Rooz v. Kimmel (55 Cal. App. 2d 573, 1997)

Opinion

PARRILLI, J.

In this case we must determine whether a hold harmless agreement absolved North American Title Company (North American) of liability for negligence when North American failed to record a deed of trust in a timely fashion. We conclude the trial court correctly found the hold harmless agreement protected North American. Consequently, we affirm the defense judgment as to North American. However, we also conclude the trial court erred in calculating the amount of damages plaintiff is entitled to recover from another defendant. Consequently, we modify the judgment to permit plaintiff to recover the correct amount of damages ($515,000).

I

Facts

This case arises out of a series of real estate transactions between appellant William B. Rooz and David Kimmel. In late 1989, Rooz exchanged an office building he owned at 1841 Berkeley Way in Berkeley (the Berkeley property) for an office building Kimmel owned at 390 South El Camino Real in San Mateo (the San Mateo property). In this tax deferred exchange, Rooz also received a no interest $445,000 note from Kimmel secured by a deed of trust on the Berkeley property. The note was due in 10 years, or upon the sale of the San Mateo property, whichever occurred first. The exchange agreement provided that should Kimmel sell the Berkeley property, Kimmel could transfer the $445,000 deed of trust to any other property he owned, provided the total value of the loans secured by the other property (including the $445,000 loan) did not exceed 80 percent of that property’s value. At the time the parties entered this exchange agreement, Kimmel also agreed to “master lease” the San Mateo property from Rooz for a period of 10 years, paying Rooz a net amount of $10,500 per month. North American handled the escrow for the exchange through its escrow officer, Marie Weckerle (Weckerle).

Shortly after the exchange closed on February 6,1990, Kimmel contracted to sell the Berkeley property to a third party. At about the same time, Rooz concluded the amount of the original note and deed of trust he obtained in the exchange—$445,000—was in error and should have been higher. He brought this error to Kimmel’s attention, and they agreed to increase the obligation to $515,000 to correct the error. Consequently, Rooz and Kimmel agreed to replace the $445,000 deed of trust on the Berkeley property, which was subject to a pending sale, with a new deed of trust for the correct amount of $515,000. The new deed of trust was to be recorded against San Francisco commercial property known as the “Redstone Building” which Kimmel was in the process of purchasing. At the time the parties reached this agreement Kimmel had not yet obtained title to the Redstone Building. Nevertheless, in order to facilitate Kimmel’s sale of the Berkeley property, Rooz agreed to reconvey the $445,000 deed of trust subject only to Kimmel’s promise that the new $515,000 deed of trust would be recorded against the Redstone Building after Kimmel obtained title to that property.

Rooz and Kimmel asked North American’s Weckerle, who was handling the escrow for Kimmel’s purchase of the Redstone Building, to record the reconveyance of the $445,000 deed of trust and to record the new $515,000 deed of trust against the Redstone Building. Weckerle agreed to do so as an “accommodation.” Weckerle explained that an “accommodation recording” means the title company is recording the document without liability since no title insurance will be issued to cover the transaction. Weckerle testified North American will not record a document as an accommodation unless the principals sign accommodation instructions and an indemnity agreement absolving North American of liability in connection with the recording.

In this particular case, Rooz instructed North American that it was authorized to record a deed of reconveyance with respect to the $445,000 deed of trust “with no demand to the undersigned.” The instruction further stated: “You are instructed to re-draw said note and deed of trust against: 2916-2940 16th Street, San Francisco [the Redstone Building].” The new note and deed of trust were to be redrawn on the same terms as the original note and deed of trust except the principal amount was increased to $515,000. The instruction concluded: “Said deed of trust is to record as an accommodation with no title or escrow liability . . . and as per attached Indemnity and Recording Instructions.” The attached recording instructions provided: “[R]ecord against 2916-2940 16th Street, San Francisco as an accommodation, and after Kimmel takes title.” (Italics added.)

