NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID A. KESTER, on behalf of himself 

and all others similarly situated, 

Plaintiff-Appellant, 

 v. 

CITIMORTGAGE INC.; et al., 

Defendants-Appellees.

No. 19-17109 

D.C. No. 2:15-cv-00365-DLR 

MEMORANDUM*

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).

FILED

FEB 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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knew or should have known that Kristen Lindner’s notary commission was revoked 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December 6, 2010, letter stating that Lindner’s notary commission was revoked.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 
3 

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.