Judge: H. Jay Ford, III, Case: 22SMCV00534, Date: 2023-07-20 Tentative Ruling

Case Number: 22SMCV00534    Hearing Date: March 26, 2024    Dept: O

  Case Name:  Sjorstand v. Proctor, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Julie Ann Proctor

RESP. PARTY:         Plaintiff Peter Sjorstand

TENTATIVE RULING

            Defendant Julie Ann Proctor’s Motion for Summary Judgment is GRANTED. Defendant Julie Ann Proctor meets her burden to establish a defense to notary civil liability, and the lack of evidence on essential elements of Plaintiff Peter Sjorstand’s claims. Plaintiff Peter Sjorstand does not meet his burden to established disputed material facts as to the causes of action or the defense.

            Defendant Julie Ann Proctor’s Objections Nos. 1, 2 to the declaration of Dermont Givins including exhibits 1,2 and 3 (discovery responses) are OVERRULED.   The objections Nos. 3 through 16 to the declaration of Plaintiff Peter Sjorstand and exhibits referenced therein are SUSTAINED.  Moreover, the evidence referenced in Objections 2 the aands not material to the claims asserted against Procter.

I.                Defendant Proctor Meets her Burden of showing Plaintiff cannot meet essential elements of both his claim in the SAC, nor that Plaintiff can establish notary wrongdoing or liability.

            Where a defendant seeks summary judgment or adjudication, they must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code of Civil Procedure §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            Defendant Julie Ann Proctor (“Proctor”) argues that Plaintiff Peter Sjorstand (“Sjorstand”) cannot establish notary wrongdoing or liability as to Proctor, a complete defense to notary civil liability, and further Sjorstand cannot meet one or more elements of both the SAC’s causes of action. (Motion, pp. 9–11.)

"To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position." (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193–1194; see Civ. Code, § 3412 ["A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled."].)

Under that CCP §761.020, the elements of a quiet title claim are (a) A description of the property that is the subject of the action; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims.  (See Code Civ. Proc., § 761.020.)

“For the official misconduct or neglect of a notary public, the notary public and the sureties on the notary public's official bond are liable in a civil action to the persons injured thereby for all the damages sustained.” (Gov. Code, § 8214.) Notary’s can only be held civilly liable for a breach of duty if it can be shown that “damages were proximately caused by the breach.” Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 378.) “Civil Code section 1185 provides that a notary must not take an acknowledgment of an instrument unless he knows, or has satisfactory evidence, that the person making such acknowledgment is the individual who is described in and who executed the instrument; . . . This requirement makes the certificate upon personal knowledge a guaranty of the genuineness of the instrument.”  (Id., at p. 377; see Civ. Code, § 1185.)

The acknowledging of instruments that effect transfers of real property are governed by sections 1180-1207 of the Civil Code. (see Civ. Code §§ 1180–1207.) A notary public may acknowledge such an instrument in California. (See Civ. Code § 1181.) The person acknowledging the instrument must have “satisfactory evidence that the person making the acknowledgment is the individual who is described in and who executed the instrument.” (Civ. Code § 1185, subd., (a).) “[S]atisfactory evidence” means the absence of information that the signing individual is not who she claims to be and presents a California driver’s license. (Civ.  Code § 1185, subd., (b).) Section 1185(b) provides in part:

(b) For purposes of this section, “satisfactory evidence” means the absence of information, evidence, or other circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be and any one of the following: * * *

(3) Reasonable reliance on the presentation to the officer of any one of the following, if the document or other form of identification is current or has been issued within five years:

(A) An identification card or driver’s license issued by the Department of Motor Vehicles.

(Ibid.)

