This case requires this court to answer two fundamental questions. First, may a party obtain appellate review of an order acquitting a defendant in a nonsummary criminal contempt proceeding? We conclude that the double jeopardy clause of the Fifth Amendment to the federal Constitution precludes such review. Second, may a party successfully defend against an alleged violation of a facially valid stipulated injunction that the trial court had jurisdiction to issue, on the ground that the injunction is invalid? We conclude that the answer to this question is "no."
Applying these conclusions in the present case, we deny Wanke, Industrial, Commercial, Residential, Inc.'s (Wanke) writ petition seeking review of an order acquitting Scott Keck and his company, WP Solutions, Inc. (WP
Wanke is a company that installs waterproofing systems in Southern California. Scott Keck and Jacob Bozarth are former employees of Wanke.
In December 2008, Wanke filed the underlying action in this matter against Keck and Bozarth. Wanke's complaint alleged that it had "spent a significant amount of time, effort, and money in the acquisition, development, compilation and maintenance of confidential information concerning its customers, business, and products," including the "identity of [Wanke's] existing and prospective customers, the objectives of each customer, the strategies developed for each customer, the identities of key personnel at those customers, the special needs and characteristics of [Wanke's] existing and potential customers, [and] the histories and account balances of existing customers ... collectively ... `Confidential Information' ...." Wanke further alleged that Keck and Bozarth had "misus[ed] and misappropriat[ed] ... [Wanke's] trade secrets ... including ... some or all of the Confidential Information." Wanke also alleged that Keck and Bozarth had "actively targeted and recruited customers of [Wanke] utilizing the confidential business information of [Wanke] ...." Wanke's complaint contained eight causes of action, including a claim for misappropriation of trade secrets. In its prayer for relief, Wanke
Keck and Bozarth filed a cross-complaint against Wanke for unpaid compensation.
In October 2009, the parties resolved the action by entering into a settlement and mutual general release agreement (Settlement Agreement).
On October 30, 2009, the trial court entered the Stipulated Injunction.
The Stipulated Injunction also contains various other restrictions related to this provision, including prohibitions on "[s]eeking to redirect and/or redirecting business from [Wanke's] Customers to Defendants," and "[s]upplying labor, equipment, materials or services to any of [Wanke's] Customers." The Stipulated Injunction provides for liquidated damages in the amount of
In May 2010, Wanke filed an application for an order to show cause (OSC) requesting that the trial court hold Keck, Bozarth, and WP Solutions (defendants) in contempt for having violated the Stipulated Injunction. In its application, Wanke alleged that defendants had violated the terms of the Stipulated Injunction on 11 separate occasions by, among other things, contacting and/or supplying labor and/or materials to Con Am Management, one of Wanke's customers that appeared on the "Customer & Job List" attached to the Stipulated Injunction.
In June 2010, Wanke filed a motion to enforce the Settlement Agreement pursuant to Code of Civil Procedure section 664.6. In its motion and accompanying brief, Wanke referred to defendants' alleged violations of the Stipulated Injunction related to Con Am Management, and requested that the court order defendants to pay liquidated damages as provided in the Stipulated Injunction.
On August 9, 2010, the trial court held a combined trial on Wanke's OSC for contempt and hearing on Wanke's motion to enforce the Settlement Agreement. At that proceeding, Wanke presented evidence that Keck and WP
On August 11, 2010, the trial court issued a statement of decision. With respect to all 11 counts, the trial court determined that Wanke had established three of the four elements necessary to prove that defendants were in contempt of the Stipulated Injunction. Specifically, the trial court determined that defendants had knowledge of the Stipulated Injunction, that they had the ability to comply with its terms, and that they had willfully disobeyed it.
The trial court reached this conclusion based on its determination that the Stipulated Injunction was invalid to the extent that it prohibited defendants from soliciting an entity merely because the entity appeared on the customer list attached to the Stipulated Injunction. In making this determination, the court began by reviewing California law pertaining to the enforceability of noncompetition agreements, including Business and Professions Code section 16600.