Rooz also signed a “Master Agreement of Indemnification” (hereinafter indemnity and hold harmless agreement) which provided in part that he would “hold harmless, protect and indemnify [North American] from and against any and all liabilities, losses, damages, expenses, and charges . . . which may be sustained or incurred by [North American] under, or arising directly or indirectly out of the Recordings at requests of Indemnitor and resulting directly or indirectly from any claim, action, proceeding, judgment, order or process arising from or based upon or growing out of said Recordings of Documents.”

Kimmel’s sale of the Berkeley property closed on February 20, 1990, and Weckerle recorded the deed reconveying the $445,000 deed of trust against that property on that date, thus extinguishing the security.

Two days later, on February 22, 1990, Kimmel’s purchase of the Redstone Building closed and he took title to that property. Although Kimmel had previously signed the $515,000 note and deed of trust and they were in Weckerle’s possession, Weckerle nevertheless called Kimmel to obtain his authorization to record the new deed of trust against the Redstone Building. Kimmel refused to authorize the recording, explaining he had not yet completed his financing of the property. Consequently, Weckerle did not immediately record the $515,000 deed of trust. Because Rooz had left the country to return to Hungary, Weckerle informed Rooz’s agent and attorney-in-fact, Albert Kapkin, that she could not record the $515,000 deed of trust because of Kimmel’s instructions. Kapkin communicated this information to Rooz in Hungary.

Weckerle refrained from recording the $515,000 deed of trust for nearly four months—until July 10, 1990—when Kimmel finally authorized her to do so. In the meantime, Kimmel added additional encumbrances to the Redstone Building, which he had purchased for $1.5 million subject only to a $975,000 first deed of trust. Between the time he took title to the Redstone Building on February 22, 1990, and the time Weckerle finally recorded Rooz’s $515,000 deed of trust on July 10, 1990, Kimmel encumbered the Redstone Building with two additional deeds of trust totaling $1,050,000. Consequently, by the time Weckerle recorded the $515,000 deed of trust in fourth position, the Redstone Building was subject to approximately $2,025,000 in preexisting encumbrances. Although Weckerle was aware Kimmel was recording these additional deeds of trust, she did not inform Rooz or his agent Kapkin that Kimmel was placing additional encumbrances on the property.

Ultimately, the optimism of the 1980’s met the reality of the early 1990’s and the second deed of trust holder foreclosed on the Redstone Building, thereby extinguishing Rooz’s fourth deed of trust.

Because Rooz believed Kimmel and North American had wrongly impaired his security on the $515,000 note, he sued them for breach of oral agreement, negligence, breach of fiduciary duty, fraud and civil conspiracy.

At the bench trial, Rooz’s escrow expert testified that a reasonable escrow customer would construe the term “after Kimmel takes title” as used in the recording instructions to mean the new deed of trust would be recorded immediately after Kimmel took title to the Redstone Building. Moreover, the expert testified that once Weckerle recorded the deed of reconveyance she had “fulfilled the obligation that she had to Mr. Kimmel.” At that point she became Rooz’s agent and her sole remaining duty was to record the deed of trust against the Redstone Building. According to the expert, there was “no necessity to obtain [Kimmel’s] permission to record the deed of trust. As soon as the Deed of Reconveyance [was] recorded, [Weckerle’s] dut[y] to Mr. Kimmel. . . [had] been completed and then her duty [was] to Mr. Rooz to record the deed of trust against the Redstone property.” The expert testified that, at that point, Kimmel had no power to prevent Weckerle from recording the new deed of trust. Even in the face of his objections, a “reasonably prudent escrow officer” would have immediately recorded the new deed of trust. Finally, the expert noted that, in the absence of an indemnity agreement, the pertinent standard of care would not change even if this were an “accommodation recording.” Finally, Kimmel’s own escrow expert testified a “reasonable title officer” would have recorded the new deed of trust “within a féw days” of Kimmel taking title to the Redstone Building.

At the end of the bench trial, the trial court issued an informal written decision, a formal statement of decision upon Rooz’s request, and a “modification/clarification” to the statement of decision at North American’s request. The court found in favor of Rooz and against defendant Kimmel on the causes of action for breach of oral agreement and negligence only. The court ordered Kimmel to pay Rooz $114,834.99 in damages.

