FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAREI VON SAHER,  No. 07-56691

Plaintiff-Appellant, D.C. No.

v. CV-07-02866-JFW

NORTON SIMON MUSEUM OF ART AT ORDER

PASADENA, Norton Simon Museum AMENDING

of Art at Pasadena; NORTON SIMON OPINION AND

ART FOUNDATION,  DENYING THE

Defendants-Appellees. PETITIONS FOR

REHEARING AND

FOR REHEARING

EN BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

December 8, 2008—Pasadena, California

Filed August 19, 2009

Amended January 14, 2010

Before: Harry Pregerson, Dorothy W. Nelson and

David R. Thompson, Circuit Judges.

Opinion by Judge Thompson;

Dissent by Judge Pregerson

1013
COUNSEL

Lawrence M. Kaye, New York, New York, for plaintiffappellant Marei Von Saher.

Fred Anthony Rowley, Jr., Los Angeles, California, for

defendants-appellees Norton Simon Museum of Art at Pasadena and Norton Simon Art Foundation.

Frank Kaplan, Santa Monica, California, for amicus curiae

Bet Tzedek Legal Services, The Jewish Federation Council of

Greater Los Angeles, American Jewish Congress, American

Jewish Committee, Simon Wiesenthal Center and Commission for Art Recovery.

Edmund G. Brown, Jr., Attorney General of the State of California by Antonette Benita Cordero, Los Angeles, California,

for amicus curiae State of California.

ORDER

The panel, with the following amendments, has granted the

petition for panel rehearing filed by the appellee, Norton

1016 VON SAHER v. NORTON SIMON MUSEUM OF ART
Simon Museum of Art at Pasadena, and has denied the petitions for rehearing and for rehearing en banc filed by the

appellant Marei Von Saher, and by amici the State of California and Earthrights International.

The opinion filed August 19, 2009, slip op. 11333, and

published at 578 F.3d 1016 (9th Cir. 2009) is amended as follows:

At page 578 F.3d 1031 the last two paragraphs of the

majority opinion are deleted. The first of these two paragraphs

begins “The museum contends that the articles” and the last

paragraph of the two paragraphs ends “dismissed without

leave to amend.” The following new paragraph is inserted in

place of the two deleted paragraphs:

Because it is not clear that Saher’s complaint

could not be amended to show a lack of reasonable

notice, dismissal without leave to amend was not

appropriate. See Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). We, therefore, grant Saher leave to amend her complaint to

allege the lack of reasonable notice to establish diligence under California Code of Civil Procedure

§ 338, and remand this case to the district court for

that purpose.

The full court was advised of the petitions for rehearing and

for rehearing en banc, and of the proposed amendments set

forth above. No judge requested rehearing en banc.

The opinion as amended above is filed simultaneously with

this order.

With the exception of the relief granted above pursuant to

the appellee’s petition for panel rehearing, the petitions for

rehearing and for rehearing en banc are DENIED. Judge PreVON SAHER v. NORTON SIMON MUSEUM OF ART 1017
gerson voted to grant the petitions for rehearing and for

rehearing en banc.

No further petitions for rehearing or rehearing en banc may

be filed.

OPINION

THOMPSON, Senior Circuit Judge:

Marei von Saher (“Saher”) seeks the return of two paintings alleged to have been looted by the Nazis during World

War II. The paintings were purchased in or around 1971 by

the Norton Simon Museum of Art in Pasadena, California

(“the Museum”), and are now on display there. Saher brought

this claim against the Museum under § 354.3 of the California

Code of Civil Procedure, which extends the statute of limitations until 2010 for actions for the recovery of Holocaust-era

art. The primary issue on appeal is whether § 354.3 infringes

on the national government’s exclusive foreign affairs powers. The district court held that it does. We agree, and affirm

the district court’s holding that § 354.3 is preempted.

California also has a three-year statute of limitations for

actions to recover stolen property. California Code of Civil

Procedure § 338. The district court granted the Museum’s

Rule 12(b)(6) motion to dismiss Saher’s complaint under that

statute without leave to amend. Because it is possible Saher

might be able to amend her complaint to bring her action

within § 338, we reverse the district court’s dismissal without

leave to amend, and remand for further proceedings.

I. Background

A. Nazi Art Looting in WWII

During World War II, the Nazis stole hundreds of thousands of artworks from museums and private collections

1018 VON SAHER v. NORTON SIMON MUSEUM OF ART
throughout Europe, in what has been termed the “greatest displacement of art in human history.” Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts

202 (NYU Press 2003). 

Following the end of World War II, the Allied Forces

embarked on the task of returning the looted art to its country

of origin. In July 1945, President Truman authorized the

return of “readily identifiable” works of art from U.S. collecting points. See, e.g., Presidential Advisory Commission on

Holocaust Assets in the United States, Plunder and Restitution: The U.S. and Holocaust Victims’ Assets SR-142 (Dec.

2000) (hereinafter Plunder and Restitution). At the Potsdam

Conference, President Truman formally adopted a policy of

“external restitution,” under which the looted art was returned

to the countries of origin—not to the individual owners.

American Commission for the Protection and Salvage of

Artistic and Historic Monuments in War Areas, Report, 148

(1946) (hereinafter Roberts Commission Report).

Despite these restitution efforts, many paintings stolen by

the Nazis were never returned to their rightful owners. See,

e.g., Bazyler at 204. Tracking the provenance of Nazi-looted

art is nearly impossible, since many changes of ownership

went undocumented, and most of the transactions took place

on the black market. Id. In recent years, a number of the

world’s most prominent museums have discovered their collections include art stolen during World War II. Id. at 205-06.

