McCOMB, J. I dissent. I regret that I find myself unable to agree with the conclusions of my learned brethren. It appears to me that in substance both of the foregoing opinions are identical, the only difference being in verbiage. The point stressed in an effort to differentiate the instant case from the rule announced in Gloria Ice Cream & M. Co. v. Cowan, 2 Cal.2d 460, 464 [41 P.2d 340], Wallich v. Koren, 80 Cal.App.2d 223, 226 [181 P.2d 682], and George v. Burdusis, 21 Cal.2d 153 [130 P.2d 399], is that in the instant case the consumer was dissatisfied with the merchandise being supplied by plaintiff, and this fact in some way is a palliative for the wrongful conduct of defendant; while in the cited cases the customers were satisfied with the merchandise furnished by the respective defendants’ competitors.
[443]In my opinion the gist of the cause of action in this and the cited cases is the wrongful act of defendant which is not cured and cannot be cured or obviated by the fact that the customer is pleased or displeased with the merchandise furnished him. I am also of the view that the opinions prepared by my illustrious associates fail to give full recognition to the present rule applicable upon the granting of a motion for a nonsuit. The evidence in the present case being viewed, as we must on a motion for a nonsuit, pursuant to the rules set forth in Frederickson v. Kepner, 82 Cal.App.2d 905, 907 [187 P. 2d 800], discloses that defendant Ben Black for more than one year prior to February 25, 1947, had been employed by plaintiff to solicit, sell and deliver perishable catered foods and box lunches daily to plaintiff’s retail customers, some of whom were employees of the Pacific Coast Borax Company which is located at Wilmington, California.
Plaintiff furnished said defendant with a truck and box lunches which he was to sell and deliver to plaintiff’s customers On the private premises of the borax company. Plaintiff paid for the entire upkeep and maintenance of the truck used by Mr. Black, who received a salary and commissions in excess of $100 per week during the time he was employed by plaintiff. The truck bore the sign, “DeLuxe Box Lunch,” and labels on the sandwiches were, “DeLuxe Box Lunch & Catering Co.”
During this period, plaintiff obtained permission for defendant Black to solicit, sell and deliver plaintiff’s foods and box lunches on the premises of the borax company at times that coincided with the recess and lunch periods of plaintiff’s customers. During said period defendant Black made the personal acquaintance of the customers, obtaining information as to their likes and fancies, and the varities, quantities and types of perishable catered foods and box lunches consumed. This information was of a highly confidential nature. Such information, as to the quantities of food, types and varieties thereof, and the preferences of the customers for the catered foods and box lunches, could be obtained only by actually soliciting and catering to them, and was a trade secret of great value to plaintiff, essential to the normal operation of its business.
On February 22, 1947, defendant Black was an employee of plaintiff and paid by plaintiff, and on such date he secured permission from the Pacific Coast Borax Company to enter [444]upon their private premises and to solicit and sell, and to deliver to its employees box lunches and catered foods prepared by defendants Lee Williamson and Albert Hollosy, doing business as the California Box Lunch and Catering Company, and to refuse permission to plaintiff to sell such foods on the premises.
Immediately thereafter, defendant Black sold and delivered to plaintiff’s customers, employees of the borax company, box lunches and other catered foods prepared by the California Box Lunch and Catering Company. Defendants will continue such practice unless restrained by order of the court.
This is the sole question presented for determination:
Do the foregoing facts constitute a prima facie case entitling plaintiff to an injunction restraining defendants from using the trade secrets obtained by defendant Black while in plaintiff's employ, and from soliciting the customers of plaintiff?
This question must be answered in the affirmative and is governed by these pertinent rules:
An employee who has acquired trade secrets or valuable information of a confidential nature relating to his employer’s business will be restrained from using such knowledge for the purpose of injuring his employer, and he will also be enjoined from soliciting his former employer’s customers relative to whom he has obtained confidential information while acting as agent. (Gloria Ice Cream & M. Co. v. Cowan, 2 Cal.2d 460, 464 [41 P.2d 340] ; Wallich v. Koran, 80 Cal.App.2d 223, 226 [181 P.2d 682].)
Discussing this rule Mr. Presiding Justice Moore in summarizing the decision in George v. Burdusis, 21 Cal.2d 153 [130 P.2d 399], accurately says in Wallich v. Koren, supra, “that in such cases the wrong to the former employer lies not only in the knowledge of the identity of the. customers but also in the former employee’s personal acquaintance with and knowledge of the customers and of their ‘places of residence, their peculiar likes and fancies and other characteristics, ’ all of which mightily aids a solicitor to secure and retain the business of those he visited while in the service of his former employer.” Mr. Justice Wilson likewise concurred in this statement.
Applying the foregoing rule to the facts in the instant case it is apparent that defendant Black used confidential information pertaining to the customers of plaintiff which [445]he had obtained while in plaintiff’s employ for the purpose of soliciting said customers after he severed his contract of employment with plaintiff and entered into the employ of his codefendants. Therefore his acts fall squarely within the rule stated above, and plaintiff’s evidence made a prima facie case in its favor entitling it to a denial of defendant’s motion for a nonsuit, and an opportunity to have the case tried upon its merits.
In my opinion the judgment should be reversed.
A petition for a rehearing was denied July 15, 1948, and appellant’s petition for a hearing by the Supreme Court was denied August 26,1948.