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This case was last updated from Los Angeles County Superior Courts on 02/04/2019 at 08:54:12 (UTC).

CARLO LLC VS 4518 HOLLYWOOD LLC

Case Summary

On 04/13/2016 CARLO LLC filed a Property - Commercial Eviction lawsuit against 4518 HOLLYWOOD LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICHARD E. RICO. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6844

  • Filing Date:

    04/13/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Commercial Eviction

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD E. RICO

 

Party Details

Plaintiff and Petitioner

CARLO LLC

Defendants and Respondents

DOES 1 - 10

4518 HOLLYWOOD LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NEW ILSON W. ESQ.

ILSON W. NEW ATTORNEY AT LAW

Defendant and Respondent Attorneys

HELENE J. FARBER

HELENE J. FARBER ATTORNEY AT LAW

BERKE ROBERT G. ESQ.

 

Court Documents

SUMMONS (UNLAWFUL DETAINER

4/13/2016: SUMMONS (UNLAWFUL DETAINER

REQUEST FOR ENTRY OF DEFAULT

5/2/2016: REQUEST FOR ENTRY OF DEFAULT

AMENDED PROOF OF SERVICE OF SUMMONS

5/2/2016: AMENDED PROOF OF SERVICE OF SUMMONS

DEFENDANTS' ANSWER TO COMPLAINT FOR FORCIBLE ENTRY [(CCP SECTIONS 1159(2), 1166(B), 1174 (B) ]

5/10/2016: DEFENDANTS' ANSWER TO COMPLAINT FOR FORCIBLE ENTRY [(CCP SECTIONS 1159(2), 1166(B), 1174 (B) ]

NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT; ETC.

5/20/2016: NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT; ETC.

CORRECTED NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT; WITH MISSING PAGES 2, AND 3- -MEMORANDUM OF POINTS AUTHORITIES INCL ORIGINAL CONFORMED FACE PAGE. EVERYTHING ELSE, DECLARATION OF C

5/31/2016: CORRECTED NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT; WITH MISSING PAGES 2, AND 3- -MEMORANDUM OF POINTS AUTHORITIES INCL ORIGINAL CONFORMED FACE PAGE. EVERYTHING ELSE, DECLARATION OF C

Minute Order

6/21/2016: Minute Order

NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT AND/OR ENTRY OF DEFAULT JUDGMENT; MEMORANDUM OF POINTS AUTHORITIES DECLARATION OF COUNSEL HELENE J. FARBER AND DECLARATION OF WILLIAM LEYTON,

7/1/2016: NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULT AND/OR ENTRY OF DEFAULT JUDGMENT; MEMORANDUM OF POINTS AUTHORITIES DECLARATION OF COUNSEL HELENE J. FARBER AND DECLARATION OF WILLIAM LEYTON,

DECLARATION FOR DEFAULT JUDGMENT BY COURT (UNLAWFUL DETAINER?CODE CIVIL PROC., ? 585(D))

7/22/2016: DECLARATION FOR DEFAULT JUDGMENT BY COURT (UNLAWFUL DETAINER?CODE CIVIL PROC., ? 585(D))

OPPOSITION TO MOTION TO SET ASIDE DEFAULT

7/29/2016: OPPOSITION TO MOTION TO SET ASIDE DEFAULT

RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SET ASIDE DEFAULT PROOF OF SERVICE

8/4/2016: RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SET ASIDE DEFAULT PROOF OF SERVICE

TENTATIVE RULING

8/11/2016: TENTATIVE RULING

NOTICE OF APPEAL

9/14/2016: NOTICE OF APPEAL

APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

9/14/2016: APPELLANT'S NOTICE DESIGNATING RECORD ON APPEAL

Proof of Service

9/20/2016: Proof of Service

NOTICE OF APPEAL

9/20/2016: NOTICE OF APPEAL

DECLARATION

12/14/2016: DECLARATION

NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

4/26/2017: NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

24 More Documents Available

 

Docket Entries

  • 04/26/2017
  • NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL

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  • 01/04/2017
  • Writ issued; Filed by Clerk

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  • 12/14/2016
  • DECLARATION

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  • 12/14/2016
  • Declaration; Filed by Creditor

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  • 11/29/2016
  • Writ-Other Issued; Filed by Creditor

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  • 11/01/2016
  • Writ-Other Issued; Filed by Clerk

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  • 10/19/2016
  • Writ-Other Issued; Filed by Clerk