The federal government has continued to take action to

address the recovery of Holocaust-era art. In 1998, Congress

enacted the U.S. Holocaust Assets Commission Act of 1998,

Pub. L. No. 105-186, 112 Stat. 611 (codified as amended at

22 U.S.C. § 1621). This Act established the Presidential Advisory Commission on Holocaust Assets, which conducted

research on the fate of Holocaust-era assets, and advised the

President on future policies concerning the recovery of these

assets. Id. That same year, the State Department convened a

VON SAHER v. NORTON SIMON MUSEUM OF ART 1019
conference with forty-four other nations to address the recovery of Holocaust-era assets. U.S. Dep’t of State, Proceedings

of the Washington Conference on Nazi-Confiscated Art (Dec.

3, 1998), http://www.state.gov/p/eur/rt/hlcst/23231.htm (hereinafter Washington Conference Proceedings). In the meantime, numerous Holocaust victims and their heirs have turned

to the courts to recover their looted art. See, e.g., Republic of

Austria v. Altmann, 541 U.S. 677 (2004).

B. Section 354.3

Many obstacles face those who attempt to recover

Holocaust-era art through lawsuits. The challenges range from

procedural hurdles such as statutes of limitations, to prudential standing doctrines. See, e.g., Benjamin E. Pollock, Out of

the Night and Fog: Permitting Litigation to Prompt an International Resolution to Nazi-Looted Art Claims, 43 Houston L.

Rev. 193, 213-28 (2006); Lawrence M. Kaye, Avoidance and

Resolution of Cultural Heritage Disputes: Recovery of Art

Looted During the Holocaust, 14 Williamette J. Int’l L. &

Disp. Resol. 243, 252-58 (2006). In 2002, California

responded to these difficulties by enacting California Code of

Civil Procedure § 354.3.1 Section 354.3 provides:

Notwithstanding any other provision of law, any

owner, or heir or beneficiary of an owner, of

Holocaust-era artwork, may bring an action to

recover Holocaust-era artwork from any entity

described in paragraph (1) of subdivision (a). Subject

to Section 410.10, that action may be brought in a

superior court of this state, which court shall have

jurisdiction over that action until its completion or

resolution. 

1All subsequent references are to the California Code of Civil Procedure, unless otherwise stated. 

1020 VON SAHER v. NORTON SIMON MUSEUM OF ART
Section 354.3(b). The California statute allows suits against

“any museum or gallery that displays, exhibits, or sells any

article of historical, interpretive, scientific, or artistic significance.” Section 354(a)(1). The statute also extends the statute

of limitations for § 354.3 claims until December 31, 2010.

Section 354.3(c).

California has enacted several other laws extending the

statute of limitations for claims relating to the Holocaust. See,

e.g., Section 354.5 (extending statute of limitations for insurance policy claims by Holocaust victims or their heirs); Section 354.6 (creating a cause of action and extending the

statute of limitations for slave labor claims arising out of

WWII). Both of these sister statutes have been found unconstitutional under the foreign affairs doctrine. Steinberg v. Int’l

Comm’n on Holocaust Era Ins. Claims, 34 Cal. Rptr. 3d 944,

953 (Cal.Ct. App. 2005) (finding § 354.5 unconstitutional);

Deustch v. Turner, 324 F.3d 692, 716 (9th Cir. 2003) (finding

§ 354.6 unconstitutional). 

C. The Cranachs

Saher, the only surviving heir of Jacques Goudstikker, a

deceased art dealer, filed this suit in 2007 against the Museum

under § 354.3 and California Penal Code § 496, seeking the

return of a diptych entitled “Adam and Eve.” The diptych, a

pair of oil paintings by sixteenth-century artist Lucas Cranach

the Elder (hereinafter the “Cranachs”), is currently on public

display at the Museum. 

Goudstikker bought the Cranachs at an art auction in Berlin

in or about May 1931.2 Goudstikker was a prominent art

dealer in the Netherlands; he specialized in Old Master paint2The facts in this section are alleged in Saher’s complaint; some are disputed by the Museum. Given the procedural posture of the case, we accept

these factual allegations as true, and construe them in the light most favorable to Saher. 

VON SAHER v. NORTON SIMON MUSEUM OF ART 1021
ings. Goudstikker’s collection contained more than 1,200 artworks, including Rembrandts, Steens, Ruisdaels, and van

Goghs.

When the Nazis invaded the Netherlands in May 1940,

Goudstikker and his family fled the country. The family left

their assets behind, including the Gallery. Goudstikker

brought with him a black notebook containing a list of over

1,000 of the artworks he had left behind in his collection (the

“Blackbook”). The Blackbook lists the Cranachs as Numbers

2721 and 2722, and states that they were purchased at the

Lepke Auction House and were previously owned by the

Church of the Holy Trinity in Kiev. 

After the Goudstikkers escaped, the Nazis looted Goudstikker’s gallery. Herman Göring, Reischsmarschall of the Third

Reich, seized the Cranachs and hundreds of other pieces from

the gallery. Göring sent the artwork to Carinhall, his country

estate near Berlin, where the collection remained until

approximately May 1945 when the Allied Forces discovered

it. The recovered artwork was then sent to the Munich Central

Collection Point, where the works from the Goudstikker collection were identified. In or about 1946, the Allied Forces

returned the Goudstikker artworks to the Netherlands.

The Cranachs were never restituted to the Goudstikker family. Instead, after restitution proceedings in the Netherlands,

the Dutch government delivered the two paintings to George

Stroganoff, one of the claimants, and he sold them, through

an art dealer, to the Museum. 

The Museum filed a Rule 12(b)(6) motion to dismiss

Saher’s complaint filed in this case for the return of the paintings. The district court granted the motion and dismissed

Saher’s claim with prejudice. The district court held that

§ 354.3’s extension of the statute of limitations was unconstitutional on its face, because it violated the foreign affairs doctrine, as interpreted and applied by the Ninth Circuit in

1022 VON SAHER v. NORTON SIMON MUSEUM OF ART
Deustch, 324 F.3d 692. The district court concluded that by

seeking to redress wrongs committed in the course of World

War II, the California statute intruded on the federal government’s exclusive power to make and resolve war, including

the procedure for resolving war claims. The court then dismissed Saher’s complaint because it had not been filed within

the three-year period of California’s statute of limitations,

California Code of Civil Procedure § 338. This appeal followed. 

