Dissent by Judge Milan D. Smith, Jr.
BATES, Senior District Judge:
We are now called on to answer the question that we left open when this case was last before us: whether a provision of a settlement agreement between Dr. Donald Golden and his former employer, the California Emergency Physicians Medical Group (CEP), places a restraint of a substantial character on Dr. Goldens medical practice. See Golden v. Cal. Emergency Physicians Med. Grp. , 782 F.3d 1083, 1093 (9th Cir. 2015) ( Golden I ). We conclude that it does, and that it therefore runs afoul of California law. See Cal. Bus. & Prof. Code § 16600.
I
Dr. Golden graduated from medical school in 1995. He later completed a fellowship in geriatrics and a residency in internal medicine, and in 2000 he began working for CEP, a partnership of nearly 2,000 physicians who staff emergency rooms and other medical facilities in California and ten other states. While at CEP, Dr. Golden worked primarily as an emergency room physician, although he also worked part-time in several other facilities, including two family practice clinics and two occupational medicine clinics.
In 2007, CEP terminated Dr. Goldens employment, ostensibly because he lacked board certification. Dr. Golden sued CEP
in Alameda County Superior Court, claiming that he had in fact been fired because of his race. CEP removed Dr. Goldens suit to federal court and, following a settlement conference before a magistrate judge, the parties orally agreed to settle the case.
When the settlement agreement was later reduced to writing, however, Dr. Golden refused to sign it. He claimed that one of its provisions, Paragraph 7, was contrary to Californias statutory prohibition on contracts by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind. Cal. Bus. & Prof. Code § 16600. Paragraph 7 states:
The parties agree that, except as specified in Paragraphs 7a and b, below, Golden shall not be entitled to work or be reinstated at any CEP-contracted facility or at any facility owned or managed by CEP. The parties further agree that if CEP contracts to provide services to, or acquires rights in, a facility that is an emergency room as defined and regulated by California law at which Golden is employed or rendering services, CEP has the right to and will terminate Golden from any work in the emergency room without any liability whatsoever. Similarly, the parties agree that if CEP contracts to provide services to, or acquires rights in, a facility at which Golden is employed or rendering services as a hospitalist, CEP has the right to and will terminate Golden from any work as a hospitalist without any liability whatsoever.
Paragraph 7a states that if CEP contracts with or acquires rights in an urgent care facility that is not an emergency room ... and Golden is already working at that urgent care facility, Golden may be entitled to continue working at that urgent care facility so long as he meets certain criteria. Paragraph 7b goes on to state the terms of Dr. Goldens continued employment if the conditions in Paragraph 7a are met.
Following Dr. Goldens refusal to sign the agreement, his attorney withdrew, intervened in the proceedings, and moved to enforce the agreement so that he could collect his fee. The district court granted the motion and ordered Dr. Golden to sign, reasoning that because Paragraph 7 would not prevent Dr. Golden from competing with CEP, it was not a restraint on his medical practice, and section 16600 did not apply. Dr. Golden continued to refuse to sign the agreement, however, and he instead took his first appeal to this Court. See Golden I , 782 F.3d at 1085.
We reversed the district courts order, holding that the court had misconstrued section 16600. Id. at 1092-93. The statute, we explained, applies not only to noncompetition agreements but also to any contractual provision that places a restraint of a substantial character on a persons ability to practice a profession, trade, or business. Id. at 1092 (quoting Chamberlain v. Augustine , 172 Cal. 285, 156 P. 479, 480 (1916) ). Thus, the fact that Paragraph 7 did not prohibit Dr. Golden from competing with CEP was not dispositive; rather, the question was whether Paragraph 7 substantially restrained Dr. Goldens practice of medicine, particularly in light of CEPs large presence in California. Id. at 1089, 1092-93. Because the factual record on that question was not fully developed, however, we remanded to the district court to determine in the first instance whether Paragraph 7 constitutes a restraint of a substantial character to Dr. Goldens medical practice. Id. at 1093.
