Demurrer to the First Amended Complaint
57. Airgap Labs Defendants Issac Torres, Brett Stetzko and Vortek Solutions LLC v. LLC’s Demurrer to the First Amended Complaint (“FAC”) is Torres SUSTAINED in part and OVERRULED in part.
2025- Defendants’ Request for Judicial Notice is GRANTED as to 01477064 Exhibit A.
First (Breach of Contract), Second (Breach of Implied Covenant of Good Faith and Fair Dealing), and Fifth (Inducing Breach of Contract)
Breach of Contract
The first, second and fifth causes of action are premised on the existence of a valid contract. All three causes of action allege that the AirGap Employee Handbook, which is attached as Exhibit A to the FAC, is a contract. However, the Handbook expressly states that it is not a contract.
Courts have held that handbooks explicitly stating they are not intended to be a contract or “to otherwise create any legally enforceable obligations” cannot form the basis of a contract claim because it lacks mutual assent. (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 789.) In Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, the court found there was no valid agreement to arbitrate where the employee handbook in which the agreement was contained stated that the “handbook is designed for quick reference and general information and “[i]s not intended as a contract of employment and does not provide in detail all of the company’s policies.” (Id. at 782-788.)
The Handbook in this case contains similar language. Section 1.1 of the alleged and purported contract, titled “Handbook Disclaimer” expressly states: “The contents of this handbook serve only as guidelines and supersede any prior handbook. Neither this handbook, nor any other policy or practice, creates an employment contract, or an implied or express promise of continued employment with the company.” Further, Section 2.1 of the alleged contract, titled “At-Will Employment” states: “Nothing in this handbook may be construed as creating a promise of future benefits or a binding contract between Airgap Labs, LLC and any of its employees.” This section also states that the policies in the handbook “may be amended, modified, or terminated at any time by Airgap Labs LLC...”
Here, a reasonable interpretation of the introductory language is that it means exactly what it says – that the handbook serves only as guidelines and did not create an employment
contract. Therefore, the Handbook cannot form the basis of a breach of an express contract claim.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Plaintiff argues, at minimum, that it has adequately plead the existence of an implied-in-fact agreement concerning confidentiality, protection of company property, and loyalty to AirGap. Plaintiff has only alleged a cause of action for breach of an express contract, and not breach of an implied contract.
Accordingly, the demurrer to the first cause of action is SUSTAINED with leave to amend.
Breach of Implied Covenant of Good Faith and Fair Dealing
The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties (express or implied), since the covenant is an implied term in the contract. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683-684; Alameda Health System v. Alameda County Employees’ Retirement Assoc. (2024) 100 Cal.App.5th 1159, 1190.)
As stated above, Plaintiff has only alleged breach of a written agreement. Because the Handbook is not a written contract between the parties, Plaintiff must allege the existence of an implied contract, which it has not done.
Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.
Inducing Breach of Contract
As stated above, Plaintiff has only alleged breach of a written agreement. Because the Handbook is not a written contract between the parties, Plaintiff must allege the existence of an implied contract, which it has not done.
Accordingly, the demurrer to the fifth cause of action is SUSTAINED with leave to amend.
Third (Breach of Fiduciary Duty), Fourth (Aiding and Abetting Breach of Fiduciary Duty), Seventh (Violation of Business and Professions Code § 17200), Eighth (Intentional Interference with Economic Relations), Ninth (Negligent Interference with Economic Relations), Twelfth (Conversion), and Thirteenth Causes of Action (Breach of Duty of Loyalty)
Plaintiff’s sixth cause of action for misappropriation of trade secrets under the California Uniform Trade Secret Act (CUTSA) alleges that during the course of their employment, Torres
and Stetzko gained access to proprietary trade information, and then disclosed that information to Vortek who then used that information to compete with AirGap.
Defendants argue the third, fourth, seventh, eighth, ninth, twelfth and thirteenth causes of action are preempted by the CUTSA. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc., (2009) 171 Cal.App.4th 939, 958). The preemption inquiry focuses on whether the common law claims are based on the same nucleus of facts that would be used to support a claim for misappropriation of trade secrets. (Id., at 958-959). A claim cannot simply depend on a different theory of liability to avoid the CUTSA’s preemptive effect. (Id., at 957-959 & fn. 7). Rather, a claim avoids preemption only if it is based on facts [independent] [and] distinct from the facts that support the misappropriation claim. (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 499).
Here, Defendants argue these causes of action are based on the same nucleus of facts, namely the misappropriation of confidential and proprietary information. There are no independent and distinct facts separate from the alleged misappropriation of trade secrets.
