Modification: North American Title Co. v. Gugasyan

NORTH AMERICAN TITLE COMPANY, INC.,

Plaintiff and Appellant,

v.

EGYA NUBAR GUGASYAN et al.,

Defendants and Respondents.

B303753

(Los Angeles County

Super. Ct. No. BC660525)

California Court of Appeal

Second Appellate District

Division Two

Filed January 24, 2022

ORDER MODIFYING

OPINION AND DENYING

REHEARING

NO CHANGE IN THE

JUDGMENT

THE COURT:

It is ordered that the opinion filed on December 29, 2021, be modified as follows:

1. At the end of the first paragraph on page 12 (which ends with a citation of New Albertsons, Inc.v. Superior Court (2008) 168 Cal.App.4th 1403), insert footnote 7, and renumber all subsequent footnotes. Footnote 7 should read:

⁷ In a petition for rehearing, North American argues that it was denied its right under Government Code section 68081 to brief this precedent. This argument lacks merit. That section grants the right to brief new issues, and the issue of section 1185's meaning was extensively argued in the parties' briefs. It is well settled that "Government Code section 68081 does not give the parties a right to submit supplemental briefs when an appellate court relies upon authority that was not briefed by the parties . . . ." (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 487, fn. 6; People v. Alice (2007) 41 Cal.4th 668, 679.)

2. At the end of page 12 and continuing onto page 13, in the sentence that begins, "If the resulting license is similarly genuine looking," insert the words "ability to invoke the safe harbor (and consequently, his probable" before the phrase "liability for damages," and then insert a closing parenthesis after the word "damages," so that the sentence reads:

If the resulting license is similarly genuine looking---and hence the notary's conduct in being reasonably duped is the same---in these two scenarios, why should his ability to invoke the safe harbor (and consequently, his probable liability for damages) turn on such distinctions?

3. On page 18, in the third sentence and paragraph beneath subheading B.3., insert footnote 8 after the first semicolon (ending the first of four numbered items). Footnote 8 should read:

⁸ For the first time in its petition for rehearing, North American argues that notaries should never be able to invoke the safe harbor on the basis of a declaration regarding their "usual custom and practice"; allowing them to do so, North American continues, would erode the safe harbor and incentivize notaries to forget the transactions they notarize. Aside from being raised too late, this argument lacks merit. The underlying supposition of this argument is that a notary's lack of memory is inauthentic, yet the evidence in this case suggests notaries handle a large number of transactions that are similar and routine in nature; that notaries do not have eidetic memories is neither surprising nor cause for alarm. More broadly, the Evidence Code specifically contemplates admission of habit evidence in precisely these situations. (Evid. Code, § 1105.) We are without power to excise this statute from the Evidence Code.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

ASHMANN-GERST, Acting P.J. CHAVEZ, J. HOFFSTADT, J.