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  • 10/04/2016
  • Writ-Other Issued; Filed by Creditor

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  • 10/03/2016
  • Writ-Other Issued; Filed by Creditor

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  • 09/21/2016
  • NOTICE OF FILING OF NOTICE OF APPEAL

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58 More Docket Entries
  • 05/02/2016
  • Proof-Service/Summons; Filed by Carlo, LLC (Plaintiff)

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  • 05/02/2016
  • REQUEST FOR ENTRY OF DEFAULT

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  • 05/02/2016
  • Default Entered; Filed by Plaintiff/Petitioner

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  • 04/19/2016
  • PROOF OF SERVICE SUMMONS

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  • 04/19/2016
  • REQUEST FOR ENTRY OF DEFAULT

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  • 04/19/2016
  • Proof-Service/Summons; Filed by Carlo, LLC (Plaintiff)

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  • 04/19/2016
  • Request for Entry of Default / Judgment; Filed by Plaintiff/Petitioner

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  • 04/13/2016
  • SUMMONS (UNLAWFUL DETAINER

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  • 04/13/2016
  • COMPLAINT FOR FORCIBLE ENTRY [CCP 1159(2), 1166(B), 1174(B)]

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  • 04/13/2016
  • Complaint; Filed by Carlo, LLC (Plaintiff)

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Tentative Rulings

Case Number: BC616844    Hearing Date: May 19, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CARLO LLC

vs.

4518 HOLLYWOOD LLC

Defendants.

Case No.: BC616844

Hearing Date: May 19, 2021

Ms. Joe’s motion for reconsideration is denied.

On 4/13/16, Plaintiff Carlo, LLC brought the instant action against Defendant 4518 Hollywood, LLC. The complaint alleges a single cause of action for forcible entry. 

At the outset of the case, Defendant failed to file a responsive pleading within the statutorily prescribed time. Plaintiff requested entry of default, and default was entered. Defendant subsequently moved twice to set aside the default, and both times this Court denied the motion. Defendant appealed, and on February 22, 2019, the Court of Appeal reversed this decision and remanded with instructions to set aside the default.

On July 1, 2020, Defendant’s motion for a judgment on the pleadings was granted.

Jacqueline Joe now moves for reconsideration on the grounds that she is the Real Party in Interest and therefore has standing to continue to pursue this action.

On January 11, 2021, this Court continued Joe’s motion to allow her an opportunity to respond to the Court’s concerns.

Legal Standard

Pursuant to Code of Civil Procedure section 1008, subdivision (a), a motion for reconsideration must be brought “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)  

Discussion

A motion for reconsideration must be brought “within 10 days after service upon the party of written notice of entry of the order.” (CCP § 1108, subd. (a).) Here, notice of the relevant order was served on July 2, 2020. The instant motion was not filed until July 17, 2020. In supplemental briefing, Joe clarified that notice of the order granting judgment on the pleadings was sent via mail. After allowing for the extra 5 days of mail-service, Joe’s motion is timely.

However, at the January 11, 2021 hearing, this Court continued Joe’s motion, writing:

In response to the Court’s tentative order denying her motion posted January 7, 2021, Ms. Joe filed a series of declarations at 6:09 a.m. this morning. At the invitation of the Court, she did address certain concerns regarding her assignment of rights and her not receiving notice.

While deficiencies with her Motion for Reconsideration still exist, based upon arguments proffered by her counsel during the hearing the Court continues it for further briefing to May 19, 2021, at 10 a.m. (supplemental briefing schedule per code). Of specific concerns that remain are

why Ms. Joe did not notice a real party in interest or otherwise appear in the case earlier, and if a Plaintiff that commenced bankruptcy proceedings July 21, 2014, can legally assign rights on January 1, 2019.

Joe’s supplemental materials fail to adequately address the Court’s concerns. The only supplemental exhibits submitted were this Court’s minute order ruling, Defendant’s opposition to the Plaintiff’s motion for entry of default; and the reply to the opposition. These exhibits do not speak in any way to whether or not a valid legal assignment of rights from Plaintiff to Ms. Joe took place, or whether this assignment took place prior to Plaintiff’s declaration of bankruptcy. Ms. Joe’s memorandum of points and authorities is similarly deficient.