On remand, the district court again ordered Dr. Golden to sign the settlement agreement, concluding this time that Paragraph 7 was not a restraint of a substantial character. The court also denied Dr. Goldens request for a jury trial and ruled that an evidentiary hearing was unnecessary. Dr. Golden timely filed this appeal, challenging both the district courts order directing him to sign the agreement and its decision not to hold an evidentiary hearing.
II
We review a district courts order enforcing a settlement agreement for abuse of discretion. See Golden I , 782 F.3d at 1089. Like any other contract, however, we review the validity of a settlement agreement de novo , and a district court abuses its discretion if it incorrectly determines that a settlement agreement is enforceable. See id. ; Tompkins v. 23andMe, Inc. , 840 F.3d 1016, 1021 (9th Cir. 2016). The district courts interpretation of state contract law is likewise reviewed de novo . L.A. Lakers, Inc. v. Fed. Ins. Co. , 869 F.3d 795, 800 (9th Cir. 2017).
CEP contends that the district courts determination that Paragraph 7 did not impose a restraint of a substantial character on Dr. Goldens medical practice is a factual finding that we review for clear error. We disagree. We think the question is better framed as a mixed question[ ] of law and fact-one in which the issue is whether the facts satisfy the statutory standard. In re Cherrett , 873 F.3d 1060, 1066 (9th Cir. 2017) (citation omitted). Thus, while we defer to the district courts specific factual findings as to the nature and extent of the parties respective professional activities, we review de novo both the district courts construction of Paragraph 7 and its conclusion that, in light of the facts found, Paragraph 7 withstands scrutiny under section 16600.
III
Section 16600 of the California Business and Professions Code provides, with certain exceptions not relevant here, that 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 Golden I , we concluded that section 16600 extends beyond noncompetition agreements to any restraint of a substantial character, citing both the statutes sweeping language and the California decisions interpreting that language. See 782 F.3d at 1090-92. Similar considerations guide our analysis of what qualifies as a substantial restraint under this standard. See Intl Bus. Machs. Corp. v. Bajorek , 191 F.3d 1033, 1041 (9th Cir. 1999) (We are not free to read California law without deferring to our own precedent on how to construe it.).
A
We begin, as always, with the statutes text. See Natl Assn of Mfrs. v. Dept of Def ., --- U.S. ----, 138 S.Ct. 617, 631, 199 L.Ed.2d 501 (2018). As we noted in Golden I , 782 F.3d at 1090, section 16600 speaks in categorical terms: it refers to every contract by which anyone is restrained from practicing a profession, trade, or business of any kind, Cal. Bus. & Prof. Code § 16600 (emphases added). This language also stands in stark contrast to the statutes handful of narrow exceptions, which pertain mostly to the sale or dissolution of businesses. See, e.g. , Cal. Bus. & Prof. Code § 16601 ("Any person who sells the goodwill of a business ...
may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business so sold ... has been carried on, so long as the buyer ... carries on a like business therein.). As we said in Golden I , these exceptions demonstrate that the California legislature knew how to describe specific restraints in considerable detail" and that, had it intended to draw section 16600 more narrowly, it easily could have done so. 782 F.3d at 1090.
We also noted in Golden I how broadly Californias courts have read section 16600. See id. at 1091-92. In Chamberlain v. Augustine , for example, the California Supreme Court invalidated a provision of a contract for the sale of stock in the Los Angeles Foundry Company, which would have required the seller to pay $5,000 if he worked for or acquired an interest in any other foundry in California, Oregon, or Washington within three years of the date of the sale. 156 P. at 479-80. Although the provision applied in only three states and allowed the seller to act as laborer or molder in various foundries, the court nonetheless concluded that it imposed a restraint of a substantial character on his metalworking trade, explaining that [t]he statute makes no exception in favor of contracts only in partial restraint of trade. Id. at 480.
