348 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com (2) Require an employer to continue to employ or rehire a person if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person. (c) For purposes of this section: (1) “Aggrieved person” means a person who, in good faith, 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” means conduct that would constitute a crime under section 243.3, 261, 262, 264.1, 286, 287, or 289 of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes. (3) “Sexual harassment” has the same meaning as in subdivision (j) of section 12940 of the Government Code. 36 Techo Lite, Inc. v. Emcod, LLC, 44 Cal. App. 5th 462 (2020). 37 Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937 (2008) (invalidating provision in employer’s proposed separation agreement that would have prohibited former employee from performing services for certain clients, because that restraint—even though narrow and leaving a substantial portion of the market open to the former employee—exceeded statutory protections for trade secrets, and rejecting “narrow restraint” exception articulated by Ninth Circuit as a misreading of California law). 38 Bancroft-Whitney v. Glen, 64 Cal. 2d 327 (1966) (managers may not take steps to set up competing business); GAB Bus. Servs. v. Lindsey & Newsom Claim Servs., 83 Cal. App. 4th 409 (2000) (company officer liable for breach of fiduciary duty for using inside knowledge of employee skills and salaries to recruit employees for employer’s competitor). 39 Loral v. Moyes, 174 Cal. App. 3d 268, 275, 279 (1985) (employer could not keep departing employee from competing, but could reasonably limit how he can compete; the contractual “restriction only slightly affects employees. They are not hampered from seeking employment with [the defendant’s new employer] nor from contacting [the defendant]. All they lose is the option of being contacted by him first.”). 40 Thomas Weisel Partners LLC v. BNP Paribas, 2010 WL 546497, at *8 (N.D. Cal. 2010). 41 AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal. App. 5th 923, 938 (2018) (Loral’s “use of a reasonableness standard to analyze a non-solicitation clause appears to conflict with Edwards’s interpretation of Section 16600, which reads the plain language of the statute to prevent a former employer from restraining a former employee from engaging in the employee’s ‘lawful profession, trade, or business of any kind,’ absent statutory exceptions not germane here”). 42 Id. at 937-39 (unlike the former employee in Loral—an executive officer—the individual defendants in AMN Healthcare were nurse recruiters, so that the effect of the non-solicitation clause would not just restrict competition in a limited way but would restrain former employees from engaging in their chosen profession). 43 Readylink Healthcare v. Cotton, 126 Cal. App. 4th 1006, 1022 (2005) (“Misappropriation of trade secrets information constitutes an exception to section 16600.”). 44 Brown v. TGS, 57 Cal. App. 5th 303, 319 (2020). 45 Id. at 306. 46 Id. at 319. 47 Civ. Code § 3426 et seq. 48 Reeves v. Hanlon, 33 Cal. 4th 1140 (2004). 49 Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514 (1997). 50 AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc., 28 Cal. App. 5th 923 (2018). 51 Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443 (2002). 52 Civ. Code § 3426.2(a); Central Valley Gen. Hosp. v. Smith, 162 Cal. App. 4th 501 (2008). 53 Courtesy Temp. Serv., Inc. v. Camacho, 222 Cal. App. 3d 1278, 1292 (1990) (“cases are legion holding that a former employee’s use of confidential information obtained from his former employer to compete with him and to solicit the business of his former employer’s customers is regarded as unfair competition”); Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327, 351 (1966) (unfair competition and breach of fiduciary duty claims involving disclosure of employee’s salary to competitor are actionable “even if the information regarding salaries is not deemed to be confidential”). 54 Silvaco Data Sys. v. Intel Corp., 184 Cal. App. 4th 210 (2010) (citing Civ. Code § 3426.7(b)); K.C. Multimedia, Inc. v. Bank of Am. Tech. & Ops., Inc., 171 Cal. App. 4th 939 (2009). 55 Amron Int’l Diving Supply, Inc. v. Hydrolinx Diving Commc’n, Inc., 2011 WL 5025178 (S.D. Cal. Oct. 21, 2011). See also Think VillageKiwi, LLC v. Adobe Sys., Inc., 2009 WL 902337, at *2 (N.D. Cal. April 1, 2009) (claims for misappropriation and breach of confidence not superseded to extent that plaintiff is pleading in the alternative that the stolen information might be proprietary but not a trade secret); Ali v. Fasteners for Retail, Inc., 544 F. Supp. 2d 1064, 1072 (E.D. Cal. 2008). 56 Amron Int’l Diving Supply, Inc. v. Hydrolinx Diving Commc’n, Inc., 2011 WL 5025178 (S.D. Cal. Oct. 21, 2011) (existence of trade secret is question of fact not subject to motion to dismiss). See also Leatt Corp. v. Innovative Safety Tech., LLC, 2010 WL 2803947, at *6 (S.D. Cal. July 15, 2010) (“Plaintiffs’ unfair competition and tortious interference claims are not preempted by the UTSA to the extent they depend on the misappropriation of otherwise confidential or proprietary, but not trade secret, information as well as upon knowledge of Plaintiffs’ prospective business relationships.”). 57 SunPower Corp. v. Solarcity Corp., 2012 WL 6160472 (N.D. Cal. 2012). 58 Angelica Textile Servs., Inc. v. Park, 220 Cal. App. 4th 495, 507-09 (2013).
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