4401 . Misappropriation of T rade Secrets - Essential Factual
[ Name of plaintiff ] claims that [ name of defendant ] has misappropriated a
trade secret. T o succeed on this claim, [ name of plaintiff ] must prove all
of the following:
1. That [ name of plaintiff ] [owned/was a licensee of] [the
following:][ describe each item claimed to be a trade secret that is
subject to the misappropriation claim ];
2. That [this/these] [ select short term to describe, e.g., information ]
[was/were] [a] trade secret[s] at the time of the misappropriation;
3. That [ name of defendant ] improperly [acquired/used/ [or]
disclosed] the trade secret[s];
4. That [[ name of plaintiff ] was harmed/ [or] [ name of defendant ] was
unjustly enriched]; and
5. That [ name of defendant ]’s [acquisition/use/ [or] disclosure] was a
substantial factor in causing [[ name of plaintiff ]’s harm/ [or] [ name
of defendant ] to be unjustly enriched].
New December 2007; Revised December 2010, December 2014
Directions for Use
In element 1, specifically describe all items that are alleged to be the trade secrets
that were misappropriated. (See Altavion, Inc. v . Konica Minolta Systems
Laboratory , Inc. (2014) 226 Cal.App.4th 26, 43 [171 Cal.Rptr .3d 714].) If more than
one item is alleged, include “the following” and present the items as a list. Then in
element 2, select a short term to identify the items, such as “information,”
“customer lists,” or “computer code.”
In element 1, select the appropriate term, “owned” or “was a licensee of,” to
indicate the plaintif f’ s interest in the alleged trade secrets. No reported California
state court decision has addressed whether a licensee has a suf ficient interest to
assert a claim of trade secret misappropriation. These instructions take no position
on this issue. The court should make a determination whether the plainti ff has the
right as a matter of substantive law to maintain a cause of action for
misappropriation of trade secrets if that issue is disputed.
Read also CACI No. 4402, “T rade Secret” Defined, to give the jury guidance on
Civil Code section 3426.1(b)(1) defines “misappropriation” as improper
“[a]cquisition” of a trade secret, and subsection (b)(2) defines it as improper
“[d]isclosure or use” of a trade secret. In some cases, the mere acquisition of a trade
secret, as distinguished from a related disclosure or use, will not result in damages
and will only be relevant to injunctive relief. Because generally the jury should be
instructed only on matters relevant to damage claims, do not select “acquired” in
element 3 or “acquisition” in element 5 unless there is evidence that the acquisition
resulted in damages, other than damages from related disclosure or use.
T o avoid confusion, instruct the jury only on the particular theory of
misappropriation applicable under the facts of the case. For example, the jury should
not be instructed on misappropriation through “use” if the plaintif f does not assert
that the defendant improperly used the trade secrets. Nor should the jury be
instructed on a particular type of “use” if that type of “use” is not asserted and
supported by the evidence.
Give also CACI No. 4409, Remedies for Misappr opriation of T rade Secret .
Sources and Authority
• Uniform T rade Secrets Act: Definitions. Civil Code section 3426.1.
• T rade Secrets Must Be Identified W ith Reasonable Particularity . Code of Civil
Procedure section 2019.210.
• “A trade secret is misappropriated if a person (1) acquires a trade secret knowing
or having reason to know that the trade secret has been acquired by ‘improper
means,’ (2) discloses or uses a trade secret the person has acquired by ‘improper
means’ or in violation of a nondisclosure obligation, (3) discloses or uses a trade
secret the person knew or should have known was derived from another who
had acquired it by improper means or who had a nondisclosure obligation or (4)
discloses or uses a trade secret after learning that it is a trade secret but before a
material change of position.” ( Ajaxo Inc. v . E*T rade Gr oup Inc. (2005) 135
Cal.App.4th 21, 66 [37 Cal.Rptr .3d 221].)
• “A cause of action for monetary relief under CUTSA may be said to consist of
the following elements: (1) possession by the plaintif f of a trade secret; (2) the
defendant’ s misappropriation of the trade secret, meaning its wrongful
acquisition, disclosure, or use; and (3) resulting or threatened injury to the
plaintif f. The first of these elements is typically the most important, in the sense
that until the content and nature of the claimed secret is ascertained, it will likely
be impossible to intelligibly analyze the remaining issues.” ( Silvaco Data
Systems v . Intel Corp. (2010) 184 Cal.App.4th 210, 220 [109 Cal.Rptr .3d 27],
internal citations omitted.)