With respect to the causes of action against respondent North American, the court impliedly found North American would have been liable for negligence and breach of oral contract for failing to timely file the $515,000 deed of trust once escrow closed, but concluded the indemnity and hold harmless agreement “Absolve[d] [North American] of liability in this action.” Consequently, the court entered judgment in favor of North American on all causes of action.

Rooz thereafter filed a motion to vacate the judgment or, alternatively, for new trial. On July 14,1995, the trial court struck one sentence of its informal statement of decision, but otherwise denied Rooz’s motion to vacate the judgment or for new trial. Rooz then filed this timely appeal. (Cal. Rules of Court, rule 3(a).)

II

Discussion

A. The Indemnity and Hold Harmless Agreement Absolved North American of Liability for Its Own Negligence.

Rooz contends the trial court erred when it found the indemnity and hold harmless agreement absolved North American of liability for its own negligence. In a nutshell, Rooz contends: (1) the indemnity and hold harmless agreement does not specifically absolve North American of liability resulting from its own negligence; (2) such specific language is absolutely required to absolve a defendant of damages resulting from its own active negligence; and (3) North American was actively negligent when it failed to record the deed of trust immediately after Kimmel took title to the Redstone Building. (See Markley v. Beagle (1967) 66 Cal.2d 951, 962 [59 Cal.Rptr. 809, 429 P.2d 129]; Western Gulf Oil Co. v. Oilwell Service Co. (1963) 219 Cal.App.2d 235, 242-243 [33 Cal.Rptr. 20].)

We reject Rooz’s argument. As we explain below, California courts no longer adhere to the mechanical rules Rooz relies on. Instead, the issue before us is whether, based on the circumstances of the case, the parties “knowingly bargained] for the protection at issue.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 633 [119 Cal.Rptr. 449, 532 P.2d 97] (Rossmoor).)

1) The Law.

Both parties cite to cases that construe contractual indemnification provisions. We note that, strictly speaking, this case does not involve interpretation of an indemnification provision. Indemnity involves “ ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ ” (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864 [41 Cal.Rptr.2d 519], italics added (Maryland Casualty).) Here, North American is not seeking indemnification. Instead, North American relies on the general “hold harmless” provision in the indemnity and hold harmless agreement to prevent Rooz from directly recovering against North American for damage he incurred as a result of North American’s own negligence. Thus, in this case, the pertinent agreement is best viewed as a “release of liability” as opposed to an indemnity agreement. (See, e.g., Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726, 1731-1733, 1755 [22 Cal.Rptr.2d 781]; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 312, 314 [195 Cal.Rptr. 90]; John E. Branagh & Sons v. Witcosky (1966) 242 Cal.App.2d 835, 838 [51 Cal.Rptr. 844].) Although we note this distinction, the cases have held that the general rules for construing indemnity provisions apply to exculpatory clauses as well. (See Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at pp. 318-319 [applying cases interpreting indemnification agreements to a release of liability contract]; Philippine Airlines, Inc. v. McDonnell Douglas Corp. (1987) 189 Cal.App.3d 234, 238 [234 Cal.Rptr. 423] [same]; Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 932-933, fn. 3 [218 Cal.Rptr. 839] [same].)

We must determine the scope of a contractual duty of indemnification or release of liability from the contract itself. An indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemnitee. If an indemnity clause does not specifically address the issue of an indemnitee’s negligence, it is referred to as a “general” indemnity clause. While courts may construe such general indemnity clauses to provide indemnity for losses resulting from an indemnitee’s “passive” negligence, as a general rule courts in the past have refused to allow indemnification for “active” negligence. (Rossmoor, supra, 13 Cal.3d at p. 628; Morton Thiokol, Inc. v. Metal Building Alteration Co. (1987) 193 Cal.App.3d 1025, 1028 [238 Cal.Rptr. 722] (Morton Thiokol); Maryland Casualty, supra, 35 Cal.App.4th at p. 867.)