II. Standard of Review

We review de novo the district court’s decision dismissing

Saher’s complaint under Rule 12(b)(6). Edwards v. Marin

Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). We accept

all well-pleaded factual allegations as true, and construe them

in the light most favorable to Saher. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, ___, 127 S. Ct. 1955, 1965 (2007);

Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122

(9th Cir. 2008). 

III. Motion for Judicial Notice

The Museum moves for judicial notice of two Presidential

Commission reports, a military order approved by President

Truman and enacted under the command of General Eisenhower, and a memorandum prepared by a State Department

committee. Judicial notice of legislative facts such as these is

unnecessary. Fed. R. Evid. 201(a), advisory comm. note to

1972 amendments. See, e.g., Toth v. Grand Trunk R.R., 306

F.3d 335, 349 (6th Cir. 2002) (“[J]udicial notice is generally

not the appropriate means to establish the legal principles

governing the case.”). 

The Museum also moves for judicial notice of the fact that

various newspapers, magazines, and books have published

information about the Cranachs. Courts may take judicial

notice of publications introduced to “indicate what was in the

VON SAHER v. NORTON SIMON MUSEUM OF ART 1023
public realm at the time, not whether the contents of those

articles were in fact true.” Premier Growth Fund v. Alliance

Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2001); accord

Heliotrope Gen. Inc. v. Ford Motor Co., 189 F.3d 971, 981

n.118 (9th Cir. 1999) (taking judicial notice “that the market

was aware of the information contained in news articles submitted by the defendants.”). These publications meet the standards for admissibility set forth in Federal Rule of Evidence

201(b). Accordingly, we take judicial notice of them solely as

an indication of what information was in the public realm at

the time.

IV. Constitutionality of § 354.4 Under the Foreign

Affairs Doctrine

The Supreme Court has characterized the power to deal

with foreign affairs as a primarily, if not exclusively, federal

power. See, e.g., Am. Ins. Assoc. v. Garamendi, 539 U.S. 396,

413-14 (2003); Zschernig v. Miller, 389 U.S. 429, 432 (1968);

Hines v. Davidowitz, 312 U.S. 52, 63 (1941). The Supreme

Court has declared state laws unconstitutional under the foreign affairs doctrine when the state law conflicts with a federal action such as a treaty, federal statute, or express

executive branch policy. See, e.g., Garamendi, 539 U.S. at

421-22 (invalidating a California statute which conflicted

with Presidential foreign policy); Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 373-74 (2000) (invalidating a

Massachusetts statute which stood as an obstacle to a Congressional act imposing sanctions on Burma); U.S. v. Belmont,

301 U.S. 324, 327 (1937) (holding that the Litvinov Assignment, an executive agreement, preempted New York public

policy). 

Occasionally, however, in the absence of any conflict, the

Court has declared state laws to be incompatible with the federal government’s foreign affairs power. See, e.g., Zschernig,

389 U.S. at 432 (striking down an Oregon probate law, in the

absence of any federal action, because it was an “intrusion by

1024 VON SAHER v. NORTON SIMON MUSEUM OF ART
the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress”); Hines, 312

U.S. at 63 (invalidating a Pennsylvania immigration law

because the field of immigration regulation was occupied

exclusively by federal statutes and regulations); see also

Deutsch, 324 F.3d at 712 (concluding that § 354.6 infringed

on the federal government’s exclusive power to wage and

resolve war).

The Museum argues that § 354.3 is preempted under either

theory. First, the Museum contends, § 354.3 conflicts with the

Executive Branch’s policy of external restitution following

World War II. Alternatively, the Museum argues, § 354.3 is

preempted because it infringes on the federal government’s

exclusive power to conduct foreign affairs, and specifically,

the power to redress injuries arising from war. We address

each argument in turn.

A. Does § 354.3 Conflict With the Executive Branch’s

Policy of External Restitution?

[1] Federal law’s “power” to preempt state law arises from

the Supremacy Clause, which provides that “the Laws of the

United States” and “all Treaties . . . shall be the supreme Law

of the Land . . . any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” U.S. Const. art. VI,

§ 2. Under a traditional statutory preemption analysis, conflict

or obstacle preemption occurs where the state law “stands as

an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (citing Hines,

312 U.S. at 67) (internal quotation marks omitted). 

[2] Executive agreements settling claims with foreign

nations and nationals have long been accorded the same preemptive effect. Garamendi, 539 U.S. at 416 (“[V]alid executive agreements are fit to preempt state law, just as treaties

are[.]”); Dames & Moore v. Regan, 453 U.S. 654 (1981);

VON SAHER v. NORTON SIMON MUSEUM OF ART 1025
United States v. Pink, 315 U.S. 203 (1941); Belmont, 301 U.S.

at 324. In Garamendi, the Supreme Court invalidated a California statutory scheme which facilitated litigation of

Holocaust-era insurance claims. Garamendi, 539 U.S. at 401.

The Court concluded that the California scheme posed an

obstacle to the German Foundation Agreement and other

expressions of Executive Branch policy preferring nonjudicial resolution of such claims. Id. at 405-07. 

Here, the Museum contends that § 354.3 is preempted by

the Executive Branch’s policy of external restitution. This

policy, the Museum argues, was expressed in two main

sources: first, the London Declaration, and second, “Art

Objects in US Zone,” a U.S. policy statement approved by

President Truman during the Potsdam Conference in August

of 1945. 

London Declaration

The United States and the Netherlands, along with sixteen

other nations, were signatories to the London Declaration of

January 5, 1943. Forced Transfers of Property in EnemyControlled Territory, 1943, in 3 Dep’t of State, Treaties and

Other International Agreements of the United States of America 1776-1949, p. 754 (C. Bevans comp. 1969) (hereinafter

Bevans). The Declaration served as a “formal warning to all

concerned, and in particular persons in neutral countries,” that

the Allies intended “to do their utmost to defeat the methods

of dispossession practiced by the governments with which

they [were] at war[.]” Id. 

