BILL NUMBER: SB 618 CHAPTERED
BILL TEXT
CHAPTER 319
FILED WITH SECRETARY OF STATE AUGUST 18, 1997
APPROVED BY GOVERNOR AUGUST 18, 1997
PASSED THE SENATE AUGUST 4, 1997
PASSED THE ASSEMBLY JULY 21, 1997
AMENDED IN ASSEMBLY JUNE 25, 1997
AMENDED IN ASSEMBLY JUNE 11, 1997
AMENDED IN SENATE MAY 6, 1997
AMENDED IN SENATE APRIL 22, 1997
INTRODUCED BY Senator Watson
(Coauthor: Assembly Member Napolitano)
FEBRUARY 25, 1997
An act to amend Section 1195 of the Civil Code, and to amend
Sections 8205, 8206, 8207, 8214.1, and 27287 of, and to add Section
8204.1 to, the Government Code, relating to notaries public.
LEGISLATIVE COUNSEL'S DIGEST
SB 618, Watson. Notaries public: duties: proofs of execution:
payment of fees: journal and seal.
(1) Existing law relating to the recording of transfers provides
that proof of the execution of an instrument, when not acknowledged,
may be made by any party executing the instrument, a subscribing
witness, or by specified other witnesses. Existing law relating to
the duties of county recorders provides that before an instrument can
be recorded, its execution shall be acknowledged, as specified, or
proved by a subscribing witness or as otherwise specified, except for
a grant deed, other than a trustee's deed or deed of reconveyance,
mortgage, deed of trust, or security agreement.
This bill would expand this existing exception with respect to
grant deeds to also include quitclaim deeds. The bill would provide
a form for a proof of execution, but would not preclude the use of
other forms that are substantially similar.
(2) Under existing law, the duties of a notary public include to
demand acceptance and payment of foreign and inland bills of
exchange, or promissory notes, to protest them for nonacceptance and
nonpayment, and to exercise any other powers and duties that may be
performed by notaries according to specified laws or commercial
usages.
This bill would provide that a notary's duty to exercise other
powers and duties under the above circumstances shall exist only with
regard to the nonacceptance or nonpayment of bills and notes.
(3) Existing law regulating the functions and duties of notaries
public specifies the manner in which a notary shall maintain his or
her sequential journal of official acts and official seal, as
defined.
Existing law authorizes the Secretary of State to appoint and
commission notaries public, as specified, and sets forth the grounds
for refusal, revocation, or suspension of a notary's commission by
the Secretary of State. Existing law requires the Secretary of
State to establish fees to cover the costs of commissioning notaries
public and the enforcement of laws governing notaries public.
This bill would require a notary public to keep one active
sequential journal of official acts at a time, and the official seal
in a locked and secured area, under the direct and exclusive control
of the notary, and would further provide that failure to secure the
journal or seal shall be cause for the Secretary of State to take
administrative action against the commission held by the notary
public. The bill would further provide that the journal and seal are
the exclusive property of the notary public, and shall not be
surrendered to the notary's employer, or any other person, except to
the county clerk, or a peace officer, as specified. It would require
the notary public to 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 would require the notary
public to certify copies of portions of the journal, if requested.
The bill would also require the notary public to permit inspection
and copying of journal transactions by a duly designated auditor or
agent of the notary's employer, with respect to transactions that are
directly associated with the employer's business purposes. The bill
would provide that, upon the employer's request, the notary shall
regularly provide copies of transactions that are directly
associated with the employer's business purposes.
This bill would also authorize the Secretary of State to cancel
the commission of a notary public if a check or other remittance
accepted as payment for the application, commission, and fingerprint
fee is not paid upon presentation to the financial institution upon
which the check or other remittance was drawn.
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 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) Proof of the execution of a grant deed, mortgage, deed of
trust, quitclaim deed, or security agreement 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.
(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)
County of _________) ss.