Almost fifty years later, the California Supreme Court applied section 16600 again, this time invalidating a provision of a pension plan that would have required an employee to forfeit his retirement benefits if he started working for one of his employers competitors after he retired. See Muggill v. Reuben H. Donnelley Corp. , 62 Cal.2d 239, 42 Cal.Rptr. 107, 398 P.2d 147, 149 (1965). Citing Chamberlain , the court explained that section 16600 nullifies any provision that prohibit[s] an employee from working for a competitor after completion of his employment or impos[es] a penalty if he does so. Id. Since the forfeiture provision clearly imposed such a penalty, it was void. Id.
More recently, the California Supreme Court struck down a contractual provision that barred an employee from (1) practicing accounting for eighteen months for any client on whose account the employee had worked in the eighteen months prior to the termination of his employment and (2) soliciting any of his former employers clients for twelve months following his termination. Edwards v. Arthur Andersen LLP , 44 Cal.4th 937, 81 Cal.Rptr.3d 282, 189 P.3d 285, 290-292 (2008) (citations omitted). As the California court explained:
[O]ur courts have consistently affirmed that section 16600 evinces a settled legislative policy in favor of open competition and employee mobility. The law protects Californians and ensures that every citizen shall retain the right to pursue any lawful employment and enterprise of their choice. It protects the important legal right of persons to engage in businesses and occupations of their choosing.
Id., 81 Cal.Rptr.3d 282, 189 P.3d at 291 (citations omitted). Thus, the court noted, California has rejected the common law rule of reasonableness, which generally permits professional restraints that are reasonable in relation to the legitimate business interests at stake. See id. , 81 Cal.Rptr.3d 282, 189 P.3d at 290 ; Restatement (Second) of Contracts § 188 (Am. Law Inst. 1981). The court also specifically rejected an exception for narrow restraints that had been recognized in two prior Ninth Circuit cases. See Edwards , 81 Cal.Rptr.3d 282, 189 P.3d at 292-93 (disapproving Bajorek , 191 F.3d at 1041, which upheld an agreement whereby an employee would forfeit his stock options if he began working for a competitor within six months of the termination of his employment, and Gen. Commercial Packaging v. TPS Package Engg, Inc. , 126 F.3d 1131, 1134 (9th Cir. 1997), which upheld a businesss agreement not to solicit a small subset of another businesss clients). Section 16600 is unambiguous, the court explained, and if the Legislature intended the statute to apply only to restraints that were unreasonable or overbroad, it could have included language to that effect. Id., 81 Cal.Rptr.3d 282, 189 P.3d at 293. But absent any such language, Californias strong public policy against professional restraints should not be diluted by judicial fiat. Id. (citation omitted).
Two decisions of Californias intermediate appellate courts have probed the outer limits of this broad reading of section 16600. In City of Oakland v. Hassey -a case decided before Edwards -the California Court of Appeal upheld a provision of a police officers employment contract that would have required the officer to reimburse his employer $8,000 in training costs if he left his job before five years. 163 Cal.App.4th 1477, 78 Cal.Rptr.3d 621, 627-28 (2008). Because [n]othing prevented [the officer] from working for another police department, or anywhere else, for that matter, the court held that the agreement was not a restraint on his profession and that section 16600 did not apply. Id. at 634.
In Golden I , we noted that the provision at issue in Hassey might not have survived under Edwards s later reading of section 16600, since a requirement to reimburse training expenses could impose a meaningful obstacle to employee mobility, and, hence, limit the opportunities one may have to engage in ones chosen line of work. 782 F.3d at 1092 (citation omitted). But the California Court of Appeal later rejected our suggestion. See USS-POSCO Indus. v. Case , 244 Cal.App.4th 197, 197 Cal.Rptr.3d 791, 795, 802 (2016) (upholding a provision of an employment contract that would require an employee to reimburse his employer for a three-year, employer-sponsored educational program should he leave his job during his first 30 months). As the Court of Appeal explained: Repayment of the fronted costs of a voluntarily undertaken educational program, the benefits of which transcend any specific employment and are readily transportable, is not a restraint on employment. Id. at 802.
