Your Cookies are Disabled! sets cookies on your computer to help improve performance and provide a more engaging user experience. By using this site, you accept the terms of our cookie policy. Learn more.

No. Am. Title v. Gugasyan

Legal Case

State: California

Effective: December 29, 2021

This appeals court opinion defines the scope of a California Notary Public’s “safe harbor” immunity to liability in verifying the identity of an individual appearing before the Notary to acknowledge a signature.
All California Notaries Public.
  1. The court defined the scope of the statutory “safe harbor” of Civil Code 1185(c) when a Notary Public is presented with a driver’s license issued by the California Department of Motor Vehicles (DMV).
  2. The court concluded that the safe harbor applies when a Notary reasonably relies on a driver’s license that looks like one the DMV would issue, and thus does not require the license to actually be a genuine license issued by the DMV.
  3. The court concluded that the safe harbor applies even if an expert opines that industry custom requires a Notary to do more than the statutory safe harbor requires.
  4. The court concluded that the safe harbor is not overcome by the simple fact that the person who appeared before the Notary was an impostor.

Civil Code Section 1185(c) grants a presumption that a Notary operated in accordance with the law in taking an acknowledgment if the Notary follows the procedures for establishing satisfactory evidence of the identity of the acknowledger in Civil Code 1185(b)(3)(A).

Two deeds of trust involving property in Beverly Hills, California, were notarized by a Notary Public. The signer turned out to be an impostor who presented a fake driver’s license that reasonably looked like one that could have been issued by the DMV. The title company in the case disbursed almost $4 million that was subsequently lost.

The Notary said it was his custom at all relevant times to: (1) compare the picture of the person on the driver’s license with the person before him; (2) compare the signatures on the driver’s license, on the deed of trust signed in his presence, and in the Notary journal; (3) compare the names on the driver’s license and on the deed of trust; (4) review the texture and color of the driver’s license to make sure it was authentic; and (5) decline to notarize the deed of trust if any of the prior four steps revealed something unsatisfactory.

The trial court granted the Notary’s motion for summary judgment and the case was appealed to the California Court of Appeal, Second Appellate District, Division Two.

The title company sued the Notary for: (1) negligence for failing to verify the identity of the signer; (2) negligence "per se" for failing to properly identify the signer; and (3) negligent misrepresentation in issuing a certificate of acknowledgment stating the signer was present, was identified by the Notary, and acknowledged the signature.

North American Title argued the Notary is not entitled to the safe harbor immunity from liability because: (1) the plain language of Civil Code Section 1185(b)(3)(A) requires a real driver’s license to be presented to a Notary and the one shown to the Notary was a fake; (2) the Notary violated industry customs that were presented by an expert witness in the case; and (3) the person acknowledging the signatures on the deeds of trust ultimately proved to be an impostor.

The court opinion answers each of these arguments in turn. First, the court said that to fall under the safe harbor, a Notary is only required to reasonably rely on a California driver’s license purportedly issued by the DMV and not on an actual, genuine license. Second, the court said that the safe harbor of Civil Code 1185(c) is fixed by statute and cannot be defined by expert opinion presenting industry customs the Notary should have followed in a particular case. To do so would be to make Civil Code 1185(c) less of a safe harbor and more of a moving target. Finally, the court ruled that to hold the Notary liable when the signer turns out to be an impostor would be to assign strict liability to the Notary when in fact the standard for the Notary is based on the Notary’s reasonable care. The court was satisfied that the Notary exercised reasonable care in verifying the identity of the signer by following the five steps noted above for every driver's license, even though the signer proved to be an impostor. The court emphasized that a Notary could find the safe harbor even if the ID proved to be a fake so long as the Notary exercised reasonable care in reviewing the ID.

The court sustained the lower court’s decision.

A petition for rehearing was denied on January 24, 2022, and the part of the opinion involving the Notary was certified for partial publication by the court. The depublished portion of the opinion concerns other evidentiary objections raised by North American Title not discussed in this new law update.

North American Title petitioned the California Supreme Court to depublish the entire opinion. The National Notary Association submitted a letter of opposition to the title company’s request for depublication.

Read the court opinion.