Benningson v. Alsdorf 4/15/04 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B168200

Case Date: 07/28/2004

Preview:Filed 4/15/04 Bennigson v. Alsdorf CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THOMAS C. BENNIGSON, Plaintiff and Appellant, v. MARILYNN ALSDORF, Defendant and Respondent. B168200 (Los Angeles County Super. Ct. No. BC287294)

APPEAL from an order of the Los Angeles County Superior Court, Victor H. Person, Judge. Affirmed in part; dismissed in part. Burris & Schoenberg, LLP, E. Randol Schoenberg, Donald S. Burris and Jessica A. Moskovitz, for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, LLP, Polly Towill and Karin Dougan Vogel; FagelHaber LLC, Richard H. Chapman, David M. Rownd and Beth L. Hansher, for Defendant and Respondent. __________________________

A California resident appeals from an order granting a defendant's motion to quash service of summons and complaint based for lack of personal jurisdiction over the defendant, an Illinois resident. We find the defendant's contacts with California too attenuated to justify the assertion of specific personal jurisdiction, and affirm. FACTUAL AND PROCEDURAL BACKGROUND This action involves a dispute over the ownership of "Femme en Blanc," a painting by Pablo Picasso which was allegedly looted by the Nazis during World War II. The painting is alleged to be worth over $10 million. Plaintiff and appellant Thomas Bennigson is the grandson and heir of Robert and Carlota Landsberg, who are now deceased. Bennigson, who lives in Oakland, California, alleges his grandparents owned the painting. Before Robert Landsberg's death in 1932, the Landsbergs lived in Berlin. After the Nazis took over Germany in 1933, Carlota Landsberg, who was Jewish, feared persecution. She sent the painting to an art dealer in France for safekeeping. The painting was stolen from the art dealer by the Nazis, after the invasion of France in 1940. Efforts by the art dealer and Bennigson's grandmother to locate the painting after the war were unsuccessful, and it remained "lost" to Bennigson until 2002, when he learned it was at an art gallery in Los Angeles, owned by David Tunkl.
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Defendant and respondent Marilynn Alsdorf is an art collector and an Illinois resident. Alsdorf and her late husband bought the painting for $357,000 from an art dealer in New York. Bennigson initiated this action for replevin and injunctive relief on December 19, 2002. On December 20, 2002, the trial court issued a temporary restraining order (TRO). Alsdorf was enjoined from removing the painting from Tunkl's gallery pending a hearing on Bennigson's request for a preliminary injunction or ordered to return the painting to the gallery if it had already been removed.
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Tunkl was a defendant in this action but is not a party to this appeal.

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Alsdorf's motion to quash: The summons and complaint were served on Alsdorf December 27, 2002. Shortly thereafter, Alsdorf moved to quash service for lack of personal jurisdiction. In her declaration in support of that motion, Alsdorf, who was 77 years old at the time, said she did no business in California, and had never lived in or owned any property in this state. No business entity or charitable organization of which Alsdorf is a principal conducts business or owns property in California. Alsdorf and her late husband bought the painting in 1975 from an art gallery in New York City. The Alsdorfs understood the dealer had purchased the painting in France. With two brief exceptions, the painting has hung in Alsdorf's home since 1975. In Fall 2001, Alsdorf allowed Tunkl to display the painting at his gallery in Los Angeles for about one month. At that time, the painting was not for sale. In early 2002, Tunkl told Alsdorf he knew of a potential buyer for the painting in France. Alsdorf shipped the painting to Switzerland, where Tunkl attempted to sell it. While the painting was still in Switzerland, Alsdorf learned that the Art Loss Register (ALR), an international organization which assists in identifying, locating and recovering Nazi-looted art for Holocaust victims, had evaluated the painting's history and believed it had been stolen by the Nazis during World War II. At the time, The ALR claimed the Silva Casa Foundation, a Swiss foundation, was the sole heir to the painting. The ALR also claimed it had authority to negotiate a settlement of the Silva Casa Foundation's claim to the painting. Tunkl did not believe the issues raised by the ALR would prevent the painting from being sold. Alsdorf retained Tunkl's Los Angeles-based attorney, Stephen Bernard, and authorized him to resolve the matter with the ALR.
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In the past, Tunkl had helped Alsdorf sell other paintings, none of which was sold in California. With respect to the Picasso painting at issue here, Alsdorf did not have a written agreement with Tunkl and he did not have authority to accept an offer to purchase the painting.

