CUTSA Preemption in California: Which Claims Survive Alongside a Trade Secret Claim

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

CUTSA preemption, also called supersession, is the rule that California's Uniform Trade Secrets Act displaces other civil claims based on trade secret misappropriation, with exceptions that include contract claims. A conversion, unfair competition, or interference claim that rests on the same nucleus of facts as the trade secret claim is displaced and can be dismissed. (Civ. Code, § 3426.7, subd. (b).) Claims built on other wrongdoing survive. Kolmogorov Law, P.C. represents companies that bring trade secret cases and companies that defend them, not individual employees.

Call (909) 235-6116 or contact us online to discuss which claims in a trade secret case are likely to stand.

Where the rule comes from

The statute never uses the word preemption. It lists what the Act leaves alone: contractual remedies, whether or not based on misappropriation of a trade secret, other civil remedies that are not based on misappropriation, and criminal remedies. (Civ. Code, § 3426.7, subd. (b).) Courts read the second item as a boundary. A civil remedy that is based on misappropriation is not saved, so the Act takes its place.

The Court of Appeal has explained the purpose. The Act was meant to replace a tangle of overlapping theories with one consistent set of rules for trade secret liability.

The same nucleus of facts test

A 2009 Court of Appeal decision asks whether the other claim is based on the same nucleus of facts as the misappropriation claim. The inquiry looks at the conduct alleged, not the label on the cause of action. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 958-959.) The court rejected the idea that a claim survives whenever it seeks something more than the trade secret claim does.

Our page for a company whose new hire is accused describes the result in that case. The method is what carries over. Take the trade secret allegations out of the claim and see what is left. If nothing is left, the claim is displaced.

Claims that courts have held displaced

• Breach of confidence, where the confidence broken was the disclosure of the secret.
• Interference with contract, where the wrongful act was helping someone misappropriate.
• Unfair competition under Business and Professions Code section 17200, where the unlawful practice alleged was the misappropriation.
• Conversion and common counts, where the only property described was the information.

The first three come from the decision cited above. The unfair competition claim there was a statutory one, and the statutory label did not save it. The fourth comes from a second Court of Appeal decision, which called the Act the exclusive civil remedy for conduct falling within its terms.

Information that may not be a trade secret

A plaintiff may plead in the alternative. If the information turns out not to be a trade secret, the complaint says, it was still confidential, and taking it was conversion.

That second decision closed most of the door. Information is not property unless some law makes it property. A plaintiff that identifies no property right outside trade secret law has no remedy outside it, and the time to plead that other right is in the complaint.

The same court did find one theory outside the Act. The plaintiff alleged that the defendant knowingly helped another company violate a court judgment. That wrong did not depend on the information being secret, so the claim was not displaced, although it failed for a separate reason.

What survives

Contract claims survive by the statute's own words, even when the breach is the misappropriation itself. That includes nondisclosure agreements and license terms. Our page on breach of an NDA covers those claims.

Other claims survive when they are independent of the misappropriation and rest on distinct facts. In one case an executive was alleged to have violated a noncompetition agreement and his duty of loyalty while still employed. The Court of Appeal held that the claims for breach of fiduciary duty, unfair competition, and interference were not displaced, because that theory did not depend on any trade secret. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495.) It did not decide whether those claims had merit.

A civil claim under Penal Code section 502 also survives. In May 2026 the Court of Appeal held that the Act does not displace civil claims under that statute. It reasoned that section 502 targets conduct directed at electronic data, a different harm. Before that, federal courts in California had split on the question. The plaintiff must still plead and prove a violation of section 502.

One more candidate turns on the pleading. A claim over physical property, such as a laptop or a prototype, concerns a thing and not information. Whether it stands depends on the conduct alleged.

If your company is the plaintiff

Displacement shapes the complaint before it is filed.

• Plead the contract claims. They are safe.
• For each other claim, allege conduct that would be wrongful even if no trade secret existed.
• Describe tangible property separately from information.

A complaint that adds claims restating the misappropriation invites a demurrer.

If your company is the defendant

A displacement motion can narrow the case early. Courts have decided the question on demurrer and on summary adjudication. The analysis runs claim by claim.

If the plaintiff amends to add facts said to be independent, test them. A new paragraph that still describes taking or using the same information has not changed the nucleus of facts.

What to bring to the first meeting

• The complaint or draft complaint, and any cross-complaint.
• Every agreement between the parties: nondisclosure, license, employment, and vendor terms.
• A list of what was taken, separating documents and data from devices and other physical items.
• Any order or judgment from an earlier case between the same parties.
• The motion or letter that raises the displacement argument, if one has arrived.

Frequently asked questions

We sued a competitor for trade secret theft, conversion, and unfair competition. They say most of our claims are preempted. What does that mean?

It means the defendant contends those claims only restate the trade secret claim. Under Civil Code section 3426.7, California's trade secret act displaces other civil claims based on the same nucleus of facts as the misappropriation. Conversion and unfair competition counts that describe nothing more than taking the information can be dismissed. The statutory claim and any contract claims remain.

What is CUTSA preemption?

It is the rule that California's Uniform Trade Secrets Act supersedes other civil remedies based on misappropriation of a trade secret. The source is Civil Code section 3426.7, which preserves contract remedies, criminal remedies, and civil remedies not based on misappropriation. Courts apply it by comparing the facts behind each claim with the facts behind the trade secret claim.

Does CUTSA preempt a breach of contract claim?

No. Civil Code section 3426.7 states that the Act does not affect contractual remedies, whether or not they are based on misappropriation of a trade secret. A California company can sue on a nondisclosure agreement and under the Act for the same disclosure. The contract term itself must still be enforceable.

If a court decides our information is not a trade secret, can we still sue for conversion of confidential information?

Usually not on that basis alone. A California Court of Appeal has held that information is not property unless some law makes it so, and that a plaintiff with no property right outside trade secret law has no remedy outside it. A conversion claim needs a separately pleaded property right, such as tangible items or a right another law creates.

Can a breach of fiduciary duty claim survive CUTSA preemption?

Yes, if it rests on conduct other than the misappropriation. In a 2013 decision the California Court of Appeal held that fiduciary duty, unfair competition, and interference claims were not displaced where they were based on an executive's alleged disloyalty while still employed. A fiduciary claim that alleges only disclosure of the secret is at risk.

Talk to a California trade secret attorney

If a trade secret case is being shaped by this rule, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is located in Irvine, California. See also our trade secret attorney page.

This page provides general information about California law and is not legal advice. Outcomes depend on the pleadings, the facts, and the court.