In the Declaration, the Allies explicitly reserved the right

to invalidate wartime transfers of property, regardless of

“whether such transfers or dealings [had] taken the form of

open looting or plunder, or of transactions apparently legal in

form, even when they purport[ed] to be voluntarily effected.”

Id. The Declaration does not explicitly address restitution or

reparations, but has been credited by some with laying the

1026 VON SAHER v. NORTON SIMON MUSEUM OF ART
foundation for the United States’s postwar restitution policy.

See, e.g., Plunder and Restitution at SR-139.

Art Objects in U.S. Zones

When the American forces entered Germany in the winter

of 1944-45, they discovered large stashes of Nazi-looted art,

hidden in castles, banks, salt mines, and even caves. Plunder

and Restitution at SR-13, SR-85. U.S. authorities established

several central collection points within the U.S. Zone to

assemble the recovered artwork “for proper care and study.”

Report, Art Objects in US Zone, July 29, 1945, NACP, RG

338, USGCC HQ, ROUS Army Command, Box 37, File: Fine

Art [313574-575] (hereinafter “Art Objects in U.S. Zone”).

On July 29, 1945, at the Potsdam Conference, President

Truman approved a policy statement setting forth the standard

operating procedures governing the looted artwork found

within the U.S. zone of occupation. Art Objects in US Zone;

Roberts Commission Report at 148. The governments of the

formerly occupied countries submitted consolidated lists of

items taken by the Germans, with information about the location and circumstances of the theft. Plunder and Restitution at

SR-142. The U.S. authorities examined the lists, and when

artwork was identified, it was returned to the country of origin. Id. Under this policy of “external restitution,” the U.S.

restituted the looted artwork to countries, not individuals. Art

Objects in US Zone; Plunder and Restitution at SR-139-SR142. The newly liberated governments were responsible for

restituting the art to the individual owners. Once the art was

returned to the country of origin, the U.S. played no further

role.

A contemporaneous memorandum from the State Department illuminates several of the reasons the federal government preferred the policy of external restitution over

individual restitution. U.S. Dep’t of State, Memorandum from

Interdivisional Comm. on Rep., Rest., & Prop. Rights, SubVON SAHER v. NORTON SIMON MUSEUM OF ART 1027
comm. 6, Recommendations on Restitution, Apr. 10, 1944, 1,

NACP, RG 59, Lot 62D-4, Box 49, State/Notter, [320633-

644] (hereinafter Recommendations on Restitution). First, in

view of the complexities of the sham transactions through

which the Nazis seized many of the artworks, the State

Department felt it best to allow the individual countries to

handle restitution in “whatever way they see fit.” Id. at 2. Second, the State Department observed, in some cases, it might

“be impossible to locate the original owners or their heirs and

the governments involved will have to decide what should be

done with the property or proceeds therefrom.” Id. Finally, the

State Department recognized that the liberated countries

themselves had a stake in the restitution of art owned by their

citizens:

[I]n many, if not most, cases the local funds [with

which the Nazis “purchased” the art from the persecuted] were supplied originally by the local government or central bank as occupation costs or through

forced credits. The Germans in effect forced the

local government to pay for their purchases. The

individual owner received recompense in local currency but the country as a whole received no recompense for the transfer of property to foreign owners.

These cases constitute looting just as much as the

cases of outright seizure without recompense.

Id. at 2-3.

The U.S. authorities stopped accepting claims for external

restitution of looted artwork as of September 15, 1948. Plunder and Restitution at SR-143. By the beginning of 1949,

close to three million pieces of Jewish cultural property had

been restituted to twelve different countries by the U.S.

authorities. Id.

Had California enacted § 354.3 in 1945, it would have

directly conflicted with the federal government’s policy of

1028 VON SAHER v. NORTON SIMON MUSEUM OF ART
external restitution. If the statute had been enacted in the

immediate aftermath of the war, it would have presented a

competing method of resolving restitution claims, and a

forum for individuals to seek the return of their looted art—in

clear contravention of the Executive Branch policy. The California statute also would have presented a direct threat to several of the goals underlying the Executive Branch’s policy,

including the rehabilitation of Germany.

[3] The United States’s policy of external restitution, however, ended in 1948. After September 15, 1948, the U.S.

authorities refused to accept any more claims for external restitution. Plunder and Restitution at SR-143. In fact, as Saher

states in her complaint, the Cranachs were returned to the

Netherlands through the U.S. external restitution program.

Section 354.3 cannot conflict with or stand as an obstacle to

a policy that is no longer in effect.

The Museum also argues, however, that many of the federal government’s concerns leading to the external restitution

policy remain relevant today. For example, the Museum

argues that claims under § 354.3 are problematic, because

they ask California courts to review the restitution decisions

of foreign governments.3 Even if true, there would still be no

conflict because, as stated above, the external restitution policy is no longer in effect.

[4] In sum, had the California statute been enacted immediately following WWII, it undoubtedly would have conflicted

with the Executive Branch’s policy of external resolution. The

statute does not, however, conflict with any current foreign

policy espoused by the Executive Branch. 

3These and other related concerns are addressed more fully in the section below dealing with field preemption. 

VON SAHER v. NORTON SIMON MUSEUM OF ART 1029
B. In the Absence of Any Conflict With Federal Law or

Foreign Policy, is § 354.3 Nonetheless Preempted Under

the Foreign Affairs Doctrine?

At times, albeit seldomly, the Supreme Court has found a

state law to be preempted because it infringes upon the federal

government’s exclusive power to conduct foreign affairs,

even though the law does not conflict with a federal law or

policy. Zschernig, 389 U.S. at 432; Hines, 312 U.S. at 63. In

Garamendi, the Court suggested that a traditional statutory

“field” preemption analysis should be employed in such

cases: 

If a State were simply to take a position on a matter

of foreign policy with no serious claim to be

addressing a traditional state responsibility, field preemption might be the appropriate doctrine, whether

the National Government had acted, and if it had,

without reference to the degree of any conflict, the

principle having been established that the Constitution entrusts foreign policy exclusively to the

National Government. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 63 (1941).

