BILL NUMBER: AB 2452 CHAPTERED
BILL TEXT
CHAPTER 67
FILED WITH SECRETARY OF STATE JULY 3, 2008
APPROVED BY GOVERNOR JULY 3, 2008
PASSED THE SENATE JUNE 19, 2008
PASSED THE ASSEMBLY JUNE 23, 2008
AMENDED IN SENATE JUNE 17, 2008
AMENDED IN SENATE JUNE 2, 2008
AMENDED IN ASSEMBLY MAY 6, 2008
AMENDED IN ASSEMBLY APRIL 21, 2008
INTRODUCED BY Assembly Member Davis
FEBRUARY 21, 2008
An act to amend Sections 1185 and 1196 of the Civil Code, and to
amend Section 8206 of the Government Code, relating to notaries
public.
LEGISLATIVE COUNSEL'S DIGEST
AB 2452, Davis. Notaries public.
Existing law specifies certain documents as allowable forms of
identification for a credible witness, who, by oath or affirmation,
attests to the identity of an individual executing a written
instrument in the presence of, and acknowledged by, a notary public.
This bill would add specified governmental employee identification
cards as an allowable form of identification for a credible witness
to prove the identity of an individual who executes a written
instrument. This bill would delete a provision allowing a witness to
an individual's identification who is personally known to the officer
to serve as evidence for an acknowledgment.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1185 of the Civil Code is amended to read:
1185. (a) The acknowledgment of an instrument shall not be taken
unless the officer taking it has satisfactory evidence that the
person making the acknowledgment is the individual who is described
in and who executed the instrument.
(b) For the purposes of this section "satisfactory evidence" means
the absence of any 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:
(1) (A) The oath or affirmation of a credible witness personally
known to the officer, whose identity is proven to the officer upon
presentation of any document satisfying the requirements of paragraph
(3) or (4), that the person making the acknowledgment is personally
known to the witness and that each of the following are true:
(i) The person making the acknowledgment is the person named in
the document.
(ii) The person making the acknowledgment is personally known to
the witness.
(iii) That it is the reasonable belief of the witness that the
circumstances of the person making the acknowledgment are such that
it would be very difficult or impossible for that person to obtain
another form of identification.
(iv) The person making the acknowledgment does not possess any of
the identification documents named in paragraphs (3) and (4).
(v) The witness does not have a financial interest in the document
being acknowledged and is not named in the document.
(B) A notary public who violates this section by failing to obtain
the satisfactory evidence required by subparagraph (A) shall be
subject to a civil penalty not exceeding ten thousand dollars
($10,000). An action to impose this civil penalty may be brought by
the Secretary of State in an administrative proceeding or any public
prosecutor in superior court, and shall be enforced as a civil
judgment. A public prosecutor shall inform the secretary of any civil
penalty imposed under this subparagraph.
(2) The oath or affirmation under penalty of perjury of two
credible witnesses, whose identities are proven to the officer upon
the presentation of any document satisfying the requirements of
paragraph (3) or (4), that each statement in paragraph (1) of this
subdivision is true.
(3) Reasonable reliance on the presentation to the officer of any
one of the following, if the document is current or has been issued
within five years:
(A) An identification card or driver's license issued by the
California Department of Motor Vehicles.
(B) A passport issued by the Department of State of the United
States.
(4) Reasonable reliance on the presentation of any one of the
following, provided that a document specified in subparagraphs (A) to
(F), inclusive, shall either be current or have been issued within
five years and shall contain a photograph and description of the
person named on it, shall be signed by the person, shall bear a
serial or other identifying number, and, in the event that the
document is a passport, shall have been stamped by the United States
Immigration and Naturalization Service:
(A) A passport issued by a foreign government.
(B) A driver's license issued by a state other than California or
by a Canadian or Mexican public agency authorized to issue drivers'
licenses.
(C) An identification card issued by a state other than
California.
(D) An identification card issued by any branch of the Armed
Forces of the United States.
(E) An inmate identification card issued on or after January 1,
1988, by the Department of Corrections and Rehabilitation, if the
inmate is in custody.
(F) An employee identification card issued by an agency or office
of the State of California, or by an agency or office of a city,
county, or city and county in this state.
(G) An inmate identification card issued prior to January 1, 1988,
by the Department of Corrections and Rehabilitation, if the inmate
is in custody.
(c) An officer who has taken an acknowledgment pursuant to this
section shall be presumed to have operated in accordance with the
provisions of law.
(d) Any party who files an action for damages based on the failure
of the officer to establish the proper identity of the person making
the acknowledgment shall have the burden of proof in establishing
the negligence or misconduct of the officer.
(e) Any person convicted of perjury under this section shall
forfeit any financial interest in the document.
SEC. 2. Section 1196 of the Civil Code is amended to read:
1196. A witness shall be proved to be a subscribing witness by
the oath of a credible witness who provides the officer with any
document satisfying the requirements of paragraph (3) or (4) of
subdivision (b) of Section 1185.
SEC. 3. 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, 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 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 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 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.