or notice that the painting was in the hands of the foundation until shortly before the application for its return was made both of those facts are genuinely undisputed the next two facts are undisputed for purposes of this motion because as the court below held they are disputed material issues a factor there disputed issues of fact that would be material if this court holds they are relevant to the legal issues those are third point the foundation acted in bad faith with actual or constructive knowledge that this was alluded piece of art fourth there was no reasonable way the plaintiff could have discovered the existence of the painting in the possession of the foundation until shortly before the demand for its return was made those four facts undisputed for purposes of this motion are relevant to each of the legal issues that this court faces those legal issues are first what jurisdiction's law applies give the foundation title to this painting because it displayed it in its museum in spain for six years that in turn assuming that the normal requirements for section fifteen one hundred fifty five are met that in turn raises several important legal issues i'm going to address three the first is whether section one nine hundred fifty six of the civil code applies if it does then it is undisputed that the foundation did not get title because they didn't hold it long advantage of the six year period i ask you a question about one thousand fifty six in the the definition of accessory as i understood it before the district court be the expert and the art for the benefit of the thoughts and that's what the district court ruled on and now before us the argument has changed and the argument is the definition of accessory should be based on the meaning of accessory eight hundred seventy but i didn't see any spanish supreme court case on point or any legislative history that would let me or any expert report that would let me know whether the definition whether the legislature and acting article nineteen fifty six and accessor different from the persons who wrote the eight hundred seventy penal code do you have some basis that tells us that in statutory interpretation which i believe is the final section three of the spanish meant by these terms that is it is true that you're exactly right that people called the civil code are different were done by different people and it's not a direct one for one definition however the civil code doesn't define it and so as a next proxy something to look at in terms of context we have pointed to to the penal code and and what tells us that's correct i mean and in federal law if this were united states law we would the supreme court has directed us to look at legislative intent if it's not defined or use the common meaning of the word at the time what this court i think that we don't have a legislative history for nine hundred fifty five that defines these terms we don't have a statutory definition and so we are looking at what is the next best i think both sides have said you would look to the penal code they just looked at the different penal code that we have if they have something that's a better source they'll tell you but i know i know of no better source i homogenous when they were talking about him through her door of the recipient of stolen property and being an accessory yes your honor and and i want to i think that's exactly right and i want what what that what what you're looking at in terms of receiving stolen property and i refer particularly to two forty three two fifty four and two fifty five when it talks about there for example if you look at two forty three what they're talking about is that it's applicable to the criminal liability under the code either as excess free of the looting crime of the pain of the alternative is that it doesn't have to be an accessory of the original crime well ok but that but two thoughts to me and my unraveling of this it would seem to be that the only way that t p c can when on summary judgment is right let's you have to get all facts and princes in your favor and included in that you mentioned there are there are facts that you've developed that have to do with that the provenance wasn't properly developed that that you know that in that period there was the one nine hundred fifty eight settlement there were a lot of things that would and you know and it would give rise to that this could have been a nazi looted that you would get not in your favor but if the watch is after determining everything if the law is that you have to be an ex that and cooper door has to be an accessory to the actual looting then they could went on summary judgment right if you also did not mean someone who about indicates that was simply an error your honor if you have my time though i'd like to just be sure that when i get to that to really critical point well if i'll give you i mean we've taken some time on questions historical heritage the law that we we've referenced explicitly says section three explicitly says that if a piece of art is classified under this stor law is applicable to these this collection to the extent appropriate correct if it's been it's been i don't think there's any doubt on the record blow that it section three that's clear now he has historical law not apply it does apply well then they can't be transferred that says absolutely can't be transferred and that and that provision is something that court will have decide as a matter of law whether that is applicable and if it is then we're entitled to damages even if we can't get the painting but if i'm right it's very important john understand that  their whole argument depends on it being prescriptive if it's not prescriptive if they hold latest property improperly then we are entitled either to the painting or histor unquestionably if it's applicable controls just as the federal constitution would control in california that would preclude the spanish government from saying we don't have rule since they they said every position didn't violate that rule with respect to real properties that we don't have any information on whether adverse possession would