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This case was last updated from Los Angeles County Superior Courts on 04/04/2016 at 11:42:11 (UTC).

PATRICIA SHELLOGG SEAL VS BERKES CRANE ROBINSON & SEAL LLP E

Case Summary

On 12/19/2014 PATRICIA SHELLOGG SEAL filed a Contract - Other Contract lawsuit against BERKES CRANE ROBINSON SEAL LLP E. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA M. SCHEPER and BARBARA A. MEIERS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7367

  • Filing Date:

    12/19/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA M. SCHEPER

BARBARA A. MEIERS

 

Party Details

Plaintiff and Petitioner

SEAL PATRICIA SHELLOGG

Defendants and Respondents

BERKES CRANE ROBINSON & SEAL LLP

BERKES RONALD H.

CRANE STEVEN M.

DOES 1 THROUGH 50

ROBINSON RONALD R.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

LAW OFFICES OF EDMUND S. SCHAFFER

Defendant and Respondent Attorney

KNEAFSEY SEAN M. ESQ.

 

Court Documents

Minute Order

1/2/2015: Minute Order

NOTICE OF DEMURRER AND DEMURRER TO SECOND AND THIRD CAUSES OF ACTION AS BARRED BY STATUTE OF LIMITATIONS

4/2/2015: NOTICE OF DEMURRER AND DEMURRER TO SECOND AND THIRD CAUSES OF ACTION AS BARRED BY STATUTE OF LIMITATIONS

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE AND DEMURRER

4/2/2015: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE AND DEMURRER

Unknown

4/13/2015: Unknown

Minute Order

6/10/2015: Minute Order

PLAINTIFF SEAL'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS ON PLAINTIFF'S PRIVILEGE LOG; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIONS OF PATRICIA SHELLOGG SEAL, EDMUN

3/29/2016: PLAINTIFF SEAL'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS ON PLAINTIFF'S PRIVILEGE LOG; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATIONS OF PATRICIA SHELLOGG SEAL, EDMUN

Minute Order

4/21/2016: Minute Order

DEFENDANT'S OBJECTION TO PLAINTIFF'S PROPOSED ORDER GRANTING DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS ON PLAINTIFF'S PRIVILEGE LOG

5/2/2016: DEFENDANT'S OBJECTION TO PLAINTIFF'S PROPOSED ORDER GRANTING DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS ON PLAINTIFF'S PRIVILEGE LOG

Minute Order

5/24/2016: Minute Order

NOTICE OF RULING AT TRIAL SETTING CONFERENCE

10/5/2016: NOTICE OF RULING AT TRIAL SETTING CONFERENCE

SUBSTITUTION OF ATTORNEY

1/5/2017: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

1/5/2017: SUBSTITUTION OF ATTORNEY

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

3/3/2017: REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

ORDER RE: PLAINTIFF PATRICIA SHELLOGG SEAL'S OBJECTIONS TO DEFENDANTS' EVIDENCE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

3/22/2017: ORDER RE: PLAINTIFF PATRICIA SHELLOGG SEAL'S OBJECTIONS TO DEFENDANTS' EVIDENCE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

PLAINTIFF PATRICIA SHELLOGG SEAL'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO SEAL THE 2007 SCHEDULE K-1 ATTACHED AS EXHIBIT 24

4/20/2017: PLAINTIFF PATRICIA SHELLOGG SEAL'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO SEAL THE 2007 SCHEDULE K-1 ATTACHED AS EXHIBIT 24

Minute Order

4/26/2017: Minute Order

MEMORANDUM OF COSTS (SUMMARY)

6/15/2017: MEMORANDUM OF COSTS (SUMMARY)

NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

8/8/2017: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

89 More Documents Available

 

Docket Entries

  • 02/29/2016
  • Motion to Compel Filed by Attorney for Defendant/Respondent

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  • 12/08/2015
  • Notice (of informal ) Filed by Attorney for Defendant/Respondent