After reaching this conclusion, the court proceeded to rule that the Stipulated Injunction could be applied lawfully under the following circumstances: "So as to avoid striking down the entire [Stipulated] Injunction (which would naturally have the effect of unwinding the entire settlement and consigning the parties to further fruitless and expensive litigation) and (hopefully) as a guide to the parties in arranging their affairs in the future, the court holds that the provisions of the [Stipulated] Injunction apply only to jobs undertaken or proposed to be undertaken for Con Am while defendants Keck and/or Bozarth were employed by [Wanke].... Only on these jobs can the defendants be said to be using information they learned while employed at [Wanke] to `identify customers with particular needs or characteristics' within the meaning of the case law discussed above [addressing the enforceability of noncompetition agreements under California law]. [Citation.]"
With respect to Wanke's motion to enforce the Settlement Agreement, the court ruled that "no liquidated damages may be imposed," because "all eleven of the alleged `violations' were not in fact violations of the [Stipulated Injunction] as interpreted above by the court." Notwithstanding this conclusion, the trial court ruled that Wanke was entitled to recover attorney fees from defendants in the amount of $17,655 as the prevailing party on the motion to enforce the Settlement Agreement.
In September 2010, Wanke filed a motion to enforce the Settlement Agreement with respect to a different customer/job listed in the Stipulated Injunction, AV Builders: Saratoga West.
Defendants filed an opposition to the motion in which they argued, "[o]nly when the Defendants misuse trade secret information, may Defendants be considered in breach of the [Settlement] [A]greement." Defendants further contended that "[n]either Keck nor Bozarth utilized any information gained from their previous employment to unfairly compete with [Wanke] on the 2009 Saratoga West project." Defendants supported their opposition with a declaration from Keck in which he discussed the circumstances leading to AV Builders awarding WP Solutions a job on the Saratoga West project.
The trial court issued a tentative order granting Wanke's motion. In its order, the court recited its August 11 decision that the Stipulated Injunction applied to "jobs undertaken or proposed to be undertaken ... while defendants Keck and/or Bozarth were employed by [Wanke]." The court proceeded to find that defendants had violated the Stipulated Injunction, as so interpreted. The court ordered defendants to pay Wanke $58,615, including $50,000 in liquidated damages and $8,615 in attorney fees. After a hearing the following day, the court confirmed its tentative order.
On October 1, 2010, the trial court entered two orders. With respect to the contempt proceedings and Wanke's motion to enforce the Settlement Agreement as to Con Am Management, the court incorporated its August 11 statement of decision and ordered defendants to pay Wanke $17,655 in attorney fees. With respect to Wanke's motion to enforce the Settlement Agreement as to AV Builders: Saratoga West, the court ordered defendants to pay Wanke $58,615 in liquidated damages and attorney fees.
Keck and WP Solutions filed an appeal from the trial court's two October 1 orders. With respect to the trial court's order concerning Wanke's motion to enforce the Settlement Agreement as it pertained to Con Am Management, Keck and WP Solutions contend that the court erred in awarding Wanke attorney fees as a prevailing party. Keck and WP Solutions maintain that Wanke was not a prevailing party because the trial court determined both that
With respect to the trial court's order concerning Wanke's motion to enforce the Settlement Agreement as it pertains to AV Builders: Saratoga West, Keck and WP Solutions contend that the trial court erred in concluding that they violated the Stipulated Injunction and breached the Settlement Agreement by performing work for AV Builders. Specifically, Keck and WP Solutions maintain that the court erred in concluding that they could be found to have violated the Stipulated Injunction and that they were thus liable for liquidated damages, in the absence of evidence that they had misappropriated trade secrets or committed some other independently tortious conduct constituting unfair competition in performing the work.
Wanke filed a cross-appeal with respect to the trial court's October 1 order denying its motion to enforce the Settlement Agreement with respect to defendants' having performed work for Con Am Management. In its cross-appeal, Wanke requests that this court "reverse the order of the trial court invalidating the [Stipulated Injunction]" and direct the trial court to "enforc[e] the ... [S]ettlement [A]greement with respect to [Con Am Management]."
In addition to filing a cross-appeal, Wanke also filed a petition for writ of mandate challenging the trial court's October 1 order insofar as the court refused to hold Keck and WP Solutions in contempt for violating the Stipulated Injunction.