Garamendi, 539 U.S. at 420 n.11. 

[5] Unlike its traditional statutory counterpart, foreign

affairs field preemption may occur “even in [the] absence of

a treaty or federal statute, [because] a state may violate the

Constitution by establishing its own foreign policy.” Deutsch,

424 F.3d at 709 (internal citation and quotations omitted). The

central question, then, is this: in enacting § 354.3, has California addressed a traditional state responsibility, or has it

infringed on a foreign affairs power reserved by the Constitution exclusively to the national government?

1030 VON SAHER v. NORTON SIMON MUSEUM OF ART
1. Does § 354.3 Concern a Traditional State Responsibility?

Saher contends § 354.3 concerns a quintessential state

function: the establishment of a statute of limitations for

actions seeking the return of stolen property. Property, of

course, is traditionally regulated by the state. But § 354.3 cannot be fairly categorized as a garden variety property regulation. Section 354.3 does not apply to all claims of stolen art,

or even all claims of art looted in war. The statute addresses

only the claims of Holocaust victims and their heirs. Section

354.3(b). 

[6] Courts have consistently struck down state laws which

purport to regulate an area of traditional state competence, but

in fact, affect foreign affairs. See, e.g., Garamendi, 539 U.S.

at 425-26 (rejecting purported state interest in regulating

insurance business and blue sky laws); Crosby, 530 U.S. at

367, 373 n.7 (rejecting purported state interest in taxing and

spending); Zschernig v. Miller, 389 U.S. 429, 437-38 (1968)

(rejecting purported state interest in regulating descent of

property); Deutsch, 324 F.3d at 707 (rejecting purported state

interest in procedural rules). 

The Garamendi Court in dicta rejected the “traditional state

interests” advanced by California in support of HVIRA, finding instead that the real purpose of the state law was the “concern for the several thousand Holocaust survivors said to be

living in the state.” Garamendi, 539 U.S. at 426. Though

§ 354.3 purports to regulate property, an area traditionally left

to the states, like HVIRA, § 354.3’s real purpose is to provide

relief to Holocaust victims and their heirs.

California’s desire to help its resident Holocaust victims

and their heirs is a noble legislative goal, with which we are

entirely sympathetic. In Garamendi, however, the Supreme

Court held that “California’s concern for the several thousand

Holocaust survivors said to be living in the state . . . does not

VON SAHER v. NORTON SIMON MUSEUM OF ART 1031
displace general standards for evaluating a State’s claim to

apply its forum law to a particular controversy or transaction,

under which the State’s claim is not a strong one.” Garamendi, 539 U.S. at 426-27. The State’s interest alone was not

sufficient in Garamendi to save the statute: “[T]here being

about 100,000 survivors in the country, only a small fraction

of them live in California. As against the responsibility of the

United States of America, the humanity underlying the state

statute could not give the State the benefit of any doubt in

resolving the conflict with national policy.” Id.

California arguably has a stronger interest in enacting

§ 354.3 than it did in enacting the related statutes struck down

in Deutsch and Garamendi. Section 354.3 addresses the problem of Nazi-looted art currently hanging on the walls of the

state’s museums and galleries. Assem. Jud. Com., Background Information Worksheet for Assem. Bill No. 1758

(2001-2002 Reg. Sess.) Jan. 30, 2002. 

California certainly has a legitimate interest in regulating

the museums and galleries operating within its borders, and

preventing them from trading in and displaying Nazi-looted

art. Indeed, it appears the original goal of § 354.3 may have

been to regulate California museums and galleries in such a

manner. Prior to its enactment, however, the bill was

amended. The restriction limiting the scope of the statute to

suits against “museums and galleries in California” was

stricken. Assem. Amend. to Assem. Bill No. 1758 (2001-2002

Reg. Sess.); Sen. Jud. Com., Analysis of Assem. Bill No.

1758 (2001-2002 Reg. Sess.) Jun. 25, 2002, pp. 5-6. As

enacted, the statute allows suits against “any museum or gallery that displays, exhibits, or sells any article of historical,

interpretive, scientific, or artistic significance,” whether

located in the state or not. Section 354.3(a)(1). 

The scope of the statute as enacted belies California’s purported interest in protecting its residents and regulating its art

trade. The amended version of § 354.3 suggests that Califor1032 VON SAHER v. NORTON SIMON MUSEUM OF ART
nia’s real purpose was to create a friendly forum for litigating

Holocaust restitution claims, open to anyone in the world to

sue a museum or gallery located within or without the state.

A memorandum from the Governor’s office provides further

illustration of California’s intent. In it, California is characterized as a pioneering leader in the quest for justice for Holocaust victims:

In the past decade, it has come to the public’s attention that spoils gained by the Nazi Holocaust were

enjoyed not just by the Nazis. California has been a

leader in exposing those entities who benefitted

financially from the plunder or exploited the unusual

circumstances of the Holocaust, who have been less

than forthcoming in their business dealings.

Governor’s Office of Planning & Research, Enrolled Bill

Report on Assem. Bill No. 1758 (2001-2002) Reg. Sess.)

Aug. 1, 2002 (emphasis added). 

By opening its doors as a forum to all Holocaust victims

and their heirs to bring Holocaust claims in California against

“any museum or gallery” whether located in the state or not,

California has expressed its dissatisfaction with the federal

government’s resolution (or lack thereof) of restitution claims

arising out of Word War II. In so doing, California can make

“no serious claim to be addressing a traditional state responsibility.” Garamendi, 539 U.S. at 419 n.11; see also Deutsch,

324 F.3d at 712 (rejecting California’s interest in “redress-

[ing] wrongs committed in the course of the Second World

War”). California cannot have a “distinct juristic personality”

from that of the United States when it comes to matters of foreign affairs. Pink, 315 U.S. at 232. When it comes to dealings

with foreign nations, “state lines disappear.” Belmont, 301

U.S. at 331. 

