BILL NUMBER: AB 2326 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 9, 2012
PASSED THE ASSEMBLY MAY 3, 2012
INTRODUCED BY Assembly Member Wagner
FEBRUARY 24, 2012
An act to amend Section 1195 of the Civil Code, and to amend
Section 8206 of, and to amend and repeal Section 27287 of, the
Government Code, relating to execution of documents.
LEGISLATIVE COUNSEL'S DIGEST
AB 2326, Wagner. Execution of documents.
Existing law requires a notary public to keep one active
sequential journal at a time, of all official acts performed as a
notary public. Existing law requires a notary public to require a
party signing a deed, quitclaim deed, deed of trust affecting real
property, or a power of attorney document, if the document is to be
notarized, to place his or her fingerprint in the journal, as
specified. Under existing law, a notary public that willfully fails
to satisfy these requirements is guilty of a crime.
This bill would expand those provisions to require a notary public
to require a party signing any other document affecting real
property to place his or her fingerprint in the journal, if the
document is to be notarized. Because a willful failure of a notary
public to satisfy these requirements would be a crime, the bill would
impose a state-mandated local program. The bill would make other
conforming changes regarding what manner of proof of execution is
permitted for specified documents. The bill would repeal obsolete
provisions of law.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1195 of the Civil Code is amended to read:
1195. (a) Proof of the execution of an instrument, when not
acknowledged, may be made by any of the following:
(1) By the party executing it, or either of them.
(2) By a subscribing witness.
(3) By other witnesses, in cases mentioned in Section 1198.
(b) (1) Proof of the execution of a power of attorney, grant
deed, mortgage, deed of trust, quitclaim deed, security agreement, or
any instrument affecting real property is not permitted pursuant to
Section 27287 of the Government Code, though proof of the execution
of a trustee's deed or deed of reconveyance is permitted.
(2) Proof of the execution for any instrument requiring a notary
public to obtain a thumbprint from the party signing the document in
the notary public's journal is not permitted.
(c) Any certificate for proof of execution taken within this state
may be in the following form, although the use of other,
substantially similar forms is not precluded:
State of )
California ss.
County of __________ )
On ____ (date), before me, the undersigned, a notary public for
the state, personally appeared ____ (name of subscribing witness),
proved to me to be the person whose name is subscribed to the within
instrument, as a witness thereto, on the oath of ____ (name of
credible witness), a credible witness who is known to me and provided
a satisfactory identifying document. ____ (name of subscribing
witness), being by me duly sworn, said that he/she was present and
saw/heard ____ (names] of principals]), the same person(s) described
in and whose name(s) is/are subscribed to the within or attached
instrument in his/her/their authorized capacity(ies) as (a) party
(ies) thereto, execute or acknowledge executing the same, and that
said affiant subscribed his/her name to the within or attached
instrument as a witness at the request of ____ (names] of
principals]).
WITNESS my hand and official seal.
Signature____________________ (Notary public seal)
SEC. 2. Section 8206 of the Government Code is amended to read:
8206. (a) (1) A notary public shall keep one active sequential
journal at a time, of all official acts performed as a notary public.
The journal shall be kept in a locked and secured area, under the
direct and exclusive control of the notary. Failure to secure the
journal shall be cause for the Secretary of State to take
administrative action against the commission held by the notary
public pursuant to Section 8214.1.
(2) The journal shall be in addition to, and apart from, any
copies of notarized documents that may be in the possession of the
notary public and shall include all of the following:
(A) Date, time, and type of each official act.
(B) Character of every instrument sworn to, affirmed,
acknowledged, or proved before the notary.
(C) The signature of each person whose signature is being
notarized.
(D) A statement as to whether the identity of a person making an
acknowledgment or taking an oath or affirmation was based on
satisfactory evidence. If identity was established by satisfactory
evidence pursuant to Section 1185 of the Civil Code, the journal
shall contain the signature of the credible witness swearing or
affirming to the identity of the individual or the type of
identifying document, the governmental agency issuing the document,
the serial or identifying number of the document, and the date of
issue or expiration of the document.
(E) If the identity of the person making the acknowledgment or
taking the oath or affirmation was established by the oaths or
affirmations of two credible witnesses whose identities are proven to
the notary public by presentation of any document satisfying the
requirements of paragraph (3) or (4) of subdivision (b) of Section
1185 of the Civil Code, the notary public shall record in the journal
the type of documents identifying the witnesses, the identifying
numbers on the documents identifying the witnesses, and the dates of
issuance or expiration of the documents identifying the witnesses.
(F) The fee charged for the notarial service.