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  • 12/03/2015
  • Notice Filed by Attorney for Defendant/Respondent

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  • 12/02/2015
  • Declaration Filed by Attorney for Defendant/Respondent

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  • 12/02/2015
  • ExParte Application & Order Filed by Attorney for Defendant/Respondent

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  • 12/02/2015
  • Order Filed by Court

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  • 08/28/2015
  • Answer to Complaint Filed by Attorney for Defendant/Respondent

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  • 08/19/2015
  • Notice of Ruling Filed by Attorney for Defendant/Respondent

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  • 08/11/2015
  • Reply/Response Filed by Attorney for Defendant/Respondent

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  • 08/05/2015
  • Statement-Case Management Filed by Attorney for Plaintiff/Petitioner

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8 More Docket Entries
  • 04/02/2015
  • Demurrer Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 04/02/2015
  • Req for Service/Publication Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 04/02/2015
  • Request for Judicial Notice Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 04/01/2015
  • Statement-Case Management Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 03/26/2015
  • Notice Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 02/26/2015
  • Notice Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 02/19/2015
  • Notice Filed by Attorney for Plaintiff/Petitioner

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  • 01/21/2015
  • Notice-Case Management Conference Filed by Clerk

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  • 01/02/2015
  • CCP 170.6 Application Filed Filed by Attorney for Plaintiff/Petitioner

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  • 12/19/2014
  • Complaint

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Tentative Rulings

Case Number: BC567367    Hearing Date: December 14, 2020    Dept: 31

DEFENDANTS' MOTION TO TAX COSTS IS GRANTED, IN PART.

Background

On December 19, 2014, Plaintiff Patricia Shellogg Seal, individually, as representative of the Estate of James L. Seal, and as successor trustee and beneficiary of the Seal-Shellogg Trust filed the instant action against Defendants Berkes Crane Robinson & Seal, LLP; Robert H. Berkes, erroneously sued as Ronald H. Berkes; Steven M. Crane; Ronald R. Robinson; and Does 1 through 50. On May 22, 2015, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for: 

  1. Breach of Contract;

  2. Breach of Contract by Promissory and Equitable Estoppels; and

  3. Common Counts for Money Had and Received and Work, Labor, and Services. 

On August 18, 2015, the Court sustained Defendants’ demurrer to the second and third causes of action without leave to amend.

On June 9, 2017, the Court granted Defendants’ motion for summary judgment. Plaintiff timely appealed. On June 16, 2020, the Court of Appeal issued a Remittitur, remanding the matter to the trial court with instructions to enter an order denying Defendants’ motion for summary judgment. The Court of Appeal’s disposition also stated “Shellogg shall recover her costs on appeal.”

On July 6, 2020, Plaintiff filed a Memorandum of Costs on Appeal (APP-013). On July 27, 2020, the Court entered a Stipulation and Order re Deadline to File Motion to Tax Costs, ordering Defendants’ deadline to file a Motion to Tax Costs extended to August 17, 2020.

On August 17, 2020, Defendants Berkes Crane Robinson & Seal LLP, Berkes, Crane, and Robinson (hereinafter collectively referred to as “Defendants”) filed the instant motion. Defendants seek to strike costs related to filing fees, preparation of appendix, and printing/copying briefs.

Legal Standard 

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).) “A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486). 

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) 

Discussion

Recoverable Costs on Appeal

California Rules of Court Rule 8.278 provides, in relevant part:

(1)  A party may recover only the following costs, if reasonable:

(A)  Filing fees;

(B)  The amount the party paid for any portion of the record, whether an original or a copy or both. The cost to copy parts of a prior record under rule 8.147(b)(2) is not recoverable unless the Court of Appeal ordered the copying;

(C)  The cost to produce additional evidence on appeal;

(D)  The costs to notarize, serve, mail, and file the record, briefs, and other papers;

(E)  The cost to print and reproduce any brief, including any petition for rehearing or review, answer, or reply;

(F)  The cost to procure a surety bond, including the premium, the cost to obtain a letter of credit as collateral, and the fees and net interest expenses incurred to borrow funds to provide security for the bond or to obtain a letter of credit, unless the trial court determines the bond was unnecessary; and

(G)  The fees and net interest expenses incurred to borrow funds to deposit with the superior court in lieu of a bond or undertaking, unless the trial court determines the deposit was unnecessary.

