Humans are Mortal - Picasso is Not
The Honorable Bernard Kaufman, Judge Retired
June, 2005
The systematic confiscation and looting of great works of art by the
Nazis throughout Europe started in the 1930ıs and continued throughout
World War II. According to the Art Loss Register, the largest private database
of stolen artwork, and various studies and investigations by government
and art associations, much of the stolen art is still in the hands of private
collectors. This unparalleled plunder is currently referred to by
the art world as the ³Lost Museum². Names and locations of the lost paintings
are not forthcoming and may not be determined for another 60 or 70 years,
if ever. One of the paintings that has been located is Picassoıs ³Femme
En Blanc².
The ³Femme En Blanc², which is also known as ³The Ten Million Dollar
Woman,² was owned by Carlota Landsberg at the time that the Nazis took
over Germany. She sent the painting to an art dealer in Paris for safekeeping
in 1938 or 1939, but the art dealerıs inventory was looted by the Nazis.
Carlota was unable to locate the painting before her death in 1994. Her
only surviving heir is a grandson, Thomas C. Bennigson, who resides in
California.
In 1975, a New York art gallery sold the painting to private collectors
Marilyn Alsdorf and her late husband, who brought the painting to Chicago. In
2001, Alsdorf sent the painting to a Los Angeles private art dealer for
five weeks. In 2002, Alsdorf again sent the painting to the same dealer. She
agreed to allow the dealer to exhibit the painting and indicated a willingness
to sell. Alsdorf and the Los Angeles art dealer had been put on notice
in May of 2002 that the painting had been stolen by the Nazis. In June
of 2002 Bennigson was informed of the whereabouts of the painting.
Overall the painting was in Los Angeles for over eight months.
The painting was sent back to Chicago one day after Bennigson filed a complaint
in the Los Angeles Superior Court and just hours before a Temporary Restraining
Order was granted on December 20, 2002.
Both a trial judge and the Court of Appeal have since ruled in effect
that the California courts cannot gain personal jurisdiction in a quasi
in rem case for replevin of this painting which had been voluntarily sent
to California by a private collector residing in Illinois for exhibition
and possible sale.
The California Supreme Court accepted review on July 28, 2004. The
appeal arises from the trial courtıs decision of June 16,2003 to quash
service of process (CCP 418.10).[1] <#_ftn1> The judge found
insufficient facts (contacts) to assert ³specific jurisdiction².
On April 15, 2004, the Court of Appeal affirmed the Superior Courtıs decision
that it lacked personal jurisdiction over Alsdorf. The case will
be argued in the California Supreme Court in the near future.
The plaintiff, Thomas Bennigson, is a recent law school graduate and
is represented by Burris & Schoenberg. California counsel for
the defendants are Sheppard, Mullin, Richter & Hampton and the Law
Offices of Stephen Bernard. The firm of Horvitz & Levy has filed an
amicus curiae brief for former assembly member George Nakano. Assembly
member Nakano authored Code of Civil Procedure section 354.3, which provides
for actions to recover Holocaust-era artwork and suspends any applicable
statute of limitations until December 31, 2010. Nakano maintains
that the legislation was designed to help rightful owners of artworks stolen
by the Nazis.
Help for Bennigsonıs claim of ownership appears to be on the way.
Alsdorf is currently a defendant in a case in the United States District
Court, Central District of California.[2] <#_ftn2> The Federal
government has filed a complaint for civil forfeiture of the ³Femme en
Blanc². The government contends that Alsdorf transported stolen property
in interstate commerce. On March 31, 2005, Judge Florence Marie Cooper
filed an order denying Alsdorfıs motion to dismiss and denying her motion
to transfer the case to Illinois. Judge Cooper wants to know what the California
Supreme Court will do on the issue of jurisdiction and has stated in her
order that the minimum contacts test has been satisfied.
Alsdorf has her attorneys working overtime in Illinois where Judge
David H. Coar of the United States District Court for the Northern District
of Illinois-Eastern Division granted the defendant Bennigsonıs motion for
a stay of proceedings on Alsdorfıs Illinois action for declaratory relief.[3]
<#_ftn3> Judge Coar indicted in his order that he wants to know
what the California Supreme Court is going to do.
What will the California Supreme Court do? Will The California Courts
exercise jurisdiction on the question of ownership of Picassoıs ³Femme
En Blanc²?
The Supreme Court will not only be determining whether the undisputed
facts give rise to personal jurisdiction but may also determine the California
Legislatureıs intent when it enacted CCP section 354.3. Provenance
research is complex and determining national/international jurisdiction
is even more complex. Currently, there are at least three other cases
pending in other jurisdictions concerning Nazi confiscated art. The
latest case was filed in federal court in San Diego on May 10, 2005 concerning
a Camille Pissarro painting which is now hanging in a museum in Madrid.
In the case of Picasso, one painting worth ten million or more dollars
is sufficient to generate generations of trial and appellate court rulings. With
so many cases pending over this painting, it appears that at least one
recent law school graduate will probably be litigating his claim of ownership
of ³Femme En Blanc² for years and years to come.
[1] <#_ftnref1> Los Angeles Superior Court BC 287294
[2] <#_ftnref2> CV 04-8333 FMC
[3] <#_ftnref3> 04 C 5953