good morning your honor is my name is robert warshaw music pillar and garrett representing the appellant pinpoint holdings inc my understanding is the court has allocated fifteen minutes of time correct for oral argument by each party i'd like to reserve for minutes and you may do so just watch the clock i will do thank you very much your honor under california law the workers compensation scheme provides a comprehensive scheme and exclusive remedy for claims to be asserted against an employer relating to workplace injuries the but the policies underlying the purposes underlying that exclusively are really twofold one is to protect the the employee and the other is to protect the employer because the employer is agreeing to basically absolute liability in favor of the employee and yet on balance that is provided with limitations or bars to other claims to be asserted against that employer and and  that brings us to labor code section thirty eight sixty four which is part of that comprehensive scheme that code section operates to bar indemnity claims against the employer related to workplace injuries subject to an exception that's carved out in that rule in the exception is the indemnity has to be express has to be in writing and has to be executed and that's the first point of contention where the rubber hits the road if you will in this case because there's a dispute about what constitutes execution under that statute becomes a just it seems a little counterintuitive what would the legislative intent have been to require that so often don't start with the general rule that as long as there's a performance we don't really care whether the documents signed or not yes your honor i think the scheme related to the worker's compensation  law is so extensive and there is a desire to carry out the purposes behind that statute that if in fact we're going to have an exception to that rule the legislature decided we want to make absolutely certain that the the exception is justified is appropriate and is documented and then simply just included in that requirement the rather simple requirement that a party execute the document if they wanted to be enforced so  section signature of the party to be charged may be adequate to satisfy the statute but that issue wasn't before the court until come and so the statement to that effect is dicta it has no presidential presidential effect and particularly when it is contrasted with nielsen and hansen mechanical which are factually on point in both of those cases the party who had signed the document the indemnity for the party to be charged had in fact signed a document in both of those cases the indemnity the party to seeking to enforce the agreement had not signed the document and in both of those cases the court analyzed the statute underlying interpretation principles and so forth and concluded that the statute requires execution by all parties so to come back around to it your question your honor i think that don't condo's not actually create a conflict you have binding presidential authority and to publish decisions and then dicta in another case which ultimately our position is that the two published cases on point govern and require that the an agreement to be enforceable  section thirty eight sixty four has to be signed by both parties what about the argument that these are in effect signed it because it's letterhead or its name is on the the purchase order right and of this so what we have is a denial is an appeal of a denial of summary judgment correct correct and and so i it wasn't clear to me whether that issue had been waived below or know how we could even address that issue but i'd like to hear you talk about both the merits and procedurally whether that's properly before us but let me begin procedurally the issue of whether printed material on the invoice constitutes a signature was not raised at the district court level it was not raised in the motion papers it was not raised in the opposition papers it was not raised in the declarations in opposition to the motion for summary judgment reply or the co district court on any basis supported in the record so so it would be we'd be affirming if we went that way it would be affirming that the nihil of summary judgment so we would have to say there was a genuine issue of material fact about the the intent of having abusers name on the the envoy's is is there information in the record that would raise that sort of genuine issue well i think the the primary question in determining determining whether printed material constitutes a signature is the intent of the party did the party intend by that letterhead were logo to put it forth as a signature to adopted as a signature the question of intent is typically one of fact and so i think there is a question of fact but the problem there i don't i don't think that that justifies affirming the lower court i think what that does is it demonstrates that the issue is not properly considered by this court because it's twofold one it was waived to if we were to try to bring the with an exception and say it presents purely a question of law the fact is it doesn't it involves factual questions and there is prejudice to my client my client had propounded discovery which asked for all facts supporting the express indemnity claim that's reflected it page one hundred three of the record volume one page one eighty three the response reset was very cited only the terms of the agreement and then did not in any way indicate that there were facts or argument to be made about the nature of printed material on the document so the factual record below hasn't been developed so for the issue to now be raised for the first time on appeal absolutely prejudicial to my client and certainly the case law says it's not appropriate for the court to consider that issue for the first time on appeal now to the extent that you want to talk about the merits of that argument if the court were to consider the responded relies on two cases for this issue one is marks and the other is the donovan case the marks case  did contain language that said printed material may constitute