Because the California Supreme Court denied review in both Hassey and USS-POSCO , we do not have a definitive answer as to whether those cases correctly state California law. Even if they do, however, they stand at most for the proposition that a promise to reimburse an employer for a voluntarily undertaken and valuable educational opportunity is not a cognizable restraint under section 16600 because it does not curb competition. Id. Both cases involve only a commitment to repay the cost of a training program if the employee leaves the employer; they do not address future employment. Far from hindering employee mobility, moreover, a training program is likely to enhance an employees competitiveness on the job market, even if the employee is ultimately required to pay for it. When limited to training reimbursement agreements, therefore, Hassey and USS-POSCO are consonant with the settled legislative policy in favor of open competition that underlies section 16600. Edwards , 81 Cal.Rptr.3d 282, 189 P.3d at 291.
With these authorities in mind, we proceed to determine what constitutes a restraint of a substantial character under section 16600. Golden I , 782 F.3d at 1093. Taken together, the California cases suggest that the standard is undemanding. We know that a restraint can be substantial even if it is reasonable, see Edwards , 81 Cal.Rptr.3d 282, 189 P.3d at 290 (rejecting the common law rule of reasonableness), and even if it is narrow, see id., 81 Cal.Rptr.3d 282, 189 P.3d at 292-93 (rejecting the Ninth Circuits narrow-restraint exception). The California Supreme Court has applied section 16600 to invalidate a monetary penalty for engaging in competitive conduct, see Chamberlain , 156 P. at 480, an agreement to forfeit retirement benefits, see Muggill , 42 Cal.Rptr. 107, 398 P.2d at 149, and a short-term promise not to compete or to solicit clients, see Edwards , 81 Cal.Rptr.3d 282, 189 P.3d at 290-92, and it has even suggested that a stock option penalty or a promise not to solicit a small group of clients would fail under the statute, see id., 81 Cal.Rptr.3d 282, 189 P.3d at 292-93. And although two decisions of Californias intermediate appellate courts have held that training reimbursement agreements are permissible under section 16600, see USS-POSCO , 197 Cal.Rptr.3d at 802 ; Hassey , 78 Cal.Rptr.3d at 634, there are good reasons to treat that situation as unique.
In light of these authorities, we conclude that a contractual provision imposes a restraint of a substantial character if it significantly or materially impedes a persons lawful profession, trade, or business. See Substantial , Blacks Law Dictionary (10th ed. 2014) (defining the word substantial to mean, among other things, [o]f, relating to, or involving substance; material). To meet this standard, a provision need not completely prohibit the business or professional activity at issue, nor does it need to be sufficient to dissuade a reasonable person from engaging in that activity. See Edwards , 81 Cal.Rptr.3d 282, 189 P.3d at 292. But its restraining effect must be significant enough that its enforcement would implicate the policies of open competition and employee mobility that animate section 16600. See id., 81 Cal.Rptr.3d 282, 189 P.3d at 291.
We stress, however, that it will be the rare contractual restraint whose effect is so insubstantial that it escapes scrutiny under section 16600. Californias legislature has clearly expressed its disapproval of contracts that restrain lawful business and professional activities, and we are bound to heed that policy judgment wherever its logic applies. With these considerations in mind, we turn now to the contractual provision at issue in this case.
B
Paragraph 7 impedes Dr. Goldens ability to practice medicine in three ways. First, it states that he shall not be entitled to work or be reinstated at any facility owned or managed by CEP. Second, it bars him from working at any CEP-contracted facility. Finally, it states that if CEP contracts to provide services to, or acquires rights in a facility where Dr. Golden is currently working as an emergency room physician or a hospitalist, CEP has the right to and will terminate him from that employment without any liability whatsoever. The second and third of these three provisions substantially restrain Dr. Goldens practice of medicine and are therefore barred by section 16600.