            Proctor declares she is a licensed notary. (SSUF No. 1; Proctor Decl., ¶ 2.) Proctor declares and provides evidence that on 10-21-21 Proctor received and agreed to a notary assignment from Catherine Wingenroth at Prominent Escrow to perform a mobile notary service for Birgitta Sjostrand (“Birgitta”) at 1345 Casiano Rd., Los Angeles, CA 90049 (“1345 Casiano”), including an escrow package and stating Bigitta’s cell phone number as (707) 782-3070. (SSUF Nos. 2, 4; Proctor Decl., ¶¶ 4, 6; Exhibit 2, 3.) Proctor declares and provides evidence that on 10-21-21 and 10-22-21 Proctor believes she spoke to Birgitta via the above cell phone number at least three times and declares the voice was the same as Birgitta’s voice when proctor met Birgitta in person on 10-22-21. (SSUF Nos. 5, 6; Proctor Decl., ¶¶ 7, 8, Ex. 4.)  Proctor declares that prior to 10-21-21 she had never heard of, spoken to, or met Birgitta, nor had she met, heard of, or spoken to Sjorstand, Bye Bye House or Center Street Lending, Inc. (SSUF No. 7; Proctor Decl., ¶ 9.)

            Proctor declares on 10-22-21 Proctor met Birgitta in person at 1345 Casiano Rd to perform the notary services, Birgitta’s voice matched the voice on the cell phone calls, Proctor examined Birgitta’s current California Driver’s License confirming Birgitta’s identity, and the meeting lasted approximately 45-50 minutes. (SSUF Nos. 8, 9, 15; Proctor Decl., 10, 11, 17, Ex. 1.) Proctor declares she “watched Birgitta sign and acknowledged her signature on the Grant Deed, Trust Certification, and Owner’s Affidavit,” Proctor “entered the three acknowledgments into her notary journal on two lines and directed Birgitta to place her two thumb prints on the two lines of her notary journal,” Proctor witnessed Birgitta fill out and sign the other documents in the Prominent Escrow package where Proctor did not “see or hear Birgitta obtain any assistance from any other person while she was filling out documents and signing them.” (SSUF Nos. 10–13; Proctor Decl., ¶¶ 12–15, Ex. 1, 5, 6, 7.) Proctor declares the purchase and sales agreement for 1345 Casiano Rd was not in the escrow package, and Proctor did not acknowledge any signature on the purchase and sales agreement. (SSUF No. 14; Proctor Decl., ¶ 16.) Proctor declares that during the meeting with Birgitta, Proctor “did not observe any behavior by Birgitta to indicate she had dementia or otherwise lacked mental capacity. Birgitta was not confused, she filled out the escrow documents at a “normal” pace, and she seemed to understand the documents.” (SSUF No. 16; Proctor Decl., ¶ 18.)

            The Court finds that Proctor has provided evidence to show there was no notary official misconduct or neglect during her meeting with Birgitta, and that she abided by her duties as a notary under Civ. Code § 1185. Thus, Proctor has met her burden to establish a complete defense to civil liability as a notary. Furthermore, Proctor establishes that the first element of the cancellation of written instrument cause of action cannot be met because Proctor successfully demonstrates the instrument is not void or voidable due to any fraud.  

            Regarding the second cause of action for quiet title, Proctor declares she “does not currently claim and has never claimed any interest in the property located at 1345 Casiano Rd., Los Angeles, CA 90049.” (SSUF No. 23; Proctor Decl., ¶ 26.)  Thus, the Court finds that Proctor has met her burden to show that Sjorstand cannot establish an existence of a claim, an essential element of a quiet title cause of action. (See Code Civ. Proc., § 761.020, subd., (c) [“The adverse claims to the title of the plaintiff against which a determination is sought.”].)

 II.        Sjorstand Does not meet his burden to provide evidence showing the existence of a triable issue of material fact as to Proctor’s defense.

            Sjorstand argues that Proctor had actual and inquiry notice that Birgitta lacked capacity to contract on 10-22-21, but provides no admissible evidence, nor any authority, to dispute Proctor’s provided defense, material facts and evidence. Sjostrand does not provide any specific statute of legal duty violated by Proctor, nor does Sjorstand offer any legal authority that a notary has a duty to ascertain the mental capacity of a person signing a document whose signature the notary is acknowledging. Furthermore, Sjorstand provides no argument or evidence to dispute the fact that Proctor does not currently have a claim to the property at issue.

            Thus, the Court finds that Sjorstand has not met his duty to provide evidence showing an existence of a triable issue of material fact as to Proctor’s defense, or the causes of action.

Proctor’s Motion for Summary Judgment is GRANTED.