a signature and then went on to say it's a question ted that court ultimately concluded that the document that case concerned turned contained turns of settled had letterhead for the party to be charged but the court said there's an adequate evidence of intent and found that documented not constitute a signature that letterhead did not constitute a signature so the marks case simply stands for a general proposition it does principle for respondent frank the user submitted a declaration in opposition to that motion and in that declaration he recited that the particular invoice material the in our case had been prepared by him he  ted that it had been signed by the principal of my client no where in that document did he assert that printed material on the document was intended to be a signature no where did he recites and present that  argument and obviously if that was in fact his intention and if that was the case he certainly would have done so you'd expect logically he would have done that the the issue on the motion for summary judgment plainly set forth that the document was not enforceable because it was not signed by respond if in fact he had that intent it would have been very simple for him to set forth in his declaration our contention is the reason that he didn't do that is because that wasn't his intent so if we were to progress with you as to the issue that it needed that have the two signatures and send this back at that point could your opposition suggest that he did sign i mean it seems to me that what we have in front of us is we have an issue of whether there has to be two signatures or not and it seems to me that's the only thing that was argued below and so if i say i mean if we were to say and i don't know all of my colleagues are going to do because i am an talk to them about it but if we were to say you've got to have two signatures hansen mechanical is in charge and you've got to have two signatures and so we affirm this or we reverse what the district courts done we'll send it back because my as your opposition gets a chance then to say well we do have two signatures i don't believe that would be appropriate  well isn't that for the district court to determine i mean if in fact it wasn't raised below and it now goes back don't you think that at that point the district court has in front of it the opinion that it's got to be two signatures before it was an argument about whether it was one or two and now district court will know it's got to pass to then at that point it seems that would be perfectly obvious for your opposition to say well or work to i think the answer is that for purposes of the appeal the arguments waived and can't be present i understand if it's waived then on appeal had read again that was going to be my second question that enforces the idea that going back into kennedy asserted right well appellants position is that the issue before the court is not just simply whether to reverse the  before me seems to be that the purchase order was not valid as a matter of law because there weren't two signatures if i address that issue which is the only issue  i'm having a tough time understanding how i can then get to the point that and to based on this record you don't have to because nobody argued that below correct so so does judgment so in order to to give to to just say correct the legal error we would have to affirm and say nevertheless there was a genuine issue of material fact is that correct and while we rarely get a is actually to have the summary judgment reversed and granted in my client's favor can we do that at this level at this stage i do think you can based on the record because the record demonstrates what the facts of evidence were before the court and other arguments that have now  so the record before you presents the issue of whether this particular agreement contains two signatures as required by the law or whether it has some other indicia that satisfy save but i mean judg going after the same thing i am it seems a little uneasy for me to say ok i'm going to say you need two signatures and i'm also going to say nobody talked about the fact that they had the chance to have their name on there and it's a factual issues so i don't want to determine that here and yet say all there is plenty enough for me to issue summary judgment if there is and i understand your reservation my point is there is adequate information based on the record that is before you to reverse the trial court ruling and grant summary judgment if in fact the case were to go back down to the district court for further proceedings which i don't think is necessary or appropriate then the issue could be joined i would point out part of my argument was that these issues were not only not raised in the trial court they were not disclosed in the course of discovery in the underlying case and discovery in the underlying case is closed we've long since completed all of our discoveries record didn't say anything about that of the district court as the ultimate responsibility for when discovery is closed and what it is and i mean the district court if i were  case needs two signatures the district court would have full opportunity to open discovery again that's correct so what are some of those tough time understanding that on appeal i'm going to say discoveries over no i simply meant to indicate that discovery had the discovery deadline had passed per the court's underlying work ok it seems to me though that in order to allow the parties to make this additional argument if that's what we decide to do we would have to affirm the district one's position would be that if the court concludes that two signatures are required i don't think a firm and sort of the underlying ruling is appropriate i think deny a reversal is appropriate if the court then ordered further proceedings  related to these issues again i don't think that's a serious proprium but i can certainly understand how that might be the course of action the court would take counsel our questions have taken you way over time so thank you very much i think you'll have hear from the other side your