                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 19 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RUBEN PEREZ; MICHAEL MOORE;                      No. 13-15399
BRIGETTE MOORE,
                                                 D.C. No. 2:09-cv-02850-MCE-
              Plaintiffs,                        CKD

  v.
                                                 MEMORANDUM*
VEZER INDUSTRIAL
PROFESSIONALS, INC., A California
Corporation,

              Defendant-third-party-
plaintiff - Appellee,

  v.

PINPOINT HOLDINGS, INC.,

              Third-party-defendant -
Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                        Argued and Submitted May 13, 2015
                             San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

      PinPoint Holdings, Inc. (“PinPoint”) brings this interlocutory appeal from

the district court’s order denying its motion for summary judgment.1 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, 47 Cal. Rptr. 2d 47, 53 (Ct. App. 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., 22 Cal. Rptr. 2d 497, 500 (Ct.

App. 1993) (“We conclude Nielsen has misread section 3864 as requiring only the

      1
       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.

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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, 214 Cal. Rptr. 734 (Ct. App. 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 Delcon 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




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in this case.2 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.




      2
       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., 205 P.2d 1025, 1028 (Cal. 1949) (in bank), and
Donovan v. RRL Corp., 27 P.3d 702, 713 (Cal. 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, 60 Cal. Rptr. 2d 908, 916 (Ct. App. 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.

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