Fortna v. Martin

[636]

SCHOTTKY, J.

This is an appeal from a judgment enjoining defendant, for a period of five years, from “entering into competition, directly or indirectly, with plaintiff . . . and/or soliciting structural pest control work, all in the exterminating business, Branch 3, Group D termite control work,” in a specified area of the Sacramento Valley, and from “making use of confidential information or trade secrets of said plaintiff, . . . and in particular from making any disclosure whatsoever as to said plaintiff’s methods of bidding for structural pest control work.”

On December 21, 1953, defendant Martin and plaintiff Fortna entered into a contract of employment which contained the following provision:

“ (c) That he [the employee] will not for a period of five years after the end or termination of his employment, irrespective of the time, manner or cause of the said termination, directly or indirectly, either as principal, agent, employee, employer, stockholder, co-partner, or in any other individual or representative capacity whatever, solicit, serve, or cater to or engage, assist, be interested in or connected with any other person, firm or corporation soliciting, serving or catering to any of the customers served by him or by any other employee of the company or any of its branches during his employment with the Company.”

Martin continued in the employ of Fortna until August 30, 1955. During the last 30 days Martin made plans to engage in business for himself, and immediately after the termination of the employment he established his own business and entered into competition with Fortna.

Fortna then sought an injunction to prevent Martin from competing with him. Fortna alleged in his complaint that Martin had solicited customers, and that while in his (Fortna’s) employ Martin became familiar with certain trade secrets and confidential information of the business, particularly the names of customers, the materials used and services performed in termite control work and other information pertaining to the conduct of Fortna’s business, and that after Martin terminated the employment he had used the information to solicit business for himself.

The testimony disclosed that Martin had been in the termite control business for about 18 years and that at one time he had his own business in Los Angeles. Prior to the time Martin was employed by Fortna he had no contacts in the Sacramento Valley. Fortna described Martin as his manager. Martin made