David Kester v. Citimortgage Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID A. KESTER, on behalf of himself No. 19-17109
and all others similarly situated,
D.C. No. 2:15-cv-00365-DLR
Plaintiff-Appellant,
v. MEMORANDUM*
CITIMORTGAGE INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted February 3, 2021**
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
This case comes before the court for the second time. Appellant David Kester
sued Appellees CitiMortgage, Inc. and CR Title Services, Inc. (Defendants),
asserting a single claim under Arizona’s wrongful recording statute, A.R.S. § 33-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
420(A). Kester appeals from the district court’s order granting summary judgment
in Defendants’ favor. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s grant of summary judgment de novo. L.F. v.
Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Viewing the evidence in the light most favorable to Kester, we
conclude that there is no genuine issue of material fact establishing that Defendants
knew or should have known that Kristen Lindner’s notary commission was revoked
when the trustee documents were recorded. See A.R.S. § 33-420(A) (imposing
liability for recording a document asserting a “claim [of] interest in” real property
when the person “know[s] or ha[s] reason to know” the document is invalid); see
also A.R.S. § 33-401(B) (“Every deed or conveyance of real property must be signed
by the grantor and must be duly acknowledged before some officer authorized to
take acknowledgments.”).
First, it is undisputed that neither Defendants nor Lindner received the
December 6, 2010, letter stating that Lindner’s notary commission was revoked.
Kester has also not identified any specific facts in his expert witness’s report or
deposition that establishes an industry standard that required Defendants to verify
Lindner’s notary commission with the secretary of state more often than once a
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month. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (explaining
that when the moving party demonstrates an absence of a genuine issue of material
fact, “the burden then shifts to the non-moving party to designate specific facts
demonstrating the existence of genuine issues for trial.”). Even if Defendants had
followed a once-a-month standard, they would not necessarily have known that
Lindner’s commission was revoked just eleven days before they recorded the
documents at issue.
Second, Defendants’ knowledge of the allegations in the complaint filed
against Lindner is insufficient to create a genuine issue of material fact. Even
assuming that revocation of Lindner’s notary credentials was likely, Defendants had
no reason to know that her commission was revoked when Defendants recorded the
documents. This is dispositive because under Arizona law, a notary is authorized to
perform notary duties “until . . . the secretary of state revokes the commission.”
A.R.S. § 41-312(D). Defendants were not obligated to stop using Lindner for notary
services pending resolution of the complaint filed against her. Additionally,
Lindner’s knowledge of the complaint filed against her is likewise insufficient to
create a genuine issue of material fact under a respondeat superior theory for the
same reasons that Defendants’ knowledge of the complaint was insufficient.
Accordingly, the district court did not err in granting summary judgment in favor of
the Defendants.
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AFFIRMED. 1
1
Kester’s motion to take judicial notice [Dkt. 21] is GRANTED.
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