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Jackson v. County of Amador

July 7, 2010

JEWEL JACKSON, PLAINTIFF AND APPELLANT,
v.
COUNTY OF AMADOR, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Amador County, Don F. Howard, Judge. Affirmed. (Super.Ct.No. 07CV4907).

The opinion of the court was delivered by: Scotland, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Jewel Jackson sued the County of Amador and its recorder (collectively, the County), alleging that the county recorder violated section 27203 of the Government Code by "willfully, negligently, untruly and/or in a manner other than that prescribed by [the recording statutes] caused to be recorded" a durable power of attorney and two quit claim deeds which, she asserted, had been fraudulently procured by her brother. Even though the documents had certificates of acknowledgment by a notary public, Jackson contends the county recorder breached a duty to her by failing to determine that she did not sign the power of attorney or direct her brother to sign it on her behalf and, thus, the recorder should not have recorded the documents.

After sustaining the County's demurrer without leave to amend, the trial court dismissed Jackson's lawsuit. She appeals.

We conclude the County did not owe Jackson a duty to look beyond the notary's certificate of acknowledgment and determine whether the power of attorney was legally sufficient to confer on Norton the power to engage in real property transactions on Jackson's behalf. As we will explain, the statutory scheme explicitly states that a county recorder shall not refuse, on the basis of "lack of legal sufficiency," to record "any instrument, paper, or notice that is authorized or required by statute or court order to be recorded" (Gov. Code, § 27201, subd. (a)). Because the documents included certificates of acknowledgment by a notary, and the requirements of Government Code section 27201 were met, the county recorder was required to record them.

In the unpublished part of this opinion, we conclude the trial court correctly denied Jackson leave to amend her complaint against the County. Thus, we shall affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

On review of a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend, we assume the truth of the properly pleaded and implied factual allegations of the complaint. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Jackson was the owner of two rental houses in the town of Ione, in Amador County. In March 2007, her brother, Willie B. Norton, fraudulently executed a durable power of attorney, naming himself as Jackson's attorney-in-fact possessing the power to enter into real property transactions on her behalf, and had it notarized and recorded. Norton signed the document: "Jewel A. Jackson by Attorney in Fact Willie B. Norton." The certificate of acknowledgment of the notary public, appearing below the signature line, stated among other things that Norton "personally appeared" before the notary; that Norton proved, "on the basis of satisfactory evidence," to be "the person whose name is subscribed to the within instrument"; and that he acknowledged "he executed the same in his authorized capacity[.]" This acknowledgment was signed by C.J. Wallin, Notary Public for the State of California.

Norton also fraudulently executed two quit claim deeds that purported to transfer Jackson's interest in her two houses to Norton, and had them notarized and recorded. The deeds were signed by Norton, purportedly on behalf of Jackson as her "attorney in fact."

After recording these documents, Norton demanded that the tenants vacate the premises. The subsequent loss of rental income resulted in Jackson's inability to timely pay the mortgages.

Jackson sued Norton, Wallin, and the surety on Wallin's notary bond, seeking to cancel the power of attorney and both quit claim deeds. Her complaint asserted claims of intentional infliction of emotional distress against Norton, and negligence on the part of Wallin for notarizing the power of attorney without Jackson being present.

Following a settlement with Wallin and the surety, Jackson filed a first amended complaint asserting a new cause of action against the County, alleging violation of Government Code section 27203 on the ground that the County "willfully, negligently or untruly caused to be recorded" the power of attorney and quit claim deeds. (Further section references are to the Government Code unless otherwise specified.)

The County demurred, arguing that "[n]o cause of action exists against [a] county recorder for failing to investigate and determine the legal sufficiency of a document, specifically whether such document was procured by fraud," and that section 27203 "should not be interpreted to impose liability as that would be in contravention of the duties imposed by ...


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