On 07/30/2018 FOREMAN FINANCIAL INC filed a Contract - Other Contract lawsuit against VICTOR LUCERO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
FOREMAN FINANCIAL INC.
LUCERO VICTOR DBA BLUE DIAMOND AUTO
LEVENTHAL JONATHAN DAVID
GARDNER DIXON LEON
SIFERS JAMES STEVEN
KESHISHIAN ARNO HILL
Court documents are not available for this case.
Hearing01/10/2022 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Attorney FeesRead MoreRead Less
Hearing11/23/2021 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion - Other (name extension)Read MoreRead Less
DocketNotice Re: Continuance of Hearing and Order; Filed by: ClerkRead MoreRead Less
DocketReset - Court Unavailable, Hearing on Motion for Attorney Fees scheduled for 11/17/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Continued - by Court was rescheduled to 01/10/2022 10:00 AMRead MoreRead Less
DocketHearing on Motion - Other For Restitution of Cost scheduled for 11/23/2021 at 10:00 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketMotion re: For Restitution of Costs after Reversal of a Judgment in Plaintiff's Favor; Filed by: Victor Lucero (Defendant); As to: Foreman Financial INC. (Plaintiff)Read MoreRead Less
DocketUpdated -- Memorandum of Costs on Appeal: Name Extension: blank; Document changed from Memorandum (name extension) to Memorandum of Costs on Appeal; As To Parties: Foreman Financial INC. (Plaintiff)Read MoreRead Less
DocketUpdated -- Motion for Attorney Fees FOR ATTORNEY?S FEE AND COSTS FOLLOWING REMITTITUR;: Name Extension: FOR ATTORNEY?S FEE AND COSTS FOLLOWING REMITTITUR;; As To Parties: removedRead MoreRead Less
DocketMemorandum of Costs on Appeal; Filed by: Victor Lucero (Defendant); As to: Foreman Financial INC. (Plaintiff)Read MoreRead Less
DocketHearing on Motion for Attorney Fees scheduled for 11/17/2021 at 10:00 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketDefault entered as to Victor Lucero; On the Complaint filed by Foreman Financial INC. on 07/30/2018Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant); Service Date: 08/09/18; Service Cost: 79.00; Service Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Foreman Financial INC. (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 01/27/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 08/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
Case Number: 18STLC10065 Hearing Date: May 3, 2021 Dept: 26
MOTION FOR ATTORNEY’S FEES
(Civil Code § 1717; Code Civ. Proc., § 1032, 1033.5)
Plaintiff Foreman Financial, Inc.’s Motion for Attorney’s Fees is GRANTED IN THE AMOUNT OF $38,134.70.
On July 30, 2018, Plaintiff Foreman Financial, Inc. (“Plaintiff”) filed the instant action for breach of contract against Defendant Victor Lucero dba Blue Diamond Auto (“Defendant”). Default was entered against Defendant on September 17, 2018. On June 12, 2018, the Court denied Plaintiff’s application for writ of attachment. On December 16, 2019, the Court signed into order the parties’ stipulation to set aside the entry of default.
Plaintiff’s ex parte application for writ of attachment was previously scheduled for March 17, 2020 but taken off calendar following COVID-related closures of the Court. Plaintiff’s fully briefed motion for summary judgment, or in the alternative, summary adjudication came for hearing on July 8, 2020. Upon granting the motion for summary judgment, the Court entered judgment in Plaintiff’s favor on August 27, 2020. Notice of the entry of judgment was served on Defendant on September 18, 2020. Plaintiff filed a memorandum of costs on September 22, 2020 and the instant Motion for Attorney’s Fees (“the Motion”) on October 15, 2020. Defendant filed an opposition to the Motion on April 19, 2021.
Plaintiff moves for attorney’s fees in the amount of $56,917.45 pursuant to Civil Code section 1717 and the applicable attorney’s fees provision in the parties’ Master Dealer Agreement (“the MDA”).
Entitlement to Attorney Fees
A prevailing party is entitled to recover costs, which can include attorney’s fees, as a matter of right. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) This right may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Additionally, a party prevailing on an action on a contract is entitled to attorney fees if the contract contains an attorney’s fees provision. (Civ. Code, § 1717, subd. (a).)
