Fidelity Mortgage Trustee Service, Inc. v. Ridgegate East Homeowners Ass'n

I. Introduction

Plaintiff, Fidelity Mortgage Trustee Service, Inc., appeals from a judgment following the grant of the summary issue adjudication motions of defendants, Ridgegate East Homeowners Association (Ridgegate) and Bali Management, Inc. (Bali). In granting the summary issue adjudication motions, the trial court concluded Code of Civil Procedure section 1021.6 applied to the facts of this case. We conclude a triable controversy exists as to the application of section 1021.6 to the present case given the showing made in the parties’ separate statements of undisputed and disputed facts.

The judgment was entered pursuant to the parties’ stipulation after the court, on defendants’ summary issue adjudication motions, concluded plaintiff’s failure to tender the defense of a third party action to Ridgegate and Bali barred it from recovering, on an implied indemnity theory, the attorney fees it incurred in defending that lawsuit. Plaintiff contends section 1021.6 is inapplicable to a claim for indemnification arising out of an agency relationship. We find section 1021.6 applies only when an indemnitee who is innocent of wrongdoing is required, through the tort of the…