(G) If the document to be notarized is a deed, quitclaim deed,
deed of trust, or other document affecting real property, or a power
of attorney document, the notary public shall require the party
signing the document to place his or her right thumbprint in the
journal. If the right thumbprint is not available, then the notary
shall have the party use his or her left thumb, or any available
finger and shall so indicate in the journal. If the party signing the
document is physically unable to provide a thumbprint or
fingerprint, the notary shall so indicate in the journal and shall
also provide an explanation of that physical condition. This
paragraph shall not apply to a trustee's deed resulting from a decree
of foreclosure or a nonjudicial foreclosure pursuant to Section 2924
of the Civil Code, nor to a deed of reconveyance.
(b) If a sequential journal of official acts performed by a notary
public is stolen, lost, misplaced, destroyed, damaged, or otherwise
rendered unusable as a record of notarial acts and information, the
notary public shall immediately notify the Secretary of State by
certified or registered mail. The notification shall include the
period of the journal entries, the notary public commission number,
and the expiration date of the commission, and when applicable, a
photocopy of any police report that specifies the theft of the
sequential journal of official acts.
(c) Upon written request of any member of the public, which
request shall include the name of the parties, the type of document,
and the month and year in which notarized, the notary shall supply a
photostatic copy of the line item representing the requested
transaction at a cost of not more than thirty cents ($0.30) per page.
(d) The journal of notarial acts of a notary public is the
exclusive property of that notary public, and shall not be
surrendered to an employer upon termination of employment, whether or
not the employer paid for the journal, or at any other time. The
notary public shall not surrender the journal to any other person,
except the county clerk, pursuant to Section 8209, or immediately, or
if the journal is not present then as soon as possible, upon request
to a peace officer investigating a criminal offense who has
reasonable suspicion to believe the journal contains evidence of a
criminal offense, as defined in Sections 830.1, 830.2, and 830.3 of
the Penal Code, acting in his or her official capacity and within his
or her authority. If the peace officer seizes the notary journal, he
or she must have probable cause as required by the laws of this
state and the United States. A peace officer or law enforcement
agency that seizes a notary journal shall notify the Secretary of
State by facsimile within 24 hours, or as soon as possible
thereafter, of the name of the notary public whose journal has been
seized. The notary public shall obtain a receipt for the journal, and
shall notify the Secretary of State by certified mail within 10 days
that the journal was relinquished to a peace officer. The
notification shall include the period of the journal entries, the
commission number of the notary public, the expiration date of the
commission, and a photocopy of the receipt. The notary public shall
obtain a new sequential journal. If the journal relinquished to a
peace officer is returned to the notary public and a new journal has
been obtained, the notary public shall make no new entries in the
returned journal. A notary public who is an employee shall permit
inspection and copying of journal transactions by a duly designated
auditor or agent of the notary public's employer, provided that the
inspection and copying is done in the presence of the notary public
and the transactions are directly associated with the business
purposes of the employer. The notary public, upon the request of the
employer, shall regularly provide copies of all transactions that are
directly associated with the business purposes of the employer, but
shall not be required to provide copies of any transaction that is
unrelated to the employer's business. Confidentiality and safekeeping
of any copies of the journal provided to the employer shall be the
responsibility of that employer.
(e) The notary public shall provide the journal for examination
and copying in the presence of the notary public upon receipt of a
subpoena duces tecum or a court order, and shall certify those copies
if requested.
(f) Any applicable requirements of, or exceptions to, state and
federal law shall apply to a peace officer engaged in the search or
seizure of a sequential journal.
SEC. 3. Section 27287 of the Government Code, as amended by
Section 10 of Chapter 269 of the Statutes of 2011, is amended to
read:
27287. Unless it belongs to the class provided for in either
Sections 27282 to 27286, inclusive, or Section 1202 or 1203, of the
Civil Code, or is a fictitious mortgage or deed of trust as provided
in Section 2952 or 2963 of the Civil Code, or is a fictitious oil and
gas lease as provided in Section 1219 of the Civil Code, or is a
claim of lien under Section 8416 of the Civil Code or a notice of
completion under Section 8182 or 9204 of the Civil Code, before an
instrument can be recorded its execution shall be acknowledged by the
person executing it, or if executed by a corporation, by its
president or secretary or other person executing it on behalf of the
corporation, or, except for any power of attorney, quitclaim deed,
grant deed, mortgage, deed of trust, security agreement, or other
document affecting real property, proved by subscribing witness or as
provided in Sections 1198 and 1199 of the Civil Code, and the
acknowledgment or proof certified as prescribed by law. This section
shall not apply to a trustee's deed resulting from a decree of
foreclosure, or a nonjudicial foreclosure pursuant to Section 2924 of
the Civil Code, or to a deed of reconveyance.
SEC. 4. Section 27287 of the Government Code, as amended by
Section 9 of Chapter 269 of the Statutes of 2011, is repealed.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.