Practice Pointers

VII. Practice Pointers

1. Plead fraud with particularity. Engalla requires "how, when, where, to whom, and by what means." Generic allegations will be sustained on demurrer. Identify each speaker, each statement, the medium, and the approximate date.

2. For promissory fraud, marshal contemporaneous-intent evidence. Internal emails, financial records showing inability to perform, and pattern evidence of similar broken promises to others are the typical building blocks under Lazar.

3. Pick your tortious-interference theory carefully. Existing contract → use Quelimane. Prospective relationship → use Della Penna/Korea Supply and identify a specific independently wrongful act (statute, regulation, common-law tort).

4. Mind CUTSA preemption when pleading trade-secret cases. Avoid duplicative conversion, breach-of-confidence, IIPEA, and UCL counts based on the same misappropriation facts. K.C. Multimedia will result in those counts being stricken. Plead independent contract and fiduciary-duty theories where viable.

5. Forget inevitable disclosure. Whyte and AMN foreclose any backdoor non-compete strategy. Build threatened-misappropriation evidence the old-fashioned way: forensic-imaging of devices, exfiltration logs, copying of customer lists, suspect downloads in the days before resignation.

6. Use UCL strategically, not as a damages claim. Korea Supply and Kwikset limit relief to restitution and injunction. UCL is best deployed (a) as a vehicle for injunctive relief, (b) to extend statutes of limitations to four years, or (c) to capture conduct that escapes traditional tort elements.

7. Trace the money for conversion. Hartford requires identifiable funds. In commercial-fraud cases involving the diversion of money, work with forensic accountants early to establish the chain.

8. Bank-defendant cases require Casey-level pleading. Allege actual knowledge of the specific primary breach and substantial assistance, with facts — not labels.

9. Defeat economic-loss-rule defenses with Robinson Helicopter. Identify affirmative intentional misrepresentations and damages independent of contract losses (e.g., regulatory exposure, third-party liability, reputational injury supported by evidence).

10. Preserve punitive damages. Civil Code section 3294 requires clear-and-convincing evidence of malice, oppression, or fraud. Plead the underlying facts, not just the conclusory standard, and request financial-condition discovery early.

11. Consider DTSA for federal jurisdiction and ex parte seizure. When trade-secret theft involves digital exfiltration and risk of dissemination, the 18 U.S.C. § 1836(b)(2) seizure mechanism is a powerful early tool. Comply with the section 1833(b) whistleblower-immunity notice requirement in employment agreements to preserve fee and exemplary remedies.

12. Document the duty to disclose. LiMandri's four categories are the demurrer battleground for concealment claims. Match facts to categories explicitly in the complaint.

This analysis is for informational purposes only and does not constitute legal advice. Consult qualified counsel for advice specific to your situation. Attorney advertising.