run on well we we  have the phone in the pie case the pie case itself says that the european i think venture in human rights is applicable to adverse possession of prescription and they say whether it precludes it depends on the particular facts of the case and they lay out the criteria ok and if you look at that criteria the court decided ten seven that those criteria in that case did not preclude prescription but if you play apply those same criteria to this case they would preclude prescription there's an argument about that so that there's no per se rule that there was no faffed it was real property not movable property it was as the trial court in this case held about pine it was a control of use of land decision rather than a disk deprivation of possession  decision in addition the the other post article of the convention provides that you cannot have a prescription if it's in violation of international law and as we've indicated in our brief particularly with respect to are rooted in the whole cost under the terrorism on the declaration on the washing principles which spain has signed onto those are situations in which  international law would require the return of this so whatever the spanish interpretation would be controlling e u constitutional provision would require the return of this this painting would preclude prescription under the facts of this case trying to do in five minutes you are well i'll give you five minutes for rebuttal on i'm recognized for both sides i mean this is the case obviously that has got a lot of things going on and so if the court you know i'll make sure that each of you have the time that as long as we've got questions that they they get answered thank you thank you thank you you and all members of this panel have seen this case in one form or fashion or another whether it be on the initial decision regarding former sovereign immunity act in its application or the in bhaag which was  in and resulted in a long and i think you know a wise opinion that told us in these particular cases it's about getting to the merits of the ultimate story had maybe i don't want to derail you i fact as to whether t p c turned a blind eye to multiple indicators at the painting suspect provenance you know for example what do we make of the fact that it had a torn label indicating it was in berlin and combined asked that your honor because it's an elephant that was brought into the room quite frankly after judge crater since a panel found that section three three a c three was not unconstitutional and and the plaintiffs at that time with the prior council had argued that this in effect was just a garden variety property claim and therefore as a garden variety proper claim it could go forward so we went back to the court under judge walters guidance and we conducted full and complete discover yes we know and we've we've all agreed that the painting was lost in a tragic circumstances through the good provenance work of mistah and we came to learn that despite not being played in the complaint that in fact it was ten years of litigation over this very artwork and that there was in the opinion of the foundation in the kingdom of spain full and fair compensation paid for the loss a loss that we would big knowledge is very hard to straight she thinks it's destroyed they think it's lost nobody's really quite sure where it is that time from one nine hundred fifty eight and we're very pleased that mr christie or had an opportunity to have his deposition taken we took his perpetuation deposition that was presented to the court so the evidence was heard on what they did or didn't do which was absolutely nothing between one nine hundred fifty eight and two thousand when somebody brought it to his attention what the evidence also developed was that in  one we have a world war two veteran who had fled germany as a jewish family in hugo pearls who acquires the work and the evidence also developed that in fact he checked whether this was listed as a stol art work and could not find it on any list and sold it to mr sidney schoenberg mr sidney brody again a member of the of the jewish community all of these facts which now are ones that are used and apparently the foundation is an accessory to the holocaust many many years after that after the work is very briefly owned by mr brody it is sold in a fair market transaction to mr schoenberg again an upstanding member of the st louis jewish community who holds it in print in the public domain is publishing his collection for over twenty years thereafter a french refugee mr stephen hahn acquires the work and sells it to the baron holds it in the public domain in one thousand nine hundred six and a fair market transaction as the experts to intercept two hundred seventy five thousand dollars which it was fair market at the time you know honor and i've been involved in many of these cases and that's a very difficult question for us to have to to address and so therefore we had experts on both sides take a look at the question and provide relevant examples of other posts are those that sold similar prices like and what that argument fails to take into consideration it is and this was presented and presented to the court the full transaction documents regarding the acquisition of not just one artwork not just a couple our books but over seven hundred artworks that were means funding of the foundation of creation the foundation in addition to that just as we see here in los angeles with the los angeles county museum of art where the broad museum or across in washington at the smithsonian or at the national gallery the government steps up it creates a building that's part of the purchase price it agrees to take on the daily and monthly and yearly obligations of running the foundation and funding the foundation so if we look in isolation that the purchase price versus the fair market value that may not quite add up but if you look at it as totality and i'd ask us to not forget the foundation is a nonprofit entity it quired the work to bring it into the public to main and to display the artwork this is not the conduct of an individual that