The entirety of Ms. Joe’s response to the Court’s concerns was:

… As noted in Ms. Joe’s declaration filed herein on January 11, 2021, her role as real party in interest is under Code Civ. Proc. § 369(a)(3), which is proper for unlawful detainer actions. Ms. Joe made her appearance in this court six months earlier; that is, before Judge Richard Rico in her January 17, 2020, filing and in appearance by her then counsel, Franklin Jeffries. Exhibit A.014 of her Reconsidertion. [sic] See also: the attached Exhibits D.007 & E.001, filed on November 12, 2019, and January 17, 2020. The bankruptcy issue had already been briefed and decided on January 27, 2020. Exhibit C. Defendant never showed that Judge Rico had made judicial error. In a published decision, the California Supreme Court has already ruled that a decision, such as shown in Exhibit C, is res judicata. Harth v. Ten Eyck, 16 Cal.2d 829, 834 [108 P.2d 675]. [Please note that the handdelivery version of the above contained errata and is corrected herewith.]

While Plaintiff cites to Exhibit A.014 to show that she made her appearance “six months earlier,” Exhibit A.014 is a second page of a proof of service, and does not show any appearance by Plaintiff. Exhibit D.007 is the seventh page of an opposition, and Exhibit E.001 is the first page of a reply. Accordingly, none of Plaintiff’s cited to evidence establishes that Ms. Joe appeared in this Court.

Moreover, even assuming Ms. Joe did appear, the issue here is not just when Ms. Joe appeared, but whether a valid assignment of rights did, or could, take place.

As the Court has stated, it does not believe that Plaintiff could have validly assigned rights on January 1, 2019, given that Plaintiff commenced bankruptcy proceedings on July 21, 20214. Finally, Ms. Joe has still not attached any evidence that would show that an assignment of rights has, in fact, taken placed.

Given that this was Ms. Joe’s second opportunity to show that valid and legal assignment of rights took place, and Ms. Joe failed to do so, the Court finds that the motion must be denied.

Based on the foregoing, Ms. Joe’s motion for reconsideration is denied.

It is so ordered.

Dated: May , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC616844    Hearing Date: January 11, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CARLO LLC

vs.

4518 HOLLYWOOD LLC

Defendants.

Case No.: BC616844

Hearing Date: January 11, 2020

The Court’s tentative is to deny Plaintiff’s motion for reconsideration. However, on the day of the hearing, the Court will allow Ms. Joe to present adequate evidence that: (1) a legal assignment of rights took place such that she is, indeed, a real party in interest and that this assignment took place prior to Plaintiff’s declaration of bankruptcy; (2) that Ms. Joe had no actual or constructive notice of the entry of the Court’s order granting Defendant’s judgment on the pleadings, and (3) a legally adequate explanation as to why Ms. Joe failed to timely file a notice of real party in interest and appear in the case.

On 4/13/16, Plaintiff Carlo, LLC brought the instant action against Defendant 4518 Hollywood, LLC. The complaint alleges a single cause of action for forcible entry. 

At the outset of the case, Defendant failed to file a responsive pleading within the statutorily prescribed time. Plaintiff requested entry of default, and default was entered. Defendant subsequently moved twice to set aside the default, and both times this Court denied the motion. Defendant appealed, and on February 22, 2019, the Court of Appeal reversed this decision and remanded with instructions to set aside the default.

On July 1, 2020, Defendant’s motion for a judgment on the pleadings was granted.

Jacqueline Joe now moves for reconsideration on the grounds that she is the Real Party in Interest and therefore has standing to continue to pursue this action.

Legal Standard

Pursuant to Code of Civil Procedure section 1008, subdivision (a), a motion for reconsideration must be brought “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)  

Discussion

A motion for reconsideration must be brought “within 10 days after service upon the party of written notice of entry of the order.” (CCP § 1108, subd. (a).) Here, notice of the relevant order was served on July 2, 2020. The instant motion was not filed until July 17, 2020.

In addition to the untimeliness of Ms. Joe’s motion, there is also insufficient evidence to conclude that Jacqueline Joe is, in fact, a real party in interest in this case. Ms. Joe does not appear anywhere in the Complaint’s allegations. She has not filed a notice of real party in interest nor made any other appearance in this case. In support of her claim that she is a real party in interest, Ms. Joe submitted a declaration, a copy of the prove-up for default judgment, an excerpt from Defendants’ answer, and a bankruptcy report.

The prove-up does not contain any mention of Ms. Joe, nor does Defendants’ answer. The bankruptcy report has no discernable connection to Ms. Joe. While Ms. Joe’s declaration states that she was assigned all of Plaintiff’s property rights under the Feb 28-29, 2006 and July 9, 2009 rental agreements, Ms. Joe does not attach any evidence to corroborate this. As result, the only evidence to suggest Ms. Joe has any connection to this action is Ms. Joe’s single declaration asserting that does.