It is undisputed that Plaintiff is the party in whose favor judgment was granted. Therefore, Plaintiff is the prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) Defendant’s contention that the prevailing party determination should be continued due to its pending appeal is contrary to settled law. “Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal. [Citations.]” (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368.) “[A]n award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. (Id. at 369 [citing Code Civ. Proc., § 916, subd. (a)].)
It is also undisputed that the Master Dealer Agreement (“the MDA”), which is the subject of this action, provided for recovery of attorney’s fees by the prevailing party. (Motion, Fuentes Decl., Exh. A, ¶26.) Therefore, the Court finds that Plaintiff is entitled to an award of attorney’s fees in this action.
Timing of Motion
“A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, Rule 3.1702, subd. (b)(1).) In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, Rule 8.822, subd. (a)(1).) The Court can extend the time for bringing a motion upon a showing of good cause. (Cal. Rules of Court, Rule 3.1702, subd. (d).) Alternatively, the Court can grant relief from a missed deadline under Code of Civil Procedure section 473, subdivision (b). (Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1192-1195.)
Judgment was entered in this action on August 27, 2020 and notice of the entry of judgment was served on September 18, 2020. The instant Motion was timely filed less than 30 days later on October 15, 2020.
Calculation of Attorney Fees
Plaintiffs seek an attorney’s fees award of $56,917.45. Of that, $9280.00 were billed by in-house counsel Jonathan D. Levanthal, Esq. at $400.00 per hour. (Fuentes Decl., ¶¶4-6 and Exhs. 6-7.) In total, Attorney Leventhal spent 23.2 hours on preliminary review and research, filing the Complaint, reviewing the Answer and sending demands. (Id. at ¶15 and Exh. 6.) In March 2019, Plaintiff substituted in Madison Law, APC. (Id. at ¶17.) Madison Law billed 182.10 hours for a total of $43,387.50. (Motion, Sifers Decl., Exh. 2, p. 12.)
The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at 48, n. 23.)
The hourly rates billed by Plaintiff’s attorneys were reasonable: in-house counsel and the partner at
Madison Law billed from $395.00 to $415.00 per hour. (Motion, Sifers Decl., ¶5; Fuentes Decl., ¶6.) The associates at Madison Law billed $275.00 to $375.00 per hour and the support staff billed at $125.00 per hour. (Motion, Sifers Decl., ¶5.) These rates are in line with civil litigation practitioners in Southern California.
Regarding the number of hours billed, certain circumstances resulted in additional time spent by Plaintiff on this action. In particular, the rejected filing of Defendant’s Answer resulted in Plaintiff pursuing entry of default and a writ of attachment from September 2018 to September 2019. It was not until December 2019 that the entry of default was set aside. However, the Court agrees with Defendant that billing for certain tasks appears excessive. The facts of the case were straightforward and gave rise to only two causes of action for breach of contract. Nor were there any complications with regards to trying the case by way of a summary judgment motion. Also, it appears that there were more than five attorneys or legal support staff working on this matter based on the different timekeeper codes. (See Motion, Exh. 2.) Nothing about this straightforward case indicates the need for so many different attorneys and suggests duplicative billing.
All these factors indicate that the hours billed by Plaintiffs’ counsel were excessive and should be reduced. However, the Court is not persuaded by opposition arguments that the attorney’s fees should be proportionally tied to the amount awarded in damages. The cases on which Defendant relies speak to the extent of the prevailing party’s success in the litigation, which is one factor for the trial court to consider in awarding fees. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 430, 439; General Electric Co. v. General Surety & Ins. Corp. (1965) 232 Cal.App.2d 590, 604.) Here, Plaintiff was fully successful in the action.
Based on the foregoing, the Court applies a negative multiplier of 0.33 to the attorney’s fees sought and reduces the award to $38,134.70.
Plaintiff Foreman Financial, Inc.’s Motion for Attorney’s Fees is GRANTED IN THE AMOUNT OF $38,134.70.
Moving party to give notice.
Case Number: 18STLC10065 Hearing Date: July 08, 2020 Dept: 26
Foreman Financial, Inc. v. Lucero, et al.
MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
(CCP § 437c)
Plaintiff Foreman Financial, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.