In both its petition for writ of mandate and its cross-appeal, Wanke raises the same contention, i.e., that the trial court erred in determining that the Stipulated Injunction was invalid and unenforceable as violative of Business and Professions Code section 16600.
In its writ petition, Wanke asks that we "annul[] the trial court's order discharging the order to show cause re contempt and command[] the trial court to enter its judgment holding [Keck and WP Solutions] in contempt for violation of the [Stipulated Injunction]." We conclude that the double jeopardy clause precludes this court from affording such relief.
Although the Dixon court did not expressly describe the difference between nonsummary and summary contempt proceedings, the distinction, generally, is that, "contempts committed in the view of the court may be punished instantly [as summary contempts] but contempts committed outside the view of the sentencing judge are `nonsummary contempts' to which due process requirements apply."
In order to determine whether the trial court's ruling stating that Keck and WP Solutions were "acquitted" of the contempt charges in this case precludes further proceedings under the double jeopardy clause in light of the case law cited above, we must determine whether the contempt proceedings in this case were both nonsummary and criminal in nature. (Dixon, supra, 509 U.S. at p. 696.)
It is clear that the proceeding in the trial court was a nonsummary contempt proceeding. The alleged contempts (i.e., violations of the Stipulated Injunction) did not take place in the trial court's presence, and they were adjudicated in a trial, not in a summary fashion. For the reasons that follow, we also conclude that the proceeding in the trial court was a criminal contempt proceeding.
In its brief in support of its application for an OSC, Wanke requested that the court hold Keck and WP Solutions in contempt for "violating the Court's Order [(i.e., Stipulated Injunction)]." At the contempt trial, when the trial court asked what "sentence" Wanke was seeking for Keck and WP Solutions, Wanke's counsel responded that Wanke was requesting that Keck and WP
Further, the trial court clearly regarded the proceedings as criminal in nature, as demonstrated by the court's statement of decision, in which the court stated, "a criminal contempt must be proven beyond a reasonable doubt," and noted that the purpose of a contempt proceeding is to "uphold the dignity of the court's orders." (See Nolan W., supra, 45 Cal.4th at p. 1236 ["`where the object of the proceedings is to vindicate the dignity or authority of the court, they are regarded as criminal in character even though they arise from, or are ancillary to, a civil action'"].) The trial court also clearly and expressly stated that Keck and WP Solutions were "acquitted" of all of the contempt changes.
In its supplemental brief, Wanke suggests that the double jeopardy clause does not apply to the contempt proceeding in this case because the government did not prosecute the action, and the purpose of the double jeopardy clause is to curb abuse of governmental authority in legal proceedings. While we have given this contention careful consideration, and we acknowledge that the law in this area is not entirely clear, we reject Wanke's argument under the authority of the United States Supreme Court's holding in Dixon. In Dixon, a private party prosecuted one of the two contempt proceedings at issue in that case, both of which preceded a criminal prosecution.
One could reasonably argue that Dixon should be limited to nonsummary criminal contempt proceedings that are prosecuted by the government, or on its behalf, and that a contempt trial under Civil Code of Procedure section 1209 is not such a proceeding.
In addition, the argument that nonsummary criminal contempt proceedings, whether prosecuted by the state or by a private party, are — for lack of a more precise description — sufficiently criminal in nature such that the double jeopardy clause applies, is worthy of serious consideration. In any event, there is no language in Dixon that would support limiting the application of the double jeopardy clause to nonsummary criminal contempt proceedings prosecuted either by the government or on its behalf. Because we are bound by Dixon, we conclude that the double jeopardy clause applies to the criminal contempt proceeding in this case, notwithstanding that it was prosecuted by Wanke.
Wanke also contends that even if the double jeopardy clause applies to the contempt proceeding in the trial court, appellate review is permitted because Keck and WP Solutions "were not `acquitted' as that term is applied in double jeopardy analysis."
For example, in Arizona v. Rumsey (1984) 467 U.S. 203, 211 [81 L.Ed.2d 164, 104 S.Ct. 2305] (Rumsey), "a trial judge sitting as a sentencer in a death-penalty proceeding entered an `acquittal,' i.e., a life sentence, based on an erroneous construction of the law governing a particular aggravating circumstance. The Court held that the Double Jeopardy Clause barred a second sentencing hearing." (Smalis v. Pennsylvania (1986) 476 U.S. 140, 145, fn. 8 [90 L.Ed.2d 116, 106 S.Ct. 1745] (Smalis).)