(2)  Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.

(Cal. Rules of Court 8.278(d).)

When evaluating costs on appeal, the Court does not apply the “reasonably necessary to the conduct of the litigation” standard. (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 261.) As stated by the Court of Appeal:

[S]ection 1033.5 is a trial court rule, and should be confined to the trial court context, so the trial court's reliance on section 1033.5, subdivision (c)(2) was misplaced. Rule 8.278(d)(2), in direct contrast to section 1033.5, subdivision (c)(2), makes no reference to necessity as a fact in what part of the appellate record is recoverable as a cost. The rule says, “The amount the party paid for any portion of the record,” which suggests that, indeed, “any portion” of the record is recoverable. (Rule 8.278(d)(1).) (The exception is: “The cost to copy parts of a prior record” and there was no “prior record” in this case.)

This reading of rule 8.278(d)(2) makes particular sense when one realizes that the sanctions for including unnecessary material in the appellate record are specifically committed to the appellate court, on its motion or a motion of a party in the appellate court. Rule 8.276(a) provides: “On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for:... (2) Including in the record any matter not reasonably material to the appeal's determination....” In short, it is the appellate court who decides what is and is not “reasonably necessary” to an appeal.

(Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 261–262.)

Accordingly, the Court determines only if the cost is “reasonable” pursuant to the express language of the Rule 8.278.

Plaintiff’s cost memorandum requests the following costs:

Item 1: Filing fees in the amount of $995.00

Item 2: Preparation of the original and copies of clerk’s transcript or appendix in the amount of $2,800.00

Item 4: Printing and copying of briefs in the amount of $4,734.00

Item 6: Transmitting, filing, and serving of record, briefs, and other papers in the amount of $400.

The total amount in costs sought by Plaintiff is $8,929.00.

Defendants move to tax related to filing fees, preparation of appendix, and printing/copying briefs as follows:

Item 1: Filing fees in the amount of $220.00

Item 2: Preparation of the original and copies of clerk’s transcript or appendix in the amount of $2,800.00

Item 4: Printing and copying of briefs in the amount of $4,734.00

The total amount Defendants seek to tax is $7,754.00, leaving Plaintiff to recover $1,175.00 in fees.

Item 1: Filing Fees

The Advisory Committee Comment to California Rules of Court Rule 8.278 provides, in pertinent part:

Subdivision (d)(1)(D), allowing recovery of the “costs to notarize, serve, mail, and file the record, briefs, and other papers,” is intended to include fees charged by electronic filing service providers for electronic filing and service of documents.

Defendants seek to tax a total of $220 in filing fees. Defendants argue that while Plaintiff’s Memorandum requests $995 in filing the Notice of Appeal, the Notice of Appeal filing fee is $775. (Kneafsey Decl., Exh. 5.) Defendants assert that Plaintiff should therefore be taxed in the amount of $220 for this item.

In opposition, Plaintiff argues that the Superior Court charges a $100 filing fee to file an appeal. Plaintiff asserts that moreover, Janney and Janney Attorney Service charges a $90 appellate filing fee and a $30 fee for advancing the $875 in filing fees for which is reimbursed out of counsel’s credit card.

In reply, Defendants argue that Plaintiff admits that the filing fee was $775. Defendants assert that Plaintiff incorrectly claims that the Superior Court also charges a $100 filing fee to file an appeal, when, in fact, the $100 is a “deposit” for the court reporters’ transcript pursuant to California Rules of Court Rule 8.100(b)(2). Defendants contend that since an appendix was used in lieu of a clerk transcript, Plaintiff had the ability to request the amount be returned but did not do so. Defendants also argue that the $120 for Plaintiff’s attorney service is not recoverable pursuant to Rule 8.278(d)(1)(A).