On ____ (date), before me, the undersigned, a notary public for
the
state, personally appeared ____ (subscribing witness's name),
personally known to me (or proved to me on the oath of ____ (credible
witness's name), who is personally known to me) to be the person
whose name is subscribed to the within instrument, as a witness
thereto, who, being by me duly sworn, deposed and said that he/she
was present and saw ____ (name(s) of principal(s)), the same person
(s)
described in and whose name(s) is/are subscribed to the within and
annexed instrument in his/her/their authorized capacity(ies) as (a)
party(ies) thereto, execute the same, and that said affiant
subscribed his/her name to the within instrument as a witness at the
request of ____ (name(s) of principal(s)).
WITNESS my hand and official seal.
Signature ________________________ (Seal)
SEC. 2. Section 8204.1 is added to the Government Code, to read:
8204.1. The Secretary of State may cancel the commission of a
notary public if a check or other remittance accepted as payment for
the examination, application, commission, and fingerprint fee is not
paid upon presentation to the financial institution upon which the
check or other remittance was drawn. Upon receiving written
notification that the item presented for payment has not been honored
for payment, the Secretary of State shall first give a written
notice of the applicability of this section to the notary public or
the person submitting the instrument. Thereafter, if the amount is
not paid by a cashier's check or the equivalent, the Secretary of
State shall give a second written notice of cancellation and the
cancellation shall thereupon be effective. This second notice shall
be given at least 20 days after the first notice, and no more than 90
days after the commencement date of the commission.
SEC. 3. Section 8205 of the Government Code is amended to read:
8205. (a) It is the duty of a notary public, when requested:
(1) To demand acceptance and payment of foreign and inland bills
of exchange, or promissory notes, to protest them for nonacceptance
and nonpayment, and, with regard only to the nonacceptance or
nonpayment of bills and notes, to exercise any other powers and
duties that by the law of nations and according to commercial usages,
or by the laws of any other state, government, or country, may be
performed by notaries.
(2) To take the acknowledgment or proof of powers of attorney,
mortgages, deeds, grants, transfers, and other instruments of writing
executed by any person, and to give a certificate of that proof or
acknowledgment, endorsed on or attached to the instrument. The
certificate shall be signed by the notary public in the notary public'
s own handwriting. A notary public may not accept any acknowledgment
or proof of any instrument that is incomplete.
(3) To take depositions and affidavits, and administer oaths and
affirmations, in all matters incident to the duties of the office, or
to be used before any court, judge, officer, or board. Any
deposition, affidavit, oath, or affirmation shall be signed by the
notary public in the notary public's own handwriting.
(4) To certify copies of powers of attorney under Section 4307 of
the Probate Code. The certification shall be signed by the notary
public in the notary public's own handwriting.
(b) It shall further be the duty of a notary public, upon written
request:
(1) To furnish to the Secretary of State certified copies of the
notary's journal.
(2) To respond within 30 days of receiving written requests sent
by certified mail from the Secretary of State's office for
information relating to official acts performed by the notary.
SEC. 4. 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 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 was based on personal knowledge or satisfactory
evidence. If identity was established by satisfactory evidence
pursuant to Section 1185 of the Civil Code, then 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 was
established by the oaths or affirmations of two credible witnesses
whose identities are proven upon the presentation of satisfactory
evidence, the type of identifying documents, the identifying numbers
of the documents and the dates of issuance or expiration of the
documents presented by the witnesses to establish their identity.
(F) The fee charged for the notarial service.
(G) If the document to be notarized is a deed, quitclaim deed, or
deed of trust affecting real property, 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 to a peace
officer, 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, in response to a criminal search warrant signed by a
magistrate and served upon the notary public by the peace officer.
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.