Although it has been the general rule that a party will not be indemnified for his or her own active negligence under a general indemnity agreement, our Supreme Court, while acknowledging this general rule, has held that “whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” (Rossmoor, supra, 13 Cal.3d at p. 633; Morton Thiokol, supra, 193 Cal.App.3d at p. 1028.) “Decisions by the Courts of Appeal predating Rossmoor employed the same pragmatic approach.” (Morton Thiokol, supra, 193 Cal.App.3d at p. 1029; see, e.g., Atchison, T. & S. F. Ry. Co. v. James Stewart Co. (1966) 246 Cal.App.2d 821, 826 [55 Cal.Rptr. 316] [“Considering the text of the writing and the relationship of the parties, no one could doubt that the accident which occurred was exactly the kind of hazard which was contemplated by the parties, and against which the railway was promised protection.”].)

Recent cases have embraced the rule that the intent of the parties controls and have found indemnity agreements apply to the indemnitee’s active negligence even where the indemnity agreement does not expressly address the issue of the indemnitee’s negligence. For example, in Morton Thiokol, supra, 193 Cal.App.3d 1025 the indemnity clause in a roofing contract provided the contractor “ ‘agrees to indemnify and hold harmless the Owner [indemnitee] and its agents and employees from any and all liability, loss, damage, cost and expense . . . sustained by reason of Contractor’s breach of warranty, breach of contract, misrepresentation or false certification, or failure to exercise due care.’ ” (193 Cal.App.3d at p. 1027, italics in original.) The indemnification clause did not address the issue of the owner’s breach of the duty of due care. However, the contract did require the contractor to use appropriate safety measures. A worker was injured during the course of the construction due to the contractor’s negligence in failing to follow safety precautions and the owner’s negligence in allowing the roof to become slick with salt; the worker sued and recovered against the contractor and the owner based on the owner’s own “active” negligence. The owner sought indemnification from the contractor. (Id. at pp. 1027-1029.) The contractor argued the active negligence exception should apply, because the indemnity agreement did not expressly address the issue of the owner’s negligence. The Morton Thiokol court rejected this argument, stating: “[D]enying indemnity here would deprive the indemnitee of the benefit of its bargain and read out of the contract essential provisions intended by the parties to govern their relationship, in violation of the principle that contracts should be read in a manner which renders them reasonable and capable of being put into effect. [Citations.] In so concluding we are faithful to our high court’s admonition in Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d 622 that the active-passive rubric ought not to be wholly dispositive, but that instead the enforceability of an indemnity agreement shall primarily turn upon a reasonable interpretation of the intent of the parties. (Id. at p. 633.) Where, as here, the agreement clearly indicates that one party was to be indemnified for any damages sustained as a result of another’s breach of the contract, and it is undisputed that the accident would never have happened except for such breach, we conclude that the indemnity is viable notwithstanding the jury’s finding of the indemnitee’s ‘active’ negligence.” (Morton Thiokol, supra, 193 Cal.App.3d at p. 1030, fn. omitted; see also Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1820-1822 [34 Cal.Rptr.2d 732] (Hernandez) [“Although an indemnitee’s active negligence may ordinarily preclude its recovery under a general indemnity agreement, the Supreme Court has cautioned against a strict application of such rule.”].)

Recently, in Maryland Casualty, supra, 35 Cal.App.4th at page 869 the court noted Rossmoor, Morton Thiokol and Hernandez “recognized the general rule that an actively negligent tortfeasor cannot recover under a general indemnity provision . . . that is silent on the issue of the indemnitee’s negligence. [Citations.] These decisions made clear, however, that the general rule may not always apply and is merely a tool to be used to ascertain the intent of the parties.” We agree with this interpretation of recent case law.

2) Analysis.

Because the trial court construed the indemnity and hold harmless provision without the aid of conflicting extrinsic evidence, the interpretation of that agreement is a question of law for this court. (Maryland Casualty, supra, 35 Cal.App.4th at p. 868; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839].)