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Sometime during Spring or Summer 2002, Tunkl told Alsdorf he knew of another potential buyer for the painting, and arranged for it to be shipped from Switzerland to Los Angeles while negotiations with the ALR continued. Alsdorf met with Tunkl in Chicago on Friday, December 13, 2002. During that meeting, Alsdorf learned for the first time that the ALR had changed its position regarding the history of the painting, and that someone other than the Silva Casa Foundation was now asserting an ownership claim to the painting. At the time, Alsdorf knew nothing about the identity of the new claimant. Alsdorf, uncomfortable with the conflicting positions the ALR had taken regarding the painting's history, and believing no sale was imminent, instructed Tunkl to return the painting to her in Chicago. She told Tunkl she was leaving town on December 19, and wanted it returned before then. That same day, Alsdorf also called Tunkl's assistant in Los Angeles and asked her to have the painting immediately sent to Chicago. When she instructed Tunkl and his assistant to return the painting, Alsdorf did not know it was a California resident who had asserted a claim of ownership to the painting, nor did she know a lawsuit was about to be filed in connection with that claim. The painting was picked up from Tunkl's gallery by a shipper on December 18, 2002. On December 20, at 6:36 a.m., the painting left Los Angeles on a cargo plane bound for Chicago. Later that morning, the court issued the TRO ordering that the painting remain in Los Angeles.
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Bennigson's opposition to the motion to quash: Bennigson argued the court had personal jurisdiction over Alsdorf because Alsdorf had purposefully availed herself of California's benefits and protections, and because the painting was still in Los Angeles the day the complaint was filed. Bennigson also argued

The TRO was later modified to allow Alsdorf to keep the painting in her Chicago apartment, where it remains.

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Alsdorf had attempted to evade jurisdiction by having the painting sent back to Chicago after this lawsuit was filed. In support of his position, Bennigson offered the following: Bennigson's attorney, Randol Schoenberg contacted Bernard December 10, 2002. Bernard told Schoenberg he represented Alsdorf and Tunkl, and was engaged in settlement negotiations with the ALR. Bernard, who was out of town at the time, agreed to meet with Schoenberg during the week of December 16, after Bernard returned to Los Angeles. On December 16, 2002, Schoenberg sent Bernard an e-mail message requesting to set up a meeting. Bernard did not respond. On December 18, 2002, Schoenberg called Bernard. Bernard told him that all settlement offers were "off the table," and that the painting was "on its way to Chicago." Bernard did not know if the painting was still en route to Chicago, or if it had already arrived. Bernard also said he believed Illinois law was more favorable to his clients than California law. Believing the painting might still be in Los Angeles, Schoenberg filed the complaint and an ex parte application for a TRO on the morning of December 19, but chose not to notify Bernard or Alsdorf. Later that day Schoenberg did notify Bernard of the TRO hearing on December 20, after the court refused to entertain Bennigson's ex parte application without notice to the other side. The TRO issued mid-morning December 20. However, by that time, the painting was already on its way to Chicago. The motion is granted: The motion to quash was heard on March 13, 2003, and the court took the matter under submission. While the matter was under submission, the parties filed additional briefs. In addition, Bennigson filed a motion for leave to amend, a motion to conduct jurisdictional discovery, and a motion to have the judge presiding over the matter disqualified for cause. All the motions were stayed pending a decision on the disqualification motion and were eventually denied.

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The trial court issued its minute order June 16, 2003. It found that California lacked personal jurisdiction over Alsdorf, and granted the motion to quash. Bennigson appeals.
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DISCUSSION Bennigson contends the trial court erred in concluding it lacked grounds to exercise specific personal jurisdiction over Alsdorf, a nonresident defendant. He is mistaken. 1. Standard of review. On a defendant's motion to quash for lack of personal jurisdiction, the plaintiff bears the initial burden of establishing a factual basis for jurisdiction, by a preponderance of the evidence. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 535.) On appeal, evidentiary conflicts are resolved against the appellant and in favor of the order, if the trial court's decision is supported by substantial evidence. (Ibid.) However, if there is no conflict in the determinative evidence, the issue is one of law subject to our de novo review. (Ibid.) 2. The trial court correctly declined to assert personal jurisdiction. California's long-arm statute reaches as far as the state and federal constitutions allow. (Code Civ. Proc.,

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