The Court finds that Plaintiff is entitled to recover $875 in filing fees, consisting of the $775 Notice of Appeal fee and the $100 required by the Superior Court. Moreover, while the $120 paid to Plaintiff’s attorney service is more properly allocated to the “cost to notarize, serve, mail and file the record, briefs, and other papers,” pursuant to the Advisory Committee Comment to Rule 8.278, Plaintiff may still recover such fees regardless of how it’s classified.

Based on the foregoing, Defendant’s motion to tax $220.00 in filing fees is DENIED.

Item 2: Preparation of the Original and Copies of Clerk’s Transcript or Appendix

The Advisory Committee Comment to California Rules of Court Rule 8.278 also provides:

Subdivision (d)(1)(B) is intended to refer not only to a normal record prepared by the clerk and the reporter under rules 8.122 and 8.130 but also, for example, to an appendix prepared by a party under rule 8.124 and to a superior court file to which the parties stipulate under rule 8.128.

Defendants seek to tax the entirety of costs sought for the preparation of the original and copies of clerk’s transcript or appendix, $2,800. Defendants argue that in support of this item, Plaintiff’s counsel provided a single check that was payable to Counsel Press in the amount of $2,800. (Kneafsey Decl., Exh. 2.) Defendants contend that Plaintiff did not have to pay for any portion of the record, as the parties electronically submitted the documents from the trial court to Counsel Press. Defendants argue that Counsel Press provided professional attorney and paralegal services that are not recoverable under Rule 8.278(d)(1)(B).

In opposition, Plaintiff argues that her counsel did not seek or require any assistance in the drafting of her opening or reply briefs but sought help from an appellate advisory firm to comply with the new electronic formatting and filing requirements implemented by the Court of Appeal in the Second District. Plaintiff asserts that to the best of her counsel’s knowledge and recollection, Plaintiff did not request Counsel Press to perform any legal work for Plaintiff which would require an attorney and counsel was not aware that an attorney had performed any work. Plaintiff contends that to counsel’s best recollection substantially all of the work done for Plaintiff from Counsel Press involved formatting and filing the three-volume, 1,203-page Joint Appendix and the Tables and Index in appellant’s opening and rely briefs which were filed by Plaintiff’s counsel. Plaintiff argues that the draft Joint Appendix was revised numerous times between October 2017 and February 2018 at the insistence of defense counsel. Plaintiff contends that defense counsel never paid for any of the expenses related to revisions of the Joint Appendix and is now trying to avoid any compensation to Plaintiff.

Plaintiff argues that the preparation of an appellate appendix was traditionally performed by a clerk of the court but because the courts are now typically shorthanded and sometimes unresponsive, many lawyers have resorted to using trained paralegals, litigation secretaries, and other non-lawyers to assist in formatting and filing appendices and briefs as now required. Plaintiff asserts that the Advisory Committee Comment to Rule 8.278(d)(1)(B) expressly states that payment to a person preparing an appendix constitutes a valid payment for a portion of the record which qualifies as a recoverable cost. Plaintiff contends that similarly, the Advisory Committee Comment to Rule 8.278(d)(1)(D) expressly states that fees spent on “electronic service filing service providers for electronic filing and service of documents” are intended to be allowed as a recoverable cost.

Plaintiff argues that Check #1368 dated September 17, 2017 was the initial check paid to Counsel Press to induce it to begin preparing the Joint Appendix. Plaintiff asserts that it was anticipated that the Joint Appendix would eventually cost more than this amount.

