The motion for an award of attorneys fees and expenses is DENIED.

Firstly, the motion (as well as the proposed order) fails to identify the party or parties that allegedly had pre-litigation indemnity obligations and refused to accept the defense when tendered. In any event, a review of the entire action shows that none of the other parties either had an obligation to defend the moving party or received a demand that it do so.

This action simply involved parties that were potential joint tortfeasors. The Plaintiffs chose to base the personal injury claim solely upon allegations of defective gym equipment, naming only the seller of the equipment. (Later in the proceedings they added the manufacturer of the equipment as an additional defendant.) Moving party Forma Pro Gym, and its on-site trainer Nicole Ennis, were not sued by Plaintiffs.

Defendant M-F Athletic Company concluded that there were grounds to claim that parties not named in the complaint (the gym and trainer) had been negligent in supervising the injured plaintiff in using the equipment and cross-complained for comparative fault indemnity. This was not only not unusual but is a standard approach when a number of potentially negligent parties have been involved. M-F also cross-complained against the product manufacturer, Available Plastics, Inc., since the action was based upon products liability.

Presumably the moving party seeks attorneys’ fees against both M-F and Available Plastics as those parties appear to have been served and filed objections. CCP § 1021.6 applies to neither.

The first element of a § 1021.6 indemnity claim is a claim made against the moving party by a plaintiff for tort or contract damages and a “right” to be defended by the party now being asked to reimburse attorneys fees. The moving party did not have to defend a tort or contract claim made by the Douglass plaintiffs as it was never named as a defendant by them. Equally important is the fact that neither M-F nor Available had any contract or other relationship with Forma Pro that created the “right” to be defended even if the Plaintiffs had sued Forma Pro. No California authority suggests that a party that may be liable for an injury due to comparative fault has the right to be defended by the other potential tortfeasors.

The moving party relies upon Wilson, McCall & Daoro v. American Qualified Plans, Inc. (1999) 70 Cal.App.4th 1030 to make its claim. While it is rightly pointed out that the defense of a third party cross-complaint for indemnity can qualify as the “principal” action referred to in §1021.6, in that action the moving party did have to defend an action “brought by a third person”. As the Wilson Court stated, however, the indemnitee seeking to recover under § 1021.6 must demonstrate that “it would have been entitled to indemnity for any judgment that had been rendered against it” (p. 1038). There is before the Court no evidence that either M-F or Available Plastics would have an obligation to make whole Pro Forma were a judgment rendered against it. Wilson points out that § 1021.6 arises from the circumstances in Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1. In that case it was clear that the right to indemnity existed since the party that had sought indemnity was only the retailer that sold the manufacturer’s defective product. No such relationship exists here. The Wilson court remanded to the trial court for a determination of the right to indemnity; we do not learn sufficient facts from the opinion to ascertain on what basis American Qualified Plans had the right to demand defense from Wilson of the Stanton cross-complaint.

This Court finds no suggestion in the Wilson decision that every alleged or conceivable joint tortfeasor may demand defense from every other one such that, at the end of the day, those that might be absolved can claim their defense costs from all those that were not. Were that concept to become law our civil trial courts would be burdened with an unfathomable number of such claims.

The second element that must be established is a demand, at or during the litigation, that the party being now asked for attorneys’ fee reimbursement, step in and undertake the defense of the party now seeking reimbursement. Moving Party Forma Pro provides no evidence or suggestion of such a demand.

Finally, the moving party must establish that the litigation concluded with a finding by a trier of fact that the moving party was “without fault”. There has been no finding in the summary judgment proceedings that Forma Pro or Ms. Ennis were not negligent. They were ruled not liable for comparative fault liability solely because they had negotiated a release with the injured person.