Application Group, Inc. v. Hunter Group, Inc., No. A071528

CourtCalifornia Court of Appeals
Writing for the CourtPHELAN
Citation61 Cal.App.4th 881,72 Cal.Rptr.2d 73
Parties, 1998-1 Trade Cases P 72,076, 13 IER Cases 1366, 98 Cal. Daily Op. Serv. 1317, 98 Daily Journal D.A.R. 1808 The APPLICATION GROUP, INC. et al., Plaintiffs and Respondents, v. The HUNTER GROUP, INC., Defendant and Appellant.
Docket NumberNo. A071528
Decision Date23 February 1998

Page 73

72 Cal.Rptr.2d 73
61 Cal.App.4th 881, 1998-1 Trade Cases P 72,076,
13 IER Cases 1366, 98 Cal. Daily Op. Serv. 1317,
98 Daily Journal D.A.R. 1808
The APPLICATION GROUP, INC. et al., Plaintiffs and Respondents,
v.
The HUNTER GROUP, INC., Defendant and Appellant.
No. A071528.
Court of Appeal, First District, Division 3, California.
Feb. 23, 1998.
Review Denied May 13, 1998.

Page 74

[61 Cal.App.4th 884] Charles S. Birenbaum, Thomas M. McInerey, Thelen, Marrin, Johnson & Bridges, Los Angeles, for Defendant and Appellant.

Stephen E. Taylor, Alameda, Jan J. Klohonatz, Paul Beach, Beverly Hills, Taylor & Co., Alameda, for Plaintiffs and Respondents.

PHELAN, Presiding Justice.

The Hunter Group, Inc. (Hunter or appellant), timely appeals from a judgment by which the San Francisco Superior Court declared that covenants not to compete contained in the employment contracts of Hunter consultants who do not reside in California are illegal in the circumstances of this case, and cannot be enforced against respondents The Application Group, Inc. (AGI), a California-based corporation, and Dianne Pike (Pike), a resident of Maryland and former Hunter consultant who was recruited to work for AGI in California in 1992. The trial court's judgment [61 Cal.App.4th 885] was based on sections 16600 and 17200 of the California Business and Professions Code. 1

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On appeal, Hunter contends: (1) There is no "actual controversy" between or among the parties and, therefore, certain of AGI's and Pike's claims for declaratory and injunctive relief are not justiciable; (2) The enforceability of the relevant covenants not to compete must be determined under the law of Maryland, not California; and (3) Under Maryland law, the covenants not to compete are lawful and enforceable.

We conclude the trial court did not abuse its discretion in determining that AGI's claims are justiciable. We further conclude, in agreement with the trial court, that California law may be applied to determine the enforceability of a covenant not to compete, in an employment agreement between an employee who is not a resident of California and an employer whose business is based outside of California, when a California-based employer seeks to recruit or hire the nonresident for employment in California. However, we agree with Hunter that the trial court abused its discretion by granting declaratory relief in favor of Pike, whose individual claims became moot during the pendency of the proceedings below. Accordingly, we vacate those portions of the judgment relating to Pike's individual claims for relief. As thus modified, the judgment will be affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties.

Hunter is a privately-held Maryland corporation, with its headquarters in Maryland. It provides computer consulting services for businesses that use human resources software, including software manufactured by the California-based company, PeopleSoft, Inc. Hunter maintains a branch office in San Francisco, California, as well as in Georgia, Illinois, New York, and Massachusetts. Hunter frequently competes with AGI and other California-based companies for consulting projects. Although its business is centered primarily in the eastern United States, Hunter has provided and continues to provide consulting services to customers in California.

Between October 1992 and July 1993, Hunter employed six computer consultants and one administrative assistant who were California residents. [61 Cal.App.4th 886] None of these employees had a covenant not to compete in their employment agreements. However, all of Hunter's employees who reside outside of California and work primarily in other states do so under covenants not to compete, which prevent them from working for any of Hunter's competitors for up to one year from termination unless the employee is laid off for economic reasons.

Between August 1993 and May 1994, Hunter performed no billable work in California. 2 However, in 1994, Hunter again attempted to enter the California computer consulting market. By late 1994, Hunter had ninety employees nationwide, only two of whom resided in California, and five California-based customers. At this time, too, the employment agreements of all of Hunter's non-California resident employees contained covenants not to compete, but those of the two California residents did not. To increase its capacity in California, Hunter assigned temporary projects in California to employees from other states.

