©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 347 12 See Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th 697 (2002) (former employee moved to California to work for California employer and sued in California court one day before former employer sued in Minnesota). 13 Application Grp., Inc. v. Hunter Grp., Inc., 61 Cal. App. 4th 881 (1998) (California and Maryland litigants disputing whether noncompete covenant was valid). 14 See, e.g., Harstein v. Rembrandt IP Solutions, 2012 WL 3075084 (N.D. Cal. 2012) (granting defendant’s motion to dismiss for improper venue, even if the Pennsylvania forum called for in the employment agreement could cause a different legal outcome in the plaintiff’s action for declaratory relief to invalidate a covenant to compete); AJZN, Inc. v. Yu, 2013 WL 97916 (N.D. Cal. 2013). 15 Meras Eng’g, Inc., v. CH20, Inc., 2013 WL 146341 (N.D. Cal. 2013) (locating the forum in the state of Washington would not dictate that Washington’s substantive law would apply). 16 Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568 (2013). 17 Id. at 583. 18 Bus. & Prof. Code § 16601 (“sale of a business” exception). 19 Fillpoint, LLC v. Maas, 208 Cal. App. 4th 1170 (2012). 20 Blue Mountain Enterprises, LLC v. Owen, 74 Cal. App. 5th 537 (2022). 21 Id. at 544. 22 Id. 23 Wanke, Indus., Commercial, Residential, Inc. v. Superior Court, 209 Cal. App. 4th 1151 (2012). 24 VL Sys., Inc. v. Unisen, Inc., 152 Cal. App. 4th 708, 714 (2007). 25 Id. at 716. 26 Id. at 718. See also Siricom v. Ebislogic, Inc., 2012 WL 4051222 (N.D. Cal. Sept. 13, 2012) (section 16600 voids contract by which one company agreed not to solicit employees working for the other contracting company; Supreme Court’s Edwards decision forecloses continued reliance on Webb v. West Side Dist. Hosp., 193 Cal. App. 3d 946, 951(1983), which upheld, under a “rule of reason,” an agreement that required a hospital to pay an additional fee it if directly hired any doctor originally placed there by a staffing company). 27 Walia v. Aetna, Inc., 93 Cal. App. 4th 1213 (2001) (upholding $1.26 million award for salesperson dismissed for refusing to sign agreement with noncompete covenant; “California public policy condemns non-compete agreements. Walia was presented with one, she refused to sign it and, as a consequence of this refusal, she was fired. A Tameny claim [for tortious dismissal in breach of public policy] occurs when an employer discharges an employee for refusing to do something that public policy condemns.”); see also Thompson v. Impaxx, Inc., 113 Cal. App. 4th 1425 (2003); D’Sa v. Playhut, Inc., 85 Cal. App. 4th 927 (2000) (non-solicitation clauses are allowable only when they protect trade secrets or confidential proprietary information); Siricom v. Ebislogic, Inc., 2012 WL 4051222 (N.D. Cal. 2012) (including invalid noncompete covenant in vendor contract was unfair business practice Business & Profession Code section 16600). 28 Silguero v. Creteguard, Inc., 187 Cal. App. 4th 60, 66 (2010) (the plaintiff—fired by a new employer because his employment breached a noncompetition agreement he had signed with his old employer—could pursue “a Tameny claim for wrongful termination in violation of the public policy in section 16600 prohibiting noncompetition agreements”). 29 Id. at 70. 30 Golden v. California Emergency Physicians Med. Grp., 782 F.3d 1083, 1090 (9th Cir. 2015). 31 Id. at 1092-93. 32 Golden v. California Emergency Physicians Med. Grp., 896 F.3d 1018 (9th Cir. 2018). 33 Id. at 1026 (“This interference with Dr. Golden’s ability to seek or maintain employment with third parties easily rises to the level of a substantial restraint, especially given the size of CEP’s business in California.”). 34 AB 749, 2019 bill adding Code Civ. Proc. § 1002.5. Subsection (c) offers these definitions: (1) an “aggrieved person” is someone who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process; (2) “sexual assault” is conduct that would constitute a crime under various sections of the Penal Code, assault with intent to commit any of those crimes, or an attempt to commit any of those crimes; (3) “sexual harassment” is sexual harassment as defined in FEHA. 35 AB 2143, 2020 bill amending Code Civ. Proc. § 1002.5. Section 1002.5 now reads: (a) An agreement to settle an employment dispute shall not contain a provision prohibiting, preventing, or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer. A provision in an agreement entered into on or after January 1, 2020, that violates this section is void as a matter of law and against public policy. (b) Nothing in subdivision (a) does any of the following: (1) Preclude the employer and aggrieved person from making an agreement to do either of the following: (A) End a current employment relationship. (B) Prohibit or otherwise restrict the settling aggrieved person from obtaining future employment with the settling employer, if the employer has made and documented a good faith determination, before the aggrieved person filed the claim that the aggrieved person engaged in sexual harassment, sexual assault, or any criminal conduct.
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