Red Hydrogen, LLC v. Evans CA4/3

Filed 3/18/21 Red Hydrogen, LLC v. Evans CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RED HYDROGEN, LLC,

Plaintiff and Respondent, G058946

v. (Super. Ct. No. 30-2019-01078007)

MARK EVANS, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed. Kring & Chung, Kenneth W. Chung and Mark M. DelRosario for Defendant and Appellant. Weeks Nelson, Gregory K. Nelson and Chandler G. Weeks for Plaintiff and Respondent.

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Plaintiff Red Hydrogen, LLC (Red Hydrogen), sued its former controller, defendant Mark Evans, claiming Evans sent a defamatory e-mail to a potential investor, resulting in Red Hydrogen losing the investment capital. Evans filed a special motion to strike the first amended complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP statute), which the trial court denied. Evans appealed. We affirm. Evans’s e-mail, which was sent to a single investor, did not constitute participation in any public discussion and thus was not protected activity.

FACTS1

Red Hydrogen “is the designer, developer, manufacturer and seller of smart phones sold under the RED® brand. [Red Hydrogen] sells products directly to end users, as well as to retailers that in turn resell the phones and associated products.” Evans was an employee of Red Hydrogen, functioning as controller in 2018 until he voluntarily terminated his employment in December. “Evans was initially a consultant for Red.com, LLC (a sister company of [Red Hydrogen]) for a few years and then an employee of [Red Hydrogen]. When Evans was hired as an employee he signed an Employment Agreement with Red Technologies, LLC (now known as Red Hydrogen, LLC). . . . As part of that agreement, Evans agreed to maintain and keep confidential certain confidential information of [Red Hydrogen]. [¶] As the controller of Red Hydrogen LLC, Evans was in a position of trust and confidence.”