• “A cause of action for misappropriation of trade secrets requires a plaintif f to
show the plaintif f owned the trade secret; at the time of misappropriation, the
information was a trade secret; the defendant improperly acquired, used, or
disclosed the trade secret; the plaintif f was harmed; and the defendant’ s
acquisition, use, or disclosure of the trade secret was a substantial factor in
causing the plaintif f harm.” ( AMN Healthcare, Inc. v . A ya Healthcare Services,
Inc. (2018) 28 Cal.App.5th 923, 942 [239 Cal.Rptr .3d 577] [citing CACI].)
• “It is critical to any [UTSA] cause of action - and any defense - that the
CACI No. 4401 TRADE SECRETS
information claimed to have been misappropriated be clearly identified.
Accordingly , a California trade secrets plaintif f must, prior to commencing
discovery , ‘identify the trade secret with reasonable particularity .’ ” ( Altavion,
Inc. , supra , 226 Cal.App.4th at p. 43.)
• “W e find the trade secret situation more analogous to employment discrimination
cases. In those cases, as we have seen, information of the employer ’ s intent is in
the hands of the employer , but discovery af fords the employee the means to
present suf ficient evidence to raise an inference of discriminatory intent. The
burden of proof remains with the plaintif f, but the defendant must then bear the
burden of producing evidence once a prima facie case for the plaintif f is made.
[¶] W e conclude that the trial court correctly refused the proposed instruction
that would have shifted the burden of proof.” ( Sar gent Fletcher , Inc. v . Able
Corp. (2003) 1 10 Cal.App.4th 1658, 1674 [3 Cal.Rptr .3d 279], internal citation
• “[W]e find no support for [a current-ownership] rule in the text of the CUTSA,
cases applying it, or legislative history . Nor do we find any evidence of such a
rule in patent or copyright law , which defendants have cited by analogy .
Defendants have of fered no persuasive argument from policy for our adoption of
such a rule.” ( Jasmine Networks, Inc. v . Superior Court (2009) 180 Cal.App.4th
980, 986 [103 Cal.Rptr .3d 426].)
• “[T]he only California authority [defendant] cited for the asserted requirement
[that a trade-secrets plaintif f must own the trade secret when the action is filed]
was the of ficial California pattern jury instructions - whose ‘first element,’
[defendant] asserted, ‘requires the plaintif f to be either the owner or the licensee
of the trade secret. See CACI Nos. 4400, 4401.’ [Defendant] did not quote the
cited instructions - for good reason. The most that can be said in favor of its
reading is that the broader and less specific of the two instructions uses the
present tense to refer to the requirement of ownership. That instruction, whose
avowed purpose is ‘to introduce the jury to the issues involved’ in a trade secrets
case (Directions for Use for CACI No. 4400), describes the plaintif f as claiming
that he ‘is’ the owner/licensee of the trade secrets underlying the suit. (CACI No.
4400.) The second instruction, which enumerates the actual elements of the
plaintif f’ s cause of action, dispels whatever weak whiff of relevance this use of
the present tense might have. It requires the plaintif f to prove that he ‘own ed ’ or
‘was a licensee of ’ the trade secrets at issue. (CACI No. 4401, italics added.)
Given only these instructions to go on, one would suppose that past
ownership - i.e., ownership at the time of the alleged misappropriation - is
suf ficient to establish this element.” ( Jasmine Networks, Inc. , supra , 180
Cal.App.4th at p. 997, original italics.)
Secondary Sources
Gaab and Reese, California Practice Guide: Civil Procedure Before T rial - Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
1 Milgrim on T rade Secrets, Ch. 1, Definitional Aspects , § 1.01 (Matthew Bender)
TRADE SECRETS CACI No. 4401
Zamore, Business T orts, Ch. 17, T rade Secrets , § 17.05 et seq. (Matthew Bender)
3 Levy et al., California T orts, Ch. 40, Fraud and Deceit and Other Business T orts ,
§ 40.51 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition ,
§ 565.103[4] (Matthew Bender)
Edelson & Kay , eds., T rade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 1, 2, 6, 10, 1 1, 12
CACI No. 4401 TRADE SECRETS
Page last reviewed May 2024
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