Ruben PEREZ; Michael Moore; Brigette Moore, Plaintiffs, v. VEZER INDUSTRIAL PROFESSIONALS, INC., A California Corporation, Defendant-third-party-plaintiff-Appellee, v. Pinpoint Holdings, Inc., Third-party-defendant-Appellant, 610 F. App'x 611

MEMORANDUM PinPoint Holdings, Inc. (“PinPoint”) brings this interlocutory appeal from the district court’s order denying its motion for

summary judgment. PinPoint appeals, arguing only that the district court erred in failing to grant its motion for

summary judgment on the basis that California Labor Code

section 3864 requires all parties to an indemnification agreement to sign the agreement, and Vezer never signed. We have jurisdiction under 28 U.S.C. § 1292(

b) and reverse and remand. California appellate courts have unequivocally held that, for an indemnification clause under

section 3864 to be enforceable, the document containing the indemnification clause must be signed -by both parties, not just the party against whom the contract is being enforced. See Hansen Mech., Inc. v. Superior Court, 40 Cal.App.4th 722, 47 Cal.Rptr.2d 47, 53 (1995) (“We conclude that the rental receipt agreement was not properly executed pursuant to Labor Code

section 3864 because the agreement was not signed by both parties before the injury occurred.”); Nielsen Constr. Co. v. Int’l Iron Prods., 18 Cal.App.4th 863, 22 Cal.Rptr.2d 497, 500 (1993) (“We conclude Nielsen has misread

section 3864 as requiring only the indemnitor to execute before the injury. The language of

section 3864 clearly requires execution of the written agreement (i.e., signatures of all parties) before the injury.”). Rather than relying on these authorities, the district court concluded that City of Oakland v. Delcon Associates, 168 Cal.App.3d 1126, 214 Cal.Rptr. 734 (1985), created a split in authority that precluded granting PinPoint’s motion for

summary judgment. The district court erred in this conclusion. Both Hansen Mechanical and Nielsen Construction distinguished the conflicting language in Deleon as dicta, and held that all parties to an agreement must sign for an indemnification provision to be enforceable. See Hansen Mech., 47 Cal.Rptr.2d at 52-53; Nielsen Constr., 22 Cal.Rptr.2d at 499-500. Applying the law from Hansen Mechanical and Nielsen Construction to the facts in this record, PinPoint is entitled to

summary judgment. It was undisputed before the district court that Vezer had not signed the purchase agreement at issue in this case. Because Vezer did not sign the purchase agreement, the indemnification clause was not properly executed under California Labor Code

section 3864. Therefore, as a matter of law, Vezer cannot recover from PinPoint under the purchase agreement’s indemnification clause. REVERSED and REMANDED with instructions to enter

summary judgment on behalf of PinPoint. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Pursuant to 28 U.S.C. § 1292(

b) and Fed. R.App. P. 5, PinPoint filed a motion with the district court requesting certification of an interlocutory appeal on October 4, 2012. The district court granted PinPoint’s request on November 26, 2012. On December 6, 2012, PinPoint filed its petition to permit an interlocutory appeal with this court. This court granted the petition on March 1, 2013. . On appeal, Vezer argues for the first time that by affixing its letterhead to the purchase agreement it had actually signed the contract. Vezer relies on Marks v. Walter G. McCarty Corp., 33 Cal.2d 814, 205 P.2d 1025, 1028 (1949) (in bank), and Donovan v.

RRL Corp., 26 Cal.4th 261, 109 Cal.Rptr.2d 807, 27 P.3d 702, 713 (2001), for the proposition that a signature does not need to be manually affixed to a contract, but that any symbol executed or adopted by a party with the present intention to authenticate the writing is valid. By not presenting it to the district court, this argument is waived on appeal. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.2010).

Additionally, we refuse to exercise our discretion to address the argument, because the issue of Vezer’s intent is primarily a factual issue that should have been raised before the district court. See Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980); see generally Byrne v. Laura, 52 Cal.App.4th 1054, 60 Cal. Rptr.2d 908, 916 (1997) (noting that under contract law, "questions of intent and purpose are ordinarily questions of fact” (internal quotation marks omitted)).

To the extent that Vezer argues that PinPoint is estopped from claiming that the indemnification clause is invalid, we decline to address this new argument for similar reasons.