Lawsuit Against Notary Public and Sureties Negligence Law Elements Defense Lawyer
Definition.
A notary public and the sureties on the notary public’s official bond are liable for all damages caused by the official misconduct or neglect of the notary public. (Cal. Gov’t Code, § 8214.)
Notary public cannot act in any matter in which he has financial or beneficial interest; for notary to acknowledge his own signature would be “official misconduct” within meaning of this section. Bank of America Nat’l Trust & Sav. Asso. v. Dowdy (Cal. App. 2d Dist. Nov. 25, 1960), 186 Cal. App. 2d 690.
Since seal of notary is subject of judicial notice (CCP former § 1875 subd 8), any use thereof by notary is an official act and wrongful use of seal is “official misconduct” within meaning of this section. Bank of America Nat’l Trust & Sav. Asso. v. Dowdy (Cal. App. 2d Dist. Nov. 25, 1960), 186 Cal. App. 2d 690.
In view of this statute, among others, where notary public certified that chattel mortgage had been acknowledged when in fact it had not been, mortgage was ineffectual as against trustee in bankruptcy. Martin v. Crocker-Citizens Nat’l Bank (9th Cir. Cal. Aug. 3, 1965), 349 F.2d 580.
The sureties of a notary public are not liable for money fraudulently obtained and retained by him. Heidt v. Minor (Cal. May 18, 1891), 89 Cal. 115.
If the deed acknowledged by the notary is not genuine, the notary and his sureties will be held liable for resulting damages, unless they take the precautions expressly required by statute. Joost v. Craig (Cal. Feb. 7, 1901), 131 Cal. 504.
Surety not liable for notary’s acts as attorney or agent, where notary was acting as such in loaning money for his clients. Norton v. Title Guaranty & Surety Co. (Cal. Sept. 25, 1917), 176 Cal. 212.
If the acknowledged deed is genuine, the notary or his sureties are not liable, even though they have not taken the precautions required by statute. Brown v. Rives (Cal. App. July 29, 1919), 42 Cal. App. 482.
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Element 1: Notary Public and Sureties
A notary public is appointed and commissioned by the California Secretary of State and must comply with requirements in California Government Code section 8201. A surety is one who promises to answer for the debt, default or miscarriage of another or who hypothecates property as security therefor. (Cal. Civ. Code, § 2787.)
Because a notary is a ministerial officer, liability exists regardless of the notary’s intention. (Bank of Woodland v. Oberhaus (1899) 125 Cal. 320, 324.) Sureties are liable only for a notary’s acts in his or her official capacity. The liability of the surety is no greater than the notary’s, and a bar or extinguishment of the notary’s obligation relieves the surety of liability. (Breckenridge v. Mason (1967) 256 Cal.App.2d 121, 130, disapproved on other grounds, Denham v. Superior Court (1970) 2 Cal.3d 557, 563.)
Element 2: Notary’s Duty
Plaintiff must establish the existence of a duty on the part of the notary. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 376.) Notary’s statutory duties are set forth in Government Code section 8205. A notary public is required to perform his or her duties with honesty, integrity, diligence, and skill. (Bernd v. March Fong Eu (1985) 100 Cal.App.3d 511, 517.)
Personal Knowledge/Satisfactory Evidence:
“The acknowledgment of an instrument shall not be taken unless the officer taking it personally knows, or has satisfactory evidence that the person making the acknowledgment is, the individual who is described in and who executed the instrument.” (Allstate Savings & Loan Assn. v. Lotito (1981) 116 Cal.App.3d 998, 1003; Cal. Civ. Code, § 1185.)
Other Duties
When taking an acknowledgment, the notary should require the acknowledging party to appear in person before him, as he is required to certify that such party personally appeared. If an instrument is acknowledged in violation of this rule (e.g., by telephone), the notary would be liable if the party was an impostor. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 376.)
Retaining photographic copies of all instruments certified by the notary did not satisfy notary’s duty under Government Code section 8205 to maintain a sequential journal of all official acts performed as a notary public. (Bernd v. March Fong Eu (1985) 100 Cal.App.3d 511, 519-20.)