The first provision pertains only to Dr. Goldens future employment at CEP. To the extent that it prevents him from being reinstated at any of his prior CEP worksites-which consist of a single emergency room and a handful of nonemergency clinics-its impediment to medical practice is minimal. And to the extent that it provides that Dr. Golden shall not be entitled to work at any other facility owned or managed by CEP, it simply restates the obvious proposition that an employee does not have a general right to work for an employer without the employers consent. Insofar as Paragraph 7 bars Dr. Golden from future employment at facilities owned or managed by CEP, therefore, it does not impose a substantial restraint on his medical practice. See Golden I , 782 F.3d at 1093 (Kozinski, J., dissenting) (noting that [t]he provision barring Dr. Golden from current employment by CEP cannot possibly violate section 16600, because if it did, few employment disputes could ever be settled).
The remainder of Paragraph 7, however, affects not only Dr. Goldens employment at CEP itself, but also his current and future employment at third-party facilities. For example, Paragraph 7 bars Dr. Golden from working at any CEP-contracted facility. Under a fair reading of this provision, Dr. Golden would be ineligible for employment in any department of a hospital where CEP has a contract to provide, say, anesthesiology services-even if he would never have any contact with CEPs staff. Therefore, if Dr. Golden were compelled to sign the settlement agreement, CEP would be entitled to terminate him from his current employment at four facilities where CEP also has contracts. Paragraph 7 also states that CEP has the right to and will terminate Dr. Golden from a position as an emergency room physician or a hospitalist at any facility where CEP later contracts or acquires rights. This means that if Dr. Golden were employed as a hospitalist or an emergency room physician, and if CEP later acquired a contract to provide, say, psychiatry services at his hospital, CEP would have the right to and [would] unilaterally terminate his employment.
This interference with Dr. Goldens ability to seek or maintain employment with third parties easily rises to the level of a substantial restraint, especially given the size of CEPs business in California. CEP currently staffs 160 facilities in the state-including hospitals, trauma centers, urgent care clinics, and skilled nursing facilities-and it handles between twenty-five and thirty percent of the states emergency room admissions. Moreover, CEP appears to be growing: according to its own records, the groups market share has increased steadily over the past decade or so, moving from around twenty percent of all emergency room admissions in California in 2006 to just over twenty-seven percent in 2014. These facts persuade us that Paragraph 7s effect on Dr. Goldens medical practice is substantial, and that section 16600 therefore applies.
CEPs arguments against the application of section 16600 are unpersuasive. CEPs main point is that we should review for clear error the district courts determination that Paragraph 7 is not a restraint of a substantial character, and that Dr. Golden has identified no such error here. See Wash. Mut., Inc. v. United States , 856 F.3d 711, 721 (9th Cir. 2017) (explaining that reversal under clear error review requires a definite and firm conviction that a mistake has been made (citation omitted) ). We do not think-and Dr. Golden does not argue-that any specific factual finding made by the district court was clearly erroneous. But as we have already said, the question whether a restraint is one of a substantial character is a mixed question of law and fact; thus, although we defer to the district courts factual findings, we review de novo its determination that Paragraph 7 is not a substantial restraint. See In re Cherrett , 873 F.3d at 1066. And as we have already explained, the district court erred in making that determination here.
Next, CEP suggests that Paragraph 7 does not impose a substantial restraint to the extent that it impedes Dr. Goldens ability to practice as an emergency room physician, because that position does not appear to be the focus of his current practice. At his deposition, for example, Dr. Golden testified that he no longer practices emergency medicine and that he had not applied for a position in that field since 2011. And Dr. Goldens CV lists seven specialties besides emergency medicine-starting with geriatrics, the specialty in which he completed his fellowship-which further suggests that Dr. Goldens medical practice extends beyond emergency medicine.
A persons profession under section 16600 is not so expansive [as] to include all work for which he is qualified.