On July 30, 2018, Plaintiff Foreman Financial, Inc. (“Plaintiff”) filed the instant action for breach of contract against Defendant Victor Lucero dba Blue Diamond Auto (“Defendant”). On January 21, 2020, Plaintiff filed the instant Motion for Summary Judgment against Defendant. On April 14, 2020, Defendant filed its opposition to the Motion for Summary Judgment and Plaintiff replied on July 2, 2020.
The Complaint alleges that on March 2, 2016, Plaintiff and Defendant entered into a Master Dealer Agreement (“the MDA”), which was personally guaranteed by Defendant in his individual capacity. (Compl., ¶BC-1 and Exhs. A-B.) Plaintiff allegedly assigned Defendant a Retail Installment Sales Contract on a 2009 Nissan Altima (“the Realegeno RISC”), which Defendant refused to repurchase on June 17, 2018. (Id. at ¶BC-2, pp. 1-3.) Plaintiff allegedly assigned Defendant a Retail Installment Sales Contract (“the Diggs RISC”) on a 2013 Chevrolet Malibu LT, which Defendant refused to repurchase on July 29, 2017. (Id. at ¶BC-2, pp. 4-6.) As a result, Plaintiff suffered damages from the customers’ defaults, which the MDA was intended to protect against. (Id. at ¶BC-2, pp. 1-6.)
In order to prevail on a claim for breach of contract, Plaintiff must demonstrate (1) existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Plaintiff moves for summary judgment or adjudication on the grounds that it is undisputed Defendant failed repurchase the aforementioned RISCs and failed to make payment as required, in breach of the Agreement.
Plaintiff’s Initial Burden of Proof
In support of the Motion, Plaintiff presents the following evidence. Plaintiff is in the business of providing financing to qualified individuals for the purchase of motor vehicles. (Motion, Separate Statement of Facts No. 1; Fuentes Decl., ¶2.) Plaintiff routinely purchases financing agreements from automobile dealers. (Motion, Separate Statement of Facts No. 2; Fuentes Decl., ¶2.) On March 2, 2016, Plaintiff entered into a Master Dealer Agreement (“MDA”) with Defendant. (Motion, Separate Statement of Facts No. 3; Fuentes Decl., ¶3 and Exh. 1.) The MDA was personally guaranteed by Defendant pursuant to a written “Continuing Guaranty” executed on the same date. (Motion, Separate Statement of Facts No. 4; Fuentes Decl., ¶4 and Exh. 2.) The MDA provides that Defendant is obligated to make “payment equal to the amount of the check which was issued from Plaintiff to Defendant” on or before its contractual due date. (Motion, Separate Statement of Facts No. 5; Fuentes Decl., ¶5 and Exh. 1 at ¶4.)
1. The Realegeno RISC
In November, 2017, Defendant assigned Plaintiff its rights under the Realegeno RISC for purchase of a 2009 Nissan Altima. (Motion, Separate Statement of Facts Nos. 7-8; Fuentes Decl., ¶¶7-8 and Exhs. 3-4.) Plaintiff accepted the Realegeno RISC under a five-payment default basis. (Motion, Separate Statement of Facts Nos. 8-9; Fuentes Decl., ¶¶8-9 and Exhs. 1, 4.) This meant that if the customer defaulted on the Realegeno RISC within five payment periods (five months), Defendant was obligated to repurchase the RISC. (Motion, Separate Statement of Facts No. 9; Foreman Decl., ¶9 and Exhs. 1, 4.) Plaintiff made payment to Defendant under the terms of the MDA. (Motion, Separate Statement of Facts No. 10; Fuentes Decl., ¶10.) Following the customer’s failure to make full payment on the fifth term, Plaintiff demanded Defendant repurchase the Realegeno RISC on April 23, 2018. (Motion, Separate Statement of Facts Nos. 11-15; Foreman Decl., ¶¶11-15 and Exhs. 3, 5, 7.)
The customer’s failure to make the fifth payment was due to an additional Loss Damages Waiver (“LDW”) charge following the cancellation of the customer’s car insurance. (Motion, Separate Statement of Facts Nos. 11; Fuentes Decl., ¶11 and Exh. 3.) Plaintiff sent another demand on May 8, 2018. (Motion, Separate Statement of Facts No. 16; Foreman Decl., ¶16 and Exh. 8.) Additional notices were sent on May 11, 2018 and June 11, 2018. (Motion, Separate Statement of Facts No2. 17-18; Foreman Decl., ¶¶17-18 and Exhs. 9-10.) The amount outstanding on the Realegeno RISC is $7,470.90, plus $2,741.31 interest (based on a rate of $4.29 per day). (Motion, Separate Statement of Facts No. 30; Fuentes Decl., ¶28.)