is looking to traffic in stolen artwork but what's important to understand is when we look at the motion for summary judgment the judge walters in a very well reasoned opinion worked through you've focused like a laser on the genuine facts which are not in material dispute which is that in fact the painting has been publicly owned by the foundation since one nine hundred ninety three where it's been on public display with the foundation as the owner in madrid up until one thousand nine hundred ninety he didn't have to analyze whether they were or were not a good good faith whether they were or were not in bad faith but that acquisitive prescription that's the title in the foundation something the judge gregersen in his panel signal was coming when they remanded it these foreign sovereign media cases it's asked to sit in judgment and determine the application of foreign law we would submit to you that judge walters did it very well reasoned judge job of that particular if you focus on his footnotes fifteen through seventeen the judge walters bent over backwards to make sure both sides and even the plaintiff at the last stage had another shot at an expert reply brief so they were given and everybody a full and fair opportunity present reason article nine hundred fifty six in spanish law i think that this is that we will have to understand that spanish law is civil code civil code admittedly is not one as with ours which has the development of body of case law so you look to the code on its face and read it in its plainest possible interpretation and an interpretation that the plaintiff would have you have as any public institution that is funded by the king of spain that acquired artwork fifty years after the war that it is an accessory to the holocaust that it went and acquired a foundation or whether you are the most virtue drenched person in the world you cannot get a prescription if you are an excess re the question then is is a person who benefits by holding stolen property and excessively and there's no question that this property was stolen from a cancerous and now you're holding it if there were no such rule as a prescription you have to give the property back in stone you don't get title but buying you from somebody who's a barone of the of the austrian empire so let's forget about all this public persona and get back to the question the question is under the spanish law right across from the palace hotel so that's where it is right now those people why are they not excess reserves under the spanish law because and or a plain meaning of the spanish law has set forth by the spanish experts and as well region by judge walther's the simple holding of of an object that may have one time had been stolen before does not make that party an accessory i think benefiting from the pos but is there any other definition of the word incognito nothing other than what's been set forth before your honor and i'd like to also point out that inform seven eniac cases your point is very well made and excepted with respect to we're not going to the jury a painting which has been stolen title has never passed away from the customers and is holding it for his benefit and that makes it an accessory under the spanish law that's the position it was the booze i understand your honor and we stolen let's assume that yes i mean it wasn't here of the one nine hundred fifty eight so then and so regardless of how much time has passed the foundation received stolen part property and is currently holding stolen property you don't disagree with that i don't disagree that the foundation is currently holding property that it was one time stolen yes your honor when i look at the purse the prescriptive right in article one hundred fifty six the only question i have i mean there's lots of questions  the argument that's made by appellant is they should look at the the on existing criminal code which is a receiver of stolen property is an accessory so why don't you tell me why i shouldn't do that in  article what i what i would submit that is that whatever i would argue what mr what plaintiff's counsel would argue where we really need to go to is the spanish like sports and the spanish like spit on behalf of the foundation or the spanish life but on behalf of the to emphasize your honour's was that we heard judge progress and the panel in this this circuit very loud and clear which was conduct a full and fair trial with procedural hurdles get in the way examine the evidence and that's exactly what happened here particularly in a force of nearly i case where everything was heard and that it out it's really not that complicated a case at the end of the day because we are relying upon spanish law we are u nless the court here wants to go against precedent and say that we would use some other choice of law analysis that would allow us to take this to another level and step in the shoes and create foreign and i'll give you a full full answer on that on rebuttal john but it's been presented by the experts in spanish as a civil code state so i would submit you go right back to the civil code where it starts this or anything else that fifty six were adopted that accessory included somebody who benefited from the crime now we don't have anything there's no definition in the civil code the only place could you point me to that expert report if you look at e r two forty three and two fifty four in two fifty five there was a particular pages of the expert report and i think that if you're looking for a single place we cite a lot of other things in our brief but that those were the those would be the pages that i would ask you to look at and if you look at page two fifty four to fifty five you will see references two spanish supreme court it's clear that if you are receiving stolen property that avoids prescription in other words you cannot get the benefit of prescription if you are either the person who stole interpret this is not withstanding that prescription doesn't run under five hundred fifty six if you have or if you receive stolen property even though you're not an excess three under just to be clear before one hundred