Element 3: Breach
Plaintiff must establish that the notary breached his or her duty. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 376. Official misconduct in breaching the notary’s statutory duty is negligence per se, not overcome by the fact that the notary acted reasonably. (Transamerica Title Ins. Co. v. Green (1970) 11 Cal.App.3d 693, 702.)
Negligence:
A notary was negligent in signing blank certificates of acknowledgment and leaving them accessible to others in her desk. (Security Trust & Sav. Bank v. Matson (1930) 116 Cal.App. 616, 620-21.)
A notary’s failure to read the certificate of acknowledgment before signing it, resulting in a false certification, amounted to gross negligence. The notary is not relieved of liability because he relies on a secretary to type the appropriate jurat form. (Bernd v. Fong Eu (1979) 100 Cal.App.3d 511, 517-18.)
A notary breached her duty by falsely taking the acknowledgment of a deed of trust where the deed of trust that was acknowledged and recorded was not the deed of trust executed by the plaintiffs. (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 377 [instrument had been materially altered by addition of a mineral rights reservation without plaintiff’s knowledge].)
Element 4: Causation
Civil liability for neglect of notarial duties exists only where the notary’s negligence or official misconduct proximately caused the plaintiff’s damages. (Kirk Corp. v. First American Title Co. (1990) 220 Cal. App. 3d 785, 812.)
The negligent act of the notary public need not be the sole proximate cause of the plaintiff’s loss; it is sufficient that the negligence is a proximate cause that, together with other causes, joined in producing the damage. (Tutelman v. Agricultural Ins. Co. (1972) 25 Cal.App.3d 914, 918.)
The plaintiff must allege that he parted with his money in reliance upon the notarized document. While the notary’s act, if relied upon, need not be the sole cause, it must be an efficient cause of the loss. (Jordan v. O’Connor (1950) 99 Cal.App.2d 632, 642 [notary was not an efficient cause of loss because plaintiff made loans four days prior to notary’s acknowledgment].)
Direct reliance by the plaintiff upon the false acknowledgment is not required; indirect reliance is sufficient. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 378 [plaintiffs’ reliance upon chain of title, which included forged deed, was sufficient to establish notary’s negligence as the proximate cause of plaintiffs’ loss].)
Element 5: Damages
The plaintiff must establish the nature and extent of his damage resulting from reliance on the improperly notarized document. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 376.)
A notary’s negligence in drafting an invalid will and failing to have the will properly attested caused damages to the beneficiary. (Biakanja v. Irving (1958) 49 Cal.2d 647, 651 [no privity of contract is required for beneficiary of a will to recover against negligent notary].)
Notary’s changing of notarial jurat forms after obtaining the signatures on the notarized document and her failure to keep an accurate notary journal did not proximately cause any damages to plaintiff, although such actions were possible grounds for the revocation or suspension of her commission. (Kirk Corp. v. First American Title Co. (1990) 220 Cal. App. 3d 785, 812.)
Remedies
Compensatory Damages
Plaintiff received difference between entire estate which she would have received if will was valid and one-eighth interest in estate she actually received by intestate succession. (Biakanja v. Irving (1958) 49 Cal.2d 647, 651 [plaintiff received difference between entire estate which she would have received if will was valid and one-eighth interest in estate she actually received by intestate succession].)
Statute of Limitations
The statute of limitations is three years from the performance of the notarial act giving rise to the action, or one year from discovery of the negligence, whichever is later, but no more than six years after the notarial act occurred. (Cal. Civ. Proc. Code, § 338, subd. (f); see also Butterfield v. Northwestern Nat’l Ins. Co. (1980) 100 Cal.App.3d 974, 976 [actions against notary’s corporate surety are subject to same statute of limitations].)
Affirmative Defenses
Contributory Negligence
Plaintiff bank’s contributory negligence in failing to recognize forgery of a customer’s signature was the proximate cause of its injury and barred its recovery against notary. (McDonald v. Plumb (1970) 12 Cal.App.3d 374, 377.)
Estoppel
Estoppel and contributory negligence barred plaintiff’s negligence claim against notary where plaintiff himself introduced the person who gave false acknowledgment to notary. (Overacre v. Blake (1889) 82 Cal. 77, 82.)