In Opposition, Plaintiff contends the CUTSA expressly preserves contractual remedies and does not displace civil claims that are independent of trade secret misappropriation. (Civ. Code § 3426.7(b).) As the Court of Appeal explained in Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, CUTSA does not displace non-contract claims that, although related to trade secret misconduct, are "independent and based on facts distinct from the facts that support the misappropriation claim." (Id. at 506.) Indeed, Angelica specifically held that claims based upon employee disloyalty, disparagement of the employer, solicitation of customers, solicitation of employees, and retention of company documents may survive independently of any trade secret claim. (Id. at pp. 499, 506-508.)
While these claims involve allegations of misappropriation of trade secret, they are not wholly dependent on such allegations. With respect to the third, fourth and thirteenth causes of action for breach of fiduciary duty and aiding and abetting breach of fiduciary duty, the claims against Defendants are independent of Plaintiff’s trade secret claim. These causes of action are based on Torres and Stetzko violation of their duty of loyalty and are not solely dependent on their misappropriation of any trade secret claim.
As for seventh, eighth and ninth causes of action, these claims are also based on facts that are independent of the
misappropriation of trade secrets claim. Plaintiff alleges Defendants damaged its reputation by, among other things, recruiting employees and diverting customer relationships. Such claims are not dependent on the facts supporting the misappropriation claim.
The twelfth cause of action alleges Defendants maintained possession of Plaintiff’s computer after he was terminated, which likewise is not dependent on a trade secret misappropriation claim.
Accordingly, the demurer to the third, fourth, seventh, eighth, ninth, twelfth and thirteenth causes of action is OVERRULED.
Tenth Cause of Action - Violation of Comprehensive Computer Data Access Fraud Act
Penal Code § 502 makes it a public offense to knowingly access, alter, damage, delete, or use a computer, computer system, or network without permission.
The FAC alleges that defendants Torres and Stezko intentionally exceeded their authorized access to AirGap’s computer systems by engaging in the intentional copying, movement, and deletion of AirGap’s trade secret and confidential information from AirGap’s drive and other storage media, both physical and in the cloud, in violation of AirGap’s applicable policies. (FAC, ¶ 131.) Such actions were undertaken for the benefit of their future company, Vortek. (FAC, ¶ 133.)
Defendants contend such allegations are not plausible because Vortek was not formed until after Stezko had left his employment and Torres was not employed until several months after he left Plaintiff’s employment. Moreover, when the information was accessed, Defendants were employees of Plaintiff and had authority to “prepare detailed sales proposals, and product presentations tailored to customer needs, and collaborate with technical pre-sales engineers and solution architects to design and pitch Fortinet solutions.” (FAC ¶17.) If employees were authorized to have access to and use the information that was copied and downloaded while employed, then there is no violation of the Penal Code section 502 as a matter of law. (See Oracle USA, Inc. v. Rimini St., Inc. (9th Cir. 2018) 879 F.3d 948, 962.)
But on demurrer, the court assumes the truth of the factual allegations. The FAC alleges Torres and Stezko did not have authorization to access Plaintiff’s computer systems to copy and take copy and confidential information. (FAC, ¶¶ 131-
132.) This is sufficient to state a claim for violation of Penal Code § 502.
As to Vortek, there are no factual allegations as to how it accessed Plaintiff’s computers or otherwise took actions to knowingly assist Torres and Stetzko in accessing the computer system. Moreover, Vortek was not in existence at the time Torres and Stetzko were employed by Plaintiff.
Accordingly, the demurrer to the eleventh cause of action is OVERRULED as to Torres and Stetzko and SUSTAINED as to Vortek with leave to amend.
Fourteenth Cause of Action – Violation of Penal Code § 496
Penal Code § 496 makes it a crime to buy, receive, conceal, sell, or withhold property that is known to been stolen or obtained in any manner constituting theft or extortion.
The FAC alleges Defendants knowingly received and possessed AirGap’s property knowing that such property had been obtained unlawfully and without Plaintiff’s consent.
Defendants argue the FAC fails to allege Defendants had “actual knowledge of the stolen character of the property.” But this argument is just a matter of semantics. Plaintiff alleges the property was “unlawfully obtained” which is synonymous with theft.
Accordingly, the demurrer to the fourteenth cause of action is OVERRULED.
The case management conference is continued to October 26, 2026 at 9:00 a.m. in Department C28.
Plaintiff has 20 days leave to amend the complaint.
Defendants shall give notice of this ruling.
58. Rajabi v. The court will not issue a tentative on the motion to enforce Smith the settlement or on the motion for leave to intervene.
2023- The parties and/or their counsel are ordered to appear on 01344444 June 8, 2026 to discuss the status of this case.
59. Vizcarra v. Defendant / cross-defendant Dock Pros, Inc.’s unopposed Bevmo! Inc. motion for summary adjudication as to plaintiff Isidro Vizcarra’s complaint, as well as indemnity cross-complaints by 2023- defendants / cross-complainants Bevmo! Inc. [“Bevmo”], and 01348855 Shear Construction, is GRANTED IN PART and MOOT IN PART. (Code Civ. Proc., § 437c [authorizing motion].)