Los Angeles Daily Journal
JULY 29, 2004 | APPELLATE PRACTICE
State Justices Agree to Review Case of Picasso Stolen by Nazis
High Court Takes Up Stolen-Picasso Case
By Tina Spee
Daily Journal Staff Writer LOS ANGELES - The state Supreme Court on
Wednesday voted unanimously to review a 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 justices will decide whether to uphold a 2nd District Court of
Appeal opinion finding that the painting's eight-month appearance in Los
Angeles in 2002 was not enough to establish jurisdiction in California
courts. Bennigson v. Alsdorf B168200 (Cal. App. 2nd Dist. April 15, 2004).
"It's very heartening to have review of this because I feel so
strongly that the Court of Appeal's opinion was a terrible injustice in this
case," said Randol Schoenberg, attorney for student Thomas Bennigson.
Bennigson sued after the owner of "Femme En Blanc," Marilynn Alsdorf
of Chicago, put it up for sale in 2002 through Los Angeles dealer David
Tunkl. The painting was in Los Angeles for eight months before Alsdorf
ordered it sent back to Chicago the day after Schoenberg filed the original
complaint.
Polly Towill, attorney for Alsdorf, said she's not sure what to
expect from the justices' examination of this "straight personal
jurisdiction case."
"Obviously, we have two courts who have ruled in our favor, so we're
just going to have to wait and see what the Supreme Court is interested in
learning more about," said Towill, a partner at Los Angeles' Sheppard,
Mullin, Richter & Hampton.
In June 2003, Los Angeles Superior Court Judge Victor H. Person
ruled that the court had no jurisdiction in the matter. Schoenberg appealed
that decision to the 2nd District Court of Appeal.
Alsdorf's Chicago counsel, Richard Chapman of FagelHaber, said he
has confidence in his client's position given the trial and appellate
courts' decisions.
"Without a lot of bs about it, we feel very good about the rulings
... as being consistent with other rulings of the California courts,"
Chapman said.
Schoenberg said that, in Shaffer v. Heitner 1988 44 U.S. 186, the
U.S. Supreme Court has suggested that state courts have jurisdiction to
determine ownership of property that is located in the state at the time the
lawsuit is filed.
"We believe this case falls squarely within that rule, since the
painting was here in California on the day the suit was filed," said
Schoenberg of Los Angeles' Burris & Schoenberg.
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. The painting wound up in a New
York gallery where Alsdorf's husband purchased it in 1975 for $357,000.
The Court of Appeal 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 that he should recover the
painting or be given $10 million in compensation.
"It can only be a good sign that the California Supreme Court
accepted review," said Kyhm Penfil, a partner at Newport Beach's Call,
Jensen & Ferrell.
Penfil filed an amicus letter in support of Bennigson's petition for
review on behalf of Bet Tzedek.
"I think it's a critically important case, not only for Holocaust
victims and survivors and both of their heirs but also from the perspective
of the art market," Penfil said.
The appellate decision did not affect a pending Los Angeles Superior
Court case Bennigson filed against Tunkl and Alsdorf for allegedly
possessing and transferring stolen property. Schoenberg says the case is in
discovery stages, and a trial date has not been set.
Illinois lacks a clear statute of limitations for cases such as
Bennigson's. A California law extended the statute of limitations on all
claims against museums and galleries over Nazi-looted works until December
2010.
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© 2004 Daily Journal Corporation. All rights reserved.
Thursday, July 29, 2004
Page 1
S.C. to Decide Whether Dispute Over Picasso Painting, Allegedly Stolen by
Nazis, May Be Heard in California
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday agreed to decide whether state courts
can hear a dispute over the ownership of a painting, allegedly stolen from
the plaintiff’s grandmother by German authorities during World War II.
The justices, at yesterday’s conference in San Francisco, voted unanimously
to review the April 15 decision of Div. Eight of this district’s Court of
Appeal in Bennigson v. Alsdorf, B168200. The panel held that bringing
property into the state briefly does not subject the owner to the state’s
jurisdiction in a suit over title to the property.
The suit was filed by Boalt Hall student Thomas Bennigson against Marilyn
Alsdorf, and concerns Pablo Picasso’s 1922 work "Femme En Blanc," or Women
in White.
Bennigson alleges that he is the lawful owner of the painting, which
belonged to his grandmother, Carlota Landsberg, and which Bennigson says is
now worth $10 million. The complaint alleges that Landsberg sent the
painting to a Paris art dealer when she fled Berlin in 1933, but that the
Nazis stole it around 1940.
Alsdorf, who lives in Chicago, purchased the painting in New York in 1975
for more than $350,000. In December 2001, Alsdorf sent the painting to Los
Angeles to be exhibited by art dealer David Tunkl.
Bennigson said he did not know the painting existed, or that it had belonged
to his grandmother, until the summer of 2002. The source of the information,
he said, was The Art Loss Register, an international organization which
helps to locate and recover Nazi-looted art for Holocaust victims.
The Art Loss Register allegedly told Tunkl around the same time that
Bennigson was the rightful owner, but Tunkl allegedly didn’t tell Alsdorf
until Dec. 13, 2002. Alsdorf ordered Tunkl to send the painting back to
Chicago that same day, the plaintiff claims.
Tunkl ordered the shipping Dec. 18, but the painting didn’t leave until Dec.
20, right before Los Angeles Superior Court Judge David P. Yaffee granted
Bennigson, who had filed suit the day before, a temporary restraining order.
Bennigson’s lawyer, E. Randol Schoenberg, said that Yaffe insisted on his
giving notice, although he had predicted the painting would leave the state
as soon as he did. The painting was shipped out at 6:30 a.m. the day of the
TRO hearing, Schoenberg told the MetNews.
He said that Alsdorf deliberately moved the painting to sidestep a new
California law extending the statute of limitations on cases concerning
Nazi-looted art.
Justice Paul Boland, writing for the Court of Appeal, said California lacked
long-arm jurisdiction over Alsdorf because the suit primarily concerns
events that transpired in New York and in France.
"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," Boland wrote in
an unpublished opinion.
In other conference action, the justices agreed to decide whether appellate
counsel for a child involved in dependency proceedings may dismiss an appeal
when counsel believes the dismissal is in the child’s best interests. The
Fifth District held in In re Josiah Z., F044121, that counsel has no such
authority.
Copyright 2004, Metropolitan News Company