NOT FOR PUBLICATION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 c laim under Ar izona ’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 APPEALS2

420(A). Kester appeals from the district court ’s order grant ing summary judgment in Defendants’ favor. We have juris diction 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). “ T he 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knew or should have known that Kristen Lindner’s notar y commission was revoked
when the trustee documents were recorded. See A.R.S. § 33

- 420(A) ( imposing liability for record ing a document asserting a “claim [of] interest in” real property when the person “ know [s] or ha [s] reason to know ” the document is inva lid); 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that neither Defendants nor Lind n er received the December 6, 2010 , letter stating that Lind n er’s notary commission was revoked

. Kester has also not identified any specific facts in his expert witness’s report or deposition that establish es an industry standard that required Defendants to verify Lindner’s notary commission with the secretary of state more often than on c e a3

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 o f 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 nece ssarily have known that
Lin d n er’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 Lind n er is insufficient to create a genuine issue of material fact . Even assuming that revocation of Lind n er’s notary credentials was likely , Defendants had
no reason to know that her commission was revoked when Defendant s recorded the
document s
. This is dispositive because under Arizona law, a notary is authorized to perform n otary duties “ until

. . . the secretary of state revokes the commission.” A.R.S. § 41

- 312(D). Defendants were not obligated to s top using Lind n er f or notary services pending resolution of the complaint filed against her. Additionally , Lindner’s knowledge o f 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. According ly , the district court did not err in granting summary judgment in favor of
the Defendants.4

AFFIRM ED . 1

1 Kester’s m otion to take judicial notice [Dkt. 21] is GRANTED

.