The Rumsey court explained: "Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. `[The] fact that "the acquittal may result from ... erroneous interpretations of governing legal principles" ... affects the accuracy of that determination, but it does not alter its essential character.'" (Rumsey, supra, 467 U.S. at p. 211; accord, Smalis, supra, 476 U.S. at p. 144, fn. 7 ["The status of the trial court's judgment as an acquittal is not affected by the Commonwealth's allegation that the court `erred in deciding what degree of recklessness was ... required to be shown under Pennsylvania's definition of [third-degree] murder.'"].)
Similarly, in U.S. v. Ogles (9th Cir. 2006) 440 F.3d 1095 (Ogles), an en banc panel of the United States Court of Appeals for the Ninth Circuit unanimously held that the double jeopardy clause applied to bar review of the trial court's granting of a motion for judgment of acquittal premised on an issue of statutory interpretation. The district court in Ogles acquitted a defendant of violating 18 United States Code section 922(a)(1)(A) based on the court's "adopt[ing] the reasoning of United States v. Caldwell, 49 F.3d 251, 252 (6th Cir. 1995), which held that § 922(a)(1)(A)'s prohibition against dealing in firearms without a license is not violated when the defendant has a federal firearms license, even if he sold firearms away from the licensed premises." (Ogles, supra, at p. 1098.) After reviewing United States Supreme Court case law concerning the meaning of an acquittal for purposes of the double jeopardy clause, the Ogles court rejected the government's argument that "the district court's decision rested solely on its resolution of a statutory
"In deciding the Rule 29(a) motion [for judgment of acquittal], the district court adopted the Sixth Circuit's interpretation of § 922(a)(1)(A) in Caldwell and concluded that the term `licensed dealer' does not have a geographic component. After adopting this interpretation, the district court determined that a factual element of the offense — namely, that Ogles was dealing firearms without a license at the time of the challenged conduct — had not been proven. Notably, the district court stated: `The Court finds ... that the defendant was a licensed dealer under the statute at the time the transaction took place. Therefore, the judgment of acquittal is appropriate as to Count [Two] of the indictment.' The judgment here was an acquittal in substance as well as form — a determination that the evidence was insufficient to convict. Whether this determination was ultimately correct or `egregiously erroneous' is not relevant in evaluating double jeopardy. [Citation.]
"The government suggests that because Ogles did not contest his licensed status, the district court's ruling did not meet the Supreme Court's definition of acquittal — that `whatever its label, [it] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.' [Citation.] The Court's double jeopardy decisions do not, however, condition an acquittal under Rule 29(a) on the district court's examination of contested facts. Here, the district court determined that a factual element of the offense had not been proved by the government. What is this if not a `resolution'?" (Ogles, supra, at pp. 1103-1104.)
Similarly, in this case, the trial court determined that the Stipulated Injunction was invalid as drafted. As a consequence, the court found that Wanke had failed to establish a factual element of the offense — the violation of a valid court order. In other words, the trial court concluded that the evidence presented at the contempt proceeding was legally insufficient to find Keck and WP Solutions in contempt. This finding constitutes an acquittal for purposes of the double jeopardy clause. (Smalis, supra, 476 U.S. at p. 144 ["What the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt. Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause." (fn. omitted)];
Finally, Wanke contends that we may consider the merits of its writ petition because "[e]ven where the double jeopardy clause applies, an exception to the rule exists in situations in which no retrial is necessary." In support of this contention, Wanke cites to cases in which courts have cited an exception to the bar on further proceedings in the wake of an acquittal that applies when there has been a jury's verdict of guilt followed by a court's granting of a motion for acquittal. In such a case, reversal of the acquittal leaves in place the jury's verdict and the double jeopardy clause is not a bar to appellate proceedings: "Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty. [Citation.] But if the prosecution has not yet obtained a conviction, further proceedings to secure one are impermissible...." (Smith, supra, 543 U.S. at p. 467, italics added.) Here, there has been no prior verdict of guilt that this court could direct to be reinstated on remand. This exception thus has no application in this case.
