Monday, May 21, 2007
Court Upholds Dismissal of Lawsuit Seeking Taylor’s van Gogh
Panel Rejects Suit Against Actress, Says Holocaust Victims Redress Act Creates No Private Right of Action
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday upheld the dismissal of a lawsuit claiming actress Elizabeth Taylor is in wrongful possession of a Vincent van Gogh painting once confiscated by Nazis.
“Vincent van Gogh is said to have reflected that ‘paintings have a life of their own that derives from the painters soul,’” Judge Sidney Thomas commented for the court. “The confused and perhaps turbulent history of his painting Vue de l’Asile et de la Chapelle de Saint-Remy [View of the Asylum of Saint-Remy] may prove the truth of his observation.”
The descendants of Margarete Mauthner, a German Jewish woman who was an early collector of the troubled Dutch post-Impressionist’s works, claimed ownership of the painting. Mauthner left her art and other goods behind when she fled Germany in 1939, settling in South Africa, where she died in 1947.
Redress Act Inapplicable
Friday’s ruling upheld a 2005 decision by U.S. District Judge R. Gary Klausner of the Central District of California, who said that a federal statute relied on by the plaintiffs did not create any enforceable rights and that their state claims were barred by the statute of limitations.
The heirs contended a sales brochure warned the painting was likely confiscated by Nazis. They asked for restitution and for the painting, which The Associated Press reported was appraised at between $10 million and $15 million when it hung in Taylor’s living room about two years ago.
Taylor’s attorneys acknowledged that the Nazis forced Mauthner and her family to give up their property, but said they had no information on the provenance of the painting. The plaintiffs responded that they were entitled, under a law enacted by the post-war military government, to a presumption that any transfer of the property was an act of confiscation.
Taylor’s father, art dealer Francis Taylor, bought the painting in 1963 on his daughter’s behalf for $257,600 at a Sotheby’s auction in London. Elizabeth Taylor said she had never seen information suggesting the painting was ill-gotten by the Nazis.
The auction catalogue said that the painting’s owners after Mauthner were, successively, Paul Cassirer, Marcel Goldschmidt, and Alfred Wolf. Cassirer and Goldschmidt were German dealers; Wolf was a German Jewish businessman who lived in Switzerland and later South America.
There have been suggestions that Mauthner sold the painting in Germany in order to move her family to South Africa. Cassirer’s role is murky; he died in Berlin in 1926, leading the plaintiffs to argue that the provenance as stated by Sotheby’s is simply wrong.
Thomas, writing for the appeals court, said that the history makes no difference; even if the painting was confiscated, the plaintiffs have no valid claim, either under the 1998 Holocaust Victims Redress Act or under common law, he said.
State Claims Barred
Under the redress act, governments are called upon to facilitate the return of private property pillaged by the Hitler regime to the owners or their heirs. But the act cannot be enforced by a lawsuit, Thomas said, because the plaintiffs were relying upon non-binding “sense of Congress” language, the section makes no mention of any private rights, and the “overarching purpose” of the legislation is to open up records and facilitate research, not to enable suits.
As for the plaintiffs’ state claims, Thomas said, they are barred by California’s three-year statute of limitations for actions involving the taking of goods or chattel.
Prior to 1983, the judge noted, it was unclear whether delayed discovery of a cause of action postponed the triggering of the three-year period. (The Legislature that year enacted a specific tolling provision.)
Assuming that the delayed discovery rule applied under prior law, however, the three-year period began to run sometime between 1963, when the painting was sold at public auction, and 1990, when Taylor placed the painting up for auction through Christie’s, although it did not sell, Thomas said.
Thomas rejected the plaintiffs’ contention that the time did not commence to run until 2002, when they allegedly learned for the first time—from an Internet posting—that Taylor had the painting and that they might have a claim to it.
Several publications had mentioned the painting and Taylor’s ownership of it over the years, the appellate jurist said.
Had the plaintiffs “investigated any of those publicly-available sources, they could have discovered both their claim to the painting and the painting’s whereabouts long before the 2002 Internet rumor was posted,” the judge wrote.
The case is Orkin v. Taylor, 05-55364.
Copyright 2007, Metropolitan News Company