[7] In sum, the scope of § 354.3 belies any purported state

interest in regulating stolen property or museums or galleries

VON SAHER v. NORTON SIMON MUSEUM OF ART 1033
within the State. By enacting § 354.3, California has created

a world-wide forum for the resolution of Holocaust restitution

claims. While this may be a laudable goal, it is not an area of

“traditional state responsibility,” and the statute is therefore

subject to a field preemption analysis. See Garamendi, 539

U.S. at 419 n.11.

2. Does the California Statute Intrude on a Power

Expressly or Impliedly Reserved to the Federal Government by the Constitution?

The District Court held that § 354.3 intrudes on the power

to make and resolve war, a power reserved exclusively to the

federal government by the Constitution. We agree.

The Constitution divides the war power between the Executive, who is the Commander-in-Chief of the Armed Forces,

and the Congress, who has the power to declare war. U.S.

Const. art. II, § 2; Id. at art. I, § 8. Deutsch clearly provides

that “[m]atters related to war are for the federal government

alone to address,” and state statutes which infringe on this

power will be preempted. Deutsch, 324 F.3d at 712. 

Section 354.3 establishes a remedy for wartime injuries.

The legislative findings accompanying the statute repeatedly

reference the “Nazi regime,” “Nazi persecution,” and “the

many atrocities” the Nazis committed. 2002 Cal. Legis. Serv.

332 (West 2002). By enacting § 354.3, California “seeks to

redress wrongs committed in the course of the Second World

War” — a motive that was fatal to § 354.6. Deutsch, 354 F.3d

at 712. 

Section 354.3 was closely modeled on § 354.6, which was

found to infringe on the federal government’s exclusive

power to make and resolve war. Sen. Rules Com., Off. of Sen.

Floor Analyses, 3d. reading analysis of Assem. Bill No. 1758

(2001-2002 Reg. Sess.) Aug. 8, 2002. Like its sister statute

struck down in Deutsch, § 354.3 “creates a special rule that

1034 VON SAHER v. NORTON SIMON MUSEUM OF ART
applies only to a newly defined class” of plaintiffs. Id. Like

§ 354.6, § 354.3 creates a new cause of action “with the aim

of rectifying wartime wrongs committed by our enemies or by

parties operating under our enemies’ protection.” 324 F.3d at

708. This is significant because, as the Deutsch Court noted,

“[a] state is generally more likely to exceed the limits of its

power when it seeks to alter or create rights and obligations

than when it seeks merely to further enforcement of already

existing rights and duties.” 324 F.3d at 708. 

Saher, however, argues that § 354.3 is distinguishable from

the statute at issue in Deutsch, because it does not target former wartime enemies. Section 354.3 authorizes suits only

against museums and galleries, but the actionable injury at the

heart of the statute is the Nazi theft of art. The California legislature enacted § 354.6 “with the aim of rectifying wartime

wrongs committed by our enemies or by parties operating

under our enemies’ protection.” Deutsch, 324 F.3d at 708.

California enacted § 354.3 with the same verboten intent. Distinctions between the class of eligible defendants are irrelevant in light of this fatal similarity.

Saher also contends that under Alperin v. Vatican Bank,

410 F.3d 532 (9th Cir. 2005), claims for restitution of “garden

variety property” can be distinguished from claims for reparation arising from wartime injury. In Alperin we considered

whether the claims for restitution presented by a class of

Holocaust survivors presented a nonjusticiable political question. Saher places particular reliance on the following quote:

“Reparation for stealing, even during wartime, is not a claim

that finds textual commitment in the Constitution.” Alperin,

410 F.3d at 551. This quote references the first Baker test,

which requires courts to consider whether the case in question

concerns an issue that has been textually committed by the

Constitution to another branch of government. Id. at 544, 549-

52 (citing Baker v. Carr, 369 U.S. 186, 210-11 (1962)). Ultimately, in Alperin we concluded that despite the political

overtones inherent in cases brought by Holocaust survivors,

VON SAHER v. NORTON SIMON MUSEUM OF ART 1035
the underlying property issues presented in such cases were

not political questions constitutionally committed to the political branches. Id. at 551.

Saher’s reliance on Alperin is misplaced. Our holding that

the judiciary has the power to adjudicate Holocaust-era property claims does not mean that states have the power to provide legislative remedies for these claims. Here, the relevant

question is whether the power to wage and resolve war,

including the power to legislate restitution and reparation

claims, is one that has been exclusively reserved to the

national government by the Constitution. We conclude that it

has.

[8] Section 354.3, at its core, concerns restitution for injuries inflicted by the Nazi regime during Word War II. Claims

brought under this statute, including the instant claim, would

require California courts to review acts of restitution made by

foreign governments. For example, in this case, the parties

contest the provenance of the Cranachs. In order to determine

whether the Museum has good title to the Cranachs, a California court would necessarily have to review the restitution

decisions made by the Dutch government and courts. This

example illustrates that § 354.3 claims cannot be separated

from the Nazi transgressions from which they arise.

Our conclusion today is buttressed by the documented history of federal action addressing the subject of Nazi-looted

art. The Art Looting and Investigation Unit of the Office of

Strategic Services gathered a great deal of intelligence about

looted art through covert operations during and after the war.

Plunder and Restitution at SR-92. Immediately following the

war, the federal government implemented the program of

external restitution, as discussed in more detail above. It is

beyond dispute that there was no role for individual states to

play in the restitution of Nazi-looted assets during and immediately following the war. 