The indemnity and hold harmless agreement Rooz signed provided in pertinent part:

“Whereas, The Company [North American] is being requested and will in the future be requested by Indemnitor [Rooz] to record for the benefit of Indemnitor various documents (hereinafter ‘Documents’), with legal effects) on real property, without benefit of examination of conformity of documents or real property title, such documents to be recorded with various county[] Recorder’s office(s) (hereinafter the act(s) of so recording said Documents . . . referred to as ‘Recordings’); and

“Whereas, no benefit, business or otherwise, is derived by and for The Company by the Recordings, and Indemnitor acknowledges that The Company does not now nor will derive a benefit therefrom and Indemnitor further acknowledges that Indemnitor does and/or will derive a benefit from said Recordings; and

“Whereas, The Company is unwilling to carry out and perform the Recordings; and

“Whereas, the Indemnitor recognizes that The Company, in the normal course of its business, would not so carry out and perform the Recordings of Documents unless the Indemnitor indemnifies The Company as hereafter agreed.

“Now, Therefore, the Indemnitor Agrees that in consideration of The Company’s Recordings of Documents at the present and future requests of Indemnitor, the Indemnitor will hold harmless, protect and indemnify The Company from and against any and all liabilities, losses, damages, expenses and charges . . . which may be sustained or incurred by The Company under, or arising directly or indirectly out of the Recordings at requests of Indemnitor and resulting directly or indirectly from any claim, action, proceeding, judgment, order or process arising from or based upon or growing out of said Recordings of Documents.

“And the Indemnitor Further Agrees that The Company is hereby granted the right to rely upon this Agreement in Recordings of Documents, both now and in the future . . . .”

Given the commercial reality of the accommodation recording in this case, we conclude the parties intended by this agreement to release North American from liability for its own negligence in recording the documents, and this release applied whether that negligence is deemed “active” or “passive.” First, North American made it clear to Rooz that it was not deriving any commercial benefit from the accommodation recording; North American was recording the documents as a “favor” to Rooz and Kimmel. Second, North American made it clear that it was generally unwilling to carry out accommodation recordings and would do so only if Rooz agreed to fully indemnify the company and hold it harmless “from and against any and all liabilities . . . which may be sustained or incurred by The Company under, or arising directly or indirectly out of the Recordings . . . .” This language was broad enough to encompass liability arising from North American’s own active negligence. In short, the document clearly informed Rooz that North American would record the documents as an “accommodation,” without commercial benefit, only if Rooz promised to release and indemnify North American from all potential liability. In our view, denying North American the benefit of its release in these circumstances would deprive it “of the benefit of its bargain and read out of the contract essential provisions intended by the parties to govern their relationship, in violation of the principle that contracts should be read in a manner which renders them reasonable and capable of being put into effect.” (Morton Thiokol, supra, 193 Cal.App.3d at p. 1030.)

Thus, we agree with the trial court that the indemnity and hold harmless agreement “clearly, explicitly and comprehensively sets forth the intent and effect of the document... to absolve North American . . . from liability to” Rooz.

We also reject Rooz’s argument that, even if the indemnity and hold harmless agreement does apply to active negligence, it is “limited in its scope." Here, North American’s liability for negligence clearly arose “directly or indirectly out of the Recordings at requests of Indemnitor and resulting directly or indirectly from any claim, action, proceeding, judgment, order or process arising from or based upon or growing out of said Recordings of Documents.” (Italics added.) The fact the negligence preceded the actual recording did not render the hold harmless clause inapplicable.

B. The Trial Court Did Not Find North American Had Committed Fraud.

Rooz next contends the indemnity and hold harmless agreement did not shield North American from its own fraud, and North American committed fraud when it failed to record the deed of trust in second position. (See Maxon v. Security Ins. Co. (1963) 214 Cal.App.2d 603, 608-610 [29 Cal.Rptr. 586]; Civ. Code, § 1668.) This argument fails, however, because the trial court never found North American had committed fraud and Rooz never requested such a finding. Moreover, although Rooz pleaded a cause of action for fraud against North American, the trial court entered judgment in favor of North American on all causes of action, thus implicitly finding North American had not committed fraud. We are bound by that implicit finding. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132-1134 [275 Cal.Rptr. 797, 800 P.2d 1227] [where statement of decision is silent on issue and no request is made by appealing party for finding on that issue, reviewing court will imply findings that support the judgment]; Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942 [56 Cal.Rptr.2d 589]; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 671 [33 Cal.Rptr.2d 13].)