Notwithstanding our conclusion that we must deny Wanke's writ petition, we may still review Wanke's contention that the trial court erred in determining that the Stipulated Injunction was invalid and unenforceable in the
In contrast to orders entered "`in excess of the jurisdiction of the issuing court'" (Gonzalez, supra, 12 Cal.4th at p. 817), which may be challenged collaterally, a party may not defend against enforcement of a court order by contending merely that the order is legally erroneous (see In re Marriage of Niklas (1989) 211 Cal.App.3d 28, 35 [258 Cal.Rptr. 921] (Niklas) ["A person may refuse to comply with a court order and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid, but may not assert as a defense that the order merely was erroneous." (italics added)]; Signal Oil & Gas Co. v. Ashland Oil & Refining Co. (1958) 49 Cal.2d 764, 776, fn. 6 [322 P.2d 1] (Signal Oil) ["`An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action, and served upon persons made parties therein and within its jurisdiction, must be obeyed by them
In Berry, supra, 68 Cal.2d at page 150, the petitioner violated a temporary restraining order that was "void on its face." The Berry court concluded that the petitioner could not be charged with criminal contempt based on the violation because "the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt...." (Id. at p. 147; see ibid. ["a temporary restraining order constitutionally void on its face is issued in excess of jurisdiction and cannot sustain a contempt judgment based upon its violation" (citing Fortenbury v. Superior Court (1940) 16 Cal.2d 405 [106 P.2d 411])].)
In reaching this conclusion, the Berry court distinguished its prior decision in Signal Oil, supra, 49 Cal.2d 764 in which the court sustained the validity of a temporary restraining order based upon an agreement later determined to be void (Signal Oil, supra, at pp. 775-778). The Berry court explained that Signal Oil was not contrary to its holding in the present case because the invalidity of the order at issue in Signal Oil was not apparent on the face of the order: "The case of Signal Oil ... is clearly in harmony with the principles above expressed. There the superior court had issued a temporary restraining order enjoining acts in violation of a certain agreement, which acts were nevertheless undertaken. Subsequently the Supreme Court of Delaware held that the agreement was void. In the meantime the superior court had issued a preliminary injunction enjoining the parties from giving any effect to the acts performed in violation of the temporary restraining order and from undertaking future acts in violation of the agreement. We held, on appeal from the order granting the preliminary injunction, that such injunction should be vacated insofar as it purported to enforce future compliance with the void agreement, but that it should be sustained insofar as it forbade recognition of the acts undertaken in violation of the temporary restraining order. In answer to the contention that the court lacked `jurisdiction' to issue a temporary restraining order enforcing compliance with a void agreement, and that acts undertaken in violation of that order should therefore be given recognition, we concluded that the order suffered from no jurisdictional defect because the invalidity of the agreement did not appear upon the face of the order...." (Berry, supra, 68 Cal.2d at pp. 147-148.)
The Berry court further noted that the "... Signal Oil case might be considered as holding that a temporary restraining order issued on the basis of an error of law of less than constitutional stature is not issued in excess of jurisdiction...." (Berry, supra, 68 Cal.2d at p. 148, italics added & omitted;
"The requirement that a customer list must have economic value to qualify as a trade secret has been interpreted to mean that the secrecy of this information provides a business with a `substantial business advantage.' [Citation.] In this respect, a customer list can be found to have economic value because its disclosure would allow a competitor to direct its sales efforts to those customers who have already shown a willingness to use a unique type of service or product as opposed to a list of people who only might be interested. [Citation.] Its use enables the former employee `to solicit both more selectively and more effectively.' [Citation.]" (Morelife, supra, 56 Cal.App.4th at pp. 1521-1522.)
Business and Professions Code section 16600 provides: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."
In Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 948 [81 Cal.Rptr.3d 282, 189 P.3d 285] (Edwards), the Supreme Court considered whether Business and Professions Code section 16600 rendered invalid portions of a noncompetition agreement that, among other restrictions, precluded an employee from soliciting the clients of his former employer for one year after the termination of his employment with the employer. In analyzing this issue, the Edwards court expressly stated that it was not "address[ing] the applicability of the so-called trade secret exception to section 16600, as Edwards does not dispute that portion of his agreement[
In holding that the noncompetition agreement at issue in that case was invalid, the Edwards court stated: "We conclude that Andersen's noncompetition agreement was invalid. As the Court of Appeal observed, `The first challenged clause prohibited Edwards, for an 18-month period, from performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination. The second challenged clause prohibited Edwards, for a year after termination, from `soliciting,' defined by the agreement as providing professional services to any client of Andersen's Los Angeles office.' The agreement restricted Edwards from performing work for Andersen's Los Angeles clients and therefore restricted his ability to practice his accounting profession. (See Thompson v. Impaxx, Inc.[, supra,] 113 Cal.App.4th [at p.] 1429 ... [distinguishing `trade-route' and solicitation cases that protect trade secrets or confidential proprietary information].)" (Edwards, supra, 44 Cal.4th at p. 948.)
It is undisputed that at the time the trial court issued the Stipulated Injunction, the court had personal and subject matter jurisdiction over the parties. It is also undisputed that at the time the court entered the Stipulated Injunction, Wanke had filed a lawsuit in which it contended that Keck and WP Solutions had misappropriated its trade secrets. Wanke requested that the court issue an order enjoining Keck and WP Solutions from soliciting its customers. The court entered the Stipulated Injunction as part of a final resolution of the case. Each of these facts supports the validity of the Stipulated Injunction. (See Signal Oil, supra, 49 Cal.2d at p. 776 [concluding order was not issued in excess of its jurisdiction where "court had jurisdiction over the parties and the subject matter, there was no claim that the procedural requirements of the injunction statute had not been met, and there was at least a prima facie showing of facts which would sustain the court's orders" (fn. omitted)].)
In addition, Keck and WP Solutions do not claim that the Stipulated Injunction was "obtained in an unauthorized manner" (Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 529 [82 Cal.Rptr.2d 739]) or in violation of statutory procedures. (Compare with ibid. ["the 1987 stipulated order was in excess of the court's jurisdiction because it was not entered in compliance with [Code of Civil Procedures] section 664.6 or some other settlement enforcement mechanism"].) Further, there is nothing on the face of the Stipulated Injunction that indicates that it is unconstitutional or that it violates a statute. (Compare with Gonzalez, supra, 12 Cal.4th at p. 823 ["we ...
On the contrary, because the Stipulated Injunction is valid to the extent that it protects Wanke's trade secrets, and one cannot conclude from the face of the Stipulated Injunction that it does not protect Wanke's trade secrets, the Stipulated Injunction is facially valid. (Berry, supra, 68 Cal.2d at p. 148 ["[In Signal Oil] we concluded that the order suffered from no jurisdictional defect because the invalidity of the agreement did not appear upon the face of the order."].) Indeed, by repeatedly arguing that there is substantial evidence to support the trial court's factual finding that the customer list attached to the Stipulated Injunction is not a trade secret, Keck and WP Solutions implicitly concede that the Stipulated Injunction is facially valid. (Cf. Thompson, supra, 113 Cal.App.4th at p. 1430 ["The issue of whether information constitutes a trade secret is a question of fact."].)
Stated differently, even assuming that Keck and WP Solutions could demonstrate that the trial court erred in issuing the Stipulated Injunction because the customer list attached to the Stipulated Injunction is not a protected trade secret, such a showing would be insufficient to avoid enforcement of the injunction. That is because demonstrating that the trial court erred in issuing the injunction would not be sufficient to demonstrate that the court acted in "excess of its jurisdiction" in doing so. (See Niklas, supra, 211
Our conclusion that Keck and WP Solutions have not demonstrated that the trial court acted in excess of its jurisdiction in issuing the Stipulated Injunction is also supported by fundamental fairness and common sense. Keck and WP Solutions may not stipulate to an injunction that identifies certain customers whom they will not solicit, in order to resolve claims that they misappropriated Wanke's trade secrets, then proceed to violate the Stipulated Injunction and defend against its enforcement by claiming that Wanke's customer list is not a trade secret.