1036 VON SAHER v. NORTON SIMON MUSEUM OF ART
Recent Administrations and Congresses continue to address

problems facing Holocaust survivors and their heirs. See, e.g.,

Pub. L. No. 105-186, June 23, 1998, 112 Stat. 611, codified

at 22 U.S.C. § 1621 (establishing the Presidential Advisory

Commission on Holocaust Assets in the United States); Plunder & Restitution, supra (the final report of the Presidential

Advisory Commission on Holocaust Assets in the United

States); U.S. Dep’t of State, Washington Conference Principles on Nazi-Confiscated Art (Dec. 3, 1998),

http://www.state.gov/p/eur/rt/hlcst/23231.htm (hereinafter

Washington Principles). (adopted by the forty-four governments participating in the Washington Conference on

Holocaust-Era Assets, hosted by the State Department on

December 3, 1998). This history of federal action is so comprehensive and pervasive as to leave no room for state legislation. Cf. English v. General Elec. Co., 496 U.S. 72, 79 (1990)

(discussing traditional statutory field preemption).

[9] Finally, the federal government, “representing as it does

the collective interests of the . . . states, is entrusted with full

and exclusive responsibility for the conduct of affairs with

foreign sovereignties.” Hines, 312 U.S. at 63. The recovery of

Holocaust-era art affects the international art market, as well

as foreign affairs. Many have called for the creation of an

international registration system, and a commission to settle

Nazi-looted art disputes. See, e.g., Pollock, 43 Houston L.

Rev. at 231. Only the federal government possesses the power

to negotiate and establish these or other remedies with the

international community. As discussed above, the federal

government has initiated discussions with other countries,

which will hopefully yield a comprehensive remedy for all

Holocaust victims and their heirs. See, e.g., Washington Conference Report. No organization comparable to the International Commission on Holocaust Era Insurance Claims has

been established yet to resolve Holocaust-era art claims. This

does not, however, justify California’s intrusion into a field

occupied exclusively by the federal government.

VON SAHER v. NORTON SIMON MUSEUM OF ART 1037
[10] In sum, it is California’s lack of power to act which

is ultimately fatal. In Deutsch, we held that “[i]n the absence

of some specific action that constitutes authorization on the

part of the federal government, states are prohibited from

exercising foreign affairs powers, including modifying the

federal government’s resolution of war-related disputes.”

Deutsch, 324 F.3d at 714. California may not improve upon

or add to the resolution of the war. Id. The factual circumstances surrounding this case — the many years which have

passed since Göring stole the Cranachs from Goudstikker,

restitution of the paintings to the Netherlands by the Allies, or

the changes in ownership since then — cannot save § 354.3

from this fatal flaw.

V. Did the District Court Err in Concluding that Saher’s

claim was Time-Barred Under California Code of Civil

Procedure § 338?

[11] Though Saher cannot bring her claim under § 354.3,

she may be able to state a cause of action within the threeyear statute of limitations of § 338. The district court held that

Saher’s § 338 claim was time-barred, because she did not

inherit her interest in the Cranachs until after the statute of

limitations on the claim had expired. The claim, however,

might survive a Rule 12(b)(6) motion to dismiss depending

upon how Saher might be able to allege the notice element.

A. Constructive Notice

At the time the museum acquired the Cranachs, around

1971, § 338 provided a strict three-year statute of limitations.

Cal. Civ. Proc. Code § 338(3).4 In 1982, the section was

amended to incorporate a discovery rule: “[T]he cause of

action in the case of theft, as defined in § 484 of the Penal

4

In 1988, § 383(3) was renumbered § 383(c); all subsequent references

refer to subsection (c) for simplicity’s sake. 1988 Cal. Legis. Serv. 1186

(West). 

1038 VON SAHER v. NORTON SIMON MUSEUM OF ART
Code, of any art or artifact is not deemed to have accrued

until the discovery of the whereabouts of the article by the

aggrieved party, his or her agent, or the law enforcement

agency that originally investigated the theft.”

5

 Cal. Civ. Proc.

Code § 338(c); 1982 Cal. Legis. Serv. 3401 (West). Saher

does not claim that the 1982 amendments should be applied

to her case. Rather, she contends that the statute of limitations

on her claim did not begin to run until she discovered that the

Cranachs were in the possession of the museum. 

Decisions from California’s intermediate appellate court

have reached differing conclusions as to when the statute of

limitations under § 338 begins to run for property stolen prior

to 1983. In Naftzger v. American Numismatic Society, the

court held that a cause of action for the return of property

stolen before the 1982 amendment “accrue[s] when the owner

discovered the identity of the person in possession of the

stolen property, and not when the theft occurred.” 49 Cal.

Rptr. 2d 784, 786 (Cal. Ct. App. 1996). The Naftzger court

concluded that “there was a discovery rule of accrual implicit

in the prior version of section 338.” 49 Cal. Rptr. 2d at 786.

In Society of California Pioneers v. Baker, however, the court

held that prior to the 1982 amendments, “the statute of limitations began to run anew against a subsequent purchaser.” 50

Cal. Rptr. 2d 865, 869-70 (Cal. Ct. App. 1996). The Pioneers

court specifically noted its disagreement with Naftzger. 50

Cal. Rptr. 2d at 870 n.10. 

The California Supreme Court has not addressed the issue,

but “has, however, specifically held that the discovery rule,

whenever it applies, incorporates the principle of constructive

notice.” Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007)

(citing Jolly v. Eli Lilly & Co., 44 Cal. 3d. 1103, 1109

(1988)). Thus, in Orkin, we concluded that “under the discov5

In 1989, the phrase “art or artifact” was replaced with “article of historical, interpretive, scientific, or artistic significance.” Cal. Civ. Proc. Code

§ 338(c) (West 1989). 

VON SAHER v. NORTON SIMON MUSEUM OF ART 1039
ery rule, a [pre-1983] cause of action accrues when the plaintiff discovered or reasonably could have discovered her claim

to and the whereabouts of her property.” Id. at 471.

Saher argues, however, that the Naftzger court adopted a

discovery rule based on actual, not constructive, notice. As we

pointed out in Orkin, such a rule would be clearly inconsistent

with California Supreme Court precedent. Id. (citing Jolly, 44

Cal. 3d at 1109).