Campbell v. Bd. of Trs. of Leland Stanford Junior Univ. , 817 F.2d 499, 503 (9th Cir. 1987). But Dr. Golden worked as an emergency room physician for three years before he was terminated by CEP, and he testified at his deposition that he still works as a hospitalist. Thus, work as an emergency room physician and a hospitalist is included within his profession for purposes of section 16600. And in any case, Paragraph 7 does not only restrain Dr. Golden from holding these positions: as we have already said, it would also prevent him from practicing any type of medicine at a facility where CEP has a contract. Even if emergency medicine were not properly characterized as Dr. Goldens current profession, then, Paragraph 7 would still restrain other aspects of his medical practice-including his work as a hospitalist.
CEP also argues that Paragraph 7 does not substantially restrain Dr. Golden from practicing emergency medicine because his lack of board certification would independently preclude him from working at most emergency rooms. But CEP does not argue that Dr. Goldens lack of board certification prohibits him from practicing as a hospitalist. Moreover, there is no dispute that if Dr. Golden were to become board certified in emergency medicine, the only restraint on his ability to practice that specialty would then be Paragraph 7.
Finally, we reject the dissents contention that our analysis is improperly based on speculation about events that may or may not occur should Paragraph 7 be allowed to take effect. See Dissent at 1029 (citing Golden I , 782 F.3d at 1094 (Kozinski, J., dissenting) ); see also id. at 1029-33 (arguing that Dr. Golden might not ultimately work at a facility where CEP later contracts to provide services, that CEP might not have the authority to fire Dr. Golden from such facilities, and that CEP might not continue to grow in California). Paragraph 7 is unequivocal: it states that Dr. Golden shall not be entitled to work at any facility where CEP has a contract, and that CEP has the right to and will terminate Dr. Goldens employment if it later contracts with a facility where he is working as a hospitalist or emergency room physician. Far from being highly speculative, Dissent at 1028, these future events-the ones on which we base our decision-are expressly contemplated by the language of the contract before us. And in any case, the dissents argument was rejected by the majority in Golden I . See 782 F.3d at 1088 (concluding that Dr. Goldens challenge to Paragraph 7 was ripe because his legal interest in this case, stated precisely, concerns the present enforcement of the settlement rather than the future interaction between the no-employment provision and his emergency-medicine practice). We are bound by that conclusion here.
In sum, the text of section 16600, the California courts interpretation of that text, and the statutes underlying legislative policy together persuade us that the statute applies to any professional restraint that substantially-i.e., significantly or materially-restrains a persons lawful profession, trade, or business. Under this standard, Paragraph 7 survives to the extent that it bars Dr. Golden from working at facilities that are owned or operated by CEP, but it fails to the extent that it prevents him from working for employers that have contracts with CEP and to the extent that it permits CEP to terminate him from existing employment in facilities that are not owned by CEP. Thus, because CEP does not argue that any exception to section 16600 applies, and because the parties do not dispute that Paragraph 7 is material to the settlement agreement, see Golden I , 782 F.3d at 1088 n.2, the entire agreement is void, and the district court abused its discretion in ordering Dr. Golden to sign it.
We therefore REVERSE the district courts order directing Dr. Golden to sign the settlement agreement and REMAND for further proceedings consistent with this opinion.
The following facts are summarized, for the most part, in the majority opinion in Golden I . See 782 F.3d at 1084-85. We include our own summary for convenience, not because we view the facts differently than did the Golden I majority.
Although Dr. Golden is not board certified in emergency medicine or any other specialty, his declaration states that he is eligible for board certification in internal medicine. But one CEP partners declaration states that Dr. Golden is likely not board eligible because he has been practicing medicine for well over 15 years without becoming certified.
Because we are able to conclude on this record that the settlement agreement was void under section 16600, we do not consider whether the district court abused its discretion in deciding not to hold an evidentiary hearing.
Indeed, even Dr. Goldens partnership agreement with CEP gave him no right to work at any CEP facility. Instead, it required him to apply for available work at a site, go through an interviewing and credentialing process, and ... be accepted to the medical staff of the service location.