AGI is a California corporation, with its headquarters in San Francisco, California. It is a subsidiary of Automatic Data Processing, a publicly-held corporation, and maintains offices in Georgia, Illinois, and New Jersey. Like Hunter, AGI provides its customers with the services of trained, specialized computer consultants who frequently travel substantial distances to work directly at the customer's premises. Sometimes these consultants travel from their home state to the customer's location for a project

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of extended duration. Competition for the limited number of qualified computer consultants among prospective employers--including Hunter and AGI--is "stiff." As of the end of 1994, AGI employed 106 consultants nationwide, 30 of them in California.

AGI and Hunter are structured differently and manage their employees in different ways. AGI conducts both its in-state and out-of-state business from its San Francisco headquarters. AGI's employees are treated as California employees; all AGI employees are residents of, work in, or are managed from California, and, with one exception, have employment agreements governed by California law. Unlike Hunter, AGI does not vary the terms of its employment agreements depending upon the employee's state of residence. AGI does not require a covenant forbidding employment with its competitors.

Pike is a consultant who is skilled in computerized human resources management systems, the field in which Hunter and AGI compete. She has [61 Cal.App.4th 887] been a resident of Maryland since 1963, and was hired by Hunter in 1991. During the 16 months she was employed by Hunter, Pike worked at Hunter's Baltimore offices and at various customer sites in Arizona, Colorado, Massachusetts, and New York. It is undisputed that Pike never set foot in California, even for pleasure, during the time she was employed by Hunter.

Hunter objected to AGI's recruitment and hiring of Pike, and demanded she withdraw her resignation and continue service under her employment contract. When Pike refused, Hunter sued her in the Circuit Court for Montgomery County, Maryland, in an action entitled Hunter Group, Inc. v. Pike (No. 95647), for breach of the covenant not to compete contained in her employment agreement. Hunter also sued AGI for unlawful interference with that contractual relationship. That action was concluded in May 1994, following presentation of the plaintiff's case, when the Maryland court granted Pike's and AGI's motion for judgment because of Hunter's failure to present any evidence of damages. 3

B. Hunter's Covenant Not to Compete.

The covenant not to compete contained in Pike's employment contract is similar to those used by Hunter with respect to all of its employees who may or may not work in, but are not residents of, California. The covenant in Pike's employment contract provided: "During the term of [her] employment, and for a period of [one year] after the date of its termination, [Pike] agrees that [she] will not render, directly or indirectly, any services of an advisory or consulting nature, whether as an employee or otherwise, to any business which is a competitor of [Hunter]." The noncompetition clause does not apply where the employee is "terminated by [Hunter] for economic or budgetary reduction purposes." Pike's employment contract expressly provided it was to be "governed by and construed in accordance with the laws of the State of Maryland."

Hunter uses the covenant not to compete for the admitted purpose of deterring and preventing the solicitation, recruitment and hiring of Hunter's employees by its competitors, especially those in California. Hunter intends [61 Cal.App.4th 888] that the covenant not to compete will serve as a complete barrier between its competitors and all of its employees. Hunter's use of the covenants not to compete also allows it to avoid a "bidding war" that would increase the salary of its consultants. Hunter has admitted its consultants cannot, and do not, shop for a potential offer from a competitor to obtain leverage in salary negotiations with Hunter. Hunter has objected, and continues to object, to what Hunter calls

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AGI's "poor business practice" of "trying to hire [Hunter's] people and steal them away from all their competitors." Indeed, Hunter's president testified that the covenant not to compete was designed to "scare [AGI] away" from soliciting its employees and that, until the Maryland action, Hunter's strategy had "worked quite well for three years."

Hunter endeavors to assure the efficacy of its covenant not to compete by repeatedly notifying competitors in California, including AGI, that they are not to solicit, recruit, or hire any Hunter employee in California. For example, in a letter of July 20, 1989, Hunter warned AGI, as follows: "[Y]ou should be aware [Hunter] has secured very strict employment agreements with each staff that disallows working for a competitor company or in a competitive position upon leaving Hunter. We would seek an injunction barring any provision of similar services by Hunter employees hired by [AGI]." Similarly, during the pendency of this action in August 1994, Hunter warned AGI in writing to "cease and desist its solicitation of [Hunter] employees." Hunter's covenant not to compete has, in fact, chilled the interest of Hunter's consultants to seek employment with its competitors, and has chilled AGI's efforts to solicit and...

