Hutton v. Fidelity National Title Co., ___ Cal.App.4th ___ (Jan. 31, 2013) (See opinion, here.)

A California court has confirmed that notaries who provide services additional to notarizations may charge for such services without violating the fee limitations in Government Code § 8211.

The Allegations: Homeowner Brent Hutton (“Hutton” or “plaintiff”) sued his escrow holder (“Escrow”) for charging a “notary fee” in excess of the amount permitted by California Government Code § 8211 when he refinanced a loan. Section 8211 allows a notary to charge only $10 per signature for “taking an acknowledgement.” In the Hutton transaction, only two acknowledgements were taken, but Escrow charged $75 for “notary services” on the settlement statement. Hutton alleged that Escrow violated § 8211 by charging more than $20 for the two acknowledgements, asserting causes of action for (1) violation of California’s unfair competition law (Bus. & Prof. Code, §§ 17200 et seq.) and (2) unjust enrichment in a complaint styled as a statewide, multi-year class action that had not yet been certified.

Escrow filed a motion for summary judgment on two grounds: First, Escrow argued that § 8211 was not a cap on notary fees altogether but, instead, merely limited the amount that could be charged for acknowledgements. The Huttons’ notary performed additional services, including “traveling to location of signing, presenting multiple documents for signature, showing where to sign or initial each document, answering questions….” (Slip op. at 3.) Second, Escrow pointed out that the notary was an independent third party contractor, precluding liability by Escrow for any alleged violation.

The Court’s Holding and Analysis: The California Court of Appeal for the Fifth Appellate District affirmed the trial court’s judgment in favor of Escrow. The Court agreed with Escrow’s interpretation of the statute: While § 8211 places a limitation on the amount that can be charged for each acknowledgement, it is silent as to charges for other services provided by a notary. The Court of Appeals did not address the independent contractor liability issue because of its determination that there was no violation of § 8211 in the first place. (Slip op. at fn. 4.))

The Court engaged in a three-step analysis as to the propriety of summary judgment favoring Escrow: “(1) the meaning of section 8211, (2) the limited scope of plaintiff’s pleading, and (3) [Escrow] defendant’s evidentiary showing as the moving party successfully defeating the causes of action as pled.” (Slip op. at 10.) For the first step, the Court observed that § 8211 was plain on its face in specifying fee restrictions “only for certain types of services performed by a notary.” (Slip op. at 11.)  As a corollary, the statute does not regulate fees for services not identified in the statute. (Id., citing Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412 [if language of a statute is clear, there is no room for interpretation; effect must be given to its plain meaning].)

Addressing the second step, it was apparent that Hutton’s sole basis for liability was the claim that Escrow violated § 8211 by overcharging him for notary services. (Slip op. at 13, citing County of Santa Clara v. Atlantic Richfield Co. [(2006)] 137 Cal.App.4th [289], 332-333 [theories not pleaded by plaintiff need not be addressed in defendant’s [summary judgment] motion under Code Civ. Proc., § 437c].)

Hutton argued that even if Escrow did not violate § 8211, there were other potential theories of liability that Escrow’s motion failed to address. Nevertheless, the other “potential” theories were not pled, and plaintiff forfeited his right to amend his complaint by failing to seek leave to do so. (Slip op. at 9, 17, citations omitted.)  Escrow was, therefore, not required “to refute liability on some theoretical possibilities not included in the pleadings” in order to establish no triable issues of fact. (Slip op. at 17, citing Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254; County of Santa Clara v. Atlantic Richfield Co., supra, 137 Cal.App.4th at 332.)

The Court’s final focus was Escrow’s factual evidence that showed a notary’s performance of the intrinsically notarial act (the taking of two acknowledgements) was merely one part of the overall signing services she provided to the Huttons. The notary attested that she was aware that only $10 could be charged per notarized signature, resulting in a reasonable inference that the fees in excess of $20 were attributable to the other services provided. “[B]ecause section 8211 only limited fees for the services specifically listed therein and did not prohibit remuneration for other services rendered, defendant’s evidentiary showing was sufficient to prima facie negate plaintiff’s claim that defendant allegedly violated the statute by charging $75.” (Slip op. at 14.) Having met its evidentiary burden, Escrow’s summary judgment was affirmed.

Comment: This case highlights interesting points on pleading and documenting settlement services:

• The settlement statement listed a lump sum $75 fee for “notary services,” and plaintiff might have amended to plead § 17200 violation by “unfair” or “fraudulent” practices. A possible way to avoid such allegations might be to itemize the services being provided in addition to the acknowledgments, even though not expressly required by the statute.
• It appears that certain activities may be charged for separate and apart from the acknowledgements, such as traveling to location of signing, presenting multiple documents for signature, showing where to sign or initial each document, and answering questions about the loan or settlement process. Notaries would be wise to state that they offer such services at the beginning of each signing.
• As a pleading issue, the plaintiff lost in part because he raised alternative theories of potential liability in opposition to the Escrow’s summary judgment motion. The Court left open the possibility that the additional theories might have defeated summary judgment if plaintiff had obtained leave from the Court to amend his complaint.