The dissent contends that our approval of this restraint runs contrary to [our] own legal standard, because a provision that prevents Dr. Golden from practicing his profession with one of the largest providers of medical services in California is surely a restraint of a substantial character. Dissent at 1029 n. 2. But the dissent ignores the fact that this provision merely codifies a preexisting state of affairs between the parties. Dr. Golden has no right to work at CEP: even absent the settlement agreement, he could not work at CEP without CEPs consent. Conversely, should CEP and Dr. Golden later mutually agree to reinstate their employment relationship, a contrary provision of a prior contract between them would not preclude them from doing so. Thus, far from placing a restraint of a substantial character on Dr. Goldens medical practice, this part of Paragraph 7 imposes no restraint at all.
In such a case, perhaps, CEP might not have the authority to prevent the third-party hospital from hiring Dr. Golden. By accepting employment at a facility where CEP has a contract, however, Dr. Golden would be in breach of Paragraph 7, which states that he shall not be entitled to work at such facilities.
Dr. Golden stated in his declaration that if he were compelled to sign the agreement, CEP [could] and would fire me from all of my present jobs because CEP has a contract and gets paid by the same people who pay me. The district court ruled Dr. Goldens declaration inadmissible on this point due to lack of personal knowledge. But CEP conceded in a reply brief below that, [a]s [Dr. Golden] correctly notes in his Declaration, CEP also has or had contracts for services with facilities that are owned and/or operated and/or otherwise affiliated with the facilities where Dr. Golden is presently employed. In light of this concession, we think it proper to consider Dr. Goldens assertion.
The dissent claims that, in so doing, we cursorily overrule[ ] the district courts exclusion of this testimony. Dissent at 1032. Not so. Dr. Golden has not asked us to review the district courts evidentiary ruling, and we do not do so here. Instead, we rely only on a concession made by CEP and the plain language of Paragraph 7, which states that CEP has the right to and will terminate Dr. Golden from employment with any employer who contracts with CEP.
The record is unclear as to the exact meaning of the phrase acquires rights in Paragraph 7. Indeed, one CEP partner testified at his deposition that he had no idea what it means. But to the extent that it suggests that CEP could fire Dr. Golden from a facility where CEP acquires rights other than the contractual right to staff and operate the facility-an ownership interest, for example-it only broadens the scope of Paragraph 7s applicability.
Indeed, we think it possible that even a smaller business with a more limited network of contractual relationships could run afoul of section 16600 by barring a former employee from current or future employment with its contractual partners. We need say no more than this, however, because here the restraint imposed by Paragraph 7 is clearly substantial.
In his declaration, CEPs chief operating officer admits that CEP has rather ambitious plans for expansion, but he states that the group anticipates that its future expansion will take place primarily outside of California, because so many of the service locations in the state are part of the Kaiser system and because it is extremely unlikely that any medical group other than Kaiser would staff a Kaiser-owned service location. Nothing in the agreement itself guarantees that CEP will adhere to its stated plans, however, and CEPs growing share of Californias market for emergency room services suggests that its business in the state is growing as well.
Moreover, even if it were proper to require Dr. Golden to prove that CEP would likely enforce Paragraph 7 according to its plain terms, there is some evidence in the record to support that conclusion. For example, Dr. Golden stated in his declaration that he was terminated from a position as an emergency room physician in late 2010, shortly after CEP took over the contract for the emergency room where he was working. And although the dissent contends that this was because Dr. Golden was not board certified or board eligible, see Dissent at 1030 n.4, Dr. Golden stated in his declaration that there were [other] non-[board eligible or board certified] doctors employed at that emergency room who were not terminated when CEP took over.
The dissent cites this language from Golden I for the proposition that we cannot rely on future events in evaluating Paragraph 7. Dissent at 1031 n.6. But this is not what Golden I said. Rather, Golden I said that the legal interest that Dr. Golden sought to vindicate was the contracts present invalidity-not its invalidity at some future point in time-such that his case was ripe. See 782 F.3d at 1088 ([Dr. Golden] argues that, under the States business and professions code, the agreement is currently void.). Our holding is entirely consistent with this proposition.