paragraph seven and seven and it does permit him to engage in the practice even was if certain conditions are met right well it restricts him flatly from working in any facility that c p is already working in so that would be one hundred sixty facilities according to the district court so that alone is a restraint of substantial character under the test that was articulated by this court in golden while quotes meaningfully restrains a person's ability to practice their profession or trait they didn't decide this case they had all the evidence that you have before us now except for what happened with the district court afterwards before it and they did not decide the issue they sent it back for a factual determination this case the district court struck the evidence that your client tried to put in with respect to the alleged expansion plans agreement under an abuse of discretion standard what exactly do you think the district court did that abused its discretion up on remand well i think the main thing that the district court did is it committed an error  was unclear exactly what standard the district court was applying for restraint of substantial character but and in golden one itself the court said this prohibition extends to any restraint of substantial character no matter its form or scope but counsel the district court here referred to us as pasco industries versus a case which was decided afterwards and it reviewed all of the cases including gold one and allowed a required the repayment of costs of the employer had incurred and found that didn't violate sixteen thousand six hundred of the business and fashions code under the you're saying it's entirely based on law is that correct correct and there's two aspects to it your honor just so the second aspect doesn't get lost the first aspect is yes that is our position there's no exceptions to sixteen six hundred there hasn't been for one hundred years of  broken state law i would disagree with what is it about this agreement that makes it vile of sixteen six one it says that he can't take jobs that exist now it says that in the future any agreement that says you can't work for the him for this single employer violate that provision or just the scope of this one that's a problem i would say both i mean i would i would say that any any  any agreement would violate it but paragraph seven doesn't say you know dr golden you can't just work for c e p t for a period of one year and oakland it says he can't work at this broad range of facilities and he can't work at various facilities  well that's one problem and this is the second aspect to our argument about the error of law that i didn't quite get to address with judge smith the the scope of this is broader than restrictive covenants that get allowed interest actions unlike california that actually permit restrictive covenants no geographical scope no temporal scope it exceeds any rational business purpose to protect trade secrets to and and it would cause him to get fired from a number of facilities where he would never even be in contact with in the future and that's why that's a secondary type of abuse of discussion because no matter how you define restrain of substantial character and i would submit once you start walking away from edwards and once you start walking away from the plain language of the statute there's very little guideposts but if you look at the jurisdictions that do allow these types of things this goes beyond what would be tolerated in those jurisdictions that see if people are a very thought about this but in the context of these types of provisions even if you're an employer and you win a trial you do not get the right to permanently bar someone blacklist someone discriminate against someone or otherwise say that they can't work for you just because they exercise their first amendment right to seek redress from the courts but those are other provisions of law that prevent you from doing that well that is the policy thing and i i think the judge was in the district court proceedings was concerned about this policy of settlement and there's nothing to suggest that cases would not settle of these types of provisions are not allowed and and we've cited practitioner articles in our papers and what they say is don't include these provisions in your agreements and the cases will settle there's not been no abatement of settlements since golden one they're just going to settle on different terms that comply with california percent of the market i mean here you have a much bigger participant in the market that the dr goldman has been prohibited from working for or any body they contract with  why why do you need to condemn all agreements i think it's i mean we don't need to condemn all the agreements to win as i've pointed out but i do think you know this is what's consistent with the way california has interpreted sixteen six hundred it is said there is no partial restraints no narrow restraints no quote unquote reasonable restraints this is edwards this is chamberlain and this is the plain language of the statute itself but those cases deal with a very different factual situation than what you have here it's very clear as you point out that when you have a covenant not to compete or when you have a bar that  that sense of dr who signed these kinds of settlements occur all the time where people separate from businesses and there are all kinds of restrictions and most of them they don't want people to come back and work for them and that's never been i don't think you can show me a case where b n p sections sixteen thousand six hundred as been applied to bar that kind of a settlement here is i select and if that's what you're dealing with you've got a doctor who is not board certified who wants to be able to go on other areas and i understand that but he's been able to practice he continues to be able to practice and it's all based upon speculation of what c e p t may do the of discretion it bass and you don't have any any evidence if you will that says that the the concern that dr goldman has is anywhere on the record that we can rely  upon going forward well the plain language of the contract itself bars him from working for a number of places in the future and that barring seven and seven beast is if you're there you've got  operate within the emergency room as defined regulated by california law goldman has worked at the urgent care facility beyond his probationary period in other words there are some conditions yes to comply with but he can stay there and they're just saying hey you know we don't we don't we get along with dr gold we don't want to work it for us but if you complies with these