Furthermore, if the assignment took place during the pendency of the bankruptcy, it would not be valid. The bankruptcy trustee, as the representative of the bankruptcy estate, is the sole party with the capacity to pursue this action. (M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554, 562, “the commencement of Chapter 7 bankruptcy extinguishes a debtor’ legal rights and interests in any pending litigation, and transfers those rights to the trustee, acting on behalf of the bankruptcy estate.”)

This evidence is insufficient to show that Ms. Joe is a real party of interest in this case. Given that Plaintiff no longer has standing to pursue this action, Ms. Joe cannot be allowed to continue to litigate this action in its place based on such a flimsy evidentiary showing.

Based on the foregoing, it is the Court’s tentative conclusion to deny Plaintiff’s motion for reconsideration. However, on the day of the hearing, the Court will allow Ms. Joe to present adequate evidence that: (1) a legal assignment of rights exists and that this assignment took place prior to Plaintiff’s declaration of bankruptcy; (2) that Ms. Joe had no actual or constructive notice of the entry of the Court’s order granting Defendant’s judgment on the pleadings, and (3) a legally adequate explanation as to why Ms. Joe failed to timely file a notice of real party in interest or otherwise appear in the case.

It is so ordered.

Dated: January , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC616844    Hearing Date: July 01, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

CAROLO LLC

vs.

4518 HOLLYWOOD LLC

Defendants.

Case No.: BC616844

Hearing Date: July 1, 2020

Defendant’s motion for a judgment on the pleadings is GRANTED.

On 4/13/16, Plaintiff Carlo, LLC brought the instant action against Defendant 4518 Hollywood, LLC. The complaint alleges a single cause of action for forcible entry. 

At the outset of the case, Defendant failed to file a responsive pleading within the statutorily prescribed time. Plaintiff requested entry of default, and default was entered. Defendant subsequently moved twice to set aside the default, and both times this Court denied the motion. Defendant appealed, and on February 22, 2019, the Court of Appeal reversed this decision and remanded with instructions to set aside the default.

Defendant now moves for a judgment on the pleadings.

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired.  Except as provided by Code of Civil Procedure section 438, the rules governing demurrers apply.  Thus, a motion by defendant can be made on the ground that the court “lacks jurisdiction of the subject of one or more of the causes of action alleged”, or the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.”  (Code Civ Proc., §¿438, subd. (c).)

The determination of whether an answer states a defense is governed by the same principles that apply in determining if a complaint states a cause of action. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) Thus, a defendant who wishes to assert an affirmative defense must plead the essential facts of that defense in the answer. (Code Civ Proc., §431.30, subd. (b).)

Procedural Deficiencies

The Court notes the issue, raised by Plaintiff in its opposition to Defendant’s ex parte application, that Defendant failed to meet and confer before filing this motion, as required by CCP section 439, subdivision (a)(2). However, CCP section 439, subdivision (B)(4) expressly states:

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings.

Accordingly, the Court will still reach the merits of Defendant’s motion, despite its failure to meet and confer.

Discussion

As of July 21, 2014, Plaintiff was in Chapter 7 bankruptcy proceedings. Defendant now moves for a judgment on the pleadings based on Plaintiff’s status as a chapter 7 bankrupt.

“The commencement of Chapter 7 bankruptcy bankruptcy

In M & M Foods, Inc., the Court of Appeal discussed standing in the context of Chapter 7 bankruptcy writing:

In the context of bankruptcy bankruptcy standing bankruptcy  (per curiam).

Chapter 7 bankruptcy extinguishes a debtor's legal rights and interests in any pending litigation, and transfers those rights to the trustee, acting on behalf of the bankruptcy  11 U.S.C. § 541(a)(1) (indicating that a bankruptcy  § 323 (establishing the bankruptcy trustee as the ‘representative’ of the estate with the ‘capacity to sue and be sued’ on its behalf).

Chapter 7 bankruptcy  and only the trustee in bankruptcy standing

Given that the instant complaint constitutes a pre-petition cause of action, it appears Plaintiff no longer has standing to pursue the instant action. (M & M Foods, Inc., supra, at p. 562.)

Based on the foregoing, Defendant’s motion for a judgment on the pleadings is granted.

It is so ordered.

Dated: July 1, 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via CourtCall. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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