C. The Indemnity and Hold Harmless Agreement Is Not Against the Public Interest.

Rooz next contends that, even if the indemnity and hold harmless agreement purported to absolve North American of liability for its own active negligence, such an agreement is unenforceable because it is against the public interest. We disagree.

Rooz cites Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] (Tunkl) and Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [70 Cal.Rptr. 287] (Akin) to support his argument.

In Tunkl, the Supreme Court held a release from liability for future negligence may violate the public interest in certain circumstances. In particular, the court stated: “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (60 Cal.2d at pp. 98-101, fns. omitted.)

The Tunkl court continued: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances pose a different situation. In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another’s negligence.” (60 Cal.2d at p. 101.) Based on the factors cited above, the Supreme Court concluded a clause in an admission form that purported to release a nonprofit hospital from liability for its negligence to a patient violated the public interest and was unenforceable. (Id. at pp. 94, 101-102.)

In Akin, supra, 264 Cal.App.2d 153, Division Four of the Second District Court of Appeal applied the Tunkl factors to a standard escrow transaction. The plaintiff/seller in Akin opened an escrow with Business Title Corporation to handle the sale of a restaurant. The title company recorded a chattel mortgage the plaintiff received in the transaction in the wrong county, and when the buyer went bankrupt that security was not available to the plaintiff. (264 Cal.App.2d at pp. 154-155.) The title company attempted to escape liability for its negligence by relying on an exculpatory provision in its escrow agreement.

The Akin court stated: “In comparing the[] six criteria set forth in Tunkl to the case at bench we find that the transaction before us is also one that ‘affects the public interest.’ ” (Akin, supra, 264 Cal.App.2d at p. 156, italics added.) The court then analyzed each of the six Tunkl criteria and found each of them militated in favor of the conclusion that the specific transaction before it was one affecting the public interest. (Id. at pp. 156-157.) The Akin court did not hold—as Rooz suggests—that all transactions conducted by title companies necessarily affect the public interest.

Whether a particular transaction or contract affects the public interest depends upon the circumstances of the particular transaction or contract. (See, e.g., Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161 [21 Cal.Rptr.2d 245]; Loughrin v. Superior Court (1993) 15 Cal.App.4th 1188, 1193-1194 [19 Cal.Rptr.2d 161] [“We find that none of the characteristics cited in Tunkl as creating a ‘public interest’ exists in the typical private real estate purchase and sale transaction.”]; McCarn v. Pacific Bell Directory (1992) 3 Cal.App.4th 173, 179-181 [4 Cal.Rptr.2d 109] [provision exculpating phone directory provider from negligence upheld as not violating public interest]; Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 27-28 [262 Cal.Rptr. 716].) Moreover, a court will invalidate an exculpatory clause only where “all or most of the[] [Tunkl] circumstances exist.” (Belshaw v. Feinstein (1968) 258 Cal.App.2d 711, 726 [65 Cal.Rptr. 788].) In this case, we conclude only one of the Tunkl factors applies to the accommodation recording that is the subject of this lawsuit. We therefore hold that the specific transaction before us does not “affect the public interest” as that phrase has been defined in Tunkl.

We concede the first factor—that the title and escrow business is of a type generally thought suitable for public regulation—applies in this case. However, the remaining factors must be viewed in light of the specific transaction at issue here—an accommodation recording for which North American received no consideration and no commercial benefit. Moreover, the transaction did not require North American to set up a formal escrow, or provide title insurance or a title report. Thus, this case is distinguishable from Akin where the title company set up a formal escrow, and presumably sold title insurance and received a fee for its services. Instead, the only service North American promised to perform was to simply record the deed of reconveyance and the new deed of trust. Unlike the other services North American provides—such as a formal escrow or title insurance—the simple act of recording a document can be performed by any person with a minimum amount of familiarity with real estate transactions.