seventy three on the receiving a stolen property and the stealing of the property what is combined and was separated to what i'm doing as i'm afraid you do the spanish law materials that i cited and the spanish supreme court opinion that this prescription doesn't run this is after nine hundred seventy three there's a spanish decision which is the european convention on human rights because that is the controlling docking that's like the federal constitution what controls over any a member states la here but i think i think the pie decision is on point it's not it's not exactly on all four squares you don't have any opinion that's on all fours here which is not on all fours your honor it's not the one nine hundred seventy three statute it seemed to me what it was doing was it was trying to make sure that no one got away with anything it was to clarify and to be more inclusive of behavior than to say that this is what that that we don't want that not to necessarily change the law but just to make sure that people couldn't make those type of arguments and setting it out is that what you are getting doesn't act exactly right john i mean sometimes how when our legislator finds out that some people make creative arguments that they ha had every intention of being included and then they say state it more clearly so that people don't get away with things they don't want to get and i think that's exactly right ronnie legislative history that would support that interpretation or any we we  how that helps i'm not sure that that's what they're saying your honor but i think the key point of what they're saying is that whether it is receiving stolen property or it is the stealing that property that that is something that somebody can't prescript and the use of the word prescribed in the peer in that case of the they clearly did say that no but when they i think that's part of what the that individual member states have have prescription rules that will deprive people of a fair opportunity for their property that's obvious and not and that case there is a whole  or should have known that this was looted are included literati and they made a policy decision a quote policy decision close quote not to do due diligence even though the lawyers warned them that if some of this was stolen they might not get it they might  know i don't say that they did something during that period because they thought the painting had been lost or destroyed but what i do say is that they could not have found this through due diligence reasonable due diligence would not have led them  the spanish museum or to any one of the foreign books of limited publication that was not something it was much easier for the museum who are experts in this to have concluded that the painting had never left paris that is the provenance of the museum published had it coming from paris to the museum and disregarding the fact that had been looted by the nazis smuggled into california and then transferred in these other situations so that that false provenance made it look like this was just a normal we acquired a you your honor going back to the question what that was at hand regarding the spanish civil code in one nine hundred seventy three the spanish legislature broke up the definition of accessory and reste removed receiver of stolen property from the definition so in one thousand nine hundred nine when the foundation became the owner under acquisitive prescription it could not be defined as an accessory because the definition did not include receiver of stolen property but the plaintiff is asking you to do is go back to an old definition way back unfortunately as you pointed out in one nine hundred seventy three when the spanish civil code was amended and addressed this issue there was no indication in any of the legislation that had anything to do with ward two or holocaust related claims the terrorism declaration that the plaintiff cites the washington principles that the plan of cites are all admirable principles ones which i have had the good fortune myself to be involved with the preparation of but as case law has made very clear they do not create a cause of action they do not change the application of choice of all rules and they specifically acknowledge doesn't really address my question my question was what expert report tells me how to a b r u e b a addressed this issue for us and we say he said exactly what i have said which is that when this sanish legislation changed and broke up the definition the definition of a receiver from the penal code did not include an excess or right in the crown so but how does that tell us how the three article ninety six i understand of the criminal code and if there were a way to say so but the spanish supreme court says but you get to keep it because a prescription but the e u document says you can't keep anything that was countries that have come together to try to create a uniform approach to this and signed on to the tears and declaration signed on to the washing principles and the like have all said through those guidelines that we recognize this is an issue of great importance we recognize we'd like to get decisions on the barents but we also recognize there's a conflicting principle here that every country has its own laws and property rights every country should be able to govern the way the law the way property is bought and sold in transferred within it's own country and therefore we were going to adopt guiding principles but we don't have any you directive the directly addresses this particular issue that's the same issue we ran into in the van sarkis right here in california when we tried to pass a statute of limitations that reopen claims it was found unconstitutional because that's an area that the federal government that the executive branch needs to weigh in on foreign policy so i would humbly submit that there is not a huge e u directive on this for for a reason and that has been supplanted by the tears and declaration and the washington principles admirable as they may be they don't create a cause of action nor did they change the applicable because of prescription laws in this