2. The Diggs RISC
In December, 2017, Defendant assigned Plaintiff its rights under a RISC for purchase of a 2013 Chevrolet Malibu. (Motion, Separate Statement of Facts Nos. 20-21; Fuentes Decl., ¶¶20-21 and Exhs. 1, 12-13.) Plaintiff accepted the Diggs RISC under a three-payment default basis. (Motion, Separate Statement of Facts No. 21; Fuentes Decl., ¶21 and Exhs. 1, 13.) This meant that if the customer defaulted on the RISC within three payment periods (three months), Defendant was obligated to repurchase the RISC. (Motion, Separate Statement of Facts No. 22; Foreman Decl., ¶21 and Exh. 13.) Plaintiff made payment to Defendant under the terms of the MDA. (Motion, Separate Statement of Facts No. 23; Fuentes Decl., ¶22.) Under the terms of the RISC, the customer agreed to pay Plaintiff all amounts owed thereunder in the event the 2013 Chevrolet Malibu was damaged, destroyed or missing. (Motion, Separate Statement of Facts No. 24; Fuentes Decl., ¶23 and Exh. 12.)
The 2013 Chevrolet Malibu was involved an accident on December 27, 2019. (Motion, Separate Statement of Facts No. 25; Fuentes Decl., ¶24 and Exh. 14.) The customer made first payment under the RISC on January 22, 2018 but made no payments thereafter. (Motion, Separate Statement of Facts No. 25; Fuentes Decl., ¶24 and Exh. 14.) Following the customer’s failure to make payment after the first term, Plaintiff demanded Defendant repurchase the Diggs RISC on April 15, 2018. (Motion, Separate Statement of Facts Nos. 25-29; Foreman Decl., ¶¶24-31 and Exhs. 14-18.) Great Western Insurance Company paid Plaintiff $6,942.49 after declaring the 2013 Chevrolet Malibu a total loss and Plaintiff applied that amount to the customer’s account. (Motion, Separate Statement of Facts No. 26; Fuentes Decl., ¶25 and Exh. 15.) The amount outstanding on the Diggs RISC is $3,477.00, plus $1,278.00 interest (based on a rate of $2.00 per day). (Motion, Separate Statement of Facts No. 31; Fuentes Decl., ¶29.)
Based on the evidence presented, Plaintiff has carried its initial burden of proof to demonstrate Defendant’s breach of the parties’ MDA. The burden now shifts to Defendant to create a triable issue of material fact regarding Plaintiff’s inability to prove the elements of its cause of action or the viability of an affirmative defense.
Defendant’s Burden of Proof in Opposition
1. The Realegeno RISC
In opposition, Defendant argues that there are triable issues of material fact regarding whether Plaintiff had proper grounds for the repossession of the 2009 Nissan Altima, such that Defendant’s obligations under the MDA were not triggered. Defendant argues that (1) Plaintiff did not give the customer proper notice of the amount owing and opportunity to cure as required by the RISC; and (2) the LDW charge should not have been included in the amount owing under the RISC, nor given rise to the customer’s default.
Defendant’s evidence does not raise a triable issue of material fact regarding Plaintiff’s right to repossess the 2009 Nissan Altima. First, the statutes on which Defendant relies to contend that Plaintiff was required to give the customer notice of the correct amount of the default, Civil Code section 2983.2, subdivision (a), only requires notice of intent to dispose a repossessed vehicle. (Civ. Code, § 2983.2, subd. (a).) In fact, the statute is entitled “Disposition after repossession …” demonstrating that notice prior to repossession of the vehicle, which are the facts of this case, is not required thereunder.