conditions seven and seven future facilities here work there well then my missing there's a couple things first of all you know this applies to facilities where he doesn't know anybody i get that and what it says right here it says the parties agree that if c b p contracts to provide services to or acquirers rights in a facility which golden is employed or rendering services as a hospitalist which he's doing and that's part of the record c p has the right to and will terminate dr golden from any work as a hospitalist without any liability whatsoever there is no exception there's no that's a flat categor restraints but i don't think that they modify i think it says that you know under the plain language of section seven that they can terminate him so we will just go over time so we'll give you a bit more but i want to be sure i understand  you're saying that unless we construe be infused section sixteen thousand six hundred mean that any any limitation of any kind including what the case that the court of and he wanted to get specialized training and this was not part of his job or anything and they said ok you can get this hundred sixty hours of specialized training but as you continue to work here you're going to have to pay us back for it and if you leave early you're going to have to repay us that's more like a student loan it didn't say that there's this worker was not free to go down the street and work anywhere he wanted that's what paragraph seven says it says there's at least one hundred sixty facilities now and there could be more in the future and as these facilities change and as dr goldman's facility where he works changes he's going to be increasingly restricted and he's never going to have any certainty in where his career goes and this is not an with the cases that it isn't the standard from the cases a restraint of substantial character and substantial part of that the test and if that's true that means some things would not be substantial well that that test came from chamberlain and what the court said in chamberlain was it's but this task is and where the test is you can't restrain anybody from from working in their per profession but also in that case they were dealing with the liquidated damages provision not the classic kind of restraint that says you can't work here and what the court said well we're going to have to analyze whether that liquidated damages amounts to a restraint of substantial character or to the functional equivalent of saying you know augustine you can't work here if a three person law firm in san francisco winds up with someone being discharged and having an agreement that says that they can't work at that law firm that's  substantial restraint so a restraint of substantial character there were thousands of law firms in the state and in san francisco itself i was that substantial but this is getting back to the it's a narrow restraint and this is the standard that the supreme court in edwardes rejected it was the standard that the ninth circuit had adopted in a case called campbell and the california supreme court said no that's not the way it works here sixteen six hundred has had amazing economic benefits it please the court my name is sarah robertson and i represent the a pelleas including california emergency physicians medical group what we just heard was appellants counsel attempting to re argue the golden one decision this provision the challenge provisions section seven of the settlement agreement if it could have been ruled upon without any facts whatsoever golden one would have done that but that's not what golden one said golden said that the matter was remain ended to the district court for fact finding as to whether this particular provision constitutes a restraint of a substantial character it does not and there are some facts that are very very important that were developed in the record below that bear a quick summary sation now the question was in the context of dr goldens particular medical practice and the work that c e p does does that the challenge provision of the settlement agreement impose a restraint of a substantial character so what's in the record about dr goldens own medical practice is that he is is performing hospitalist services at a sutter location in lakeport california by clear lake the argument that's advanced by a pallet here is that if c e p has any contract anywhere in the state where they have a staff a facility that has the name sutter on the side of the building that somehow the settlement agreement between c e p t and dr golden would allow c e p t to reach up to lakeport innes in a completely different facility and somehow terminate him from working as a hospitalist in that facility must give you something i mean presumably it's not that hard to choose not to hire dr goldman if you applies to  he's working isn't that what you're really after in this agreement why you're fighting so hard for that act that is what the idea of section seven was and if you look at the way the settlement was put on the record orally in front of a magistrate were you as well as section seven itself it's talking about c e p coming into a facility picking up a contract to provide services and then it was in a situation where it might inherit dr golden back as its own either employer partner because he's working in the operational unit where c e p is picking up the contract it's clear from the plain meaning of section seven that that's what was contemplated here not that c e p t could somehow terminate dr golden from a contract that it didn't have anything to do with only that c e p would come in if it picked up the a contract where dr golden was already present performing services and in some cases it would have the right to let just about correct your honor it's the way these situations work and there's facts in the record about it because of california's prohibit of the corporate practice of medicine the medical groups that staff these hospitals they don't actually own the entity that is providing the services they come in on a contract with a hospital or a hospital system and they have they in general exclusively in this context employ all the health care providers that are performing the services under the contract but yes you're correct so the complete prohibition just sort of following up on that how much weight should we give to this argument about speculation the speculation of whether  dr golden would be fire we're talking about here is california public policy and isn't that really based on what the language of the agreement is it is i mean should we really be engaged in an o we'll see actually fired dr golden in this circumstance isn't it really