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Hansen Mechanical11/29/1995
LILLIE, P.J.:
Hansen Mechanical, Inc. (Hansen) seeks a petition for writ of mandate to vacate the trial court's June 14, 1995, order denying its motion for summary adjudication as to the third and fourth causes of action of the cross-complaint of cross-complainant and real party in interest Northridge Equipment Co., Inc. (Northridge), and to enter a new order granting summary adjudication in favor of Hansen. We issued an order to show cause why respondent should not be compelled to grant the relief prayed for in the petition; oral argument has been had thereon. The issue before us is whether Hansen was entitled to summary adjudication of issues as to Northridge's claims for express indemnity, on the ground that the indemnity provision of the written agreement with Northridge is unenforceable because the agreement was not executed by Northridge within the meaning of Labor Code section 3864.
FACTUAL AND PROCEDURAL BACKGROUND
The complaint herein arises out of an April 1990 construction accident involving personal injuries to Sam Martinez, an employee of Hansen. Martinez was operating a mobile scissor lift which allegedly fell into an unguarded hole in a concrete floor at a construction site. Hansen had leased the scissor lift from Northridge. Martinez filed a complaint against Northridge, and others, for personal injuries. Northridge filed a cross-complaint against Hansen and others; the third and fourth causes of action of the cross-complaint were based on the theory of express indemnity The cross-complaint alleged that Hansen, through its "authorized agent, employee, or representative, executed the agreement attached hereto . . ., which provides that Hansen . . . defend, indemnify and hold harmless cross-complainant." The rental receipt agreement, under which Hansen leased from Northridge the scissor lift involved in the accident, provided in pertinent part in paragraph 14(b) that "Customer shall defend, indemnify, and hold Company harmless form any and all claims of third parties for loss, injury and/or damage to their persons and/or property arising out of Customer's renting, possessing, use, maintenance, operation of, or return of equipment, including legal costs incurred in defense of such claims."
Hansen filed a motion for summary judgment, or in the alternative for summary adjudication of issues as to Northridge's cross-complaint. By issues numbers six and seven, Hansen sought summary adjudication as to the third and fourth causes of action of the cross-complaint on the ground that the indemnity clause of the agreement was unenforceable under Labor Code section 3864 because that section requires that both parties sign the agreement, and the agreement was not signed by Northridge. Hansen relied principally on language in Nielsen Construction Co. v. International Iron Products (1993) 18 Cal. App. 4th 863, that "the language of section 3864 clearly requires execution of the written agreement (i.e., signatures of all parties) before the injury." (18 Cal. App. 4th at p. 869.)
Northridge opposed the motion for summary adjudication and maintained, relying on City of Oakland v. Delcon Associates (1985) 168 Cal. App. 3d 1126, 214 Cal. Rptr. 734, that section 3864 requires that the agreement be signed only by the party sought to be bound -- Hansen. Northridge, however, admitted it was undisputed that it did not sign the rental receipt agreement, and other than the foregoing agreement, Northridge did not sign any other agreement purporting to impose upon Hansen any express indemnity agreement
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