Nor has Defendant shown that Plaintiff incorrectly added the LDW charge to the fifth payment owed by the customer. Under section 1(b) of the RISC, Plaintiff was entitled to add the LDW charge to the amount owed: “We may apply each payment to the earned and unpaid part of the Finance Charge, to the unpaid part of the Amount Financed and to other amounts you owe under this contract in any order we
Choose.” (Citing Motion, Exh. 3, ¶1(b).) Under paragraph 2(d), the purchaser is required to have insurance on the vehicle and upon failing to do so, is liable for the insurance obtained by Plaintiff. (Motion, Exh. 3, ¶2(d).) Plaintiff demonstrated that it charged the customer $55.00 each month without insurance for a total LDW charge of $275.00, which remained unpaid. (Motion, Fuentes Decl., ¶12 and Exhs. 5, 18-19.)
Therefore, Defendant has not shown that triable issues of material fact exist as to the triggering of its obligations under the MDA.
2. The Diggs RISC
With respect to the default on the 2013 Chevrolet Malibu, Defendant argues that customer purchased GAP insurance, which waived any amount owed under the RISC in the event the vehicle was totaled prior to completion of the RISC. Defendant contends that since any amount still owing after payment from Great Western was waived, triable issues of material fact exist as to whether the customer was ever in default on the RISC and whether Defendant’s obligation to repurchase the RISC was triggered.
Plaintiff’s Motion admits that the customer purchased GAP insurance from Defendant, for which $1,484.33 in additional charges were added to the amount owing under the Diggs RISC. (Motion, Fuentes Decl., ¶26 and Exh. 21.) The customer entered into the Diggs RISC on December 18, 2017 and the vehicle was involved in an accident on December 27, 2017. (Id. at ¶¶20, 24.) The customer only made one payment on the Diggs RISC on January 22, 2017. (Id. at ¶24.)
The Diggs RISC itself only refers to the existence of GAP Insurance in the abstract: “In the event of theft or damage to your vehicle that results in a total loss, there may be a gap between the amount you owe under the contract and the proceeds of your insurance settlement and deductible. The contract provides that you are liable for the gap amount. An optional debt cancellation agreement for coverage of the gap amount may be offered for an additional charge.” (Id. at Exh. 12, ¶2(a).) While the GAP Insurance agreement is between Defendant and Diggs, it obligates Plaintiff (lienholder) “to waive the unpaid net balance remaining due to a physical damage constructive total loss” of the vehicle. (Id. at Exh. 21.)
Defendant has not demonstrated triable issues of material fact regarding whether the waiver of the unpaid net balance remaining on Diggs’ RISC also waived Defendant’s obligation to repurchase the RISC. Ultimately, Defendant has not provided any evidence that its contractual relationship with Plaintiff is controlled by anything other than the MDA. No provision of the GAP Insurance Agreement indicates that the parties’ obligations to each other under the MDA are altered by the customer’s purchase of GAP Insurance. Indeed, the MDA contains an integration clause that states “[t]his Agreement supersedes any and all previous agreements between Dealer and Foreman and together with the exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement between the parties.” (Motion, Exh. 1, ¶29.)
The court determines whether the parties intended the contract to be a final and complete expression of their agreement. (Code Civ. Proc., § 1856, subd. (d).) “The crucial issue in determining whether there has been an integration is whether the parties intended their writing to serve as the exclusive embodiment of their agreement. The instrument itself may help to resolve that issue.” (Masterson v. Sine (1968) 68 Cal.2d 222, 225, 65 Cal.Rptr. 545, 436 P.2d 561.) The existence of an integration clause is a key factor in divining that intent. (See Founding Members, supra, 109 Cal.App.4th at pp. 953–954, 135 Cal.Rptr.2d 505.) “This type of clause has been held conclusive on the issue of integration, so that parol evidence to show that the parties did not intend the writing to constitute the sole agreement will be excluded.
(Grey v. American Management Services (2012) 204 Cal.App.4th 803, 807.) The integration clause demonstrates that the terms of the GAP Insurance Agreement have no bearing on the MDA or the parties’ obligations thereunder.
Therefore, Defendant has not carried its burden of proof to show that triable issues of material fact exist as to its liability to Plaintiff under the MDA.
Based on the foregoing, Plaintiff Foreman Financial, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.
Moving party to give notice.
*Hearing may be heard at 2:30 p.m. Please email clerk at 8:30: <SSCdept26@LACourt.org>
 Plaintiff’s Separate Statement of Facts incorrectly refers to the supporting declaration as the “Foreman Declaration” when it is in fact the Fuentes Declaration.
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