In reply, Defendants argue that recoverable costs permitted by subsection (d)(1)(B) are limited to “[t]he amount the party paid for any portion of the record.” (Cal. Rules of Court Rule 8.278(d)(1)(B) (emphasis added).) Defendants assert that if Plaintiff had to pay for a copy service to copy the clerk’s transcript so that it could be complied into a joint appendix, the copying cost would be recoverable. Defendants contend that here, however, Plaintiff did not pay Counsel Press, or any third party, “for any portion of the record.” Defendants argue that to the contrary, both Plaintiff’s counsel and Defendants’ counsel provided the entire record to Counsel Press. (Kneafsey Decl. ¶ 11.)

Defendants assert that instead, Plaintiff retained Counsel Press to prepare the Joint Appendix in the manner required by the California Rules of Court based on its appellate expertise. Defendants contend that this was a service and not a recoverable cost under Rule 8.278(d)(1)(B).

The Court finds that Rule 8.278(d)(1)(B) allows for a party to recover costs associated with what the party paid for any portion of the record, not for costs associated with the preparation of an appendix. Plaintiff’s citation to the Advisory Committee Comment thus is not persuasive, as the Advisory Committee Comment only clarifies that a party may recover for costs associated with what the party paid for any portion of the record that may be included in an appendix prepared by a party. Because Plaintiff does not dispute that the parties provided Counsel Press with the record in this instance, Plaintiff has failed to establish that any part of the fee paid to Counsel Press was “for any portion of the record.” Moreover, Plaintiff concedes that Plaintiff was the one to file the joint appendix, not Counsel Press. Accordingly, Plaintiff is not able to recover these fees under Rule 3.278(d)(1)(D) either.

Based on the foregoing, Defendant’s motion to tax $2,800 sought in preparation of the original and copies of clerk’s transcript or appendix is GRANTED.

Item 4: Printing and Copying of Briefs

Defendants finally seek to tax the entirety of costs sought in relation to the printing and copying of briefs, $4,734. Defendants argue that in support of this item, Plaintiff provided two checks paid to Counsel Press – Check #1429 in the amount of $4,834 and Check #1457 in the amount of $900. (Kneafsey Decl., Exh. 3.) Defendants assert that again, Plaintiff’s counsel seeks to obtain the amounts that were paid for the professional services and advice received from Counsel Press. Defendant contend that these amounts are not for the actual printing of the briefs and are therefore not recoverable.

In opposition, Plaintiff argues that Check #1429 consists of $3,000 paid to complete the formatting and filing of the Joint Appendix and $834 paid for Plaintiff’s opening brief formatting and filing. As to Check #1457, Plaintiff asserts that the $900 was paid for formatting and filing to appellant’s reply brief.

The Court finds that Plaintiff is not entitled to the $4,734 in costs sought related to the printing and copying of briefs. Rule 8.278(d)(1)(E) allows for the recovery of costs “to print and reproduce any brief, including any petition for rehearing or review, answer, or reply.” As conceded by Plaintiff herself, the amounts paid to Counsel Press were for the alleged formatting and filing of the Joint Appendix, opening brief, and reply brief. While Plaintiff may be entitled to recover for any amount that was paid for the filing of those documents, or printing and reproducing them, Plaintiff has not identified how much of the amounts paid to Counsel Press was for the filing, printing or reproducing of those documents. Because Plaintiff has failed to ear mark how much was paid for only the filing or copying of such documents, Plaintiff has failed to establish that she is entitled to the costs sought.

Based on the foregoing, Defendant’s motion to tax costs in the amount of $4,734 sought for printing and copying of briefs is GRANTED.

Conclusion

Defendant’s motion to tax costs is DENIED as to Item 1. Defendant’s motion to tax costs is GRANTED as to Items 2 and 4. The Court taxes $2,800 in costs associated with the preparation of the original and copies of clerk’s transcript or appendix and $4,734 in costs associated with printing and copying of briefs, for a total of $7,534.00 in taxed costs. Plaintiff may claim costs totaling $1,395.00.

Moving party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

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