Saher urges that we certify the issue to the Supreme Court

of California for resolution. Though Saher contends that the

Orkin court’s interpretation of California state law is incorrect, “it is well established that we may reconsider earlier

Ninth Circuit precedent only by en banc review or after an

intervening Supreme Court decision.” Class Plaintiffs v. City

of Seattle, 955 F.2d 1268, 1285 (9th Cir. 1992) (declining to

revisit the court’s interpretation of New York state law under

similar circumstances). Under Orkin, we are bound to apply

a constructive notice standard. 

[12] In conclusion, Saher’s cause of action began to accrue

when she discovered or reasonably could have discovered her

claim to the Cranachs, and their whereabouts. Orkin, 487 F.3d

at 741.

B. Reasonable Diligence

The Museum asserts that Saher is precluded as a matter of

law from making the required showing of reasonable diligence, because the facts underlying her claim were publicly

available. We disagree.

A claim may be dismissed under Rule 12(b)(6) on the

ground that it is barred by the applicable statute of limitations

only when “the running of the statute is apparent on the face

of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d

992, 997 (9th Cir. 2006). “[A] complaint cannot be dismissed

1040 VON SAHER v. NORTON SIMON MUSEUM OF ART
unless it appears beyond doubt that the plaintiff can prove no

set of facts that would establish the timeliness of the claim.”

Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir.

1995).

In Orkin, we concluded that the plaintiffs’ claims were

time-barred because the face of the complaint established

facts that foreclosed any showing of reasonable diligence.

Orkin, 487 F.3d at 742. The Orkins’ complaint admitted that

the defendant had purchased the painting in question at a publicized auction, and that she was listed as the owner in a publicly available catalogue raisonné. Id. at 741-42. By contrast,

there are no facts on the face of Saher’s complaint which foreclose a showing of lack of reasonable notice as a matter of

law. 

[13] Because it is not clear that Saher’s complaint could not

be amended to show a lack of reasonable notice, dismissal

without leave to amend was not appropriate. See Eminence

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

2003). We, therefore, grant Saher leave to amend her complaint to allege the lack of reasonable notice to establish diligence under California Code of Civil Procedure § 338, and

remand this case to the district court for that purpose.

VI. Conclusion

The judgment of the district court is AFFIRMED in part

and REVERSED in part. The case is REMANDED for further proceedings consistent with this opinion. 

PREGERSON, Circuit Judge, dissenting in part:

I dissent from the majority’s conclusion that California is

acting outside the realm of traditional state responsibility, and

that field preemption applies. Where a State acts within its

VON SAHER v. NORTON SIMON MUSEUM OF ART 1041
“traditional competence,” the Supreme Court has suggested

that conflict preemption, not field preemption, is the appropriate doctrine. Am. Ins. Ass’n v. Garamendi, 539 U.S. 395, 420

n.11 (2003). Garamendi counsels that field preemption would

apply “[i]f a State were simply to take a position on a matter

of foreign policy with no serious claim to be addressing a traditional state responsibility. . . .” Id. That is not the case here.

It is undisputed that property is traditionally regulated by

the State. The majority acknowledges that California has a

legitimate interest in regulating museums and galleries, and

that California Code of Civil Procedure § 354.3 “addresses

the problem of Nazi-looted art currently hanging on the walls

of the state’s museums and galleries.” Maj. Op. at 1032. However, the majority goes on to hold that because Section 354.3

applies to any museum or gallery, “California has created a

world-wide forum for the resolution of Holocaust restitution

claims,” and that the State is therefore acting outside the

scope of its traditional interests. Maj. Op. at 1034. 

The majority reads the statute far too broadly. A reasonable

reading of “any museum or gallery” would limit Section

354.3 to entities subject to the jurisdiction of the State of California. Because California has a “serious claim to be addressing a traditional state responsibility,” it is clear that

Garamendi requires us to apply conflict preemption, not field

preemption. 

The majority’s reliance on Deutsch v. Turner, 324 F.3d

692, (9th Cir. 2005) is misplaced. The statute in Deutsch, California Code of Civil Procedure § 354.6, allowed recovery for

slave labor performed “between 1929 and 1945, [for] the Nazi

regime, its allies and sympathizers, or enterprises transacting

business in any of the areas occupied by or under control of

the Nazi regime or its allies and sympathizers.” This court

held that California impermissibly intruded upon the power of

the federal government to resolve war by enacting the

Deutsch statute “with the aim of rectifying wartime wrongs

1042 VON SAHER v. NORTON SIMON MUSEUM OF ART
committed by our enemies . . . .” Id. at 708, 711(emphasis

added).

The majority concludes that Section 354.3 suffers from a

“fatal similarity” to the Deutsch statute because Section 354.3

applies to looted artwork. Maj. Op. at 1035. I do not agree.

The majority overlooks significant differences between the

Deutsch statute and Section 354.3. First, as discussed above,

here California has acted within the scope of its traditional

competence to regulate property over which it has jurisdiction. Furthermore, unlike the statute in Deutsch, Section 354.3

does not target enemies of the United States for wartime

actions. Nor, contrary to the majority’s characterization, does

Section 354.3 provide for war reparations.1 Maj. Op. at 1036.

Here, Appellee, a museum located in California, acquired

stolen property in 1971. Appellant now seeks to recover that

property. I fail to see how a California statute allowing such

recovery intrudes on the federal government’s power to make

and resolve war. 

I would reverse the district court. As the majority correctly

holds, Section 354.3 does not conflict with federal policy.

However, California has acted within its traditional competence, and field preemption should not apply. Accordingly, I

dissent in part. 

1Black’s Law Dictionary defines reparation as “[c]ompensation for an

injury or wrong, esp. for wartime damages or breach of an international

obligation.” Black’s Law Dictionary 1325 (8th ed. 2004). Section 354.3

allows only for the recovery of stolen art. 

VON SAHER v. NORTON SIMON MUSEUM OF ART 1043