bill language of the agreement that we should look at it is the language of the agreement that we should look at and give you the ability to fire him in many circumstances and certainly not to hire him so that with the agreements for i would agree with you except for that you say in many circumstances because of the factual record that's been developed after  golden has testified and provided multiple that he does not practice in emergency medicine he's not board certified didn't do a residency isn't applying for those jobs and then affirmatively stated at his deposition you know does your c v accurately encompass the scope of your of your practice he said i don't practice met emergency medicine anymore so if we leave that to the side the hundred sixty facilities this goes to you to the many aspect of what you just said there the hundred sixty facilities first of all is all of the facilities that c p s a contract with but the the testimony in the record is that about have how would how would the contract apply so there is there is testimony in the record in about pages roughly two hundred ten to two fifteen one of the declarations indicates how that works when one c p comes in they come in if they take over an existing contract then they have the option to either hire for them so sore or bring on as partners the physicians are already providing services there or sometimes that medical group will stop providing services and c e p t supplies its own its own medical providers to staff the contract but that's what that's exactly the situation that could be presented  dr golden were already working at a facility where c e p t came in to take over the contract by which he would be working let's assume for a moment that dr golden could work in these facilities isn't barring him from working in the facilities the c e p t or has some relationship with a substantial infringement isn't a restraint of substantial character that's a lot of the facilities in california isn't so no because dr goldens particular medical practice only allows overlaps with anything that c e p t does into situations hospitalised or urgent care and the testimony in the record is that there are eight sites in the entire state of california where c e p a s contract includes the provision of hospital a services and nine urgent care centers in the northern but sections f a s a correct well in fact dr golden couldn't work there by virtue of the fact that the evidence in the record shows that in all eight of those sites a board certification in some specialty is required so he couldn't work in those sites for a different reason has nothing to do with section seven but it sounds like you're saying you don't need this agreement and it won't be enforced if that's the case why you're fighting about it under that it must be important to you it's to keep him from working with c e p it's so this is as you know the settlement was put on the record and agreed to in two thousand and eleven we were talking about gazing into the crystal ball back then six plus years ago but that was a material term to the agreement and and it doesn't impose a restraint of a substantial prior paragraph seven was invalid it would invalidate the entire settlement agreement and that's why it's not a material term he said you just know we said that it was a material term to the settlement we've al now saying that's not i'm not saying that all that why is it material if it doesn't have any effect on practices that was judge of its question so the record that has been developed after shows that there is an overlap between dr goldens medical practice and that of c e p such that that the agreement in operation is not a restraint of a substantial character justice smith i would agree with that except that there is information in the record about c e p's future plans and what that information is that it is does not plan to grow significantly in northern california and also that nearly every practitioner working for c e p on any contract of any kind is now required to be board certified such that now that we are in two thousand and seventeen evaluating the situation there simply is no restraint the what the c p physicians testified in their written testimony was that they contract with these hospital systems and it would be the hospital system who has the board certification requirement and then nearly always will impose that on c e p and say our entire hospital requires this board certification so your operating unit of the hospital that you're going to staff it with with physicians must abide by that that would be an echo shabelle term in other words usually not because if the entire system i mean truly if the entire system requires board certification c p won't be in a position to s a variance from that in the testimony that's in the record is normally it's the it's actually the hospital that seeks a variance from it because they have some prop provider already working who they'd like to keep not withstanding board certification i'm not sure you said this but let me ask you are you saying that perhaps this agreement might have violated sixteen six hundred or be more problematic at least when it was entered but that the way the facts of developed since it is not as problematic is that an organ i well i not quite i wouldn't have ever have said that the that the agreement  probably i think that if we were in a situation where dr golden practiced emergency medicine and if the world had evolved in such a way that c e p had all the emergency medicine jobs in northern california that would be a very different case that would be a restraint but that's not what we have here what we have is a divergence between doctor goldens practice and that of c e p such that this is not a restraint on him and from from your perspective is  correct in this case the district judges work is to be reviewed by us for abuse of discretion yes that's correct judge white for making to make primarily a factual determination he did that we review that for abuse of discretion you do and the factual findings under the second prong of abuse of discretion are reviewed under the clearly erroneous standard and clearly the facts that were found in the court below were not clearly erroneous the facts are reviewed for abuse of discretion but is the question of whether it's a restraint of substantial character a question of law or a factual question reviewed for abuse of discretion in this context we submit that is predominantly a factual inquiry because the facts are so clear here that this is not a restraint that that is the predominant way that this issue gets decided what we get at the language in goal and why and where we question the