The cross-defendant demurs to the 1^st C/A based on the   allegations that Labor Code 432.5 was violated. The cause of action includes allegations that B&P 16600 is the predicate violation or stated another way, Labor Code 432.5 violation is based on a violation of B&P 16600. There is no claim for the direct violation of B&P 16600 as stated. See para 19.

Further B&P16600 provides that any contract which restrains a person from engaging in a profession or business of any kind is to that extent “void”.  Sec. 16600 does not forbid the contracts or makes them illegal in the sense that the action is barred by Labor Code 432.5. The statute makes such a contract void as against public policy.

Such a contract is not prohibited within the narrow meaning of Labor Code 432.5. Therefore, no claim is stated. Leave to amend is granted.

As to the 2^nd cause of action, Cross defendant argues that no claim for declaratory relief can be stated, because there is no attempt to enforce this portion of the agreement.  They argue that there is no controversy stated.  It is true that Courts have no power to render an advisory opinion or give declaratory relief where there is no actual justiciable controversy.  Boorstein v. CBS Interactive, Inc. (2013) 222 CA 4^th 456, 465.

Cross complainants argue that an actual controversy exists but they fail to describe the basis of the controversy. Relying on the plaintiff’s allegations supporting the TRO and Preliminary injunction, defendants argue that the attempted enforcement of the misappropriation claims supports this cause of action. Cross defendants repeatedly state that they do not seek to enforce those provisions. There are no facts alleged that support this claim.

Until the cross-complaint can state an actual controversy over these provisions, no claim can be stated. Courts have no power to render an advisory opinion or give declaratory relief where there is no actual justiciable controversy. Boorstein v. CBS Interactive, Inc. (2013) 222 CA 4^th 456, 465. No actual dispute or claim is being stated. Leave to amend is granted.

The B&P 17200 claim prohibits unfair competition, and prohibits “wrongful” or unlawful business conduct in whatever context such activity might occur. The unlawful practices prohibited by Sec. 17200 are any practices forbidden by law. Sec. 17200 borrows violations.  Nowhere in the 3^rd cause of action does it describe the basis of the wrongful conduct. The claim incorporates the prior paragraphs only. Because the 1^st cause of action does not appear to state a claim under B&P 16600, no claim or unlawful practice has been incorporated.

No claim is stated. Leave to amend is granted.

Finally, the 4^th C/A for PAGA permits attorney fees based on violations of the Labor Code. This cross complaint seeks an award of civil penalties for violation of the Labor Code. Responding party argues that Barron has alleged a PAGA claim based on Xdeft’s conduct which resulted in a violation of Labor Code 432.5. However, as stated, the 1^st cause of action includes allegations that B&P 16600 is the predicate violation only. In the opposition papers, the Cross-complaints argue that the cause of action uses both statutes as a basis for the claim. The cross complaint at paragraph 19 refutes this and reads as though the cause of action is for a Labor Code Violation and that B&P 16600 serves as the basis for that violation. No claim is stated. Leave to amend is granted.

Motion to Strike:

The Cross defendants filed a Motion to Strike the punitive damages claims. No opposition was filed. The motion to strike is granted.