Further, even assuming that Keck and WP Solutions were permitted to collaterally attack the validity of the Stipulated Injunction, and that they could prove that the customer list attached to the Stipulated Injunction is not a trade secret, they made no such factual showing in this case. Although the trial court appeared to acknowledge in its statement of decision that Morlife requires a fact-specific inquiry to determine whether a customer list is a trade secret, the trial court found that the customer list attached to the Stipulated Injunction was not a protected trade secret in the absence of the submission of any evidence that would support such a conclusion. While Keck and WP Solutions repeatedly assert in their briefing on appeal that the trial court's factual determination is supported by "substantial evidence," they cite to no such evidence in the record. We have thoroughly reviewed the record and conclude that there is in fact no such evidence.
Keck and WP Solutions also appear to contend that, even assuming the customer list attached to the Stipulated Injunction is a trade secret, the Stipulated Injunction is nevertheless invalid. Keck and WP Solutions suggest that the Stipulated Injunction is invalid because, rather than prohibiting the misuse of Wanke's customer list, the Stipulated Injunction prohibits any solicitation of the customers on the list. We are not persuaded. The Morlife court upheld an injunction that prohibited a group of former employees from soliciting the business of any entity that had done business with Morlife before the employees left their employment with Morlife if the employees had obtained knowledge of the customer during their employment with Morlife. (Morlife, supra, 56 Cal.App.4th at pp. 1527-1528.) Thus, like the Stipulated Injunction, the injunction at issue in Morlife did not narrowly restrict the former employees' misuse of a customer list. Further, the Morlife court upheld the validity of the injunction at issue in that case because it left the former employees "free to solicit customers whose identities are not the
Accordingly, we conclude that the trial court erred in denying Wanke's motion to enforce the Settlement Agreement as to Con Am Management.
Keck and WP Solutions raise two claims in their appeal, both of which fail in light of our resolution of Wanke's cross-appeal. First, Keck and WP Solutions contend that the trial court erred in awarding Wanke attorney fees as a prevailing party after having determined that the Stipulated Injunction could not be enforced as drafted. This claim fails in light of our conclusion that the trial court erred in determining that the Stipulated Injunction could not be enforced as drafted. Second, Keck and WP Solutions contend that the trial court erred in enforcing the Settlement Agreement with respect to AV Builders: Saratoga West because such a ruling purportedly "flatly contradicted" its ruling with respect to Con Am Management that the Stipulated Injunction could not be enforced as drafted. This claim also fails in light of our conclusion that the trial court erred in determining that the Stipulated Injunction could not be enforced as drafted.
Wanke's petition for writ of mandate is denied. Each party is to bear its own costs in connection with the writ proceeding in case No. D058825.
The trial court's order entitled "Order Re OSC Re Contempt and Motion to Enforce Settlement Agreement (Con Am Management)" is reversed with respect to the trial court's denial of Wanke's motion to enforce the Settlement Agreement. The matter is remanded to the trial court with directions to vacate its order and to conduct further proceedings consistent with this opinion.
The trial court's order entitled "Order Enforcing Settlement Agreement (AV Builders: Saratoga West)" is affirmed.
McConnell, P. J., and Huffman, J., concurred.
The California Supreme Court's opinion in Bridges, which the court issued in 1939, was decided long before both the United States Supreme Court issued its 1993 decision in Dixon, and before much of the United States Supreme Court's jurisprudence concerning constitutional protections applicable to criminal contempt proceedings existed. (See, e.g., Bloom v. Illinois (1968) 391 U.S. 194 [20 L.Ed.2d 522, 88 S.Ct. 1477] [holding that a criminal contempt prosecution is a criminal prosecution for the purposes of the 6th Amend. to the federal Const.].) In our view, the validity of the Bridges court's holding that a private party may prosecute a criminal contempt proceeding under Code of Civil Procedure section 1209 on its own behalf presents a serious constitutional question. (See Robertson v. United States ex rel. Watson (2010) 560 U.S. ___, ___ [176 L.Ed.2d 1024, 130 S.Ct. 2184, 2185] (dis. opn. of Roberts, C. J. from dismissal of writ of cert.) ["The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government."].) However, we need not decide this issue in light of our conclusion that Dixon applies to all criminal contempt proceedings, including those prosecuted by a private party.
