, they can't sue there," Pell said.
Pell says an international title agency should resolve the claims.
The painting originally belonged to Bennigson's grandmother, Carlota
Landsberg. When Landsberg fled Berlin in 1933 in fear of persecution, she
sent the painting to a Parisian art dealer.
The Nazis later stole the painting, according to the opinion.
Alsdorf purchased the painting in New York in 1975 for $357,000.
Bennigson did not know the painting existed, or that it had belonged
to his grandmother, until the summer of 2002. Months earlier, Alsdorf asked
Tunkl to sell the painting for her. The Art Loss Register, an international
organization which helps to locate and recover Nazi-looted art for Holocaust
victims, learned of a pending sale to a Paris buyer.
The Register notified Tunkl that a Swiss foundation might be the
rightful heir to the painting. Sometime during the summer, the Register
tracked down Bennigson and told him he was the owner, Schoenberg said. The
Register also relayed the new information on the ownership to Tunkl.
Tunkl, however, didn't tell Alsdorf until Dec. 13, 2002. Alsdorf
ordered Tunkl to send the painting back to Chicago that same day, according
to the opinion.
Tunkl ordered the shipping Dec. 18, but the painting didn't leave
until Dec. 20, hours before the Los Angeles Superior Court Judge David P.
Yaffee granted Bennigson, who had filed suit the day before, a temporary
The appeal court said because the key events - the looting and the
Alsdorf purchase - took place in Paris and New York, California was not the
right place to litigate Bennigson's claim.
"The painting's fleeting but fortuitous presence in Los Angeles in
December 2002 is insufficient to establish the requisite minimum contacts
between this State, the nonresident defendant and this litigation," Justice
Paul Boland wrote in the unpublished opinion.
The appellate decision did not affect a separate claim Bennigson
filed against Tunkl for allegedly transferring stolen property.
A status conference to set a trial date on that claim is scheduled
for May 4.
"He's going to be liable for the full value of the painting,"
Tunkl's attorney, Stephen Bernard of Los Angeles' Nagelberg &
Bernard, could not be reached for comment late Thursday.
Schoenberg has not decided whether to petition the state Supreme
Court, but if he is not successful he plans to sue in Chicago to recover the
Illinois does not have a clear statute of limitations for cases such
as Bennigson's, Schoenberg said. A California law extended the statute of
limitations on all claims against museums and galleries over Nazi-looted
works until December 2010, the appellate opinion said.
Schoenberg believes he will prevail.
"Mrs. Alsdorf has yet to come up with a single grounds supporting
her unjust refusal to return the stolen property," Schoenberg said.
© 2004 Daily Journal Corporation. All rights reserved.
Court tosses suit over looted art
Harriet Chiang Saturday, April 17, 2004
A state appeals court in Los Angeles has tossed out a suit brought by a UC
Berkeley law student seeking to recover a $10 million Picasso painting
looted by the Nazis during World War II.
Thomas Bennigson, a student at Berkeley's Boalt Hall School of Law, had sued
a Chicago widow to regain possession of "Femme en Blanc,'' a painting that
had belonged to his grandmother, a Jewish woman who fled Germany in the late
1930s. She had sent the painting to a Paris art dealer for safekeeping.
Despite her efforts, the painting was stolen by the Nazis. Decades passed,
and in 1975 James Alsdorf of Chicago bought the painting for $375,000 from a
Manhattan art gallery.
After Alsdorf died, his widow, Marilyn Alsdorf, sent it to a Los Angeles art
dealer in 2001, hoping to sell the painting. Bennigson learned of the
painting's existence and filed a suit in Los Angeles Superior Court in 2002
asking for the return of the painting or $10 million.
In June, a Los Angeles Superior Court judge ruled that the legal battle
should be fought in Chicago, instead of Los Angeles.
A state Court of Appeal agreed, ruling Thursday that Bennigson, who lives in
Oakland, did not have jurisdiction to sue Alsdorf in California because the
painting was only briefly in a Los Angeles art gallery before Alsdorf had it
returned to Chicago.
Bennigson's attorney, E. Randol Schoenberg, said they will probably appeal
the ruling to the California Supreme Court. If the ruling stands, "it's
devastating for the recovery of stolen art in California,'' he said. "You
can just send the painting out of state.''