Breach of an NDA or Confidentiality Agreement in California

Last updated: November 2026

A breach of NDA claim in California is a breach of contract claim: the plaintiff must show a valid confidentiality agreement, its own performance, a disclosure or use the agreement prohibited, and resulting harm. The information need not qualify as a trade secret, because the contract defines what is protected, and the claim carries a four-year deadline. Kolmogorov Law, P.C. brings and defends NDA and confidentiality disputes for businesses in Orange County, Los Angeles, and across California.

Call (909) 235-6116 or contact us online to discuss a confidentiality agreement you believe has been violated, or a claim that your company violated one.

What an NDA protects, and how that differs from a trade secret

A nondisclosure agreement protects whatever the parties define as confidential. That can be far broader than the statutory definition of a trade secret, which requires information that derives independent economic value from not being generally known and is the subject of reasonable efforts to keep it secret. (Civ. Code, § 3426.1, subd. (d).) Pricing, roadmaps, and deal terms can all be covered by contract whether or not they would survive that test.

California's trade secret statute does not displace the contract claim. The Uniform Trade Secrets Act expressly leaves contractual remedies untouched, whether or not they are based on misappropriation of a trade secret. (Civ. Code, § 3426.7, subd. (b).) So a plaintiff with a signed NDA can sue on the contract alone, or combine it with a trade secret claim when the information qualifies. Our trade secret practice page covers the statutory claim.

The elements of a breach of NDA claim

The elements are the ordinary breach of contract elements. A contract existed. The plaintiff did what the contract required of it. The defendant disclosed or used the information in a way the contract forbade. The plaintiff was harmed.

The third element is where these cases are won. An NDA breach rarely announces itself. It shows up as a competitor's bid that matches your confidential pricing, or a customer who repeats something only three people knew. Proving the link usually means forensic review of devices and accounts, document metadata, and the testimony of people in the room.

The fourth element matters too. A disclosure that caused no loss supports an injunction and nominal damages but not a large verdict. Many NDAs address this with a liquidated damages clause, which California enforces only if it meets the statutory test. Our liquidated damages page explains that test.

How these disputes come up for business owners

A company explores a sale and gives a prospective buyer its financials, customer concentration, and margins under an NDA. The deal collapses. Six months later the prospective buyer opens a competing operation and approaches the company's two largest accounts with pricing that undercuts by a precise margin.

A software vendor signs a mutual NDA with an integration partner. The partner's engineer leaves for a competitor and the competitor's next release includes an interface design the vendor shared under the agreement.

Remedies for breach of an NDA

Injunctions are the first remedy most clients want, because money rarely restores secrecy. A court can order a party to stop using and disclosing the information, to return or destroy it, and to account for what it did with it. Where the information is also a trade secret, actual or threatened misappropriation may be enjoined by statute. (Civ. Code, § 3426.2, subd. (a).) Our page on temporary restraining orders and preliminary injunctions explains the process and the showing required.

Damages follow the contract measure: the loss caused by the breach, which in practice means lost profits, lost deal value, or the cost of remediation. When a trade secret claim is joined, the statute adds recovery for unjust enrichment, a reasonable royalty where neither loss nor enrichment is provable, and exemplary damages of up to twice the award for willful and malicious misappropriation. (Civ. Code, § 3426.3, subds. (a), (b), (c).)

Attorney fees depend on the paper. If the NDA has a fee clause, the prevailing party recovers fees under Civil Code section 1717. On a trade secret claim, fees may be awarded for willful and malicious misappropriation, or against a plaintiff who sued in bad faith. (Civ. Code, § 3426.4.)

Limits on what an NDA can do

An NDA cannot be used as a non-compete in disguise. Every contract that restrains anyone from engaging in a lawful profession, trade, or business is void to that extent, and the statute is read broadly in the employment context no matter how narrowly the clause is drawn. (Bus. & Prof. Code, § 16600, subds. (a), (b)(1).) A confidentiality clause that defines "confidential information" so broadly that a former employee cannot work in the industry is at risk. Our non-compete page addresses the employee side.

NDAs also do not cover information that is public, that the recipient already had, or that it developed independently, and most agreements say so. A defendant's first move is usually to show the information fell into one of those exceptions.

Deadlines

An action on a written contract must be brought within four years. (Code Civ. Proc., § 337, subd. (a).) A trade secret misappropriation claim must be brought within three years after the misappropriation is discovered or reasonably should have been discovered, and a continuing misappropriation is a single claim. (Civ. Code, § 3426.6.) When both claims are available, the shorter period can run first.

What we do, and where these cases are heard

For plaintiffs, we move quickly: a preservation demand, an early injunction motion where the facts support it, and discovery aimed at the devices and accounts through which the information traveled. For defendants, we test whether the information was actually confidential under the agreement's own definition, whether an exception applies, and whether the plaintiff can prove any use at all.

NDA cases are heard in the Superior Court, in Orange County usually at the Central Justice Center in Santa Ana and in Los Angeles at the Stanley Mosk Courthouse. When a federal trade secret claim is added or the parties are from different states, the case may proceed in the Central District of California.

What to bring to the first meeting

Bring the signed NDA and any related agreements, a list of what confidential information was shared and how, evidence of the suspected disclosure or use, and a timeline. Preserve devices, email accounts, and shared drives before anything is deleted or reimaged.

Frequently asked questions

What happens if someone breaches an NDA?

The injured party can sue for breach of contract, seek an injunction ordering the other side to stop using or disclosing the information, and recover damages for the resulting loss. If the information is a trade secret, statutory remedies including exemplary damages and fees may be added. (Civ. Code, §§ 3426.3, 3426.4.)

Can I sue for breach of an NDA if the information is not a trade secret?

Yes. The NDA defines what is protected, and the trade secret statute expressly preserves contractual remedies whether or not a trade secret is involved. (Civ. Code, § 3426.7, subd. (b).) The plaintiff still has to prove the information fell within the agreement's definition and outside its exceptions.

How long do I have to file an NDA violation lawsuit in California?

Four years for a claim on a written contract. (Code Civ. Proc., § 337, subd. (a).) A companion trade secret claim has a three-year period running from discovery. (Civ. Code, § 3426.6.) Injunctions should be sought much sooner.

What damages can I recover for breach of a confidentiality agreement?

The loss the breach caused, typically lost profits or lost deal value, plus any liquidated damages the agreement validly provides. On an accompanying trade secret claim, unjust enrichment, a reasonable royalty, and up to double exemplary damages for willful and malicious misappropriation may be available. (Civ. Code, § 3426.3.)

Is an NDA enforceable against a former employee in California?

Generally yes, as to genuinely confidential information. It becomes unenforceable to the extent it operates as a restraint on the employee's ability to work in the trade, because California voids such restraints regardless of how narrowly they are drafted. (Bus. & Prof. Code, § 16600.)

Talk to a California breach of contract attorney

If a confidentiality agreement has been breached, or your company has been accused of breaching one, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California.

This page provides general information about California law and is not legal advice. Outcomes depend on the agreement's definitions, the proof of disclosure, and the court.