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105 practice notes
  • Whyte v. Schlage Lock Co., No. G028382.
    • United States
    • California Court of Appeals
    • September 12, 2002
    ...not to compete, and California public policy strongly favors employee mobility. (Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 900, 72 Cal.Rptr.2d 73.) Business and Professions Code section 16600 protects a person's right to "follow any of the common occupations o......
  • Robinson v. U-Haul Co. of Cal., A141396
    • United States
    • California Court of Appeals
    • October 18, 2016
    ...the trial court erred in finding a “broad public interest” at stake in this case. (Cf. Application Group v. Hunter Group (1998) 61 Cal.App.4th 881, 892–893, 72 Cal.Rptr.2d 73 (Application Group ) [declaratory relief held properly granted, even though the individual plaintiff's case was moot......
  • City of Santa Monica v. Stewart, No. B159223.
    • United States
    • California Court of Appeals
    • January 28, 2005
    ...Authority (2003) 113 Cal.App.4th 465, 481, 6 Cal.Rptr.3d 367 (City of Burbank); Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal. App.4th 881, 893, 72 Cal.Rptr.2d 73 [A determination regarding the 126 Cal.App.4th 59 justiciability of an action under Code Civ. Proc. § 1060 "is .........
  • Washington Mutual Bank v. Superior Court, No. S070418.
    • United States
    • United States State Supreme Court (California)
    • January 25, 2001
    ...supra, 191 Cal. App.3d at pp. 612-616, 619, 236 Cal.Rptr. 605; see generally Application. Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal. App.4th 881, 896, 72 Cal.Rptr.2d 73 [cases involving choice-of-law clauses present an exception to application of governmental interest approach]; Stone......
  • Request a trial to view additional results
105 cases
  • Whyte v. Schlage Lock Co., No. G028382.
    • United States
    • California Court of Appeals
    • September 12, 2002
    ...not to compete, and California public policy strongly favors employee mobility. (Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 900, 72 Cal.Rptr.2d 73.) Business and Professions Code section 16600 protects a person's right to "follow any of the common occupations o......
  • Robinson v. U-Haul Co. of Cal., A141396
    • United States
    • California Court of Appeals
    • October 18, 2016
    ...the trial court erred in finding a “broad public interest” at stake in this case. (Cf. Application Group v. Hunter Group (1998) 61 Cal.App.4th 881, 892–893, 72 Cal.Rptr.2d 73 (Application Group ) [declaratory relief held properly granted, even though the individual plaintiff's case was moot......
  • City of Santa Monica v. Stewart, No. B159223.
    • United States
    • California Court of Appeals
    • January 28, 2005
    ...Authority (2003) 113 Cal.App.4th 465, 481, 6 Cal.Rptr.3d 367 (City of Burbank); Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal. App.4th 881, 893, 72 Cal.Rptr.2d 73 [A determination regarding the 126 Cal.App.4th 59 justiciability of an action under Code Civ. Proc. § 1060 "is .........
  • Washington Mutual Bank v. Superior Court, No. S070418.
    • United States
    • United States State Supreme Court (California)
    • January 25, 2001
    ...supra, 191 Cal. App.3d at pp. 612-616, 619, 236 Cal.Rptr. 605; see generally Application. Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal. App.4th 881, 896, 72 Cal.Rptr.2d 73 [cases involving choice-of-law clauses present an exception to application of governmental interest approach]; Stone......
  • Request a trial to view additional results
1 books & journal articles
  • ATOMISTIC ANTITRUST.
    • United States
    • William and Mary Law Review Vol. 63 Nbr. 6, May 2022
    • May 1, 2022
    ...[https://perma.cc/TMB9-ZCQB]. (142.) See STARR, supra note 134. (143.) See id. (144.) See Application Grp., Inc. v. Hunter Grp., Inc.. 72 Cal. Rptr. 2d 73, 82 (Ct. App. 1998); see also Ferrofluidics Corp. v. Advanced Vacuum Components, Inc., 968 F.2d 1463, 1466 (4th Cir. (145.) See Advanced......

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