Viewed in this light, it is clear the second factor—“[t]he party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public”—does not apply. (Tunkl, supra, 60 Cal.2d at pp. 98-99, fn. omitted.) Although this may be true with respect to North American’s other services (e.g., title insurance and title reports), it is not true with respect to a simple accommodation recording, which essentially anyone can perform.

Nor does the third factor apply to this case. North American does not hold itself out as willing to perform accommodation recordings for any member of the public or even for any member coming within certain established standards. Instead, the indemnity and hold harmless agreement specifically states North American is generally “unwilling to carry out and perform” accommodation recordings and [^] “in the normal course of its business, would not so carry out” accommodation recordings, and will do so only if the party requesting the recording agrees to sign the indemnity and hold harmless agreement. In fact, this appears to be standard practice throughout the industry.

The fourth factor is likewise inapplicable. This is not a case where, “[a]s a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Tunkl, supra, 60 Cal.2d at pp. 99-100.) Here, the accommodation recording at issue is not essential, and the title company does not possess a decisive advantage of bargaining strength, because any member of the public may simply choose to record the document personally.

Nor did North American confront the public with a standardized adhesion contract of exculpation without making provision by which a customer could pay additional reasonable fees and obtain protection against negligence. Here, Weckerle testified that, if he had elected to do so, Rooz could have opened a formal escrow, purchased title insurance, and thus insured the second position of his $515,000 deed of trust. Had he done so, Rooz would not have been required to sign the indemnity and hold harmless agreement.

Finally, although as a result of the transaction, Rooz’s property was initially placed under the control of North American, subject to the risk of its carelessness, North American immediately informed Rooz’s agent when it learned it could not record the deed of trust because Kimmel had objected. There is no evidence Rooz or his agent then made any effort to force North American to record the deed of trust, or to reclaim control of the deed of trust and to record it themselves.

In sum, this was a “voluntary transaction[] in which one party, for a consideration, agree[d] to shoulder a risk which the law would otherwise have placed upon the other party.” That consideration was North American’s agreement to record the pertinent documents without charge. In our view, Rooz “really [did] acquiesce voluntarily in the contractual shifting of the risk” and received consideration for the transfer—namely, free recording services. (Tunkl, supra, 60 Cal.2d at p. 101.)

D. The Findings in the Summary Adjudication Proceeding.

Prior to trial, North American moved for summary judgment, or in the alternative, summary adjudication of issues. North American claimed primarily that it did not owe a duty of due care (or any other duty) to Rooz as a matter of law. Rooz did not move for summary judgment or summary adjudication of issues on his own behalf. The only papers he filed were in opposition to North American’s motions. Nowhere did Rooz ask the trial court to summarily adjudicate any issues on his behalf.

Nevertheless, the law and motion judge’s memorandum decision stated: “Both Summary Adjudication Motion and Summary Judgment Motion are denied. No triable issues of fact remain as to Plaintiffs [Rooz’s] additional facts 18 through 24, inclusive, supported by Plaintiffs declaration and cited references to page 162 of Kapkin[’s] deposition.” (Italics added.) The trial court did not explain why it was ruling in favor of Rooz on these issues when Rooz had not filed his own motion for summary adjudication.

The “additional facts” to which the law and motion judge referred are found in Rooz’s separate statement of disputed and undisputed facts in opposition to the motion for summary judgment. In that statement Rooz listed 17 factual issues he claimed were “disputed” and 7 facts (18 through 24) he claimed were “undisputed.” The allegedly undisputed facts were: “18. [North American] drafted instructions requiring that Plaintiff’s Deed of Trust securing his $515,000.00 Note against Redstone was to be recorded in place of his Deed of Trust securing the $445,00.00 Deed of Trust against Berkeley. The Redstone Deed of Trust was to be recorded after Kimmel took title to Redstone. HD 19. Plaintiff forwent obtaining Title Insurance at Marie Weckerle’s recommendation. [