honor may please the court the main argument i would like to put before you is that the court in these nielsen and its progeny premised its holding  an incorrect view of the statute for example what i'm talking about is a nielson the court said and i quote the language of section thirty eight sixty four clearly requires execution of the written agreement i e signatures of all parties before the injury i would submit to you that's incorrect because if you look at section thirty eight sixty four it doesn't clearly require a signature of all parties simply because it's not what it says but if i adopt that i'm really saying the california court doesn't know what it's saying what its own statute says and i'm having a tough time suggesting that i know better what california law is than that court your honor you have to you have to rely on the supreme court's holding well i did i understand i'm relying on supreme court holding but it seems to me that nielsen and the hanson are pretty clear they are and the only time i can get around them is to say that they're somehow wrong and i can't find it in for your honor you have to say that their interpretation of the statute is wrong or we have to say that the california supreme court would find that that was wrong and if so what is the california supreme court case that indicates to us that the majority of the this versus r j which one better than i do because she's got a dad on our only case i've got that would help me as del gone and i said you can't go there so help help me by helping her because i don't know objective of section thirty eight sixty four as the the only purpose of that statute was to abolish the right to implied indemnity so that now to hold an employer liable you have to rely on an express contract that's the supreme court's interpretation of that statute so what does that mean in terms of our case well if the only objective of that statute was to abolish the right of employment in time that he so that an employer cannot be held liable b implication well worthy employer signs the agreement the objective is satisfied it's plain that it's not in this kind of context that's in a different contract context and we're not in that kind of a context as you're able poland has suggested we're talking about in fact a worker's compensation statute and liable and we didn't find it based on contract law it had to do with the policy of the court and at this point i want to california  decisions suggesting what that is i understand your honor well now it does then solace tell us anything about dell conn or how would you apply  there was that court's view of the statute i know i know this court is going to have a problem because you you have two appellate court cases nielsen and hansen and so you're going one way del congo's the other yeah yeah well i'm trying to connect it back up to the thrust of your argument you're telling us to take guidance from gonzales which is a supreme court case only insofar as as the objective of the statute is concerned because if the objective of the statute is clear then it's interpretation let me backtrack when you look at the statute i have to say that when i look at it it's not clear what execute means does it mean executed by everyone that appears in the face of the remit or does it mean executed yes by the party to be charged it's not clear because the statute doesn't say one way or the other that's my position the nielson court and hansen and  equipment all its progeny looked at that statute looked at black's law dictionary which to me is an indication that the court couldn't just look at the statute and say it's clear that all signatures are required because those words are not in the statute so it had to go to black's law dictionary and says and review the meaning of the word executed were black's law dictionary just premising it's it's it's definition on wills or deeds and saying all formalities have to be satisfied or course depending on the instrument a will or a deed or contract will determine whether all parties have to sign saying that the reasoning and nielsen is flawed there's no way around that do you want to say anything about the letterhead issue your honor i know it wasn't raised in a but he didn't say and i intended the letterhead to eat my say rather think of this as a picture someone prepares an agreement and literally delivers it to the other side for his signature you agreements is this agreement is a offer to buy your services once you accept this agreement and your acceptance of this agreement can be by the signature well i understand this is argumentation of what i'm asking is is there anything other than the document itself that would create a factual issue about intent i think the mere fact that these are handled livered the document to pinpoint is an indication that it was authenticating the documents ok i told the signatures for ate the document well how much more of an authentication do you need than the party itself delivering the contract to the other party to be so getting to the procedural question what we have is a denial of summary judgment before us  so it seems to me if we reverse the district court we would be saying that it should have entered summary judgment and so if our view was the district court made a legal error but we on different grounds modifying the the order to send it back for a determination of the issue so if we affirmed with a the district court was correct in the nine summary judgment but because there is a genuine issue of material fact about my my my my my point was that unless of the only requirement that i'm aware of is to deny the validity of the signature were signature appears on a document and you're going to claim it's not your signature you have an affirmative obligation to say it at the outset not it's not the other way around you don't have to affirmatively especially if you're alleging the validity of the contract it's presupposed that that contract has been duly executed whether by physically handwriting it or  anything further counsel or thank you very much the case just argued will be submitted for decision in the court will ad