SEC. 5. Section 8207 of the Government Code is amended to read:
8207. A notary public shall provide and keep an official seal,
which shall clearly show, when embossed, stamped, impressed or
affixed to a document, the name of the notary, the State Seal, the
words "Notary Public," and the name of the county wherein the bond
and oath of office are filed, and the date the notary public's
commission expires. The seal of every notary public commissioned on
or after January 1, 1992, shall contain the sequential identification
number assigned to the notary and the sequential identification
number assigned to the manufacturer or vendor. The notary public
shall authenticate with the official seal all official acts.
A notary public shall not use the official notarial seal except
for the purpose of carrying out the duties and responsibilities as
set forth in this chapter. A notary public shall not use the title
"notary public" except for the purpose of rendering notarial service.
The seal of every notary public shall be affixed by a seal press
or stamp that will print or emboss a seal which legibly reproduces
under photographic methods the required elements of the seal. The
seal may be circular not over two inches in diameter, or may be a
rectangular form of not more than one inch in width by two and
one-half inches in length, with a serrated or milled edged border,
and shall contain the information required by this section.
The seal shall be kept in a locked and secured area, under the
direct and exclusive control of the notary. Failure to secure the
seal 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.
The official seal of a notary public is the exclusive property of
that notary public, and shall not be surrendered to an employer upon
the termination of employment, whether or not the employer paid for
the seal, or to any other person. The notary, or his or her
representative, shall destroy or deface the seal upon termination,
resignation, or revocation of the notary's commission.
This section shall become operative on January 1, 1992.
SEC. 6. Section 8214.1 of the Government Code is amended to read:
8214.1. The Secretary of State may refuse to appoint any person
as notary public or may revoke or suspend the commission of any
notary public upon any of the following grounds:
(a) Substantial and material misstatement or omission in the
application submitted to the Secretary of State.
(b) Conviction of a felony or of a lesser offense involving moral
turpitude or of a nature incompatible with the duties of a notary
public. A conviction after a plea of nolo contendere is deemed to be
a conviction within the meaning of this subdivision.
(c) Revocation, suspension, restriction, or denial of a
professional license, if the revocation, suspension, restriction, or
denial was for misconduct, dishonesty, or any cause substantially
relating to the duties or responsibilities of a notary public.
(d) Failure to discharge fully and faithfully any of the duties or
responsibilities required of a notary public.
(e) When adjudged liable for damages in any suit grounded in
fraud, misrepresentation, or violation of the state regulatory laws
or in any suit based upon a failure to discharge fully and faithfully
the duties as a notary public.
(f) The use of false or misleading advertising wherein the notary
public has represented that the notary public has duties, rights, or
privileges that he or she does not possess by law.
(g) The practice of law in violation of Section 6125 of the
Business and Professions Code.
(h) Charging more than the fees prescribed by this chapter.
(i) Commission of any act involving dishonesty, fraud, or deceit
with the intent to substantially benefit the notary public or
another, or substantially injure another.
(j) Failure to complete the acknowledgment at the time the notary'
s signature and seal are affixed to the document.
(k) Failure to administer the oath or affirmation as required by
paragraph (3) of subdivision (a) of Section 8205.
(l) Execution of any certificate as a notary public containing a
statement known to the notary public to be false.
(m) Violation of Section 8223.
(n) Failure to submit any remittance payable upon demand by the
Secretary of State under this chapter or failure to satisfy any court
ordered money judgment, including restitution.
(o) Failure to secure the sequential journal of official acts,
pursuant to Section 8206, or the official seal, pursuant to Section
8207.
SEC. 7. Section 27287 of the Government Code is amended to read:
27287. Unless it belongs to the class provided for in either
Sections 27282 to 27286, inclusive, or Sections 1202 or 1203, of the
Civil Code, or is a fictitious mortgage or deed of trust as provided
in Sections 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, as provided in Section 3084 of the Civil Code, or a
notice of completion, as provided in Section 3093 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 quitclaim deed or
grant deed other than a trustee's deed or a deed of reconveyance,
mortgage, deed of trust, or security agreement, 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.