The opinion of the court was delivered by: The Hon. James V. Selna
AMENDED AND SUPPLEMENTAL FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PRELIMINARY INJUNCTION
The Court has read all documents submitted in support of, in return to, and/or in opposition to entry of the temporary restraining order, the order to show cause, and/or the preliminary injunction, and has read supplemental briefing by plaintiffs and defendants Jason and Richard Gilliam. The Court also has considered all other evidence, documents, and argument of counsel and of pro se parties. Based on the foregoing material, and the entire file in this civil action, the Court finds that good cause exists to grant the preliminary injunction described in the Order to Show Cause and to amend and supplement the Court's Findings of Fact, Conclusions of Law, and Preliminary Injunction dated April 9, 2009.
The Court finds the following facts:
1. A number of customers and potential customers of Monex Deposit Company and Monex Credit Company (collectively, "Monex") have decided not to do business with the company because of what they have read about Monex on websites operated by or contributed to by defendants Jason Gilliam, Richard Gilliam, and Steven Bowman (collectively "defendants"). Those websites include www.MonexFRAUD.com.
2. Defendants have threatened to publish additional negative material about Monex on www.MonexFRAUD.com and to report Monex's activities to government and the news media, and to continue to do so, unless Monex pays them $20 million. Defendants' statements were not protected communications under California Civil Code Section 47(b), in that (a) the statements were not made as a demand with an intent to proceed with litigation; and (b) defendants did not . represent and did not have a relationship with the vast majority of investors whom they purported to represent. To the extent that a facial threat of RICO litigation may be deemed within the scope of Section 47(b), defendants nevertheless threatened other conduct not within the scope of the privilege and not related to the litigation process.
3. Since the Court's March 24, 2009 Order, the Webhost GoDaddy has removed defendants MonexFRAUD website, advising the parties that GoDaddy would revisit the issue after this Court ruled on the Order to Show Cause for a Preliminary Injunction.
4. Other websites operated by or contributed to by defendants publishing negative material about Monex remain in operation.
5. Since this Court's March 24, 2009 Order in this matter, defendants have not retracted their extortionate demands or their threats: (a) to publish additional negative material about Monex on www.MonexFRAUD.com and other websites, (b) to report Monex's activities to government and the news media, and (c) to continue to do so, unless Monex pays them $20 million.
6. Also since this Court's March 24, 2009 Order defendant Jason Gilliam has testified that his mission short of compelling Monex to pay his extortionate demand of $15 million (his father defendant Richard Gilliam demanded $20 million) was to completely destroy Monex through a relentless marketing and awareness campaign to persuade Monex customers and potential customers to avoid transacting business with Monex, and to consider instead investing with Monex's competitors.
7. Also since this Court's March 24, 2009 Order, defendant Jason Gilliam has again stated that he wants $15 million from Monex.
8. Jason Gilliam has testified that his damages flowing from the shut down of the MonexFRAUD site are injury to his pride, credibility and morale. Richard Gilliam has testified that he'd prefer the site remain shut down. Since the March 24, 2009 Order, Monex has deposited $20,000 cash with the Clerk of the Central District.
9. Defendants are likely to continue publishing negative material on those websites, including www.MonexFRAUD.com, at least if web-services provider GoDaddy.com reinstates the website, and to keep their extortionate threats in place because Monex has refused to pay them.
10. The websites, and particularly the resurrection of the MonexFRAUD.com website, are likely to harm Monex immediately by damaging its reputation, customer relationships, business, revenues, and goodwill.
11. Such harm will not be compensable through money damages because the amount of damage will not be ...